DRS/A

Confidential Draft No. 8 Submitted to the Securities and Exchange Commission on March 21, 2018

As filed with the Securities and Exchange Commission on                     , 2018

Registration No.            

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM S-1

REGISTRATION STATEMENT

Under

the Securities Act of 1933

BLOOM ENERGY CORPORATION

(Exact name of Registrant as specified in its charter)

Delaware	3620	77-0565408
(State or other jurisdiction of incorporation or organization)	(Primary Standard Industrial Classification Code Number)	(I.R.S. Employer Identification Number)

1299 Orleans Drive

Sunnyvale, California 94089

(408) 543-1500

(Address, including zip code, and telephone number, including area code, of Registrant’s principal executive offices)

KR Sridhar

Chief Executive Officer

Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, California 94089

(408) 543-1500

(Name, address, including zip code, and telephone number, including area code, of agent for service)

Copies to:

Gordon K. Davidson, Esq. Sayre E. Stevick, Esq. Jeffrey R. Vetter, Esq. Fenwick & West LLP Silicon Valley Center 801 California Street Mountain View, California 94041 (650) 988-8500 Shawn M. Soderberg, Esq. Bloom Energy Corporation 1299 Orleans Drive Sunnyvale, California 94089 (408) 543-1500 Alan F. Denenberg, Esq. Davis Polk & Wardwell LLP 1600 El Camino Real Menlo Park, CA 94025 (650) 752-2000

Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this Registration Statement.

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box.  ☐

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering.  ☐

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer”, “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

Large accelerated filer	☐	Accelerated filer	☐
Non-accelerated filer	☒  (Do not check if a smaller reporting company)	Smaller reporting company	☐
		Emerging Growth Company	☒

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided to Section 7(a)(2)(B) of the Securities Act.  ☐

CALCULATION OF REGISTRATION FEE

Title of Each Class of Securities to be Registered	Proposed Maximum Aggregate Offering Price(1)(2)	Amount of Registration Fee
Common Stock, par value $0.0001 per share

⁽¹⁾  Estimated solely for the purpose of computing the amount of the registration fee pursuant to Rule 457(o) under the Securities Act of 1933, as amended.

⁽²⁾  Includes the aggregate offering price of additional shares the underwriters have the right to purchase from the Registrant, if any.

The Registrant hereby amends this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the Registration Statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a) may determine.

Explanatory Note

This Draft Registration Statement No. 8 is being submitted solely for the purposes of submitting certain exhibits as noted in the exhibit index and amending the disclosures in Item 16 of Part II of the Draft Registration Statement. No changes or additions are being made hereby to the preliminary prospectus constituting Part I of the Draft Registration Statement or to Items 13, 14, 15 or 17 of Part II of the Draft Registration Statement. Accordingly, the preliminary prospectus constituting Part I of the Draft Registration Statement and Items 13, 14, 15 and 17 of Part II of the Draft Registration Statement have been omitted.

Part II

Information Not Required in Prospectus

Item 16. Exhibits and Financial Statement Schedules.

(a) Exhibits. The following exhibits are included herein or incorporated by reference.

Exhibit Number	Description
1.1†	Form of Underwriting Agreement
3.1†	Amended and Restated Certificate of Incorporation of the Registrant, to be effective upon closing of this offering
3.2†	Amended and Restated Bylaws of the Registrant, to be effective upon the closing of this offering
3.3#	Amended and Restated Certificate of Incorporation of the Registrant, as amended and currently in effect
3.4#	Bylaws of the Registrant, as currently in effect
4.1†	Form of Common Stock Certificate of the Registrant
4.2#	Eighth Amended and Restated Registration Rights Agreement by and among the Registrant and certain stockholders of the Registrant, dated June 30, 2011
4.3#	Amendment No. 1 to Eighth Amended and Restated Registration Rights Agreement by and among the Registrant and certain stockholders of the Registrant, dated December 14, 2015
4.4#	Indenture by and among the Registrant, certain guarantors party thereto and U.S. Bank National Association, as trustee, dated as of December 15, 2015
4.5#	Form of 6% Convertible Senior Secured PIK Note due 2020 (included in Exhibit 4.4)
4.6#	Security Agreement by and among the Registrant, certain guarantors party thereto and U.S. Bank National Association, as collateral agent, dated as of December 15, 2015
4.7#	Agreement and Warrant to Purchase Common Stock by and between Keith Daubenspeck and the Registrant, dated June 27, 2014
4.8#	Agreement and Warrant to Purchase Common Stock by and between Dwight Badger and the Registrant, dated June 27, 2014
4.9#	Plain English Warrant Agreement by and between Triplepoint Capital LLC, a Delaware limited liability company, and the Registrant, dated December 31, 2010
4.10#	Amended and Restated Plain English Warrant Agreement by and between Triplepoint Capital LLC, a Delaware limited liability company, and the Registrant, dated December 15, 2011
4.11#	Agreement and Warrant to Purchase Series F Preferred Stock by and between PE12GVVC (US Direct) Ltd. and the Registrant, dated July 1, 2014
4.12#	Agreement and Warrant to Purchase Series F Preferred Stock by and between PE12PXVC (US Direct) Ltd. and the Registrant, dated July 1, 2014
4.13#	Warrant to Purchase Preferred Stock by and between Atel Ventures, Inc., in its capacity as Trustee for its assignee affiliated funds, and the Registrant, dated December 31, 2012
4.14#	Plain English Warrant Agreement by and between Triplepoint Capital LLC, a Delaware limited liability company, and the Registrant, dated September 27, 2012
4.15#	Agreement and Warrant to Purchase Series G Preferred Stock by and between Keith Daubenspeck and the Registrant, dated June 27, 2014

II-1

Exhibit Number	Description
4.16#	Agreement and Warrant to Purchase Series G Preferred Stock by and between Dwight Badger and the Registrant, dated June 27, 2014
4.17#	Amendment No. 2 to Eighth Amended and Restated Registration Rights Agreement by and among the Registrant and certain stockholders of the Registrant, dated August 4, 2016
4.18#	Amendment No. 3 to Eighth Amended and Restated Registration Rights Agreement by and among the Registrant and certain stockholders of the Registrant, dated September 20, 2016
4.19#	First Supplemental Indenture by and among Registrant, certain guarantor party thereto and U.S. Bank National Association, as trustee, dated as of September 20, 2016
4.20#	Indenture by and among the Registrant, certain guarantors party thereto and U.S. Bank National Association, as trustee, dated as of June 29, 2017
4.21#	Form of 10% Senior Secured Note due 2024 (included in Exhibit 4.20)
4.22#	Security Agreement by and among the Registrant, U.S. Bank National Association, as trustee and U.S. Bank National Association, as collateral agent, dated as of June 29, 2017
4.23#	Common Stock Purchase Warrant by and between Canada Pension Plan Investment Board and the Registrant, dated August 31, 2017
5.1†	Opinion of Fenwick & West LLP
10.1†	Form of Indemnification Agreement for directors and executive officers
10.2#	2002 Equity Incentive Plan and form of agreements used thereunder
10.3#	2012 Equity Incentive Plan and form of agreements used thereunder
10.4†	2016 Equity Incentive Plan and form of agreements used thereunder
10.5†	2016 Employee Stock Purchase Plan and form of agreements used thereunder
10.6#	NASA Ames Research Center Enhanced Use Lease dated December 5, 2011 by and between the Registrant and National Aeronautics and Space Administration, as amended as of November 1, 2012, August 25, 2014 and August 17, 2016
10.7#	Standard Industrial Lease dated April 5, 2005 by and between the Registrant and The Realty Associates Fund III, L.P., as amended as of April 22, 2005, January 12, 2010, April 30, 2015 and December 7, 2015
10.8#	Ground Lease by and between 1743 Holdings, LLC and the Registrant dated as of March 2012.
10.9#	Offer Letter by and between the Registrant and KR Sridhar, dated April 1, 2002
10.10#	Offer Letter by and between the Registrant and Randy Furr, dated April 9, 2015
10.11#	Offer Letter by and between the Registrant and Susan Brennan, dated October 3, 2013
10.12*	Second Amended and Restated Limited Liability Company Agreement of Diamond State Generation Holdings, LLC, dated as of March 20, 2013 (PPA II)
10.13*	Guaranty by the Registrant, dated as of March 16, 2012 (PPA II)
10.14*	Master Operation and Maintenance Agreement by and between Diamond State Generation Partners, LLC and the Registrant, dated as of April 13, 2012 (PPA II)
10.15#	Equity Contribution Agreement by and among the Registrant, Diamond State Generation Partners, LLC, and Deutsche Bank Trust Company Americas, dated as of March 20, 2013 (PPA II)

II-2

Exhibit Number	Description
10.16*	Note Purchase Agreement by and between Diamond State Generation Partners, LLC and the Purchasers thereunder, dated as of March 20, 2013 (PPA II)
10.17*	Master Energy Server Purchase Agreement between the Registrant and Diamond State Generation Partners, LLC, dated as of April 13, 2012 (PPA II)
10.18#	Omnibus First Amendment to MESPA, MOMA and ASA by and among the Registrant, Diamond State Generation Partners, LLC and Diamond State Generation Holdings, LLC, dated as of March 20, 2013 (PPA II)
10.19*	Amended and Restated Operating Agreement of 2014 ESA HoldCo, LLC, dated as of September 24, 2014 (PPA IV)
10.20#	Guaranty by the Registrant, dated as of July 18, 2014 (PPA IV)
10.21*	Amended and Restated Purchase, Use and Maintenance Agreement by and between the Registrant and 2014 ESA Project Company, LLC, dated as of July 18, 2014 (PPA IV)
10.22*	Equity Capital Contribution Agreement by and among Clean Technologies 2014, LLC and Exelon Generation Company, LLC, dated as of July 18, 2014 (PPA IV)
10.23	First Amendment to Equity Capital Contribution Agreement, dated as of March 16, 2015 (PPA IV)
10.24*	Amendment No. 2 to Equity Capital Contribution Agreement, dated as of September 30, 2015 (PPA IV)
10.25*	Note Purchase Agreement by and among 2014 ESA Project Company, LLC and the Purchasers thereunder, dated as of July 18, 2014 (PPA IV)
10.26*	Amendment No. 1 to Note Purchase Agreement, dated as of March 16, 2015 (PPA IV)
10.27*	Amendment No. 2 to Note Purchase Agreement, dated as of September 25, 2015 (PPA IV)
10.28*	Amendment No. 3 to Note Purchase Agreement and Consent, dated as of March 14, 2016 (PPA IV)
10.29*	Amended and Restated Operating Agreement of 2015 ESA HoldCo, LLC, dated as of June 25, 2015 (PPA V)
10.30#	Guaranty by the Registrant, dated as of June 25, 2015 (PPA V)
10.31*	Amended and Restated Purchase, Use and Maintenance Agreement by and between the Registrant and 2015 ESA Project Company, LLC, dated as of June 25, 2015 (PPA V)
10.32*	Equity Capital Contribution Agreement by and between Clean Technologies 2015, LLC and 2015 ESA InvestCo, LLC, dated as of June 25, 2015 (PPA V)
10.33	Amendment No. 1 to Equity Capital Contribution Agreement, dated as of November 19, 2015 (PPA V)
10.34*	Credit Agreement by and among 2015 ESA Project Company, LLC, the Lenders referred to therein, Crédit Agricole Corporate Investment Bank, Keybank National Association and Silicon Valley Bank, Manufacturers and Traders Trust Company and Mizuho Bank, Ltd., Crédit Agricole Corporate and Investment Bank, and Wilmington Trust, National Association, dated as of June 25, 2015 (PPA V)
10.35*	Equity Capital Contribution Agreement with respect to Diamond State Generation Holdings, LLC, by and among Clean-Technologies II, LLC, Diamond State Generation Holdings, LLC, Diamond State Generation Partners, LLC, and Mehetia Inc., dated as of March 16, 2012 (PPA II)
10.36*	First Amendment to the Equity Capital Contribution Agreement with respect to Diamond State Generation Holdings, LLC dated as of April 13, 2012 (PPA II)

II-3

Exhibit Number	Description
10.37*	Administrative Services Agreement by and between Registrant, Diamond State Generation Holdings, LLC, and Diamond State Generation Partners, LLC, dated as of April 13, 2012 (PPA II)
10.38*	Depositary Agreement among Diamond State Generation Partners, LLC, Deutsche Bank Trust Company Americas, and Deutsche Bank Trust Company Americas, dated as of March 20, 2013 (PPA II)
10.39*	2012 V PPA Holdco, LLC Second Amended and Restated Operating Agreement, dated as of August 30, 2013 (PPA IIIa)
10.40#	First Amendment to Second Amended and Restated Operating Agreement, dated as of March 28, 2014 (PPA IIIa)
10.41#	Guaranty by the Registrant, dated as of March 28, 2014 (PPA IIIa)
10.42*	Amended and Restated Master Energy Server Purchase Agreement between Registrant and 2012 V PPA Project Company, LLC dated as of December 21, 2012 (PPA IIIa)
10.43#	First Amendment to Amended and Restated Master Energy Server Purchase Agreement, dated as of March 27, 2013 (PPA IIIa)
10.44*	Omnibus Amendment to MESPA, MOMA, ASA, REC PSA and Equity Contribution Tri-Party Agreement, dated as of August 30, 2013 (PPA IIIa)
10.45#	Fourth Amendment to Amended and Restated Master Energy Server Purchase Agreement, dated as of March 28, 2014 (PPA IIIa)
10.46*	Equity Contribution Tri-Party Agreement by and among 2012 V PPA Holdco, LLC, 2012 V PPA Project Company, LLC, and Registrant dated as of December 21, 2012 (PPA IIIa)
10.47*	Amended and Restated Master Operation and Maintenance Agreement, by and between 2012 V PPA Project Company, LLC and Registrant, dated as of December 21, 2012 (PPA IIIa)
10.48*	Amended and Restated Equity Capital Contribution Agreement between Firstar Development, LLC and Clean Technologies III, LLC dated as of August 30, 2013 (PPA IIIa)
10.49*	Administrative Services Agreement by and between Registrant, 2012 V PPA Holdco, LLC and 2012 V PPA Project Company, LLC dated as of December 21, 2012 (PPA IIIa)
10.50*	Amended and Restated Credit Agreement among 2012 ESA Project Company, LLC, PE12GVVC (BLOOM PPA) LTD., PE12PXVC (BLOOM PPA) LTD., the other Lenders from time to time party hereto, PE12GVVC (BLOOM PPA) LTD., and Deutsche Bank Trust Company Americas, dated as of August 30, 2013 (PPA IIIa)
10.51*	Consent and First Amendment to Amended and Restated Credit Agreement dated as of March 28, 2014 (PPA IIIa)
10.52*	Depositary Agreement among 2012 V PPA Project Company, LLC, PE12GVVC (Bloom PPA) LTD., and Deutsche Bank Trust Company Americas dated as of February 21, 2013 (PPA IIIa)
10.53*	2013 ESA Holdco, LLC Amended and Restated Operating Agreement, dated as of August 2, 2013 (PPA IIIb)
10.54#	First Amendment to Amended and Restated Operating Agreement, dated as of March 28, 2014 (PPA IIIb)
10.55*	Amended and Restated Guaranty by the Registrant, dated as of August 2, 2013 (PPA IIIb)
10.56*	Amended and Restated Master Energy Server Purchase and Services Agreement between Registrant and 2013 ESA Project Company, LLC dated as of September 25, 2013 (PPA IIIb)

II-4

Exhibit Number	Description
10.57*	First Amendment to Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of March 28, 2014 (PPA IIIb)
10.58*	Second Amendment to Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of July 18, 2014 (PPA IIIb)
10.59*	Third Amendment to Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of October 24, 2014 (PPA IIIb)
10.60*	Fourth Amendment to Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of May 5, 2015 (PPA IIIb)
10.61*	Equity Capital Contribution Agreement between Firstar Development, LLC and Clean Technologies 2013B, LLC, dated as of August 2, 2013 (PPA IIIb)
10.62*	First Amendment to Equity Capital Contribution Agreement between Firstar Development, LLC and Clean Technologies 2013B, LLC, dated as of September 25, 2013 (PPA IIIb)
10.63*	Second Amendment to Equity Capital Contribution Agreement between Firstar Development, LLC and Clean Technologies 2013B, LLC, dated as of March 28, 2014 (PPA IIIb)
10.64*	Third Amendment to Equity Capital Contribution Agreement between Firstar Development, LLC and Clean Technologies 2013B, LLC, dated as of July 18, 2014 (PPA IIIb)
10.65*	Fourth Amendment to Equity Capital Contribution Agreement between Firstar Development, LLC and Clean Technologies 2013B, LLC, dated as of October 24, 2014 (PPA IIIb)
10.66*	Fifth Amendment to Equity Capital Contribution Agreement between Firstar Development, LLC and Clean Technologies 2013B, LLC, dated as of May 5, 2015 (PPA IIIb)
10.67*	Amended and Restated Administrative Services Agreement by and between Registrant, 2013B ESA Holdco, LLC, and 2013B ESA Project Company, LLC, dated as of September 25, 2013 (PPA IIIb)
10.68#	First Amendment to Amended and Restated Administrative Services Agreement, dated as of March 28, 2014 (PPA IIIb)
10.69*	Amended and Restated Credit Agreement by and between 2013B ESA Project Company, LLC and Silicon Valley Bank dated as of September 25, 2013 (PPA IIIb)
10.70	First Amendment to Amended and Restated Credit Agreement by and between 2013B ESA Project Company, LLC and Silicon Valley Bank, dated as of November 14, 2013 (PPA IIIb)
10.71*	Second Amendment to Amended and Restated Credit Agreement by and between 2013B ESA Project Company, LLC and Silicon Valley Bank, dated as of July 18, 2014 (PPA IIIb)
10.72*	Third Amendment to Amended and Restated Credit Agreement by and between 2013B ESA Project Company, LLC and Silicon Valley Bank, dated as of October 24, 2014 (PPA IIIb)
10.73*	Fourth Amendment to Amended and Restated Credit Agreement by and between 2013B ESA Project Company, LLC and Silicon Valley Bank, dated as of May 5, 2015 (PPA IIIb)
10.74	Fifth Amendment to Amended and Restated Credit Agreement by and between 2013B ESA Project Company, LLC and Silicon Valley Bank, dated as of June 22, 2015 (PPA IIIb)
10.75*	Administrative Services Agreement by and between Registrant, 2014 ESA HoldCo, LLC, and 2014 ESA Project Company, LLC, dated as of July 18, 2014 (PPA IV)
10.76*	Depositary Agreement among 2014 ESA Project Company, LLC, Deutsche Bank Trust Company Americas, and Deutsche Bank Trust Company Americas, dated as of July 18, 2014 (PPA IV)

II-5

Exhibit Number	Description
10.77*	Administrative Services Agreement by and between Registrant and 2015 ESA HoldCo, LLC, dated as of June 25, 2015 (PPA V)
10.78*	Depositary Agreement among 2015 ESA Project Company, Crédit Agricole Corporate and Investment Bank, Wilmington Trust, National Association, and Wilmington Trust, National Association, dated as of June 25, 2015 (PPA V)
10.79*#	Administrative Services Agreement by and between Registrant and 2015 ESA Project Company, LLC, dated as of June 25, 2015 (PPA V)
10.80#	Amendment No. 1 to Administrative Services Agreement by and between Registrant and 2015 ESA Project Company, LLC, dated as of August 22, 2016 (PPA V)
10.81*	Amendment No. 1 to Amended and Restated Purchase, Use and Maintenance Agreement by and between Registrant and 2015 ESA Project Company, LLC, dated as of August 10, 2016 (PPA V)
10.82*	Accounts Agreement by and among Registrant, 2013B ESA Project Company, LLC, Silicon Valley Bank and the Bank of New York Mellon, dated as of July 19, 2013 (PPA IIIb)
10.83*#	First Amendment to Accounts Agreement by and among Registrant, 2013B ESA Project Company, LLC, Silicon Valley Bank and the Bank of New York Mellon, dated as of December 30, 2013 (PPA IIIb)
10.84*	Second Amendment to Accounts Agreement by and among Registrant, 2013B ESA Project Company, LLC, Silicon Valley Bank and the Bank of New York Mellon, dated as of October 24, 2014 (PPA IIIb)
10.85*	First Amended and Restated Purchase, Use and Maintenance Agreement by and among Registrant and 2016 ESA Project Company, dated as of June 26, 2017 (Southern)
10.86*	Amendment No. 1 to Amended and Restated Purchase, Use and Maintenance Agreement by and between Registrant and 2016 ESA Project Company, LLC, dated as of September 11, 2017 (Southern)
10.87	Amendment No. 1 to Depository Agreement by and among Diamond State Generation Partners, LLC, Deutsche Bank Trust Company Americas and Deutsche Bank Trust Company Americas, dated as of March 21, 2017 (PPA II)
10.88	Amendment No. 1 to Credit Agreement by and between 2015 ESA Project Company, LLC and Crédit Agricole Corporate and Investment Bank, dated as of October 14, 2016 (PPA V)
10.89*	Amendment No. 2 to Credit Agreement by and among 2015 ESA Project Company, LLC, Crédit Agricole Corporate and Investment Bank and Lenders to the Credit Agreement, dated as of April 10, 2017 (PPA V)
10.90*	Amendment No. 1 to Amended and Restated Purchase, Use and Maintenance Agreement by and between Registrant and 2014 ESA Project Company, LLC, dated as of March 14, 2016 (PPA IV)
10.91*	Amendment No. 2 to Amended and Restated Purchase, Use and Maintenance Agreement by and between Registrant and 2015 ESA Project Company, LLC, dated as of December 16, 2016 (PPA V)
10.92*	First Amendment to Second Amended and Restated Limited Liability Company Agreement of Diamond State Generation Holdings, LLC, dated as of September 25, 2013 (PPA II)
10.93	Consent, Authorization, Waiver and First Amendment to Note Purchase Agreement by and between Diamond State Generation Partners, LLC and the holders, dated as of June 24, 2013 (PPA II)

II-6

Exhibit Number	Description
10.94	Second Amendment to Note Purchase Agreement by and among Diamond State Generation Partners, LLC and the Holders thereto, dated March 13, 2018 (PPA II)
21.1†	List of Subsidiaries
23.1†	Consent of Independent Registered Public Accounting Firm
23.2†	Consent of Fenwick & West LLP (See Exhibit 5.1)
24.1#	Power of Attorney (see page II-7 to this registration statement)
99.1#	Grant Agreement by and between the Delaware Economic Development Authority and the Registrant, dated March 1, 2012

† To be filed by amendment.

* Confidential treatment requested with respect to portions of this exhibit.

# Previously filed.

(b) Financial Statements Schedules. All schedules are omitted because they are not applicable or the required information is shown in the Registrant’s financial statements or notes thereto.

II-7

Signatures

Pursuant to the requirements of the Securities Act of 1933, the registrant has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Sunnyvale, State of California, on the     day of                     , 2018.

BLOOM ENERGY CORPORATION
By:
	KR Sridhar
	Founder, President, Chief Executive Officer and Director

Power of Attorney

KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints             and                 , and each of them, as his true and lawful attorneys-in-fact and agents, with full power of each to act alone, with full powers of substitution and resubstitution, for him and in his name, place or stead, in any and all capacities, to sign the registration statement filed herewith and any and all amendments to said registration statement (including post-effective amendments and any registration statement for the same offering covered by said registration statement that is to be effective upon filing pursuant to Rule 462 promulgated under the Securities Act of 1933, as amended, and all post-effective amendments thereto), and file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorneys-in-fact and agents, with full power of each to act alone, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection therewith and about the premises, as fully to all intents and purposes as he or she might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or his or her or their substitute or substitutes, may lawfully do or cause to be done hereby by virtue hereof.

Pursuant to the requirements of the Securities Act of 1933, this amendment to the Registration Statement has been signed by the following persons in the capacities and on the dates indicated:

Signature	Title	Date
KR Sridhar	Founder, President, Chief Executive Officer and Director (Principal Executive Officer)
Randy Furr	Chief Financial Officer (Principal Financial and Accounting Officer)
Kelly Ayotte	Director
Mary K. Bush	Director
John Doerr	Director
Colin L. Powell	Director

Signature	Title	Date
Scott Sandell	Director
Peter Teti	Director
Eddy Zervigon	Director

EX-10

Exhibit 10.12

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

SECOND AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT

OF

DIAMOND STATE GENERATION HOLDINGS, LLC

dated as of March 20, 2013

TABLE OF CONTENTS

		Page
ARTICLE I        DEFINITIONS			2
Section 1.1	Definitions		2
ARTICLE II        CONTINUATION; OFFICES; TERM			2
Section 2.1	Continuation of the Company		2
Section 2.2	Name, Office and Registered Agent		2
Section 2.3	Purpose		3
Section 2.4	Term		3
Section 2.5	Organizational and Fictitious Name Filings; Preservation of Limited Liability		3
Section 2.6	No Partnership Intended		3
ARTICLE III        RIGHTS AND OBLIGATIONS OF THE MEMBERS			3
Section 3.1	Membership Interests		3
Section 3.2	Actions by the Members		4
Section 3.3	Management Rights		5
Section 3.4	Other Activities		6
Section 3.5	No Right to Withdraw		6
Section 3.6	Limitation of Liability of Members		6
Section 3.7	Liability for Deficits		8
Section 3.8	Company Property		8
Section 3.9	Retirement, Resignation, Expulsion, Incompetency, Bankruptcy or Dissolution of a Member		8
Section 3.10	Withdrawal of Capital		8
Section 3.11	Representations and Warranties		8
Section 3.12	Covenants		10
Section 3.13	Deferred Obligations		11
Section 3.14	Events of Default		11
Section 3.15	Matters Pertaining to the Grant		11
Section 3.16	Separateness		13
ARTICLE IV    CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS			14
Section 4.1	Capital Contributions		14

i

Section 4.2	Capital Accounts	15
Section 4.3	Equity Contributions to Project Company	17
Section 4.4	Conditions Precedent to Equity Contributions by Company	17
Section 4.5	Member Loans	20
ARTICLE V    ALLOCATIONS		21
Section 5.1	Allocations	21
Section 5.2	Adjustments	21
Section 5.3	Tax Allocations	23
Section 5.4	Transfer or Change in Company Interest	23
Section 5.5	Timing of Allocations	24
ARTICLE VI    DISTRIBUTIONS		24
Section 6.1	Distributions	24
Section 6.2	Withholding Taxes	25
Section 6.3	Limitation upon Distributions	25
Section 6.4	No Return of Distributions	25
Section 6.5	Calculation of Internal Rate of Return	25
Section 6.6	Satisfaction of Recapture-Related Obligations of the Class A Members to the Class B Member	26
Section 6.7	Satisfaction of Certain Recapture-Related Obligations of the Class B Member to the Class A Members	27
Section 6.8	Satisfaction of Certain Recapture-Related Obligations of the Company or the Project Company	27
Section 6.9	Class A Recapture Events Prior to Receipt of Grant	28
Section 6.10	Repayment	28
ARTICLE VII    ACCOUNTING AND RECORDS		29
Section 7.1	Reports	29
Section 7.2	Books and Records and Inspection	30
Section 7.3	Bank Accounts, Notes and Drafts	31
Section 7.4	Financial Statements	32
Section 7.5	Partnership Status and Tax Elections	33
Section 7.6	Company Tax Returns	34
Section 7.7	Tax Audits	35
Section 7.8	Cooperation	37

ii

Section 7.9	Fiscal Year	37
ARTICLE VIII     MANAGEMENT		37
Section 8.1	Management	37
Section 8.2	Managing Member	37
Section 8.3	Major Decisions	39
Section 8.4	Insurance	39
Section 8.5	Notice of Material Breach	39
ARTICLE IX     TRANSFERS, CHANGES OF CONTROL AND INDEMNIFICATION		40
Section 9.1	Prohibited Transfers	40
Section 9.2	Conditions to Transfers of Class A Membership Interests or Changes of Control of Managing Member	40
Section 9.3	Conditions to Transfers of Class B Membership Interests	42
Section 9.4	Conditions to Changes of Control of Upstream Entities	43
Section 9.5	Certain Permitted Transfers	44
Section 9.6	[Intentionally omitted]	45
Section 9.7	Purchase Option	45
Section 9.8	Sale Option	46
Section 9.9	Regulatory and Other Authorizations and Consents	47
Section 9.10	Admission	48
Section 9.11	Security Interest Consent	48
Section 9.12	Indemnification; Other Rights of the Members	49
Section 9.13	Indemnification of Members by the Company	50
Section 9.14	Direct Claims	50
Section 9.15	Third Party Claims	50
Section 9.16	No Duplication	52
Section 9.17	Sole Remedy	52
Section 9.18	Survival	52
Section 9.19	Final Date for Assertion of Indemnity Claims	52
Section 9.20	Reasonable Steps to Mitigate	52
Section 9.21	Net of Insurance Benefits	53
Section 9.22	No Consequential Damages	53
Section 9.23	Payment of Indemnification Claims	53
Section 9.24	Repayment; Subrogation	53

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ARTICLE X     DISSOLUTION AND WINDING-UP		54
Section 10.1	Events of Dissolution	54
Section 10.2	Distribution of Assets	54
Section 10.3	In-Kind Distributions	55
Section 10.4	Certificate of Cancellation	55
ARTICLE XI     MISCELLANEOUS		56
Section 11.1	Notices	56
Section 11.2	Amendment	56
Section 11.3	Partition	56
Section 11.4	Waivers and Modifications	56
Section 11.5	Severability	57
Section 11.6	Successors; No Third-Party Beneficiaries	57
Section 11 .7	Entire Agreement	57
Section 11.8	Governing Law	57
Section 11.9	Further Assurances	58
Section 11.10	Counterparts	58
Section 11.11	Dispute Resolution	58
Section 11.12	Confidentiality	59
Section 11.13	Joint Efforts	60
Section 11.14	Specific Performance	61
Section 11.15	Survival	61
Section 11.16	Effective Date	61
Section 11.17	Recourse Only to Member	61

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ANNEXES
Annex I	Definitions
Annex II	Class B Membership Interests
SCHEDULES
Schedule 4.2(b)	Contributed Property
Schedule 4.2(d)	Capital Account Balance and Percentage Interest of each Member
Schedule 8.2(e)	Officers
Schedule 8.4	Insurance
Schedule 9	Transfer Representations and Warranties
EXHIBITS
Exhibit A	Form of Class A Membership Interests Certificate
Exhibit B	Form of Class B Membership Interests Certificate
Exhibit C	Form of Operations Report
Exhibit D	Form of Assignment Agreement
Exhibit E	Form of Equity Contribution Notice
Exhibit F	Base Case Model

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SECOND AMENDED AND RESTATED

LIMITED LIABILITY COMPANY AGREEMENT

OF

DIAMOND STATE GENERATION HOLDINGS, LLC

Second Amended and Restated Limited Liability Company Agreement of Diamond State Generation Holdings, LLC, a Delaware limited liability company (the “Company”), dated as of March 20, 2013 by and among Clean Technologies II, LLC, a Delaware limited liability company (“Clean Technologies”) and Mehetia Inc., a Delaware corporation (“Mehetia”).

Preliminary Statements

WHEREAS, the Company was formed by virtue of its certificate of formation filed with the Secretary of State of the State of Delaware on July 20, 2011 (the “Certificate of Formation”), and, prior to the date hereof, has been governed by the Amended and Restated Limited Liability Company Agreement of the Company, dated as of April 13, 2012, executed by Clean Technologies and Mehetia as the members of the Company (the “2012 Operating Agreement”);

WHEREAS, the Company owns 100% of the issued and outstanding membership interests in Diamond State Generation Partners, LLC (the “Project Company”), which intends to acquire and own a portfolio of Systems having an aggregate nameplate capacity of up to 30 MW to be operated in accordance with the Tariffs and the REPS Act (collectively, the “Portfolio” or the “Project”);

WHEREAS, pursuant to the Equity Capital Contribution Agreement among the Company, the Project Company, Clean Technologies and Mehetia, dated as of March 16, 2012 (as amended, amended and restated, supplemented or modified, the “ECCA”), Clean Technologies agreed to make a capital contribution to the Company on or before the Initial Funding Date, and Mehetia agreed to make a capital contribution to the Company in return for the issuance of Class B Membership Interests in the Company on the Initial Funding Date, subject to the terms and conditions as provided therein; and

WHEREAS, Clean Technologies and Mehetia desire for the 2012 Operating Agreement to be amended and restated as stated herein.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree, notwithstanding any contrary provision of the 2012 Operating Agreement, effective as of the date hereof, that:

A.    the issuance of Class B Membership Interests to Mehetia pursuant to the ECCA is approved and is a Permitted Transfer for purposes of this Agreement;

B.    Mehetia continues as a Member of the Company, holding the Class B Membership Interests in the amount (and percentage) next to its name in Annex II;

C.    Clean Technologies continues as a Member of the Company, holding all of the issued and outstanding Class A Membership Interests;

D.    Clean Technologies and Mehetia are the sole Members of the Company; and

E.    the 2012 Operating Agreement is amended and restated in its entirety as described herein.

ARTICLE I

DEFINITIONS

Section 1.1 Definitions. Capitalized terms used but not otherwise defined in this Agreement have the meanings given to such terms in Annex I.

ARTICLE II

CONTINUATION; OFFICES; TERM

Section 2.1 Continuation of the Company. The Members hereby acknowledge the continuation of the Company as a limited liability company pursuant to the Act, the Certificate of Formation and this Agreement.

Section 2.2 Name, Office and Registered Agent.

(a)    The name of the Company will be “Diamond State Generation Holdings, LLC” or such other name or names as complies with law and may be determined by the Managing Member from time to time and notified to the Members. The principal office of the Company shall be located at 1299 Orleans Drive, Sunnyvale, California 94089. The Managing Member may change the location of the principal office of the Company to another location, provided that the Managing Member gives prompt written notice of any such change to the registered agent of the Company and all Members.

(b)    The registered office of the Company in the State of Delaware is located at c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The registered agent of the Company for service of process at such address is Corporation Service Company. The registered office and registered agent may be changed by the Managing Member at any time in accordance with the Act, provided that the Managing Member gives prompt written notice of any such change to all Members. The registered agent’s primary duty as such is to forward to the Company at its principal office and place of business any notice that is served on it as registered agent.

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Section 2.3 Purpose. The nature of the business or purpose to be conducted or promoted by the Company is: (i) to acquire, own, hold or dispose of the membership interests in the Project Company; (ii) to engage in the transactions contemplated by the Transaction Documents; (iii) to engage, through the Project Company, in the acquisition and operation of the Systems in accordance with the Transaction Documents; (iv) to engage, through the Project Company, in the business of generating and delivering to the PJM Grid, electricity, capacity, ancillary services and environmental attributes from the Systems in accordance with the Transaction Documents; and (v) to engage in any lawful act or activity, enter into any agreement and to exercise any powers permitted to limited liability companies organized under the Act in each case that are incidental to or necessary, suitable or convenient for the accomplishment of the purposes specified above.

Section 2.4 Term. The term of the Company commenced on July 20, 2011 and shall continue until the Company is dissolved in accordance with the terms hereof or as otherwise provided by law (the “LLC Agreement Termination Date”).

Section 2.5 Organizational and Fictitious Name Filings; Preservation of Limited Liability. The Managing Member shall cause the Company to register as a foreign limited liability company and file such fictitious or trade names, statements or certificates in such jurisdictions and offices as are necessary or appropriate for the conduct of the Company’s operation of its business. The Managing Member may take any and all other actions as may be reasonably necessary or appropriate to perfect and maintain the status of the Company as a limited liability company or similar type of entity under the laws of Delaware and any other state or jurisdiction other than Delaware in which the Company engages in business and continue the Company as a limited liability company and to protect the limited liability of the Members as contemplated by the Act.

Section 2.6 No Partnership Intended. The Members intend that the Company not be a partnership, limited partnership, joint venture or other arrangement other than for tax purposes under the Code, the applicable Treasury Regulations and any state, municipal or other income tax law or regulation, and this Agreement shall not be construed to suggest otherwise.

ARTICLE III

RIGHTS AND OBLIGATIONS OF THE MEMBERS

Section 3.1 Membership Interests.

(a)    The Membership Interests comprise 9,505 Class A Membership Interests, all of which are issued and held by Clean Technologies, and 495 Class B Membership Interests, all of which are issued and held by Mehetia.

(b)    The Class A Membership Interests and the Class B Membership Interests shall (i) have the rights and obligations ascribed to such Membership Interests in this Agreement and the Act; (ii) be evidenced solely by certificates in the forms annexed hereto as Exhibit A and Exhibit B, respectively, or such other form as may be prescribed from time to time by any Legal Requirements; provided, that certificates evidencing the Class A Membership Interests and the Class B Membership Interests which were issued in the forms annexed to the 2012 Operating

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Agreement prior to the date hereof shall continue to be valid; (iii) be recorded in a register of Membership Interests, which register the Managing Member shall cause the Administrator to maintain; (iv) be transferable only on recordation of such Transfer in the register of Membership Interest, which recordation the Managing Member shall cause the Administrator to make, upon compliance with the provisions of Article IX hereof and upon presentation of the certificates duly endorsed for Transfer, or accompanied by assignment documentation in accordance with Article IX; (v) be “securities” governed by Article 8 of the UCC in any jurisdiction (x) that has adopted revisions to Article 8 of the UCC substantially consistent with the 1994 revisions to Article 8 adopted by the American Law Institute and the National Conference of Commissioners on Uniform State Laws and (y) whose laws may be applicable, from time to time, to the issues of perfection, the effect of perfection or non-perfection, and the priority of a security interest in Membership Interests in the Company; and (vi) be personal property.

(c)    The Company shall be entitled to treat the registered holder of a Membership Interest, as shown in the register of Membership Interests referred to in Section 3.1(b), as the Member for all purposes of this Agreement, except that the Administrator may record in the register of Membership Interest any security interest of a secured party pursuant to any security interest permitted by this Agreement.

(d)    If a Member transfers all of its Membership Interest to another Person pursuant to and in accordance with the terms in Article IX, the transferor shall automatically cease to be a Member.

Section 3.2 Actions by the Members.

(a)    Except as otherwise permitted by this Agreement (including Section 3.2(e) below), all actions of the Members shall be taken at meetings of the Members which may be called by any Member for any reason and shall be called by the Managing Member within 10 days following the written request of a Member. The Members may conduct any Company business at any such meeting that is permitted under the Act or this Agreement. Meetings shall be at a reasonable time and place. Accurate minutes of any meeting shall be taken and filed with the minute books of the Company. Following each meeting, the minutes of the meeting shall be sent promptly to each Member.

(b)    Members may participate in any meeting of the Members by means of conference telephone or other communications equipment so that all persons participating in the meeting can hear each other or by any other means permitted by law. Such participation shall constitute presence in person at such meeting.

(c)    The presence in person or by proxy of Members owning more than 50% of the aggregate Class A Membership Interests and more than 50% of the aggregate Class B Membership Interests shall constitute a quorum for purposes of transacting business at any meeting of the Members; provided that, in the event that a quorum is not present or otherwise represented at a meeting of the Members duly called in accordance with this Section 3.2, the Members present at such meeting shall have the power to adjourn such meeting and to call

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another meeting no fewer than 10 days nor more than 15 days from such meeting (and notice thereof shall be promptly provided to all Members by the Managing Member) and the Members present at such second meeting shall constitute a quorum. For the avoidance of doubt, no Major Decision shall be agreed at any meeting, or otherwise taken, without a Class Majority Vote.

(d)    Written notice stating the place, day and hour of the meeting of the Members, and the purpose or purposes for which the meeting is called, shall be delivered by or at the direction of the Managing Member or of the Member calling such meeting, to each Member of record entitled to vote at such meeting not less than five Business Days nor more than 30 days prior to the meeting. Notwithstanding the foregoing, meetings of the Members may be held without notice so long as all the Members are present in person or by proxy.

(e)    Any action may be taken by the Members without a meeting if such action is authorized or approved by the written consent of Members representing sufficient Membership Interests to authorize or approve such action pursuant to this Agreement. The Members may conduct any Company business or take any action required of Members under this Agreement through written consent. Where action is authorized by written consent no prior notice is required and no meeting of Members needs to be called or noticed. A copy of any action taken by written consent must be sent promptly to all Members and all actions by written consent shall be filed with the minute books of the Company.

(f)    Each Class A Membership Interest and each Class B Membership Interest shall be entitled to one vote for purposes of any vote, consent or approval of Members required under this Company LLC Agreement or the Act. With respect to those matters required or permitted to be voted upon by the Members, or for which a consent or approval of Members is required or permitted, the affirmative vote, consent or approval of Members owning more than 50% of the outstanding Membership Interests (the “Majority Vote”) shall be required to authorize or approve any such matter; provided that for Major Decisions (such term being used as defined prior to, or following, the Flip Date, as the case may be) the affirmative vote, consent or approval of more than 50% of the outstanding Class A Membership Interests and of more than 50% of the outstanding Class B Membership Interests shall be required to authorize or approve such Major Decision in addition to any other approval required by this Agreement or the Act (a “Class Majority Vote”). Except as otherwise expressly provided in this Agreement, no separate vote, consent or approval of either Class A Members acting as a class, or Class B Members acting as a class, shall be required to authorize or approve any matter for which a vote, consent or approval of Members is required under this Agreement.

Section 3.3 Management Rights. No Member other than the Managing Member shall have any right, power or authority to take part in the management or control of the business of, or transact any business for, the Company, to sign for or on behalf of the Company or to bind the Company in any manner whatsoever. Except as otherwise provided herein, the Managing Member shall not hold out or represent to any third party that any other Member has any such power or right or that any Member is anything other than a member in the Company. A Member, other than a Member who is the Managing Member, shall not be deemed to be

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participating in the control of the business of the Company by virtue of its possessing or exercising any rights set forth in this Agreement or the Act or any other agreement relating to the Company.

Section 3.4 Other Activities. Notwithstanding any duty otherwise existing at law or in equity, any Member or the Administrator may engage in or possess an interest in other business ventures of every nature and description, independently or with others, even if such activities compete directly with the business of the Company, and neither the Company nor any of the Members shall have any rights by virtue of this Agreement in and to such independent ventures or any income, profits or property derived from them.

Section 3.5 No Right to Withdraw. Except in the case of Transfers in accordance with Article IX, no Member shall have any right to resign voluntarily or otherwise withdraw from the Company without the prior written consent of each of the remaining Members of the Company in their sole and absolute discretion.

Section 3.6 Limitation of Liability of Members.

(a)    Each Member and its officers, directors, shareholders, Affiliates, employees and agents (each a “Member Party”) shall (i) have liability limited as described in the Act and other applicable Legal Requirements and (ii) be exculpated from liability for and defended, indemnified and held harmless by the Company from any and all judgments, awards, causes of action, lawsuits, suits, proceedings, governmental investigations or audits, losses (including amounts paid in settlement of claims), assessments, fines, penalties, administrative orders or injunctions (including any loss of profits, consequential, punitive, incidental or special damages recovered by any Person other than a Member or an Affiliate of a Member), including interest, penalties, reasonable attorney’s fees, disbursements and costs of investigations, deficiencies, levies, duties and imposts (“Claims”) arising out of the performance by such Member Party of its obligations under this Agreement so long as (A) the Member Party acted in good faith and in a manner reasonably believed by it to be in the best interest of or not opposed to the interest of the Company or the Project Company, as applicable, and (B) the Member Party’s actions did not constitute willful misconduct, fraud or gross negligence or willful breach of any of its covenants under the Transaction Documents. Except as otherwise required by the Act, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be the debts, obligations and liabilities solely of the Company, and the Members of the Company shall not be obligated personally for any of such debts, obligations or liabilities solely by reason of being a Member of the Company.

(b)    Each of the Members shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any other Person who is a Member, the Administrator or any officer or employee of the Company, or by any other individual as to matters that such Member reasonably believes are within such other Person’s professional or expert competence, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, profits or losses of the Company or any other facts pertinent to the existence and amount of assets from which distributions to the Members might properly be paid.

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(c)    To the extent that, at law or in equity, a Member, in its capacity as a member or manager of the Company or otherwise, has duties (including fiduciary duties) and liabilities relating thereto to the Company or to any Member or other Person bound by this Agreement, such Member, acting under this Agreement shall not be liable to the Company or to any Member or other Person bound by this Agreement for its good faith reliance on the provisions of this Agreement; provided that this Section 3.6(c) shall not be construed to limit obligations or liabilities therefor, in each case as expressly stated in this Agreement or any other Transaction Document. The provisions of this Agreement, to the extent that they restrict the duties and liabilities of a Member, in its capacity as a member or manager of the Company, otherwise existing at law or in equity, are agreed by the Members to replace such other duties and liabilities of such Member.

(d)    Clean Technologies, in its capacity as Managing Member, shall not have any liability for breach of contract (except as provided in (i) and (ii) below) or breach of duties (including fiduciary duties) of a member or manager to the Company or to any Member or other Person that is a party to or is otherwise bound by this Agreement, in each case, to the fullest extent permitted by the Act; provided that (i) this Agreement shall not limit or eliminate liability for any (x) obligations expressly imposed on Clean Technologies, as Managing Member, pursuant to this Agreement or any other Transaction Document, (y) act or omission that constitutes a bad faith violation of the implied contractual covenant of good faith and fair dealing or (z) act or omission arising from the gross negligence, willful misconduct or fraud of Clean Technologies and (ii) this Section 3.6(d) shall not limit or eliminate liabilities expressly stated in this Agreement or any other Transaction Document.

(e)    Except as otherwise provided in Section 6.1 of the ECCA or Section 9.12 hereof with respect to liability resulting from fraud or willful misconduct, or with respect to its failure to pay any amount due to Investor Indemnified Parties under the Transaction Documents, Clean Technologies, in its capacity as Managing Member, shall have no liability of any kind to the Members under this Agreement for monetary damages in an amount that would exceed its aggregate obligation to indemnify the Investor Indemnified Parties pursuant to Section 9.12.

(f)     Clean Technologies, in its capacity as a Member or Managing Member, shall not have any liability to the Company, any Class B Member or any other Person bound by this Agreement for damages resulting from a breach or breaches by (i) the Administrator resulting from or arising out of the Administrator’s performance of its obligations under the Administrative Services Agreement, (ii) the Operator of any of its obligations, covenants or agreements under the MOMA, except to the extent that Clean Technologies is the Managing Member and it is finally determined by a court of competent jurisdiction (not subject to appeal, or not appealed) that Clean Technologies, as Managing Member, has failed to perform its supervisory obligations hereunder with respect to the Administrative Services Agreement or MOMA in a manner consistent with the definition of “Prudent Operator Standard”.

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Section 3.7 Liability for Deficits. None of the Members shall be liable to the Company for any deficit in its Capital Account, nor shall such deficits be deemed assets of the Company, except to the extent otherwise provided by law with respect to third-party creditors of the Company.

Section 3.8 Company Property. All property owned by the Company, whether real or personal, tangible or intangible and wherever located, shall be deemed to be owned by the Company, and no Member, individually, shall have any ownership of such property.

Section 3.9 Retirement, Resignation, Expulsion, Incompetency, Bankruptcy or Dissolution of a Member. The retirement, resignation, expulsion, Bankruptcy or dissolution of a Member shall not, in and of itself, dissolve the Company. The successors in interest to the bankrupt Member shall, for the purpose of settling the estate, have all of the rights of such Member, including the same rights and subject to the same limitations that such Member would have had under the provisions of this Agreement to Transfer its Membership Interest. A successor in interest to a Member shall not become a substituted Member except as provided in this Agreement.

Section 3.10 Withdrawal of Capital. No Member shall have the right to withdraw capital from the Company or to receive or demand distributions (except distributions described in Article VI) or return of its Capital Contributions until the Company is dissolved in accordance with this Agreement and applicable provisions of the Act; provided, however, that in the event that a Capital Contribution has been made by a Class B Member, such Class B Member shall be entitled to a return of its Capital Contribution if such Capital Contribution has not been drawn upon in full by the Project Company in accordance with Sections 4.3 and 4.4 hereof within six months following the date of such Capital Contribution, unless otherwise agreed to in writing by such Class B Member. No Member shall be entitled to demand or receive any interest on its Capital Contributions.

Section 3.11 Representations and Warranties.

(a)    Each Member hereby represents and warrants to the Company and each other Member that the following statements are true and correct as of the date it becomes a Member (both immediately before and after it becomes a Member):

(i)    That the Member is duly incorporated, organized or formed (as applicable), validly existing, and (if applicable) in good standing under the law of the jurisdiction of its incorporation, organization of formation; if required by applicable law, that Member is duly qualified and in good standing in the jurisdiction of its principal place of business, if different from its jurisdiction of incorporation, organization or formation; and that the Member has full power and authority to execute and deliver this Agreement and to perform its obligations hereunder, and all necessary actions by the board of directors, shareholders, managers, members, partners, trustees, beneficiaries, or other applicable Persons necessary for the due authorization, execution, delivery, and performance of this Agreement by that Member have been duly taken.

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(ii)    That the Member has duly executed and delivered this Agreement and the other documents contemplated herein, and they constitute the legal, valid and binding obligation of that the Member enforceable against it in accordance with their terms (except as may be limited by Bankruptcy, insolvency or similar Applicable Laws of general application and by the effect of general principles of equity, regardless of whether considered at law or in equity).

(iii)    That the Member’s authorization, execution, delivery, and performance of this Agreement does not and will not (A) conflict with, or result in a breach, default or violation of, (I) the organizational documents of such Member, (II) any contract or agreement to which the Member is a party or is otherwise subject, or (III) any law, rule, regulation, order, judgment, decree, writ, injunction or arbitral award to which the Member is subject; or (B) require any consent, approval or authorization from, filing or registration with, or notice to, any Governmental Authority or other Person, except (w) for such consents, approvals, authorizations, registrations or notices that have already been received, delivered or filed, (x) for notices required to be delivered that (1) are regulatory or reporting in nature, (2) are not required to be delivered or filed until after the Initial Funding Date and (3) would not reasonably be expected to have a material adverse effect on the ability of such Member to perform its obligations under this Agreement, (y) that Credit Suisse AG, Cayman Islands Branch, of which Mehetia is a wholly owned indirect subsidiary as of the Initial Funding Date, may be required to file a report pursuant to 12 CFR 225.175(c)(2) with the Board of Governors of the Federal Reserve System, and (z) for such notices as any Member or its affiliates may be required to file with FERC pursuant to Section 205 of the Federal Power Act and notice filings required after acquiring an interest in the Company.

(iv)    That the Member is a “United States person,” as defined in Section 7701(a)(30) of the Code.

(b)    Each Member represents and warrants to the Company and each other Member that (i) the Member is an “Accredited Investor” as such term is defined in Regulation D under the Securities Act of 1933, (ii) the Member has had a reasonable opportunity to ask questions of and receive answers from the Company concerning, the Membership Interests and the Company and all such questions have been answered to the full satisfaction of that Member, (iii) the Member understands that the Membership Interests have not been registered under the Securities Act in reliance on an exemption therefrom, and that the Company is under no obligation to register the Membership Interests, (iv) the Member will not transfer the Membership Interests in violation of the Securities Act or any other applicable securities laws and (v) the Member is purchasing the Membership Interests for its own account and not for the account of any other Person and not with a view to distribution or resale to others.

(c)    Each Member represents and warrants to the Company and each other Member that the Member is not a Disqualified Person.

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(d)    Each Member represents and warrants to the Company and each other Member that the Member is not a tax-exempt entity within the meaning of Section 168(h) of the Code.

(e)    Each Member represents and warrants to the Company and each other Member that it has not taken any action that would cause the assets of the Company or the Project Company to become subject to the alternative depreciation system within the meaning of Section 168(g) of the Code.

Section 3.12 Covenants.

(a)    Each Member covenants to the Company and each other Member that it will be a “United States person,” as defined in Section 7701(a)(30) of the Code.

(b)    The Managing Member covenants to the Company and each other Member that (i) all electricity produced by the Systems will be through the use of qualified fuel cell property and (ii) no part of the assets of the Company or the Project Company is or will be used predominantly outside of the United States.

(c)    The Managing Member covenants to cause the Company to cause the Project Company to elect a Grant (to the extent such election is available) with respect to the Systems. If the Grant is not available with respect to certain Systems as determined in Section 7.5(b)(i), the Managing Member covenants to cause the Company to cause the Project Company to elect or claim under an Alternative Tax Program as described in Section 7.5(b)(i).

(d)    The Managing Member covenants to use commercially reasonable efforts, in Consultation with Class B Member, to structure the contracts and business affairs of the Project Company in a way that is intended to maximize the number of Systems that qualify for the Grant or, if any Alternative Tax Program is elected pursuant to Section 7.5(b)(i), any Alternative Tax Program.

(e)    Each Member covenants to the Company and each other Member that it will not take any action that would cause the assets of the Company or the Project Company to become subject to the alternative depreciation system within the meaning of Section 168(g) of the Code.

(f)    Each Member covenants to the Company and each other Member that the Member will not become a Disqualified Person. Each Member further covenants that it will take no action or change its legal status in a manner that would give rise to a Class A Recapture Event or a Class B Recapture Event, as applicable.

(g)    The Managing Member shall be required to perform its duties and obligations hereunder in good faith and in a manner reasonably believed to be in the best interest of the Company.

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(h)    The Managing Member covenants that it will not cause the Company or Project Company to claim an ITC with respect to Systems for which an application for a Grant has been submitted or for which a Grant has been received.

(i)    The Managing Member will elect an Alternative Tax Program with respect to any System only in accordance with Section 7.5(b)(i).

(j)    The Managing Member covenants that, if there is any Project Company Distributable Cash, it will cause the Company, as manager of the Project Company, to, not less than on a quarterly basis, cause the Project Company to distribute such Project Company Distributable Cash to the Company.

(k)    The Managing Member covenants that, subject to the provisions of Sections 3.6(c), and (e), it shall cause the Company and cause the Company to cause the Project Company to comply with the terms and conditions of the REPS Act and the Tariffs.

(l)    The Managing Member covenants that all of the Systems will be Placed In Service prior to January 1, 2017 and that each System will be owned by the Project Company prior to each such System being Placed In Service.

(m)    The Class B Member covenants that it will not claim an ITC with respect to Systems for which an application for a Grant has been submitted or for which a Grant has been received.

Section 3.13 Deferred Obligations. The obligations of Mehetia and Clean Technologies to pay their respective Funding Payments or CT Funding Amounts, respectively, are unconditional, except as provided herein and in the ECCA, and subject to full recourse.

Section 3.14 Events of Default. An event of default shall occur upon the occurrence of any of the following by a Member: (i) failure of a Class B Member to make any Funding Payment or failure of a Class A Member to make any payment of a CT Funding Amount, in each case, when due or perform any other obligation with respect to such payment and the same is not cured within five (5) Business Days after notice that the same is due, (ii)    making an untrue material representation or warranty, or (iii) a material breach by such Member of any provision in this Agreement. Without in any way limiting any other remedies available to the Class B Member or Clean Technologies hereunder, upon an event of default by the Class B Member or Clean Technologies, the other Member shall have the right to suspend performance of its obligations that are prevented by such default.

Section 3.15 Matters Pertaining to the Grant.

(a)    As soon as practicable but no later than 105 days after the Initial Funding Date and each Subsequent Funding Date, as applicable, the Managing Member shall: (x) provide the Accounting Firm the information it requires to issue the Accountant’s Certificate with respect to the Systems that have been Placed in Service during the quarterly period following such

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Funding Date or other period, as applicable, and will be included in a Grant Application and (y) use commercially reasonable efforts to cause the Company to cause the Project Company to complete and file a Grant Application with respect to such Systems. To the extent permitted by applicable law (and provided that it would not likely cause the Grant Application to be rejected or materially delayed), the Grant Application will request that the Grant be wired or otherwise sent directly to a control account. The Members will cooperate to seek confirmation from the appropriate Governmental Authorities with respect to the ability to have such control account established in the name of the Company. To provide for the possibility that the Grant will have to be funded to an account of the Project Company, promptly following the Execution Date, the Managing Member shall use reasonable best efforts to cause the Company to cause the Project Company, at its cost, to cause the Project Company’s lenders to allow the Project Company to establish a control account in the name of the Project Company which would not be subject to any lien or security interest or restriction on distribution other than the hereinafter described Control Agreement. Whether or not the control account is at the Project Company or Company level, the control account shall be subject to the Control Agreement in form and substance reasonably acceptable to the Class B Member, the control account agent and either the Project Company or the Company, as applicable, which shall provide that upon receipt of any funds in the control account, the control account agent will immediately distribute such funds to the Class B Member and the Class A Member, pro rata as provided in Section 6.1(a). Any distribution made from the control account to the Members will be deemed to be a Company distribution for all purposes of this Agreement, including, without limitation, for purposes of maintaining Capital Accounts.

(b)    At least 10 days prior to filing a Grant Application, the Managing Member shall deliver to Class B Member a copy of the proposed Grant Application, which shall include the proposed filing date for the Grant Application. Class B Member shall have the right to raise reasonable objections to the proposed Grant Application within five days after Class B Member’s receipt thereof. If Class B Member raises any objection to the proposed Grant Application within such five-day period, the Managing Member and Class B Member shall use commercially reasonable efforts to resolve such objections. In the event the Managing Member and Class B Member are unable to resolve any such objections within a reasonable period of time, either Member may invoke the dispute resolution provisions of Section 11.11(a).

(c)    To the Knowledge of the Managing Member, after due inquiry, all factual information and factual statements contained in the Grant Applications including amounts relating to the purchase price of the Systems shall be true, correct and complete in all material respects. For the avoidance of doubt, this Section 3.15(c) shall not be construed as a representation or warranty to any Member as to any legal matters or legal conclusions in the Grant Applications, although the Parties acknowledge that Clean Technologies has made representations and warranties in this Agreement and the ECCA, including representations and warranties relating to the eligibility of the Systems for the Grant.

(d)    The Managing Member shall cause the Company to cause the Project Company to respond to all written requests from any Governmental Authority for additional or supplemental information relating to the Grant Application and shall make all required filings and responses in Consultation with Class B Member.

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(e)    Upon receipt by the Project Company of Grant proceeds, the Managing Member shall, within two Business Days following the date on which Grant proceeds are received by the Project Company, provide Class B Member or cause Class B Member to be provided with a notice that sets forth the amount of the Grant received by the Project Company and a calculation of the appropriate amounts to be distributed to each of the Members.

(f)    In the event that an Alternative Tax Program is elected pursuant to Section 7.5(b)(i), the above provisions shall be deemed to apply to any Alternative Tax Program (with modifications as necessary to account for the differences in such programs as compared to the Grant), and the Managing Member shall be required to comply with all such provisions of this Section 3.15 as if they applied to any Alternative Tax Program, as applicable.

Section 3.16 Separateness. The Members agree that the Company and the Project Company are separate and distinct entities and that the Company shall conduct, and cause the Project Company to conduct, their respective affairs in a manner intended to maintain such status, including without limitation adhering the following:

(a)    The Company has not formed, acquired or held and shall not form, acquire or hold any subsidiary, except for the Project Company;

(b)    The Company does not have, shall not have and at no time had any assets other than its membership interests in the Project Company and personal property necessary or incidental to its ownership of such membership interests;

(c)    The Company has not engaged in, sought, consented or permitted to and shall not engage in, seek, consent to or permit any dissolution, winding up, liquidation, consolidation or merger or any sale or other transfer of all or substantially all of its assets or any sale of assets outside the ordinary course of its business, except in each case as permitted by (i) this Company LLC Agreement and, (ii) any transfer of the Company’s membership interests in connection with the transactions described in the ECCA;

(d)    The Company shall not incur any additional debt or contingent liabilities except as permitted by this Company LLC Agreement;

(e)    The Company shall not commingle assets with those of any other entity and shall hold its assets in its own name;

(f)    The Company shall conduct its own business in its own name;

(g)    The Company shall maintain bank accounts (if any), books, records and financial statements separate from any other person or entity;

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(h)    The Company shall observe all formalities of the Company LLC Agreement;

(i)    The Company shall pay its own liabilities out of its own funds;

(j)    The Company shall maintain adequate capital in light of its contemplated business operations;

(k)    The Company shall use separate stationery, invoices and checks;

(1)    The Company shall pay the salaries of its own employees, if any;

(m)    The Company shall not guarantee or become obligated for the debts of any other entity or hold out its credit as being available to satisfy the obligations of others, in each case, other than the Project Company;

(n)    The Company shall not make any loans to any other person or entity other than in accordance with this Company LLC Agreement;

(o)    The Company shall allocate fairly and reasonably any overhead for shared office space;

(p)    The Company shall not pledge its assets for the benefit of any other entity, other than the Project Company or the Project; and

(q)    The Company shall hold itself out as a separate entity, with the exception that the Company shall not be considered a separate entity from the Project Company for federal, state, and local income tax purposes, and shall use commercially reasonable efforts to correct any known misunderstanding regarding its separate identity.

ARTICLE IV

CAPITAL CONTRIBUTIONS; CAPITAL ACCOUNTS

Section 4.1 Capital Contributions.

(a)    Subject to the terms of the ECCA, the Members will make Capital Contributions to the Company at the times and in the amounts required under the ECCA. The Members acknowledge that on or prior to the effective date of the 2012 Operating Agreement, the Class A Member made a Capital Contribution to the Company of all of its right, title and interest in and to the Project Company and the sum of [***] (in cash), and has agreed to make further Capital Contributions at the times and in the amounts required under the ECCA. Except as provided in this Article IV of this Agreement, no Member will be required to make any Capital Contributions to the Company after the Subsequent Funding Termination Date.

(b)    The Company shall be entitled to enforce the obligations of each Member with respect to each Funding, and the Company shall have all remedies available at law or in equity in the event any such obligation is not met.

[***] Confidential Treatment Requested

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(i)    Each Member hereby (A) agrees that the remedy at law for damages resulting from any failure by it to make a Funding when required under the terms of the ECCA is inadequate because the funding of the Systems requires the timely availability of required capital contributions and (B) consents to the institution of an action for specific performance of its obligations in the event of such a default.

(ii)    The Managing Member (or any other Member in the event that the Managing Member is the defaulting Member) may cause the Company to commence legal proceedings against the defaulting Member to collect the due and unpaid capital contribution plus interest (calculated from the date of the missed Funding) at a rate equal to the lesser of (x) 18% per annum, compounded daily and (y) the maximum rate allowable by law, as well as the expenses of collection including, without limitation, attorneys’ fees. Amounts collected in excess of the defaulting Member’s due and unpaid capital contribution or loan advance shall be deemed for purposes of this Agreement to be income of, or a reimbursement to, the Company, as appropriate, and shall not be treated as a capital contribution by the defaulting Member.

(iii)    Such defaulting Member’s share of the future distributions and profits (but not losses) of the Company shall be reduced by up to one hundred percent (100%) percent of that to which such defaulting Member would have been entitled based upon its Percentage Interest as measured immediately prior to the date of the missed Funding, based on a proportionate calculation of the shortfall of funds resulting from such defaulting Member’s failure to comply with its Funding obligation. The share of future distributions and profits that are not allocated to the defaulting Member shall be apportioned among the other non-defaulting Members in proportion to their respective Percentage Interests until such time as the defaulting Member cures such default by paying such unpaid capital contribution plus interest (calculated from the date of the missed Funding) at a rate equal to the lesser of (x) 18% per annum, compounded daily and (y) the maximum rate allowable by law, as well as the expenses of collection including, without limitation, attorneys’ fees.

Section 4.2 Capital Accounts.

(a)    A Capital Account will be established and maintained for each Member in the manner required by the Treasury Regulations under Section 704(b) of the Code. If there is more than one Member in a class, then each of the Members in that class will have a separate Capital Account.

(b)    A Member’s Capital Account will be increased by (i) the amount of money the Member contributes to the Company, (ii) the Gross Asset Value of any property the Member contributes to the Company (net of liabilities secured by the property that the Company is considered to assume or take subject to under Section 752 of the Code; the Gross Asset Value of any property contributed by a Member will be set forth in Schedule 4.2(b)), (iii) the income and gain (or items thereof) that the Member is allocated by the Company, including any income and gain exempted from tax (e.g., income allocated in respect of the Grant) and gain described in

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Section 4.2(c) and (iv) an amount equal to an allocation of upward basis adjustment to such Member in the event of a recapture of the Grant or ITC as described in Treasury Regulation Section 1.704-1(b)(2)(iv)(j). A Member’s Capital Account will be decreased by (v) the amount of money distributed to the Member by the Company (including any proceeds from the Grant distributed to such Member), (vi) the Gross Asset Value of any property distributed to the Member by the Company (net of liabilities secured by the property that the Member is considered to assume or take subject to under Section 752 of the Code), (vii) any expenditures of the Company described in Section 705(a)(2)(B) of the Code (i.e., expenditures that cannot be capitalized or deducted in computing taxable income) that are allocated to the Member; and (viii) losses and deductions (or items thereof) that are allocated by the Company to the Member, including losses described in Section 4.2(c), but the Capital Account will not be reduced again under this clause (viii) for expenditures that already reduced it under clause (vii) and (ix) an amount equal to an allocation of downward basis adjustment to such Member to take into account the Grant or ITC as described in Treasury Regulation Section 1.704-1(b)(2)(iv)(j).

(c)    The Gross Asset Values of all the Company assets will be adjusted to equal their respective Gross Fair Market Values upon the occurrence of any of the following events: (i) if any new or existing Member contributes more than a de minimis amount of money or property, provided that, for the avoidance of doubt, no adjustment will be made to Gross Asset Values in connection with any Capital Contributions described in Section 4.2(b) or (c), (ii) if more than a de minimis amount of money or other property is distributed by the Company to a Member to redeem its Membership Interest, or (iii) if the Company is liquidated within the meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(g). Following the occurrence of an event in clauses (i) and (ii) the Managing Member will make an adjustment to Gross Asset Value only if it reasonably determines, after Consultation with the other Members, that the adjustments are necessary or appropriate to reflect the relative economic interests of the Members in the Company. In addition, the Gross Asset Value of any Company asset that is distributed to a Member will be adjusted to equal the Gross Fair Market Value of the asset on the Distribution Date. In the event the Gross Asset Value of any item of the Company’s property is adjusted as described in this Section 4.2(c), then the amount of the adjustment will be treated as an item of gain (if the adjustment increases the Gross Asset Value) or an item of loss (if the adjustment decreases the Gross Asset Value) from the disposition of such property.

(d)    The initial Capital Account balance and Percentage Interest of each Member is shown in Schedule 4.2(d). Contributions made by the Members on Subsequent Fundings will be considered contributions of such amounts to the Company. The Managing Member will update Schedule 4.2(d) after each Subsequent Funding and from time to time as necessary to reflect accurately the information therein; provided, however, that, notwithstanding anything in this Company LLC Agreement or the ECCA to the contrary, failure to update Schedule 4.2(d) in accordance with this Section 4.2(d) shall not impact the actual amounts considered Capital Contributions hereunder, all of which shall be deemed made on the date actually contributed. Any such updating will be consistent with how this Article IV requires that the Capital Accounts be maintained. Any reference in this Agreement to Schedule 4.2(d) will be treated as a reference to Schedule 4.2(d) as amended and in effect from time to time.

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(e)    If all or a portion of a Membership Interest in the Company is Transferred in accordance with the terms of this Agreement, then the transferee will succeed to the Capital Account of the transferor to the extent it relates to the Membership Interest so Transferred.

(f)    The provisions of this Agreement relating to maintenance of Capital Accounts are intended to comply with Treasury Regulation Sections 1.704-1(b) and 1.704-2, and will be interpreted and applied in a manner consistent with such Treasury Regulations or any successor provisions.

Section 4.3 Equity Contributions to Project Company.

(a)    Subject to the terms and conditions of this Agreement and the satisfaction of the conditions precedent in Section 4.4 hereof, the Company shall contribute funds to the Project Company (each such contribution, an “Equity Contribution”) for further application by the Project Company towards payment of the purchase price for the Systems and other related costs. Within five (5) Business Days of receipt of a notice in the form of Exhibit E (the “Equity Contribution Notice”) and the satisfaction or waiver of the conditions precedent in Section 4.4 (such date, the “Equity Contribution Date”), the Company shall transfer the appropriate amount of funds from the Company’s account to a Project Company account as specified by the Project Company in such notice.

(b)    Each of the Initial Funding Payment of Class B Member and the CT Funding Amount of Class A Member made on the Initial Funding Date has been or shall be applied for further contribution to the Project Company to pay the 25% Progress Payments for systems to be deployed in the two quarters immediately following the Initial Funding Date.

(c)    All CT Funding Amounts made by Class A Member and all Subsequent Funding Payments made by Class B Member (subject to the satisfaction or waiver by the Class B Member of the conditions precedent in Section 4.4) will be contributed to the Project Company and used for the purchase and installation of the Systems and related costs. All CT Funding Amounts and all Subsequent Funding Payments will be deposited into an account established in the Project Company’s name with a financial institution reasonably acceptable to Class B Member (the “Capital Contributions Account”) and will be maintained in the Capital Contributions Account until such time as such amounts are used by the Project Company to pay for the costs or expenses for which such funds were requested, to distribute such funds to the Members as expressly permitted hereunder or for such other uses as are agreed to by the Members. Upon establishment of the Capital Contributions Account any portion of the Capital Contributions made by the Members on the Initial Funding Date that was projected to pay for the purchase price of Systems that has not yet been used for such purpose shall be deposited into the Capital Contributions Account and maintained there until used in accordance with the preceding sentence.

Section 4.4 Conditions Precedent to Equity Contributions by Company. The obligation of the Company to make an Equity Contribution to the Project Company (except in the case of the portion of any Equity Contribution used to pay any 25% Progress Payments for

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Systems to be deployed in the subsequent quarter which shall be subject to the conditions precedent hereinafter expressly provided) will be subject to the fulfillment by the Project Company, on or before the applicable Equity Contribution Date, of each of the following conditions (and upon satisfaction of such conditions, as applicable, the Managing Member shall so notify in writing the Administrator and the Members):

(a)    the Project Company shall have delivered to the Company and each of the Company’s members an Equity Contribution Notice, in the form attached to this Agreement as Exhibit E;

(b)    Managing Member’s Capital Contribution to the Company of [***] shall have been further contributed by the Company to the Project Company and used by Project Company to incur Project costs in an amount equal to at least 5% of the cost of all Systems;

(c)    the Project Company shall deliver to the Company and each of the Company’s members all necessary Governmental Approvals from the applicable Governmental Authority to the extent not previously delivered;

( d)    each of the representations and warranties of Clean Technologies in Section 3.2 of the ECCA relating to the Systems funded by such Equity Contribution is (i) true and correct in all material respects as of such Equity Contribution Date except to the extent that any such representation or warranty shall have been expressly made only as of an earlier date in which case such representation and warranty was true and correct in all material respects as of such earlier date and (ii) if and to the extent such representations and warranties are qualified by the words “material,” “Material Adverse Effect” or similar qualification, true and correct, as qualified, as of the such Equity Contribution Date (or such earlier date, as applicable);

(e)    No material ongoing breach exists by Bloom, Clean Technologies, the Company, the Project Company, the Managing Member, DPL or PJM under the ECCA, the Project Company LLC Agreement, the MESP A, the MOMA, the Administrative Services Agreement, the Credit Documents, the DPL Agreements, the PJM Agreements, this Agreement or any other Transaction Document or Material Contract, as applicable;

(f)    the Project Company is solvent and no event of Bankruptcy has occurred with respect to the Project Company;

(g)    confirmation that (i) all conditions precedent in Section 2.5 and Section 2.7 of the ECCA (other than Section 2.5(aa)) remain satisfied; provided that Clean Technologies and Company shall not be required to update any due diligence reports, legal opinions, appraisals or other third party documents previously delivered to Class B Member unless any of such previously delivered documents has been withdrawn or specific circumstances have materially changed in connection with the Systems to be funded from this Equity Contribution by Company to Project Company such that the previously delivered document is inapplicable or is materially incorrect with respect to such Systems; and (ii) there have been no material adverse changes from the circumstances addressed in the due diligence reports delivered under Sections 2.5(a) and (b) of the ECCA;

[***] Confidential Treatment Requested

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(h)    the information on each invoice from Bloom to Project Company for payments under the MESPA regarding the Systems to be paid for with proceeds of the applicable Equity Contribution will include the following: (i) the location of the installation of each such System, (ii) the serial number for each such System, (iii) the price for each such System as determined pursuant to the MESPA, (iv) all amounts previously paid as a deposit on each such System and (v) all amounts remaining due and payable on each such System;

(i)    the Initial Funding Payment, any prior Subsequent Funding Payments and any prior CT Funding Amounts, as applicable, shall have been contributed in full to the Project Company in accordance with Section 4.3 and Section 4.4 hereof, with respect to any Subsequent Funding Payment and any CT Funding Amount, the Capital Contributions Account shall have been established and maintained in accordance with the provisions of Section 4.3(c), the Project Company does not retain at such time in the Capital Contributions Account more than an amount equal to (i) $20,000,000 minus (ii) the amount of cash held by the Company at such time, and the Project Company shall have used such payments to make payments under the MESPA;

(j)    there are no material defaults under the MOMA relating to Systems previously installed, purchased and paid for by Project Company;

(k)    in the case of the portion of any Subsequent Funding Payment used to pay any 75% Progress Payments, Commencement of Operations (as defined under the MESPA) has occurred for the Systems for which there is a request for a Capital Contribution of the amounts of the 75% Progress Payment for such System;

(l)    in the case of the portion of any Subsequent Funding Payment or any CT Funding Amount used to pay any 75% Progress Payments, the Members have received confirmation that the Note Proceeds have either been disbursed from the Construction Escrow Account or will be available for disbursement from the Construction Escrow Account contemporaneous with Project Company’s drawdown of such Progress Contribution from the Company (as may be evidenced by, among other things, delivery to the Members of a copy of the Account Withdrawal Instruction applicable to such proceeds which has been countersigned by the Collateral Agent and delivered to the Depositary) or the Required Holders have in writing confirmed to the Members that all conditions precedent to such disbursement from the Construction Escrow Account have been satisfied or waived and the Required Holders are prepared to permit such disbursement contemporaneous with Project Company’s drawdown of such Progress Contribution from the Company; and

(m)    in the case of the portion of any Subsequent Funding Payment or any CT Funding Amount used to pay any 75% Progress Payments, the Members have received written certification from the Independent Engineer (as defined in the MESPA) addressed to Project Company certifying, without any qualification, that such System’s commissioning has been successfully completed, that such System is available for full commercial operation, and that Bloom has installed all BOF Work (as defined in the MESPA) necessary for the operation of that System.

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Notwithstanding the foregoing, with respect to the portion of any Equity Contribution used to pay any of the 25% Progress Payments for Systems to be deployed in the subsequent quarter, the fulfillment by the Project Company, on or before the applicable Equity Contribution Date, of each of the conditions set forth in Sections 4.4(a), (e), (f), (h)(i) and (h)(iii) must be satisfied.

To the extent that an Equity Contribution Notice has been delivered to the Company for which all of the applicable conditions precedent set forth above have been satisfied, the Company may make a capital contribution to Project Company related to all of the Systems for which all of the applicable conditions precedent have been satisfied. With respect to those Systems for which all conditions precedent had not been previously satisfied, but which are later satisfied, the Company may make a subsequent capital contribution to Project Company for the amounts requested in connection with that later qualifying System.

Section 4.5 Member Loans.

(a)    The Class B Members are entitled to effect cures of defaults under the Credit Documents to the extent set forth in the Interparty Agreement. Amounts expended in effecting such cures shall be deemed Member Loans, with each Class B Member contributing ratably in proportion to its holding of all then outstanding Class B Membership Interests; provided that, if any Class B Member does not wish to advance or loan its proportionate share of any such advance or loan, an amount equal to such proportionate share may instead be advanced by the remaining Class B Members (each such remaining Class B Member contributing ratably (or as otherwise agreed amongst such remaining Class B Members) in proportion to its holding of all then outstanding Class B Membership Interests (excluding in such determination of outstanding Class B Membership Interests all then outstanding Class B Membership Interests of any Class B Member that does not wish to advance or loan such proportionate share).

(b)    Any loan or advance made by any Class B Member pursuant to this Section 4.5 shall bear interest, unless otherwise agreed by such Class B Member in its sole discretion, at the Prime Rate.

(c)    Notwithstanding anything to the contrary in this Agreement, the Company shall borrow and accept, and the Managing Member shall cause the Company to borrow and accept, such loans or advances from the lending Members. The Company shall immediately advance, and the Managing Member shall cause the Company to immediately advance, such loans or advances from the lending Members to the Project Company. The incurrence of indebtedness by the Company pursuant to any loan or advance made by any Member pursuant to this Section 4.5 shall not require the consent of the Managing Member or the Class A Member. The Company shall apply all Company Distributable Cash to the payment of the principal of all outstanding advances or loans (together with accrued interest thereon) made under this Section 4.5 and, unless and until the outstanding principal amount of all such advances and loans is repaid in full together with all interest thereon and all other amounts due in respect thereof, there shall be no distributions to the Class A Members under this Agreement pursuant to Article VI or otherwise.

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(d)    An advance or loan by any Member described in this Section 4.5 constitutes a loan from such Member to the Company and is not a Capital Contribution.

ARTICLE V

ALLOCATIONS

Section 5.1 Allocations. After giving effect to the allocations in Section 5.2 and except as provided in Section 10.2(c) and Section 10.2(d) for purposes of maintaining Capital Accounts, all items of Company income, loss, gain, deduction and credit for any Fiscal Year will be allocated among the Members as follows:

(a)    Except for items relating to any Grant, for the period beginning on April 13, 2012 and running through the Flip Date, 99% in the aggregate to the Class B Members, allocated among them in proportion to their Pro Rata Shares, and 1% in the aggregate to the Class A Members, allocated among them in proportion to their Pro Rata Shares; and (ii) for the period beginning after the Flip Date, 5% in the aggregate to the Class B Members, allocated among them in proportion to their Pro Rata Shares, and 95% in the aggregate to the Class A Members, allocated among them in proportion to their Pro Rata Shares.

(b)    With respect to any items relating to any Grant, 99% in the aggregate to the Class B Members, allocated among them in proportion to their Pro Rata Shares, and 1% in the aggregate to the Class A Members, allocated among them in proportion to their Pro Rata Shares.

(c)    No losses or deductions may be allocated to a Member pursuant to this Section 5.1 to the extent the allocation would lead to a deficit in such Member’s Adjusted Capital Account. Losses or deductions that a Member cannot be allocated by reason of this Section 5.1(b) will be allocated to the other Members.

Section 5.2 Adjustments. The following adjustments will be made in the allocations in Section 5.1 to comply with Treasury Regulation Section 1.704-1(b):

(a)    In any Fiscal Year in which there is a net decrease in Company Minimum Gain, income and gain in the amount of the net decrease will be allocated to Members in the ratio required by Treasury Regulation Section 1.704-2. This provision is intended to comply with the minimum gain chargeback requirement in Treasury Regulation Section 1.704-2(f) and will be interpreted consistently therewith.

(b)    In any Fiscal Year in which there is a net decrease in Minimum Gain Attributable to Member Nonrecourse Debt, then income and gain in the amount of the net decrease will be allocated to each Member who was considered to have had a share of such minimum gain at the beginning of the Fiscal Year in the ratio required by Treasury

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Regulation Sections 1.704-2(i)(4) and 1.704-2(j)(2)(ii). This provision is intended to comply with the partner nonrecourse debt minimum gain chargeback requirement in Treasury Regulation Section 1.704-2(i)(4) and will be interpreted consistently therewith.

(c)    In the event any Member unexpectedly receives any adjustments, allocations or distributions described in Treasury Regulation Sections 1.704-1(b)(2)(ii)(d)(4), (5) or (6), gross income will be specially allocated to each such Member in an amount and manner sufficient to eliminate, to the extent required by the Treasury Regulations, any deficit in the Member’s Adjusted Capital Account as quickly as possible. However, an allocation will be made under this Section 5.2(c) only if and to the extent that the Member would have a deficit in its Adjusted Capital Account after all other allocations provided for in Sections 5.1 and 5.2 have been tentatively made as if this Section 5.2(c) were not in this Agreement.

(d)    In the event that any Member has a deficit in its Adjusted Capital Account at the end of any Fiscal Year after all the other allocations in Section 5.1 and 5.2 have been taken into account, then the Member will be specially allocated items of Company income and gain as quickly as possible to eliminate the deficit.

(e)    Nonrecourse Deductions for any Fiscal Year will be allocated to the Members in the same ratio as other income and loss under Section 5.1 or Sections 10.2(c) and (d), as applicable.

(f)    Any Member Nonrecourse Deductions for any Fiscal Year will be allocated to the Member who bears the economic risk of loss with respect to the Member Nonrecourse Debt to which the Member Nonrecourse Deductions are attributable in accordance with Treasury Regulation Section 1.704-2(i)(l).

(g)    If the Company distributes property to a Member in liquidation of the Membership Interest of the Member and there is an adjustment in the adjusted tax basis of Company property under Section 734(b) of the Code, there will be a corresponding adjustment to the Capital Account of the Member receiving the distribution. If the Company distributes cash to a Member in excess of its outside basis in its Membership Interest, leading to an adjustment in the inside basis of the Company property under Section 734(b) of the Code, solely for purposes of adjusting Capital Accounts of the Members, the adjustment in the inside basis will be treated as gain or loss and be allocated among the Members in the same ratio as other gain or loss for the Fiscal Year in which the adjustment occurs. This provision is intended to comply with Treasury Regulation Sections 1.704-l(b)(2)(iv)(m)(2) and (4) and will be interpreted consistently therewith.

(h)    The allocations in this Section 5.2 are required to comply with the Treasury Regulations. To the extent the Company can do so consistently with the Treasury Regulations, the net amount of the allocations under this Article V and Section 10.2 to each Member will be the net amount that would have been allocated to each Member if this Agreement did not have this Section 5.2.

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Section 5.3 Tax Allocations.

(a)    All allocations of tax items of Company income, gain, deductions and losses for each Fiscal Year will be allocated in the same proportions as the allocations of book items of Company income, gain, deductions and losses were made for such Fiscal Year pursuant to Sections 5.1 and 5.2.

(b)    Notwithstanding Section 5.3(a), if, as a result of contributions of property by a Member to the Company or an adjustment to the Gross Asset Value of Company assets pursuant to this Company LLC Agreement, there exists a variation between the adjusted basis of an item of Company property for United States federal income tax purposes and as determined under the definition of Gross Asset Value, allocations of income, gain, loss, and deduction will be allocated among the Members so as to take into account any variation between the adjusted basis of such property to the Company for United States federal income tax purposes and its initial Gross Asset Value using the traditional method with curative allocations pursuant to Treasury Regulation Section 1.704-3(c). To the extent the “ceiling rule” in Treasury Regulation Section 1.704-3(b) prevents the noncontributing Members from receiving an amount of tax depreciation in any year equal to the Members’ share of Depreciation for the year, then the shortfall will be made up in succeeding years as quickly as possible out of any tax depreciation that would otherwise have been allocated to the contributing Member.

(c)    Allocations pursuant to this Section 5.3 are solely for purposes of federal, state and local taxes and will not affect, or in any way be taken into account in computing, any Member’s Capital Account or share of income, gain, deductions or losses or distributions pursuant to any other provision of this Agreement.

(d)    To the extent that an adjustment to the adjusted tax basis of any Company asset is made pursuant to Section 743(b) of the Code as the result of a purchase of a Membership Interest in the Company, any adjustment to the depreciation, amortization, gain or loss resulting from such adjustment will affect the transferee only and will not affect the Capital Account of the transferor or transferee. In such case, the transferee will be required to agree to provide to the Company (i) information about the allocation of any step-up or step-down in basis to the Company’s assets and (ii) the depreciation or amortization method for any step-up in basis to the Company’s assets.

(e)    Solely for purposes of determining a Member’s proportionate share of the “excess non-recourse liabilities” of the Company within the meaning of Treasury Regulation Section 1.752-3(a)(3), each Member’s share of such liability shall be consistent with the profit sharing percentages then in effect pursuant to Section 5.1(a).

Section 5.4 Transfer or Change in Company Interest. If the respective Membership Interests or allocation ratios described in this Article V of the existing Members in the Company change or if a Membership Interest is Transferred in compliance with this Agreement to any other Person, then, for the Fiscal Year in which the change or Transfer occurs, all income, gains, losses, deductions, credits and other tax incidents resulting from the operations

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of the Company shall be allocated, as between the Members for the Fiscal Year in which the change occurs or between the transferor and transferee, by taking into account their varying interests using the proration method permitted by Treasury Regulation Section 1.706-1(c)(2)(ii), unless otherwise agreed by all the Members.

Section 5.5 Timing of Allocations. Items of income, gain, loss, deduction and credit will be allocated to the Members pursuant to this Article V as of the last day of each Fiscal Year; provided that such items shall also be allocated at such times as the Gross Asset Values of the Company’s assets are adjusted pursuant to Section 4.2(c).

ARTICLE VI

DISTRIBUTIONS

Section 6.1 Distributions. Except as provided otherwise in Sections 6.6, 6.7, 6.9, 6.11 or 10.2, Company Distributable Cash will be distributed to the Members on each Distribution Date in the manner described in this Section 6.1.

(a)    First, the proceeds of any Grant (or, if any Alternative Tax Program is elected pursuant to Section 7.5(b)(i), any Alternative Tax Program other than the ITC) received by the Project Company in connection with the Systems included in the Portfolio (as opposed to future capital expenditures) will be distributed, promptly upon receipt, in full to the Company by the Project Company and then distributed 99% to the Class B Members, distributed among them in proportion to their Pro Rata Shares, and 1% to the Class A Members, distributed among them in proportion to their Pro Rata Shares;

(b)    Second, any remaining Company Distributable Cash will be distributed (i)    from April 13, 2012 to and through the Flip Date, 99% to the Class B Members, distributed pro rata in proportion to the Percentage Interest held by each Class B Member, and 1% to the Class A Members, distributed pro rata in proportion to the Percentage Interest held by each Class A Member, and (ii) after the Flip Date, 5% to the Class B Members, distributed pro rata in proportion to the Percentage Interest held by each Class B Member, and 95% to the Class A Members, distributed pro rata in proportion to the Percentage Interest held by each Class A Member; and

(c)    Notwithstanding anything to the contrary in this Article VI or in any other Transaction Document, in the event that any 25% Progress Payments or 75% Progress Payments are refunded from Bloom to Project Company under the MESPA, whether or not such refunded 25% Progress Payments or 75% Progress Payments are deposited into a separate control account with the Company as the secured party, following the receipt by the Company of such refunded 25% Progress Payments or 75% Progress Payments, such refunded 25% Progress Payments or 75% Progress Payments will be distributed 100% to the Class B Members and among them in proportion to their Pro Rata Shares.

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Section 6.2 Withholding Taxes. If the Company is required to withhold taxes with respect to any allocation or distribution to any Member pursuant to any applicable federal, state or local tax laws, the Company may, after first notifying the Member and permitting the Member, if legally permitted, to contest the applicability of such taxes, withhold such amounts and make such payments to taxing authorities as are necessary to ensure compliance with such tax laws. Any funds withheld by reason of this Section 6.2 shall nonetheless be deemed distributed to the Member in question for all purposes under this Agreement. If the Company fails to withhold from actual distributions any amounts it was required to withhold, the Company may, at its option, (a) require the Member to which the withholding was credited to reimburse the Company for such withholding, or (b) reduce any subsequent distributions by the amount of such withholding. This obligation of a Member to reimburse the Company for taxes that were required to be withheld shall continue after such Member Transfers its Membership Interests in the Company. Each Member agrees to furnish the Company with any representations and forms as shall reasonably be requested by the Company to assist it in determining the extent of, and in fulfilling, any withholding obligations it may have.

Section 6.3 Limitation upon Distributions. No distribution of Company Distributable Cash will be made if the distribution would violate any contract or agreement to which the Company is then a party or any Legal Requirement then applicable to the Company.

Section 6.4 No Return of Distributions. Any distribution of Company Distributable Cash or property pursuant to this Agreement shall be treated as a compromise within the meaning of Section 18-502(b) of the Act and, to the full extent permitted by law, any Member receiving the payment of any such money or distribution of any such property shall not be required to return any such money or property to any Person, the Company or any creditor of the Company. However, if any court of competent jurisdiction holds that, notwithstanding the provisions of this Agreement, any Member is obligated to return such money or property, such obligation shall be the obligation of such Member and not of the other Members. Without limiting the generality of the foregoing, a deficit Capital Account of a Member shall not be deemed to be a liability of such Member nor an asset or property of the Company.

Section 6.5 Calculation of Internal Rate of Return.

(a)    Tracking Progress. The Managing Member will calculate at least annually whether the Class B Member has reached the Target IRR and will send the Class B Member, within 120 days after the end of each Fiscal Year in which the Target IRR was not achieved, a report in the form of the Tracking Model showing where it believes the Class B Member is in relation to the Target IRR. If the report suggests that the Target IRR will be reached during the next two Fiscal Years, then the Managing Member will calculate and report whether the Class B Member has reached the Target IRR at least quarterly thereafter. The Managing Member will make its advisers available to answer any questions about its calculations. The Class B Member may invoke the dispute resolution procedures in Section 11.11(b) to resolve any item or procedure that is in dispute, and the conclusion of such dispute resolution procedures will apply in all subsequent periods to any identical item or procedure.

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(b)    Notice of Date. The Managing Member will notify the Class B Member in writing at least 10 Business Days before the Distribution Date following the month in which it believes the Class B Member achieved the Target IRR or at least 30 days before making any liquidating distributions, in connection with a liquidation of the Company pursuant to Section 10.1, if it believes the Class B Member will achieve the Target IRR as a consequence of the liquidating distributions. The notice will include the Tracking Model showing the Managing Member’s calculations and, in the case of a notice delivered in connection with a liquidation, the allocations and distributions that the Managing Member proposes to make to the Class B Member under Section 10.2 in light of the calculations. The Managing Member will make its advisers available to answer any questions about its calculations. If the Class B Member wishes to invoke the dispute resolution procedures in Section 11.11(b) to resolve any disagreements, then they must give notice to that effect to the Managing Member before the Distribution Date, in a case not involving liquidation of the Company, and within 30 days after receipt of notice from the Managing Member in a case involving liquidation.

(c)    Notwithstanding the foregoing, if there is a Class A Recapture Event after a final determination has been made that Class B Member has achieved the Target IRR, the Internal Rate of Return shall be recalculated at the time of such Class A Recapture Event in accordance with the terms of Section 6.5, taking into account the consequences of any recapture. If, as a result of the Class A Recapture Event, the Class B Member’s Internal Rate of Return is below the Target IRR, the sharing percentages set forth in Section 5.1 and Section 6.1 shall be adjusted to the maximum extent necessary so as to correct, on a present value basis calculated at the Target IRR, the difference between the Target IRR assumed to have been realized by a holder of Class B Membership Interests on the Distribution Date as of which the Target IRR was determined to have been achieved, and the Internal Rate of Return realized by such a holder after adjusting solely for the Class A Recapture Event. Such change in sharing percentages shall remain in effect until, and to the extent necessary so that, the difference between the Target IRR and actual Internal Rate of Return shall have been eliminated.

Section 6.6 Satisfaction of Recapture-Related Obligations of the Class A Members to the Class B Member.

(a)    Notwithstanding the provisions of Section 6.1, if the Class B Member shall suffer any Recapture Damages, as a result of a Class A Recapture Event, then the Class B Member shall be entitled to collect Recapture Damages from the Class A Member in accordance with this Section 6.6.

(b)    Within 60 days after they become aware that they have incurred Recapture Damages, the Class B Member shall notify the Company and the Class A Members in writing of their Recapture Claim for such Recapture Damages, specifying in reasonable detail the cause of such Recapture Damages and the Class B Member’s calculation of the amount thereof if reasonably determinable by the Class B Member, or, if not reasonably determinable, an estimate of the range of such Recapture Damages. Within 30 days following receipt of notice of a Recapture Claim, the Class A Members shall notify each of the Class B Members and the Company in writing whether it agrees with or disputes all or a portion of the Recapture Claim, specifying the amount, if any, so agreed to. If the Class A Members shall not deliver such notice

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within the time specified, it shall be deemed to have delivered a notice on the 30th day disputing the entire amount of such Recapture Claim. The Class B Member shall have all rights and remedies available at law or in equity to the Class B Member to collect any Recapture Damages from the Class A Members.

Section 6.7 Satisfaction of Certain Recapture-Related Obligations of the Class B Member to the Class A Members.

(a)    Notwithstanding the provisions of Section 6.1, if the Class A Member shall suffer Recapture Damages as a result of a Class B Recapture Event, the Class A Member shall be entitled to collect such Recapture Damages from the Class B Member in accordance with this Section 6.7.

(b)    Within 60 days after they become aware that they have incurred Recapture Damages, the Class A Members shall deliver to the Company and the Class B Member a Recapture Claim notice for such Recapture Damages, specifying in reasonable detail the cause of such Recapture Damages and the Class A Member’s calculation of the amount thereof if reasonably determinable by the Class A Member, or, if not reasonably determinable, an estimate of the range of such Recapture Damages. Within 30 days following receipt of notice of a Recapture Claim, the Class B Member shall notify each of the Class A Members and the Company in writing whether it agrees with or disputes all or a portion of the Recapture Claim, specifying the amount, if any, so agreed to. If the Class B Member shall not deliver such notice within the time specified, it shall be deemed to have delivered a notice on the 30th day disputing the entire amount of such Recapture Claim. The Class A Members shall have all rights and remedies available at law or in equity to the Class A Members to collect any Recapture Damages from the Class B Member.

Section 6.8 Satisfaction of Certain Recapture-Related Obligations of the Company or the Project Company

(a)    Notwithstanding the provisions of Section 6.1, if the Company or Project Company is required to make any payment to the United States of America (or any agency or instrumentality thereof), as applicable, resulting from a Recapture Event (i) as a result of a Class A Recapture Event, then the Class A Member will be required to pay the amount of such payment (x) to the United States of America (or any agency or instrumentality thereof) on behalf of the Company or Project Company, as applicable, or (y) in the event that the Company or the Project Company has already made such payment, to the Company or Project Company, as applicable, in accordance with this Section 6.8 or (ii) as a result of a Class B Recapture Event, then the Class B Member will be required to pay the amount of such payment (x) to the United States of America (or any agency or instrumentality thereof) on behalf of the Company or Project Company, as applicable, or (y) in the event that the Company or the Project Company has already made such payment, to the Company or Project Company, as applicable, in accordance with this Section 6.8.

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(b)    Within 60 days after the Company or Project Company becomes aware that a Recapture Event has occurred that requires the Company or Project Company to make a payment as a result of such Recapture Event, the Company or Project Company, as applicable, shall deliver to the Members a written notice, specifying in reasonable detail the cause of such Recapture Event, including whether caused by a Class A Recapture Event or Class B Recapture Event, and the Company or Project Company’s calculation of the amount of any such payment as a result of such Recapture Event, if reasonably determinable by the Company or the Project Company, or, if not reasonably determinable, an estimate of the range of such payment. Within 30 days following receipt of notice, each Member shall notify the Company or Project Company, as applicable, in writing whether it agrees with or disputes all or a portion of the amount specified in the notice, specifying the amount, if any, so agreed to. The Company and Project Company shall have all rights and remedies available at law or in equity to the Members to collect any payment required to be paid by the Company or the Project Company as a result of a Class A Recapture Event or Class B Recapture Event from the responsible Members.

Section 6.9 Class A Recapture Events Prior to Receipt of Grant.

(a)    If, prior to a Grant being received by the Project Company, there is a Recapture Event resulting in a denial of all or a portion of such Grant with respect to the Company or Project Company as a result of a Class A Recapture Event, the Class A Member will be required to pay the Class B Member 99% of the amount that equals the difference between the Grant amount set forth in the Grant Application and the actual Grant amount received.

(b)    Within 60 days after a Recapture Event resulting in a denial of all or a portion of the Grant as a result of a Class A Recapture Event, the Class A Member shall have the right to cause the Company or Project Company to appeal, contest or discuss such denial (i) in any formal or informal discussions with Treasury or any other Governmental Authority, (ii) in any formal or informal administrative proceeding before the relevant Governmental Authority and/or (iii) by commencing litigation in any forum appropriate for such appeal or contest. The Class A Member shall have the right to direct such appeal, contest, or discussions. The Class A Member shall keep, or cause the Company or Project Company to keep, the Class B Member reasonably apprised of all developments with respect to any such appeal, contest, or discussions and shall consult with the Class B Member with respect to its strategy for such appeal, contest or discussion prior to beginning any such appeal, contest or discussion.

Section 6.10 Repayment. If the amount of any Recapture Damages paid under Sections 6.6, 6.7, or 6.8 or any payments made under Section 6.9, are reduced or recovered by the Indemnified Party at any time after the making of such payments by the Indemnifying Party, the amount of such reduction or recovery, less any costs or expenses incurred in connection therewith, must promptly be repaid by the Indemnified Party to the Indemnifying Party net of any Taxes imposed upon the Indemnified Party in respect of such amounts, but taking into account any Tax benefit the Indemnified Party actually realizes as a result of such repayment.

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Section 6.11 Permitted Distributions. On or promptly following the execution date of the Note Purchase Agreement, the Project Company will distribute an amount equal to the Permitted Distribution from the proceeds received by the Project Company from the sale of the notes thereunder to the Company. On or promptly following the Final Completion Date, the Project Company will distribute an amount equal to the amounts remaining on deposit in the Construction Escrow Account and the IDC Reserve Account, in the aggregate, upon the occurrence of the Final Completion Date (such amount, the “Aggregate Final Completion Distribution”) to the Company. The Members acknowledge and agree that, notwithstanding anything to the contrary contained in this Agreement, (i) the proceeds of the Permitted Distribution shall be distributed to the Members on April 30, 2013 or such earlier date as may be agreed upon by the Members and (ii) the proceeds of the Aggregate Final Completion Distribution shall be distributed to the Members on the Distribution Date immediately succeeding the Final Completion Date.

ARTICLE VII

ACCOUNTING AND RECORDS

Section 7.1 Reports.

(a)    The Managing Member shall cause the Administrator to prepare and deliver to each Member as soon as practical but in no event later than the 20th day after the end of each month, a written report (each, an “Operations Report”), in the form attached as Exhibit C, that will include a summary of the kilowatt hours produced and sold by the Project Company during such month, information regarding the Systems’ availability during such month, notice of material events, including but not limited to, defaults under Material Contracts, any Material Adverse Effect that has occurred at the Project Company, any FERC or Grant-related filings, periodic reports on the status of the System sales, periodic financial statements of the Company and the Project Company and such other relevant operational information as may from time to time be reasonably requested, prior to the Flip Date, by Class B Members owning more than 50% of the Class B Membership Interests by Percentage Interest.

(b)    No later than 60 calendar days before the start of each Fiscal Year, the Managing Member shall cause the Administrator to prepare or cause to be prepared, and shall submit to each Member, an annual capital and operating budget for the Project Company before the end of the previous Fiscal Year (the “Annual Budget”).

(c)    The Managing Member shall cause the Administrator to prepare and deliver to each Member on or before the 20th day after the end of each calendar month a report showing the calculation of distributions for such month determined in accordance with Article VI for both distributions from the Project Company to the Company and the Company to the Members.

(d)    The Managing Member shall cause the Administrator to (i) calculate at least annually whether the Class B Member has reached the Target IRR; provided, however, that if the calculation in a year suggests that the Target IRR will be reached during the next two

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Fiscal Years, then the Managing Member will calculate whether the Class B Member has reached the Target IRR at least quarterly thereafter; and (ii) send the Class B Member, within 120 days after the end of each Fiscal Year in which the Target IRR was not achieved, a report showing where it believes the Class B Member is in relation to the Target IRR and a similar report within 30 Business Days after the end of each Quarter during any period when quarterly reports are required.

(e)    The Managing Member shall cause the Administrator to notify the Class B Member in writing at least 30 days before the Distribution Date following the month in which it believes the Class B Member achieved the Target IRR or at least 30 days before making any liquidating distributions, in connection with a liquidation of the Company pursuant to Section 10.1, if it believes the Class B Member will achieve the Internal Rate of Return as a consequence of the liquidating distributions (the “Target IRR Notice”). The Target IRR Notice will include the Managing Member’s Internal Rate of Return calculations and, in the case of a notice delivered in connection with a liquidation, the allocations and distributions that the Managing Member proposes to make to the Class B Member under Section 10.2 in light of the calculations.

Section 7.2 Books and Records and Inspection.

(a)    The Managing Member shall cause the Company to keep and shall cause the Administrator to maintain, full and accurate books of account, financial records and supporting documents that reflect, completely, accurately and in reasonable detail in all material respects, each transaction of the Company and such other matters as are usually entered into the records or maintained by Persons engaged in a business of like character or as are required by law, and all other documents and writings of the Company and all statements and documents required by the Guidance (including, but not limited to, energy production information and financial and accounting records sufficient to demonstrate that the Grant was properly obtained in accordance with the Guidance and any other documents needed to comply with the Guidance maintenance and access to records, requirements and documents needed for the completion of annual project performance reports (including information regarding annual energy production and number of jobs retained) and recapture certification). The books of account, financial records, and supporting documents and the other documents and writings of the Company shall be kept and maintained by the Administrator at the principal office of the Company. The financial records and reports of the Company and the Project Company shall be kept on an accrual basis and kept in accordance with GAAP.

(b)    In addition to and without limiting the generality of Section 7.2(a), the Managing Member shall cause the Company to keep and shall cause the Administrator to maintain at the Company’s principal office:

(i)    true and full information regarding the status of the financial condition of the Company, including any financial statements until the applicable statute of limitations expires with respect to the Company tax year to which such information and financial statements relate;

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(ii)    promptly after becoming available, a copy of the Company’s and, if applicable, the Project Company’s federal, state, and local income Tax Returns for each year;

(iii)    minutes of the proceedings of the Members;

(iv)    a current list of the name and last known business, residence or mailing address of each Member and the Administrator;

(v)    a copy of this Agreement and the Company’s Certificate of Formation, and all amendments thereto, the Project Company’s operating agreement and all amendments thereto, together with executed copies of any written powers of attorney pursuant to which this Agreement and such Certificate of Formation and all amendments thereto which have been executed and copies of written consents of Members;

(vi)    true and full information regarding the amount of cash and a description and statement of the agreed value of any other property and services contributed by each Member, and the date upon which each became a Member;

(vii)    copies of records that would enable a Member to determine the Member’s relative shares of the Company’s distributions and the Member’s relative voting rights; and

(viii)    all records related to the production and sale of electricity by the Project Company.

(c)    Upon receiving reasonable prior notice to the Managing Member, all books and records of the Company and the Project Company shall be open to inspection and copying by any of the Members or their Representatives during business hours and at such Member’s expense, for any purpose reasonably related to such Member’s interest in the Company, provided that any such inspection or copying is conducted in a manner which does not unreasonably interfere with the Company’s business.

Section 7.3 Bank Accounts, Notes and Drafts.

(a)    All funds not required for the immediate needs of the Company shall be placed in Permitted Investments, which investments shall have a maturity appropriate for the anticipated cash flow needs of the Company. All Company funds shall be deposited and held in accounts which are separate from all other accounts maintained by the Members and the Administrator, and the Company’s funds shall not be commingled with any funds of any other Person, including the Project Company, any Administrator, any Member or any Affiliate of a Administrator or a Member.

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(b)    The Members acknowledge that the Company may maintain Company funds in accounts, money market funds, certificates of deposit, other liquid assets in excess of the insurance provided by the Federal Deposit Insurance Corporation, or other depository insurance institutions and that neither the Managing Member nor the Administrator nor the Company shall be accountable or liable for any loss of such funds resulting from failure or insolvency of the depository institution, so long as any such maintenance of funds is in compliance with the first sentence of Section 7.3(a).

(c)    Checks, notes, drafts and other orders for the payment of money shall be signed by such officers of the Company, or the Managing Member, as the Company from time to time may authorize. When the Company so authorizes, the signature of any such Person may be a facsimile.

Section 7.4 Financial Statements.

(a)    As soon as practicable after the end of each Quarter, but in any event within 60 calendar days after the end of each Quarter, the Managing Member shall cause the Administrator to furnish to each Member unaudited financial statements with respect to such Quarter for the Company and the Project Company prepared in accordance with GAAP and consisting of (i) a balance sheet showing the Company’s and the Project Company’s financial position as of the end of such Quarter, (ii) profit and loss statements for the Company and the Project Company for such Quarter, and (iii) a statement of cash flows for the Company and the Project Company for such Quarter. Such statements shall include a statement of Members’ equity based on hypothetical liquidation at book value (HLBV) accounting.

(b)    By the following April 30 after the end of each Fiscal Year, the Managing Member shall cause the Administrator to furnish to each Member consolidated financial statements with respect to such Fiscal Year for the Company that are audited and certified by an Accounting Firm and prepared in accordance with GAAP, consisting of (i) a balance sheet showing the Company’s financial position as of the end of such Fiscal Year, (ii) profit and loss statements for the Company for such Fiscal Year, (iii) a statement of cash flows for the Company for such Fiscal Year and (iv) related footnotes. Such statements shall include a statement of Members’ equity based on hypothetical liquidation at book value (HLBV) accounting.

(c)    By the following February 15 after the end of each Fiscal Year, the Managing Member shall cause the Administrator to furnish to each Member unaudited financial statements with respect to such Fiscal Year for the Company and the Project Company prepared in accordance with GAAP and consisting of (i) a balance sheet showing the Company’s and the Project Company’s financial position as of the end of such Fiscal Year, (ii) profit and loss statements for the Company and the Project Company for such Fiscal Year, (iii) a statement of cash flows for the Company and the Project Company for such Fiscal Year. Such statements shall include a statement of Members’ equity based on hypothetical liquidation at book value (HLBV) accounting.

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Section 7.5 Partnership Status and Tax Elections.

(a)    The Members intend that the Company will be taxed as a partnership for United States federal, state and local income tax purposes. The Members agree not to elect to be excluded from the application of Subchapter K of Chapter 1 of Subtitle A of the Code or any similar state statute and agree not to elect for the Company to be treated as a corporation, or an association taxable as a corporation, under the Code or any similar state statute.

(b)    The Company will make the following elections on the appropriate Tax Returns:

(i)    any election necessary to qualify for the Grant and prevent a Class A Recapture Event as it relates to the Grant, or if the Grant is determined by the Members (by a Class Majority Vote) to not be available, any election or claim of any Alternative Tax Program that the Members have decided to elect or claim pursuant to a Class Majority Vote; provided that if the Company and the Project Company seek to claim the ITC, the Members agree to negotiate in good faith and execute any amendments to any of the Transaction Documents, enter into any additional agreements and take all such additional actions as may be reasonably required to effect such an election;

(ii)    to the extent permitted under Section 706 of the Code, to adopt as the Company’s fiscal year the calendar year;

(iii)    to adopt the accrual method of accounting;

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

(v)    to elect to amortize the organizational expenses of the Company ratably over a period of 180 months as permitted by Section 709(b) of the Code;

(vi)    to elect out of additional first year depreciation pursuant to Section 168(k)(2)(D)(iii) of the Code, unless, after consultation with the Class B Member, the Class B Member requests in writing that this election not be made; and

(vii)    if approved in writing by Members representing a Class Majority Vote, any other election the Managing Member may deem appropriate.

(c)    The Company shall file an election under Section 6231(a)(l)(B)(ii) of the Code and the Treasury Regulation thereunder to treat the Company as a partnership to which the provisions of Sections 6221 through 6234 of the Code, inclusive, apply.

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Section 7.6 Company Tax Returns. The United States federal income Tax Returns for the Company and all other Tax Returns of the Company shall be prepared as directed by the Managing Member in Consultation with the other Members. If a Member notifies the Managing Member that any real property Taxes with respect to the Systems were assessed against or invoiced to such Member, then the Managing Member will cause the Company to pay such Taxes in full and in a timely manner, provided, further, that with respect to each Tax Year ending on the last Friday of November, the Managing Member will cause the Company to prepare preliminary Tax Returns and issue preliminary K-l ’s to the Members no later than February 1 of the following Tax Year. The Managing Member, in Consultation with the other Members, may extend the time for filing any such Tax Returns as provided for under applicable statutes; provided that, in the event of any such extension, the Managing Member shall provide the other Members with an estimate of the Taxes owed within 20 days of the filing of such extension. At the Company’s expense, the Managing Member shall cause the Company to retain an Accounting Firm to prepare or review and sign the necessary federal and state income Tax Returns and information returns for the Company. Each Member shall provide such information, if any, as may be reasonably needed by the Company for purposes of preparing such Tax Returns, provided that such information is readily available from regularly maintained accounting records. At least 30 days prior to filing the federal and state income Tax Returns other than information returns, the Managing Member shall cause the Administrator to deliver to the other Members for their review a copy of the Company’s federal and state income Tax Returns, excluding information returns, in the form proposed to be filed for each Fiscal Year together with a notice of any inconsistencies with the Base Case Model, and shall cause the Administrator to incorporate all reasonable changes or comments to such proposed Tax Returns requested by the other Members (who shall be required to make all reasonable efforts to provide such changes or comments in a reasonable amount of time) at least 10 days prior to the filing date for such returns. The dispute provisions under Section 11.11 may be invoked if Class B Members owning more than 50% of the Class B Membership Interests disagree with a position taken on any Tax Return; provided that the Accounting Firm preparing the Tax Return still must be able to sign the Tax Return consistent with the resolution of the dispute; provided, further that if the dispute process would not be completed by the date that the Tax Return must be filed under this Section 7.6, then the Managing Member will cause the Company to file the Tax Return as originally prepared by the required date, but the Managing Member may be required to cause the Company to amend the Tax Return after a conclusion is reached in the dispute process; and provided still further that in the event such challenge confirms the original position in question, the challenging Class B Member shall promptly pay all of the Accounting Firm’s reasonable fees and expenses incurred in connection with such challenge. After taking into account any such requested changes, the Managing Member shall cause the Company to timely file, taking into account any applicable extensions, such Tax Returns. Within 20 days after filing such federal and state income Tax Returns and information returns, the Managing Member shall cause the Company to deliver to each Member a copy of the Company’s federal and state income Tax Returns and information returns as filed for each Fiscal Year, together with any additional tax-related information in the possession of the Company that such Member may reasonably and timely request in order to properly prepare its own income Tax Returns.

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Section 7.7 Tax Audits.

(a)    Clean Technologies is hereby designated as the initial “tax matters partner,” as that term is defined in Section 6231(a)(7) of the Code (the “Tax Matters Partner”), of the Company, with all of the rights, duties and powers provided for in Sections 6221 through 6234 of the Code, inclusive. Each other Member may provide the Secretary of Treasury with notice that it is a “notice partner” under Section 6223 of the Code. Clean Technologies is hereby directed and authorized to take whatever steps Clean Technologies, in its reasonable discretion, deems necessary or desirable to perfect such designation, including filing any forms or documents with the IRS, taking such other action as may from time to time be required under the Treasury Regulations and directing the Administrator to take any of the foregoing actions. Clean Technologies shall remain as the Tax Matters Partner so long as it remains the Managing Member and retains any ownership interests in the Company unless Clean Technologies requests that it not serve as Tax Matters Partner and such request is approved by (i) a Class Majority Vote, if such request is made prior to the Flip Date or (ii) a Majority Vote, if such request is made after the Flip Date, or if Members collectively holding more than 50% of the Class B Membership Interests reasonably determine to remove the Tax Matters Partner for fraud or willful misconduct and appoint a replacement.

(b)    The Tax Matters Partner, in Consultation with the other Members, shall direct, or cause the Administrator to direct, the defense of any claims made by the IRS to the extent that such claims relate to the adjustment of Company items at the Company level, except that the strategy to be taken in connection with any such defense and the selection of counsel shall be approved by (i) a Class Majority Vote, if the claims relate to periods before the Flip Date, (ii) a Majority Vote, if such claims relate to periods after the Flip Date or (iii) a unanimous vote of the Class B Members, if such claims relate to the Grant. The Tax Matters Partner shall cause the Company to retain and to pay the fees and expenses of counsel approved as described in the preceding sentence and to pay the fees and expenses of other advisors chosen by the Tax Matters Partner in Consultation with the other Members. The Tax Matters Partner shall promptly deliver, or shall cause the Administrator to promptly deliver, to each Member a copy of all notices, communications, reports and writings received from the IRS by the Company relating to or potentially resulting in an adjustment of Company items, shall promptly advise, or cause the Administrator to promptly advise, each Member of the substance of any conversations with the IRS in connection therewith and shall keep, or cause the Administrator to keep, the Members advised of all developments with respect to any proposed adjustments that come to its or the Administrator’s, as the case may be, attention. In addition, the Tax Matters Partner shall or shall cause the Administrator to (A) provide each Member with a draft copy of any correspondence or filing to be submitted by the Company in connection with any administrative or judicial proceedings relating to the determination of Company items at the Company level reasonably in advance of such submission, (B) incorporate all reasonable changes or comments to such correspondence or filing, approved or recommended by Members collectively holding more than 50% of the Class B Membership Interests timely requested by any Member and (C) provide each Member with a final copy of correspondence or filing. The Tax Matters Partner will provide, or cause the Administrator to provide, each Member with notice reasonably in advance of any

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meetings or conferences with respect to any administrative or judicial proceedings relating to the determination of Company items at the Company level (including any meetings or conferences with counsel or advisors to the Company with respect to such proceedings) and each Member shall have the right to participate, at its sole cost and expense, in any such meetings or conferences.

(c)    For any issue or matter relating to the period prior to the Flip Date without the approval of Members collectively holding more than 50% of the Class B Membership Interests, the Tax Matters Partner shall not (i) commence a judicial action (including filing a petition as contemplated in Section 6226(a) or Section 6228 of the Code) with respect to a federal income tax matter or appeal any adverse determination of a judicial tribunal; (ii) intervene in any action as contemplated by Section 6226(b) of the Code; (iii) file any request contemplated in Section 6227(b) of the Code; or (iv) enter into an agreement extending the period of limitations as contemplated in Section 6229(b)(1)(B) of Code. For any issue or matter relating to the period prior to the Flip Date without the approval of each of the other Members, the Tax Matters Partner shall not enter into a settlement agreement with the IRS which purports to bind the Members. Any cost or expense incurred by the Tax Matters Partner in connection with its duties as Tax Matters Partner shall be paid by the Company. If the Grant is determined to be unavailable in accordance with the procedures set forth in Section 7.5(b)(i), the Tax Matters Partner shall elect or claim an Alternative Tax Program only in accordance with Section 7.5(b)(i).

(d)    If for any reason the IRS disregards the election made by the Company pursuant to Section 7.5(c) and commences any audit or proceeding in which it makes a claim, or proposes to make a claim, against any Member that could reasonably be expected to result in the disallowance or adjustment of any items of income, gain, loss, deduction or credit allocated to such Member by the Company, then such Member shall promptly advise the other Members of the same, and such Member, in Consultation with the other Members, shall use commercially reasonable efforts to convert the portion of such audit or proceeding that relates to such items into a Company level proceeding consistent with the Company’s election pursuant to Section 7.5(c).

(e)    If any Member intends to file, pursuant to Section 6227 of the Code, a request for an administrative adjustment of any such partnership item of the Company, or to file a petition under Sections 6226, 6228 or other Sections of the Code with respect to any such partnership item or any other tax matter involving the Company, such Member shall, at least thirty (30) days prior to any such filing, notify the other Members of such intent, which notification must include a reasonable description of the contemplated action and the reasons for such action; provided, however, that this Section 7.7(e) shall not relieve such Member’s obligation to use all commercially reasonable efforts to convert a Member level proceeding into a Company level proceeding as provided in Section 7.7(d).

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Section 7.8 Cooperation. Subject to the provisions of this Article VII, each Member shall provide the other Members with such assistance as may reasonably be requested by such other Members in connection with the preparation of any Tax Return, any audit or other examination by any taxing authority, or any judicial or administrative proceedings relating to the liability for any Taxes with respect to the operations of the Company and the Project Company or a Class A Recapture Event.

Section 7.9 Fiscal Year. The fiscal year of the Company (the “Fiscal Year”) shall be the same as the taxable year of the Company. The taxable year of the Company will be a year that ends on the last Friday of each November, or such other year as may be required by applicable federal income tax law.

ARTICLE VIII

MANAGEMENT

Section 8.1 Management. Each of the Members acknowledges and agrees that the Administrator shall have the authority, powers and responsibilities described in the Administrative Services Agreement and as provided herein; provided that neither the Administrator nor the Managing Member shall (x) take or permit any action that would be a Major Decision hereunder without the prior occurrence of a Class Majority Vote approving such action, or (y) refrain from taking any action that has been approved as a Major Decision hereunder. The Company hereby ratifies and approves the Administrative Services Agreement. Except (a) for duties and powers delegated to the Administrator hereunder or under the Administrative Services Agreement, (b) for Major Decisions and (c) as otherwise required by applicable Legal Requirements, the powers of the Company shall be exercised by or under the authority of, and the business and affairs of the Company shall be managed under the direction of the Managing Member. In addition, the Members may, with the consent of the Managing Member or Administrator, as applicable, vest in the Managing Member or the Administrator the authority to take actions for and on behalf of the Company not otherwise provided for in this Agreement or the Administrative Services Agreement. Any such vested authority shall require a Class Majority Vote.

Section 8.2 Managing Member.

(a)    The Managing Member shall be the Member designated to act as such hereunder from time to time in accordance with the provisions of this Section 8.2 (the “Managing Member”). The initial Managing Member shall be Clean Technologies. The Managing Member shall cause the Company and cause the Company to cause the Project Company to enforce the Administrative Services Agreement and the MOMA (and any other Material Contracts with Affiliates of Bloom or Clean Technologies) on behalf of the Company and the Project Company; provided, however, that, in the event that the Administrative Services Agreement is terminated and is not replaced, the Managing Member shall perform the work, or engage a third party to perform such work, previously performed by the Administrator prior to the termination of such Administrative Services Agreement in accordance with the Prudent Operator Standard, or if not in accordance with such standard, if approved in advance or ratified by Class B Members owning at least a majority of the Class B Membership Interests.

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(b)    Upon the termination of the MOMA, the Managing Member shall cause the Company to replace the MOMA in accordance with Section 8.3 and the definition of “Major Decisions” and, to the extent such replacement MOMA is not with an Affiliate of Clean Technologies, the operator (or an affiliate thereof, if the operator’s obligations thereunder are being guaranteed by such affiliate) under such replacement MOMA shall have substantial experience operating and maintaining comparable equipment.

(c)    The Managing Member hereby covenants to cause the Company to, and to cause the Company to cause the Project Company to, implement any Major Decisions approved under this Company LLC Agreement, and not to take any Major Decisions (or comparable decision at the Project Company level) without a Class Majority Vote.

(d)    Clean Technologies may resign as Managing Member with any such resignation to become effective upon the appointment of a successor Managing Member under this paragraph that is recognized nationally as having substantial experience managing and operating fuel cell facilities or if such transferee has engaged such an experienced and recognized company to manage the Company at substantially the same cost as under the Administrative Services Agreement. The Members, by a Class Majority Vote prior to the Flip Date and by a Majority Vote thereafter, may at any time (i) remove a Managing Member (x) upon their reasonable determination that there is Cause for removal, or (y) following any Bankruptcy of the Managing Member or foreclosure or involuntary transfer of the Class A Membership Interests held by the Managing Member (or any Bankruptcy of any Person that Controls the Managing Member), and (ii) fill any vacancy as Managing Member caused by removal, resignation or otherwise. The Managing Member may not participate in, and any Membership Interests owned by Clean Technologies or an Affiliate thereof shall be excluded from, any vote to remove or replace a Managing Member under this Section 8.2(d) if the basis alleged for removal of the Managing Member is for Cause.

(e)    The Managing Member may, from time to time, designate one or more officers with such titles as may be designated by the Managing Member to act in the name of the Company with such authority as is delegated to the Managing Member hereunder and as may be delegated to such officer(s) by the Managing Member. The current officers are the persons listed on Schedule 8.2(e).

(f)    If an event occurs which would permit the Project Company to terminate in whole, or with respect to specific Systems, the MOMA and/or the MESPA, pursuant to the terms thereunder, provided that any applicable cure period has expired without the event in question having been cured, a majority of the Class B Members, without the consent or approval of the Class A Members, shall be entitled to instruct the Managing Member to cause the Company to cause the Project Company to terminate in whole or in part the MOMA or the MESPA and the Managing Member shall promptly act in accordance with such instructions.

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Section 8.3 Major Decisions.

(a)    In addition to any other approval required by applicable Legal Requirements or this Agreement, Major Decisions are reserved to the Members, and none of the Company, the Managing Member, the Administrator, or any officer thereof shall do or take or make or approve any Major Decisions with respect to the Company or the Project Company without a Class Majority Vote.

(b)    The Managing Member will submit proposed Major Decisions to the Class B Member in writing in accordance with Section 11.1 for their approval, with each submission setting forth in reasonable detail the Major Decision proposed and the basis for the Managing Member’s recommendation. Upon receipt of the written submission, the Class B Members will have ten (10) Business Days therefrom to approve or reject the proposal by Class B Members owning a majority of the Class B Membership Interests. If the proposed Major Decision is not approved or rejected by Class B Members owning a majority of the Class B Membership Interests in writing within such period, such proposed Major Decision will be deemed rejected.

Section 8.4 Insurance. The Managing Member shall cause the Company to acquire and maintain (including making changes to coverage and carriers) the casualty, general liability (including product liability), property damage and/or other types of insurance set forth in Schedule 8.4 and the Insurance Report; provided that if any such insurance is not available on commercially reasonable terms, only such insurance shall then be required to be carried pursuant to this Section 8.4 as is then available on commercially reasonable terms. The Class B Members shall be added to such insurance as additional insured and loss payee as their interests may appear, with a waiver of subrogation permitted in their favor (where legally permitted or insurance market practice permits). Such insurance shall require that the Class B Members be provided with 30 days written notice of cancellation (10 days for non-payment of premium). The Managing Member shall cause to be delivered to each Class B Member, promptly after it becomes a Member, certificates from a reputable insurance broker evidencing the maintenance of the insurance required by this Section 8.4, which certificates shall be replaced or updated to reflect any replacement, renewal or other change to the insurance evidenced thereby, or the addition of any policy not then reflected on the most recently delivered certificates.

Section 8.5 Notice of Material Breach. The Managing Member shall promptly notify the Class B Member (but in no event more than within five Business Days of obtaining actual knowledge) of any (a) notice of default delivered by a party to a Material Contract to the Project Company, the Administrator or the Managing Member or (b) default by a party to a Material Contract (other than a Project Company, the Administrator or any Affiliate thereof) under such Material Contract, in the case of either (a) or (b), which default could reasonably be expected to cause material harm to the Company or any Project Company.

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ARTICLE IX

TRANSFERS, CHANGES OF CONTROL AND INDEMNIFICATION

Section 9.1 Prohibited Transfers. No Member shall sell, transfer, assign, convey, pledge, mortgage, encumber, hypothecate or otherwise dispose of all or any part of its Membership Interests or any interest, rights or obligations with respect thereto, or permit a Change of Control of any entity subject to a restriction on Change of Control under this Article IX (any such action, a “Transfer”), except as provided in this Article IX. Prior to the end of the Recapture Period with respect to any System, no Transfer of a Person that directly or indirectly owns an interest in a Member will be permitted if the transfer would cause the Company or Project Company to become a Disqualified Person or cause the Systems, or any portion thereof, to be classified as “tax-exempt use property” for purposes of Section 168 of the Code. After the Recapture Period has ended, the limitations pursuant to this Article IX on Change of Control of any Member shall apply only to such Member directly and shall not apply to any Person that directly or indirectly owns an interest in such Member. Any attempted Transfer of a Membership Interest that does not comply with this Article IX shall be null and void and not recognized by the Company for any purpose.

Section 9.2 Conditions to Transfers of Class A Membership Interests or Changes of Control of Managing Member. Except as otherwise provided in this Article IX, all Transfers of Class A Membership Interests and all Transfers by Bloom of its interests in Clean Technologies must satisfy the following conditions:

(a)    The transferring Member must give written notice of the proposed Transfer to each of the Members not less than 10 days prior to the effective date of the proposed Transfer.

(b)    The transferring Member and the prospective transferee must each execute, acknowledge and deliver to the Company (as applicable) an assignment agreement substantially in the form of Exhibit D and such other instruments as the other Members may reasonably deem necessary or appropriate to confirm the transferor’s intention that the transferee become a Member in its place and the transferee’s undertaking to be bound by the terms of this Agreement and to assume the obligations of the transferor under this Agreement and, to the extent the transferor is to be released from such obligations, the ECCA. The prospective transferee shall make the representations and warranties and be bound by the covenants in Sections 3.11 and 3.12 as of the date of such Transfer; provided that, unless the transferee becomes the Managing Member the covenants in Sections 3.12(b), (c), (d), (g) and (h) shall not apply;

(c)    The Transfer will not violate any securities laws or any other applicable federal or state laws rules or regulations, or the order of any court or administrative body having jurisdiction over the Company or the Project Company or any of their assets or any material contract, lease, security, indenture or agreement binding on the Company or the Project Company or their respective assets;

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(d)    The Transfer will not result in a termination of the Company or the Project Company under Section 708(b)(1)(B) of the Code, unless the transferor has indemnified the other Members against any adverse tax effects in a manner reasonably acceptable to the other Members;

(e)    The Transfer will not cause the Company or Project Company to become a Disqualified Person or cause the Systems, or any portion thereof, to be classified as “tax-exempt use property” for purposes of Section 168 of the Code;

(f)    The Transfer will not cause there to be more than two Class A Members;

(g)    The transferring Member and the prospective transferee shall pay any out-of-pocket expenses of the Company, the Project Company or the other Members resulting from the Transfer;

(h)    The transferring Member and the prospective transferee shall have all permits and consents required for such Transfer;

(i)    The Transfer will not affect the status of the Project Company as an Exempt Wholesale Generator nor will it cause a disqualification under the REPS Act or any of the Tariffs;

(j)    The Transfer will not require the Company to register as an investment company under the 1940 Investment Company Act;

(k)    If the Transfer would occur prior to the end of the Recapture Period with respect to any of the Systems, the Transfer will not be effective unless the transferring Member delivers a written opinion of a nationally-recognized law firm, in form and substance satisfactory to the non-transferring Members, that the Transfer will not cause a Class A Recapture Event;

(l)    Unless the Administrative Services Agreement will remain in place with the same Administrator thereunder following the Transfer (in which case the conditions in this clause (1) will be deemed to be met), the transferee must be recognized nationally as having substantial experience managing and operating fuel cell facilities or a Person that has engaged such an experienced and recognized company to manage the Company at substantially the same cost as under the Administrative Services Agreement, unless otherwise approved by Class B Members owning the majority of Class B Membership Interests;

(m)    The Transfer must not cause any adverse tax consequences to the Company, any other Member or the Project Company, in the written opinion of tax counsel reasonably acceptable to the Class B Member;

(n)    Prior to the Flip Date, the Transferee must be a Qualified Transferee and the Class B Member shall have consented to such Transfer, such consent not to be unreasonably withheld; and

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(o)    The Transfer will not cause a breach of, or a default under, the Credit Documents.

Section 9.3 Conditions to Transfers of Class B Membership Interests. Except as otherwise provided in this Article IX, all Transfers of Class B Membership Interests must satisfy the following conditions:

(a)    The transferring Member must give written notice of the proposed Transfer to each of the Members not less than 10 days prior to the effective date of the proposed Transfer;

(b)    The transferring Member and the prospective transferee must each execute, acknowledge and deliver to the Company (as applicable) an assignment agreement substantially in the form of Exhibit D and such other instruments as the Managing Member may reasonably deem necessary or appropriate to confirm the transferor’s intention that the transferee become a Member in its place and the transferee’s undertaking to be bound by the terms of this Agreement and to assume the obligations of the transferor under this Agreement and, to the extent the transferor is to be released from such obligations, the ECCA;

(c)    The Transfer will not violate any securities laws or any other applicable federal or state laws rules or regulations, or the order of any court or administrative body having jurisdiction over the Company or the Project Company or any of their assets or any material contract, lease, security, indenture or agreement binding on the Company or the Project Company or their respective assets;

(d)    The Transfer will not result in a termination of the Company or the Project Company under Section 708(b)(1)(B) of the Code, unless the transferor has indemnified the other Members against any adverse tax effects in a manner reasonably acceptable to the other Members;

(e)    The Transfer will not cause the Company or Project Company to become a Disqualified Person or cause the Portfolio, or any portion thereof, to be classified as “tax-exempt use property” for purposes of Section 168 of the Code;

(f)    The Transfer will not cause there to be more than three Class B Members; provided that, solely for purposes of making such determination in respect of this paragraph, any Class B Member and any other Class B Member that is an Affiliate of such Class B Member shall be deemed to be a single Class B Member;

(g)    The transferring Member and the prospective transferee shall pay any out-of-pocket expenses of the Company, the Project Company or the other Members resulting from the Transfer;

(h)    The transferring Member and the prospective transferee shall have all permits and consents required for such Transfer;

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(i)    The Transfer will not affect the status of any Project Company as an Exempt Wholesale Generator nor will it cause a disqualification under the REPS Act or any of the Tariffs;

(j)    The Transfer will not require the Company to register as an investment company under the 1940 Investment Company Act;

(k)    If the Transfer would occur prior to the end of the Recapture Period for any of the Systems, the Transfer will not be effective unless the transferring Member delivers a written opinion of a nationally-recognized law firm, in form and substance satisfactory to the non-transferring Members, that the Transfer will not cause a Class B Recapture Event;

(l)    Transferee shall be reasonably acceptable to the Class A Members.

(m)    Such Transfer by a Class B Member, other than a Transfer to an Affiliate of the transferor or a Transfer to an existing Class B Member, shall not be a Transfer of less than an amount equal to the lesser of (i) 30% of the total Class B Membership Interests or (ii) such Member’s entire Class B Membership Interest;

(n)    For Transfers prior to the earlier of (i) the contribution by the Class B Member to the Company of 100% of its Equity Commitment Amount or (ii) the Subsequent Funding Termination Date, the transferee must carry an investment grade senior unsecured rating of at least A3 / A- or the Credit Suisse Guaranty must be in full force and effect;

(o)    Except for transfers described in Section 9.5 below, the transferee of a Class B Membership Interest must be a passive institutional investor or (i) is not a competitor of Clean Technologies or its affiliates, (ii) is not in litigation or other material dispute with the Clean Technologies, and (iii) makes substantially the same representations, warranties, and covenants as Class B Members made pursuant to this Agreement;

(p)    Transfer must not cause any adverse tax consequences to the Company, any other Member or the Project Company, in the written opinion of tax counsel reasonably acceptable to the Managing Member;

(q)    The costs of such Transfer must be borne by the transferee; and

(r)    The Transfer will not cause a breach of, or a default under, the Credit Documents.

Section 9.4 Conditions to Changes of Control of Upstream Entities. With respect to any Transfer that is a Change of Control of a Member:

(a)    The Transfer will not violate any securities laws or any other applicable federal or state laws rules or regulations, or the order of any court or administrative body having jurisdiction over the Company or the Project Company or any of their assets or any material contract, lease, security, indenture or agreement binding on the Company or the Project Company or their respective assets;

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(b)    The Transfer will not result in a termination of the Company or the Project Company under Section 708(b)(1)(B) of the Code, unless the transferor has indemnified the other Members against any adverse tax effects in the manner set forth in Section 9.4(h);

(c)    The Transfer will not cause the Company or Project Company to become a Disqualified Person or cause the Portfolio, or any portion thereof, to be classified as “tax-exempt use property” for purposes of Section 168 of the Code;

(d)    The transferring Person and the prospective transferee shall pay any out-of-pocket expenses of the Company, the Project Company or the other Members resulting from the Transfer;

(e)    The transferring entity and the prospective transferee shall have all permits and consents required for such Transfer as they apply to the Company and the Project Company;

(f)    The Transfer will not affect the status of any Project Company as an Exempt Wholesale Generator nor will it cause a disqualification under the REPS Act or any of the Tariffs;

(g)    The Transfer will not require the Company to register as an investment company under the 1940 Investment Company Act; and

(h)    With respect to any Transfer that would result in the termination of the Company or the Project Company as set forth in Section 9.4(b), the transferring Member shall indemnify the Company and the other Members against any adverse effects in a manner reasonably acceptable to the other Members. In connection with such Transfer, the transferring Member shall (i) deliver to each non-transferring Member a guaranty (A) from an entity acceptable to the non-transferring Members having the Required Ratings on the effective date of such Transfer, (B) in an amount not less than the aggregate estimated adverse tax effects with respect to such Transfer and (C) in form and substance satisfactory to the non-transferring Members, or (ii) post collateral in the form of (A) cash, (B) a letter of credit from an Acceptable Credit Party, or (C) liquid securities acceptable to the non-transferring Members, in an amount not less than the aggregate estimated adverse tax effects with respect to such Transfer and in each case in form and substance acceptable to the non-transferring Members.

Section 9.5 Certain Permitted Transfers. Except as otherwise provided in Section 9.1 and this Section 9.5, notwithstanding the provisions set forth in Sections 9.2 and 9.3, the following Transfers (the “Permitted Transfers”) may be made at any time and from time to time, without restriction and without notice to, approval of, filing with, consent by, or other action of or by, any Member or other Person:

(a)    The issuance of Class B Membership Interests to Mehetia pursuant to the ECCA;

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(b)    (i) The grant of any security interest in any Class A Membership Interest or any Class B Membership Interest pursuant to any security agreement any Class A Member or Class B Member, as applicable, may enter into with lenders; provided that the requirements in Sections 9.2(a), (c), (d) and (e) shall be satisfied in respect of any such grant of a security interest in Class A Membership Interests, and Sections 9.3(a), (c), (d) and (e) shall be satisfied in respect of a grant of a security interest in a Class B Membership Interest, and (ii) any Transfer in connection with any foreclosure or other exercise of remedies in respect of any Class A Membership Interest or Class B Membership Interest subject to a security interest referred to in this Section 9.5(b)(i); provided, however, that the requirements in Sections 9.2(a), (b), (c), (d), (e), (f), (h), (i), (j), (k), (1) and (m) shall be satisfied in respect of any such Transfer of Class A Membership Interests and the requirements in Sections 9.3(a), (b), (c), (d), (e), (f), (h), (i), (j), (k), (1) and (m) shall be satisfied in respect of any such Transfer of Class B Membership Interests; and provided, further that the provisions of Section 9.2(f) (with respect to Class A Membership Interests) and Section 9.3(f) (with respect to Class B Membership Interests) shall not apply to any Transfer resulting from foreclosure upon, or subsequent transfer of, such Membership Interests;

(c)    The Transfer of any Membership Interest solely to an Affiliate of a Member; provided, the requirements set forth in Sections 9.2(a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (l) and (m) shall be satisfied in respect to such Transfer of Class A Membership Interests, and, in the case of a Transfer by a Class B Member, the requirements set forth in Sections 9.3, except the requirement in Section 9.3(a), which requirement shall be deemed satisfied upon a three day notice, and except the requirements in Sections 9.3(b), (g), (k), (1), (n), (p) and (q), shall be satisfied with respect to such Transfer of Class B Membership Interests (though the requirement in Section 9.3(k) must be met if the transferee is an entity other than an association taxable as a corporation for federal income tax purposes); and

(d)    Any Transfer in accordance with Section 9.7 (Purchase Option) or Section 9.8 (Sale Option); provided, however, that the requirements in Sections 9.3(b) and (c) shall be satisfied in respect of any such Transfer, and solely with respect to a Transfer pursuant to Section 9.4, Sections 9.3(c), (d), (e), (g), (i), (j) and (k), shall be satisfied in respect of any such Transfer.

Section 9.6 [Intentionally omitted].

Section 9.7 Purchase Option.

(a)    The Class A Member shall have the right, but not the obligation (the “Purchase Option”), on the eleventh anniversary of the Initial Funding Date (the “Purchase Option Date”), upon giving the Company and all other Members 60 days’ written notice, to purchase all (but not less than all) of the outstanding Class B Interests from all of the Class B Members by exercise of the Purchase Option (the “Purchase Option Exercise Notice”).

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(b)    The consideration for the Transfer of the Class B Membership Interests to the Class A Member pursuant to the Purchase Option shall be an amount (payable in United States dollars) equal to the Purchase Option Price.

(c)    If the Purchase Option is exercised, the closing of such Transfer shall occur on the Business Day that is (i) 60 days after the applicable Purchase Option Exercise Notice is given or (ii) such later date as may be required to obtain either a determination of the Purchase Option Price or any applicable consents or approvals or satisfy any reporting or waiting period under any applicable Legal Requirements.

(d)    If the Purchase Option is exercised, at the closing of the Transfer, (1) each Class A Member which has given a Purchase Option Exercise Notice shall pay (by wire transfer of immediately available United States dollars to such United States bank accounts as Class B Members may designate in a written notice to the Company and Class A Members no later than five Business Days prior to the closing date for the Transfer pursuant to the Purchase Option) an amount equal to the Purchase Option Price (determined in accordance with Section 9.7(b)), and (2) each Class B Member shall take the following actions: (i) such Class B Member shall Transfer to the applicable Class A Member all right, title and interest in and to the Class B Membership Interests, free and clear of all Encumbrances other than Permitted Encumbrances; (ii) such Class B Member shall be required to make the representations on Schedule 9 attached hereto to the applicable Class A Member and the Company; and (iii) such Class B Member shall take all such further actions and execute, acknowledge and deliver all such further documents that are necessary to effectuate the Transfer of the Class B Membership Interests contemplated by this section. Upon the closing of such Transfer, (1) all of such Class B Member’s obligations and liabilities associated with the Class B Membership Interests which are the subject of such Transfer will terminate except those obligations and liabilities accrued through the date of such closing, (2) such Class B Member shall have no further rights as a Member, and (3) all the rights, obligations and liabilities associated with the Class B Membership Interests which are the subject of such Transfer shall become the rights, obligations and liabilities of each Person acquiring such Class B Membership Interests.

Section 9.8 Sale Option.

(a)    The Class B Member shall have the right, but not the obligation (the “Sale Option”), on the tenth anniversary of the Execution Date (the “Sale Option Date”), upon giving the Company and all other Members at least 60 days’ advance written notice, to sell all (and not less than all) of its Class B Membership Interests to the Class A Member by exercise of the Sale Option (the “Sale Notice”).

(b)    The consideration for the Transfer of the Class B Membership Interests to the Class A Member pursuant to the Sale Option shall be an amount (payable in United States dollars) equal to the Sale Price.

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(c)    If the Sale Option is exercised, the closing of such Transfer shall occur on (i) the tenth anniversary of the Execution Date (or, if not a Business Day, the Business Day immediately preceding the tenth anniversary of the Execution Date) or (ii) such later date as may be required to obtain either a determination of the Sale Price or any applicable consents or approvals or satisfy any reporting or waiting period under any applicable Legal Requirements.

(d)    If the Sale Option is exercised, at the closing of the Transfer, (1) each Class A Member which has received a Sale Notice shall pay (by wire transfer of immediately available United States dollars to such United States bank accounts as a Class B Member selling its respective Class B Interests may designate in a written notice to the Company and Class A Members no later than five Business Days prior to the closing date for the Transfer pursuant to the Sale Option) an amount equal to the Sale Price (determined in accordance with Section 9.8(b)), and (2) such Class B Member shall take the following actions: (i) such Class B Member shall Transfer to the applicable Class A Member all right, title and interest in and to the Class B Membership Interests, free and clear of all Encumbrances other than Permitted Encumbrances; (ii) such Class B Member shall be required to make the representations on Schedule 9 attached hereto to the applicable Class A Member and the Company; and (iii) such Class B Member shall take all such further actions and execute, acknowledge and deliver all such further documents that are necessary to effectuate the Transfer of the Class B Membership Interests contemplated by this section. Upon the closing of such Transfer, (A) all of such Class B Member’s obligations and liabilities associated with the Class B Membership Interests which are the subject of such Transfer will terminate except those obligations and liabilities accrued through the date of such closing, (B) such Class B Member shall have no further rights as a Member, and (C) all the rights, obligations and liabilities associated with the Class B Membership Interests which are the subject of such Transfer shall become the rights, obligations and liabilities of each Person acquiring such Class B Membership Interests.

Section 9.9 Regulatory and Other Authorizations and Consents.

(a)    In connection with any Transfer pursuant to Sections 9.7 or 9.8 (the “Designated Transfers”), each Member involved shall use all commercially reasonable efforts to obtain all authorizations, consents, orders and approvals of, give all notices to and make all filings with, all Governmental Authorities and third parties that may be or become necessary for the Designated Transfers, its execution and delivery of, and the performance of its obligations under, this Agreement or other Transaction Documents in connection with any such Designated Transfer and will cooperate fully with the other Members in promptly seeking to obtain all such authorizations, consents, orders and approvals, giving such notices and making such filings, including the provision to such third parties and Governmental Authorities of such financial statements and other publicly available financial information with respect to such Member or, if applicable, such Member’s guarantor, as the case may be, as such third parties or Governmental Authorities may reasonably request; provided, however, that no Member involved shall have any obligation to pay any consideration to obtain any such consents. In addition, the Members involved shall keep each other reasonably apprised of their efforts to obtain necessary consents and waivers from third parties or Governmental Authorities and the responses of such third parties and Governmental Authorities to requests to provide such consents and waivers.

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(b)    Without limiting the generality of Section 9.9(a), each Member shall make such filings as may be required under the HSR Act, the Federal Power Act, or any state Legal Requirements relating to the ownership or control of the Systems.

(i)    To the extent required by the HSR Act, each Member involved in a Designated Transfer shall (i) file or cause to be filed, as promptly as practicable but in no event later than the fifteenth Business Day after the delivery of any Purchase Option Exercise Notice, as applicable, with the Federal Trade Commission and the United States Department of Justice, all reports and other documents required to be filed by such Member under the HSR Act concerning the Designated Transfer and (ii) promptly comply with or cause to be complied with any requests by the Federal Trade Commission or the United States Department of Justice for additional information concerning the Designated Transfer, in each case so that the initial thirty day waiting period applicable under the HSR Act shall expire as soon as practicable. Each Member involved in a Designated Transfer agrees to request, and to cooperate with the other Members involved in requesting, early termination of any applicable waiting period under the HSR Act. Each of the Class A Members involved in a Designated Transfer shall be responsible for the filing fees incurred by all Members involved in the Designated Transfer in connection with the initial filings required by the HSR Act in connection with the Designated Transfers (pro rata in proportion to the percentage of Class B Membership Interests each such Class A Member will acquire in connection with the Designated Transfer). Except as expressly provided in the prior sentence with respect to filing fees, each Member involved in a Designated Transfer will be responsible for its own fees and expenses, including any fees and expenses of counsel, accountants or other professional advisors.

(ii)    To the extent required by the Federal Power Act, each Member involved in a Designated Transfer shall (i) file or cause to be filed, as promptly as practicable but in no event later than the twenty-first Business Day after the delivery of any Purchase Option Exercise Notice, as applicable, an application for approval of the Designated Transfer pursuant to Section 203 of the Federal Power Act, and (ii) as promptly as practicable but in no event later than the tenth Business Day after the delivery of any Purchase Option Exercise Notice, as applicable, provide to the Company and the Managing Member information needed for the Company to file an application for approval of the Designated Transfer under Section 203 of the Federal Power Act.

Section 9.10 Admission. Any transferee of all or part of any Membership Interests pursuant to a Transfer made in accordance with this Agreement shall be admitted to the Company as a substitute Member upon its execution of a counterpart to this Agreement.

Section 9.11 Security Interest Consent. If any Member grants a security interest in any Membership Interest, upon request by such Member, each other Member will execute and deliver to any person holding such security interest (for itself and/or for the benefit of other lenders) such acknowledgments, consents or other instruments as such person may reasonably request to confirm that such grant and any foreclosure or other exercise of remedies in respect of such Membership constitutes a Permitted Transfer under this Agreement.

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Section 9.12 Indemnification; Other Rights of the Members.

(a)    Beginning on the Effective Date (or, with respect to any additional Member that becomes a Member after the Effective Date, on the first date on which such Person becomes a Member hereunder) and continuing thereafter, Clean Technologies agrees to indemnify, defend and hold harmless the Investor Indemnified Parties from and against any and all Investor Indemnified Costs; provided, however, except with respect to Investor Indemnified Costs (t) resulting from fraud or willful misconduct, (u) resulting from failure to pay any amount due to Investor Indemnified Parties under the Transaction Documents, (v) resulting from a Third Party Claim, (w) resulting from the failure to enforce a Material Contract with an Affiliate of the Indemnifying Party, (x) resulting from Project Company (or any of the Systems) not qualifying for (or becoming disqualified under) the REPS Act or the Tariffs as a result of any act or omission by Bloom or any Affiliate of Bloom (including, without limitation, (i) Bloom failing to achieve commercial operation (as defined in the QFCP-RC Tariff) of 5 MW of Systems by March 31, 2013 (unless such date has been extended in accordance with the QFCP-RC Tariff), (ii) Bloom failing to achieve commercial operation (as defined in the QFCP-RC Tariff) of 30 MW of Systems, of which at least 20 MW of Systems were actually manufactured by Bloom in the State of Delaware by September 30, 2014 (unless such date has been extended in accordance with the QFCP-RC Tariff), (iii) Bloom failing to be manufacturing fuel cells capable of being powered by renewable fuels from a permanent manufacturing facility located in the State of Delaware as of the date of Commencement of Operations (as defined in the MESPA) of the full nameplate capacity of the Portfolio, or (iv) any of the acts or omissions set forth in Section 4.3 of the MESPA), (y) resulting from Bloom failing to be in compliance with the Letter Agreement (including, if so required by the State of Delaware, posting the security referred to in the Letter Agreement upon or prior to the Commencement of Operation of the first System) or (z) resulting from any surcharges pursuant to the Tariffs being deemed a tax under Delaware law, in no event will Clean Technologies’ aggregate obligation (including any prior indemnity payments by Clean Technologies under this Agreement or under the ECCA) to indemnify the Investor Indemnified Parties hereunder exceed one hundred percent (100%) of the Funding Payments of the Class B Member made to date.

(b)    Beginning on the Effective Date (or, with respect to any additional Member that becomes a Member after the Effective Date, on the first date on which such Person becomes a Member hereunder) and continuing thereafter, the Class B Member agrees to indemnify, defend and hold harmless the Clean Technologies Indemnified Parties from and against any and all Clean Technologies Indemnified Costs; provided, however, except with respect to Clean Technologies Indemnified Costs (w) resulting from fraud or willful misconduct, (x) resulting from failure to pay any amount due to Clean Technologies Indemnified Parties under the Transaction Documents, (y) resulting from a Third Party Claim or (z) resulting from the failure to enforce a Material Contract with an Affiliate of the Indemnifying Party, in no event will the Class B Member’s aggregate obligation (including any prior indemnity payments by the

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Class B Member under this Agreement or under the ECCA) to indemnify the Clean Technologies Indemnified Parties hereunder exceed one hundred percent (100%) of the Funding Payments of the Class B Member made to date.

(c)    Other than with respect to Indemnified Costs resulting from Third Party Claims, no claim for indemnification may be made with respect to any Indemnified Costs (other than fraud, willful misconduct, or failure to pay any amount due to Indemnified Parties under any Transaction Document) until the aggregate amount of such costs for which indemnification is (or previously has been) sought by the Indemnified Party under all Transaction Documents exceeds $175,000 and once such threshold amount of claims has been reached, the relevant Indemnified Party and its Affiliates shall have the right to be indemnified only to the extent the amount of Indemnified Costs claimed exceed such threshold amount. Claims for indemnification under this Company LLC Agreement and the other Transaction Documents shall not be duplicative of one another and shall not allow for duplicative recoveries.

Section 9.13 Indemnification of Members by the Company. Each Member and any Affiliate of a Member, and each of their respective officers, directors, shareholders, employees and agents (each, a “Member Party”) shall be exculpated from liability for and defended, indemnified and held harmless by the Company from all Claims arising out of the performance by such Member Party of its obligations under this Company LLC Agreement so long as such Member Party acted in good faith and in a manner reasonably believed by it to be in the best interest of or not opposed to the interest of the Company; provided, however, that no Member Party shall be shall be exculpated from liability for and defended, indemnified and held harmless or entitled to the payment of an indemnity claim under this Article IX.

Section 9.14 Direct Claims. In any case in which an Indemnified Party seeks indemnification under Section 9.12 that is not subject to Section 9.15 because no Third Party Claim is involved, the Indemnified Party shall promptly notify the Indemnifying Party in writing of any amounts that the Indemnified Party claims are subject to indemnification under the terms of this Article IX. The failure of the Indemnified Party to exercise promptness in such notification shall not amount to a waiver of such claim, except to the extent the resulting delay materially and adversely prejudices the position of the Indemnifying Party with respect to such claim.

Section 9.15 Third Party Claims. An Indemnified Party shall give written notice to the Indemnifying Party within 10 days after it has actual knowledge of commencement or assertion of any Third Party Claim in respect of which the Indemnified Party may seek indemnification under Section 9.12. Such notice shall state the nature and basis of such Third Party Claim and the events and the amounts thereof to the extent known. Any failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability that the Indemnifying Party may have to the Indemnified Party under this Article IX, except to the extent the failure to give such notice materially and adversely prejudices the Indemnifying Party. In case any such action, proceeding or claim is brought against an Indemnified Party, so long as it has acknowledged in writing to the Indemnified Party that it is liable for such Third Party Claim

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pursuant to this Section 9.15, the Indemnifying Party shall be entitled to participate in and, unless in the reasonable judgment of the Indemnified Party a conflict of interests between it and the Indemnifying Party may exist in respect of such Third Party Claim or such Third Party Claim entails a material risk of criminal penalties or civil fines or non monetary sanctions being imposed on the Indemnified Party or a risk of materially adversely affecting the Indemnified Party’s business (a “Third Party Penalty Claim”), to assume the defense thereof, with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party, and after notice from the Indemnifying Party to the Indemnified Party of its election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnified Party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof other than reasonable costs of investigation or defending such portion of such Third Party Penalty Claim; provided nothing contained herein shall permit Clean Technologies to control or participate in any Tax contest or dispute involving a Class B Member or any Affiliate of a Class B Member, or permit a Class B Member to control or participate in any Tax contest or dispute involving any Affiliate of Clean Technologies other than the Company and the Project Company; and, provided, further, the Parties agree that the handling of any Tax contests involving the Company will be governed by Section 7.7. In the event that (i) the Indemnifying Party advises an Indemnified Party that the Indemnifying Party will not contest a claim for indemnification hereunder, (ii) the Indemnifying Party fails, within 30 days of receipt of any indemnification notice to notify, in writing, such Indemnified Party of its election, to defend, settle or compromise, at its sole cost and expense, any such Third Party Claim (or discontinues its defense at any time after it commences such defense) or (iii) in the reasonable judgment of the Indemnified Party, a conflict of interests between it and the Indemnifying Party exists in respect of such Third Party Claim or the action or claim is a Third Party Penalty Claim, then the Indemnified Party may, at its option, defend, settle or otherwise compromise or pay such action or claim or Third Party Claim in each case, at the sole cost and expense of the Indemnifying Party. In any event, unless and until the Indemnifying Party elects in writing to assume and does so assume the defense of any such claim, proceeding or action, the Indemnifying Party shall be liable for the Indemnified Party’s reasonable costs and expenses arising out of the defense, settlement or compromise of any such action, claim or proceeding. The Indemnified Party shall cooperate to the extent commercially reasonable with the Indemnifying Party in connection with any negotiation or defense of any such action or claim by the Indemnifying Party. The Indemnifying Party shall keep the Indemnified Party fully apprised at all times as to the status of the defense or any settlement negotiations with respect thereto. If the Indemnifying Party elects to defend any such action or claim, then the Indemnified Party shall be entitled to participate in such defense with counsel of its choice at its sole cost and expense unless otherwise specified herein; provided that any such participation of the Indemnified Party shall be at the Indemnifying Party’s sole cost and expense to the extent such participation relates to a Third Party Penalty Claim. If the Indemnifying Party does not assume such defense, the Indemnified Party shall keep the Indemnifying Party apprised at all times as to the status of the defense; provided, however, that the failure to keep the Indemnifying Party so informed shall not affect the obligations of the Indemnifying Party hereunder. The Indemnifying Party shall not be liable for any settlement of any action, claim or proceeding effected without its written consent; provided, however, that the Indemnifying Party shall not unreasonably withhold, delay or condition any

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such consent. Notwithstanding anything in this Section 9.15 to the contrary, the Indemnifying Party shall not, without the Indemnified Party’s prior written consent, (i) settle or compromise any claim or consent to entry of judgment in respect thereof which involves any condition other than payment of money by the Indemnified Party, (ii) settle or compromise any claim or consent to entry of judgment in respect thereof without first demonstrating to Indemnified Party the ability to pay such claim or judgment, or (iii) settle or compromise any claim or consent to entry of judgment in respect thereof that does not include, as an unconditional term thereof, the giving by the claimant or the plaintiff to the Indemnified Party, a full and complete release from all liability in respect of such claim.

Section 9.16 No Duplication. Any liability for indemnification under this Article IX shall be determined without duplication of recovery. Without limiting the generality of the prior sentence, if a statement of facts, condition or event constitutes a breach of more than one representation, warranty, covenant or agreement which is subject to the indemnification obligation in Section 9.12, only one recovery of Indemnified Costs per Indemnified Party shall be allowed.

Section 9.17 Sole Remedy. Except in the case of fraud, willful misconduct or failure to pay and except for claims brought under Article 6 of the ECCA, the enforcement of the claims of the Parties under Section 6.6, Section 6.7, Section 6.8, Section 6.9 or Article IX of this Agreement are the sole and exclusive remedies that a Party shall have under this Agreement and the other Transaction Documents for the recovery of Indemnified Costs; provided, however, that notwithstanding anything to the contrary in this Agreement, each Party hereby reserves all equitable remedies.

Section 9.18 Survival. All representations, warranties, covenants and obligations made or undertaken by a Party in this Agreement or in any other Transaction Document are material, have been relied upon by the other Parties and, except as otherwise provided in Section 9.18 or elsewhere in this Agreement (or, with respect to any representations, warranties, covenants and obligations made or undertaken in any other Transaction Document, in such Transaction Document), shall continue in full force and effect, together with the associated rights of indemnification, indefinitely.

Section 9.19 Final Date for Assertion of Indemnity Claims. All claims by an Indemnified Party for indemnification pursuant to this Article IX resulting from breaches of representations or warranties in Article III of this Agreement shall be forever barred unless the other Party is notified within eighteen (18) months after the date such representation or warranty is made; provided that if written notice of a claim for indemnification has been given by an Indemnified Party on or prior to the last day of the respective foregoing period, then the obligation of the other Party to indemnify such Indemnified Party pursuant to this Article IX shall survive with respect to such claim until such claim is finally resolved.

Section 9.20 Reasonable Steps to Mitigate. Each Indemnified Party will take, at the Indemnifying Party’s own reasonable cost and expense, all reasonable commercial steps identified by Indemnifying Party to the Indemnified Parties to mitigate all Indemnified Costs

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(other than any such Indemnified Costs that are Taxes), which steps may include availing itself of any defenses, limitations, rights of contribution, claims against third Persons and other rights at law or equity. The Indemnified Parties will provide such evidence and documentation of the nature and extent of the Indemnified Costs as may be reasonably requested by the Indemnifying Party.

Section 9.21 Net of Insurance Benefits. All Indemnified Costs shall be net of insurance recoveries from insurance policies of the Project Company (including under the existing title policies) to the extent that any proceeds of such policies, less any costs, expenses or premiums incurred by the Project Company in connection therewith, are distributed by the Project Company to the Company and are in turn distributed by the Company to the Indemnified Party; provided, however, such amount shall account for any costs or expenses incurred by the Indemnified Party in connection with obtaining insurance proceeds with respect to any breach or nonperformance hereunder.

Section 9.22 No Consequential Damages. Indemnified Costs shall not include, and an Indemnifying Party shall have no obligation to indemnify any Indemnified Party for or in respect of, any punitive, consequential or exemplary damages of any nature including but not limited to damages for lost profits or revenues or the loss or use of such profits or revenue, loss by reason of plant shutdown or inability to operate at rated capacity, increased operating expenses of plant or equipment, increased costs of purchasing or providing equipment, materials, labor, services, costs of replacement, power or capital, debt service fees or penalties, inventory or use charges, damages to reputation, damages for lost opportunities, or claims of the Project Company’s customers, members or affiliates, regardless of whether said claim is based upon contract, warranty, tort (including negligence and strict liability) or other theory of law unless payable by such Indemnified Party as part of a Third Party Claim; provided, however, that the lost profits or revenues (and the loss or use thereof) language set forth in this Section 9.22 shall not be interpreted to exclude from Indemnified Costs any damages, losses, claims, liabilities, demands charges, suits, Taxes, penalties, costs or expenses that would otherwise be included within the definition of Indemnified Costs because they result from a reduction in the profits of the Project Company, the Company, or both.

Section 9.23 Payment of Indemnification Claims. All claims for indemnification shall be paid by Indemnifying Party in immediately available funds in U.S. dollars. Any undisputed portion of an indemnification claim shall be paid promptly by the Indemnifying Party to the Indemnified Parties involved. An Indemnifying Party may dispute any portion of an indemnification claim, provided, however, that such disputed indemnification claim shall be paid promptly by the Indemnifying Party to the Indemnified Party together with interest at a market rate upon the final determination of the payable amount of the claim (if any) by a court of competent jurisdiction.

Section 9.24 Repayment; Subrogation. If the amount of any Indemnified Costs, at any time after the making of an indemnity payment in respect thereof, is reduced by recovery, settlement or otherwise under any insurance coverage (excluding any proceeds from self

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insurance or flow through insurance policies) or under any claim, recovery, settlement or payment by or against any other entity, the amount of such reduction, less any costs, expenses or premiums incurred in connection therewith, must promptly be repaid by the Indemnified Party to the Indemnifying Party net of any Taxes imposed upon the Indemnified Party in respect of such amounts, but taking into account any Tax benefit the Indemnified Party receives as a result of such repayment. Upon making any indemnity payment (other than any indemnity payment relating to Taxes), the Indemnifying Party will, to the extent of such indemnity payment, be subrogated to all rights of the Indemnified Party against any third party, except third parties that provide insurance coverage to the Indemnified Party or its Affiliates, in respect of the Indemnified Costs to which the indemnity payment relates. Without limiting the generality or effect of any other provision hereof, each such Indemnified Party and the Indemnifying Party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rights, and otherwise cooperate in the prosecution of such claims at the direction of the Indemnifying Party. Nothing in this Section 9.24 will be construed to require any Party to obtain or maintain any insurance coverage.

ARTICLE X

DISSOLUTION AND WINDING-UP

Section 10.1 Events of Dissolution. The Company shall be dissolved and its affairs shall be wound up upon the first to occur of any of the following:

(a)    the written consent of the Members representing a Class Majority Vote to dissolve and terminate the Company after the final Recapture Period;

(b)    the entry of a decree of judicial dissolution under Section 18-802 of the Act;

(c)    the occurrence of the LLC Agreement Termination Date;

(d)    the disposition of all or substantially all of the Company’s business and assets after the final Recapture Period;

(e)    the issuance of a final, nonappealable court order which makes it unlawful for the business of the Company to be carried on; or

(f) at any time there are no members of the Company unless the business of the Company is continued in accordance with the Act.

Section 10.2 Distribution of Assets.

(a)    The Members hereby appoint the Managing Member to act as the liquidator upon the occurrence of one of the events in Section 10.1. Upon the occurrence of such an event, the liquidator will proceed diligently to wind up the affairs of the Company and make final distributions as provided herein and in the Act. The liquidator may sell, and will use

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commercially reasonable efforts to obtain the best possible price for, any or all Company property, including to Members. In no event, without the approval of Members by a Class Majority Vote, will a sale to a Member be for an amount that is less than fair market value (determined by the Appraisal Method if the Members (by a Class Majority Vote) are unable to agree on the fair market value).

(b)    The liquidator will first pay, satisfy or discharge from Company funds all of the debts, liabilities and obligations of the Company (including all expenses incurred in liquidation) or otherwise make adequate provision for payment and discharge thereof (including the establishment of a cash escrow fund for contingent, conditional or unmatured liabilities in such amount and for such term as the liquidator may reasonably determine) in the order of priority as provided by law.

(c)    All assets of the Company will be treated as if sold, and the gain treated as realized on those assets will be allocated first to Members with deficits in their Capital Accounts (in the ratio of the deficits if more than one Member’s Capital Account is in deficit) in order to eliminate the deficits.

(d)    Remaining gain or loss will be allocated next to the Class B Member in an effort to set the Capital Account of the Class B Member at a level that would allow it to reach the Target IRR out of the liquidating distributions if the Target IRR has not already been achieved, and thereafter in the ratio in Section 5.1 (a)(ii), provided that no allocation will increase a deficit in the Capital Account of a Class B Member.

(e)    After the allocations in clauses (c) and (d) have been made, then cash and property will be distributed pro rata to the Members in the amount of the positive balances in their Capital Accounts by the end of the taxable year during which the liquidation occurs (or, if later, within 90 days after the date of such liquidation).

(f)    The distribution of cash and property to a Member under this Section 10.2 constitutes a complete return to the Member of its Capital Contributions and a complete distribution to the Member on its Membership Interests in the Company of all the Company’s property and constitutes a compromise to which all Members have consented within the meaning of Section 18-502(b) of the Act. If the assets of the Company remaining after the payment or discharge of the debts and liabilities of the Company are insufficient to return Capital Contributions of each Member, such Member shall have no recourse against the Company or any other Member.

Section 10.3 In-Kind Distributions. There shall be no distribution of assets of the Company in kind without a prior Class Majority Vote.

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Section 10.4 Certificate of Cancellation.

(a)    When all debts, liabilities and obligations have been paid and discharged or adequate provisions have been made therefor and all of the remaining property and assets have been distributed to the Members, a certificate of cancellation shall be executed and filed by the liquidator with the Secretary of State of the State of Delaware, which certificate shall set forth the information required by Section 18-203 of the Act.

(b)    Upon the filing of the certificate of cancellation, the existence of the Company shall cease.

(c)    All costs and expenses in fulfilling the obligations under this Section 10.4 shall be borne by the Company.

ARTICLE XI

MISCELLANEOUS

Section 11.1 Notices. Unless otherwise provided herein, any offer, acceptance, election, approval, consent, certification, request, waiver, notice or other communication required or permitted to be given hereunder (collectively referred to as a “Notice”), shall be in writing and delivered (a) in person, (b) by registered or certified mail with postage prepaid and return receipt requested, (c) by recognized overnight courier service with charges prepaid or (d) by facsimile transmission, directed to the intended recipient at the address of such Member on Schedule 4.2(d) or at such other address as any Member hereafter may designate to the others in accordance with a Notice under this Section 11.1. A Notice or other communication will be deemed delivered on the earliest to occur of (i) its actual receipt when delivered in person, (ii) the fifth Business Day following its deposit in registered or certified mail, with postage prepaid, and return receipt requested, (iii) the second Business Day following its deposit with a recognized overnight courier service or (iv) the date of receipt of a facsimile or, if such date of receipt is not a Business Day, the next Business Day following such date of receipt, provided the sender can and does provide evidence of successful transmission. Any Notice or other communication received on a day that is not a Business Day or later than 5:00 p.m. on a Business Day shall be deemed to be received on the next Business Day.

Section 11.2 Amendment. Except for an amendment of Schedule 4.2(d), an amendment of Annex II to reflect the issuance of additional Class B Membership Interests or a Transfer of Class B Membership Interests, or an amendment in connection with the admission of a new Member, in each case in accordance with the terms of this Agreement, this Agreement may be changed, modified or amended only by an instrument in writing duly executed by all Members.

Section 11.3 Partition. Each of the Members hereby irrevocably waives, to the extent it may lawfully do so, any right that such Member may have to maintain any action for partition with respect to the Company property.

Section 11.4 Waivers and Modifications. Any waiver or consent, express, implied or deemed, to or of any breach or default by any Person in the performance by that Person of its obligations with respect to the Company or any action inconsistent with this Agreement is not a consent or waiver to or of any other breach or default in the performance by

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that Person of the same or any other obligations of that Person with respect to the Company or any other such action. Failure on the part of a Person to insist in any one or more instances upon strict performance of any provisions of this Agreement, to take advantage of any of its rights hereunder, or to declare any Person in default with respect to the Company, irrespective of how long that failure continues, does not constitute a waiver by that Person of its rights with respect to that Person or its rights with respect to that default until the applicable statute of limitations period has lapsed. All waivers and consents hereunder shall be in writing duly executed by all Members affected by such waiver or consent and shall be delivered to the other Members in the manner described in Section 11.1.

Section 11.5 Severability. Except as otherwise provided in the succeeding sentence, every term and provision of this Agreement is intended to be severable, and if any term or provision of this Agreement is illegal or invalid for any reason whatsoever, such illegality or invalidity shall not affect the legality or validity of the remainder of this Agreement. The preceding sentence shall be of no force or effect if the consequence of enforcing the remainder of this Agreement without such illegal or invalid terms or provision would be to cause any Party to lose the benefit of its economic bargain.

Section 11.6 Successors; No Third-Party Beneficiaries. This Agreement is binding on and inures to the benefit of the Members and their respective heirs, legal representatives, successors and permitted assigns. Nothing in this Agreement shall provide any benefit to any third party or entitle any third party to any claim, cause of action, remedy or right of any kind, it being the intent of the Members that this Agreement shall not be construed as a third-party beneficiary contract. To the full extent permitted by law, no creditor or other third party having dealings with the Company shall have the right to pursue any other right or remedy hereunder or at law or in equity, it being understood and agreed that the provisions of this Agreement shall be solely for the benefit of, and may be enforced solely by, the parties hereto and their respective successors and permitted assigns. None of the rights of the Members herein set forth to make Capital Contributions or loans to the Company shall be deemed an asset of the Company for any purpose by any creditor or other third party, nor may such rights or obligations be sold, transferred or assigned by the Company or pledged or encumbered by the Company to secure any debt or other obligation of the Company or of any of the Members.

Section 11.7 Entire Agreement. This Agreement, including the Schedules attached hereto or incorporated herein by reference, constitutes the entire agreement of the Members with respect to the matters covered herein. This Agreement supersedes all prior agreements and oral understandings among the parties hereto with respect to such matters, including the 2012 Operating Agreement.

Section 11.8 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, excluding any conflict of laws rule or principle that might refer the governance or construction of this Agreement to the law of another jurisdiction.

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Section 11.9 Further Assurances. In connection with this Agreement and the transactions contemplated hereby, each Member shall execute and deliver any additional documents and instruments and perform any additional acts that may be reasonably required or useful to carry out the intent and purpose of this Agreement and as are not inconsistent with the terms hereof.

Section 11.10 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original but all of which together will constitute one instrument, binding upon all parties hereto, notwithstanding that all of such parties may not have executed the same counterpart.

Section 11.11 Dispute Resolution.

(a)    Except as provided in Section 11.11(b), in the event a dispute, controversy or claim arises hereunder, the aggrieved party will promptly provide written notification of the dispute to the other party within 10 days after such dispute arises. A meeting will be held promptly between the parties, attended by representatives of the parties with decision-making authority regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute. If the parties are not successful in resolving a dispute within 21 days, the parties will thereafter be entitled to pursue all such remedies as may be available to them; provided that the parties hereby irrevocably submit to the exclusive jurisdiction of any state or federal court in New York county, New York or any state of federal court in the State of Delaware with respect to any action or proceeding arising out of or relating to this Agreement. For the avoidance of doubt, no Member waives its right to maintain a legal action or proceeding in the courts of the State of Delaware with respect to matters relating to the organization or internal affairs of the Company.

(b)    If any Class B Member disputes the determination that the Flip Date has occurred (including based on any item or procedure or calculation that affects such determination contained in any notice or report delivered by the Administrator to such Class B Member), such Class B Member shall notify the Administrator and other Members not more than 20 days after such Class B Member has received written notice from the Administrator or the Managing Member that the Flip Date was determined to have occurred. In such event, the Members and the Administrator shall consider the issues raised or in dispute and discuss such issues with each other and attempt to reach a mutually satisfactory agreement. If notice of dispute is not given by any Class B Member within such period, the determination that the Flip Date has occurred, and the items, procedures and calculations described above relating thereto, will be final and binding on the Members. If the dispute as to the Administrator’s calculations is not promptly resolved within ten Business Days of such notification of the dispute, the Class B Member and the Administrator shall each promptly present their interpretations to an Independent Accounting Firm, and shall instruct the Independent Accounting Firm to determine the correct amount of the calculations in dispute (if applicable, in accordance with the methodology in Sections 6.5 or 7.1) and to resolve the dispute promptly, but in no event more than twenty Business Days after having the dispute submitted to it. The Independent Accounting Firm will make a determination as to each of the items in dispute, which must be (i) in writing, (ii) furnished to each Member and

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the Administrator and (iii) made in accordance with this Agreement, and which determination, absent manifest error, will be conclusive and binding on all Members, taking into account Sections 6.5(d) and (e). Each Member shall use reasonable efforts to cause the Independent Accounting Firm to render its decision as soon as reasonably practicable, including by promptly complying with all reasonable requests by the Independent Accounting Firm for information, books, records and similar items. In the event the Independent Accounting Firm determines that any of the calculations in dispute was incorrect in any material respect, the fees and expenses of the Independent Accounting Firm shall be borne by Class A Members (pro rata in proportion to their Percentage Interests). In all other cases the fees and expenses of the Independent Accounting Firm shall be borne by the Class B Member disputing any of the calculations (if more than one, pro rata in proportion to their Percentage Interests).

Section 11.12 Confidentiality.

(a) The Members (other than Clean Technologies) shall, and shall cause their Affiliates and their respective stockholders, members, subsidiaries and Representatives to, hold confidential all information they may have or obtain concerning Clean Technologies, Bloom, the Company and their respective assets, business, operations or prospects or this Agreement (the “Confidential Information”); provided, however, such Confidential Information shall not include information that (i) becomes generally available to the public other than as a result of a disclosure by a Member or any of its Representatives, (ii) becomes available to a Member or any of its Representatives on a nonconfidential basis prior to its disclosure by the Company or its Representatives, (iii) is required or requested to be disclosed by a Member or any of its Affiliates or their respective stockholders, members, subsidiaries or Representatives as a result of any applicable Legal Requirement or rule or regulation of any stock exchange, the Financial Industry Regulatory Authority, Inc. or other regulatory authority or self-regulatory authority having jurisdiction over such Member, (iv) is required or requested by the IRS in connection with the Systems or a Grant, including in connection with a request for any private letter ruling, any determination letter or any audit, or (v) is independently developed by a Member or any of its Representatives; provided that with respect to clauses (iii) and (iv), if such Confidential Information remains or is reasonably believed to remain generally unavailable to the public, such information will remain Confidential Information in all other respects and for all other purposes. If such party becomes compelled by legal or administrative process to disclose any Confidential Information, such party will provide the other Members with prompt Notice so that the other Members may seek a protective order or other appropriate remedy or waive compliance with the non-disclosure provisions of this Section 11.12(a) with respect to the information required to be disclosed. If such protective order or other remedy is not obtained, or such other Members waive compliance with the non-disclosure provisions of this Section 11.12(a) with respect to the information required to be disclosed, the first party will furnish only that portion of such information that it is advised, by opinion of counsel, is legally required to be furnished and will exercise reasonable efforts, at the other Members’ expense, to obtain reliable assurance that confidential treatment will be accorded such information, including, in the case of disclosures to the IRS described in clause (iv) above, to obtain reliable assurance that, to the maximum extent permitted by applicable Legal Requirements, such information will not be made available for public inspection pursuant to Section 6110 of the Code.

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(b)    Except to the extent necessary for the exercise of its rights and remedies and the performance of its obligations under this Agreement (including without limitation, the ownership, operation and administration of the Company and the Project Company), Clean Technologies and its Affiliates will hold confidential and not disclose directly or indirectly, any of the economic terms particular to this Agreement and the ECCA, including the amount of any Class B Member’s Capital Contribution, economic returns thereon or the identity of any Class B Member other than with respect to the disclosures of the type described in clause (a)(i) through (v) above or in clause (c) below that are permitted for the other Members and their respective Affiliates. The foregoing shall not restrict Clean Technologies (or any Affiliate) from using project data related to the Systems in connection with the development of other fuel cells by Clean Technologies (or any Affiliate).

(c)    Nothing in Section 11.12(a) and (b) shall be construed as prohibiting a party hereunder from using such Confidential Information in connection with (i) any claim against another Member, the Managing Member or the Administrator hereunder, (ii) any exercise by a party hereunder of any of its rights hereunder (including without limitation, the ownership, operation and administration of the Company and the Project Company) and (iii) a disposition by a Member of all or a portion of its Membership Interest or a disposition of an equity interest in such Member or its Affiliates, provided that such potential purchaser shall have entered into a confidentiality agreement with respect to Confidential Information on customary terms used in confidentiality agreements in connection with corporate acquisitions before any such information may be disclosed. In addition, each Member hereby acknowledges that the United States federal securities laws and applicable European securities laws, among other things, prohibit certain persons in possession of material, non-public information concerning companies or securities from buying or selling securities issued by those companies or disclosing that material, non-public information to others who buy or sell those securities while in possession of that information (or disclose that information to others who buy or sell). Notwithstanding anything herein to the contrary, the Parties and their respective Representatives may disclose to any and all persons, without limitation of any kind, the U.S. federal income tax treatment and tax structure of the transaction and all materials of any kind (including opinions and other tax analyses) that are provided to such party relating to such tax treatment and tax structure, except where confidentiality is reasonably necessary to comply with securities laws. For this purpose, “tax structure” is limited to facts relevant to the U.S. federal income tax treatment of the transaction and does not include information relating to the identity of the Parties, their affiliates, agents or advisors.

Section 11.13 Joint Efforts. To the full extent permitted by applicable Legal Requirements, neither this Agreement nor any ambiguity or uncertainty herein will be construed against any of the parties hereto, whether under any rule of construction or otherwise. On the contrary, this Agreement has been prepared by the joint efforts of the respective attorneys for, and has been reviewed by, each of the parties hereto.

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Section 11.14 Specific Performance. The Members agree that irreparable damage will result if this Agreement is not performed in accordance with its terms, and the Members agree that any damages available at law for a breach of this Agreement would not be an adequate remedy. Therefore, to the full extent permitted by law, the provisions hereof and the obligations of the Members hereunder shall be enforceable in a court of equity, or other tribunal with jurisdiction, by a decree of specific performance, and appropriate injunctive relief may be applied for and granted in connection therewith. Such remedies and all other remedies provided for in this Agreement shall, however, be cumulative and not exclusive and shall be in addition to any other remedies that a Member may have under this Agreement, at law or in equity.

Section 11.15 Survival. All indemnities and reimbursement obligations made pursuant to this Agreement shall survive dissolution and liquidation of the Company until expiration of the longest applicable statute of limitations (including extensions and waivers) with respect to the matter for which a Person would be entitled to be indemnified or reimbursed, as the case may be.

Section 11.16 Effective Date. This Agreement shall have no force or effect unless and until the funding of the transactions contemplated by the ECCA to take place at the Initial Funding occurs, at which time this Agreement shall automatically and without any further action become effective simultaneously with the Initial Funding (the “Effective Date”).

Section 11.17 Recourse Only to Member. The sole recourse of the Company for performance of the obligations of any Member hereunder shall be against such Member and its assets and not against any assets or property of any present or future stockholder, partner, member, officer, employee, servant, executive, director, agent, authorized representative or Affiliate of such Member.

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IN WITNESS WHEREOF, each Member has caused this Second Amended and Restated Limited Liability Company Agreement to be signed by a duly authorized officer as of the date first above written.

CLEAN TECHNOLOGIES II, LLC
By:	/s/ William E. Brockenborough
Name:	William E. Brockenborough
Title:	President
MEHETIA INC.
By:
Name:
Title:

Second A&R LLCA of DSGH

IN WITNESS WHEREOF, each Member has caused this Second Amended and Restated Limited Liability Company Agreement to be signed by a duly authorized officer as of the date first above written.

CLEAN TECHNOLOGIES II, LLC
By:
Name:
Title:
MEHETIA INC.
By:	/s/ Peter Cross
Name:	Peter Cross
Title:	Vice President

Second A&R LLCA of DSGH

ANNEX I TO ECCA

AND COMPANY LLC AGREEMENT

DEFINITIONS

“1940 Investment Company Act” means the Investment Company Act of 1940, as amended.

“2012 Operating Agreement” is defined in the preliminary statements of the Company LLC Agreement.

“25% Progress Payment” means, for any System, the initial payment by Project Company of 25% of the purchase price for such System as contemplated by the MESPA.

“75% Progress Payment” means, for any System, the final payment by Project Company of 75% of the purchase price for such System as contemplated by the MESPA.

“Acceptable Credit Party” means a commercial bank or other financial institution which maintains an office or corresponding office in the United States, whose long-term unsecured debt is rated “A-” or higher by S&P and “A3” or higher by Moody’s and which has a tangible net worth of at least $1,000,000,000.

“Accountant’s Certificate” means the independent accountant’s certification attesting to accuracy of all costs as required pursuant to the Guidance.

“Account Withdrawal Instruction” is defined in the Depositary Agreement.

“Accounting Firm” means any of Deloitte Touche Tohmatsu, Ernst & Young, KPMG International, PricewaterhouseCoopers or any nationally-recognized Affiliate thereof, chosen by the Tax Matters Partner or otherwise reasonably approved by Class Majority Vote.

“Act” means the Delaware Limited Liability Company Act, Delaware Code Ann. 6, Sections 18-101, et seq. and any successor statute, as the same may be amended from time to time.

“Adjusted Capital Account” means the Capital Account of a Member (a) increased by the amount of potential deficit that the Member is deemed obligated to restore, calculated as described in the last sentence of Treasury Regulation Section 1.704-2(g)(1) and the last sentence of Treasury Regulation Section 1.704-2(i)(5), and (b) decreased by expected items described in Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6).

“Administrative Services Agreement” means the Administrative Services Agreement, dated as of the Initial Funding Date, among the Company, the Project Company and Bloom in the form attached as Exhibit C to the ECCA.

“Administrator” means Bloom or any replacement administrator under a Administrative Services Agreement. The Administrator is a “manager” of the Company within the meaning of the Act.

“Affiliate” means, with respect to any Person, any other Person controlling, controlled by or under common control with such first Person. For purposes of this definition, the term “control” (and correlative terms) means (1) the ownership of 50% or more of the equity interest in a Person, or (2) the power, whether by contract, equity ownership or otherwise, to direct or cause the direction of the policies or management of a Person. The Company shall be deemed to be an Affiliate of Clean Technologies prior to the Initial Funding (for purposes of representations and warranties), but neither the Company nor the Project Company shall be deemed to be an Affiliate of any Member or of Bloom or the Investor Guarantor from and after the Initial Funding.

“Aggregate Final Completion Distribution” is defined in Section 6.11 of the Company LLC Agreement.

“Agreement” means the Company LLC Agreement if used in the Company LLC Agreement or the ECCA if used in the ECCA.

“Alternative Tax Program” means, if the Grant is unavailable, any successor cash grant, cash-based subsidy, tax refund or refundable credit program or, if none of the foregoing is available, the ITC.

“Annual Budget” is defined in Section 7.1(b) of the Company LLC Agreement.

“Applicable Laws” means all laws (including common law), constitutions, statutes, rules, regulations, ordinances, judgments, settlements, orders, decrees, injunctions, and writs of any Governmental Authority, in each case, having jurisdiction over Bloom, Clean Technologies, Mehetia, Credit Suisse Guarantor, the Administrator, the Company, the Project Company or the Systems, as applicable.

“Appraisal Method” means one appraiser shall be appointed by the holders of a majority of the Class A Membership Interests and one appraiser shall be appointed by the holders of a majority of the Class B Membership Interests, in each case, within fifteen (15) days of invocation of this procedure, which appraisers shall attempt to agree upon the fair market value of the Class B Membership Interests. If either holders of the Class A Membership Interests or holders of the Class B Membership Interests do not appoint their respective appraiser within five (5) days after the end of such fifteen (15) day period, the determination of the appraiser appointed by the other Person (if so appointed within such period) shall be conclusive and binding on the Members. If the appraisers appointed by the holders of Class A Membership Interests and the holders of Class B Membership Interests are unable to agree upon the fair market value of the Class B Membership Interests within thirty (30) days after the appointment of the second of such appraisers, the two appraisers shall appoint a third appraiser. In such case, the average of the determinations of the three appraisers shall be conclusive and binding on the

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Members, unless the determination of any of the appraisers differs from the middle determination by more than twice the amount by which the remaining determination differs from the middle determination, in which case the most disparate appraisal shall be excluded, and the average of the remaining two determinations shall be conclusive and binding on the Members.

“Bankruptcy” of a Person means the occurrence of any of the following events: (i) the filing by such Person of a voluntary case or the seeking of relief under any chapter of Title 11 of the United States Code, as now constituted or hereafter amended (the “Bankruptcy Code”), (ii)    the making by such Person of a general assignment for the benefit of its creditors, (iii) the admission in writing by such Person of its inability to pay its debts as they mature, (iv) the filing by such Person of an application for, or consent to, the appointment of any receiver or a permanent or interim trustee of such Person or of all or any portion of its property, including the appointment or authorization of a trustee, receiver or agent under applicable law or under a contract to take charge of its property for the purposes of enforcing a lien against such property or for the purpose of general administration of such property for the benefit of its creditors, (v) the filing by such Person of a petition seeking a reorganization of its financial affairs or to take advantage of any bankruptcy, reorganization, insolvency, readjustment of debt, dissolution or liquidation law or statute, or an answer admitting the material allegations of a petition filed against it in any proceeding under any such law or statute, (vi) an involuntary case is commenced against such Person by the filing of a petition under any chapter of Title 11 of the Code and within 60 days after the filing thereof either the petition is not dismissed or the order for relief is not stayed or dismissed, (vii) an order, judgment or decree is entered appointing a receiver or a permanent or interim trustee of such Person or of all or any portion of its property, including the entry of an order, judgment or decree appointing or authorizing a trustee, receiver or agent to take charge of the property of such Person for the purpose of enforcing a lien against such property or for the purpose of general administration of such property for the benefit of the creditors of such Person, and such order, judgment or decree shall continue unstayed and in effect for a period of 60 days, or (viii) an order, judgment or decree is entered, without the approval or consent of such Person, approving or authorizing the reorganization, insolvency, readjustment of debt, dissolution or liquidation of such Person under any such law or statute, and such order, judgment or decree shall continue unstayed and in effect for a period of 60 days. The foregoing definition of “Bankruptcy” is intended to replace and shall supersede the definition of “Bankruptcy” set forth in Sections 18-101(1) and 18-304 of the Act.

“Base Case Model” means the financial model attached as Annex II to the Member Consent and Second Amendment to Equity Capital Contribution Agreement with respect to Diamond State Generation Holdings, LLC, dated as of March 20, 2013, by and among Clean Technologies, Investor, the Company and the Project Company.

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

“Bloom Guaranty” means the Guaranty made by Bloom for the benefit of Investor, dated as of March 16, 2012.

“Brook side Site” means the Site described in the DDOT Site Lease.

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“Business Day” means any day other than (i) a Saturday or Sunday or (ii) a day on which commercial banks in New York City are authorized or required to be closed.

“Capital Account” means an account for each Member calculated as described in Section 4.2(b) of the Company LLC Agreement and used to distribute assets at liquidation as described in Section 10.2 of the Company LLC Agreement.

“Capital Contribution” means, with respect to any Member, the amount of money and the initial Gross Asset Value of any property contributed to the Company with respect to the Membership Interests in the Company held or purchased by such Member.

“Capital Contributions Account” is defined in Section 4.3(c) of the Company LLC Agreement.

“Cause” means fraud, gross negligence or willful misconduct of the Managing Member, solely in that capacity.

“Certificate of Formation” has the meaning in the preliminary statements of the Company LLC Agreement.

“Change of Control” means with respect to an entity, an event in which a Person or Persons who prior to a transaction or series of transactions, possessed, whether directly or indirectly, legally or beneficially:

(a)    50% or more of the equity, capital or profits interests of such entity; or

(b)    Control of such entity;

and as a result of a consummation of any transaction or series of transactions (including any merger or consolidation), such Person or Persons fails to maintain, whether directly or indirectly, legally or beneficially, either of the elements of control listed in (a) or (b) above.

“Claims” is defined in Section 3.6(a) of the Company LLC Agreement.

“Class A Member” means a Member holding one or more Class A Membership Interests.

“Class A Membership Interests” means membership interests in the Company that are held initially by Clean Technologies and have the rights described in the Company LLC Agreement.

“Class A Recapture Event” means an event or occurrence of any fact or circumstance that causes a Recapture Event that is not a Class B Recapture Event.

“Class B Member” means a Member holding one or more Class B Membership Interests.

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“Class B Member CC Maximum Amount” means, for the Class B Member, an amount not to exceed the lesser of (i) $141,650,000 and (ii) such amount that makes such Class B Member’s actual or required net investment (Capital Contributions less actual pre-tax cash distributions from the Company to the Class B Member made and received to date) equal $65,000,000.

“Class B Membership Interests” means the membership interests in the Company that are initially held by Mehetia and having the rights described in the Company LLC Agreement.

“Class B Recapture Event” means (a) an event or occurrence of any fact or circumstance that causes a denial or recapture of all or a portion of a Grant that is directly attributable to (i) a breach of the representation made by a Class B Member under Section 3.11(c) of the Company LLC Agreement, (ii) a breach of the covenant made by a Class B Member under Section 3.12(f) of the Company LLC Agreement or (iii) any Transfer by a Class B Member or an Affiliate of a Class B Member prohibited by Sections 9.1, 9.3(e) or 9.4(c) of the Company LLC Agreement that causes the Company or Project Company to become a Disqualified Person, or (b) any act or omission by a Class B Member (excluding voting for a Major Decision), including any Transfer by a Class B Member or its Class B Membership Interests or a change in ownership of a Class B Member, that results in a recapture of the ITC or refundable credit under an Alternative Tax Program if an ITC or such refundable credit is elected pursuant to Section 7.5(b)(i) of the Company LLC Agreement and claimed by such Class B Member with respect to the Systems.

“Class Majority Vote” is defined in Section 3.2(f) of the Company LLC Agreement.

“Clean Technologies” is defined in the preamble to the ECCA.

“Clean Technologies Indemnified Costs” means, with respect to any Class A Member, the following:

(a) with respect to any indemnification, defense or hold harmless obligations under the Company LLC Agreement or the ECCA of Investor or Investor Guarantor, any and all damages, losses, claims, liabilities, demands, charges, suits, Taxes, penalties, costs, and reasonable expenses (including court costs and reasonable attorneys’ fees and expenses of one law firm for all Clean Technologies Indemnified Parties) incurred by such Clean Technologies Indemnified Parties, including with respect to Third Party Claims, resulting from or relating to any breach or default or misrepresentation by Investor (as itself or as a Class B Member, as applicable) or Investor Guarantor, of any representation, warranty, covenant, indemnity or agreement under the ECCA or any other Transaction Document, including any claim for fraud or willful misconduct on the part of Investor or Investor Guarantor relating to the ECCA or any other Transaction Document; and

(b) with respect to any indemnification, defense or hold harmless obligations under the Company LLC Agreement or the ECCA (if applicable) of any Class B Member not covered under the preceding clause (a), any and all damages, losses,

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claims, liabilities, demands, charges, suits, Taxes, penalties, costs, and reasonable expenses (including court costs and reasonable attorneys’ fees and expenses of one law firm for all Clean Technologies Indemnified Parties) incurred by such Clean Technologies Indemnified Parties, including with respect to Third Party Claims, resulting from or relating to (i) any breach or default or misrepresentation by Class B Member or its Affiliate, as applicable, of any representation, warranty, covenant, indemnity or agreement under the ECCA or any other Transaction Document or (ii) any claim for fraud or willful misconduct on the part of Class B Member or its Affiliate relating to the ECCA or any other Transaction Document.

“Clean Technologies Indemnified Parties” means Clean Technologies and any person to whom Clean Technologies transfers any portion of its Class A Membership Interests in accordance with Article IX of the Company LLC Agreement, and each of their respective Affiliates (other than the Company or the Project Company) and each of their respective shareholders, partners members, officers, directors, employees, agents, and other representatives, and their respective successors and assigns.

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

“Collateral Agent” means Deutsche Bank Trust Company Americas as collateral agent under the Credit Documents.

“Company” is defined in the preliminary statements to the ECCA.

“Company Distributable Cash” means, as of any date, all cash, cash equivalents and liquid investments (excluding Capital Contributions, Permitted Investments and any cash received in respect of the Grant) held by the Company as of such date less all reasonable reserves that, in the reasonable judgment of the Managing Member, are necessary or appropriate for the operation of the Company consistently with the Prudent Operator Standard. Reasonable reserves shall consist of any combination of the following reserves as reasonably determined by the Managing Member, without duplication: (i) necessary for payment of expenses included in the annual budget of the Company, (ii) necessary to prevent or mitigate an emergency situation, (iii) established with the prior written consent of the Members (by Class Majority Vote), (iv) necessary to allow the Company to meet expenses that are clearly identified and expected with reasonable certainty to become due, but that are not included in the annual budget of the Company, (v) necessary to ensure sufficient spare parts or the payment of operational and maintenance costs for each of the Systems, and (vi) one or more additional reserves not referred to in the preceding clauses of this definition of “Company Distributable Cash” that do not, together with the reserves reserved pursuant to clause (vi) of the definition of Project Company Distributable Cash, in the aggregate exceed $1,600,000.

“Company LLC Agreement” means the Second Amended and Restated Limited Liability Company Agreement of the Company, by and between Clean Technologies and Mehetia, dated as of March 20, 2013, as the same may be amended, supplemented or replaced from time to time.

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“Company Minimum Gain” means the amount of minimum gain there is in connection with nonrecourse liabilities of the Company, calculated in the manner described in Treasury Regulation Sections 1.704-2(b)(2) and 1.704-2(d).

“Confidential Information” is defined in Section 11.12(a) of the Company LLC Agreement.

“Construction Escrow Account” is defined in the Note Purchase Agreement.

“Consult” or “Consultation” means to confer with, and reasonably consider and take into account the reasonable suggestions, comments or opinions of, another Person.

“Control” or “Controlled by” means the possession, directly or indirectly, of either of the following:

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

“Control Agreement” means the Control Agreement to be entered into on or before the Initial Funding Date among Mehetia, Clean Technologies, the Company (or the Project Company) and the control agent party thereto, as the same may be amended from time to time.

“Credit Documents” means the Note Purchase Agreement and all other documents executed or delivered in connection with the Note Purchase Agreement, including, without limitation, the Interparty Agreement.

“Credit Suisse Guarantor” means Credit Suisse (USA), Inc.

“Credit Suisse Guaranty” means the Guaranty made by Credit Suisse Guarantor for the benefit of Clean Technologies, dated as of March 16, 2012.

“CT Funding Amount” means, on the Initial Funding Date or on any Subsequent Funding Date, an amount that is equal to the required Progress Contribution less (i) the applicable Note Proceeds of the Note Holders and (ii) the applicable Subsequent Funding Payment of the Investor.

“DDOT” means the Delaware Department of Transportation.

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“DDOT Site Lease” means a Lease Agreement between DDOT and the Project Company to be entered into on or prior to the Initial Funding Date, as it may be amended to extend the term or otherwise.

“December Capital Contribution” means the Capital Contribution in the amount of [***] made by Clean Technologies to the Company on December 30, 2011 pursuant to the Capital Contribution Agreement dated December 30, 2011 among Bloom, Clean Technologies, the Company and the Project Company.

“Deposit Contribution” is defined in Section 2.2(b) of the ECCA.

“Depositary” means Deutsche Bank Trust Company Americas, as depositary under the Depositary Agreement.

“Depositary Agreement” means the Depositary Agreement, dated as of March 20, 2013, among the Project Company, the Depositary and the Collateral Agent.

“Depreciation” means for each Fiscal Year or part thereof, an amount equal to the depreciation, amortization, or other cost recovery deduction allowable for United States federal income tax purposes with respect to an asset for such Fiscal Year or part thereof, except that if the Gross Asset Value of an asset differs from its adjusted basis for United States federal income tax purposes at the beginning of such Fiscal Year, the depreciation, amortization, or other cost recovery deduction for such Fiscal Year or part thereof shall be an amount which bears the same ratio to such Gross Asset Value as the United States federal income tax depreciation, amortization, or other cost recovery deduction for such Fiscal Year or part thereof bears to such adjusted tax basis. If such asset has a zero adjusted tax basis, the depreciation, amortization, or other cost recovery deduction for each taxable year shall be determined under a method reasonably selected by the Managing Member and agreed to by Members representing a Class Majority Vote.

“Designated Transfers” is defined in Section 9.9 of the Company LLC Agreement.

“Disqualified Person” means (a) any federal, state or local government (or any political subdivision, agency or instrumentality thereof); (b) any organization described in Section 501(c) of the Code and exempt from tax under Section 501(a) of the Code; (c) any entity referenced in Section 54(j)(4) of the Code; (d) any foreign person or entity as defined in Section 168(h)(2)(C) of the Code unless the exception under Section 168(h)(2)(B) of the Code applies with respect to income from the Project for that person; and (e) any partnership or other pass-through entity (including a single-member disregarded entity), other than a real estate investment trust as defined in Section 856(a) of the Code, any direct or indirect partner (or other holder of an equity or profits interest) of which is described in clauses (a) – (d); provided that a taxable C corporation, any of whose shareholders are ineligible to receive a Grant by virtue of being described in clauses (a) – (d) above will not be considered a Disqualified Person.

Notwithstanding the above, a Person will not be treated as a Disqualified Person if it is demonstrated to the satisfaction of the Members that a Class A Recapture Event or Class B

[***] Confidential Treatment Requested

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Recapture Event, as applicable, will not occur as a result of such Person owning a direct or indirect interest in the Company or Project Company; and provided, further that if and to the extent that Section 1603 of division B of the American Recovery and Reinvestment Act of 2009 is amended after the date of the Agreement, the definition of “Disqualified Person” under the Agreement shall be interpreted to conform to such amendment and any Treasury guidance with respect thereto.

“Distribution Date” means, in respect of every month, commencing the month following the Initial Funding Date, the date that falls on the last Business Day of such month.

“Dollars” or “$” means the lawful currency of the United States of America.

“DPL” means Delmarva Power & Light Company, a DPSC regulated utility company.

“DPL Agreements” means the service applications between the Project Company and DPL with respect to the REPS Act and the Tariffs, whereby DPL shall (a) serve as the agent for collection of amounts due from Project Company (if any) and for disbursement of amounts due to Project Company under the QFCP-RC Tariff and (b) sell to Project Company natural gas under the Gas Tariff.

“DPL Site Lease” means a Lease Agreement between DPL and the Project Company to be entered into on or prior to the Initial Funding Date.

“DPSC” means the Delaware Public Service Commission, the Governmental Authority charged with regulating DPL and issuing the Tariffs.

“ECCA” means the Equity Capital Contribution Agreement with respect to the Company dated as of March 16, 2012 among Clean Technologies, the Company, the Project Company and Mehetia and all schedules and exhibits thereto, as the same may be amended, supplemented or replaced from time to time.

“Effective Date” is defined in Section 11.16 of the Company LLC Agreement.

“Energy” is defined in the MESPA.

“Encumbrance” means any charge, claim, community property interest, condition, equitable interest, lien, option, pledge, mortgage, security interest, right of first refusal or restriction of any kind, including any restriction on use, voting, transfer, receipt of income or exercise of any other attribute of ownership.

“Environmental Reports” means (a) the Phase I Environmental Site Assessment: Proposed Fuel Cell Facility (Brook side Site) prepared by Terracon Consultants, Inc., dated November 15, 2011, and (b) the Phase I Environmental Site Assessment: Proposed Fuel Cell Facility (Red Lion Site) prepared by Terracon Consultants, Inc., dated November 15, 2011.

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“Environmental Laws” means all Applicable Laws pertaining to the environment, human health, safety and natural resources, including, but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. § 9601 et seq.), and the Superfund Amendments and Reauthorization Act of 1986, the Resource Conservation and Recovery Act of 1976 (42 U.S.C. §§ 6901 et seq.), and the Hazardous and Solid Waste Amendments Act of 1984, the Clean Air Act (42 U.S.C. §§ 7401 et seq.), the Federal Water Pollution Control Act (also known as the Clean Water Act) (33 U.S.C. §§ 1251 et seq.), the Toxic Substances Control Act (15 U.S.C. §§ 2601 et seq.), the Safe Drinking Water Act (42 U.S.C. §§ 300f et seq.), the Endangered Species Act (16 U.S.C. §§ 1531 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. §§ 1801 et seq.), and any similar or analogous state and local statutes or regulations promulgated thereunder and decisional law of any Governmental Authority, as each of the foregoing may amended or supplemented from time to time in the future, in each case to the extent applicable with respect to the property or operation to which application of the term “Environmental Laws” relates.

“Equity Commitment Amount” means, with respect to Clean Technologies, [***] plus the Gross Asset Value of the membership interests in the Project Company transferred to the Company by Clean Technologies as shown in Schedule 4.2(b) to the Company LLC Agreement, and with respect to Mehetia, [***], subject to the limitation that at no time will the actual or required net investment (Capital Contributions less actual pre-tax cash distributions from the Company to Mehetia, as applicable made and received to date) by Mehetia exceed [***].

“Equity Contribution” is defined in Section 4.3 of the Company LLC Agreement.

“Equity Contribution Date” is defined in Section 4.3 of the Company LLC Agreement.

“Equity Contribution Notice” is defined in Section 4.3 of the Company LLC Agreement.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

“Execution Date” has the meaning given in the introductory paragraph of the ECCA.

“Exempt Wholesale Generator” means an “exempt wholesale generator” under PUHCA and the implementing regulations of FERC.

“Exhibits” means, in the case of the ECCA, the exhibits attached to the ECCA and in the case of the Company LLC Agreement, the exhibits attached to the Company LLC Agreement.

“Federal Power Act” or “FPA” means the Federal Power Act of 1935, as amended.

“FERC” means the Federal Energy Regulatory Commission and any successor thereto.

“Final Completion Date” is defined in the Note Purchase Agreement.

“Fiscal Year” is defined in Section 7.9 of the Company LLC Agreement.

[***] Confidential Treatment Requested

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“Flip Date” means the last day of the calendar month in which Class B Member achieves an Internal Rate of Return equal to or greater than the Target IRR.

“Funding” means the Initial Funding or any Subsequent Funding, as the case may be. “Funding Date” means the date of any Funding.

“Funding Notice” means a notice in the form of Exhibit I to the ECCA.

“Funding Payment” means, individually or collectively, the Initial Funding Payment and the Subsequent Funding Payments.

“GAAP” means generally accepted accounting principles as recognized by the American Institute of Certified Public Accountants, as in effect from time to time, consistently applied and maintained on a consistent basis for a Person throughout the period indicated and consistent with such Person’s prior financial practice.

“Gas Tariff” means DPL’s Service Classification “LVG-QFCP-RC” filed for gas service applicable to REPS Qualified Fuel Cell Provider Projects and approved by DPSC in Order no. 8062 dated October 18, 2011, as adopted and supplemented by DPSC’s Findings, Opinion and Order No. 8079, dated December 1, 2011.

“Governmental Approval” means all filings, notifications, orders, certificates, determinations, registrations, permits, licenses, approvals and authorizations with or of any Governmental Authority or other entity pursuant to Applicable Law.

“Governmental Authority” means any governmental department, commission, board, bureau, agency, court or other instrumentality of any country, state, province, county, parish or municipality, jurisdiction, or other political subdivision thereof.

“Grant” means a grant (or a portion thereof) under Section 1603 of the American Recovery and Reinvestment Tax Act of 2009 with respect to a System.

“Grant Application” means a Grant application to be filed with the Treasury under Section 1603 of the American Recovery and Reinvestment Tax Act of 2009 and all related guidance, regulations, notices, promulgations and announcements.

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

(a) the initial Gross Asset Value of any asset contributed by a Member to the Company shall be the Gross Fair Market Value of such asset as of the date of contribution; provided that the initial Gross Asset Values of the assets contributed to the Company on the Initial Funding Date shall be shown in Schedule 4.2(b) to the Company LLC Agreement;

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(b) the Gross Asset Values of all Company assets shall be adjusted to equal their respective fair market values at the times described in Section 4.2(c) of the Company LLC Agreement;

(c) the Gross Asset Value of any item of Company assets distributed to any Member shall be adjusted to equal the Gross Fair Market Value of such asset on the date of distribution;

(d) the Gross Asset Values of all Company assets shall be adjusted to reflect any adjustments to the adjusted basis of such assets pursuant to Sections 734(b) or 743(b) of the Code, but only to the extent that such adjustments are required to be taken into account in determining Capital Accounts pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m); provided, however, that Gross Asset Values shall not be adjusted pursuant to this subsection (d) to the extent that the Managing Member determines that an adjustment pursuant to subsection (b) is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this subsection (d); and

(e) if the Gross Asset Value of an asset has been determined or adjusted pursuant to subsection (a), (b) or (d) above, such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into account with respect to such asset.

“Gross Fair Market Value” means, with respect to any asset, the fair market value of the asset as reasonably determined by the Managing Member and agreed to by Members representing a Class Majority Vote.

“Guaranteed Initial Delivery Date” has the meaning set forth in the QFCP-RC Tariff.

“Guidance” means the guidance issued on July 9, 2009, by the Treasury for payments for specified energy property in lieu of tax credits under the American Recovery and Reinvestment Act of 2009 (as updated on March 15, 2010 and in April 2011), the Frequently Asked Questions and Answers issued by the Treasury on January 8, 2010 and June 25, 2010, as updated in April 2011, and any other guidance or clarification, addition or supplement thereto issued by the Treasury or any other Governmental Authority.

“Hedge Support” means any letters of credit, guarantees, bonds, surety contracts and other credit support arrangements (and any related reimbursement obligation) to support the payment and performance obligations of the Project Company under any hedge agreement to which the Project Company is a party.

“HSR Act” means the Hart Scott Rodino Antitrust Improvements Act of 1976, as amended and the regulations adopted thereunder.

“IDC Reserve Account” is defined in the Note Purchase Agreement.

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“Independent Accounting Firm” means an accounting firm that is mutually acceptable to Class A Members holding a majority of the Class A Membership Interests, and Class B Member and if the foregoing Members cannot agree, then one of Deloitte Touche Tohmatsu, Ernst & Young, KPMG International or PricewaterhouseCoopers as chosen by the Managing Member; provided that, any such accounting firm is not the Accounting Firm.

“Independent Engineer” means SAIC Energy, Environment & Infrastructure, LLC.

“Independent Engineer Report” means the report of the Independent Engineer to be dated on or before the Initial Funding Date.

“Indemnified Costs” means Investor Indemnified Costs or Clean Technologies Indemnified Costs, as the context requires.

“Indemnified Party” means an Investor Indemnified Party or Clean Technologies Indemnified Party, as the context requires.

“Indemnifying Party” means Mehetia or Clean Technologies, as the context requires.

“Initial Funding” is defined in Section 2.3 of the ECCA.

“Initial Funding Date” means the date described in Section 2.3 of the ECCA.

“Initial Funding Payment” is defined in Section 2.2(a) of the ECCA.

“Initial Funding Termination Date” means March 31, 2014 or any later date agreed to by Investor and Clean Technologies.

“Insurance Report” means the Insurance Due Diligence Summary prepared by Moore- McNeill, LLC, to be dated on or before the Initial Funding Date.

“Interconnection Point” is defined in the MESPA.

“Internal Rate of Return” means, with respect to Class B Member and at any time of determination, the discount rate that sets A equal to B, where A is the present value of (a) cash (including the proceeds of any Grant, or, if elected pursuant to Section 7.5(b)(i) of the Company LLC Agreement, the proceeds of any similar successor cash program or cash received from an Alternative Tax Program) distributed to Class B Member and, if the ITC is elected pursuant to Section 7.5(b)(i) of the Company LLC Agreement and the Class B Member consents in writing to inclusion of such ITC in its Internal Rate of Return, the value of any ITC claimed on Systems to the extent allocated to Class B Member assuming a 35% federal income tax rate plus (b) any indemnity payments received by Class B Member that compensate for loss of any item listed in the foregoing clause (a), and B is the present value of the various Capital Contributions made by Class B Member.

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“Interparty Agreement” means the Interparty Agreement, dated as of March 20, 2013, among the Project Company, Company, Clean Technologies, Investor and Deutsche Bank Trust Company Americas, as collateral agent under the Note Purchase Agreement, as the same may be amended from time to time.

“Investor” is defined in the preliminary statements to the ECCA.

“Investor Guarantor” means the Credit Suisse Guarantor.

“Investor Guaranty” means the Credit Suisse Guaranty.

“Investor Indemnified Costs” means, with respect to Class B Member, the following:

(a) with respect to any indemnification, defense or hold harmless obligations under the Company LLC Agreement or the ECCA of Clean Technologies or its Affiliates, any and all damages, losses, claims, liabilities, demands, charges, suits, Taxes, penalties, costs, and reasonable expenses (including court costs and reasonable attorneys’ fees and expenses of one law firm for all Investor Indemnified Parties) incurred by such Investor Indemnified Parties, including with respect to Third Party Claims, resulting from or relating to (i) any breach or default or misrepresentation by Clean Technologies (as itself or as a Class A Member, Managing Member or Tax Matters Partner) or any Affiliate of Clean Technologies, as applicable, of any representation, warranty, covenant, indemnity or agreement under the ECCA or any other Transaction Document, including (A) in its capacity as Managing Member under the Company LLC Agreement in accordance with the terms thereof and (B) in its capacity as Tax Matters Partner under Section 7.7(b) and Section 7.7(c) of the Company LLC Agreement in accordance with the terms thereof, (ii) any claim for fraud or willful misconduct on the part of Clean Technologies or any Affiliate of Clean Technologies relating to the ECCA or any other Transaction Document, (iii) resulting from Project Company (or any of the Systems) not qualifying for (or becoming disqualified under) the REPS Act or the Tariffs as a result of any act or omission by Bloom or any Affiliate of Bloom (including, without limitation, (A) Bloom failing to achieve commercial operation (as defined in the QFCP-RC Tariff) of 5 MW of Systems by March 31, 2013 (unless such date has been extended in accordance with the QFCP-RC Tariff), (B) Bloom failing to achieve commercial operation (as defined in the QFCP-RC Tariff) of 30 MW of Systems, of which at least 20 MW of Systems were actually manufactured by Bloom in the State of Delaware by September 30, 2014 (unless such date has been extended in accordance with the QFCP-RC Tariff), (C) Bloom failing to be manufacturing fuel cells capable of being powered by renewable fuels from a permanent manufacturing facility located in the State of Delaware as of the date of Commencement of Operations (as defined in the MESPA) of the full nameplate capacity of the Portfolio, or (D) any of the acts or omissions set forth in Section 4.3 of the MESPA), (iv) Bloom failing to be in compliance with the Letter Agreement (including, if so required by

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the State of Delaware, posting the security referred to in the Letter Agreement upon or prior to the Commencement of Operation of the first System) or (v) any surcharges pursuant to the Tariffs being deemed a tax under Delaware law; and

(b) with respect to any indemnification, defense or hold harmless obligations under the Company LLC Agreement or the ECCA (if applicable) of any other Class A Member not covered under the preceding clause (a), any and all damages, losses, claims, liabilities, demands, charges, suits, Taxes, penalties, costs, and reasonable expenses (including court costs and reasonable attorneys’ fees and expenses of one law firm for all Investor Indemnified Parties) incurred by such Investor Indemnified Parties, including with respect to Third Party Claims, resulting from or relating to (i) any breach or default or misrepresentation by such Class A Member or its Affiliate, as applicable, of any representation, warranty, covenant, indemnity or agreement under the ECCA or any other Transaction Document or (ii) any claim for fraud or willful misconduct on the part of such Class A Member or its Affiliate relating to the ECCA or any other Transaction Document.

“Investor Indemnified Parties” means the Mehetia Indemnified Parties.

“IP Rights” is defined in Section 3.1(x) of the ECCA.

“ITC” means the 30% investment tax credit under Section 48 of the Code.

“IRS” means the Internal Revenue Service or any successor agency.

“Knowledge” means, with respect to Clean Technologies, the Company and the Managing Member, the actual knowledge after due inquiry of the senior managers of the Company listed below in the positions set forth next to such person’s name or their successors or replacements in such positions.

Name	Position
William H. Kurtz	President
William E. Brockenborough	Vice President, General Manager
Martin J. Collins	Vice President, Secretary
Scott Reynolds	Vice President
Kevin Passalacqua	Vice President
Timothy Gray	Vice President

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“kW” means kilowatt or one thousand watts of Energy.

“Legal Requirement” means any law (including common law), statute, act, decree, ordinance, rule, directive (to the extent having the force of law) order, treaty, code or regulation (including any of the foregoing relating to health or safety matters or any Environmental Law)or any interpretation of any of the foregoing, as enacted, issued or promulgated by any Governmental Authority, including all amendments, modifications, extensions, replacements or re-enactments thereof.

“Letter Agreement” means that certain Letter Agreement dated October 10, 2011 between Bloom and the State of Delaware, as may be amended from time to time.

“Liens” means any liens, pledges, claims, security interests, easements, rights of way, mortgages, deeds of trust, covenants, restrictions, rights of first refusal or defects in title.

“LLC Agreement Termination Date” is defined in Section 2.4 of the Company LLC Agreement.

“Major Decisions” means:

With respect to the Pre-Flip Period, any of the following:

(a) Any sale, lease or other voluntary disposition of assets of the Project Company or Membership Interests in the Project Company with an aggregate fair market value in excess of [***] during any 12 month period, but excluding sales of (i)    energy sold under the PJM Agreements or excess energy produced by Systems, (ii)    environmental attributes of energy sales (such as renewable energy credits and carbon allowances), (iii) ancillary benefits of energy sales (such as capacity credits) and (iv) surplus or obsolete assets;

(b) The Company or the Project Company taking action to (i) cancel, suspend or terminate any Material Contract, (ii) assign, release or relinquish the rights or obligations of (or any security posted by) any party to, or amend (A) the DPL Agreements, the PJM Agreements, the Note Purchase Agreement, the Interparty Agreement, any Collateral Document (as defined in the Note Purchase Agreement) or any other Credit Document (solely to the extent the amendment of any other such Credit Document could reasonably be expected by the Managing Member to have a Material Adverse Effect on the Class B Members), other than any such assignment or release made in accordance with its express terms, or (B) any other Material Contract if (with respect to this clause (B) only) any of the foregoing items in this clause (ii) could reasonably be expected to have a Material Adverse Effect on the Company or the Project Company, (iii) renew or enter into any replacement Material Contract except to the extent such renewal or replacement is on substantially the same terms as the original Material Contract, (iv)    replace the Administrator under the Administrative Services Agreement,

[***] Confidential Treatment Requested

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(v) replace the manager or operator under the MOMA, or (vi) enter into any new Material Contract; provided that none of the following will be considered a Major Decision: (v) taking any of the actions referred to above in this paragraph (b) in connection with a Material Contract with respect to assets that are excluded from paragraph (a) above, (w) entry into the DPL Agreements or the PJM Agreements, (x) taking any of the actions referred to above in this paragraph (b) if such actions (1) are required by any Governmental Authority or (2) involve agreements or instruments as to which such actions otherwise are permitted under the Company LLC Agreement, (y) the replacement of (1) any permit or (2) any Hedge Support with other Hedge Support that provides up to a comparable amount of credit support with comparable obligations, and (z) the enforcement or management of contracts with suppliers;

(c) The Company adopting, amending or exceeding the Annual Budget for the Project Company, except that the following will not be considered a Major Decision: (i) adoption of an Annual Budget containing an aggregate expense amount for any Fiscal Year that is not more than [***] above the annual spending projected in the Base Case Model for such Fiscal Year or [***] above the aggregate expense amount reflected in the Annual Budget for the previous Fiscal Year, (ii) spending up to [***] of the aggregate expense amount reflected in the Annual Budget for a Fiscal Year and (iii) emergency spending above the [***] limit, except that non-recurring budget items that are not included in the Base Case Model and that are not incurred or expected to be incurred in the Ordinary Course of Business will be excluded when applying the percentages in this paragraph;

(ci) Approval of any transactions (other than other transactions contemplated by any of the Transaction Documents) between the Company or the Project Company, as the case may be, and any member thereof, the Administrator, or any Affiliates of any member of the Company or the Project Company, other than those entered into on an arm’s length basis;

(cii) Any settlement of claims, litigation, arbitration, criminal investigation or criminal proceedings (excluding the payment of undisputed liquidated damages) involving the Company, the Project Company or the Managing Member (only to the extent such investigation or proceeding relates to its actions or failure to act in such capacity) or any of their respective officers, managers or directors except if the settlement is not with any Affiliate of Bloom and, as a result of such settlement, the Company and/or the Project Company would not be obligated to pay more than [***] in the aggregate;

(ciii) Change, amend or substitute the insurance required to be maintained by the Company pursuant to the ECCA or the Company LLC Agreement in a manner that would cause such insurance to be materially different from the insurance requirements prescribed therein;

[***] Confidential Treatment Requested

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(g) Any action that would cause the Company or the Project Company to engage in any business or activity that is not within the purpose of such entity, as set forth in such entity’s organizational documents, or to change such purpose;

(h) (i) any action that would cause the Company to remove the Managing Member or fill any vacancy for the Managing Member as provided in Section 8.2(c) of the LLC Agreement or any action that would cause the Project Company to remove the manager of the Project Company or fill any vacancy for the manager of the Project Company, (ii) any merger or consolidation of the Company or the Project Company, (iii) the acquisition of all or substantially all of the assets or ownership interests of another Person, (iv) sale of all or substantially all of the assets of the Company or the Project Company and (vi) the taking of any action by the Company or the Project Company described in clauses (i), (ii), (iii), (iv), (v) or (vi)    of the definition of “Bankruptcy”;

(i) Granting of any Encumbrance on the assets or rights of the Company or the assets and rights of the Project Company other than Permitted Liens;

(j) Any incurrence or guarantee of indebtedness for borrowed money or capitalized lease obligations in excess of [***] (other than capital leases) in the aggregate for the Company and the Project Company;

(k) Any issuance or redemption by the Company or Project Company of any Membership Interests or other equity interest of any kind in the Company or Project Company other than any issuance permitted under Section 4.1(c) of the Company LLC Agreement;

(l) Any amendment or cancellation of the certificate of formation of the Company or the Project Company or amendment of the Project Company LLC Agreement;

(m) The admission of any additional member in the Company or Project Company, other than pursuant to terms of the Company LLC Agreement or Project Company LLC Agreement;

(n) The hiring by the Company or the Project Company of any employees or entering into any bonus, profit sharing, thrift, compensation, option, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or employees of the Company or the Project Company;

(o) Any change in the Company’s or Project Company’s legal form or any recapitalization, liquidation, winding-up or dissolution of the Company or Project Company (except as permitted under the Company LLC Agreement or the Project Company LLC Agreement);

[***] Confidential Treatment Requested

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(p) Permitting (i) the possession of property of the Company by any Member, (ii) the assignment, transfer or pledge of rights of the Company in specific property of the Company for other than a Company purpose or other than for the benefit of the Company or (iii) any commingling of the funds of the Company with the funds of any other Person;

(q) Electing that the Company be treated other than as a partnership for United States federal income tax purposes or electing that the Project Company be treated other than as a “disregarded entity” for United States federal income tax purposes;

(r) Amending, or choosing to fail to obtain or, as a result of the breach of its terms, causing the revocation of, any governmental approval required for the operation, ownership, management or maintenance of the Systems or the sale or transmission of electric energy in a manner that would have a Material Adverse Effect or fail to maintain the status of the Company as an Exempt Wholesale Generator or taking any action that would cause the Company to cease to be an Exempt Wholesale Generator or a member of PJM;

(s) Engaging in any speculative financial activities, excluding (i) sales of energy and (ii) other hedge or swap arrangements, renewable energy credit sales, forward contracts and similar transactions and other transactions in effect on the Initial Funding Date or any Subsequent Funding Date, as applicable, for the Systems and replacements therefor, in each case, entered into in the Ordinary Course of Business for the Portfolio;

(t) Lending any funds from the Company to any Person;

(u) Engaging in any act that, if taken, would reasonably be expected to cause a Class A Recapture Event;

(v) If a Grant is not available with respect to certain Systems, electing under any Alternative Tax Program pursuant to Section 7.5(b)(i) of the Company LLC Agreement;

(w) Ordering the purchase of a System other than for the Project;

(x) Not pursuing the rights and remedies under any agreement with Bloom or its Affiliates after a failure to cure within the applicable cure period, including, without limitation, the MOMA, the MESPA or the Administrative Services Agreement;

(y) Selling or disposing of any energy calls purchased on or prior to the Initial Funding Date other than at or around their expiration date;

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(z) Authorizing or permitting the Company to make a capital contribution to the Project Company except in accordance with Sections 4.3 and 4.4 of the LLC Agreement;

(aa) Making any material tax election, or causing the Company to cause the Project Company to make any material tax election, other than as provided in the Company LLC Agreement;

(bb) Taking any act in contravention of or in breach of the Company LLC Agreement or the organizational documents of the Company or the Project Company;

(cc) Causing the Company or causing the Company to cause the Project Company to change its method of accounting, except as required by GAAP, or taking any action with respect to accounting policies or procedures, unless required by GAAP;

(dd) Making any distribution to any Member or causing any distribution to be made by the Company or the Project Company except as specified in the Company LLC Agreement or Project Company LLC Agreement;

(ee) Causing the Company or causing the Company to cause the Project Company to knowingly take or omit to take any action that would result in a material breach or an event of default, or that would permit or result in the acceleration of any obligation or termination of any right, under any Material Contract;

(ff) Causing the Company or causing the Company to cause the Project Company to form any Person, including any Subsidiaries; and

(gg) Taking any action in violation of, or inconsistent with, the REPS Act or any of the Tariffs, including, without limitation causing the Project Company to sell any electricity other than to PJM.

With respect to the period following the Flip Date, the matters in paragraph (a) above shall be Major Decisions, except that any such matter will be a Major Decision only with respect to the sale, lease or other voluntary disposition of assets at a price other than for fair market value, and the matters in clauses (g), (o) and (p) shall also be Major Decisions.

“Majority Vote” is defined in Section 3.2(f) of the Company LLC Agreement.

“Managing Member” is defined in Section 8.2(a) of the Company LLC Agreement.

“Material Adverse Effect” means a material adverse effect on the business, assets, liabilities, financial condition or results of operations of the Project Company, excluding any effect resulting from (a) effects of weather or meteorological events, (b) general industry strikes, work stoppages or other labor disturbances, or (c) the execution or delivery of the Transaction

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Documents or the transactions contemplated in them or the announcement of such transactions. An adverse effect will be considered “material” under this definition for purposes of the conditions precedent to closing in Sections 2.5, 2.6, 2.7 and 2.8 of the ECCA if it will cause a reduction of at least $1,000,000 in the aggregate, across one or more conditions precedent, in the sum of the net present values of the Grants and Project Company Distributable Cash from the Portfolio through the Flip Date as projected in the Base Case Model. An adverse effect will be considered “material” under this definition for purposes of any post-closing indemnities for breach of representations if it is reasonably likely to cause a reduction of at least $1,000,000 in the aggregate in the sum of the net present values of the Grants and Project Company Distributable Cash from the Portfolio over the period from the Initial Funding Date through the Flip Date as projected in the Base Case Model. The net present value will be calculated by discounting to the Initial Funding Date for the Portfolio, a Grant and Project Company Distributable Cash received through the date of calculation and discounting the remaining Grants and cash through the projected Flip Date in the Base Case Model using the Target IRR as the discount rate.

“Material Contract” means (a) a contract for the sale of electricity or transmission services of a System for a term of more than one year, (b) a contract, lease, indenture or security agreement under which the Company or the Project Company (i) has created, incurred, assumed or guaranteed any indebtedness for borrowed money or obligations under any lease that, in accordance with GAAP, or international financial reporting standards, as applicable, should be capitalized, (ii) has created a mortgage, security interest or other consensual encumbrance on any property with a fair market value of more than [***] (other than any Permitted Liens), or (iii) has a reimbursement obligation in respect of any letter of credit, guaranty, bond, or other credit or collateral support arrangement required to be maintained by the Project Company under the terms of any contract referred to in clause (a) above, (c) a contract for management, operation or maintenance of the Company, the Project Company or a System that requires payments of more than [***], (d) a product warranty or repair contract by or with a manufacturer or vendor of equipment owned or leased by the Project Company with a fair market value of more than [***], (e) any other contract that is expected to require payments by the Company or the Project Company, in the aggregate, of more than [***] per calendar year and (f) the MESPA, the DPL Agreements, the PJM Agreements, the MOMA, the Site Leases, the Note Purchase Agreement, the Interparty Agreement, the Collateral Documents (as defined in the Note Purchase Agreement), any other Credit Document, the Administrative Services Agreement or any Transaction Document.

“MBR Authority” is defined in Section 2.7(n) of the ECCA.

“Mehetia” is defined in the preamble to the ECCA.

“Mehetia Indemnified Parties” means Mehetia and any person to whom Mehetia transfers any portion of its Class B Membership Interests in accordance with Article IX of the Company LLC Agreement, and each of their respective Affiliates and each of their respective shareholders, partners members, officers, directors, employees, agents, and other representatives, and their respective successors and assigns.

[***] Confidential Treatment Requested

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“Member” means any Person executing the Company LLC Agreement as of the date of the Company LLC Agreement as a member of the Company or any Person admitted to the Company as a member as provided in the Company LLC Agreement (each in the capacity as a member of the Company), but does not include any Person who has ceased to be a member of the Company.

“Member Loan” means any loan or advance made by (i) a Class B Member to the Company or (ii) the Company to the Project Company, pursuant to Section 4.5 of the Company LLC Agreement.

“Member Nonrecourse Debt” means “partner nonrecourse debt” as defined in Treasury Regulation Section 1.704-2(b)(4). An example is where a Member or a person related to the Member makes a loan on a nonrecourse basis to the Company.

“Member Party” is defined in Section 3.6(a) of the Company LLC Agreement.

“Membership Interest” means the interest of a Member in the Company, including rights to distributions (liquidating or otherwise), allocations, and to vote, consent or approve, if any.

“MESPA” means the Master Energy Server Purchase Agreement, dated as of the Initial Funding Date, between Bloom and the Project Company.

“Minimum Gain Attributable to Member Nonrecourse Debt” means the amount of minimum gain there is in connection with a Member Nonrecourse Debt, calculated in the manner described in Treasury Regulation Section 1.704-2(i)(3).

“MOMA” means the Master Operation and Maintenance Agreement, dated as of the Initial Funding Date, between the Project Company and the Operator, as such agreement may be amended, supplemented or replaced from time to time.

“Moody’s” means Moody’s Investor Service, Inc.

“MW” means megawatt or one million watts of Energy.

“Nonrecourse Deduction” means a deduction for spending that is funded out of nonrecourse borrowing by the Company or that is otherwise attributable to a “nonrecourse liability” of the Company within the meaning of Treasury Regulation Section 1.704-2.

“Note Holders” means the holders, from time to time, of the notes issued by the Project Company under the Note Purchase Agreement.

“Note Proceeds” is defined in Section 2.7(h) of the ECCA.

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“Note Purchase Agreement” means the Note Purchase Agreement, dated March 20, 2013, among the Project Company and the note purchasers party thereto.

“Notice” is defined in Section 11.1 of the Company LLC Agreement.

“Operations Report” is defined in Section 7.1(a) of the Company LLC Agreement.

“Operator” means Bloom.

“Ordinary Course of Business” means the ordinary conduct of business consistent with past custom and practice (including with respect to quantity and frequency).

“Party” means, for purposes of the ECCA, a party to the ECCA and for purposes of the Company LLC Agreement, a party to the Company LLC Agreement.

“Percentage Interest” means the percentage interest shown for a Class A Member or Class B Member, as applicable, in Schedule 4.2(d) of the Company LLC Agreement as updated from time to time.

“Permitted Distribution” is defined in the Note Purchase Agreement.

“Permitted Encumbrance” means Encumbrances provided for under the Transaction Documents, liens for Taxes not yet due and payable for which adequate reserves have been provided in accordance with GAAP and restrictions on transfer of the Membership Interests under any applicable federal, state or foreign securities law.

“Permitted Investments” means any of the following having a maturity of not greater than one year from the date of issuance thereof: (a) readily marketable direct obligations of the government of the United States of America or any agency or instrumentality thereof or obligations unconditionally guaranteed by the full faith and credit of the government of the United States of America, (b) insured certificates of deposit of or time deposits with any commercial bank that is a member of the Federal Reserve System, issues (or the parent of which issues) commercial paper rated as described in clause (c) below, is organized under the laws of the United States or any State thereof and has combined capital and surplus of at least $1,000,000,000.00 or (c) commercial paper issued by any corporation organized under the laws of any State of the United States and rated at least “Prime-1” (or the then equivalent grade) by Moody’s Investors Service, Inc. or “A-1” (or the then equivalent grade) by Standard & Poor’s Corporation.

“Permitted Liens” means (a) Liens for taxes not yet due or that are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, employees’, contractors’, operators’ or other similar Liens or charges securing the payment of expenses not yet due and payable that were incurred in the Ordinary Course of Business of the Project Company or for amounts being contested in good faith and by appropriate proceedings,

23

(c) trade contracts or other obligations of a like nature incurred in the Ordinary Course of Business of the Project Company, (d) obligations or duties to any Governmental Authority arising in the Ordinary Course of Business (including under licenses and permits held by the Project Company and under all applicable laws, rules, regulations and orders of any Governmental Authority), (e) obligations or duties under easements, leases or other property rights, (f) Liens arising out of judgments or awards so long as an appeal or proceeding for review is being prosecuted in good faith and for the payment of which adequate reserves in accordance with GAAP, bonds or other security have been provided or are fully covered by insurance, (g) Liens of record and zoning and other land use restrictions that do not impair the value or intended use of a System, (h) security interests granted to satisfy credit support obligations or margin requirements under any existing or subsequently entered into power purchase agreement, power sales agreement, natural gas supply agreement (including the DPL Agreements), or swap or hedge agreement, in each case, in which the Project Company (but not any Affiliate of the Project Company) is the counterparty to such agreement, (i) Permitted Encumbrances, (j) with respect to the Project Company, easements, rights-of-way, restrictions, reservations and other similar encumbrances and exceptions to title existing or incurred in the ordinary course of business that, in the aggregate, do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the Project Company, taken as a whole, (k) Liens created pursuant to any Credit Document and (l) all other encumbrances and exceptions that are incurred in the Ordinary Course of Business of the Portfolio, are not incurred for borrowed money, and do not have a Material Adverse Effect on either the use of any material assets of the Project Company as currently used or the value of any such assets; provided, however, that the foregoing excludes any Liens held by Bloom or its Affiliates.

“Permitted Transfers” is defined in Section 9.5 of the Company LLC Agreement.

“Person” means an individual, corporation, partnership, limited liability company, association, trust, unincorporated organization, or other entity.

“PJM” means PJM Interconnection, LLC, a regional transmission organization.

“PJM Agreements” is defined in the QFCP-RC Tariff.

“PJM Grid” means the PJM electricity transmission grid.

“PJM Market” means the PJM Interchange Energy Market which Project Company is to sell all of its energy, capacity, ancillary services and environmental attributes pursuant to the QFCP-RC Tariff and the PJM Agreements, and any PJM successor market.

“Placed in Service” means with respect to any System, the completion of or the performance of all of the following activities: (1) obtaining the necessary licenses and permits for the operation of the System and sale of Energy, capacity, ancillary services and RECs generated by (or attributable to) the System, (2) completion of critical tests necessary for proper operation of such System, (3) synchronization of such System onto the PJM Grid, and (4) the commencement of daily operation of such System.

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“Portfolio” is defined in the preliminary statements of the ECCA.

“Pre-Flip Period” means the period commencing on the Initial Funding Date and ending on the Flip Date.

“Prime Rate” means a rate per annum equal to the lesser of (a) the prime rate published from time to time in The Wall Street Journal, and (b) the maximum rate permitted by Applicable Laws.

“Pro Rata Shares” means, with respect to (i) any Class A Member, such Class A Member’s Class A Membership Interests divided by the aggregate Class A Membership Interests of all Class A Members or (ii) any Class B Member, such Class B Member’s Class B Membership Interests divided by the aggregate Class B Membership Interests of all Class B Members.

“Progress Contributions” is defined in Section 2.2(b)(ii) of the ECCA.

“Project” is defined in the preliminary statements of the ECCA.

“Project Company” means Diamond State Generation Partners, LLC.

“Project Company Distributable Cash” means, as of any date, all cash, cash equivalents and liquid investments (excluding Capital Contributions, Permitted Investments and any cash received in respect of the Grant) held by the Project Company as of such date less all reasonable reserves that, in the reasonable judgment of the manager of the Project Company, are necessary or appropriate for the operation of the Project Company or the Systems consistently with the Prudent Operator Standard. Reasonable reserves shall consist of any combination of the following reserves as reasonably determined by the manager of the Project Company, without duplication: (i) necessary for payment of expenses included in the Annual Budget, (ii) necessary to prevent or mitigate an emergency situation, (iii) established with the prior written consent of the Members (by Class Majority Vote), (iv) necessary to allow the Project Company to meet expenses that are clearly identified and expected with reasonable certainty to become due, but that are not included in the Annual Budget, (v) necessary to ensure sufficient spare parts or the payment of operational and maintenance costs for each of the Systems and (vi) one or more additional reserves not referred to in the preceding clauses of this definition of “Project Company Distributable Cash” that do not, together with the reserves reserved pursuant to clause (vi) of the definition of Company Distributable Cash, in the aggregate exceed $1,600,000.

“Project Company LLC Agreement” means the Second Amended and Restated Limited Liability Company Agreement of the Project Company, dated as of March 20, 2013,as the same may be amended, supplemented or replaced from time to time.

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“Projected Contribution Schedule” means the projected schedule of Capital Contributions to be made by Clean Technologies and Investor at each Funding attached to the ECCA as Annex II.

“Prudent Operator Standard” means that a Person will (i) perform its duties in compliance with the requirements of the Material Contracts, (ii) perform the duties in accordance with commercially reasonable applicable fuel cell industry standards (A) taking into account through the Flip Date the need to maintain qualification for a Grant (or if unavailable, the Alternative Tax Program) and to avoid any Class A Recapture Event and (B) that the Portfolio must qualify for and remain qualified to receive service under the QFCP-RC Tariff, and (iii) use sufficient and properly trained and skilled personnel.

“PUHCA” means the Public Utility Holding Company Act of 2005 and FERC’s implementing regulations.

“Purchase Option” is defined in Section 9.7 of the Company LLC Agreement.

“Purchase Option Date” is defined in Section 9.7 of the Company LLC Agreement.

“Purchase Option Price” means the greater of (i) the fair market value of the Class B Membership Interests on the Purchase Option Date as determined by agreement between Class B Member transferring its Class B Membership Interests and the Class A Members and (ii) an amount sufficient to cause Class B Member to achieve an Internal Rate of Return equal to [***]; provided, however, that should Class B Member transferring its Class B Membership Interests and the Class A Members fail to agree on such fair market value within 30 days of the date on which the Purchase Option Exercise Notice is provided, such fair market value shall be determined by the Appraisal Method which shall be then automatically invoked unless all of the Members otherwise agree in writing.

“Purchase Option Exercise Notice” is defined in Section 9.7 of the Company LLC Agreement.

“QFCP-RC Tariff” means DPL’s Service Classification “QFCP-RC” for REPS Qualified Fuel Cell Provider Projects as approved by DPSC in Order no. 8062 dated October 18, 2011, as adopted and supplemented by DPSC’s Findings, Opinion and Order No. 8079, dated December 1, 2011.

“Quarter” means a calendar quarter.

“Qualified Transferee” means, with respect to any proposed Transfer, (A) an entity that (i) has (x) owned or operated for a period of at least three (3) years (within the then most recent four year period), and at the time of such Transfer continues to own and operate, solid oxide fuel cell power generating systems or (y) engaged a Person who has owned or operated for a period of at least three (3) years (within the then most recent four year period), and at the time of such Transfer continues to own and operate, solid oxide fuel cell power generating systems, and (ii)

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either (x) has a credit rating of “BBB-” or higher by S&P and “Baa3” or higher by Moody’s, or (y) has annual revenues of not less than $5,000,000 and a tangible net worth of at least $200,000,000 or (B) such other entity with respect to which the consent of Investor has been obtained.

“Recapture Claim” means a written notice provided by the Class A Members to the Company and Class B Member with respect to Recapture Damages caused by a Class B Recapture Event or by Class B Member to the Company and the Class A Members with respect to Recapture Damages caused by a Class A Recapture Event.

“Recapture Damages” means the amount of (i) any portion of any payment required to be made to the United States of America (or any agency or instrumentality thereof), as applicable, resulting from all or any portion of the Grant or any successor grant program or cash-based subsidy being “recaptured” or denied that is paid by Class B Member, in the case of a Class A Recapture Event, or by the Class A Members, in the case of a Class B Recapture Event, and (ii) with respect to a Member if the Grant, any successor grant program or cash-based subsidy is unavailable with respect to any System, such Members’ share of any payment required to be made by such Member to the United States of America (or any agency or instrumentality thereof) resulting from the recapture or denial of all or any portion of any refundable tax credit or ITC with respect to such System.

“Recapture Event” means an event that results in denial or recapture of the Grant, or any Alternative Tax Program, or a portion thereof, by Treasury or any other Governmental Authority.

“Recapture Period” means, with respect to any System, the period from the date on which the System is placed in service for federal income tax purposes until the 5th anniversary of the date the System is placed in service for federal income tax purposes.

“RECs” means any credits, credit certificates, green tags or similar environmental or green energy attributes (such as those for greenhouse reduction or the generation of green power or renewable energy) created by a governmental agency or independent certification board or group generally recognized in the electric power generation industry, and generated by or associated with the System or electricity produced therefrom, but excluding the Grants and ITC.

“Red Lion Site” means the Site described in the DPL Site Lease.

“Refund Notice” is defined in Section 2.2(g) of the ECCA.

“Refund Payment Date” is defined in Section 2.2(g) of the ECCA

“Representatives” means, with respect to any Person, the managing member(s), the officers, directors, employees, representatives or agents (including investment bankers, financial advisors, attorneys, accountants, brokers and other advisors) of such Person, to the extent that such officer, director, employee, representative or agent of such Person is acting in his or her capacity as an officer, director, employee, representative or agent of such Person.

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“REPS Act” means the Renewable Energy Portfolio Standards Act, as amended most recently by S.B. 124, enacted July 10, 2011 (Title 26, Chap. 1, section 351 et seq. of the Code of the State of Delaware).

“Required Holders” shall have the meaning provided to such term in the Note Purchase Agreement.

“Required Ratings” means a long-term senior unsecured credit rating, long-term local issuer credit rating or insurer financial strength rating of at least A- by Standard & Poor’s Corporation or A3 by Moody’s Investors Service, Inc. or, if either agency is not then in the business of providing ratings, equivalent ratings from any other entity that is then a nationally recognized statistical rating organization.

“Sale Notice” is defined in Section 9.8(a) of the Company LLC Agreement.

“Sale Option” is defined in Section 9.8(a) of the Company LLC Agreement.

“Sale Option Date” is defined in Section 9.8(a) of the Company LLC Agreement.

“Sale Price” means the fair market value of the Class B Membership Interests on the Sale Option Date as determined by agreement between Class B Member transferring its Class B Membership Interests and the Class A Member; provided, however, that should Class B Member transferring its Class B Membership Interests and the Class A Member fail to agree on such fair market value within 30 days of the date on which the Sale Notice is provided, such fair market value shall be determined by the Appraisal Method which shall be then automatically invoked unless otherwise agreed by all of the Members in writing.

“S&P” means Standard and Poor’s Corporation.

“Schedules” means, in the case of the ECCA, the schedules attached to the ECCA and in the case of the Company LLC Agreement, the schedules attached to the Company LLC Agreement.

“Section 203 Order” means the order issued by FERC authorizing the Company under Section 203(a)(1) of the FPA to issue the Class B Membership Interests to Mehetia.

“Securities Act” is defined in Section 3.3(e) of the ECCA.

“Site” is defined in the MESPA.

“Site Leases” means, collectively, the DPL Site Lease and the DDOT Site Lease.

“Subsequent Funding” is defined in Section 2.4 of the ECCA.

“Subsequent Funding Date” is defined in Section 2.4 of the ECCA.

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“Subsequent Funding Payment” is defined in Section 2.2(b) of the ECCA.

“Subsequent Funding Termination Date” means March 31, 2014 or any later date agreed to by Investor and Clean Technologies.

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

“System” means each proprietary solid oxide fuel cell power generating unit including the integrated assembly of mounting assemblies, metering, transformers, disconnects, switches, wiring devices and wiring interconnected with the PJM Grid and connected to DPL as the supplier of natural gas to fuel the System.

“Target IRR” means a pre-tax Internal Rate of Return of [***].

“Target IRR Notice” is defined in Section 7.1(e) of the Company LLC Agreement.

“Tariffs” means the QFCP-RC Tariff and the Gas Tariff.

“Tax” (and, with correlative meaning, “Taxes” and “Taxable”) means:

(a) any taxes, customs, duties, charges, fees, levies, penalties or other assessments, fees and other governmental charges imposed by any Governmental Authority, including, but not limited to, income, profits, gross receipts, net proceeds, windfall profit, severance, property, personal property (tangible and intangible) production, sales, use, leasing or lease, license, excise, duty, franchise, capital stock, net worth, employment, occupation, payroll, withholding, social security (or similar), unemployment, disability, payroll, fuel, excess profits, occupational, premium, severance, estimated, alternative or add-on minimum, ad valorem, value added, turnover, transfer, stamp, or environmental tax, or any other tax, custom, duty, fee, levy or other like assessment or charge of any kind whatsoever, together with any interest, penalty, addition to tax, or additional amount attributable thereto; and

(b) any liability for the payment of amounts with respect to payment of a type described in clause (a), including as a result of being a member of an affiliated, consolidated, combined or unitary group, as a result of succeeding to such liability as a result of merger, conversion or asset transfer or as a result of any obligation under any tax sharing arrangement or tax indemnity agreement.

“Tax Matters Partner” is defined in Section 7.7(a) of the Company LLC Agreement.

[***] Confidential Treatment Requested

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“Tax Returns” means any return, report, statement, information return or other document (including any amendments thereto and any related or supporting information) filed or required to be filed with any Governmental Authority in connection with the determination, assessment, collection or administration of any Taxes or the administration of any laws, regulations or administrative requirements relating to any Taxes, including after the Funding any IRS Schedule K-1 issued to Members by the Company, information return, claim for refund, amended return or declaration of estimated Tax.

“Third Party Claim” means any action, proceeding, demand or claim by a third party (it being understood that any Affiliate of a Member shall not be deemed to be a third party) excluding any claim relating to the recapture, loss, or denial of all or a portion of a Grant that is already provided for in Section 6.6, Section 6.7, Section 6.8 and Section 6.9 of the Company LLC Agreement.

“Third Party Penalty Claim” is defined in Section 9.14 of the Company LLC Agreement.

“Tracking Model” means the Base Case Model updated to reflect actual results of the Company, but with the assumptions and conventions in Section 6.5 of the Company LLC Agreement remaining unchanged.

“Transaction Documents” means the Company LLC Agreement, the Project Company LLC Agreement, the ECCA, the Administrative Services Agreement, the MESPA, the MOMA, the Credit Suisse Guaranty, the Bloom Guaranty and each of the other documents required to be delivered on the Execution Date, individually and collectively, and, if any Initial Funding or Subsequent Funding shall have occurred, each document required to be delivered on the Initial Funding Date or a Subsequent Funding Date, individually and collectively.

“Transfer” is defined in Section 9.1 of the Company LLC Agreement.

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

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

“UCC” means the Uniform Commercial Code, as the same may be in effect in the State of New York or any other applicable jurisdiction.

OTHER DEFINITIONAL PROVISIONS

All terms in the ECCA and the Company LLC Agreement, as applicable, shall have the defined meanings when used in any certificate or other document made or delivered pursuant thereto unless otherwise defined therein.

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As used in the ECCA and the Company LLC Agreement and in any certificate or other documents made or delivered pursuant thereto, accounting terms not defined in the ECCA or the Company LLC Agreement or in any such certificate or other document, and accounting terms partly defined in the ECCA or the Company LLC Agreement or in any such certificate or other document to the extent not defined, shall have the respective meanings given to them under GAAP. To the extent that the definitions of accounting terms in the ECCA or the Company LLC Agreement or in any such certificate or other document are inconsistent with the meanings of such terms under GAAP, the definitions contained in the ECCA or the Company LLC Agreement or in any such certificate or other document shall control.

The words “hereof”, “herein”, “hereunder”, and words of similar import when used in the ECCA and the Company LLC Agreement shall refer to the ECCA or the Company LLC Agreement, as the case may be, as a whole and not to any particular provision of the ECCA or the Company LLC Agreement. Section references contained in the ECCA and the Company LLC Agreement are references to Sections in the ECCA or the Company LLC Agreement, as applicable, unless otherwise specified. The term “including” shall mean “including without limitation”.

The definitions contained in the ECCA and the Company LLC Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms.

Any agreement, instrument or statute defined or referred to herein or in any instrument or certificate delivered in connection herewith means such agreement, instrument or statute as from time to time amended, modified or supplemented and includes (in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein.

Any references to a Person are also to its permitted successors and assigns.

All Article and Section titles or captions contained in the ECCA or the Company LLC Agreement, as applicable, or in any Exhibit or Schedule referred to therein and the table of contents of the ECCA and the Company LLC Agreement are for convenience only and shall not be deemed a part of the ECCA or the Company LLC Agreement, as the case may be, or affect the meaning or interpretation of the ECCA or the Company LLC Agreement, as applicable. Unless otherwise specified, all references in the ECCA or the Company LLC Agreement to numbered Articles and Sections are to Articles and Sections of the ECCA or the Company LLC Agreement, as applicable, and all references herein to Schedules or Exhibits are to Schedules and Exhibits to the ECCA or the Company LLC Agreement, as applicable.

Unless otherwise specified, all references contained in the ECCA or the Company LLC Agreement, in any Exhibit or Schedule referred to there in or in any instrument or document delivered pursuant thereto to dollars or “$” shall mean United States dollars.

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The Parties to the ECCA have participated jointly in the negotiation and drafting of the ECCA. The Parties to the Company LLC Agreement have participated jointly in the negotiation and drafting of the Company LLC Agreement. In the event an ambiguity or question of intent or interpretation arises, the ECCA and the Company LLC Agreement shall be construed as if drafted jointly by the respective Parties thereto and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of the ECCA or the Company LLC Agreement, as the case may be.

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ANNEX II

CLASS B MEMBERSHIP INTERESTS

Class B Member	Number of Class B Membership Interests Owned	Percentage of Class B Membership Interests Owned
Mehetia Inc.	495	100%

Annex II - 1

SCHEDULE 4.2(b)

CONTRIBUTED PROPERTY

Member	Contributed Value
Clean Technologies II, LLC	[***]
Mehetia Inc.	[***]

[***] Confidential Treatment Requested

Schedule 4.2(b) - 1

SCHEDULE 4.2(d)

CAPITAL ACCOUNT BALANCE AND PERCENTAGE INTEREST

Member Name and Address	Capital Account Balance	Percentage Interest
Clean Technologies II, LLC	[***]	100% of the Class A
c/o Bloom Energy Corporation 1299 Orleans Drive
Sunnyvale, California 94089
Attn: [***]
Telephone: [***]
Fax: [***]
Mehetia Inc.	[***]	100% of the Class B
Eleven Madison Avenue
New York, New York 10010
Attn: [***]
Telephone: [***]
Fax: [***]
with a copy of any notice sent to:
Credit Suisse Securities (USA)
LLC
One Madison Avenue
New York, New York 10010
Attn: [***]
Telephone: [***]
Fax: [***]
and with a copy of any notice sent, which will not constitute notice, to:
McDermott Will & Emery LLP 340 Madison Avenue
New York, New York 10173
Attn: [***]
Telephone: [***]
Fax: [***]

[***] Confidential Treatment Requested

Schedule 4.2(b) - 1

SCHEDULE 8.2(e)

OFFICERS

William H. Kurtz	President
William E. Brockenborough	Vice President, General Manager
Martin J. Collins	Vice President, Secretary
Timothy Gray	Vice President

Schedule 8.2(e) - 1

SCHEDULE 8.4

INSURANCE

The Managing Member shall cause the Company to acquire and maintain (including making changes to coverage and carriers) the casualty, general liability (including product liability), property damage and/or other types of insurance on the terms set forth in this Schedule.

In each case the policies must be with insurance carriers with a rating of at least A- and a financial size category of at least X by A.M. Best or A by S&P or otherwise reasonably acceptable to Class B Members.

The policies specified in Appendix 1 of this Schedule shall be in full force and effect at all times on and after the Effective Date until the LLC Agreement Termination Date subject to renewal no more frequently than annually.

At no time shall there be any gap in cover.

The policy limits and cover of the insurances required in this Schedule shall be sufficient to satisfy the requirements set forth in the Company LLC Agreement, but in no event less than the limits and coverage provisions set forth in Appendix 1 herein. The obligation to verify that the insurance meets the requirements of the Company LLC Agreement shall rest solely with the Company.

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

The Managing Member hereby waives any and every claim for recovery against Class B Members or their directors, officers and employees and agents for any and all loss or damage covered by any insurance policies to be maintained under this Schedule to the extent such loss or damage is recovered under any such policy.

All policies of insurance required to be maintained pursuant to this Schedule, other than cover required by law, shall be endorsed such that if at any time they are cancelled, lapsed, terminated or suspended (by any party including the insuring parties), such cancellation, lapse, termination or suspension shall not become effective until at least 30 days after receipt by Class B Members from such insurer of such cancellation, lapse, termination or suspension, except for non-payment of premium for which the required written notice shall be 10 days. In addition to this requirement, the Managing Member shall inform the Class B Members as soon as reasonably possible if it becomes aware of any such cancellation, lapse, termination or suspension or of any reasonable prospect of such and shall further require the Company’s broker to do the same.

• All policies of insurance required to be maintained pursuant to this Schedule, except workers compensation and employers liability, shall provide: Additional Insured status for Class B Members and their respective affiliates, directors, officers and employees and agents (collectively, the “Additional Insureds”). This requirement shall not apply to any professional indemnity policy.

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

• Policies either (a) non-cancellable except for non-payment of premium with at least 10 days written notice of such to the Class B Members; or (b) cancellation/non-payment provisions in accordance with the provisions of this Schedule.

• Class B Members will have the right but not the obligation to pay premiums on behalf of the Company in case of non-payment.

• Policies shall be unaffected by any bankruptcy or foreclosure relating to the Managing Member, the Company or the Project Company.

• Insurance shall be primary and not excess to or contributing with any other insurance or self-insurance maintained by the Managing Member, the Company, or the Additional Insureds. However, policies can act in excess of such project-specific policies provided by contractors in accordance with the requirements of this Schedule.

• Insurer shall not permit the Managing Member to reduce limits or cover or degrade terms and conditions without the prior written approval of the Class B Members.

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

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

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

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

• That Class B Members shall be loss payee of any amounts payable under the policies in relation to the Managing Member, the Company or the Project Company.

• Non vitiation in accordance with a multiple insured clause acceptable to the Class B Members or equivalent protection.

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

• An advance or partial payment endorsement.

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

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

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

• Severability.

• Cross liability with no exclusions.

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

The Managing Member shall provide Class B Members as soon as reasonably possible prior to the Initial Funding Date, and at least 10 days prior to any subsequent policy inception or renewal, a certificate of pre-agreed format from:

• Each placing broker confirming:

• Summary policy terms in the pre-agreed format.

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

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

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

• The Insurance Consultant (as defined in the Note Purchase Agreement) confirming that:

• The insurance provided complies with the requirements of this Schedule and further complies with the requirements of the Managing Member in the Transaction Documents.

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

The insurance provided by the Company shall be at least that evidenced in any certificates or other evidence provided by the Company or the Project Company.

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

If in the opinion of the Managing Member, acting reasonably, any insurance, including the terms and conditions, Required Provisions and limits or deductibles thereof, hereby required by this Schedule to be maintained, other than insurance required to be maintained by law which shall be maintained at all times, shall not be available on commercially reasonable terms in the commercial insurance market, the Managing Member shall promptly inform the Class B Members of such purported unavailability and the Managing Member shall seek a waiver from Class B Members in relation to such purported unavailability in which case the Class B Members, acting after consultation with the Insurance Consultant, shall not unreasonably

- 4 -

withhold agreement to waive such requirement to the extent the maintenance thereof is not so available. The granting by Class B Members of any such waiver is conditional on: (i) the Managing Member first requesting such waiver in writing, which request shall be accompanied by written reports prepared by the Company and its placing broker certifying that such insurance is not available on commercially reasonable terms in the commercial insurance market for projects of similar type and capacity and, in any case where the required amount is not so available, certifying as to the maximum amount which is so available, and explaining in detail the basis for such conclusions and the form and substance of such reports to be reasonably acceptable to the Class B Members after consultation with the Insurance Consultant; (ii) at any time after the granting of any such waiver, the Class B Members may request, and the Managing Member furnish to the Class B Members within fifteen (15) days after such request, supplemental reports reasonably acceptable to the Class B Members updating the prior reports and reaffirming such conclusion; (iii) any such waiver granted by the Class B Members can amend, to the extent reasonably required to mitigate any increased risks created by the absence of insurance cover that is the subject of the waiver, any of the terms of this Schedule; (iv) the Class B Members may require the Company to obtain the best available insurance comparable to the requirements of this Schedule on commercially reasonable terms then available in the commercial insurance market (as determined by the Insurance Consultant); and (v) such waiver shall be effective only so long as such insurance shall not be available on commercially reasonable terms in the commercial insurance market (as determined by the Insurance Consultant) it being understood that the failure of the Managing Member to furnish any supplemental reports shall be deemed to be conclusive evidence that such waiver is no longer effective because such condition no longer exists, but that such failure is not the only way to establish such non-existence.

The policy teams actually provided in accordance with the provisions of this Schedule shall be at least those evidenced to the Company.

Any failure on the part of Class B Members to pursue or obtain the evidence of insurance required by this Schedule from the Managing Member and/or failure to point out any noncompliance of such evidence of insurance shall not constitute a waiver of any of the insurance requirements in this Schedule.

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

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

- 5 -

All insurance policies required to be maintained pursuant to this Schedule shall contain terms and conditions reasonably acceptable to the Class B Members following consultation with the Insurance Consultant.

In the event that at any time the insurance as herein provided or as evidenced shall be reduced or cease to be maintained, then the Class B Members, upon ten (10) Business Days’ prior written notice (unless such insurance coverage would lapse within such period, in which event notice should be given as soon as reasonably possible) to the Company of any such failure, may (but shall not be obligated to) take out the required policies of insurance and pay the premiums on the same. All amounts so advanced for such purpose shall become an additional obligation of the Company to the Class B Members and the Company shall forthwith pay such amounts (as provided in the Company LLC Agreement, if any).

The Class B Members can, acting reasonably, require such additional cover to be provided as is required to confirm to prudent industry practice.

The Class B Members shall have the option to be present and/or to send representatives during meetings and/or negotiations with insurers of any loss settlement in relation to the Company or the Project regarding (a) total constructive loss or any scenario in which repair/replacement will not follow loss, (b) any circumstance involving a claim in relation to an event or series of events which has or could be reasonably expected to lead to a default under any Transaction Documents or material contracts. Neither the Managing Member nor any of its Affiliates shall be permitted to settle any such claim with an insurer without the approval of the Class B Members to the agreed settlement.

The Class B Members may, pursuant to its rights and obligations under this Schedule, consult with the Insurance Consultant and require reports, compliance certificates and other work product from the Insurance Consultant.

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

- 6 -

Appendix 1

Construction Phase Property Policy

From the Initial Funding Date, evidence shall be provided that is reasonably acceptable to the Class B Members that adequate property insurances are in place sufficient to cover the value of (a) the largest transit shipment and offsite storage; and (b) aggregate assets at the Project site prior to the All Risk Property and Business Interruption Insurance being in full force and effect. Furthermore, the Class B Members will be added as additional insured to the construction general liability policy which shall have limits and terms adequate to cover their exposure.

All Risk Property and Business Interruption Insurance

From the Initial Funding Date, “All Risk Property” insurance shall be provided for all property, equipment and construction and erection activities associated with the Project on an “all risk” basis insuring the Company, Project Company and the Additional Insureds, as their interests may appear, including but not limited to coverage for the perils of earth movement (including but not limited to earthquake, landslide, subsidence, sink hole and volcanic eruption), flood, named windstorm. There shall be no requirement for machinery breakdown coverage subject to the agreement of the Class B Members, acting reasonably, that such risks are adequately covered by the Power Performance Warranty.

The policy limit shall be an amount not less than the aggregate full replacement cost of the Project such amount also being referred to as the “full policy limit”. Full insurable value shall mean the full replacement cost value of the Project on a “new for old” basis, including but not limited any new or existing buildings or structures, any improvements to new or existing property, equipment, mechanical plant, electrical plant, spare parts, and supplies and temporary works.

Per occurrence sublimits shall be at least as follows:

•  Debris removal physical “loss”	25% of the amount payable for the direct
•  Architects and engineers fees	$2m
•  Expediting expense	$1m
•  Blueprints, drawings, etc.	$1m or less
•  On site pollution	$100,000

Schedule 8.4 - 1

An annual aggregate sublimit shall be permitted for flood of $10M. An annual aggregate sublimit shall be permitted for earth movement of $25M subject to confirmation from the Independent Engineer and accepted by the Class B Members, acting reasonably, that any such damage is likely to be within this limit. Limits for windstorm shall be full policy limits on a per occurrence basis.

The All Risk Property policy shall include (i) a seventy-two (72) hour flood/named windstorm/earthquake clause, (ii) an unintentional errors and omissions clause. There shall be no serial loss clause.

Business Interruption coverage insuring the loss of expected gross revenues for the largest single Project for a period of not less than the greater of (a) 12 months; and, (b) the longest lead time for replacement as determined by the Class B Members in consultation with the Independent Engineer as a result of physical loss or damage by perils required to be insured under the All Risk Property policy, including all sections preceding this section, which cause a reduction in output.

Contingent business interruption insurance covering loss of gross revenues less non-continuing expenses for:

• Power Suppliers and Public Utilities Extension — loss, including delay, caused by interference/interruption of power/other utility including export substation — full cover.

• Prevention of Ingress/Egress 90 days

• Damage to an export substation cover for loss of expected gross revenues less nonrecurrent costs for a six month indemnity period.

Some or all of the requirements for contingent business interruption can be reduced or eliminated subject to the agreement of the Class B Members that such risks or proportions of such risks are adequately covered by the Tariff.

Deductibles shall be the best commercially available in accordance with prudent industry practice not exceeding 2% for earthquake.

Marine Cargo and Marine Business Interruption Insurance

To the extent a material exposure exists, transit coverage, either included in a property policy or under a separate policy (including air, land and ocean cargo, as applicable) on an “all-risk” basis and a “warehouse to warehouse” basis with a per occurrence limit equal to not less than 110% of the value including transit and insurance of such shipment involving the Project to or from any storage site or the Project site at all times for which the Project Company has accepted risk of loss or has responsibility for providing insurance. Coverage shall include loading and unloading, temporary storage (as applicable) and a 50/50 clause (if applicable). Coverage shall be maintained in accordance with prudent industry practice in all regards with per occurrence deductibles of not more than $100,000 for physical damage and other terms and conditions acceptable to the Class B Members.

- 2 -

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

General Liability

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

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

• Broad form property damage.

• Blanket contractual.

• Products/completed operations

• Advertising injury

• XCU

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

Automobile Liability

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

Workers’ Compensation and Employers Liability

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

Pollution Liability

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

- 3 -

Umbrella Liability Insurance

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

Errors and Omissions Liability

Errors and omissions insurance for liability arising out of property damage or bodily injury to third parties as a result of prototype manufacturing errors and omissions liability $1,000,000 per glitch and in the aggregate. Deductibles shall be the best commercially available in accordance with prudent industry practice.

Directors & Officers Insurance

Unless directors and officers are indemnified by the Company to the reasonable satisfaction of the Company, Directors & Officers insurance, including Employment Practices (if employees) in an amount not less than $10,000,000 on industry standard policy forms subject to a retention not to exceed $50,000.

- 4 -

SCHEDULE 9

TRANSFER REPRESENTATIONS AND WARRANTIES

[The Class B Member] is a [            ] duly organized, validly existing and in good standing under the laws of [            ] and has all requisite [             ] power and authority to reconvey the Class B Membership Interests as contemplated by the Agreement.

(a)    [The Class B Member] owns directly 100% of the Company’s outstanding Class B Membership Interests to the extent that is what it was sold under the [ECCA] [other transfer documentation].

(b)    [The Class B Member] has absolute record and beneficial ownership and title to the Membership Interests held by [the Class B Member] to the extent that is what it was sold under the [ECCA] [other transfer documentation], free and clear of any Encumbrances except Permitted Encumbrances.

(c)    The assignment agreement effecting the Transfer of the Class B Membership Interests from [the Class B Member] to [the Class A Member] has been duly and validly executed and delivered by [the Class B Member] and constitutes [the Class B Member’s] legal, valid and binding obligation, enforceable against it in accordance with its terms (subject, however, to the effects of bankruptcy, insolvency, reorganization, moratorium and similar laws from time to time in effect relating to the rights and remedies of creditors as well as to general principles of equity whether considered at law or in equity).

(d)    Neither the execution, delivery and performance by [the Class B Member] of the assignment agreement effecting the Transfer of the Class B Membership Interests from [the Class B Member] to [the Class A Member] nor the consummation of the transactions contemplated thereby will (i) conflict with or result in any breach of any provision of the organizational documents of [the Class B Member], (ii) violate or conflict with (or give rise to any right of termination, cancellation or acceleration under) any of the terms, conditions or provisions of any contract or other instrument or obligation that [the Class B Member] is a party to or by which [the Class B Member] is bound; or (iii) violate any Legal Requirement or any material license, franchise, permit or other authorization applicable to or affecting [the Class B Member] or any of its respective assets.

(e)    All consents, approvals and filings required to be obtained or made by the [Class B Member] to execute, deliver and perform the assignment agreement effecting the Transfer of the Class B Membership Interests from [the Class B Member] to [the Class A Member] or the consummation by any such Person of the transactions contemplated thereby shall have been obtained or made and shall be in full force and effect as of the date hereof.

Schedule 9 - 1

EXHIBIT A

FORM OF CERTIFICATE FOR CLASS A MEMBERSHIP INTEREST

THE INTERESTS REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACF”) OR ANY STATE SECURITIES LAWS. ACCORDINGLY, SUCH INTERESTS MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF WITHOUT COMPLIANCE WITH SUCH ACT AND SUCH STATE SECURITIES LAWS, AND DIAMOND STATE GENERATION HOLDINGS, LLC MAY REQUIRE AN OPINION OF COUNSEL SATISFACTORY TO IT THAT NO VIOLATION OF SUCH ACT AND SUCH STATE SECURITIES LAWS WILL RESULT FROM ANY PROPOSED SALE, TRANSFER OR OTHER DISPOSITION OF SUCH INTERESTS.

THIS CERTIFICATE EVIDENCES AN INTEREST IN DIAMOND STATE GENERATION HOLDINGS, LLC AND SHALL BE A SECURITY FOR THE PURPOSES OF ARTICLE 8 OF THE UNIFORM COMMERCIAL CODE AS IN EFFECT IN THE STATE OF NEW YORK.

No. [    ] Class A Membership Interests

Diamond State Generation Holdings, LLC

a Delaware Limited Liability Company

Certificate of Interest

This certifies that [                            ] is the owner of [             ] Class A Membership Interests in Diamond State Generation Holdings, LLC (the “Company”), which membership interests are subject to the terms of the Second Amended and Restated Limited Liability Company Agreement of Diamond State Generation Holdings, LLC, dated as of March [    ], 2013 as the same may be further amended, restated, supplemented or otherwise modified from time to time in accordance with the terms thereof (the “Limited Liability Company Agreement”).

This Certificate of Interest may be transferred by the lawful holders hereof only in accordance with the provisions of the Limited Liability Company Agreement.

Exhibit A - 1

IN WITNESS WHEREOF, the said Company has caused this Certificate of Interest to be signed by its duly authorized officer this [    ] day of [             ], 20 [    ].

DIAMOND STATE GENERATION HOLDINGS, LLC

By:    

Name:

Title:

Exhibit A - 2

[Reverse]

INSTRUMENT OF TRANSFER OF

MEMBERSHIP INTEREST IN

Diamond State Generation Holdings, LLC

FOR VALUE RECEIVED, the undersigned does hereby sell, assign and transfer unto

(print or type name of assignee)

the membership interest evidenced by and within the Certificate of Interest herewith, and does hereby irrevocably constitute and appoint                          as attorney to transfer said interest on the books of Diamond State Generation Holdings, LLC with full power of substitution in the premises.

Dated as of:

[                     ]

By:    

Name:

Title:

Exhibit A - 3

EXHIBIT B

FORM OF CERTIFICATE FOR CLASS B MEMBERSHIP INTEREST

THE INTERESTS REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) OR ANY STATE SECURITIES LAWS. ACCORDINGLY, SUCH INTERESTS MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF WITHOUT COMPLIANCE WITH SUCH ACT AND SUCH STATE SECURITIES LAWS, AND DIAMOND STATE GENERATION HOLDINGS, LLC MAY REQUIRE AN OPINION OF COUNSEL SATISFACTORY TO IT THAT NO VIOLATION OF SUCH ACT AND SUCH STATE SECURITIES LAWS WILL RESULT FROM ANY PROPOSED SALE, TRANSFER OR OTHER DISPOSITION OF SUCH INTERESTS.

THIS CERTIFICATE EVIDENCES AN INTEREST IN DIAMOND STATE GENERATION HOLDINGS, LLC AND SHALL BE A SECURITY FOR THE PURPOSES OF ARTICLE 8 OF THE UNIFORM COMMERCIAL CODE AS IN EFFECT IN THE STATE OF NEW YORK.

No. [    ] Class B Membership Interests

Diamond State Generation Holdings, LLC

a Delaware Limited Liability Company

Certificate of Interest

This certifies that [                            ] is the owner of [            ] Class B Membership Interests in Diamond State Generation Holdings, LLC (the “Company”), which membership interests are subject to the terms of the Second Amended and Restated Limited Liability Company Agreement of Diamond State Generation Holdings, LLC, dated as of March [    ], 2013, as the same may be further amended, restated, supplemented or otherwise modified from time to time in accordance with the terms thereof (the “Limited Liability Company Agreement”).

This Certificate of Interest may be transferred by the lawful holders hereof only in accordance with the provisions of the Limited Liability Company Agreement.

Exhibit B -1

IN WITNESS WHEREOF, the said Company has caused this Certificate of Interest to be signed by its duly authorized officer this [    ] day of [             ], 20[    ].

DIAMOND STATE GENERATION

HOLDINGS, LLC

By:    

Name:

Title:

Exhibit B - 2

[Reverse]

INSTRUMENT OF TRANSFER OF

MEMBERSHIP INTEREST IN

Diamond State Generation Holdings, LLC

FOR VALUE RECEIVED, the undersigned does hereby sell, assign and transfer unto

(print or type name of assignee)

the membership interest evidenced by and within the Certificate of Interest herewith, and does hereby irrevocably constitute and appoint                      as attorney to transfer said interest on the books of Diamond State Generation Holdings, LLC, with full power of substitution in the premises.

Dated as of:

[                    ]

By:

Name:

Title:

Exhibit B - 3

EXHIBIT C

FORM OF OPERATIONS REPORT

[To be attached]

Exhibit C - 1

EXHIBIT D

FORM OF ASSIGNMENT AGREEMENT

This ASSIGNMENT OF MEMBERSHIP INTERESTS, dated as of [            ] [        ], 20[    ] (this “Assignment Agreement”), is by and between [                            ], a [                     ] (the “Assignor”) and [                            ], a [                     ] (the “Assignee”).

W I T N E S S E T H  :

WHEREAS, Diamond State Generation Holdings, LLC, a Delaware limited liability company (the “Company”) was formed by virtue of its Certificate of Formation filed with the Secretary of State of the State of Delaware on [                    ], and is governed by the Second Amended and Restated Limited Liability Company Agreement of the Company, dated as of March 20, 2013, executed by the Assignor and [                            ], a [                     ], with all amendments thereto (the “LLC Agreement”);

WHEREAS, the Assignor is currently a [Class A Member] [Class B Member] of the Company;

WHEREAS, pursuant to the LLC Agreement, the Assignor has agreed to transfer to Assignee and Assignee has agreed to accept from the Assignor, on the terms and subject to the conditions set forth in the LLC Agreement, [Class A] [Class B] Membership Interests of the Company;

WHEREAS, pursuant to the LLC Agreement, the parties thereto have agreed to admit the Assignee as a [Class A] [Class B] Member of the Company; and

NOW, THEREFORE, in consideration of the mutual covenants and agreements and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned do hereby agree as follows:

1.    Defined Terms. All capitalized terms not defined herein are used herein as defined in the LLC Agreement.

2.    Instructions to Transfer to Assignee. As of the date hereof, the Assignor hereby assigns and transfers unto Assignee complete record and beneficial ownership of [        ] [Class A] [Class B] Membership Interests in the Company, together with all rights and benefits associated therewith and the Assignee hereby assumes from Assignor complete record and beneficial ownership of [        ] [Class A] [Class B] Membership Interests in the Company, together with all rights and benefits associated therewith. The Assignor hereby irrevocably instructs the Company to register on the books of the Company the transfer to Assignee of complete record and beneficial ownership of [        ] [Class A] [Class B] Membership Interests in the Company previously owned by Assignor.

Exhibit D - 1

3.    Further Assurances. Subject to the terms and conditions of the LLC Agreement, at any time, or from time to time after the date hereof, the Assignor and Assignee shall, at the other’s reasonable request, and at the requesting party’s expense, execute and deliver such instruments of transfer, conveyance, assignment and assumption, in addition to this Assignment Agreement, and take such other action as either of them may reasonably request in order to evidence the transfer effected hereby.

4.    Successors and Assigns. This Assignment Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

5.    Counterparts. This Assignment Agreement may be signed in any number of counterparts, each of which shall be deemed an original, with the same effect as if the signatures hereto were upon the same instrument. This Assignment Agreement shall become effective when each party hereto shall have received a counterpart hereof signed by the other party.

6.    Governing Law. This Assignment Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of New York applicable to contracts performed in that State.

[Remainder of page intentionally left blank. Signature page to follow.]

Exhibit D - 2

IN WITNESS WHEREOF, each party hereto has caused this Assignment of Membership Interests to be signed on its behalf as of the date first written above.

[                            ]

as the Assignor

By:

Name:

Title:

[                            ]

as the Assignee

By:

Name:

Title:

Exhibit D - 3

EXHIBIT E

FORM OF EQUITY CONTRIBUTION NOTICE

[            ], 20[    ]

Diamond State Generation Holdings, LLC

1299 Orleans Drive

Sunnyvale, CA 94089-1137

Attn: Scott Reynolds

Re:    Equity Contribution Notice

Ladies and Gentlemen:

Reference is made to that certain Second Amended and Restated Limited Liability Company Agreement (the “Company LLC Agreement”) for Diamond State Generation Holdings, LLC (the “Company”’), dated March 20, 2013, by and between Clean Technologies II, LLC, a Delaware limited liability company (“Clean Technologies”) and Mehetia Inc., a Delaware corporation (“Mehetia” or “Class B Member”). All capitalized terms, unless otherwise defined herein, shall have the meanings ascribed to them in the Company LLC Agreement.

Pursuant to Section 4.4(a) of the Company LLC Agreement, Diamond State Generation Partners, LLC (the “Project Company”’) hereby delivers to the Company with a copy to Clean Technologies and Class B Members this notice and certifies to such entities as follows as of the Equity Contribution Date:

(1)    attached hereto as Exhibit [A] is a schedule which sets forth (a) the Systems expected to be Placed in Service and expected to achieve Commencement of Operations (as such term is defined in the MESPA) in the 2nd quarter following the quarter in which this notice is delivered (or sooner) for which this notice requests Capital Contribution of the balance of the amounts of the 25% Progress Payment for such System contemplated by the MESPA as provided in such schedule,¹ (b) the Systems which have been Placed in Service and have achieved Commencement of Operations for which this notice requests Capital Contribution of the amounts to be used by Project Company to make (with Note Proceeds) the 75% Progress Payment for such System contemplated by the MESPA as provided in such schedule, (c) an update of the status for all Systems for which a Capital Contribution has been requested in a prior Equity Contribution Notice (“Prior Draw Systems”, and together with the Systems referred to in the preceding clauses (a) and (b), the “Subject Systems”);

¹  Note: if contributions are only being requested pursuant to clause (a) of this paragraph (1), only paragraphs (3), (5) and (6) are required to be included.

Exhibit E - 1

(2)    the Managing Member’s Capital Contribution to the Company of [***] was further contributed by the Company to the Project Company and used by Project Company to incur Project costs in an amount equal to at least [***] of the cost of all Systems;

(3)    attached hereto as Exhibits [B-] are (a) invoices from Bloom to the Project Company for payments under the MESPA for Subject Systems for which a prior Equity Contribution Notice had requested a Capital Contribution in order to make such payment, which invoice specifies: (i) the customer location of the installation of each Subject System, (ii) the serial number or purchase order number for each Subject System, (iii) the price for each Subject System as determined pursuant to the MESPA, (iv) all amounts previously paid as a deposit on each Subject System and (v) all amounts remaining due and payable on each Subject System, (b) evidence of the payment of such invoices by the Project Company, (c) with respect to Prior Draw Systems for which the 7 5% Progress Payment has been made under the MESP A, a Bill of Sale for such Prior Draw Systems;

( 4)    the DPL Agreements have terms that in the aggregate provide to Project Company equal or more favorable economics than set forth in the Base Case Model;

(5)    No material ongoing breach exists by Bloom, Clean Technologies, the Company, the Project Company, the Managing Member, DPL or PJM under the ECCA, the Project Company LLC Agreement, the MESP A, the MOMA, the Administrative^ Services Agreement, the Credit Documents, the DPL Agreements, the PJM Agreements, the Company LLC Agreement or any other Transaction Document or Material Contract, as applicable;

(6)    the Project Company is solvent and no event of Bankruptcy has occurred with respect to the Project Company;

(7)    each of the representations and warranties of Clean Technologies in Section 3.2 of the ECCA relating to the Systems funded by such Equity Contribution is (i) true and correct in all material respects as of such Equity Contribution Date except to the extent that any such representation or warranty shall have been expressly made only as of an earlier date in which case such representation or warranty was true and correct in all material respects as of such earlier date and (ii) if and to the extent such representations and warranties are qualified by the words “material,” “Material Adverse Effect” or similar qualification, true and correct, as qualified, as of the Equity Contribution Date (or such earlier date, as applicable);

(8)    (i) all conditions precedent in Section 2.5 and Section 2.7 of the ECCA (other than Section 2.5(aa)) continue to be satisfied and (ii) there have been no material adverse changes from the circumstances addressed in the due diligence reports delivered to Class B Member under Sections 2.5(a) and (b) of the ECCA;

Exhibit E - 2

(9)    [after the first funding notice:] the prior Equity Contributions have been drawn in accordance with Section 4.3 and Section 4.4 of the Company LLC Agreement, the Project Company currently has a remaining cash balance from such funds of $[            ], such remaining funds are in the Capital Contributions Account, and the Project Company has used any funds from such Equity Contributions not retained in the Capital Contributions Account to make payments under the MESPA;

(10)    the information on each invoice from Bloom to Project Company for payments under the MESPA regarding the Systems to be paid for with proceeds of the Equity Contribution include the following: (i) the location of the installation of each such System, (ii)    the serial number for each such System, (iii) the price for each such System as determined pursuant to the MESPA, (iv) all amounts previously paid as a deposit on each such System and (v) all amounts remaining due and payable on each such System;

(11)    all material Governmental Approvals required to be obtained by Bloom, Clean Technologies, the Company and the Project Company for the construction and installation of the Subject Systems and the sale of electric energy and sale of RECs from the Subject Systems have been obtained, except for any such Governmental Approvals not yet required to be obtained but which can reasonably be expected to be obtained when needed as specified on Exhibit [C];

(12)    Commencement of Operations (as defined under the MESPA) has occurred for the Systems for which this notice requests Capital Contribution of the amounts to be used by Project Company (with Note Proceeds) to make the 75% Progress Payment for such System;

(13)    with respect to the Systems for which this notice requests Capital Contribution of the amounts to be used by Project Company (with Note Proceeds) to make the 75% Progress Payment for such System, the Members have received confirmation that the Note Proceeds have either been disbursed from the Construction Escrow Account or will be available for disbursement from the Construction Escrow Account contemporaneous with Project Company’s drawdown of such Progress Contribution from the Company (as may be evidenced by, among other things, delivery to the Members of a copy of the Account Withdrawal Instruction applicable to such proceeds which has been countersigned by the Collateral Agent and delivered to the Depositary) or the Required Holders have in writing confirmed to the Members that all conditions precedent to such disbursement from the Construction Escrow Account have been satisfied or waived and the Required Holders are prepared to permit such disbursement contemporaneous with Project Company’s drawdown of such Progress Contribution from the Company; and

(14)    with respect to the Systems for which this notice requests Capital Contribution of the amounts to be used by Project Company to make (with Note Proceeds) the 75% Progress Payment for such System, the Members have received written certification from

Exhibit E - 3

the Independent Engineer (as defined in the MESPA) addressed to Project Company certifying, without any qualification, that such System’s commissioning has been successfully completed, that such System is available for full commercial operation, and that Bloom has installed all BOF Work (as defined in the MESPA) necessary for the operation of that System.

In accordance with Section 4.4 of the Company LLC Agreement, the Company is hereby requested to make an Equity Contribution on [        , 20     ] in the amount of $[            ] to the Project Company and to transfer such funds to the following account of the Project Company as set forth below;

Holder Name:	Diamond State
	Generation
	Partners, LLC

Bank Name:

Account Number:

ABA Number:

Exhibit E - 4

Sincerely,

DIAMOND STATE GENERATION HOLDINGS,

LLC, as Manager of Diamond State Generation

Partners, LLC

By:

Name:

Title:

Cc:

Clean Technologies II, LLC

c/o Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, CA 94089-1137

Attn: [***]

Mehetia Inc.

Eleven Madison Avenue New

York, New York 10010

Attn: [***]

[***] Confidential Treatment Requested

Exhibit E - 5

Exhibit [    ]

[TO BE REVISED AS NEEDED FOR EACH EQUITY CONTRIBUTION]

Exhibit E - 6

EXHIBIT F

BASE CASE MODEL

[To be attached]

Exhibit F - 1

EX-10

Exhibit 10.13

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

EXECUTION VERSION

GUARANTY

GUARANTY (this “Guaranty”) dated as of March 16, 2012 by Bloom Energy Corporation, a Delaware corporation (the “Guarantor”), in favor of Mehetia Inc., a Delaware corporation (the “Guaranteed Party”).

PRELIMINARY STATEMENTS

A. The Guarantor desires to have the Guaranteed Party enter into certain Transaction Documents (as defined below) with Clean Technologies II, LLC, a Delaware limited liability company (“Clean Technologies II”), which is a subsidiary of the Guarantor.

B. The Guaranteed Party is willing to enter into the Transaction Documents with Clean Technologies II only on the condition, among others, that Clean Technologies II’s payment obligations under such Transaction Documents are guaranteed by the Guarantor, on the terms set forth in this Guaranty.

NOW, THEREFORE, in consideration of the premises and in order to induce the Guaranteed Party to enter into the Transaction Documents, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Guarantor hereby agrees as follows:

1. Definitions.

1.1 Defined Terms. As used in this Guaranty, the capitalized terms defined in the preamble, preliminary statements and other sections of this Guaranty shall have the respective meanings specified therein; capitalized terms not defined in this Guaranty shall have the meanings given to such terms in the Equity Capital Contribution Agreement, dated as of March 16, 2012 (the “Contribution Agreement”), among the Guaranteed Party, Clean Technologies II, Diamond State Generation Holdings, LLC and Diamond State Generation Partners, LLC, and the following terms shall have the following meanings:

“Obligations” shall mean, without duplication, (i) the due and punctual payment of all amounts payable by Clean Technologies II pursuant to the Transaction Documents, including, without limitation, (A) any Investor Indemnified Costs as and when due in accordance with the Contribution Agreement or the Amended and Restated Limited Liability Company Agreement of Diamond State Generation Holdings, LLC to be entered into between the Guaranteed Party and Clean Technologies II (the “Company LLC Agreement”), as the case may be, (B) all Capital Contributions owed by Clean Technologies II, and (C) all amounts payable by Clean Technologies II as Recapture Damages as a result of a Class A Recapture Event, (ii) to the extent the Administrator is an Affiliate of the Guarantor, the due and punctual payment by such Affiliate of all amounts payable by such Affiliate as Administrator under the Administrative Services Agreement, and (iii) the payment of all other payment obligations of Clean Technologies II to the Guaranteed Party, whether direct or indirect, absolute or contingent, due or to become due, which may arise under or in connection with the Transaction Documents (including, without limitation, interest or other charges as would have accrued on any portion of the payment obligations but for the commencement of any bankruptcy or insolvency proceedings, it being the intention of the Parties that the Obligations that are guaranteed by the Guarantor pursuant to this Guaranty should be determined without regard to any rule of law or order that may relieve Clean Technologies II of any portion of such Obligations).

“Transaction Documents” shall mean (i) the Contribution Agreement, (ii) the Company LLC Agreement, and (iii) to the extent the Administrator thereunder is an Affiliate of the Guarantor, the Administrative Services Agreement.

1.2 Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be modified by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument of other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified in accordance with the provisions hereof and thereof; (b) any reference herein to any person shall be construed to include such person’s successors and permitted assigns; (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Guaranty in its entirety and not to any particular provision of this Guaranty; and (d) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties. Article and section headings used herein are for convenience of reference only, are not part of this Guaranty and shall not affect the construction of, or be taken into consideration in interpreting, this Guaranty.

2. Guaranty.

2.1 Irrevocable Guaranty.

(a) The Guarantor hereby unconditionally and irrevocably guarantees to the Guaranteed Party and each of its successors, permitted indorsees, permitted transferees and permitted assigns that all monetary Obligations will be promptly paid in full, in Dollars, when due in accordance with the provisions of the Transaction Documents. If for any reason any sums stated in the Transaction Documents to be payable by Clean Technologies II, or any part thereof, shall not be paid promptly when due, then in each such instance upon written demand of payment made by the Guaranteed Party to the Guarantor, the Guarantor shall pay the same to or for the benefit of the Guaranteed Party and in accordance with the provisions of the Transaction Documents.

(b) Whether or not legal action is instituted, the Guarantor agrees to reimburse the Guaranteed Party, upon written demand, for all reasonable attorneys’ fees and disbursements and all other reasonable costs and expenses incurred by the Guaranteed Party in successfully enforcing its rights under this Guaranty. Notwithstanding the foregoing, the Guarantor shall have no obligation to pay any such costs or expenses if, in any action or proceeding brought by the Guaranteed Party giving rise to a demand for payment of such costs or expenses, it is finally adjudicated by a court of competent jurisdiction that the Guarantor is not liable to make any payment under Section 2.1(a) of this Guaranty.

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Notwithstanding anything to the contrary in this Section 2.1, the Guarantor’s liability in respect of any of the Obligations shall not exceed the liability of Clean Technologies II with respect to such Obligations under the Transaction Documents; provided, however, that such cap on liability shall not apply to reasonable costs, expenses and fees (including reasonable legal fees and disbursements) in excess of such maximum liability incurred by the Guaranteed Party in connection with enforcing this Guaranty.

2.2 No Subrogation. The Guarantor will not exercise any rights that it may acquire by way of subrogation under this Guaranty, by any payment made hereunder or otherwise, until all of the Obligations shall have been indefeasibly paid in full. If any amount shall be paid to the Guarantor on account of such subrogation rights at any time when all of the Obligations shall not have been paid in full, such amount shall be held in trust for the benefit of the Guaranteed Party and shall forthwith be paid to the Guaranteed Party to be credited and applied to such Obligations, whether matured or unmatured, in accordance with the terms of the applicable Transaction Document. If (a) the Guarantor shall make payment to the Guaranteed Party of all or any part of the Obligations and (b) all of the Obligations shall be indefeasibly paid in full, the Guaranteed Party will, at the Guarantor’s request and expense, execute and deliver to the Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to the Guarantor of an interest in the Obligations resulting from such payment by the Guarantor.

2.3 No Effect on Guaranty. The obligations of the Guarantor under this Guaranty shall not be altered, limited, impaired or otherwise affected by:

(a) any rescission of any demand for payment of any of the Obligations or any failure by the Guaranteed Party to make any such demand on Clean Technologies II or any other guarantor or to collect any payments from Clean Technologies II or any other guarantor or any release of Clean Technologies II or any other guarantor;

(b) any renewal, extension, modification, amendment, acceleration, compromise, waiver, indulgence, rescission, discharge, surrender or release, in whole or in part, or any assignment or transfer, of any of the Transaction Documents or the Obligations or any other instrument or agreement evidencing, relating to, securing or guaranteeing any of the Obligations, or the liability of any party to any of the foregoing or for any part thereof;

(c) the validity, regularity or enforceability of any of the Obligations or of the Transaction Documents or any other instrument or agreement evidencing, relating to, securing or guaranteeing any of the Obligations at any time or from time to time held by the Guaranteed Party;

(d) any change, whether direct or indirect, in the Guarantor’s relationship to Clean Technologies II, including any such change by reason of any merger or consolidation or any sale, transfer, issuance, spin-off, distribution or other disposition of any stock, equity interest or other security of Clean Technologies II, the Guarantor or any other entity;

(e) any act or omission of the Guaranteed Party relating in any way to the Obligations or to Clean Technologies II, including any failure to bring an action against any party liable on the Obligations, or any party liable on any guaranty of the Obligations, or to apply any funds of any such party held by the Guaranteed Party;

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(f) any proceeding, voluntary or involuntary, involving bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement of Clean Technologies II or any other guarantor or any defense which Clean Technologies II or any other guarantor may have by reason of the order, decree or decision of any court or administrative body resulting from any such proceeding; and

(g) any other act or omission that may or might in any manner or to any extent vary the risk of the Guarantor or that may or might otherwise operate as a discharge of the Guarantor as a matter of law or equity, other than (i) the indefeasible payment in full in Dollars of all the Obligations, and (ii) as set forth in the next sentence.

Notwithstanding the foregoing, the Guarantor shall be entitled to assert any and all defenses which Clean Technologies II may have to the payment of any of the Obligations, other than defenses based upon (1) lack of authority, capacity, legal right or power of Clean Technologies II to enter into and/or perform its obligations under the Transaction Documents or (2) any insolvency, bankruptcy, reorganization, arrangement, composition, liquidation, dissolution or similar proceeding with respect to Clean Technologies II.

2.4 Continuing Guaranty; Termination. This Guaranty shall be construed as a continuing, absolute and unconditional guaranty of payment when due, and not of collection only, and the obligations of the Guarantor hereunder shall not be conditioned or contingent upon the pursuit by the Guaranteed Party at any time of any right or remedy against Clean Technologies II or against any other person which may be or become liable in respect of all or any part of the Obligations. This Guaranty shall remain in full force and effect until the Obligations shall have been satisfied by indefeasible payment in full, in Dollars, notwithstanding that from time to time during the term of the Transaction Documents, Clean Technologies II may be free from any Obligations.

2.5 Reinstatement of Guaranty. This Guaranty shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any of the Obligations is avoided, rescinded or must otherwise be restored or returned by the Guaranteed Party to Clean Technologies II or its representative or to any other guarantor for any reason including as a result of any insolvency, bankruptcy or reorganization proceeding with respect to Clean Technologies II or the Guarantor, all as though such payment had not been made.

2.6 Financial Statements. To the extent not publicly available, the Guarantor shall deliver or cause to be delivered to the Guaranteed Party:

(a) As and when available, and in any event within sixty (60) calendar days after the end of each fiscal quarter of any fiscal year of the Guarantor, complete unaudited financial statements of the Guarantor for such fiscal quarter, including the balance sheet of the Guarantor as of the end of such quarter, profit and loss statements for the Guarantor for such quarter, and a statement of cash flows for Guarantor for such quarter, each of which shall be prepared in accordance with GAAP, subject to normal recurring year-end audit adjustments and the absence of footnotes; and

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(b) As and when available and in any event by the following April 30 after the end of the fiscal year of the Guarantor, consolidated financial statements with respect to such fiscal year for the Guarantor that are audited and certified by an Accounting Firm, including the balance sheet showing the Guarantor’s financial position as of the end of such fiscal year, profit and loss statements for the Guarantor for such fiscal year, a statement of cash flows for the Guarantor for such fiscal year and related footnotes, prepared in accordance with GAAP.

2.7 Waivers.

(a) Without limiting the generality of any other waiver or other provision set forth in this Guaranty, Guarantor hereby waives all benefits and defenses that are or may become available to Guarantor by reason of California Civil Code Sections 2787 to 2855, inclusive, Section 2899 or Section 3433. Any references to certain sections of the California Civil Code or the California Code of Civil Procedure are included in this Guaranty solely out of an abundance of caution and shall not be construed to mean that any of the referenced provisions of California law are in any way applicable to this Guaranty.

(b) Without limiting the generality of any other waiver or other provision set forth in this Guaranty, Guarantor waives all rights and defenses that Guarantor may have if all or part of Guarantor’s obligations are secured by real property. This means, among other things:

(i) Guaranteed Party may collect from Guarantor without first foreclosing on any real or personal property collateral pledged by Guarantor, Clean Technologies II or any other guarantor.

(ii) If Guaranteed Party forecloses on any real property collateral pledged by Guarantor, Clean Technologies II or any other guarantor:

(A) The amount of Guarantor’s obligations or any obligations of Guarantor in respect thereof may be reduced only by the price for which that collateral is sold at the foreclosure sale, even if the collateral is worth more than the sale price.

(B) Guaranteed Party may collect from Guarantor even if Guaranteed Party, by foreclosing on the real property collateral, has destroyed any right Guarantor may have to collect from Clean Technologies or any other guarantor.

(c) This is an unconditional and irrevocable waiver of any rights and defenses Guarantor may have if all or part of Guarantor’s obligations are secured by real property. These rights and defenses include, but are not limited to, any rights or defenses based upon Section 580a, 580b, 580d, or 726 of the California Code of Civil Procedure.

(d) Without limiting the generality of any other waiver or other provision set forth in this Guaranty, Guarantor waives all rights and defenses arising out of an election of remedies by Guaranteed Party, even though that election of remedies, such as a nonjudicial foreclosure with respect to security for Guarantor’s obligations, has destroyed Guarantor’s rights of subrogation and reimbursement against Guaranteed Party by the operation of Section 580d of the California Code of Civil Procedure or otherwise, including any other statutory or decisional law of any applicable jurisdiction.

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3. Representations and Warranties of the Guarantor. The Guarantor hereby represents and warrants to the Guaranteed Party, as follows:

(a) The Guarantor is a corporation, validly existing and in good standing under laws of the State of Delaware.

(b) The Guarantor has full power, authority and legal right to execute and deliver this Guaranty and to perform its obligations hereunder and under the Transaction Documents to which it is a party.

(c) The execution, delivery and performance of this Guaranty have been duly authorized by all necessary corporate action on the part of the Guarantor.

(d) This Guaranty has been duly executed and delivered by the Guarantor and constitutes the legal, valid and binding obligation of the Guarantor, enforceable against it in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency or other similar laws affecting creditors’ rights generally or by general principles of equity.

(e) All consents, authorizations, approvals and clearances (including, without limitation, any necessary exchange control approval) and notifications, reports and registrations requisite for its due execution, delivery and performance of this Guaranty have been obtained from or, as the case may be, filed with the relevant governmental authorities having jurisdiction and remain in full force and effect and all conditions thereof have been duly complied with and no other action by, and no notice to or filing with, any governmental authority having jurisdiction is required for such execution, delivery or performance.

(f) The execution and delivery by the Guarantor of this Guaranty do not and the performance by Guarantor of its obligations hereunder will not, (i) violate or require any filing or notice of any Legal Requirement applicable to Guarantor, (ii) conflict with or cause a breach of any provision in the certificate of incorporation, bylaws or other organizational document of Guarantor, or (iii) cause a breach of, constitute a default under, cause the acceleration of, create in any party the right to accelerate, terminate, modify or cancel, or require any authorization, consent, waiver or approval under any contract, license, instrument, decree, judgment or other arrangement to which Guarantor is a party or under which it is bound or to which any of its assets are subject (or result in the imposition of a Lien, other than Permitted Liens, upon any such assets) except (in the case of this clause (iii)) for any that would not reasonably be expected to have a material adverse effect on Guarantor; and

(g) Guarantor owns of record and beneficially 100% of the membership interests of Clean Technologies II.

4. Election of Remedies. Each and every right, power and remedy herein given to the Guaranteed Party, or otherwise existing, shall be cumulative and not exclusive, and be in addition to all other rights, powers and remedies now or hereafter granted or otherwise existing.

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Each and every right, power and remedy whether specifically herein given or otherwise existing may be exercised, from time to time and as often and in such order as may be deemed expedient by the Guaranteed Party.

5. Effect of Delay or Omission to Pursue Remedy. No single or partial waiver by the Guaranteed Party of any right, power or remedy, or delay or omission by the Guaranteed Party in the exercise of any right, power or remedy which it may have shall impair any such right, power or remedy or operate as a waiver thereof or of any other right, power or remedy then or thereafter existing. Any waiver given by the Guaranteed Party of any right, power or remedy in any one instance shall only be effective in that specific instance and only for the purpose for which given, and will not be construed as a waiver of any right, power or remedy on any future occasion.

6. Guarantor’s Waivers. The Guarantor waives any and all notice of the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of reliance by the Guaranteed Party upon this Guaranty or acceptance of this Guaranty. The Obligations, and any of them, shall conclusively be deemed to have been created, contracted, incurred, renewed, extended, amended or waived in reliance upon this Guaranty, and all dealings between the Guarantor and the Guaranteed Party shall likewise be conclusively presumed to have been had or consummated in reliance upon this Guaranty. The Guarantor waives presentment, demand (other than demand delivered pursuant to Section 2.1(a) hereof), notice, and protest of all instruments included in or evidencing any of the Obligations and all other demands (other than demand delivered pursuant to Section 2.1(a) hereof) and notices in connection with the delivery, acceptance, performance, default or enforcement of any such instrument or this Guaranty.

7. Amendment. This Guaranty may not be modified, amended, terminated or revoked, in whole or in part, except by an agreement in writing signed by the Guaranteed Party and the Guarantor. No waiver of any term, covenant or provision of this Guaranty, or consent given hereunder, shall be effective unless given in writing by the Guaranteed Party.

8. Notices. All notices and other communications required or permitted hereunder shall be in writing and shall be deemed to have been sufficiently given to any party hereto if personally delivered or if sent by telecopy, or by registered or certified mail, return receipt requested, or by recognized courier service, postage or other charges prepaid addressed as follows:

(a) If to the Guarantor:

Bloom Energy Corporation 1299

Orleans Drive

Sunnyvale, CA 94089

Attention: Chief Financial Officer

Tel: [***]

7

[***] Confidential Treatment Requested

(b) If to Guaranteed Party:

Mehetia Inc.

Eleven Madison Avenue

New York, NY 10010

Attention: [***]

Telephone: [***]

Fax: [***]

or to such other address as may be specified from time to time by the Guarantor or the Guaranteed Party in a notice to the other party given as herein provided. Such notice or communication will be deemed to have been given as of the date so personally delivered, telecopied, mailed or sent by courier.

9. Successors and Assigns. This Guaranty shall be binding upon and shall inure to the benefit of the Guarantor and the Guaranteed Party and their respective successors and permitted assigns. The Guaranteed Party may assign this Guaranty without the prior written consent of the Guarantor in connection with a Transfer of a Class B Membership Interest to a Person to whom a Transfer of the Class B Membership Interest is permitted pursuant to the Company LLC Agreement. Any other assignment of this Guaranty by the Guaranteed Party without the prior written consent of the Guarantor shall be void ab initio. The Guarantor may not assign this Guaranty without the prior written consent of the Guaranteed Party. Any assignment by the Guarantor without the prior written consent of the Guaranteed Party shall be void ab initio and shall have no effect on the Guaranteed Party’s rights against the Guarantor hereunder. Upon an assignment by the Guarantor that complies with this Section 9, the Guarantor shall be released from its obligations under this Guaranty, in each case solely to the extent those obligations are assumed under this Guaranty or guaranteed under a replacement guaranty.

10. CONSENT TO JURISDICTION. ALL LEGAL ACTIONS OR PROCEEDINGS BROUGHT AGAINST THE GUARANTOR WITH RESPECT TO THIS GUARANTY SHALL BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE COUNTY OF NEW YORK, STATE OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS GUARANTY THE GUARANTOR ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, THE EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS GUARANTY. THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES ANY CLAIM OR DEFENSE IN ANY SUCH ACTION OR PROCEEDING BASED ON ANY ALLEGED LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS OR ANY SIMILAR BASIS. THE GUARANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF ANY COMPLAINT, SUMMONS, NOTICE OR OTHER PROCESS RELATING TO ANY LEGAL ACTION OR PROCEEDING BY DELIVERY THEREOF TO IT BY HAND OR BY MAIL TO THE ADDRESS SET FORTH IN SECTION 8 HEREOF. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE GUARANTEED PARTY TO BRING PROCEEDINGS AGAINST THE GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION OR TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW.

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[***] Confidential Treatment Requested

11. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS PERFORMED IN THAT STATE WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

12. WAIVER OF JURY TRIAL. THE GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR COUNTERCLAIM ARISING IN CONNECTION WITH THIS GUARANTY.

13. Severability. If any provision hereof or of any of the instruments evidencing part or all of the Obligations is invalid or unenforceable in any jurisdiction, the other provisions hereof or of such instruments shall remain in full force and effect in such jurisdiction and the remaining provisions hereof shall be liberally construed in favor of the Guaranteed Party in order to carry out the provisions hereof. The invalidity or unenforceability of any provision of this Guaranty in any jurisdiction shall not affect the validity or enforceability of any such provision in any other jurisdiction.

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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed and delivered on its behalf as of the date first written above.

	BLOOM ENERGY CORPORATION
By:	/s/ Martin J. Collins
Name:	Martin J. Collins
Title:	VP of Corporate Development

[Signature Page to the Bloom Guaranty]

EX-10

Exhibit 10.14

EXECUTION VERSION

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

MASTER OPERATION AND MAINTENANCE AGREEMENT

by and between

DIAMOND STATE GENERATION PARTNERS, LLC

and

BLOOM ENERGY CORPORATION

dated as of April 13, 2012

TABLE OF CONTENTS

		Page
ARTICLE 1 DEFINITIONS			2
Section 1.1	Definitions		2
Section 1.2	Other Definitional Provisions		11
ARTICLE 2 SYSTEM SERVICES			12
Section 2.1	In General		12
Section 2.2	Operation and Maintenance Services		12
Section 2.3	Service Fees		13
Section 2.4	System Services Warranty		13
Section 2.5	System Service Warranty Claims		13
Section 2.6	Performance Warranty		14
Section 2.7	Efficiency Warranty		14
Section 2.8	Gas Payment Shortfall		15
Section 2.9	Exclusions		15
Section 2.10	No Duplication of Terms		16
Section 2.11	Title		16
Section 2.12	Record-Keeping Documentation		16
Section 2.13	Remote Monitoring		17
Section 2.14	Permits		17
Section 2.15	Intentionally deleted		17
Section 2.16	Performance Standards		17
Section 2.17	Rights to Deliverables		18
Section 2.18	Appointment of Service Provider		18
Section 2.19	Operating Budget		18
ARTICLE 3 TERM			18
Section 3.1	Term		18
ARTICLE 4 TERMINATION			19
Section 4.1	Default		19
Section 4.2	Termination of Warranties		20
Section 4.3	Replacement of Agreement		20
ARTICLE 5 DATA ACCESS			21
Section 5.1	Access to Data and Meters		21

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ARTICLE 6 INDEMNITY		21
Section 6.1	Indemnification of Operator by Owner	21
Section 6.2	Indemnification of Owner by Operator	21
Section 6.3	Indemnity Claims Procedure	22
Section 6.4	No Duplication of Claims	22
ARTICLE 7 LIMITATIONS ON LIABILITY		22
Section 7.1	Aggregate Limit of Liability	22
Section 7.2	No Duplication of Claims	23
ARTICLE 8 REPRESENTATIONS AND WARRANTIES		24
Section 8.1	Representations and Warranties of Owner	24
Section 8.2	Representations and Warranties of Operator	25
ARTICLE 9 MISCELLANEOUS		26
Section 9.1	Amendment and Modification	26
Section 9.2	Waiver of Compliance; Consents	26
Section 9.3	Notices	27
Section 9.4	Assignment	27
Section 9.5	Dispute Resolution; Governing Law	27
Section 9.6	Governing Law, Jurisdiction, Venue	27
Section 9.7	Counterparts	28
Section 9.8	Interpretation	28
Section 9.9	Appendices and Exhibits	28
Section 9.10	Entire Agreement	28
Section 9.11	Construction of Agreement	28
Section 9.12	Severability	29
Section 9.13	Attorneys’ Fees	29
Section 9.14	Further Assurances	29
Section 9.15	Independent Contractors	29
Section 9.16	No Contract for the Sale of Goods	29
Section 9.17	Time of Essence	29
Section 9.18	Confidentiality	29
Section 9.19	Force Majeure	31
Section 9.20	Right of Offset	31
Section 9.21	No Liens	31
Section 9.22	Insurance	31

Exhibit A	Service Fees
Exhibit B	Efficiency Bank Operation Example Calculation

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Appendix A	[Intentionally Omitted]
Appendix B	Minimum Power Product Example Calculation
Appendix C	Facilities
Appendix D	Power Performance Warranty Claim Example Calculation
Appendix E	Efficiency Warranty Claim Example Calculation
Appendix F	Gas Payment Shortfall Claim Example Calculation

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MASTER OPERATION AND MAINTENANCE AGREEMENT

This MASTER OPERATION AND MAINTENANCE AGREEMENT (this “Agreement”), dated as of April 13, 2012, between BLOOM ENERGY CORPORATION, a Delaware corporation (“BE” or, in its capacity as operator hereunder, “Operator”), and DIAMOND STATE GENERATION PARTNERS, LLC, a Delaware limited liability company (“Owner”) (each, a “Party”, and together, the “Parties”), covers (i) the Portfolio of on-site solid oxide fuel cell power generating systems capable of being powered by renewable fuels, having an aggregate Nameplate Capacity of up to 30 MW (each a “Bloom System”, and together the “Bloom Systems”) and (ii) the BOF installed by BE pursuant to the MESPA, in each case to the extent set forth herein.

WHEREAS, Owner is a company formed at the direction of BE for the purpose of purchasing and owning Bloom Systems for the generation of electricity and sale of electricity and capacity generated by the Bloom Systems into the PJM Grid;

WHEREAS, the customer base of Delmarva Power & Light Company (“DPL”), an investor owned utility company regulated by the Delaware Public Service Commission (“DPSC”), will be subject to a charge to be collected on behalf of Owner by DPL under the REPS Act and the Tariffs, and DPL has agreed to provide natural gas service and to serve as the collection and disbursement agent of Owner pursuant to the Tariffs and the DPL Agreements;

WHEREAS in 2011, Owner purchased from Operator pursuant to the December 30 Bill of Sale certain Bloom Systems and other parts and equipment to be incorporated into the Bloom Systems, and Owner presently owns such Bloom Systems and other parts and equipment;

WHEREAS, Operator has entered into that certain Master Energy Server Purchase Agreement dated as of the date hereof (the “MESPA”) with Owner, under the terms of which Owner will purchase additional Bloom Systems and the BOF from BE in order for Owner to provide electricity and capacity generated by the Bloom Systems into the PJM Grid;

WHEREAS, pursuant to REPS Act Section 352(16), BE will be a “Qualified Fuel Cell Provider” (“QFCP”), and pursuant to the QFCP-RC Tariff, Owner will be a “QFCP Generator” (“QFCP Generator”), and pursuant to REPS Act Section 352(17) the Facilities shall constitute a “Qualified Fuel Cell Provider Project” (“Qualified Fuel Cell Provider Project”); and

WHEREAS, Operator has agreed to provide certain operation and maintenance services to Owner subject to the conditions of this Agreement.

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

AGREEMENT

ARTICLE 1

DEFINITIONS

Section 1.1 Definitions. As used in this Agreement, capitalized terms not otherwise defined shall have the meanings set forth below:

“Actual kWh” means the actual energy output in kWh produced by each Bloom System and aggregated together.

“Administrative Services Agreement” means the Administrative Services Agreement dated as of April 13, 2012 among BE, Owner and Diamond State Generation Holdings, LLC.

“Affiliate” of any Person means a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person specified.

“Agreement” means this agreement.

“Annual Reports” is defined in Section 2.12.

“Base Case Model” is defined in the ECCA.

“BE” is defined in the recitals.

“Bloom System” or “Bloom Systems” is defined in the introductory paragraph hereof.

“BOF” means, for each Site, the Electrical Interconnection Facilities, the natural gas supply facilities, the water supply facilities, the data communications facilities, the foundations for the Bloom Systems, and any other ancillary facilities and equipment installed in connection with the Facility at each Site.

“BOF Work” is defined in the MESPA.

“Business Day” means a day other than a Saturday, Sunday or other day on which banks in New York, New York, or San Francisco, California, are authorized or required to close.

“Claiming Party” is defined in Section 9.19.

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

“Commencement of Operations” means, with respect to any Bloom System, the completion and the performance of all of the following activities:

(a) such Bloom System has been Placed in Service;

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(b) such Bloom System (i) has been attached to the load at the Site and (ii) is performing at the Warranty Specifications (measured over a 24 hour period and not over the Look Back Period or on a Portfolio basis as referenced in the definition of Warranty Specifications; provided that for this purpose the percentage in “Minimum Power Product” shall be deemed to be 100% rather than 85%);

(c) such Bloom System has satisfied the conditions precedent for “Facility Commercial Operation Date” and the “Initial Delivery Date” (each as defined in the QFCP-RC Tariff) and Operator has performed and successfully completed all necessary acts under the Interconnection Agreements (including performance testing) and has obtained written permission from the applicable Person granting Owner permission to interconnect with the PJM Grid pursuant thereto;

(d) Operator shall have furnished a written certification from Operator addressed to Owner certifying, without any qualification, that Operator has installed such Bloom System in accordance with Performance Standards; and

(e) Operator shall have furnished a written certification from the Independent Engineer addressed to Owner certifying, without any qualification, that (i) such Bloom System’s commissioning has been successfully completed and (ii) such Bloom System has achieved commercial operation (and if such Bloom System is the first Bloom System installed at such Facility then the Independent Engineer must also certify, without qualification, that Operator has installed all BOF Work necessary for the operation of that Facility).

“Company LLC Agreement” means the Amended and Restated Limited Liability Company Agreement of Diamond State Generation Holdings, LLC, dated as of April 13, 2012, between Clean Technologies II, LLC and Mehetia Inc.

“Confidential Information” is defined in Section 9.18(a).

“Credit Agreement” has the meaning set forth in the ECCA.

“Credit Documents” has the meaning set forth in the ECCA.

“DDOT” means the Delaware Department of Transportation.

“DDOT Site Lease” means the Lease Agreement between DDOT and Owner dated as of July, 2011, as it may be amended to extend the term or otherwise.

“December 30 Bill of Sale” means the Bill of Sale and Agreement, effective as of December 30, 2011, between BE and Owner pursuant to which Safe Harbor Systems and Safe Harbor Equipment were sold by BE to Owner for purposes of meeting the 5% safe harbor for Grant eligibility under the Guidance.

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“Delivery Date” has the meaning provided in the MESPA.

“DPL” has the meaning provided in the recitals.

“DPL Agreements” means the service applications between Owner and DPL with respect to the REPS Act and the Tariffs, whereby DPL shall (a) serve as the agent for collection of amounts due from Owner (if any) and for disbursement of amounts due to Owner under the QFCP-RC Tariff and (b) sell to Owner natural gas under the Gas Tariff.

“DPL Site Lease” means the Lease Agreement between DPL and Owner dated as of February 10, 2012.

“DPSC” has the meaning provided in the recitals.

“ECCA” means the Equity Capital Contribution Agreement with respect to Diamond State Generation Holdings, LLC, among Clean Technologies II, LLC, Diamond State Generation Holdings, LLC, Owner and Mehetia Inc., dated as of March 16, 2012.

“Efficiency” means the quotient of E/F, where E = the electricity produced by the Portfolio, measured in BTUs (British Thermal Units) at a conversion rate of 3,412 BTUs per kWh, and F = the fuel consumed by the Portfolio, measured in BTUs on a Lower Heating Value basis.

“Efficiency Bank” means “banked” volumes of natural gas which the Owner is permitted to accrue in a tracking account under the QFCP-RC Tariff Section C.(5) and which are available to offset any Efficiency Warranty shortfall. An example of the operation of the Efficiency Bank is attached as Exhibit B.

“Efficiency Warranty” has the meaning provided in Section 2.7.

“Efficiency Warranty Period” has the meaning provided in Section 2.7.

“Electrical Interconnection Facilities” means the equipment and facilities required to safely and reliably interconnect a Facility to the PJM Grid or the transmission system of another Transmitting Utility in whose territory the Facility is located, as applicable, including the collection system between each Bloom System, transformers and all switching, metering, communications, control and safety equipment, including the facilities described in any applicable Interconnection Agreement.

“Energy” means three-phase, 60-cycle alternating current electric energy constituting the Actual kWh.

“Facility” means the Bloom Systems and the BOF at a Site.

“Facility Meter” means the revenue quality electricity generation meter to be located at the metering point (the proposed location of which is to be identified in the Interconnection Agreement), which Facility Meter shall register all Energy produced by a Facility and delivered to the Interconnection Point.

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“Facility Service Warranty” is defined in Section 2.4.

“Facility Services” is defined in Section 2.1.

“FERC” means the Federal Energy Regulatory Commission and any successor.

“Force Majeure Event” means any event or circumstance that (a) prevents a Party from performing its obligations under this Agreement; (b) was not foreseeable by such Party; (c) was not within the reasonable control of, or the result of the negligence of such Party; and (d) such Party is unable to reasonably mitigate, avoid or cause to be avoided with the exercise of due diligence. It shall include failure or interruption of performance due to: an act of God, civil or military authority, war, civil disturbances, terrorist activities, fire, explosions, the elements, the gas supplier’s failure to comply with gas delivery, quality or pressure requirements, the external power delivery system (a/k/a the grid) being out of the required specifications or total failure (a/k/a brownout or blackout), PJM or other electric grid curtailment, or failure of equipment not utilized by or under the control of the Party claiming the Force Majeure Event (or any Affiliate or subcontractor of such Party). Force Majeure Event does not include the lack of economic resources of a Party or Operator’s failure to design and construct the Bloom Systems and the BOF so as to meet the respective warranties hereunder.

“Gas Payment Shortfall” means the cost of natural gas, in any billing period under the QFCP-RC Tariff, for the quantity of natural gas used by the Owner that exceeds the quantity of natural gas that would have been utilized at the Target Heat Rate (as defined in the QFCP-RC Tariff) and the Efficiency Bank does not have a positive balance available to offset such excess.

“Gas Tariff” means DPL’s Service Classification “LVG-QFCP-RC” filed for gas service applicable to REPS Qualified Fuel Cell Provider Projects and approved by the DPSC in Order no. 8062 dated October 18, 2011, as adopted and supplemented by DPSC’s Findings, Opinion and Order No. 8079, dated December 1, 2011.

“Governmental Approvals” means (a) any authorizations, consents, approvals, licenses, rulings, permits, tariffs, rates, certifications, variances, orders, judgments, decrees by or with a relevant Governmental Authority and (b) any required notice to, any declaration of, or with, or any registration or filing by, or with, any relevant Governmental Authority.

“Governmental Authority” means any foreign, federal, state, local or other governmental, regulatory or administrative agency, court, commission, department, board, or other governmental subdivision, legislature, rulemaking board, court, tribunal, arbitrating body or other governmental authority.

“Grant” is defined in the Company LLC Agreement.

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“Guidance” is defined in the ECCA.

“Indemnifiable Loss” means any claim, demand, suit, loss, liability, damage, obligation, payment, cost or expense (including the cost and expense of any action, suit, proceeding, assessment, judgment, settlement or compromise relating thereto and reasonable attorneys’ fees and reasonable disbursements in connection therewith).

“Indemnified Party” is defined in Section 6.3.

“Indemnifying Party” is defined in Section 6.3.

“Independent Engineer” is defined in the MESPA.

“Interconnection Agreement” means an agreement among Owner, DPL and/or PJM regarding interconnection of the Facility to the transmission or distribution system of the Transmitting Utility.

“Interconnection Point” is defined in the QFCP-RC Tariff.

“kW” means kilowatt.

“kWh” means kilowatt-hour.

“Legal Requirement” means any law, statute, act, decree, ordinance, rule, directive (to the extent having the force of law), tariff (including the Tariffs), order, treaty, code or regulation or any interpretation of any of the foregoing, as enacted, issued or promulgated by any Governmental Authority, including all amendments, modifications, extensions, replacements or re-enactments thereof, in each case applicable to or binding upon such Person or any of its properties or to which such Person or any of its property is subject.

“Letter Agreement” means that certain Letter Agreement dated October 10, 2011 between Operator and the State of Delaware, as may be amended from time to time.

“Liens” means any lien, security interest, mortgage, hypothecation, encumbrance or other restriction on title or property interest.

“Look Back Period” means each calendar year following the Commencement of Operations for a Bloom System (or, in the case of the calendar year in which the Delivery Date for a Bloom System has occurred, the portion of such calendar year commencing on the date such Bloom System achieved Commencement of Operations), but excluding with respect to each relevant Bloom System any period during such calendar year when such Bloom System was (a) subject to a Force Majeure Event, (b) not delivering Energy to the PJM Grid because of a failure to perform by DPL under the DPL Agreements or PJM under the PJM Agreements, or (c) required to be disconnected from the PJM Grid or otherwise required not to deliver Energy to the PJM Grid as the result of a Legal Requirement or action by or a directive from the applicable electric utility or PJM with respect to such Bloom System (e.g., due to a grid event).

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“Material Adverse Change” means a fact, event or circumstance that, alone or when taken with other events or conditions occurring or existing concurrently with such event or condition, (a) has or is reasonably expected to have a material adverse effect on the business, operations, condition (financial or otherwise), assets, liabilities, prospects, or properties of a Person; (b) has or is reasonably expected to have any material adverse effect on the validity or enforceability of this Agreement; (c) materially impairs or is reasonably expected to materially impair the ability of a Person to meet or perform its obligations under this Agreement; or (d) has or is reasonably expected to have any material adverse effect on a Person’s rights under this Agreement.

“Maximum Liability” means, with respect to Operator, the aggregate Residual Value of the Portfolio as of such date, and with respect to Owner, One Million Dollars ($1,000,000); provided that a reduction in the Maximum Liability of Operator shall never result in a requirement for Owner or any Owner Indemnitee to return any money to Operator. Maximum Liability will be determined on an aggregate basis between this Agreement and the MESPA.

“MESPA” is defined in the Recitals to this Agreement.

“Minimum Efficiency Level” means fifty percent (50%) Efficiency while a Bloom System is operating at Nameplate Capacity, measured over the Efficiency Warranty Period.

“Minimum kWh” means the product of (x) the number of hours in the applicable Power Performance Warranty Period minus the number of hours for each Bloom System in the Portfolio as of the last day of the applicable Power Performance Warranty Period when each such Bloom System (i) was subject to a Force Majeure Event, (ii) was not delivering Energy to the PJM Grid because of a failure to perform by DPL under the DPL Agreements or PJM under the PJM Agreements, or (iii) was required to be disconnected from the grid or otherwise required not to deliver Energy to the PJM Grid as the result of a Legal Requirement or action by or a directive from the applicable electric utility or PJM with respect to such Bloom System (e.g., due to a grid event), and (y) the Minimum Power Product for the applicable Power Performance Warranty Period.

“Minimum Power Product” means the aggregate Nameplate Capacity of the Bloom Systems in the Portfolio in kW for the applicable Power Performance Warranty Period multiplied by (1) eighty-five percent (85%) when this term is used for the One-Month Power Performance Warranty or (2) ninety-five percent (95%) when this term is used for the One-Year Power Performance Warranty. An example of a calculation of the Minimum Power Product is set forth in Appendix B.

“MW” means megawatt.

“MWh” means megawatt-hour.

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“Nameplate Capacity” means the maximum rated output of a generator, prime mover, or other electric power production equipment under specific conditions designated by the manufacturer.

“One-Month Power Performance Warranty Period” is defined in Section 2.6.

“One-Year Power Performance Warranty Period” is defined in Section 2.6.

“Operator” is defined in the introductory paragraph hereof.

“Operator Indemnitee” is defined in Section 6.1.

“Owner” is defined in the introductory paragraph hereof.

“Owner Indemnitee” is defined in Section 6.2.

“Owner’s Lender” means any Person providing senior or subordinated construction, debt or equity financing or refinancing for or in connection with the development, construction, purchase, or installation of the Facility or any part thereof, including any equity and tax investor providing financing or refinancing in connection therewith, and any trustee or agent acting on their behalf, and any Person providing interest rate protection agreements to hedge any of the foregoing debt obligations.

“Party” or “Parties” is defined in the introductory paragraph hereof.

“Performance Standards” is defined in Section 2.16.

“Permits” means all Governmental Approvals that are necessary under applicable Legal Requirements, this Agreement, or the MESPA to have been obtained at such time in light of the stage of development of the Portfolio to site, construct, test, operate, maintain, repair, lease, own or use each Facility as contemplated in this Agreement, the MESPA, or the ECCA, to sell electricity from the Portfolio or for a Party to enter into this Agreement or to consummate any transaction contemplated hereby, in each case in accordance with all applicable Legal Requirements.

“Person” means any individual, partnership, limited liability company, joint venture, corporation, trust, unincorporated organization, or governmental entity or any department or agency thereof.

“PJM” means PJM Interconnection, LLC, a regional transmission organization.

“PJM Agreements” is defined in the QFCP-RC Tariff.

“PJM Grid” means the system of transmission lines, distribution lines, and associated facilities that have been placed under PJM’s operational control.

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“Placed in Service” means, with respect to any Bloom System, the completion and performance of all of the following activities: (1) obtaining the necessary licenses and permits for the operation of such Bloom System and the sale of power generated by the Bloom System, (2) completion of critical tests necessary for the proper operation of such Bloom System, (3) synchronization of such Bloom System onto the electric distribution and transmission system of the relevant local utility and/or the PJM Grid and (4) the commencement of daily operation of such Bloom System.

“Portfolio” means, on an aggregate basis, all Bloom Systems owned by Owner that were purchased pursuant to the MESPA or the December 30 Bill of Sale and that have achieved Commencement of Operations.

“Portfolio Warranty” means the warranty provided for under Section 8.1 of the MESPA.

“Power Performance Warranty” is defined in Section 2.6.

“Power Performance Warranty Period” is defined in Section 2.6.

“Prudent Electrical Practices” means those practices, methods, equipment, specifications and standards of safety and performance, as the same may change from time to time, as are commonly used by a significant portion of the grid-tied electrical generation industry operating in the United States as good, safe and prudent engineering practices in connection with the design, construction, operation, maintenance, repair and use of electrical and other equipment, facilities and improvements of such electrical generating facility, including any applicable practices, methods, acts, guidelines, standards and criteria of FERC, PJM, and all applicable Legal Requirements.

“Purchase Order” is defined in the MESPA.

“Purchase Price” is defined in the MESPA.

“QFCP” is defined in the recitals.

“QFCP Generator” is defined in the recitals.

“QFCP-RC Tariff’ means DPL’s Service Classification “QFCP-RC” for REPS Qualified Fuel Cell Provider Projects as approved by the DPSC in Order no. 8062 dated October 18, 2011, as adopted and supplemented by DPSC’s Findings, Opinion and Order No. 8079, dated December 1, 2011.

“Qualified Fuel Cell Provider Project” is defined in the recitals.

“Representatives” of a Party means such Party’s authorized representatives, including its professional and financial advisors.

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“REPS Act” means the Renewable Energy Portfolio Standards Act, as amended by S.B. 124, enacted July 10, 2011 (Title 26, Chap. 1, section 351 et seq. of the Code of the State of Delaware).

“Residual Value” means, for any Bloom System, [***] of the Purchase Price for such Bloom System until                    [***], declining by [***]                    [***]                     on each anniversary of such date thereafter. (For example, on the fifth anniversary of Commencement of Operations, the Residual Value will be                    [***] of the Purchase Price).

“Safe Harbor Equipment” means all parts and equipment to be used in Bloom Systems sold by BE to Owner pursuant to the December 30 Bill of Sale.

“Safe Harbor Systems” means all Bloom Systems sold by BE to Owner pursuant to the December 30 Bill of Sale.

“SCADA” means the supervisory control and data acquisition systems.

“Section 8.2(b) Warranty” is defined in the MESPA.

“Service Fees” is defined in Section 2.3.

“Service Provider” means an operation and maintenance contractor appointed by Operator and approved by Owner pursuant to Section 2.18.

“Service Technicians” is defined in Section 2.2(c).

“Site” means, as applicable, (a) the parcel of land leased from DPL to Owner under the DPL Site Lease and all easements appurtenant, easements in gross, license agreements and other rights running in favor of Owner which provide access to the applicable Facility, or (b) the parcel of land leased from the DDOT to Owner under the DDOT Site Lease and all easements appurtenant, easements in gross, license agreements and other rights running in favor of Owner which provide access to the applicable Facility, in each case on which BE shall install a Facility pursuant to the MESPA.

“Site Leases” means, collectively, the DPL Site Lease and the DDOT Site Lease.

“Tariffs” means the QFCP-RC Tariff and the Gas Tariff.

“Term” is defined in Section 3.1.

“Third Party Claim” means any claim, action, or proceeding made or brought by any Person who is not (a) a Party to this Agreement, (b) an Affiliate of a Party to this Agreement or (c) Mehetia Inc. or an Affiliate of Mehetia Inc. (and that is not a claim based on breach by the Indemnified Party of its obligations under this Agreement).

[***] Confidential Treatment Requested

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“Training Materials” is defined in Section 2.17.

“Transaction Documents” means this Agreement, the Company LLC Agreement, the ECCA, the MESPA and the Administrative Services Agreement.

“Transmitting Utility” has the meaning set forth in the QFCP-RC Tariff.

“Warranty Period” means, (i) for each Bloom System, the period beginning on the day following the date that the “Warranty Period” for such Bloom System under and as defined in the MESPA has expired and ending on the twenty-first (21st) anniversary of the date of Commencement of Operations for such Bloom System and (ii) for the BOF, the period beginning on the day following the date that the Section 8.2(b) Warranty for such BOF has expired and ending on the twenty-first (21st) anniversary of such starting date.

“Warranty Specifications” means (a) that the Portfolio has (i) achieved the Minimum kWh as provided in Section 2.6 and (ii) performed at no less than the Minimum Efficiency Level as provided in Section 2.7 and (b) that Operator is in compliance with Section 2.8.

Section 1.2 Other Definitional Provisions.

(a) As used in this Agreement and in any certificate or other documents made or delivered pursuant hereto or thereto, financial and accounting terms not defined in this Agreement or in any such certificate or other document, and financial and accounting terms partly defined in this Agreement or in any such certificate or other document to the extent not defined, will have the respective meanings given to them under GAAP. To the extent that the definitions of financial and accounting terms in this Agreement or in any such certificate or other document are inconsistent with the meanings of such terms under GAAP, the definitions contained in this Agreement or in any such certificate or other document will control.

(b) The words “hereof’, “herein”, “hereunder”, and words of similar import when used in this Agreement will refer to this Agreement as a whole and not to any particular provision of this Agreement. Section references contained in this Agreement are references to Sections in this Agreement unless otherwise specified. The term “including” will mean “including without limitation”.

(c) The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms.

(d) Any agreement, instrument or statute defined or referred to herein or in any instrument or certificate delivered in connection herewith means (unless otherwise indicated herein) such agreement, instrument or statute as from time to time amended, modified or supplemented and includes (in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein.

(e) Any references to a Person are also to its permitted successors and assigns.

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ARTICLE 2

FACILITY SERVICES

Section 2.1 In General. During the Warranty Period, Operator shall provide services to Owner so that the Portfolio meets the Warranty Specifications and so that the BOF will not cause the Portfolio to fail to perform in accordance with the Warranty Specifications, as more fully set forth in this Article 2 (such services, collectively, the “Facility Services”). The Facilities covered under this Agreement are set forth in Appendix C hereto, which may be amended from time to time by written agreement between the Parties.

Section 2.2 Operation and Maintenance Services. Operator is hereby granted the right and authority (and, to the extent necessary to carry out its functions hereunder, a limited power of attorney) and agrees, for the benefit of Owner, to operate safely and reliably the Facilities and to maintain during the Warranty Period in accordance with the terms of this Agreement each Facility in good condition and repair in accordance with the Warranty Specifications and Prudent Electrical Practices. During the Warranty Period, the specific responsibilities of Operator under this Agreement shall include the following:

(a) Facility Operations. Operator shall ensure that all Facility components are operated and maintained in a manner designed to meet the Efficiency Warranty and the Power Performance Warranty with a goal of achieving the performance levels assumed in the Base Case Model (as defined in the Company LLC Agreement).

(b) Facility Maintenance. Operator shall perform, or cause to be performed, all scheduled and unscheduled maintenance required on each Facility in order to meet the Warranty Specifications. In that regard, Operator’s responsibilities hereunder shall include, without limitation, promptly correcting any Bloom System or BOF malfunctions, either by (i) recalibrating or resetting the malfunctioning Bloom System or BOF, or (ii) repairing or replacing Bloom System or BOF components which are defective, damaged, worn or otherwise in need of replacement.

(c) Personnel. Operator shall ensure that all operations and maintenance functions contemplated by this Section are performed by technically competent and qualified personnel (the “Service Technicians”). Operator shall ensure that all Service Technicians: (i) participate in a maintenance training program and receive confirmation of having achieved the requisite level of proficiency for the tasks they are assigned to perform, and (ii) attend periodic “refresher” training programs. The Operator shall at all times retain an operations manager who shall be dedicated to the overall supervision and management of performance of its obligations under this Agreement.

(d) Spare Parts. Operator shall establish and maintain an adequate spare parts inventory, to be located at one or both Sites to serve exclusively the Facilities.

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(e) Programs and Procedures. Prior to the date of the Commencement of Operations for the first Bloom System in the Portfolio, Operator shall have adopted and implemented programs and procedures intended to ensure safe and reliable operation of the Facilities.

The rights and obligations in this Section 2.2 are without duplication of the rights and obligations of Owner and Operator as Buyer and Seller under, and as defined in, the MESPA.

Section 2.3 Service Fees.

(a) Owner shall compensate Operator for the Facility Services for each Facility, on an annual basis at the rate specified in Exhibit A hereto (the “Service Fees”). With respect to each year of such Facility’s Warranty Period, the Service Fees shall be invoiced not later than thirty (30) days prior to the end of the calendar month in which the anniversary of the date of Commencement of Operations for such Bloom System occurred, and shall be payable within thirty (30) days of invoice. Interest shall accrue daily on the Service Fees not paid when due, at the lesser of the monthly rate of one and five-tenths percent (1.5%) or the highest rate permissible by law on such unpaid balance. Operator shall be under no obligation to provide or perform services hereunder for any Bloom System whose Service Fee has not been paid in full for the then-current warranty year.

(b) In connection with Facility Services for the BOF, Operator shall provide all required labor but shall charge Owner for, and Owner shall reimburse Operator for, the cost of all required spare parts. Billing for such spare parts shall be done in the same manner as Services Fees, as set forth in Section 2.3(a).

Section 2.4 Facility Services Warranty. During the Warranty Period, Operator shall perform the services to the Bloom Systems and the BOF necessary for the Portfolio to perform to the Warranty Specifications (the “System Service Warranty”). In the event that Owner desires Operator to service the Bloom Systems and the BOF beyond the Warranty Period, the rate for such time-based services will be quoted by Operator to Owner quarterly for the following quarter, and materials will be invoiced at the retail prices for such materials.

Section 2.5 Facility Service Warranty Claims.

(a) If Owner desires to make a Facility Service Warranty claim during the Warranty Period, Owner must notify Operator of the defect or other basis for the claim in writing.

(b) In the case of a claim relating to the Power Performance Warranty for a One-Month Power Performance Period or the Efficiency Warranty, upon receipt of such notice and verification by Operator that such One-Month Power Performance Warranty or Efficiency Warranty is applicable, Operator (or its designated subcontractor) or the Service Provider (or its designated subcontractor) will promptly repair or replace, at Operator’s sole option and discretion, any Bloom System whose repair or replacement is required in order for the Portfolio to perform consistent with the Power Performance Warranty or the Efficiency Warranty, as applicable. Owner is hereby notified that refurbished parts may be used in repair or replacement,

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but any such refurbished parts will have passed the same inspections and tests performed by Operator on its new parts of the same type before such refurbished parts are used in any repair. If such repair or replacement is not possible (as determined at Operator’s sole option and discretion), Operator will refund the Purchase Price of any such Bloom System to Owner notwithstanding Section 7.1. in which case Operator shall be deemed to have taken title to such Bloom System, and such Bloom System shall be deemed to no longer constitute a portion of the Portfolio. Operator shall make such determination as promptly as practicable, but in any event within 90 days of Operator’s receipt of notice of the claim unless the specific nature of the problem requires a longer period in which to make such determination. If it is determined that a Bloom System will be removed pursuant to this Section 2.5. Operator shall at its sole cost and expense remove the Bloom System and any other ancillary equipment (including the concrete pad and any other improvements to the Site to extent required under the Site Lease) from the Site, restoring the Site to its condition before the installation, including closing all utility connections in the manner required by all applicable Legal Requirement and Site Lease.

(c) In the case of a claim relating to the Power Performance Warranty for a One-Year Power Performance Warranty Period, upon receipt of such notice and verification that such One-Year Power Performance Warranty is applicable, Operator shall make a payment to Owner in an amount to be calculated pursuant to Section 2.6; provided that the cumulative aggregate amount of Operator’s liability for all claims under this Section 2.5(c) shall not exceed [***]                    of the aggregate Purchase Price of all Bloom Systems in the Portfolio during the applicable period and the purchase price under the December 30 Bill of Sale (inclusive of any amounts paid or for which a pending claim has been made under the Power Performance Warranty or the Section 8.2(b) Warranty, as applicable, under the MESPA).

Section 2.6 Power Performance Warranty. During the Warranty Period, Operator shall determine (i) for each full calendar month (the “One-Month Power Performance Warranty Period”) within five (5) Business Days after the end of such month and (ii) for the most recent Look Back Period (the “One-Year Power Performance Warranty Period”, and, together with the One-Month Power Performance Warranty Period, each a “Power Performance Warranty Period”), whether the Bloom Systems in the Portfolio during such Power Performance Warranty Period have delivered to the Interconnection Point the Minimum kWh during such Power Performance Warranty Period (the “Power Performance Warranty”). If such Power Performance Warranty calculation indicates that the Actual kWh of the Bloom Systems was less than the Minimum kWh during such Power Performance Warranty Period, then Operator shall so notify Owner in writing of the basis of its determination and Owner may make a claim under Section 2.5. An example of a Power Performance Warranty calculation for purposes of a Section 2.5 claim is attached as Appendix D.

Section 2.7 Efficiency Warranty. During the Warranty Period, Operator shall determine for each full calendar month (the “Efficiency Warranty Period”) within five (5) Business Days after the end of such month whether the Portfolio has performed at the Minimum Efficiency Level (the “Efficiency Warranty”); provided that the Efficiency Bank shall be utilized to the extent necessary to meet the Efficiency Warranty. If the Minimum Efficiency Level has

[***] Confidential Treatment Requested

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not been met during such Efficiency Warranty Period, then Operator shall so notify Owner in writing of the basis of its determination and Owner may make a claim under Section 2.5. An example of an Efficiency Warranty calculation for purposes of a Section 2.5 claim is attached as Appendix E.

Section 2.8 Gas Payment Shortfall. During the Warranty Period, Operator shall perform such services on the Bloom Systems as shall cause the Efficiency Bank to maintain a positive balance at all times. If the Efficiency Bank reaches a balance of less than zero during the Warranty Period, Operator shall reimburse Owner for any Gas Payment Shortfall that Owner incurs within ten (10) days after Owner provides notice to Operator of such shortfall amount; provided that Operator’s cumulative aggregate liability under this Section 2.8 plus any payments required to be made by Operator under Section 2.5(c) shall not exceed an amount equal to (i) one hundred percent (100%) of the aggregate Purchase Price of all Bloom Systems in the Portfolio during the applicable period and the purchase price under the December 30 Bill of Sale (inclusive of any amounts paid or for which a pending claim has been made for under the Gas Payment Shortfall under the MESPA), less (ii) the aggregate of all amounts paid by Operator (or claimed against Operator in the case of any claims that are pending at the time of such calculation) with respect to claims under Section 2.5(c) hereunder or Sections 8.2(b) and 8.3(c) of the MESPA. An example of a Gas Payment Shortfall calculation for purposes of a Section 2.8 claim is attached as Appendix F.

Section 2.9 Exclusions. The Facility Service Warranty shall not cover any obligations on the part of Operator caused by or arising from (a) Owner’s (as opposed to Operator, Operator’s Affiliate, the Service Provider or subcontractor acting as operator under this Agreement) failure to properly protect the Bloom Systems from vandalism or other third-party’s actions or omissions, (b) Owner’s (as opposed to Operator, Operator’s Affiliate, the Service Provider or subcontractor acting as operator under this Agreement) failure to use the specified input fuel; (c) Owner’s (as opposed to Operator, Operator’s Affiliate, the Service Provider or subcontractor acting as operator under this Agreement) removal of any safety devices, (d) any conditions caused by unforeseeable movement in the environment in which the Bloom Systems are installed, (e) accidents, abuse, neglect, improper third party testing, vandalism, Force Majeure Events or acts of third parties, (f) DPL’s failure to comply with Operator’s gas delivery, quality or pressure requirements, (g) installation, operation, repair or modification of the Bloom Systems by anyone other than Operator or (h) any defect in construction materials or workmanship of the BOF or any deficiency in design of the BOF by BE, provided that the exclusions in this clause (h) shall not extend to any Portfolio Warranty claim to the extent caused by or arising from (A) any defect in construction materials or workmanship of the BOF or (B) any deficiency in design of the BOF by BE, in each case during the period while either the Section 8.2(b) Warranty or the warranty under Section 2.5(c) is in effect. OPERATOR SHALL HAVE NO OBLIGATION UNDER THE FACILITY SERVICE WARRANTY AND MAKES NO REPRESENTATION AS TO FACILITIES WHICH HAVE BEEN OPENED OR MODIFIED BY OWNER OR ANYONE OTHER THAN OPERATOR, OPERATOR’S AFFILIATE, THE SERVICE PROVIDER OR SUBCONTRACTOR, ACTING AS OPERATOR UNDER THIS AGREEMENT, ANY PERSON ACTING AS AN OPERATOR UNDER THIS AGREEMENT (OR ANY SUCCESSOR AGREEMENT TO THIS AGREEMENT) OR ANY OF SUCH PERSON’S REPRESENTATIVES.

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Section 2.10 No Duplication of Terms. Notwithstanding anything to the contrary in this Agreement, to the extent that all or any portion of the Facility Service Warranty, a Gas Payment Shortfall payment or any other warranty, guarantee or indemnification provision set forth herein is duplicative of any warranty, guarantee or indemnification coverage provided under the MESPA, the Parties acknowledge and agree that Owner shall be entitled to make only a single claim under either this Agreement or the MESPA, as applicable, and that limitations of liability set forth in each such agreement are to be calculated on an aggregate basis taking into account all claims for indemnification, warranty or otherwise (if any) made under this Agreement and the MESPA.

Section 2.11 Title. Title to all items, parts, materials and equipment supplied under or pursuant to this Agreement to Owner shall transfer to Owner upon installation or inclusion in a Facility.

Section 2.12 Record-Keeping Documentation.

(a) Operator shall ensure that operation, service and maintenance records concerning Operator’s activities hereunder are properly created and maintained at all times. Such records shall include, but not be limited to, the following:

(i) a separate “Maintenance Specification Log” for each Bloom System in a paper or electronic format (with entries made for each inspection, including any discrepancies found during such inspection), a copy of which shall be submitted, in paper or electronic format, to Owner along with the corresponding Annual Reports;

(ii) a Site service report completed in respect of each inspection, repair, replacement, service or other activity or observation made by Operator in connection with its responsibilities hereunder, detailing the nature of the problems detected and the specifics of the problem resolution and submitted to Owner within ten (10) Business Days of the date when a service technician is dispatched to the site in response to a Bloom System or BOF fault or routine inspection or service;

(iii) an annual report submitted to Owner within forty-five (45) Business Days after the end of each calendar year (“Annual Report”) containing sufficient information, detail and documentation as may be requested by Owner relating to the operating performance of the Bloom System for the preceding calendar year; and

(iv) all records and data that must be timely produced and turned over to (A) DPL pursuant the QFCP-RC Tariff (including without limitation, the Heat Rate calculations as set forth in QFCP-RC Tariff Section C., and monthly documentation of PJM Revenues as set forth in QFCP-RC Tariff Section H.) and the DPL Agreements, (B) PJM pursuant to the PJM Agreements or (C) the Owner’s Lender pursuant to the Credit Documents; and

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(v) such other reports and/or documentation prepared by Operator concerning its activities hereunder as may be reasonably required of an “Operator” of a Qualified Fuel Cell Project under the REPS Act and the QFCP-RC Tariff or as requested by Owner from time to time.

(b) All such records required to be created and maintained pursuant to Section 2.12(a) shall be kept available at the Operator’s office and made available for the Owner’s inspection upon request at all reasonable times. Any documentation prepared by Operator during the Term for the purposes of this Agreement, excluding the Training Materials, shall be directly prepared for Owner’s benefit and immediately become Owner’s property. Any such documentation shall be stored by Operator on behalf of Owner until its final delivery to Owner. Operator may retain a copy of all records related to each Facility for future analysis.

Section 2.13 Remote Monitoring. For purposes of determining when repair services are necessary, Operator shall monitor and evaluate the information gathered through remote monitoring of each Facility as well as the maintenance and inspection Site visits.

Section 2.14 Permits.

(a) Operator shall be responsible, at its sole cost and expense, for maintaining and complying with all Permits required to perform the Facility Services under this Agreement;

(b) Owner agrees to cooperate with and assist Operator in obtaining all Permits.

Section 2.15 Intentionally deleted.

Section 2.16 Performance Standards. For the purpose of this Agreement, the Operator shall perform under this Agreement in accordance and consistent with each of the following (unless the context requires otherwise): (A) permitted plans and specifications applicable to each Facility; (B) the manufacturer’s recommendations with respect to all equipment and all maintenance and operating manuals or service agreements, whenever furnished or entered into, including any subsequent amendments or replacements thereof, issued by the manufacturer, provided they are consistent with generally accepted practices in the fuel cell industry; (C) the requirements of all applicable insurance policies; (D) preserving all rights to any incentive payments, warranties, indemnities or other rights or remedies, and enforcing or assisting with the enforcement of the applicable warranties, making or assisting in making all claims with respect to all insurance policies; (E) all Legal Requirements and Permits/Governmental Approvals, (F) the PJM Agreements and the DPL Agreements; (G) any applicable provisions of the Site Leases, including any landlord rules and regulations, and (H) Prudent Electrical Practices (collectively, the “Performance Standards”); provided, however, that meeting these requirements shall not relieve Operator of its other obligations under this Agreement.

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Section 2.17 Rights to Deliverables. Owner agrees that Operator shall retain all rights, title and interest, including intellectual property rights, in any Training Materials in connection with the services performed hereunder. Operator grants to Owner the limited right to use any Training Materials which are provided under this Agreement, and Owner agrees that upon termination of this Agreement for any reason, Owner shall return all Training Materials, including any copies, to Operator. Owner will not make copies nor will it permit its employees, contractors, affiliates, or representatives to make copies of any Training Materials without Operator’s prior written consent. “Training Materials” means any and all materials, documentation, notebooks, forms, diagrams, manuals and other written materials and tangible objects, describing how to maintain the Facilities, including any corrections, improvements and enhancements thereto to the Bloom Systems which are delivered by Operator to Owner, but excluding any data and reports delivered to Owner.

Section 2.18 Appointment of Service Provider. Operator may appoint an unrelated third party, who is appropriately qualified, licensed, and financially responsible, to operate and maintain the Facilities throughout the Term (a “Service Provider”). Operator shall submit such appointment of any Service Provider to Owner for its prior written approval, which approval shall not be unreasonably withheld or delayed, and if applicable, to PJM and/or DPL. No such appointment nor the approval thereof by Owner, however, shall relieve Operator of any liability, obligation, or responsibility resulting from a breach of this Agreement.

Section 2.19 Operating Budget. Operator shall operate and maintain the Portfolio, or cause the Portfolio to be operated and maintained, within amounts for (a) any Operating Budget Category (as defined in the Credit Documents) that is applicable to the Facility Services not to exceed 110% (on a year-to-date basis) and (b) for all Operating Budget Categories (or such Operating Budget Categories applicable to the Facility Services) not to exceed 105% (on a year- to-date basis), in each case of the amounts budgeted therefor as set forth in the then-current Annual Operating Budget (as defined in the Credit Documents).

ARTICLE 3

TERM

Section 3.1 Term. The term of this Agreement (the “Term”) (a) shall commence on the first day of the Warranty Period for the first Bloom System to achieve Commencement of Operation and (b) shall, unless terminated earlier under Section 4.1 of this Agreement or unless extended by mutual agreement of the Parties, terminate on the date that is the last day of the Warranty Period for the last Bloom System to achieve Commencement of Operation.

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ARTICLE 4

TERMINATION

Section 4.1 Default.

(a) Operator Default. Any of the following shall constitute an “Operator Default”:

(i) If Operator: (a) admits in writing its inability to pay its debts generally as they become due; (b) files a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other applicable law or statute of the United States of America or any State, district or territory thereof; (c) makes an assignment for the benefit of creditors; (d) consents to the appointment of a receiver of the whole or any substantial part of its assets; (e) has a petition in bankruptcy filed against it, and such petition is not dismissed within ninety (90) days after the filing thereof; or if (f) a court of competent jurisdiction enters an order, judgment, or decree appointing a receiver of the whole or any substantial part of Operator’s assets, and such order, judgment or decree is not vacated or set aside or stayed within ninety (90) days from the date of entry thereof; or (g) under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the whole or any substantial part of Operator’s assets and such custody or control is not terminated or stayed within ninety (90) days from the date of assumption of such custody or control;

(ii) unless due to a Force Majeure Event, the failure of Operator to perform or cause to be performed any other obligation required to be performed by Operator under this Agreement, or the failure of any representation and warranty set forth herein to be true and correct in all material respects as and when made; provided, however, that if such failure by its nature can be cured, then Operator shall have a period of thirty (30) days after receipt of written notice of such failure to cure the same and a Operator Default shall not be deemed to exist during such period; provided, further, that if Operator commences to cure such failure during such period and is diligently and in good faith attempting to effect such cure, said period shall be extended for sixty (60) additional days; or

(iii) a Force Majeure Event occurs which prevents Operator from performing its material obligations under this Agreement for a continuous period of at least one hundred eighty (180) days and Owner reasonably concludes such prevention is not reasonably likely to be remedied within a further period of one hundred eighty (180) days.

(b) Owner Default. Any of the following shall constitute an “Owner Default”:

(i) The failure of Owner to pay any amounts owing to Operator on or before the day following the date on which such amounts are due and payable under the terms of this Agreement and Owner’s failure to cure each such failure within ten (10) days after Owner receives written notice from Operator of each such failure; or

(ii) unless due to a Force Majeure Event, the failure of Owner to perform or cause to be performed any other obligation required to be performed by Owner under this Agreement, or the failure of any representation and warranty set forth herein to be true and correct in all material respects as and when made; provided, however, that if such failure by its nature can be cured, then Owner shall have a period of thirty (30) days after receipt of written notice of such failure to cure the same and an Owner Default shall not

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be deemed to exist during such period; provided, further, that if Owner commences to cure such failure during such period and is diligently and in good faith attempting to effect such cure, said period shall be extended for sixty (60) additional days.

(c) Owner’s Remedies Upon Occurrence of a Operator Default. If an Operator Default has occurred under Section 4.1(a)(i) or (a)(iii), Owner may terminate this Agreement by written notice, and assert all rights and remedies available to Owner under Legal Requirements subject to the limitations of liability set forth in Section 7.1. If an Operator Default has occurred under Section 4.1(a)(ii), Owner may terminate this Agreement only with respect to those Bloom Systems for which such Operator Default occurred (unless such Operator Default relates to ten (10) or more Bloom Systems, in which case Owner may terminate this Agreement with respect to all Bloom Systems) by written notice, and assert all rights and remedies available to Owner under Legal Requirements (other than the termination or suspension of this Agreement in its entirety, except where ten (10) or more Bloom Systems are involved), subject to the limitations of liability set forth in Section 7.1.

(d) Operator’s Remedies Upon Owner Default.

(i) If an Owner Default has occurred under Section 4.1(b)(i) or (b)(ii), Operator may terminate this Agreement only with respect to those Bloom Systems for which such Owner Default occurred (unless such Owner Default relates to ten (10) or more Bloom Systems, in which case Operator may terminate this Agreement with respect to all Bloom Systems) by written notice, and assert all rights and remedies available to Operator under Legal Requirements (other than the termination or suspension of this Agreement in its entirety, except where ten (10) of more Bloom Systems are involved), subject to the limitations of liability set forth in Section 7.1.

(e) Preservation of Rights. Termination of this Agreement shall not affect any rights or obligations as between the Parties which may have accrued prior to such termination or which expressly or by implication are intended to survive termination whether resulting from the event giving rise to termination or otherwise.

Section 4.2 Termination of Warranties. Notwithstanding anything to the contrary in this Agreement or the MESPA, each of the Facility Service Warranty, the Efficiency Warranty, and the Power Performance Warranty shall terminate with respect to a Bloom System immediately upon termination of the Warranty Period for such Bloom System; provided that any claims under this Agreement that accrued before such termination shall survive such termination until the resolution of those claims. Operator shall be under no obligation for any Facility Service Warranty, Efficiency Warranty or Power Performance Warranty for a Bloom System during any period for which such Bloom System’s Service Fees have not been paid in full.

Section 4.3 Replacement of Agreement. Notwithstanding anything to the contrary in this Agreement and in furtherance of continuing qualification under the QFCP-RC Tariff, in the event of the early termination of this Agreement pursuant to Article 4 hereof, BE and Operator agree to use commercially reasonable efforts to cooperate with Owner to facilitate Owner

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entering into a new agreement with a third party operator governing operation and maintenance services to be provided to Owner on terms substantially similar to the terms of this Agreement, so that such replacement Operator shall be deemed a QFCP.

ARTICLE 5

DATA ACCESS

Section 5.1 Access to Data and Meters. Throughout the Term, and thereafter to the extent relevant to calculations necessary for periods prior to the end of the Term and subject to any confidentiality obligation owed to any third party and/or any restrictions on the disclosure of information which may be subject to intellectual property rights restricting disclosure:

(a) Owner shall grant Operator access to all data relating to the electricity production of each Bloom System, it being understood that it is Operator’s responsibility to determine the performance of the Bloom System, and any other calculations as required under this Agreement, and that it is Owner’s responsibility to handle all accounting and invoicing activities; and

(b) Owner shall allow Operator access to all data from all Facility Meters.

Operator shall be entitled to use the foregoing data for its internal purposes and make such data available to third parties for analysis.

ARTICLE 6

INDEMNITY

Section 6.1 Indemnification of Operator by Owner. Owner shall indemnify, defend and hold harmless Operator, its officers, directors, employees, shareholders, Affiliates and agents (each, a “Operator Indemnitee”) from and against any and all Indemnifiable Losses asserted against or suffered by any Operator Indemnitee arising out of any Third Party Claims against a Operator Indemnitee to the extent arising out of or in connection with (i) Owner’s breach of its representations, warranties or covenants in this Agreement, (ii) the negligent or intentional acts or omissions of Owner or its subcontractors, agents or employees or others under Owner’s control or (iii) a breach by Owner of its obligations hereunder, provided that Owner shall have no obligation to indemnify Operator for any negligence, fraud or willful misconduct of any Operator Indemnitee or the breach by Operator of any Operator Indemnitee of its covenants and warranties under this Agreement or any other Transaction Document.

Section 6.2 Indemnification of Owner by Operator. Operator shall indemnify, defend and hold harmless Owner, its members, managers, officers, directors, employees, Affiliates and agents (each, an “Owner Indemnitee”) from and against any and all Indemnifiable Losses asserted against or suffered by any Owner Indemnitee arising out of any Third Party Claims against an Owner Indemnitee to the extent arising out of or in connection with (i) Operator’s breach of its representations, warranties or covenants in this Agreement, (ii) the negligent or intentional acts or omissions of Operator or its subcontractors, agents or employees or others under Operator’s control or (iii) a breach by Operator of its obligations hereunder; provided that

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Operator shall have no obligation to indemnify Owner for any negligence, fraud or willful misconduct of any Owner Indemnitee, the breach by Owner of its covenants and warranties under this Agreement or the inability to utilize any tax benefits (for the avoidance of doubt, the Grant is not considered a tax benefit).

Section 6.3 Indemnity Claims Procedure. If any indemnifiable claim is brought against a Party (the “Indemnified Party”), then the other Party (the “Indemnifying Party”) shall be entitled to participate in, and, unless in the opinion of counsel for the Indemnifying Party a conflict of interest between the Parties may exist with respect to such claim, assume the defense of such claim, with counsel reasonably acceptable to the Indemnifying Party. If the Indemnifying Party does not assume the defense of the Indemnified Party, or if a conflict precludes the Indemnifying Party from assuming the defense, then the Indemnifying Party shall reimburse the Indemnified Party on a monthly basis for the Indemnified Party’s defense through separate counsel of the Indemnified Party’s choice. Even if the Indemnifying Party assumes the defense of the Indemnified Party with acceptable counsel, the Indemnifying Party, at its sole option, may participate in the defense, at its own expense, with counsel of its own choice without relieving the Indemnifying Party of any of its obligations hereunder.

Section 6.4 No Duplication of Claims. Notwithstanding anything to the contrary in this Agreement, the Parties acknowledge and agree that no claiming or indemnified party shall be entitled to a double recovery under the indemnification provisions of this Agreement and the indemnification provisions of the MESPA.

ARTICLE 7

LIMITATIONS ON LIABILITY

Section 7.1 Aggregate Limit of Liability.

(a) Notwithstanding anything to the contrary in this Agreement, in no event shall a Party be liable to the other Party for an aggregate amount in excess of the Maximum Liability; provided that such limitation of liability shall not apply to any liability that is the result of (i) gross negligence, fraud or willful misconduct of a Party, (ii) a Third Party Claim, (iii) the failure to pay the Service Fees (which amount shall not be included in calculating Owner’s Maximum Liability), (iv) a claim of Owner against BE or Operator in the event of any breach, default or misrepresentation of any representation and warranty or covenant set forth in Section 8.2(e) or (v) a claim of Owner against BE or Operator under Section 2.8. Subject always to the Maximum Liability limitations set forth in the preceding sentence, except for damages specifically provided for in this Agreement or in connection with the indemnification for damages awarded to a third party under a Third Party Claim, damages hereunder are limited to direct damages, and in no event shall a Party be liable to the other Party, and the Parties hereby waive claims, for (a) indirect, punitive, special or consequential damages or loss of profits; provided, however, that the loss of profits language set forth in this Section 7.1 shall not be interpreted to exclude from Indemnifiable Losses any claim, demand, suit, loss, liability, damage, obligation, payment, cost or expense (including the cost and expense of any action, suit, proceeding, assessment, judgment, settlement or compromise relating thereto and reasonable attorneys’ fees and reasonable

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disbursements in connection therewith) that would otherwise be included in the definition of Indemnifiable Losses because they result from a reduction in the profits of Owner, Diamond State Generation Holdings, LLC, or both, and (b) losses or liabilities incurred by the officers, directors, members, managers, partners, shareholders or Affiliates of such Party (unless on behalf of Owner).

(b) Notwithstanding anything to the contrary provided herein, in no event shall Operator be liable under this Agreement (including with respect to its obligations related to the Facility Service Warranty, the Power Performance Warranty or Warranty Specification) for (i) any failure of or damage to the Bloom System or (ii) any obligations on the part of Operator (including internal rate of return or other financial metrics or any obligations to deliver power to Owner or service the Bloom System) caused by or arising from (A) Owner’s (as opposed to Operator or Operator’s Affiliate or subcontractor acting as operator under this Agreement) failure to properly protect the Bloom Systems from vandalism or other third-party’s actions or omissions, (B) Owner’s (as opposed to Operator or Operator’s Affiliate or subcontractor acting as operator under this Agreement) failure to use the specified input fuel; (C) Owner’s (as opposed to Operator or Operator’s Affiliate or subcontractor acting as operator under this Agreement) removal of any safety devices, (D) Force Majeure Events, (E) installation, operation, repair or modification of the Bloom Systems by anyone other than Operator or Operator’s authorized agents or Owner’s operator acting pursuant to a operating and maintenance agreement provided such operator is acting in accordance with Prudent Electrical Practices and information or materials supplied by Operator or its Affiliates, or (F) any defect in construction materials or workmanship of the BOF or any deficiency in design of the BOF by BE, provided that the exclusions in this clause (F) shall not extend to any warranty claim to the extent caused by or arising from (1) any defect in construction materials or workmanship of the BOF or (2) any deficiency in design of the BOF by BE, in each case during the period while the MESPA Section 8.2(b) Warranty is in effect. OPERATOR SHALL NOT BE RESPONSIBLE FOR DAMAGE TO BLOOM SYSTEMS OR THEIR COMPONENTS DUE TO THEIR OPENING OR MODIFICATION BY OWNER OR ANYONE OTHER THAN OPERATOR, OPERATOR’S AFFILIATE, THE SERVICE PROVIDER OR SUBCONTRACTOR, ACTING AS OPERATOR UNDER THIS AGREEMENT, ANY PERSON ACTING AS AN OPERATOR UNDER THIS AGREEMENT (OR ANY SUCCESSOR AGREEMENT TO THIS AGREEMENT) OR ANY OF SUCH PERSON’S REPRESENTATIVES. Except for Owner’s payment of money to Operator, and subject to Section 9.19 hereof, neither Party shall be liable under any circumstance, nor be deemed to be in breach of this Agreement, for any delay or failure in performance or interruption of service resulting from any Force Majeure Event, or any other cause or causes which are beyond such Party’s reasonable control.

Section 7.2 No Duplication of Claims. Notwithstanding anything to the contrary in this Agreement, the Parties acknowledge and agree that the limitations of liability set forth in this Agreement and the MESPA are to be calculated on an aggregate basis taking into account all claims (if any) made under this Agreement and the MESPA.

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ARTICLE 8

REPRESENTATIONS AND WARRANTIES

Section 8.1 Representations and Warranties of Owner. Owner represents and warrants to Operator as follows:

(a) Organization. Owner is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware and has all requisite limited liability company power and authority to own, lease, and operate its business as currently conducted.

(b) Authority. Owner has full limited liability company power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery by Owner of this Agreement and the consummation by Owner of the transactions contemplated hereby have been duly and validly authorized by all necessary limited liability company action required on the part of Owner and this Agreement has been duly and validly executed and delivered by Owner. This Agreement constitutes the legal, valid and binding agreement of Owner, enforceable against Owner in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).

(c) Consents and Approvals: No Violation. Neither the execution, delivery and performance by Owner of this Agreement nor the consummation by Owner of the transactions contemplated hereby will (i) conflict with or result in any breach of any provision of the Certificate of Formation or the limited liability company agreement of Owner, or (ii) result in a default (or give rise to any right of termination, cancellation or acceleration) under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, material agreement or other instrument or obligation to which Owner is a party or by which any of its assets are bound, except for such defaults (or rights of termination, cancellation or acceleration) as to which requisite waivers or consents have been obtained or (iii) constitute violations of any law, regulation, order, judgment or decree applicable to Owner.

(d) Legal Proceedings. There are no pending or, to Owner’s knowledge, threatened claims, disputes, governmental investigations, suits, actions (including non-judicial real or personal property foreclosure actions), arbitrations, legal, administrative or other proceedings of any nature, domestic or foreign, criminal or civil, at law or in equity, by or against or otherwise affecting Owner which challenges the enforceability of this Agreement or the ability of Owner to consummate the transactions contemplated hereby.

(e) DISCLAIMERS. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 8.1 AND THE OTHER TRANSACTION DOCUMENTS, OWNER EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT.

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Section 8.2 Representations and Warranties of Operator. Operator represents and warrants to Owner as follows:

(a) Incorporation; Qualification. Operator is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own, lease, and operate its business as currently conducted. Operator is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction that its business, as currently being conducted, shall require it to be so qualified, except where the failure to be so qualified would not have a material adverse effect on Operator’s ability to perform its obligations under this Agreement.

(b) Authority. Operator has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated thereby. The execution and delivery by Operator of this Agreement and the consummation by Operator of the transactions contemplated thereby have been duly and validly authorized by all necessary corporate action required on the part of Operator and this Agreement have been duly and validly executed and delivered by Operator. This Agreement constitutes the legal, valid and binding agreement of Operator, enforceable against Operator in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).

(c) Consents and Approvals; No Violation. Neither the execution, delivery and performance of this Agreement nor the consummation by Operator of the transactions contemplated thereby will (i) conflict with or result in any breach of any provision of the certificate of incorporation or bylaws of Operator, (ii) with or without the giving of notice or lapse of time or both, conflict with, result in any violation or breach of, constitute a default under, result in any right to accelerate, result in the creation of any Lien on Operator’s assets, or create any right of termination under the conditions or provisions of any note, bond, mortgage, indenture, material agreement or other instrument or obligation to which Operator is a party or by which it, or any material part of its assets may be bound, in each case that would individually or in the aggregate result in a Material Adverse Change with respect to Operator; or (iii) constitute violations of any law, regulation, order, judgment or decree applicable to Operator, which violations, individually or in the aggregate, would result in a Material Adverse Change with respect to Operator.

(d) Legal Proceedings. There are no pending or, to Operator’s knowledge, threatened claims, disputes, governmental investigations, suits, actions (including non-judicial real or personal property foreclosure actions), arbitrations, legal, administrative or other proceedings of any nature, domestic or foreign, criminal or civil, at law or in equity, by or against or otherwise affecting Operator which challenges the enforceability of this Agreement or the ability of Operator to consummate the transactions contemplated thereby.

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(e) QFCP Tariff. Operator represents and warrants to Owner that, during the Term, the Portfolio shall not fail to receive full payment and service under the Tariffs for any of the following reasons:

(i) Operator shall not remain a Qualified Fuel Cell Provider throughout the original term of the QFCP Tariff.

(ii) Operator shall take any action which causes or is likely to cause: (i) Owner not to qualify (or lose qualification) for service under the QFCP Tariff or (ii) the Portfolio not to qualify (or lose qualification) as a Qualified Fuel Cell Project.

(iii) Operator shall have not complied with any of its obligations under the Letter Agreement (including, if so required by the State of Delaware, posting the security referred to in the Letter Agreement upon or prior to the Commencement of Operation of the first Bloom System).

(f) DISCLAIMERS. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 8.2 AND THE OTHER TRANSACTION DOCUMENTS, OPERATOR EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT.

ARTICLE 9

MISCELLANEOUS

Section 9.1 Amendment and Modification. This Agreement may be amended, modified or supplemented only by written agreement of Owner and Operator. To the extent that this Agreement must be modified in order to maintain service under the Tariffs, the Parties shall exercise their commercially reasonable efforts to amend the Agreement to continue such service.

Section 9.2 Waiver of Compliance; Consents. Except as otherwise provided in this Agreement, any failure of any of the Parties to comply with any obligation, covenant, agreement or condition herein may be waived by the Party entitled to the benefits thereof only by a written instrument signed by the Party granting such waiver, but any such waiver of such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent failure to comply therewith.

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Section 9.3 Notices. All notices and other communications hereunder shall be in writing and shall be deemed given when received if delivered personally or by facsimile transmission with completed transmission acknowledgment, or when delivered or when delivery is refused if mailed by overnight delivery via a nationally recognized courier or registered or certified first class mail (return receipt requested), postage prepaid, to the recipient Party at its below address (or at such other address or facsimile number for a Party as shall be specified by like notice; provided; however, that notices of a change of address shall be effective only upon receipt thereof):

To Operator:	Bloom Energy Corporation
	1299 Orleans Drive Sunnyvale, CA 94089-1137 Attention: [***]
	Telephone: [***]
	Fax: [***]
	Email: [***]
To Owner:	Diamond State Generation Partners, LLC
	c/o Bloom Energy Corporation 1299 Orleans Drive Sunnyvale, CA 94089-1137
	Attention: [***]
	Telephone: [***]
	Fax: [***]

Section 9.4 Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns (including by operation of law), but neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any Party, whether by operation of law or otherwise, without the prior written consent of the other Party; provided that either Party may collaterally assign its rights under this Agreement to any party providing debt or equity financing to such Party without the consent of the other Party. Notwithstanding the foregoing sentence, Operator shall be entitled to assign its right, title and interest in and to this Agreement to an Affiliate under common ownership with Operator; provided that such assignment will not disqualify or otherwise impair either the Owner or the Portfolio from receiving service under the QFCP-RC Tariff.

Section 9.5 Dispute Resolution: Governing Law. In the event a dispute, controversy or claim arises hereunder, including any claim whether in contract, tort (including negligence), strict product liability or otherwise, the aggrieved Party will promptly provide written notification of the dispute to the other Party within ten (10) days after such dispute arises. Thereafter, a meeting shall be held promptly between the Parties, attended by representatives of the Parties with decision-making authority regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute. If the Parties are not successful in resolving a dispute within twenty-one (21) days, then, subject to the limitations on remedies set forth in Section 4.1 and Article 7, either Party may pursue whatever rights it has available under this Agreement, at law or in equity.

Section 9.6 Governing Law, Jurisdiction, Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION

[***] Confidential Treatment Requested

27

OF ANY STATE OR FEDERAL COURT IN NEW YORK COUNTY, NEW YORK WITH RESPECT TO ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING TO A DISPUTE AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO.

Section 9.7 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signatures delivered by facsimile will be considered original signatures, and each Party shall thereafter promptly deliver original signatures to the other Party.

Section 9.8 Interpretation. The articles, section and schedule headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the Parties and shall not in any way affect the meaning or interpretation of this Agreement.

Section 9.9 Appendices and Exhibits. Except as otherwise provided in this Agreement, all exhibits and appendices referred to herein are intended to be and hereby are specifically made a part of this Agreement.

Section 9.10 Entire Agreement.

(a) This Agreement, the MESPA and the exhibits, schedules, documents, certificates and instruments referred to herein and therein, embody the entire agreement and understanding of the Parties in respect of the transactions contemplated by this Agreement.

(b) Each Party acknowledges that, in agreeing to enter into this Agreement, it has not relied on any representation, warranty, collateral contract or other assurance (except those repeated in this Agreement and any other agreement entered into on the date of this Agreement between the Parties) made by or on behalf of any other Party at any time before the signature of this Agreement. Each Party waives all rights and remedies which, but for this clause (b), might otherwise be available to it in respect of any such representation, warranty, collateral contract or other assurance.

Section 9.11 Construction of Agreement. The terms and provisions of this Agreement represent the results of negotiations between Owner and Operator, each of which has been represented by counsel of its own choosing, and neither of which has acted under duress or compulsion, whether legal, economic or otherwise. Accordingly, the terms and provisions of this Agreement shall be interpreted and construed in accordance with their usual and customary meanings, and Owner and Operator hereby waive the application in connection with the interpretation and construction of this Agreement of any rule of law to the effect that ambiguous or conflicting terms or provisions contained in this Agreement shall be interpreted or construed against the Party whose attorney prepared the executed draft or any earlier draft of this Agreement.

28

Section 9.12 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party.

Section 9.13 Attorneys’ Fees. If any action or proceeding to enforce this Agreement or any provision hereof is brought by any Party, the prevailing Party shall be entitled to recover from the non prevailing Party its attorneys’ fees and its costs and expenses of suit, including actual attorneys’ and consultants’ fees. In the event that any Party secures a judgment in any proceeding brought to enforce or interpret this Agreement, then any cost of expense incurred in enforcing or in successfully appealing from such judgment, including actual attorneys’ fees shall be paid by the Party against whom such judgment has been rendered or against whom an appeal is won, and shall be recoverable separately from and in addition to any other amount included in such judgment.

Section 9.14 Further Assurances. Each Party agrees to execute and deliver such additional documents and instruments and to perform such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions, and conditions of this Agreement and the transactions contemplated by this Agreement.

Section 9.15 Independent Contractors. The Parties acknowledge that, save as expressly set out in this Agreement to the contrary, each Party is entering into this Agreement as an independent contractor and nothing in this Agreement shall be interpreted or applied so as to make the relationship of any of the Parties that of partners, joint ventures or anything other than independent contractors.

Section 9.16 No Contract for the Sale of Goods. Both Parties agree that this Agreement relates predominantly to the rendition of services accompanied only by the incidental sale of parts for the Bloom Systems; and therefore, this Agreement is not subject to the Delaware Uniform Commercial Code or any other commercial code for the sale of goods. The Parties expressly disclaim, to the extent permitted under applicable law, any and all provisions of the Uniform Commercial Code of any state or other applicable law relating to the commercial sale of goods.

Section 9.17 Time of Essence. Time is of the essence with respect to all matters contained in this Agreement.

Section 9.18 Confidentiality.

(a) Confidential Information. Subject to the other terms of this Section 9.18. the Parties shall, and shall cause their Affiliates and their respective stockholders, members, Subsidiaries and Representatives to, hold confidential all information they may have or obtain concerning Operator and Owner and their respective assets, business, operations or prospects or this Agreement (the “Confidential Information”), including, but not limited to, all software,

29

documentation, financial, marketing and nonpublic PJM Grid data and other business information, all data related to the internal design and performance of the Bloom Systems and any other material or information that is either marked as confidential or disclosed under circumstances that one would reasonably expect it to be confidential. Furthermore, Owner agrees that the Bloom Systems and services performed hereunder contain Operator’s valuable trade secrets, and further, Owner agrees to maintain the secrecy of and not disclose without the express written permission of Operator any trade secrets which Owner may have received from Operator; provided, however, that Confidential Information shall not include information that (A) is or becomes generally available to the public other than as a result of a disclosure by a Party or any of its Representatives or (B) is or becomes available to a Party or any of its Representatives on a nonconfidential basis prior to its disclosure by the other Party or its Representatives.

(b) Legally Compelled Disclosure. Confidential Information may be disclosed (A) as required or requested to be disclosed by a Party or any of its Affiliates or their respective stockholders, members, subsidiaries or Representatives as a result of any applicable Legal Requirement or rule or regulation of any stock exchange, the Financial Industry Regulatory Authority, Inc. or other regulatory authority or self-regulatory authority having jurisdiction over such Party, (B) as required or requested by the IRS, the Department of Justice or the Office of the Inspector General in connection with a Grant, or tax credits relating thereto, including in connection with a request for any private letter ruling, any determination letter or any audit, or (C) as reasonably required by the DPL Agreements, the PJM Agreements or the Tariffs. If a Party becomes compelled by legal or administrative process to disclose any Confidential Information, such Party shall, to the extent permitted by Legal Requirements, provide the other Party with prompt notice so that the other Party may seek a protective order or other appropriate remedy or waive compliance with the non-disclosure provisions of this Section 9.18(b) with respect to the information required to be disclosed. If such protective order or other remedy is not obtained, or such other Party waive compliance with the non-disclosure provisions of this Section 9.18(b) with respect to the information required to be disclosed, the first Party shall furnish only that portion of such information that it is advised, by opinion of counsel, is legally required to be furnished and shall exercise reasonable efforts, at the expense of the Party whose Confidential Information is being disclosed, to obtain reliable assurance that confidential treatment will be accorded such information, including, in the case of disclosures to the IRS described in clause (B) above, to obtain reliable assurance that, to the maximum extent permitted by applicable Legal Requirements, such information will not be made available for public inspection pursuant to Section 6110 of the Code.

(c) Disclosure to Representatives. Notwithstanding the foregoing, a Party may disclose Confidential Information received by it to its actual or potential financing parties and its and their employees, consultants, legal counsel or agents who have a need to know such information; provided that such Party informs each such Person who has access to the Confidential Information of the confidential nature of such Confidential Information, the terms of this Agreement, and that such terms apply to them. The Parties shall use commercially reasonable efforts to ensure that each such Person complies with the terms of this Agreement and that any Confidential Information received by such Person is kept confidential.

30

(d) Other Permitted Disclosures. Nothing herein shall be construed as prohibiting a Party from using such Confidential Information in connection with (i) any claim against another Party and (ii) any exercise by a Party of any of its rights hereunder, (iii) a financing or proposed financing by Operator or Owner or their Affiliates; (iv) a disposition or proposed disposition by Operator or any Affiliate of Operator of all or a portion of such Person’s direct or indirect equity interest in Operator and (v) a disposition or proposed disposition by any direct or indirect Affiliate of Owner of all or a portion of such Person’s equity interests in Owner; provided that, in the case of items (iii), (iv) and (v), the potential purchaser has entered into a confidentiality agreement with respect to Confidential Information on customary terms used in confidentiality agreements in connection with corporate acquisitions before any such information may be disclosed and such confidentiality agreement has been provided to the non-disclosing Party.

Section 9.19 Force Majeure. If either Party is rendered wholly or partially unable to perform any of its obligations under this Agreement by reason of a Force Majeure Event, that Party (the “Claiming Party”) will be excused from whatever performance is affected by the Force Majeure Event to the extent so affected; provided, however, that: (i) the Claiming Party, within a reasonable time after the occurrence of such Force Majeure Event gives the other Party notice describing the particulars of the occurrence; (ii) the suspension of performance shall be of no greater scope and of no longer duration than is reasonably required by the Force Majeure Event; (iii) no liability of either Party for an event that arose before the occurrence of the Force Majeure Event shall be excused as a result of the Force Majeure Event; (iv) the Claiming Party shall exercise commercially reasonable efforts to correct or cure the event or condition excusing performance and resume performance of all its obligations; and (v) when the Claiming Party is able to resume performance of its obligations under this Agreement, the Claiming Party shall promptly give the other Party notice to that effect and shall promptly resume performance.

Section 9.20 Right of Offset. Owner at its sole option is hereby authorized to setoff any amounts owed Owner under the MESPA or this Agreement, as applicable, against any amounts owed by Owner to Operator under the MESPA or this Agreement. The rights provided by this paragraph are in addition to and not in limitation of any other right or remedy (including any right to set-off, counterclaim, or otherwise withhold payment) to which a Owner may be entitled (whether by operation of law, contract or otherwise).

Section 9.21 No Liens. To the extent that Operator has actual knowledge that any of its subcontractors has placed any Lien on a Bloom System or the Site for such Bloom System, then Operator shall promptly cause such Liens to be removed or bonded over in a manner reasonably satisfactory to Owner.

Section 9.22 Insurance. At all times during the Term without cost to Owner, Operator shall maintain in force the following insurance, which insurance shall not be subject to cancellation, termination or other material adverse changes unless the insurer delivers to Owner

31

written notice of the cancellation, termination or change at least thirty (30) days in advance of the effective date of the cancellation, termination or material adverse change:

(a) Worker’s Compensation Insurance as required by the laws of the state where Operator’s facilities are located;

(b) Employer’s liability insurance with limits not less than One Million Dollars ($1,000,000); and

(c) Commercial General Liability Insurance, including bodily injury and property damage liability including premises operations, contractual liability endorsements, products liability and completed operations with limits not less than Five Million Dollars ($5,000,000).

Operator shall cause Owner (and such additional parties as Owner designates in writing) to be named additional insured(s), must be written as primary policy not contributing to or in excess of any policies carried by the Owner, and each contain a waiver of subrogation endorsement, in form and substance reasonably satisfactory to the Owner, in favor of the Owner.

[Signatures follow on next page]

32

IN WITNESS WHEREOF, the Parties have executed this Master Operation and Maintenance Agreement as of the date first above written.

BLOOM ENERGY CORPORATION

By:
	Name:
	Title:

[Signature Page to the Master Operation and Maintenance Agreement]

DIAMOND STATE GENERATION PARTNERS, LLC

By:
Name:	William E Brockenborough
Title:	Vice President

[Signature Page to the Master Operation and Maintenance Agreement]

EXHIBIT A

to

MASTER OPERATION

AND MAINTENANCE AGREEMENT

SERVICE FEES

Exhibit A-1

MOMA

Exhibit A

Service Fees

Period	Rate Per kW (nameplate) Per Year	Equivalent Rate Per kWh
Year 1	[***]	[***]
Year 2	[***]	[***]
Year 3	[***]	[***]
Year 4	[***]	[***]
Year 5	[***]	[***]
Year 6	[***]	[***]
Year 7	[***]	[***]
Year 8	[***]	[***]
Year 9	[***]	[***]
Year 10	[***]	[***]
Year 11	[***]	[***]
Year 12	[***]	[***]
Year 13	[***]	[***]
Year 14	[***]	[***]
Year 15	[***]	[***]
Year 16	[***]	[***]
Year 17	[***]	[***]
Year 18	[***]	[***]
Year 19	[***]	[***]
Year 20	[***]	[***]
Year 21	[***]	[***]

[***] Confidential Treatment Requested

EXHIBIT B

to

MASTER OPERATION

AND MAINTENANCE AGREEMENT

EFFICIENCY BANK OPERATION EXAMPLE CALCULATION

Exhibit B-1

Efficiency Bank -MOMA

Exhibit B

Efficiency Bank Operation Example Calculation

	2014
Assumptions
Number of active Systems		150
Nameplate capacity		200
Hours in the year		8760
Look back period		30 Days
BTUs/kWh		3,412
LHV to HHV conversion		1.107
Actual power performance		96	%
One-Month Efficiency analysis
One-Month Efficiency Warranty		50	%
Actual system efficiency		56	%
Maximum MMbtu		156,643
Actual MMbtu		139,860
MMbtu to be drawn from Efficiency Bank		—
MMbtu to be deposited into Efficiency Bank		16,783
Efficiency Bank beginning balance		104,429
Change		16,783
Efficiency Bank ending balance		[***]

[***] Confidential Treatment Requested

APPENDIX A

to

MASTER OPERATION

AND MAINTENANCE AGREEMENT

BLOOM SYSTEMS

[Intentionally Omitted]

Appendix A-1

APPENDIX B

to

MASTER OPERATION

AND MAINTENANCE AGREEMENT

Minimum Power Product Example Calculation

Appendix B-1

Minimum Power Product - MOMA

MOMA

Appendix B

Sample One-Month Minimum Power Product Example Calculation

	2014
Assumptions
Number of active Systems		150
Nameplate capacity		200	kW
One-Month Power Performance Warranty		85	%
Minimum Power Product Analysis
Minimum Power Product		25,500	kW

Minimum Power Product - MOMA

MOMA

Appendix B

Sample One-Year Minimum Power Product Example Calculation

	2014
Assumptions
Number of active Systems		150
Nameplate capacity		200	kW
One-Year Power Performance Warranty		95	%
One-Year Minimum Power Product Analysis
Minimum Power Product		28,500	kW

APPENDIX C

to

MASTER OPERATION

AND MAINTENANCE AGREEMENT

Facilities¹

All Bloom Systems now or hereafter purchased under the MESPA from and after the date such Bloom Systems are purchased, and including without limitation those Bloom Systems detailed in the chart below from time to time, together with the BOF installed in connection with each such Bloom System at each Site.

Serial No.	Site Location	Bloom System Capacity
	Brookside	3MW Total
IOM-5700-00076		0.2MW
PWM-5700-00416-SH
PWM-5700-00417-SH
PWM-5700-00418-SH
PWM-5700-00419-SH
PWM-5700-00420-SH
PWM-5700-00421-SH
IOM-5700-00077		0.2MW
PWM-5700-00422-SH
PWM-5700-00423-SH
PWM-5700-00424-SH
PWM-5700-00425-SH
PWM-5700-00426-SH
PWM-5700-00427-SH
IOM-5700-00078		0.2MW
PWM-5700-00428-SH
PWM-5700-00429-SH
PWM-5700-00430-SH

¹  Includes Safe Harbor Systems, Bloom Systems to be ordered and delivered in Q2 2012.

PWM-5700-00431-SH
PWM-5700-00432-SH
PWM-5700-00433-SH
TBD – Brookside 4		0.2MW
TBD – Brookside 5		0.2MW
TBD – Brookside 6		0.2MW
TBD – Brookside 7		0.2MW
TBD – Brookside 8		0.2MW
TBD – Brookside 9		0.2MW
TBD – Brookside 10		0.2MW
TBD – Brookside 11		0.2MW
TBD – Brookside 12		0.2MW
TBD – Brookside 13		0.2MW
TBD – Brookside 14		0.2MW
TBD – Brookside 15		0.2MW
	Red Lion	5.8MW Total
IOM-5700-00079		0.2MW
PWM-5700-00434-SH
PWM-5700-00435-SH
PWM-5700-00436-SH
PWM-5700-00437-SH
PWM-5700-00438-SH
PWM-5700-00439-SH
IOM-5700-00080		0.2MW
PWM-5700-00440-SH
PWM-5700-00441-SH
PWM-5700-00442-SH
PWM-5700-00443-SH
PWM-5700-00444-SH
PWM-5700-00445-SH
Delaware001		0.2MW
	Red Lion	2.8MW Total
Delaware002		0.2MW

2

	Red Lion	7.2MW Total
Delaware003		0.2MW
Delaware004		0.2MW
	Red Lion	11.2MW Total
Delaware005		0.2MW
Delaware006		0.2MW
Delaware007		0.2MW

3

APPENDIX D

to

OPERATION

AND MAINTENANCE AGREEMENT

Power Performance Warranty Claim Example Calculation

Appendix D-1

Performance - MOMA

MOMA

Appendix D

Sample One-Month Power Performance Warranty Claim Example Calculation

	2014
Assumptions
Number of active Systems		150
Nameplate capacity		200
Hours in the year		8760
Look back period		30 Days
One-Month Power Performance Warranty analysis
One-Month Power Performance Warranty		85	%
Actual system output		80	%
Minimum kWh		18,360,000
Actual kWh		17,280,000
Underperformance (kWh)		1,080,000

Performance - MOMA

Appendix D

Sample One-Year Power Performance Warranty Claim Example Calculation

	2015
Assumptions
Number of active Systems		150
Nameplate capacity		200
Hours in the year		8760
Look back period		365 Days
Project COE - Applicable QFCP-RC Tariff disbursement rate	$	[***] /kWh
One-Year Power Performance Warranty analysis
One-Year Power Performance Warranty		95	%
Actual system output		80	%
Minimum kWh		249,660,000
Actual kWh		210,240,000
Underperformance (kWh)		39,420,000
Power Performance Warranty Payment	$	[***]

[***] Confidential Treatment Requested

APPENDIX E

to

OPERATION

AND MAINTENANCE AGREEMENT

Efficiency Warranty Claim Example Calculation

Appendix E-1

Efficiency - MOMA

MOMA

Appendix E

Sample One-Month Efficiency Warranty Claim Example Calculation

	2014
Assumptions
Number of active Systems		150
Nameplate capacity		200
Hours in the year		8760
Look back period		30 Days
BTUs/kWh		3,412
LHV to HHV conversion		1.107
Actual power performance		96	%
One-Month Efficiency analysis
One-Month Efficiency Warranty		50	%
Actual system efficiency		48	%
Maximum MMbtu		156,643
Actual MMbtu		163,170
MMbtu to be drawn from Efficiency Bank		(6,527	)
MMbtu to be deposited into Efficiency Bank		—
Efficiency Bank beginning balance		104,429
Change		(6,527	)
Efficiency Bank ending balance		[***]

[***] Confidential Treatment Requested

APPENDIX F

to

OPERATION

AND MAINTENANCE AGREEMENT

Gas Payment Shortfall Claim Example Calculation

Appendix F-1

Gas Payment - MOMA

Appendix F

Sample Gas Payment Shortfall Claim Example Calculation

	2015
Assumptions
Number of active Systems		150
Nameplate capacity		200
Hours in the year		8760
Look back period		30 Days
BTUs/kWh		3,412
LHV to HHV conversion		1.107
Actual power performance		96	%
Cost of gas - Price charged under Gas Tariff for relevant period	$	[***] /MMbtu
Gas Shortfall analysis
One-Month Efficiency Warranty		50	%
Actual system efficiency		40	%
Maximum MMbtu		156,643
Actual MMbtu		195,804
MMbtu to be drawn from Efficiency Bank		(39,161	)
MMbtu to be deposited into Efficiency Bank		—
Efficiency Bank beginning balance		30,000
Change		(39,161	)
Efficiency Bank shortfall		(9,161	)
Gas Shortfall payment	$	[***]

[***] Confidential Treatment Requested

EX-10

Exhibit 10.16

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

EXECUTION VERSION

DIAMOND STATE GENERATION PARTNERS, LLC

$144,812,500

5.22% Senior Secured Notes due March 30, 2025

NOTE PURCHASE AGREEMENT

Dated March 20, 2013

TABLE OF CONTENTS

SECTION	HEADING	PAGE
ARTICLE 1. Authorization of Notes			1
ARTICLE 2. Sale and Purchase of Notes			1
ARTICLE 3. Closing			1
ARTICLE 4. Conditions Precedent			2
Section 4.1	Conditions Precedent to Closing		2
Section 4.2	Conditions Precedent to All Drawdowns		12
Section 4.3	Conditions Precedent to each Credit Event		14
Section 4.4	Conditions Precedent to Final Completion		15
ARTICLE 5. Representations and Warranties of the Company			16
Section 5.1	Organization; Power and Authority		16
Section 5.2	Authorization, Etc.		17
Section 5.3	Disclosure		17
Section 5.4	Subsidiaries		17
Section 5.5	Financial Statements; Material Liabilities		17
Section 5.6	Compliance with Laws, Other Instruments, Etc.		18
Section 5.7	Governmental Authorizations, Etc.		18
Section 5.8	Observance of Agreements, Statutes and Orders		18
Section 5.9	Taxes		18
Section 5.10	Reserved		19
Section 5.11	Licenses, Permits, Etc.		19
Section 5.12	Compliance with ERISA		19
Section 5.13	Private Offering by the Company		20
Section 5.14	Use of Proceeds; Margin Regulations		20
Section 5.15	Existing Debt; Future Liens		20
Section 5.16	Foreign Assets Control Regulations, Etc.		21
Section 5.17	Status under Certain Statutes		21
Section 5.18	Environmental Matters		21
Section 5.19	Permits		22
Section 5.20	Solvency		22
Section 5.21	Insurance		22
Section 5.22	Litigation		23
Section 5.23	Labor Matters		23
Section 5.24	Governmental Regulation		23
Section 5.25	Ranking of Obligations; Perfection and Priority of Liens		24
Section 5.26	Project Construction		24
Section 5.27	Adverse Change		24
Section 5.28	Major Project Documents		24
Section 5.29	Sufficiency of Rights		25

Section 5.30	Real Estate	25
Section 5.31	Flood Zone Disclosure	26
Section 5.32	Investments	26
Section 5.33	No Recordation, Etc.	26
Section 5.34	Organizational ID Number; Location of Tangible Collateral	26
ARTICLE 6. Representations of the Purchasers		26
Section 6.1	Purchase for Investment	26
Section 6.2	Source of Funds	27
Section 6.3	Institutional Accredited Investor	28
ARTICLE 7. Information as to Company		28
Section 7.1	Financial Statements and Rating Letter	28
Section 7.2	Other Reporting Requirements	29
Section 7.3	Officer’s Certificate	31
Section 7.4	Visitation	31
ARTICLE 8. Payment and Prepayment of the Notes		32
Section 8.1	Required Payments; Mandatory Prepayments; Offer to Repay	32
Section 8.2	Optional Prepayments with Make-Whole Amount	33
Section 8.3	Allocation of Partial Prepayments	34
Section 8.4	Maturity; Surrender, Etc.	34
Section 8.5	Purchase of Notes	34
Section 8.6	Make-Whole Amount	34
ARTICLE 9. Affirmative Covenants		36
Section 9.1	Compliance with Laws	36
Section 9.2	Insurance	36
Section 9.3	Maintenance of Properties	36
Section 9.4	Payment of Taxes and Claims	36
Section 9.5	Corporate Existence, Etc.	37
Section 9.6	Books, Records	37
Section 9.7	Use of Proceeds, Equity Contributions, Project Revenues	37
Section 9.8	Payment	37
Section 9.9	Additional Direct Agreements	38
Section 9.10	Performance of the Major Project Documents	38
Section 9.11	Utility Regulation	38
Section 9.12	Construction of the Project	38
Section 9.13	As-Built Survey	38
Section 9.14	Operation and Maintenance of Project; Operating Budget	38
Section 9.15	Preservation of Rights; Further Assurances	39
Section 9.16	Forced Outage Event	41
Section 9.17	Event of Eminent Domain	41
Section 9.18	Environmental Laws	42

-ii-

Section 9.19	Independent Consultants	42
Section 9.20	Partial Completion Buydown	42
Section 9.21	Separateness	42
Section 9.22	Rating	43
Section 9.23	Rating Event	43
Section 9.24	Debt Service Coverage Ratio	43
ARTICLE 10. Negative Covenants		43
Section 10.1	Transactions with Affiliates	43
Section 10.2	Dissolution; Merger	43
Section 10.3	Line of Business; Changes	43
Section 10.4	Sale or Lease of Assets	44
Section 10.5	Terrorism Sanctions Regulations	44
Section 10.6	Liens	44
Section 10.7	Contingent Obligations	44
Section 10.8	Debt	44
Section 10.9	Investments	44
Section 10.10	Restricted Payments	45
Section 10.11	Margin Loan Regulations	45
Section 10.12	Partnership, Separateness Etc.	45
Section 10.13	Amendments	45
Section 10.14	Name and Location; Fiscal Year	46
Section 10.15	Hazardous Substances	46
Section 10.16	Use of Sites	46
Section 10.17	Project Documents	46
Section 10.18	Assignment by Third Parties	46
Section 10.19	Acquisition of Real Property	46
Section 10.20	ERISA	46
Section 10.21	Lease Obligations	47
Section 10.22	Disputes	47
Section 10.23	Assignment	47
Section 10.24	Accounts	47
Section 10.25	Regulations; Tariff	47
Section 10.26	Capital Expenditures	47
ARTICLE 11. Events of Default		47
Section 11.1	Failure to Make Payments	47
Section 11.2	Misstatements	48
Section 11.3	Breach of Terms of Agreement	48
Section 11.4	Defaults Under Other Debt	48
Section 11.5	Bankruptcy; Insolvency	49
Section 11.6	Judgments	49
Section 11.7	ERISA	49
Section 11.8	Ownership of the Project	49
Section 11.9	Loss of Collateral	49

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Section 11.10	Abandonment	50
Section 11.11	Security	50
Section 11.12	Regulatory Status	50
Section 11.13	Loss of or Failure to Obtain Applicable Permits	51
Section 11.14	Credit Document Matters	51
Section 11.15	Project Document Matters	51
Section 11.16	Eminent Domain	52
Section 11.17	Cash Grant Recapture	52
Section 11.18	Final Completion	52
ARTICLE 12. Remedies on Default, Etc.		53
Section 12.1	Acceleration	53
Section 12.2	Other Remedies	53
Section 12.3	Rescission	53
Section 12.4	No Waivers or Election of Remedies, Expenses, Etc.	54
ARTICLE 13. Registration; Exchange; Substitution of Notes		54
Section 13.1	Registration of Notes	54
Section 13.2	Transfer and Exchange of Notes	54
Section 13.3	Replacement of Notes	55
ARTICLE 14. Payments on Notes		56
Section 14.1	Place of Payment	56
Section 14.2	Home Office Payment	56
ARTICLE 15. Expenses, Etc.		56
Section 15.1	Transaction Expenses	56
Section 15.2	Survival	57
ARTICLE 16. Survival of Representations and Warranties; Entire Agreement		57
ARTICLE 17. Amendment and Waiver		57
Section 17.1	Requirements	57
Section 17.2	Solicitation of Holders of Notes	58
Section 17.3	Binding Effect, etc.	58
Section 17.4	Notes Held by Company, etc.	58
ARTICLE 18. Notices		59
ARTICLE 19. Reproduction of Documents		59
ARTICLE 20. Confidential Information		60

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ARTICLE 21. Substitution of Purchaser		61
ARTICLE 22. Miscellaneous		61
Section 22.1	Successors and Assigns	61
Section 22.2	Payments Due on Non-Business Days	61
Section 22.3	Accounting Terms	61
Section 22.4	Severability	62
Section 22.5	Construction, etc.	62
Section 22.6	Counterparts	62
Section 22.7	Governing Law	62
Section 22.8	Jurisdiction and Process; Waiver of Jury Trial	62
Section 22.9	Scope of Liability	63
Section 22.10	U.S. Tax Forms	64

SCHEDULE A	—	Information Relating To Purchasers
SCHEDULE B	—	Defined Terms
SCHEDULE 4.1.22	—	Litigation
SCHEDULE 4.1.26	—	Project Budget
SCHEDULE 4.1.27	—	Base Case Projections
SCHEDULE 4.1.28	—	Project Schedule
SCHEDULE 4.1.30	—	List of Direct Agreements
SCHEDULE 5.3	—	Disclosure Materials
SCHEDULE 5.5	—	Financial Statements
SCHEDULE 5.15	—	Existing Debt
SCHEDULE 5.19	—	Permits
SCHEDULE 8.1	—	Amortization Schedule
SCHEDULE 9.2	—	Required Insurance
EXHIBIT 1	—	Form of 5.22% Senior Secured Note due March 30, 2025
EXHIBIT 4.1.13(a)	—	Form of Opinion of Special Counsel for the Company
EXHIBIT 4.1.13(b)	—	Form of Opinion of Regulatory Counsel for the Company
EXHIBIT 4.1.13(c)	—	Form of opinion of Constitutional Counsel for the Company

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EXHIBIT 4.1.13(d)	—	Form of Opinion of Delaware Real Estate Counsel for the Company
EXHIBIT 4.1.13(e)	—	Form of Opinion of Delaware Regulatory Counsel for the Company
EXHIBIT 4.1.13(f)	—	Form of Opinion of Special Counsel for the Purchasers
EXHIBIT 4.1.14	—	Form of Insurance Broker Certificate
EXHIBIT 4.1.16	—	Form of Independent Engineer Certificate
EXHIBIT 4.1.17	—	Form of Environmental Consultant Certificate
EXHIBIT 4.1.30	—	Form of Direct Agreement
EXHIBIT 4.2.1(a)	—	Form of Drawdown Certificate
EXHIBIT 4.2.1(b)	—	Form of Independent Engineer’s Drawdown Certificate
EXHIBIT 4.2.1(c)	—	Form of Company’s COD Certificate
EXHIBIT 4.2.1(d)	—	Form of Independent Engineer’s COD Certificate
EXHIBIT 4.4.3	—	Form of Final Completion Certificate of the Company
EXHIBIT 4.4.4	—	Form of Final Completion Certificate of the Independent Engineer
EXHIBIT 8.1.3(b)	—	Form of Offer to Repay Notice

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5.22% Senior Secured Notes due March 30, 2025

March 20, 2013

TO EACH OF THE PURCHASERS LISTED IN

SCHEDULE A HERETO:

Ladies and Gentlemen:

Diamond State Generation Partners, LLC, a Delaware limited liability company (the “Company”), agrees with each of the Purchasers as follows:

ARTICLE 1. AUTHORIZATION OF NOTES.

The Company will authorize the issuance and sale of $144,812,500 aggregate principal amount of its 5.22% Senior Secured Notes due March 30, 2025 (the “Notes”, such term to include any such notes issued in substitution therefor pursuant to Article 13). The Notes shall be substantially in the form set out in Exhibit 1. Certain capitalized and other terms used in this Agreement are defined in Schedule B; and references to a “Schedule” or an “Exhibit” are, unless otherwise specified, to a Schedule or an Exhibit attached to this Agreement.

ARTICLE 2. SALE AND PURCHASE OF NOTES.

Subject to the terms and conditions of this Agreement, the Company will issue and sell to each Purchaser and each Purchaser will purchase from the Company, at the Closing provided for in Article 3, Notes in the principal amount specified opposite such Purchaser’s name in Schedule A at the purchase price of 100% of the principal amount thereof. The Purchasers’ obligations hereunder are several and not joint obligations and no Purchaser shall have any liability to any Person for the performance or non-performance of any obligation by any other Purchaser hereunder.

ARTICLE 3. CLOSING.

The sale and purchase of the Notes to be purchased by each Purchaser shall occur at the offices of Latham & Watkins LLP, 885 Third Avenue, New York, New York 10022, at 10:00 a.m., New York City time, at a closing on March 20, 2013 (the “Closing”) or on such other Business Day thereafter on or prior to March 25, 2013 as may be agreed upon by the Company and the Purchasers. At the Closing the Company will deliver to each Purchaser the Notes to be purchased by such Purchaser in the form of a single Note (or such greater number of Notes in denominations of at least $500,000 as such Purchaser may request) dated the date of the Closing and registered in such Purchaser’s name (or in the name of its nominee), against delivery by such Purchaser to the Company or its order of immediately available funds in the amount of the purchase price therefor by wire transfer of immediately available funds for the account of the Company to account number 210340899 at Wilmington Savings Fund Society, ABA:

031100102, Account Name: Drinker Biddle & Reath, LLP – IOLTA Rule 1.15A Attorney Trust Account. If at the Closing the Company shall fail to tender such Notes to any Purchaser as provided above in this Article 3, or any of the conditions specified in Sections 4.1 and 4.3 shall not have been fulfilled to such Purchaser’s satisfaction, such Purchaser shall, at its election, be relieved of all further obligations under this Agreement, without thereby waiving any rights such Purchaser may have by reason of such failure or such nonfulfillment.

ARTICLE 4. CONDITIONS PRECEDENT.

Section 4.1 Conditions Precedent to Closing.

Each Purchaser’s obligation to purchase and pay for the Notes to be sold to such Purchaser at the Closing is subject to the prior satisfaction of each of the following conditions unless waived by each Purchaser (the date such conditions precedent are so satisfied or waived being referred to as the “Closing Date”):

Section 4.1.1 Performance; No Default. The Company shall have performed and complied with all agreements and conditions contained in this Agreement required to be performed or complied with by it prior to or at the Closing. The Company shall not have entered into any transaction since the date of the Memorandum that would have been prohibited by Article 10 had such Article applied since such date.

Section 4.1.2 Purchase Permitted By Applicable Law, Etc. On the Closing Date such Purchaser’s purchase of the Notes shall (a) be permitted by the laws and regulations of each jurisdiction to which such Purchaser is subject, without recourse to provisions (such as section 1405(a)(8) of the New York Insurance Law) permitting limited investments by insurance companies without restriction as to the character of the particular investment, (b) not violate any applicable law or regulation (including, without limitation, Regulation T, U or X of the Board of Governors of the Federal Reserve System) and (c) not subject such Purchaser to any tax, penalty or liability under or pursuant to any applicable law or regulation, which law or regulation was not in effect on the date hereof. If requested by such Purchaser, such Purchaser shall have received a certificate of a Responsible Officer of the Company certifying as to such matters of fact as such Purchaser may reasonably specify to enable such Purchaser to determine whether such purchase is so permitted.

Section 4.1.3 Sale of Other Notes. Contemporaneously with the Closing the Company shall sell to each other Purchaser and each other Purchaser shall purchase the Notes to be purchased by it at the Closing as specified in Schedule A.

Section 4.1.4 Private Placement Number. A Private Placement Number issued by Standard & Poor’s CUSIP Service Bureau (in cooperation with the SVO) shall have been obtained for the Notes.

Section 4.1.5 Changes in Corporate Structure. The Company shall not have changed its jurisdiction of formation, or been a party to any merger or consolidation or succeeded to all or any substantial part of the liabilities of any other entity, at any time following the date of the most recent financial statements referred to in Schedule 5.5.

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Section 4.1.6 Funding Instructions. At least three Business Days prior to the Closing Date, each Purchaser shall have received written instructions signed by a Responsible Officer of the Company on letterhead of the Company confirming the information specified in Article 3 including (i) the name and address of the transferee bank, (ii) such transferee bank’s ABA number and (iii) the account name and number into which the purchase price for the Notes is to be deposited.

Section 4.1.7 Resolutions. The Company shall have delivered to each of the Purchasers a copy of one or more resolutions or other authorizations, in form and substance reasonably satisfactory to the Purchasers, of each Credit Party as of the Closing Date certified by a Responsible Officer of such Credit Party as being true, complete, in full force and effect on the Closing Date and not amended, modified, revoked or rescinded, authorizing, as applicable and among other things, the issuance of the Notes herein provided for, the granting of the Liens under the Collateral Documents, the provision of the guaranties, warranties and indemnities, the contribution of equity to the Company and the execution, delivery and performance of this Agreement, the other Operative Documents and any instruments or agreements required hereunder or thereunder to which such Credit Party is a party.

Section 4.1.8 Incumbency. The Company shall have delivered to each of the Purchasers a certificate, in form and substance reasonably satisfactory to the Purchasers, from each Credit Party signed by the appropriate authorized officer or manager of each such Credit Party and dated as of the Closing Date, as to the incumbency and specimen signature of each natural Person authorized to execute and deliver this Agreement, the other Operative Documents and any instruments or agreements required hereunder or thereunder to which such Credit Party is a party, including various certificates to be delivered by such Credit Party pursuant to this Section 4.1.

Section 4.1.9 Governing Documents. The Company shall have delivered to each of the Purchasers, in each case certified by a Responsible Officer of such Credit Party as being true, correct and complete on the Closing Date, (a) copies of the certificate of formation, charter or other state certified constituent documents of each Credit Party, certified as of a recent date by the secretary of state of such Credit Party’s state of organization, and (b) copies of the bylaws, limited liability company operating agreement, partnership agreement or other comparable operating documents, if applicable, of each Credit Party.

Section 4.1.10 Good Standing Certificates. The Company shall have delivered to each of the Purchasers certificates (in so-called “long-form” if available) issued by the secretary of state of the state in which each Credit Party and Major Project Participant is formed or incorporated, as applicable, in each case (a) dated a date reasonably close to the Closing Date and (b) certifying that such Credit Party and Major Project Participant is in good standing and is qualified to do business in, and has paid all franchise Taxes or similar Taxes due to, such states.

Section 4.1.11 Credit Documents and Project Documents. The Company shall have delivered to each of the Purchasers (a) true, correct and complete copies of each Credit Document, all of which shall (i) have been duly authorized, executed and delivered by the parties thereto and in form and substance reasonably satisfactory to the Purchasers, and (ii) be in

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full force and effect and accompanied by a certificate of the Company certifying to the foregoing, (b) a certified list of, and true, correct and complete copies of, each Project Document (other than any Project Document which is only incidental to the development, construction, leasing, ownership or operation of the Project) executed on or prior to the Closing Date, each in form and substance reasonably satisfactory to the Purchasers, all of which shall (x) have been duly authorized, executed and delivered by the parties thereto, and (y) be certified by the Company as being true, complete and correct and in full force and effect on the Closing Date and (c) each document, certificate, or other deliverable required to be delivered under each Credit Document as of the Closing Date.

Section 4.1.12 Third Party Approvals. Except for the Permits listed in Part II of Schedule 5.19, the Company shall have received and delivered to each of the Purchasers all Applicable Permits by any Person (including any Governmental Authority) reasonably required in connection with any transaction contemplated in any Operative Document.

Section 4.1.13 Opinions of Counsel. The Company shall have delivered to each Purchaser opinions in form and substance satisfactory to such Purchaser and addressed to each such Purchaser, dated as of the Closing Date (a) from Orrick, Herrington & Sutcliffe LLP, counsel for the Company, covering the matters set forth in Exhibit 4.1.13(a) and covering such other matters incident to the transactions contemplated hereby as such Purchaser or its counsel may reasonably request, (b) from Orrick, Herrington & Sutcliffe LLP, regulatory counsel for the Company, substantially in the form of Exhibit 4.1.13(b), (c) from Orrick, Herrington & Sutcliffe LLP, U.S. constitutional counsel for the Company, substantially in the form of Exhibit 4.1.13(c), (d) from Drinker Biddle & Reath LLP, Company’s Delaware real estate counsel, covering the enforceability of the Mortgage, substantially in the form of Exhibit 4.1.13(d), (e) from Morris James LLP, the Company’s Delaware regulatory counsel, covering Delaware state regulatory matters, substantially in the form of Exhibit 4.1.13(e) and (f) from Latham & Watkins LLP, the Purchasers’ special counsel in connection with such transactions, substantially in the form set forth in Exhibit 4.1.13(f) and covering such other matters incident to such transactions as such Purchaser may reasonably request. The Company also shall have delivered to Fitch Ratings, Inc. an opinion from Orrick, Herrington & Sutcliffe LLP, counsel for the Company, covering non- consolidation matters, which opinion shall be in form and substance satisfactory to Fitch Ratings, Inc. and shall also be addressed to each Purchaser.

Section 4.1.14 Certificate of Insurance Consultant . The Company shall have delivered to each of the Purchasers the Insurance Consultant’s certificate, dated as of the Closing Date and in substantially the form of Exhibit 4.1.14, together with the Insurance Consultant’s report that (a) summarizes the insurance arrangements for the Project and (b) concludes that such insurance is adequate and customary.

Section 4.1.15 Insurance. Insurance complying with terms and conditions set forth in Schedule 9.2 shall be in full force and effect and each of the Purchasers and the Insurance Consultant shall have received a certificate from the Company’s insurance broker(s), dated as of the Closing Date and in form and substance reasonably satisfactory to the Purchasers, (a) identifying underwriters, type of insurance, insurance limits and policy terms, (b) listing the special provisions required as set forth in Schedule 9.2, (c) describing the insurance obtained and (d) stating that such insurance is in full force and effect and that all premiums then due thereon have been paid and that, in the opinion of such broker(s), such insurance complies with the terms and conditions set forth in Schedule 9.2.

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Section 4.1.16 Certificate of the Independent Engineer. The Company shall have delivered to each of the Purchasers the Independent Engineer’s certificate, dated as of the Closing Date and in substantially the form of Exhibit 4.1.16, together with the Independent Engineer’s report, in form and substance reasonably satisfactory to the Purchasers, attached thereto.

Section 4.1.17 Reports of the Company’s Environmental Consultant.

(i) The Company shall have delivered to each of the Purchasers each Environmental Report along with a reliance letter, each in form and substance reasonably satisfactory to the Purchasers.

(ii) The Company shall have delivered to each of the Purchasers a certificate from the Environmental Consultant in substantially the form of Exhibit 4.1.17 that any recognized environmental conditions identified in the Environmental Reports have been fully remediated in accordance with Hazardous Substances Law.

Section 4.1.18 Repayment of Existing Financing. The Purchasers shall have received evidence satisfactory to them that (i) upon the Closing under this Agreement and application of the proceeds on the Closing Date, the lenders providing loans to the Company pursuant to the Existing Financing Agreement have been fully repaid and such lenders have released all Liens granted in their favor securing such loans and (ii) the Collateral Documents (as defined in the Existing Financing Agreement) have been terminated.

Section 4.1.19 Funding of the IDC Reserve Account. The Company shall have funded, or shall fund contemporaneously with the Closing from proceeds of the Notes, the IDC Reserve Account in an amount equal to [***].

Section 4.1.20 Funding of the Debt Service Reserve Account. The Company shall have funded the Debt Service Reserve Account with a portion of the proceeds of the Notes up to the Debt Service Reserve Requirement.

Section 4.1.21 Permit Schedule.

(i) The Company shall have delivered to each of the Purchasers Schedule 5.19, in form and substance reasonably satisfactory to the Purchasers, of which (i) Part I shall be Permits which are Applicable Permits as of the Closing Date, and (ii) Part II shall be Permits which are expected to become Applicable Permits after the Closing Date. The Company shall also deliver to each of the Purchasers copies of each Permit listed in Part I. The Permits listed in Part I shall in the Purchasers’ reasonable opinion comprise all of the Applicable Permits as of the Closing Date.

(ii) Each Permit on Part I of Schedule 5.19 shall (i) have been duly obtained by the Company or on behalf of the Project, (ii) be in full force and effect, (iii) not be subject to any current legal proceeding, and (iv) not be subject to any Unsatisfied Condition that

[***] Confidential Treatment Requested

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could reasonably be expected to result in material modification or revocation of such Permit, and except as disclosed in Schedule 5.19 all applicable appeal periods with respect to each such Permit shall have expired.

(iii) The Permits listed in Part II of Schedule 5.19 shall, in the Purchasers’ reasonable opinion, be timely obtainable (i) on or before the date the Company requires such Permit, (ii) without delay materially in excess of the time provided therefor in the Project Schedule (if applicable), and (iii) without expense materially in excess of the amounts provided therefor in the Project Budget.

(iv) No Applicable Permit shall be subject to any restriction, condition, limitation or other provision which could reasonably be expected to have a Material Adverse Effect.

Section 4.1.22 Absence of Litigation. Except as set forth in Schedule 4.1.22, there are no actions, suits or proceedings by or before any Governmental Authority or arbitrator pending or, to the Company’s Knowledge, threatened in writing by or against the Company or any Major Project Participant related to the Project.

Section 4.1.23 Payment of Fees. All Taxes, fees and other costs payable in connection with the execution, delivery recordation and filing of the documents and instruments referred to in this Section 4.1, and in connection with, title insurance premiums, surveys, charges related thereto, and due on or before the Closing Date shall have been paid in full or, if and in the manner specifically approved by the Purchasers, provided for. The Company shall have paid (or caused to be paid) or shall have made arrangements in the manner reasonably satisfactory to the payee for the payment of all outstanding amounts due, as of the Closing Date, and owing to the Purchasers’ special counsel referred to in Section 4.1.13, the Title Insurer and the Independent Consultants to the extent reflected in a statement rendered to the Company at least one Business Day prior to the Closing Date.

Section 4.1.24 Financial Statements. The Company shall have delivered to each of the Purchasers accurate and complete copies of the most recent (a) audited annual financial statements of Sponsor for the year ended December 31, 2011, and (b) unaudited quarterly financial statements of the Company and Sponsor for the fiscal quarter ended on September 30, 2012, and in any of the foregoing cases, together with, in the case of the Company and Sponsor, a certificate from the appropriate Responsible Officer thereof, dated as of the Closing Date, stating that no material adverse change in the consolidated assets, liabilities, operations or financial condition of such Person has occurred from those set forth in the most recent financial statements provided to the Purchasers.

Section 4.1.25 Collateral Requirements. The Company shall have delivered to the Collateral Agent and each of the Purchasers evidence reasonably satisfactory to the Purchasers that the Company or other applicable Lien grantor has taken or caused to be taken all such actions, executed and delivered or caused to be executed and delivered all such agreements, documents and instruments, and made or caused to be made all such filings and recordings that may be necessary or, in the opinion of the Purchasers, desirable in order to create in favor of the Collateral Agent a valid and (upon such filing and recording) perfected first priority Lien in such Person’s rights, title and interest in and to the Collateral. Such actions shall include delivery:

(i) to each of the Purchasers, of the Pledge Agreement, the Security Agreement and the Depositary Agreement, duly executed by each Credit Party and each other Person party thereto;

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(ii) to the Collateral Agent, of all pledged securities, including all certificates, agreements or instruments representing or evidencing such pledged securities, accompanied by instruments of transfer and membership interest powers undated and endorsed in blank to the extent such pledged interests are certificated;

(iii) to the Collateral Agent, of all promissory notes or other instruments (duly endorsed, where appropriate, in a manner reasonably satisfactory to the Purchasers) evidencing any Collateral;

(iv) to the Collateral Agent, of all other certificates, agreements, including control agreements, or instruments necessary to perfect the Collateral Agent’s security interest in all Chattel Paper, all Instruments, all Deposit Accounts (other than the Cash Grant Account and the System Refund Account) and all Investment Property of the Company (as each such term is defined in the Security Agreement and to the extent required by the Security Agreement);

(v) to the Collateral Agent, of UCC financing statements in appropriate form for filing under the UCC, and, where appropriate, fixture filings and transmitting utility filings, and such other documents under applicable Legal Requirements in each jurisdiction as may be necessary or appropriate or, in the opinion of the Purchasers, desirable to perfect the first priority Liens created, or purported to be created, by the Collateral Documents and, with respect to all UCC financing statements required to be filed pursuant to the Credit Documents, evidence satisfactory to the Purchasers that the Company has retained, at its sole cost and expense, a service provider acceptable to the Purchasers for the tracking of all such financing statements and notification to the Purchasers of, among other things, the upcoming lapse or expiration thereof;

(vi) to each of the Purchasers, of certified copies of UCC, tax and judgment lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a date no less recent than ten Business Days before the Closing Date or as otherwise acceptable to the Purchasers listing all effective financing statements, lien notices or comparable documents that name the Company and Pledgor as debtor and that are filed in those state and county jurisdictions in which any property of such Person is located and the state and county jurisdictions in which such Person is organized or maintains its principal place of business and such other searches that the Purchasers deem necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens) showing that upon due filing or recordation (assuming such filing or recordation occurred on the date of such respective reports), as the case may be, the security interests created under the Collateral Documents, with respect to the Collateral, will be prior to all other financing statements, fixture filings or other security documents wherein the security interest is perfected by filing or recording in respect of the Collateral;

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(vii) to each of the Purchasers, of an opinion of counsel (which counsel shall be reasonably satisfactory to the Purchasers) with respect to the perfection of the security interests in favor of the Collateral Agent in personal or mixed property Collateral and such other matters governed by the laws of such jurisdiction regarding such security interests as the Collateral Agent may reasonably request, in each case in form and substance reasonably satisfactory to the Purchasers; and

(viii) to each of the Purchasers, of evidence reasonably satisfactory to the Purchasers of payment or arrangements for payment by the Company of all applicable recording Taxes, stamp duties, registration fees or charges, filing costs and other similar expenses, if any, required to be paid in connection with the execution, delivery or filing of, or the perfection of any Operative Document or otherwise in connection with the Collateral.

Section 4.1.26 Project Budget. The Company shall have delivered to each of the Purchasers the Project Budget in substantially the form of Schedule 4.1.26, which Project Budget shall be satisfactory to the Purchasers.

Section 4.1.27 Base Case Projections. The Company shall have delivered to each of the Purchasers the Base Case Projections, in substantially the form of Schedule 4.1.27, which Base Case Projections shall be satisfactory to the Purchasers.

Section 4.1.28 Project Schedule. The Company shall have delivered to each of the Purchasers the Project Schedule in substantially the form of Schedule 4.1.28, which Project Schedule shall be satisfactory to the Purchasers.

Section 4.1.29 Establishment of Accounts. The Accounts required to be established as of the Closing Date for the Project under the Depositary Agreement shall have been established, and funded in accordance with the Operative Documents, to the satisfaction of the Purchasers.

Section 4.1.30 Direct Agreements. The Company shall have delivered to each of the Purchasers executed Direct Agreements from the Sponsor with respect to each of the MESPA, the MOMA and the Administrative Services Agreement, which Direct Agreements shall be in substantially the form of Exhibit 4.1.30 or otherwise reasonably satisfactory to the Purchasers.

Section 4.1.31 Anti-Terrorism Compliance. At least five Business Days prior to the Closing Date, each Purchaser shall have received all documentation and other information requested by such Purchaser, which is required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, or pursuant to such Purchaser’s internal policies.

Section 4.1.32 Flood Insurance. The Company shall have delivered to each of the Purchasers evidence from the Insurance Consultant of flood insurance or evidence from the Insurance Consultant that flood insurance is not required, each in form and substance satisfactory to the Purchasers.

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Section 4.1.33 Effectiveness of Tariff. The Tariff and the Gas Tariff shall be final, non appealable and in full force and effect.

Section 4.1.34 Regulatory Status. The Company shall have delivered to each of the Purchasers (a) a self-certification by the Company filed with FERC that the Project is an Eligible Facility and that the Company is an Exempt Wholesale Generator, (b) an order issued by FERC authorizing the Company to sell electricity, capacity and ancillary services at market- based rates and issuing such blanket authorizations and waivers of regulation typically granted to sellers at market-based rates and (c) all necessary approvals from any Governmental Authority in respect of the Tariff.

Section 4.1.35 Tariff Compliance.

(i) The Sponsor shall be a Qualified Fuel Cell Provider which has been designated by an agency of the State of Delaware as an “economic development opportunity” within the meaning of the REPS Act.

(ii) The Company shall be a PJM Member (as defined in the Tariff) and shall have entered into (i) all required PJM Agreements required for the performance of the Company’s obligations in connection with the Project and the Tariff or the Company shall have entered into an agreement with a Market Participant (as defined in the Tariff) that will perform some or all of the Company’s PJM-related obligations in connection with the Project and the Tariff.

(iii) The Company shall have obtained all necessary authorizations from FERC to sell Energy at market-based rates as contemplated by the Tariff and shall be in compliance with such authorization.

Section 4.1.36 Existing Systems. The Company shall have delivered to each of the Purchasers evidence that the Existing Systems have achieved COD, in form and substance satisfactory to the Purchasers.

Section 4.1.37 Other Real Estate Requirements. The Company shall have delivered to each of the Purchasers:

(i) a copy of the Mortgage encumbering the Mortgaged Property in favor of the Collateral Agent, duly executed and acknowledged by the Company, and otherwise in form for recording in the recording office of New Castle County, Delaware, together with such certificates, affidavits, questionnaires or returns as shall be required in connection with the recording or filing thereof to create a Lien under applicable law;

(ii) with respect to the Mortgaged Property, such consents, approvals, amendments, supplements, estoppels, tenant subordination agreements or other instruments as are necessary to consummate the transactions hereunder contemplated or as shall reasonably be deemed necessary by the Purchasers;

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(iii) evidence reasonably acceptable to the Purchasers of payment by the Company of all Title Policy premiums, search and examination charges, and related charges, mortgage recording Taxes, fees, charges, costs and expenses required for the recording of the Mortgage and issuance of the Title Policy;

(iv) with respect to any Real Property in which the Company holds possession by lease or easement (other than where the lessor is the State of Delaware or a subdivision thereof, or DPL), both (a) an agreement by the fee owner to obtain a nondisturbance agreement from each lienholder against the fee interest in such Real Property, and (b) a nondisturbance agreement from any such existing lienholder, in each case in form and substance reasonably satisfactory to the Purchasers;

(v) copies of all Leases or easements in which the Company holds the lessor’s interest or other agreements relating to possessory interests, if any, in the Real Property. To the extent any of the foregoing affect any Real Property, such agreement shall be subordinate to the Lien of each Mortgage to be recorded against the Mortgaged Property, either expressly by its terms or pursuant to a subordination, non-disturbance and attornment agreement, and shall otherwise be acceptable to the Purchasers;

(vi) evidence reasonably acceptable to the Purchasers that the Company and each other Major Project Participant have obtained and hold all easements or other possessory rights in real estate, together with necessary real property permits and crossing rights (collectively, “Rights of Way”) necessary for (a) performance in full of each such Person’s obligations under the Operative Documents and each Permit by which such Person or its assets is bound, and (b) the development, leasing, construction and operation of the Project in accordance with the Base Case Projections. The use of such Rights of Way shall not encroach on or interfere with property adjacent to such Rights of Way or existing easements or other rights (whether on, above or below ground) and the full length of the Rights of Way shall be continuous, without break, gap or interruption;

(vii) the Company has a good, marketable and insurable (a) leasehold interest in the Sites, (b) easement interest in the Easements, and (c) interest in any other Real Property; and

(viii) each Mortgage is a valid first Lien on the Company’s right, title and interest in the applicable Mortgaged Property (including, without limitation, the Rights of Way), free and clear of all Liens, encumbrances and exceptions to title whatsoever, other than (a) the Title Exceptions and (b) Permitted Liens.

Section 4.1.38 Solvency Certificate. The Company shall have delivered to each of the Purchasers a certificate from the president of the Company certifying that the Company is Solvent after giving effect to the transactions contemplated hereby.

Section 4.1.39 Title Policy. The Company shall have delivered to the Collateral Agent (a) an ALTA extended coverage policy of title insurance (2006 form) issued by the Title Insurer and in form and substance acceptable to the Purchasers which policy shall insure that the Mortgage creates a valid first priority Lien on, and security interest in, the

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Mortgaged Property free and clear of all defects and encumbrances, except the Title Exceptions, and containing such endorsements thereto as are reasonably requested by the Purchasers, or (b) the unconditional and irrevocable commitment of the Title Insurer to issue such a policy, in each case in a coverage amount equal to $144,812,500.

Section 4.1.40 DPL Agreements. The Company shall have delivered to each of the Purchasers a copy of any agreement entered into with DPL that DPL will honor any notices received from Collateral Agent pursuant to a power of attorney granted by the Company under the Collateral Documents as if such notice were delivered by the Company under the Tariff.

Section 4.1.41 Recapture Indemnities and Guaranties. The Company shall have delivered to each of the Purchasers copies of each of the executed Recapture Indemnities and Guarantees, each of which shall be in full force and effect as of the Closing Date and each of which shall be in form and substance satisfactory to the Purchasers.

Section 4.1.42 Interconnection Service. For each System at a Site (a) the Company has obtained the relevant Interconnection Agreement for such Site (which shall be in full force and effect), with rights to delivery of the full capacity of that portion of the Project expected to be installed at such Site; and (b) all necessary network upgrades required under each such Interconnection Agreement for interconnection service at such Site have been completed and such interconnection service is fully available.

Section 4.1.43 Red Lion Transmission Line. For each System at the Red Lion Site, the approximate half-mile transmission line connecting the Red Lion Site to the Red Lion substation and the point of interconnection to the PJM Grid shall have been completed and the Company shall have provided evidence to each of the Purchasers that no other party shall be entitled to displace the Company’s access to such line in the amount necessary to accommodate the full output from the Red Lion Site (such evidence may consist of the Interconnection Agreement to be entered into with respect to the Red Lion Site if such agreement has the effect of providing that the Company has the right to place its full output on the line without displacement by any other party).

Section 4.1.44 Utilities. The Company shall have delivered to each of the Purchasers reasonably satisfactory evidence that all process water, sewer, telephone, waste disposal, electric and all other utility services necessary for the development, construction, ownership and operation of the Project are either contracted for, or readily available on commercially reasonable terms, at the Project.

Section 4.1.45 Legality. No federal, state or law or regulation, or any interpretation thereof, exists which would make the Notes, or the securing of the Notes by the Collateral, or any other aspect of the transactions contemplated herein, illegal, or which would subject the Purchasers or any of their Affiliates to any penalties, sanctions or fines.

Section 4.1.46 Utility Laws. No federal, state or local law or regulation exists as of the Closing Date under which any Purchaser would become, solely as a result of the transactions contemplated in the Credit Documents, subject to or not exempt from regulation as

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an “electric utility,” “electric corporation,” “electrical company,” “public utility,” or “holding company” under the FPA, PUHCA or the laws of the State of Delaware, except a Purchaser may become subject to such regulation upon the exercise of remedies under the Credit Documents.

Section 4.2 Conditions Precedent to All Drawdowns.

The obligations of the Holders to permit any Drawdown from the Construction Escrow Account are, in each case, subject to the prior satisfaction by the Company of each of the following conditions (unless waived in writing by the Required Holders):

Section 4.2.1 Drawdown Certificate and Independent Engineer’s Drawdown Certificate.

(a) At least seven Business Days prior to the proposed date of a Drawdown, the Company shall have provided each of the Holders and the Independent Engineer with a duly executed copy of a Drawdown Certificate, dated the date of delivery of such certificate, setting forth the date of the proposed occurrence of such Drawdown and signed by a Responsible Officer of the Company, substantially in the form of Exhibit 4.2.1(a) (the “Drawdown Certificate”).

(b) At least four Business Days prior to the proposed date of a Drawdown, the Independent Engineer shall have provided each of the Holders (with a copy to the Company) with a certificate of the Independent Engineer signed by an authorized representative of the Independent Engineer, substantially in the form of Exhibit 4.2.1(b) (the “Independent Engineer’s Drawdown Certificate”).

(c) At least two Business Days prior to the proposed date of a Drawdown, the Company shall have provided each of the Holders (with a copy to the Independent Engineer) with a certificate confirming that COD has occurred with respect to the Systems being funded under the requested Drawdown and signed by an authorized representative of the Company, substantially in the form of Exhibit 4.2.1(c) (the “Company’s COD Certificate”).

(d) At least one Business Day prior to the proposed date of a Drawdown, the Independent Engineer shall have provided each of the Holders with a certificate dated the date of delivery of such certificate, confirming that COD has occurred with respect to the Systems being funded under the requested Drawdown, substantially in the form of Exhibit 4.2.1(d) (the “Independent Engineer’s COD Certificate”).

(e) The Company shall use all reasonable efforts to provide the Holders and the Independent Engineer with drafts of any certificates and other materials to be delivered pursuant to this Section 4.2.1 in advance of the time frames listed above as reasonably requested by the Holders.

Section 4.2.2 Available Funds. After taking into consideration the making of the applicable Drawdown, the Required Holders (based on consultation with the Independent Engineer) shall have reasonably determined that Available Funds shall not be less than the aggregate unpaid amount required to cause Final Completion to occur in accordance with all Legal Requirements, the MESPA, each other Project Document pursuant to which construction

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work with respect to the Project is being performed and the Credit Documents on or before the Date Certain and to pay or provide for all anticipated non-construction Project Costs, all as set forth in the then-current Project Budget.

Section 4.2.3 Permits.

(a) Each Applicable Permit and Applicable Third Party Permit shall have been duly obtained and issued or been assigned in the Company’s or the applicable third party’s name, shall be in full force and effect, shall not be subject to any current legal proceeding, and shall not be subject to any Unsatisfied Condition that could reasonably be expected to result in material modification or revocation of such Applicable Permit and Applicable Third Party Permit, and all applicable appeal periods with respect to such Applicable Permit and Applicable Third Party Permit shall have expired.

(b) The Permits which have been obtained by the Company shall not be subject to any restriction, condition, limitation or other provision that could reasonably be expected to have a Material Adverse Effect.

Section 4.2.4 Lien Releases. Subject to the Company’s right to contest Liens as described in the definition of “Permitted Liens,” the Company shall have delivered (such delivery may be conditioned upon concurrent receipt of payment by the relevant Person) if applicable, to each of the Holders duly executed Lien waivers relating to mechanics’ and materialmen’s Liens, in form and substance reasonably acceptable to each Holder.

Section 4.2.5 Acceptable Work; No Liens. All work that has been done on the Project has been done in a good and workmanlike manner and in accordance with the MESPA, and there shall not have been filed against any of the Collateral or otherwise filed with or served upon the Company with respect to the Project or any part thereof, notice of any Lien, claim of Lien or attachment upon or claim affecting the right to receive payment of any of the moneys payable to any of the Persons named on such request which has not been released by payment or bonding or otherwise or which will not be released with the payment of such obligation out of the proceeds of the Notes, other than Permitted Liens.

Section 4.2.6 Specific Milestones.

(a) Infrastructure Buildout. For each Funded System at a Site, all necessary shared infrastructure at such Site necessary for installation of such Funded System, including without limitation the “BOF Work” for such Site, as such term is defined in the MESPA, shall have been completed, as certified by the Independent Engineer in the Independent Engineer’s Drawdown Certificate.

(b) 10 MW Limit. For the first Funded System which will cause the Project to exceed 10 MW of nameplate capacity, the Sponsor shall have built a permanent manufacturing facility for Systems located in the State of Delaware, and such Funded System, and all Systems installed following the installation of the System which causes the Project to exceed such 10 MW threshold, shall have been sourced from such manufacturing facility.

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Section 4.2.7 Tariff Compliance. The Company shall be in compliance with the Tariff in all respects.

Section 4.2.8 System COD. Each System being financed with such Drawdown has achieved COD.

Section 4.2.9 Equity Funding; Proportional Funding.

(a) Each quarter prior to any System being placed in service, the Tax Equity Investors shall have contributed to the Pledgor and the Pledgor in turn shall have contributed to the Company 20% of the aggregate purchase price of the Systems to be placed in service, consistent with the Base Case Projections.

(b) Concurrently with any Drawdown, the Tax Equity Investors shall have contributed to the Pledgor and the Pledgor in turn shall have contributed to the Company (in addition to the contribution described in Section 4.2.9(a)) 30.20% of the aggregate purchase price of the Systems placed in service through the date of such Drawdown, consistent with the Base Case Projections.

(c) After giving effect to any Drawdown, the ratio of amounts drawn from the Construction Escrow Account to the total Notes shall not exceed the ratio of the aggregate nameplate capacity of commissioned Systems to 30 MW.

Section 4.3 Conditions Precedent to each Credit Event.

Section 4.3.1 Representations and Warranties.

(a) Each representation and warranty of each Credit Party in any of the Credit Documents shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the date of such Credit Event, before and after giving effect to the applicable Credit Event, with the same effect as though made on and as of such date, unless such representation or warranty expressly relates solely to an earlier date; and the Company shall have certified to the Purchasers or Holders, as applicable, as to the foregoing.

(b) Each representation and warranty of each Major Project Participant contained in the Operative Documents (other than this Agreement) shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” or the like shall be true and correct in all respects) on and as of the date of such Credit Event, before and after giving effect to the Credit Event, with the same effect as though made on and as of such date, unless such representation and warranty expressly relates solely to an earlier date.

Section 4.3.2 No Default or Event of Default. No Default or Event of Default shall have occurred and be continuing or will result from the relevant Credit Event.

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Section 4.3.3 No Material Adverse Effect. At any time following the Closing Date, there shall not have occurred and be continuing any event, circumstance or condition that has, or could reasonably be expected to have, a Material Adverse Effect.

Section 4.3.4 Additional Documentation. With respect to Additional Project Documents and Applicable Permits entered into or obtained, transferred or required (whether because of the status of the development, construction or operation of the Project or otherwise) since the date of the most recent Credit Event, the Purchasers shall have received copies of such Additional Project Documents and material Applicable Permits.

Section 4.4 Conditions Precedent to Final Completion

The Final Completion Date shall occur upon the satisfaction or waiver in writing by the Required Holders of the following conditions:

Section 4.4.1 Lien Releases. The Company shall have delivered (such delivery may be conditioned upon concurrent receipt of payment by the relevant Person) if applicable, to each of the Holders duly executed Lien waivers relating to mechanics’ and materialmen’s Liens, in form and substance reasonably acceptable to each Holder.

Section 4.4.2 No Liens. There shall not have been filed with or served upon the Company with respect to the Site, the Project or any part thereof notice of any Lien or claim of Lien that has not been discharged, other than Permitted Liens.

Section 4.4.3 Final Completion Certificate of the Company. Each of the Holders shall have received a certificate from the Company, in substantially the form of Exhibit 4.4.3 certifying that:

(a) all facilities necessary for the Project as contemplated under the Tariff and the Operative Documents:

(i) have been constructed, installed, completed, tested, commissioned and paid for in accordance with the Operative Documents; and

(ii) have been completely constructed utilizing standards of workmanship and materials in accordance with the MESPA and in accordance with the terms of the Tariff and Prudent Electrical Practices (as defined in the MESPA) and all relevant equipment shall have been installed and be operating in accordance with the MESPA;

(b) each of the Systems shall have achieved COD; and

(c) 30 MW of Systems shall have passed the Performance Tests and have demonstrated performance at or better than nameplate capacity on or before the Date Certain, or if less than 30 MW of Systems have passed such Performance Tests and demonstrated such performance, the Company shall have paid the Buydown Amount.

Section 4.4.4 Final Completion Certificate of the Independent Engineer. Each of the Holders shall have received a certificate from the Independent Engineer, in substantially the form of Exhibit 4.4.4 certifying, among other things, as to the matters set forth in Section 4.4.3.

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Section 4.4.5 Major Project Documents. All Major Project Documents shall be in full force and effect and no default or event of default shall have occurred and be continuing under any Major Project Document.

Section 4.4.6 Applicable Permits. The Company (i) shall have obtained and delivered to each of the Holders copies of all material Applicable Permits obtained or to be obtained by or in the name of the Company and required to operate the Project, and (ii) shall be in compliance with all material Applicable Permits in all material respects thereunder.

Section 4.4.7 Tariff. The Tariff shall be final, non-appealable and in full force and effect.

Section 4.4.8 Debt Service Reserve Account. The Debt Service Reserve Account shall be fully funded up to the Debt Service Reserve Requirement in cash.

Section 4.4.9 Title Insurance. The Title Company shall have issued to the Collateral Agent no more than two (2) Business Days prior to the Final Completion Date an endorsement to the Title Policy in form and substance reasonably satisfactory to the Required Holders insuring the continued priority of the Lien of the Mortgage over any mechanics’ and materialmen’s liens or other construction liens or related notices as of the Final Completion Date.

Section 4.4.10 Notice of Final Completion. Each of the Holders shall have received a notice of Final Completion at least three (3) Business Days before the Final Completion Date.

ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.

The Company represents and warrants to each Purchaser that:

Section 5.1 Organization; Power and Authority.

(a) The Company is a limited liability company duly formed, validly existing and in good standing under the laws of its jurisdiction of formation, and is duly qualified as a foreign company and is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company has the limited liability company power and authority to own or hold under lease the properties it purports to own or hold under lease, to transact the business it transacts and proposes to transact, to execute and deliver this Agreement and the other Operative Documents to which is a party (including, without limitation, the Notes) and to perform the provisions hereof and thereof, including to construct, own and operate the Project.

(b) The sole member of the Company is the Pledgor.

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Section 5.2 Authorization, Etc. This Agreement and the other Operative Documents to which the Company is a party (including, without limitation, the Notes) have been duly authorized by all necessary limited liability company action on the part of the Company, and this Agreement constitutes, and upon execution and delivery thereof each other Operative Document to which the Company is a party will constitute, a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

Section 5.3 Disclosure. The Company, through its agent, J.P. Morgan Securities, Inc. (the “Placement Agent”) has delivered to each Purchaser a copy of a Private Placement Memorandum, dated January 2013 (the “Memorandum”), relating to the transactions contemplated hereby. The Memorandum fairly describes, in all material respects, the general nature of the business and principal properties of the Company. This Agreement, the Memorandum and the documents, certificates or other writings delivered to the Purchasers by or on behalf of the Company in connection with the transactions contemplated hereby and identified in Schedule 5.3, and the financial statements listed in Schedule 5.5 (this Agreement, the Memorandum and such documents, certificates or other writings and such financial statements delivered to each Purchaser prior to February 13, 2013 being referred to, collectively, as the “Disclosure Documents”), taken as a whole, do not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading in light, as of the date such information is dated or certified, of the circumstances under which they were made; provided, that to the extent any such information, report, financial statement, certificate, Certificate of Drawdown, exhibit, schedule or other document was based upon or constitutes a forecast or projection, the Company represents only that it acted in good faith and utilized reasonable assumptions and due care in the preparation of such information, report, financial statement, certificate, Certificate of Drawdown, exhibit, schedule or other document. Except as disclosed in the Disclosure Documents, since December 31, 2011, there has been no change in the financial condition, operations, business, properties or prospects of the Company except changes that individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect. There is no fact known to the Company that could reasonably be expected to have a Material Adverse Effect that has not been set forth herein or in the Disclosure Documents.

Section 5.4 Subsidiaries. The Company does not have any Subsidiaries.

Section 5.5 Financial Statements; Material Liabilities. The Company has delivered to each of the Purchasers copies of the financial statements of the Company and Sponsor listed on Schedule 5.5. All of said financial statements (including in each case the related schedules and notes) fairly present in all material respects the consolidated financial position of each of the Company and Sponsor, as applicable, as of the respective dates specified in such Schedule and the results of their respective operations and cash flows and have been prepared in accordance with GAAP consistently applied throughout the periods involved except as set forth in the notes thereto (subject, in the case of any interim financial statements, to normal year-end adjustments). The Company does not have any Material liabilities that are not disclosed on such financial statements or otherwise disclosed in the Disclosure Documents.

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Section 5.6 Compliance with Laws, Other Instruments, Etc. The execution, delivery and performance by the Company of this Agreement and the other Operative Documents to which the Company is a party (including, without limitation, the Notes) will not (i) contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien (other than pursuant to the Credit Documents) in respect of any property of the Company under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, Governing Documents, or any other agreement or instrument to which the Company is bound or by which the Company or its properties may be bound or affected, (ii) conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment, decree, or ruling of any court, arbitrator or Governmental Authority applicable to the Company or (iii) violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to the Company.

Section 5.7 Governmental Authorizations, Etc. No consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority after the date hereof is required in connection with the execution, delivery or performance by the Company of this Agreement or another Operative Documents to which the Company is a party (including, without limitation, the Notes).

Section 5.8 Observance of Agreements, Statutes and Orders. The Company is not (i) in default under any term of any agreement or instrument to which it is a party or by which it is bound, (ii) in violation of any order, judgment, decree or ruling of any court, arbitrator or Governmental Authority or (iii) in violation of any applicable law, ordinance, rule or regulation of any Governmental Authority (including, without limitation, Environmental Laws, the USA PATRIOT Act or any of the other laws and regulations that are referred to in Section 5.16), which default or violation, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

Section 5.9 Taxes. The Company has filed all tax returns that are required to have been filed in any jurisdiction, and has paid all taxes shown to be due and payable on such returns and all other taxes and assessments levied upon it or its properties, assets, income or franchises, to the extent such taxes and assessments have become due and payable and before they have become delinquent, except for any taxes and assessments (i) the amount of which is not individually or in the aggregate Material or (ii) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which the Company has established adequate reserves in accordance with GAAP. The Company knows of no basis for any other tax or assessment that could reasonably be expected to have a Material Adverse Effect. The charges, accruals and reserves on the books of the Company in respect of U.S. federal, state or other taxes for all fiscal periods are adequate.

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Section 5.10 Reserved.

Section 5.11 Licenses, Permits, Etc.

(a) The Company owns or has the right to use all licenses, permits, franchises, authorizations, patents, copyrights, service marks, trademarks and trade names, or rights thereto, that are necessary for the operation of its business, without known conflict with the rights of others. No product or service of the Company infringes in any material respect any license, permit, franchise, authorization, patent, copyright, service mark, trademark, trade name or other right owned by any other Person.

(b) To the Knowledge of the Company, there is no violation by any Person of any right of the Company with respect to any license, patent, copyright, service mark, trademark, trade name or other right owned or used by the Company.

(c) There exists no pending or threatened claim or litigation against or affecting the Company contesting its right to sell or use any such product, process, method, substance, part or other material.

(d) The Company owns no registered patents, copyrights or trademarks, or applications therefor.

Section 5.12 Compliance with ERISA.

(a) The Company and each ERISA Affiliate have operated and administered each Plan (other than any Multiemployer Plan) in compliance in all material respects with all applicable laws. Neither the Company nor any ERISA Affiliate has incurred any material liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans (as defined in section 3 of ERISA), and no event, transaction or condition has occurred or exists that could reasonably be expected to result in the incurrence of any such liability by the Company or any ERISA Affiliate, or in the imposition of any Lien on any of the rights, properties or assets of the Company or any ERISA Affiliate, in either case pursuant to Title I or IV of ERISA or to section 430(k) of the Code or to such penalty or excise tax provisions or to section 4068 of ERISA.

(b) The present value of the aggregate benefit liabilities under each of the Plans (other than Multiemployer Plans), determined as of the end of such Plan’s most recently ended plan year on the basis of the actuarial assumptions specified for funding purposes in such Plan’s most recent actuarial valuation report, did not exceed the aggregate current value of the assets of such Plan allocable to such benefit liabilities. The term “benefit liabilities” has the meaning specified in section 4001 of ERISA and the terms “current value” and “present value” have the meaning specified in section 3 of ERISA.

(c) The Company and its ERISA Affiliates have not incurred any partial or complete withdrawal liabilities (and are not subject to contingent withdrawal liabilities) under section 4201 or 4204 of ERISA in respect of Multiemployer Plans.

(d) The expected postretirement benefit obligation (determined as of the last day of the Company’s most recently ended fiscal year in accordance with Financial Accounting Standards Board Statement No. 106, without regard to liabilities attributable to continuation coverage mandated by section 4980B of the Code) of the Company is zero.

(e) The execution and delivery of this Agreement and the issuance and sale of the Notes hereunder will not involve any transaction that is subject to the prohibitions of section 406 of ERISA or in connection with which a tax could be imposed pursuant to section 4975(c)(1)(A)- (D) of the Code. The representation by the Company in the first sentence of this Section 5.12(e) is made in reliance upon and subject to the accuracy of, each Purchaser’s representation in Section 6.2 as to the sources of the funds used to pay the purchase price of the Notes to be purchased by such Purchaser.

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Section 5.13 Private Offering by the Company. Neither the Company nor anyone acting on its behalf has offered the Notes or any similar Securities for sale to, or solicited any offer to buy any of the same from, or otherwise approached or negotiated in respect thereof with, any Person other than the Purchasers and not more than 25 other Institutional Investors, each of which has been offered the Notes at a private sale for investment. Neither the Company nor anyone acting on its behalf has taken, or will take, any action that would subject the issuance or sale of the Notes to the registration requirements of section 5 of the Securities Act or to the registration requirements of any securities or blue sky laws of any applicable jurisdiction.

Section 5.14 Use of Proceeds; Margin Regulations. The Company will apply the proceeds of the sale of the Notes (i) on the Closing Date as set forth in Section 9.7(a)(A) and (ii) thereafter as set forth in Section 9.7(a)(B). No part of the proceeds from the sale of the Notes hereunder will be used, directly or indirectly, for the purpose of buying or carrying any margin stock within the meaning of Regulation U of the Board of Governors of the Federal Reserve System (12 CFR 221), or for the purpose of buying or carrying or trading in any Securities under such circumstances as to involve the Company in a violation of Regulation X of said Board (12 CFR 224) or to involve any broker or dealer in a violation of Regulation T of said Board (12 CFR 220). Margin stock does not constitute any of the value of the assets of the Company and the Company does not have any present intention that margin stock will constitute any of the value of such assets. As used in this Section, the terms “margin stock” and “purpose of buying or carrying” shall have the meanings assigned to them in said Regulation U.

Section 5.15 Existing Debt; Future Liens. (a) Except as described therein, Schedule 5.15 sets forth a complete and correct list of all outstanding Debt of the Company as of the Closing Date (including a description of the obligors and obligees, principal amount outstanding and collateral therefor, if any, and Guaranty thereof, if any), since which date there has been no Material change in the amounts, interest rates, sinking funds, installment payments or maturities of the Debt of the Company. The Company is not in default and no waiver of default is currently in effect, in the payment of any principal or interest on any Debt of the Company and no event or condition exists with respect to any Debt of the Company that would permit (or that with notice or the lapse of time, or both, would permit) one or more Persons to cause such Debt to become due and payable before its stated maturity or before its regularly scheduled dates of payment.

(b) The Company has not agreed or consented to cause or permit in the future (upon the happening of a contingency or otherwise) any of its property, whether now owned or hereafter acquired, to be subject to a Lien not permitted by Section 10.6.

(c) The Company is not a party to, or otherwise subject to any provision contained in, any instrument evidencing Debt of the Company, any agreement relating thereto or

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any other agreement (other than its charter or other organizational document and the Credit Documents) which limits the amount of, or otherwise imposes restrictions on the incurring of, Debt of the Company, except as specifically indicated in Schedule 5.15.

Section 5.16 Foreign Assets Control Regulations, Etc. (a) Neither the Company nor any Controlled Entity is (i) a Person whose name appears on the list of Specially Designated Nationals and Blocked Persons published by the Office of Foreign Assets Control, U.S. Department of the Treasury (“OFAC”) (an “OFAC Listed Person”) or (ii) a department, agency or instrumentality of, or is otherwise Controlled by or acting on behalf of, directly or indirectly, (x) any OFAC Listed Person or (y) any Person, entity, organization, foreign country or regime that is subject to any OFAC Sanctions Program (each OFAC Listed Person and each other Person, entity, organization and government of a country described in clause (ii), a “Blocked Person”).

(b) No part of the proceeds from the sale of the Notes hereunder constitutes or will constitute funds obtained on behalf of any Blocked Person or will otherwise be used, directly by the Company or indirectly through any Controlled Entity, in connection with any investment in, or any transactions or dealings with, any Blocked Person.

(c) To the Company’s actual knowledge after making reasonable inquiry, neither the Company nor any Controlled Entity (i) is under investigation by any Governmental Authority for, or has been charged with, or convicted of, money laundering, drug trafficking, terrorist-related activities or other money laundering predicate crimes under any applicable law (collectively, “Anti-Money Laundering Laws”), (ii) has been assessed civil penalties under any Anti-Money Laundering Laws or (iii) has had any of its funds seized or forfeited in an action under any Anti-Money Laundering Laws. The Company has taken reasonable measures appropriate to the circumstances (in any event as required by applicable law) to ensure that the Company and each Controlled Entity is and will continue to be in compliance with all applicable Anti-Money Laundering Laws.

(d) No part of the proceeds from the sale of the Notes hereunder will be used, directly or indirectly, for any improper payments to any governmental official or employee, political party, official of a political party, candidate for political office, official of any public international organization or anyone else acting in an official capacity on behalf of a Governmental Authority, in order to obtain, retain or direct business or obtain any improper advantage. The Company has taken reasonable measures appropriate to the circumstances (in any event as required by applicable law) to ensure that the Company and each Controlled Entity is and will continue to be in compliance with all applicable anti-corruption laws and regulations.

Section 5.17 Status under Certain Statutes. The Company is not subject to regulation under the Investment Company Act of 1940, as amended.

Section 5.18 Environmental Matters. (a) The Company has no knowledge of any claim nor has received any notice of any claim, and no proceeding has been instituted raising any claim against the Company or any of its real properties now or formerly owned, leased or operated by it or other assets of the Company, alleging any damage to the environment arising out of or related to the operations of the Company or violation of any Environmental Laws, except, in each case, such as could not reasonably be expected to result in a Material Adverse Effect.

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(b) The Company has no Knowledge of any facts which would give rise to any claim, public or private, of violation of Environmental Laws or damage to the environment emanating from, occurring on or in any way related to real properties now or formerly owned, leased or operated by it or to other assets of the Company or their use, except, in each case, such as could not reasonably be expected to result in a Material Adverse Effect.

(c) The Company has not stored any Hazardous Substances on real properties now or formerly owned, leased or operated by it and has not disposed of any Hazardous Substances in a manner contrary to any Environmental Laws in each case in any manner that could reasonably be expected to result in a Material Adverse Effect.

Section 5.19 Permits.

(a) There are no Permits under existing Legal Requirements with respect to the Project that are or will become Applicable Permits other than the Permits listed on Schedule 5.19. All Applicable Permits have been issued and are in full force and effect and not subject to current legal proceedings or to any Unsatisfied Condition that could reasonably be expected to result in material modification or revocation, and except as disclosed in Schedule 5.19, all applicable appeal periods with respect thereto have expired. The Company is in compliance in all material respects with any Applicable Permit that has been issued and, to the Company’s Knowledge, no other Person is in material violation of any issued Applicable Third Party Permit under which such Person is the permittee.

(b) With respect to any of the Permits which are not yet Applicable Permits or, to the Knowledge of the Company, Applicable Third Party Permits, no fact or circumstance exists which makes it likely that any such Permit will not be timely obtainable by the Company or the applicable Person (a) prior to the time that it becomes an Applicable Permit or Applicable Third Party Permit, as applicable, (b) without delay materially in excess of the time periods thereof in the Project Schedule (if applicable), (c) without expense materially in excess of the amounts provided therefor in the then-current Project Budget and (d) without being inconsistent in any material respect with any of the Operative Documents.

(c) Except as disclosed in Schedule 5.19, the Permits which have been obtained by the Company or, to the Company’s Knowledge, any other person identified in Schedule 5.19 shall not be subject to any restriction, condition, limitation or other provision that could reasonably be expected to have a Material Adverse Effect.

Section 5.20 Solvency. The Company is Solvent both before and after taking into account the transactions contemplated by the Credit Documents.

Section 5.21 Insurance. All insurance policies then required to be maintained by the Company and, to the Company’s Knowledge, each other Major Project Participant pursuant to the terms of the Operative Documents are in full force and effect, and all premiums then due and payable have been paid.

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Section 5.22 Litigation.

(a) Except as set forth in Schedule 4.1.22, as of the Closing Date, no action, litigation, suit, proceeding or investigation before or by any court, arbitrator or other Governmental Authority is pending or, to the Company’s Knowledge, threatened in writing by or against the Company, or any other Credit Party or, to the Company’s Knowledge, Major Project Participant as relates to the Project, or any of their respective properties that relate to the Project.

(b) As of the Closing Date, the Company has no Knowledge of any order, judgment or decree having been issued or proposed to be issued by any Governmental Authority that, as a result of the construction, development, ownership or operation of the Project by the Company, the sale of electricity therefrom by the Company or the entering into of any Operative Document or any transaction contemplated hereby or thereby, could reasonably be expected to cause or deem any Secured Party or the Company or any Affiliate of any of them to be subject to, or not exempted from, regulation under PUHCA, or treated as a public utility under the laws of the State of Delaware as presently constituted and as construed by the courts of the State of Delaware, respecting the rates or the financial or organizational regulation of electric utilities.

(c) After the Closing Date, (a) there is no pending or, to the Company’s Knowledge, threatened action, litigation, suit, proceeding or investigation of any kind, including actions or proceedings of or before any Governmental Authority or arbitrator to which the Company or any other Credit Party is a party, or by which any of them or any of their properties that relate to the Project are bound and (b) there is to the Company’s Knowledge, no pending or threatened action, litigation, suit, proceeding or investigation of any kind, including actions or proceedings of or before any Governmental Authority to which any Major Project Participant is a party, or by which any of them or any of their properties that relate to the Project are bound, which, in either case, has not been disclosed by the Company to the Purchasers in accordance with, and to the extent required by this Agreement, or which could reasonably be expected to have a Material Adverse Effect.

Section 5.23 Labor Matters. The Company is not engaged in any unfair labor practice that has had or could (individually or together with other similar unfair labor practices) reasonably expected to have a Material Adverse Effect.

Section 5.24 Governmental Regulation.

(a) As of the Closing Date, the Company is not subject to regulation as (a) an “electric utility company”, a “public-utility company” or a “holding company” or a “subsidiary company” of a “holding company” in each case as such term is defined under PUHCA, or (b) an “electric supplier”, a “retail electricity supplier” or a “public utility” under the laws of the State of Delaware. The Company is an Exempt Wholesale Generator and a “public utility” under the FPA with authority to make wholesale sales at market-based rates, with waivers of regulations and blanket authorizations that are customarily granted by FERC to a public utility with market- based rate authority, and such Exempt Wholesale Generator status and market-based rate authorization shall be in full force and effect, not subject to any pending protest or challenge.

(b) None of the Secured Parties nor any Affiliate of any of them will, solely as a result of the construction, ownership, leasing or operation of the Project, the sale of wholesale electric capacity, energy or ancillary services therefrom, the issuance of the Notes, or the entering into of any Operative Document in respect of the Project or any transaction contemplated hereby or thereby, be subject to, or not exempt from, regulation under the FPA or PUHCA or under state laws and regulations respecting the rates or the financial regulation of electric utilities, except that the exercise of remedies, as provided for under the Credit Documents, may cause any such Person to be subject to such regulation. The Company will not be subject to regulation as a “retail electricity supplier,” an “electric supplier” or a “public utility” under the laws of the State of Delaware then in effect.

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Section 5.25 Ranking of Obligations; Perfection and Priority of Liens.

(a) This Agreement and the Notes and the obligations evidenced hereby and thereby are and will at all times (i) be direct and unconditional general obligations of the Company and (ii) rank in right of payment and otherwise at least pari passu with all other senior secured Debt of the Company, whether now existing or hereafter incurred.

(b) The provisions of the Collateral Documents to which the Company is a party are effective to create, in favor of the Collateral Agent for the benefit of the Secured Parties, as security for the obligations purported to be secured thereby, a legal, valid and enforceable Lien on and security interest in all of the Collateral purported to be covered by such Collateral Documents, and all other necessary and appropriate action has been taken so that each such Collateral Document creates, or upon the filing of any necessary filing statements will create, a perfected Lien on and perfected security interest in all right, title and interest of the Company in the Collateral covered thereby, prior and superior to the rights of all third persons and subject to no Liens other than Permitted Liens. The Company has good, legal and valid title to all items of Collateral covered by each Collateral Document to which it is a party free and clear of all Liens other than Permitted Liens.

Section 5.26 Project Construction. To the best of the Company’s Knowledge, all work done on the Project has been done in a good and workmanlike manner, free of any material defects, and in accordance in all material respects with the Major Project Documents, Prudent Electrical Practices and all Legal Requirements.

Section 5.27 Adverse Change.

(a) As of the Closing Date, there is no fact known to the Company which has had or could reasonably be expected to have a Material Adverse Effect which has not been disclosed to the Purchasers (as of such date) by or on behalf of the Company on or prior to the Closing Date in connection with the transactions contemplated hereby.

(b) Since the Closing Date, no event, circumstance or condition has occurred and is continuing that constitutes or could reasonably be expected to result in a Material Adverse Effect.

Section 5.28 Major Project Documents. True, correct and complete copies of all Major Project Documents together with all amendments, modifications or supplements thereof as

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currently in effect have been delivered to the Purchasers. Each Major Project Document is in full force and effect and, to the Company’s Knowledge, no breaches or defaults have occurred and are continuing thereunder.

Section 5.29 Sufficiency of Rights. Other than those that can be reasonably expected to be commercially available when and as required, the services to be performed, the materials to be supplied and the real property interests, the Easements and other rights granted, or to be granted, pursuant to the Project Documents in effect as of such date:

(a) comprise all of the interests necessary to secure any right material to the acquisition, leasing, development, construction, installation, completion, operation and maintenance of the Project in accordance with all Legal Requirements and in accordance with the Project Schedule, all without reference to any proprietary information not owned by or available to the Company;

(b) are sufficient to enable the Project to be located, constructed, developed, owned, occupied, operated, maintained and used on the Sites and the Easements; and

(c) provide adequate ingress and egress from the Sites for any reasonable purpose in connection with the construction and operation of the Project.

Section 5.30 Real Estate.

(a) The Company owns and possesses (a) good and valid leasehold interests in and to the Sites, (b) valid and subsisting easement interests and licenses in and to the Easements, and (c) interests in any other Real Property, in each case free and clear of all Liens, encumbrances or other exceptions to title, other than (i) as of the Closing Date, the Title Exceptions and (ii) as of any date thereafter, Permitted Liens.

(b) The Mortgage is a valid first priority Lien on the Company’s right, title and interest in the Mortgaged Property (including, without limitation, to the extent permitted by law, the real property permits and crossing rights), free and clear of all Liens, encumbrances and exceptions to title whatsoever, other than (a) as of the Closing Date, the Title Exceptions and (b) as of any date thereafter, the Title Exceptions and Permitted Liens described in clause (a) or (b) of the definition thereof (to the extent the same are afforded priority over the Lien of the Mortgage by operation of law).

(c) With regard to each of the Real Property Documents, (a) each such Real Property Document is valid and effective against the Company and, to the Company’s Knowledge, the counterparties thereto, in accordance with the terms thereof, (b) neither the Company, nor to the Company’s Knowledge, any of the counterparties thereto, is in breach or default under such Real Property Document, and (c) to the Company’s Knowledge, no event or circumstance has occurred or currently exists which, with notice or lapse of time or both, would become a default by the Company or the counterparties thereto under such Real Property Document. No notice of default under any Real Property Document has been delivered to the Company or, to the Company’s Knowledge, the counterparties thereto.

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(d) The Company has not received written notice from any Governmental Authority of any pending or threatened proceeding to condemn or take by power of eminent domain or otherwise, by any Governmental Authority, all or any material part of the Real Property or any interest therein.

(e) None of the Mortgaged Property is subject to or encumbered by any option, right of first refusal or other contractual right or obligation to sell, assign or dispose of such Mortgaged Property or any interest therein.

Section 5.31 Flood Zone Disclosure. The Sites and Easements do not and will not include “improved real estate” (as such term is used in the Flood Disaster Protection Act of 1973, as amended) located in an area that has been identified by the Federal Emergency Management Agency as an area having special flood or mudslide hazards.

Section 5.32 Investments. Other than Permitted Investments, the Company has not acquired an equity interest in, acquired all or substantially all of the assets of, loaned money, extended credit or made advances to, or made deposits with (other than deposits or advances in relation to the payment for goods and equipment in the ordinary course of business the making of which is expressly contemplated pursuant to the Operative Documents), any Person.

Section 5.33 No Recordation, Etc. Each Operative Document is in proper legal form under the respective governing laws selected in such Operative Document (a) for the enforcement thereof in such jurisdictions against the Company and each other party thereto without any further action on the part of the Secured Parties, and (b) to ensure the legality, validity, enforceability, priority or admissibility in evidence of any such document it is not necessary that such document or any other document be filed, registered or recorded with, or executed or notarized before, any court or other authority in such jurisdiction or that any registration charge or stamp or similar tax be paid on or in respect of any such document, except for the recordation of the Collateral Documents and filing and recordation of such other documents as specifically contemplated pursuant to this Agreement.

Section 5.34 Organizational ID Number; Location of Tangible Collateral.

(a) The Company’s Delaware organizational identification number is 4969078.

(b) All of the tangible Collateral is, or when installed pursuant to the Project Documents will be, located on one of the Sites or the Easements or at the Company’s address set forth in Article 18; provided, that equipment may be temporarily removed from the Sites and/or the Easements from time to time in the ordinary course of business.

ARTICLE 6. REPRESENTATIONS OF THE PURCHASERS.

Section 6.1 Purchase for Investment. Each Purchaser severally represents that it is purchasing the Notes for its own account or for one or more separate accounts maintained by such Purchaser or for the account of one or more pension or trust funds and not with a view to the distribution thereof, provided that the disposition of such Purchaser’s or their property shall at all times be within such Purchaser’s or their control. Each Purchaser understands that the

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Notes have not been registered under the Securities Act and may be resold only if registered pursuant to the provisions of the Securities Act or if an exemption from registration is available, except under circumstances where neither such registration nor such an exemption is required by law, and that the Company is not required to register the Notes.

Section 6.2 Source of Funds. Each Purchaser severally represents that at least one of the following statements is an accurate representation as to each source of funds (a “Source”) to be used by such Purchaser to pay the purchase price of the Notes to be purchased by such Purchaser hereunder:

(a) the Source is an “insurance company general account” (as the term is defined in the United States Department of Labor’s Prohibited Transaction Exemption (“PTE”) 95-60) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the NAIC (the “NAIC Annual Statement”)) for the general account contract(s) held by or on behalf of any employee benefit plan together with the amount of the reserves and liabilities for the general account contract(s) held by or on behalf of any other employee benefit plans maintained by the same employer (or affiliate thereof as defined in PTE 95-60) or by the same employee organization in the general account do not exceed 10% of the total reserves and liabilities of the general account (exclusive of separate account liabilities) plus surplus as set forth in the NAIC Annual Statement filed with such Purchaser’s state of domicile; or

(b) the Source is a separate account that is maintained solely in connection with such Purchaser’s fixed contractual obligations under which the amounts payable, or credited, to any employee benefit plan (or its related trust) that has any interest in such separate account (or to any participant or beneficiary of such plan (including any annuitant)) are not affected in any manner by the investment performance of the separate account; or

(c) the Source is either (i) an insurance company pooled separate account, within the meaning of PTE 90-1 or (ii) a bank collective investment fund, within the meaning of PTE 91-38 and, except as disclosed by such Purchaser to the Company in writing pursuant to this clause (c), no employee benefit plan or group of plans maintained by the same employer or employee organization beneficially owns more than 10% of all assets allocated to such pooled separate account or collective investment fund; or

(d) the Source constitutes assets of an “investment fund” (within the meaning of Part VI of PTE 84-14 (the “QPAM Exemption”)) managed by a “qualified professional asset manager” or “QPAM” (within the meaning of Part VI of the QPAM Exemption), no employee benefit plan’s assets that are managed by the QPAM in such investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, exceed 20% of the total client assets managed by such QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption are satisfied, neither the QPAM nor a person controlling or controlled by the QPAM (applying the definition of “control” in Section VI(e) of the QPAM Exemption) maintains an ownership interest in the Company that would cause the QPAM and the Company to be “related” within the meaning of Part VI(h) of the QPAM Exemption and (i) the identity of

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such QPAM and (ii) the names of any employee benefit plans whose assets in the investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization, represent 10% or more of the assets of such investment fund, have been disclosed to the Company in writing pursuant to this clause (d);or

(e) the Source constitutes assets of a “plan(s)” (within the meaning of section IV(h) of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled by the INHAM (applying the definition of “control” in section IV(d) of the INHAM Exemption) owns a 10% or more interest in the Company (as determined under Part IV(d) of the INHAM Exemption, as amended effective April 1, 2011) and (i) the identity of such INHAM and (ii) the name(s) of the employee benefit plan(s) whose assets constitute the Source have been disclosed to the Company in writing pursuant to this clause (e); or

(f) the Source is a governmental plan; or

(g) the Source is one or more employee benefit plans, or a separate account or trust fund comprised of one or more employee benefit plans, each of which has been identified to the Company in writing pursuant to this clause (g); or

(h) the Source does not include “plan assets” within the meaning of 29 CFR 2510.3-101, as modified by section 3(42) of ERISA.

As used in this Section 6.2, the terms “employee benefit plan,” “governmental plan,” and “separate account” shall have the respective meanings assigned to such terms in section 3 of ERISA.

Section 6.3 Institutional Accredited Investor. Each Purchaser severally represents that it is an institutional investor that is an “accredited investor” within the meaning of Rule 501 under the Securities Act and that it has such knowledge and experience in financial and business matters that it is capable of evaluating and bearing the economic risk of an investment in the Notes.

ARTICLE 7. INFORMATION AS TO COMPANY.

Section 7.1 Financial Statements and Rating Letter. The Company shall deliver to each Purchaser and each Holder of a Note that is an Institutional Investor:

(a) Annual Financial Statements. As soon as practicable and in any event within 90 days after the close of each applicable fiscal year, audited financial statements of the Company and Sponsor (it being acknowledged that such requirement may be satisfied by the delivery of the appropriate report on Form 10-K filed with the SEC, if applicable), all prepared in accordance with GAAP consistently applied and setting forth, in each case, in comparative form the figures for the previous fiscal year. Such financial statements shall include a statement of equity, a balance sheet as of the close of such year, an income and expense statement,

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reconciliation of capital accounts (where applicable), a statement of cash flow and summary results of hedging and trading activities (in the case of the Company only), reported on without a qualification arising out of the scope of the audit, and certified by an independent certified public accountant of nationally recognized standing selected by the Person whose financial statements are being prepared. Such certificate shall not be qualified or limited because of restricted or limited examination by such accountant. The relevant accountant for the Company shall also certify that in making the examination necessary for reporting on the foregoing financial statements no knowledge was obtained of any Default or Event of Default, except as disclosed in such certificate.

(b) Quarterly Statements. As soon as practicable and in any event within 45 days after the end of the first, second and third quarterly accounting periods of its fiscal year (commencing in the case of the Company with the fiscal quarter ending June 30, 2013) unaudited quarterly balance sheet of the Company and Sponsor as of the last day of such quarterly period and the related statements of income, cash flows, and shareholders’ or members’ equity (as applicable) for such quarterly period and (in the case of second and third quarterly periods) for the portion of the fiscal year ending with the last day of such quarterly period, setting forth in each case in comparative form corresponding unaudited figures from the preceding fiscal year (it being acknowledged that such requirement may be satisfied by the delivery of the appropriate report on Form 10-Q filed with the SEC, if applicable) all prepared in accordance with GAAP consistently applied (subject to changes resulting from audit and normal year-end adjustments and the absence of footnote disclosures).

(c) Rating Letter. Promptly after receipt thereof (i) a copy of the final ratings letter obtained by the Company and (ii) each ratings letter obtained by the Company in accordance with Section 9.22.

Section 7.2 Other Reporting Requirements.

(a) Construction Progress Reports. The Company shall deliver to each of the Holders and the Independent Engineer, at least as frequently as each Drawdown Certificate, progress reports of the construction of the Project, in reasonable detail.

(b) Operating Report. The Company shall deliver to each of the Holders within 30 days after the end of each full quarter occurring after the Closing Date, a summary operating report with respect to the Project, which shall include, with respect to the period most recently ended (a) a monthly and year-to-date numerical and narrative assessment of (i) the Project’s compliance with each material category in the then-current Annual Operating Budget, (ii) electrical production, capacity, availability and delivery, including any reports delivered under the MESPA and MOMA, (iii) fuel use, including heat rate, (iv) plant and unit availability, (v) distributions to Pledgor, debt service payments and balances in the Accounts, (vi) Hot Box Replacements, (vii) material unresolved disputes with contractors, materialmen, suppliers or others and any related claims against the Company and (viii) warranty claims under the MESPA or MOMA; and (b) to the extent applicable, a comparison of year-to-date figures to corresponding figures provided in the prior year.

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(c) Notice of Default or Event of Default — The Company shall deliver to each of the Holders promptly, and in any event within five Business Days after a Responsible Officer of the Company becoming aware of the existence of any Default or Event of Default or that any Person has given any notice or taken any action with respect to a claimed default hereunder or that any Person has given any notice or taken any action with respect to a claimed default of the type referred to in Section 11.4, a written notice specifying the nature and period of existence thereof and what action the Company is taking or proposes to take with respect thereto.

(d) ERISA Matters — The Company shall deliver to each of the Holders promptly, and in any event within five days after a Responsible Officer of the Company becoming aware of any of the following, a written notice setting forth the nature thereof and the action, if any, that the Company or an ERISA Affiliate proposes to take with respect thereto:

(i) with respect to any Plan (other than any Multiemployer Plan) that is subject to Title IV of ERISA, any reportable event, as defined in section 4043(c) of ERISA and the regulations thereunder, for which notice thereof has not been waived pursuant to such regulations as in effect on the date hereof; or

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

(iii) any event, transaction or condition that could result in the incurrence of any liability by the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, or in the imposition of any Lien on any of the rights, properties or assets of the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or such penalty or excise tax provisions, if such liability or Lien, taken together with any other such liabilities or Liens then existing, could reasonably be expected to have a Material Adverse Effect.

(e) Notices from Governmental Authority — The Company shall deliver to each of the Holders promptly, and in any event within 30 days of receipt thereof, copies of any notice to the Company from any federal or state Governmental Authority relating to any order, ruling, statute or other law or regulation that could reasonably be expected to have a Material Adverse Effect.

(f) Requested Information — The Company shall deliver to each of the Holders with reasonable promptness, such other data and information relating to the business, operations, affairs, financial condition, assets or properties of the Company (including, but without limitation, actual copies of the Company’s Form 10-Q and Form 10-K, if applicable) or relating to the ability of the Company to perform its obligations under the Credit Documents as from time to time may be reasonably requested by any Holder of a Note.

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(g) New Documents — The Company shall deliver to each of the Holders promptly, but in no event later than five Business Days after execution and delivery thereof, a copy of each Additional Project Document.

(h) Litigation — The Company shall deliver to each of the Holders promptly, any notice with respect to any litigation pending or, to the Company’s Knowledge, threatened in writing against the Company, such notice to include, if requested in writing by any of the Holders, copies of all papers filed in such litigation and to be given monthly if any such papers have been filed since the last notice given.

(i) Cash Grant — The Company shall deliver to each of the Holders promptly, any notice, demand or other written communication delivered to the Company or any Affiliate thereof (if the Company has a copy thereof) by the U.S. Department of the Treasury or other Governmental Authority with respect to the Cash Grant and/or any Recapture Liabilities.

(j) Outage — The Company shall deliver to each of the Holders promptly, but in no event later than five days after occurrence thereof, (a) the scheduling of any outage with an anticipated duration in excess of five days and (b) any outage (scheduled or otherwise) with a duration in excess of five days.

(k) Other information — The Company shall deliver to each of the Holders promptly upon the Company’s receipt of the same, copies of material notices received by the Company under the Major Project Documents.

(l) Project Schedule — The Company shall deliver to each of the Holders promptly, any material modification to the Project Schedule.

(m) Rating Event — The Company shall notify each of the Holders promptly of the occurrence of a Rating Event and in any event within five Business Days of the occurrence thereof.

Section 7.3 Officer’s Certificate. Each set of financial statements of the Company delivered to a Holder of a Note pursuant to Section 7.1(a) or Section 7.1(b) shall be accompanied by a certificate of a Senior Financial Officer of the Company certifying that such Senior Financial Officer has reviewed the relevant terms hereof and has made, or caused to be made, under his or her supervision, a review of the transactions and conditions of the Company from the beginning of the quarterly or annual period covered by the statements then being furnished to the date of the certificate and that such review shall not have disclosed the existence during such period of any condition or event that constitutes a Default or an Event of Default or, if any such condition or event existed or exists (including, without limitation, any such event or condition resulting from the failure of the Company to comply with any Environmental Law), specifying the nature and period of existence thereof and what action the Company shall have taken or proposes to take with respect thereto.

Section 7.4 Visitation. The Company shall, subject to requirements of Governmental Rules, safety requirements and existing confidentiality restrictions imposed upon the Company by any other Person, and, if a Default or an Event of Default then exists, at the expense of the Company, permit employees or agents of each Holder of a Note and the Independent Engineer at

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any reasonable times and upon reasonable prior notice to the Company and the Operator, (i) to inspect all of the Company’s properties, including the Sites, (ii) to examine or audit all of the Company’s books, accounts and records and make copies and memoranda thereof, (iii) to communicate with the Company’s auditors outside the presence of the Company, (iv) to discuss the business, operations, properties and financial and other conditions of the Company with officers and employees of the Company and with its independent certified public accountants, and (v) to witness any Performance Tests.

ARTICLE 8. PAYMENT AND PREPAYMENT OF THE NOTES.

Section 8.1 Required Payments; Mandatory Prepayments; Offer to Repay.

Section 8.1.1 Required Payments. Installment payments of principal due on each Note shall be made in accordance with the Amortization Schedule on each Repayment Date and each Note shall mature and all remaining principal and accrued interest payment, fees and costs (and, if applicable, the Make-Whole Amount) shall be payable on the Maturity Date.

Section 8.1.2 Mandatory Prepayment. The Company shall prepay the principal amount of the Notes at 100% of the principal amount thereof, together with accrued and unpaid interest thereon and without payment of the Make-Whole Amount:

(i) with the Net Available Amount of the proceeds of any Loss Event in relation to the Project in which the Company receives more than $5,000,000 of insurance or other proceeds, subject to the Company’s right to repair and restore as set forth in Section 3.7.2(b) of the Depositary Agreement, pursuant to Section 3.7.2(c) of the Depositary Agreement; or

(ii) with the proceeds of warranty claims or refund claims received by the Company pursuant to Section 8.2(b) or Section 8.3 of the MESPA or Section 2.5 of the MOMA, other than with respect to amounts to be deposited into the System Refund Account;

(iii) to the extent required by Section 9.20 (Partial Completion Buydown); and

(iv) to the extent required by Section 3.8.2(b) of the Depositary Agreement.

All mandatory prepayments of Notes shall be applied in the inverse order of maturity against the remaining scheduled principal repayment amounts of the Notes other than any mandatory prepayment pursuant to Section 8.1.2(iii) above which shall be applied pro rata among all remaining installments of principal.

Section 8.1.3 Offer to Repay.

(a) The Company shall make to each Holder of the Notes an Offer to Repay (as defined in paragraph (b) below) the principal amount of the Notes at 100% of the principal amount thereof, together with accrued and unpaid interest thereon to the Offer Settlement Date (as defined in paragraph (b) below) and without payment of the Make-Whole Amount or any premium as follows:

(i) upon the occurrence of a Change of Control; or

(ii) upon the occurrence of a Rating Event to the extent required by Section 9.23.

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(b) Within thirty (30) days after the occurrence of any event described in paragraph (a) above requiring the Company to make an Offer to Repay, the Company shall prepare and provide to each Holder of a Note a notice (each, an “Offer to Repay Notice”), which shall be substantially in the form of Exhibit 8.1.3(b) and shall include an offer (the “Offer to Repay”) pursuant to the covenant in paragraph (a) above to repay, on the date (each, an “Offer Settlement Date”) that is twenty (20) Business Days after the date of the Offer to Repay Notice, all of such Holder’s Notes. Each Holder of a Note (or its appointee) wishing to accept the Offer to Repay shall reply, substantially in the form of Schedule 1 to Exhibit 8.1.3(b), indicating whether such Offer to Repay is accepted by the close of business on the fifth (5th) Business Day immediately preceding the Offer Settlement Date.

(c) Two Business Days prior to any Offer Settlement Date, the Company shall deliver to each Holder that has accepted an Offer to Repay pursuant to Section 8.1.3(b), a certificate of a Senior Financial Officer specifying the principal amount of the Notes of such Holder to be repaid on such Offer Settlement Date and the amount of accrued and unpaid interest thereon to the Offer Settlement Date to be paid on such Offer Settlement Date. On each Offer Settlement Date, the Company shall pay to those Holders who have accepted the related Offer to Repay the aggregate amount required to be paid pursuant to this Section 8.1.3.

(d) On the Offer Settlement Date, the Company shall deliver to each Holder that has not accepted an Offer to Repay pursuant to Section 8.1.3(b) a revised Amortization Schedule reflecting the amortization of the aggregate principal amount of Notes remaining outstanding through the Maturity Date.

Section 8.2 Optional Prepayments with Make-Whole Amount. The Company may, at its option, upon notice as provided below, prepay at any time all, or from time to time any part of, the Notes, in an amount, in the case of a partial prepayment, not less than the lesser of 5% of the aggregate principal amount of the Notes then outstanding and $2,000,000 at a redemption price equal to (i) 100% of the principal amount so prepaid, plus (ii) accrued and unpaid interest on the Notes being redeemed to the redemption date plus (iii) the Make-Whole Amount determined for the prepayment date with respect to such principal amount. The Company will give each Holder of Notes written notice of each optional prepayment under this Section 8.2 not less than 30 days and not more than 60 days prior to the date fixed for such prepayment. Each such notice shall specify such date (which shall be a Business Day), the aggregate principal amount of the Notes to be prepaid on such date, the principal amount of each Note held by such Holder to be prepaid (determined in accordance with Section 8.3), and the interest to be paid on the prepayment date with respect to such principal amount being prepaid, and shall be accompanied by a certificate of a Senior Financial Officer as to the estimated Make-Whole Amount due in connection with such prepayment (calculated as if the date of such notice were

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the date of the prepayment), setting forth the details of such computation. Two Business Days prior to such prepayment, the Company shall deliver to each Holder of Notes a certificate of a Senior Financial Officer specifying the calculation of such Make-Whole Amount as of the specified prepayment date.

Section 8.3 Allocation of Partial Prepayments. In the case of each partial prepayment of the Notes pursuant to Sections 8.1.1, 8.1.2 and 8.2, the principal amount of the Notes to be prepaid shall be allocated among all of the Notes at the time outstanding in proportion, as nearly as practicable, to the respective unpaid principal amounts thereof not theretofore called for prepayment.

Section 8.4 Maturity; Surrender, Etc. In the case of each prepayment of Notes pursuant to this Article 8, the principal amount of each Note or portion thereof (in the case of a partial prepayment) to be prepaid shall mature and become due and payable on the date fixed for such prepayment, together with interest on such principal amount accrued to such date and the applicable Make-Whole Amount, if any. From and after such date, unless the Company shall fail to pay such principal amount when so due and payable, together with the interest and Make- Whole Amount, if any, as aforesaid, interest on such principal amount shall cease to accrue. Any Note paid or prepaid in full shall be surrendered to the Company and cancelled and shall not be reissued, and no Note shall be issued in lieu of any prepaid principal amount of any Note.

Section 8.5 Purchase of Notes. The Company will not and, to the extent of its power, will not permit any Affiliate to purchase, redeem, prepay or otherwise acquire, directly or indirectly, any of the outstanding Notes except upon the payment or prepayment of the Notes in accordance with the terms of this Agreement and the Notes. The Company will promptly cancel all Notes acquired by it pursuant to any payment or prepayment of Notes pursuant to any provision of this Agreement and no Notes may be issued in substitution or exchange for any such Notes. In the event that any Affiliate of the Company acquires any of the Notes (pursuant to any payment or prepayment of Notes pursuant to any provision of this Agreement or otherwise), such Notes shall be deemed not to be outstanding for purposes of determining whether the Holders of the requisite percentage of the aggregate principal amount of Notes then outstanding have approved or consented to any amendment, waiver or consent to be given under this Agreement or the Notes, or have directed the taking of any action provided herein or in the Notes to be taken upon the direction of the Holders of a specified percentage of the aggregate principal amount of Notes then outstanding.

Section 8.6 Make-Whole Amount.

“Make-Whole Amount” means, with respect to any Note, an amount equal to the excess, if any, of the Discounted Value of the Remaining Scheduled Payments with respect to the Called Principal of such Note over the amount of such Called Principal, provided that the Make-Whole Amount may in no event be less than zero. For the purposes of determining the Make-Whole Amount, the following terms have the following meanings:

“Called Principal” means, with respect to any Note, the principal of such Note that is to be prepaid pursuant to Section 8.2 or has become or is declared to be immediately due and payable pursuant to Section 12.1, as the context requires.

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“Discounted Value” means, with respect to the Called Principal of any Note, the amount obtained by discounting all Remaining Scheduled Payments with respect to such Called Principal from their respective scheduled due dates to the Settlement Date with respect to such Called Principal, in accordance with accepted financial practice and at a discount factor (applied on the same periodic basis as that on which interest on the Notes is payable) equal to the Reinvestment Yield with respect to such Called Principal.

“Reinvestment Yield” means, with respect to the Called Principal of any Note, the sum of (x) 0.50% and (y) the yield to maturity implied by the yield(s) reported as of 10:00 a.m. (New York City time) on the second Business Day preceding the Settlement Date with respect to such Called Principal, on the display designated as “Page PX1” (or such other display as may replace Page PX1) on Bloomberg Financial Markets for the most recently issued actively traded on-the- run U.S. Treasury securities (“Reported”) having a maturity equal to the Remaining Average Life of such Called Principal as of such Settlement Date. If there are no such U.S. Treasury securities Reported having a maturity equal to such Remaining Average Life, then such implied yield to maturity will be determined by (a) converting U.S. Treasury bill quotations to bond equivalent yields in accordance with accepted financial practice and (b) interpolating linearly between the yields Reported for the applicable most recently issued actively traded on-the-run U.S. Treasury securities with the maturities (1) closest to and greater than such Remaining Average Life and (2) closest to and less than such Remaining Average Life. The Reinvestment Yield shall be rounded to the number of decimal places as appears in the interest rate of the applicable Note.

If such yields are not Reported or the yields Reported as of such time are not ascertainable (including by way of interpolation), then “Reinvestment Yield” means, with respect to the Called Principal of any Note, the sum of (x) 0.50% and (y) the yield to maturity implied by the U.S. Treasury constant maturity yields reported, for the latest day for which such yields have been so reported as of the second Business Day preceding the Settlement Date with respect to such Called Principal, in Federal Reserve Statistical Release H.15 (or any comparable successor publication) for the U.S. Treasury constant maturity having a term equal to the Remaining Average Life of such Called Principal as of such Settlement Date. If there is no such U.S. Treasury constant maturity having a term equal to such Remaining Average Life, such implied yield to maturity will be determined by interpolating linearly between (1) the U.S. Treasury constant maturity so reported with the term closest to and greater than such Remaining Average Life and (2) the U.S. Treasury constant maturity so reported with the term closest to and less than such Remaining Average Life. The Reinvestment Yield shall be rounded to the number of decimal places as appears in the interest rate of the applicable Note.

“Remaining Average Life” means, with respect to any Called Principal, the number of years (calculated to the nearest one-twelfth year) obtained by dividing (i) such Called Principal into (ii) the sum of the products obtained by multiplying (a) the principal component of each Remaining Scheduled Payment with respect to such Called Principal by (b) the number of years (calculated to the nearest one-twelfth year), computed on the basis of a 360 day year composed of twelve 30 day months, that will elapse between the Settlement Date with respect to such Called Principal and the scheduled due date of such Remaining Scheduled Payment.

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“Remaining Scheduled Payments” means, with respect to the Called Principal of any Note, all payments of such Called Principal and interest thereon that would be due after the Settlement Date with respect to such Called Principal if no payment of such Called Principal were made prior to its scheduled due date, provided that if such Settlement Date is not a date on which interest payments are due to be made under the terms of the Notes, then the amount of the next succeeding scheduled interest payment will be reduced by the amount of interest accrued to such Settlement Date and required to be paid on such Settlement Date pursuant to Section 8.4 or Section 12.1.

“Settlement Date” means, with respect to the Called Principal of any Note, the date on which such Called Principal is to be prepaid pursuant to Section 8.2 or has become or is declared to be immediately due and payable pursuant to Section 12.1, as the context requires.

ARTICLE 9. AFFIRMATIVE COVENANTS.

The Company covenants that, so long as any of the Notes are outstanding:

Section 9.1 Compliance with Laws. Without limiting Section 10.5, the Company will comply with all laws, ordinances or governmental rules or regulations to which it is subject, including, without limitation, ERISA, the USA PATRIOT Act and the other laws and regulations that are referred to in Section 5.16, and will obtain and maintain in effect all licenses, certificates, permits, franchises and other governmental authorizations necessary to the ownership of its properties or to the conduct of its businesses, in each case to the extent necessary to ensure that non-compliance with such laws, ordinances or governmental rules or regulations or failures to obtain or maintain in effect such licenses, certificates, permits, franchises and other governmental authorizations could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Section 9.2 Insurance. Without cost to the Secured Parties, the Company shall maintain or cause to be maintained on its behalf in effect at all times the types of insurance required pursuant to Schedule 9.2, in the amounts and on the terms and conditions specified therein, from insurers of the quality specified in such Schedule or other insurance companies of recognized responsibility reasonably satisfactory to the Required Holders.

Section 9.3 Maintenance of Properties. Other than property disposed of in accordance with Section 10.4, the Company shall maintain (a) a good, marketable and insurable (i) leasehold interest in the Sites, (ii) easement interest in the Easements, and (b) good, legal and valid title to all of its other material properties and assets, in each case free of all Liens other than Permitted Liens. The Company shall generally keep all property useful and necessary in its business in good working order and condition.

Section 9.4 Payment of Taxes and Claims. The Company will file all tax returns required to be filed in any jurisdiction and to pay and discharge all taxes shown to be due and payable on such returns and all other taxes, assessments, governmental charges, or levies imposed on it or any of its properties, assets, income or franchises, to the extent the same have become due and payable and before they have become delinquent and all claims for which sums have become due and payable that have or might become a Lien on properties or assets of the

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Company, provided that the Company does not need to pay any such tax, assessment, charge, levy or claim if (i) the amount, applicability or validity thereof is contested by the Company on a timely basis in good faith and in appropriate proceedings, and the Company has established adequate reserves therefor in accordance with GAAP on the books of the Company or (ii) the nonpayment of all such taxes, assessments, charges, levies and claims in the aggregate could not reasonably be expected to have a Material Adverse Effect.

Section 9.5 Corporate Existence, Etc. Subject to Section 10.2, the Company will at all times preserve and keep its limited liability company existence in full force and effect. Subject to Sections 10.2 and 10.4, the Company will at all times preserve and keep in full force and effect all rights and franchises of the Company unless, in the good faith judgment of the Company, the termination of or failure to preserve and keep in full force and effect such right or franchise could not, individually or in the aggregate, have a Material Adverse Effect.

Section 9.6 Books, Records. The Company shall maintain, or cause to be maintained, adequate books, accounts and records with respect to the Company and the Project, in which full and correct entries shall be made of all financial transactions and the assets and business of the Company, and prepare all financial statements required hereunder, in each case in accordance with GAAP (subject, in the case of unaudited financial statements, to changes resulting from audit and normal year-end adjustments and the absence of footnote disclosure) and in compliance with the regulations of any Governmental Authority having jurisdiction thereof.

Section 9.7 Use of Proceeds, Equity Contributions, Project Revenues.

(a) The Company shall use the proceeds of the sale of the Notes only (A) as of the Closing Date, (i) to fully repay any Debt outstanding under the Existing Financing Agreement, (ii) to fund the Debt Service Reserve Account up to the Debt Service Reserve Requirement, (iii) to fund the IDC Reserve Account in an amount equal to [***] (iv) to pay all fees and costs related to the transactions under this Agreement and the other Credit Documents and (v) to pay to the Pledgor the Permitted Distribution and (B) thereafter (i) to pay from the Construction Escrow Account Project Costs in respect of tested and commissioned Systems during the Ramp Up Period and (ii) to pay to the Pledgor the Final Completion Date Distribution.

(b) The Company shall apply Project Revenues and equity contributions as required by Sections 3.3.1, 3.5, 3.7 and 3.9 of the Depositary Agreement.

Section 9.8 Payment.

(a) Credit Documents. The Company shall pay all sums due under this Agreement and the other Credit Documents to which it is a party according to the terms hereof and thereof.

(b) Other Obligations. The Company shall pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all of its obligations under the Project Documents and all of its other obligations of whatever nature and howsoever arising, except such as may be contested in good faith or as to which a bona fide dispute may exist, provided that adequate cash reserves have been established for the payment thereof in the

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event such dispute were resolved unfavorably to the Company, or the Holders are satisfied in their reasonable discretion that non-payment of such obligation pending the resolution of such contest or dispute will not in any way endanger the Project or result in a Material Adverse Effect or that provision is made to the satisfaction of the Holders in their reasonable discretion for the posting of security (other than the Collateral) for or the bonding of such obligations or the prompt payment thereof in the event that such obligation is payable.

Section 9.9 Additional Direct Agreements. With respect to any Major Project Document entered into after the Closing Date, the Company shall use commercially reasonable efforts to cause the applicable counterparty to execute and deliver to the Collateral Agent a Direct Agreement in substantially the form of Exhibit 4.1.30, with such changes as are reasonably acceptable to the Required Holders (including dispensing with a Direct Agreement if deemed appropriate by the Required Holders).

Section 9.10 Performance of the Major Project Documents. The Company shall perform (to the extent not excused by force majeure events or the nonperformance of the other party and not subject to a good faith dispute) all of its material contractual obligations under the Major Project Documents.

Section 9.11 Utility Regulation. The Company shall take or cause to be taken all necessary or appropriate actions so that (a) (i) the Company will be an Exempt Wholesale Generator, and (ii) the Project will be an Eligible Facility at all times, (b) the Company and the Project shall not be subject to, or shall be exempt from, (A) regulation as a “public–utility company” or “holding company” under PUHCA, or (B) financial, organizational or rate regulation as an “electric utility”, “electric corporation” or any similar Person under the laws of the State of Delaware as presently constituted and as construed by the courts of the State of Delaware, and (c) the Company will be authorized under the FPA to sell electricity at market- based rates with such waivers and blanket authorizations (including blanket authorizations to issue securities under Section 204 of the FPA and 18 C.F.R. Part 34) as customarily are granted to entities with market-based rate authority.

Section 9.12 Construction of the Project. The Company shall cause the Project to be designed, engineered, constructed, developed, installed, equipped, maintained and operated in a good and workmanlike manner and in compliance with all applicable Legal Requirements, Permits and Prudent Electrical Practices (as defined in the MESPA).

Section 9.13 As-Built Survey. Within 60 days after Final Completion of the Project at each Site, the Company shall deliver to the Collateral Agent, each of the Holders and the Independent Engineer a Site survey constituting an as-built survey reflecting all Improvements to the Real Property in connection with the construction of the Project, and each such Site survey shall be subject to approval by the Independent Engineer.

Section 9.14 Operation and Maintenance of Project; Operating Budget.

(a) The Company shall keep the Project, or cause the same to be kept, in good operating condition consistent with the standard of care set forth in the MOMA, all Applicable Permits and Applicable Third Party Permits, Legal Requirements and the Operative Documents, and make or cause to be made all repairs (structural and non-structural, extraordinary or ordinary) necessary to keep the Project in such condition.

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(b) On or prior to November 1 of each year, the Company shall submit an operating plan and a budget, detailed by month, of anticipated revenues and anticipated expenditures, and anticipated expenditures from and deposit of reserves to, the Accounts, such budget to include Debt Service, deposit of reserves to the Debt Service Reserve Account, estimated dividend payments or other distributions, reserves, all anticipated O&M Costs applicable to the Project for the ensuing calendar year (or, in the case of the initial Annual Operating Budget, partial calendar year), to the conclusion of the second full calendar year thereafter and the corresponding total operation and maintenance budget amount for the applicable year from the Base Case Projections (each such annual operating plan and budget, including the initial Annual Operating Budget, an “Annual Operating Budget”). The Company shall prepare a final Annual Operating Budget no less than 30 days in advance of January 1 of each calendar year.

(c) The Company shall operate and maintain the Project, or cause the Project to be operated and maintained, within amounts for (a) any Operating Budget Category not to exceed 110% (on a year-to-date basis) and (b) for all Operating Budget Categories not to exceed 105% (on a year-to-date basis), in each case of the amounts budgeted therefor as set forth in the then-current Annual Operating Budget; provided that subject to Section 10.13, the Company may propose an amendment to the Annual Operating Budget for Required Holders’ approval if at any time the Company cannot comply with this requirement (and the Required Holders shall consider each such amendment in good faith and shall not unreasonably withhold or delay their consent to the approval of any such amendment). Pending approval of any Annual Operating Budget or amendment thereto in accordance with the terms of this Section 9.14, the Company shall use all reasonable efforts to operate and maintain the Project, or cause the Project to be operated and maintained, within the then-current Annual Operating Budget (it being acknowledged that if a particular calendar year’s Annual Operating Budget has not been approved by the time periods provided in Section 9.14(b), then the then-current Annual Operating Budget shall be deemed to be the Annual Operating Budget in effect prior to the delivery of the proposed final Annual Operating Budget pursuant to Section 9.14(b)); provided, that the amounts specified therein shall be increased to the extent specified in the Project Documents.

Section 9.15 Preservation of Rights; Further Assurances.

(a) Major Project Documents. The Company shall maintain in full force and effect, perform (subject to Section 9.8(b)) the obligations of the Company under, preserve, protect and defend the material rights of the Company under and take all reasonable action necessary to prevent termination (except by expiration in accordance with its terms) of each and every Major Project Document, including prosecution of suits to enforce any material right of the Company thereunder and enforcement of any material claims with respect thereto; provided, that upon the occurrence and during the continuance of an Event of Default or, with respect to any Project Document between the Company and any Affiliate, when such Affiliate has acted or failed to act in a manner that with the giving of notice by the Company or the passage of time, an event of default will occur under such Project Document, if the Collateral Agent or the Required Holders request that certain actions be taken and the Company fails to take the requested actions

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within 10 Business Days, the Holders or the Collateral Agent may enforce in its own name or in the Company’s name, such rights of the Company (if and to the extent not prohibited by any Governmental Rule), in addition to such rights as may be more particularly provided in the Security Agreement and the other Credit Documents.

(b) Preservation of Collateral. From time to time promptly, upon the reasonable request of the Collateral Agent or the Required Holders, the Company shall execute, acknowledge or deliver, or cause the execution, acknowledgment and delivery of, and thereafter register, file or record, or cause to be registered, filed or recorded in an appropriate governmental office, all such notices, statements, instruments and other documents (including any memorandum of lease or other agreement, financing statement, continuation statement, certificate of title or estoppel certificate) supplemental to or confirmatory of the Collateral Documents, and take such other steps as may be deemed by the Collateral Agent necessary or advisable to render fully valid and enforceable under all applicable laws the rights, liens and priorities of the Secured Parties with respect to all Collateral and other security from time to time furnished under the Credit Documents or intended to be so furnished, or for the continued validity, perfection and priority of the Liens on the Collateral covered thereby subject to no other Liens except as permitted by the applicable Collateral Document, or obtain any consents or waivers as may be necessary or appropriate in connection therewith, in each case in such form and at such times as shall be reasonably requested by the Required Holders or the Collateral Agent, and pay all reasonable fees and expenses (including reasonable attorneys’ fees) incident to compliance with this Section 9.15(b). Upon the exercise by the Required Holders or the Collateral Agent of any power, right, privilege or remedy pursuant to any Credit Document which requires any consent, approval, registration, qualification or authorization of any Governmental Authority, the Company shall execute and deliver all applications, certifications, instruments and other documents and papers that any Holder or the Collateral Agent may require. If the Required Holders or the Collateral Agent determine that they are required by law or regulation to have appraisals prepared in respect of the Real Property, the Company shall provide to each of the Holders appraisals that satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA and are otherwise in form and substance satisfactory to the Required Holders.

(c) Enforcement of Affiliate Agreements. If at any time the Company is entitled to make a claim or pursue any other remedy under the MESPA, MOMA or the Administrative Services Agreement, the Company shall make a claim thereunder for liquidated damages or, as applicable, to have one or more Systems repaired, replaced, or repurchased by the Sponsor, or pursue such other remedy, as applicable. The Company shall otherwise enforce all of its rights under the MESPA, MOMA and Administrative Services Agreement as diligently as if its counterparty were not an Affiliate.

(d) Additional Collateral. If the Company shall at any time acquire any real property or leasehold or other interest in real property not covered by the Mortgage, then promptly upon such acquisition, the Company shall execute, deliver and record a supplement to the Mortgage, reasonably satisfactory in form and substance to the Required Holders, subjecting the real property or leasehold or other interests to the Lien and security interest created by the Mortgage. The Company shall obtain an appropriate endorsement or supplement to, as applicable, the Title Policy, insuring the Lien of the Collateral Agent in such additional property, subject only to Liens and other exceptions to title reasonably agreed by Collateral Agent of a type similar to Title Exceptions.

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(e) Further Assurances. The Company shall execute and deliver all documents as shall be reasonably required or that the Collateral Agent or any Holder shall reasonably request in connection with the rights and remedies of the Collateral Agent and the Holders of the Notes under the Operative Documents, and perform, such other reasonable acts as may be necessary to carry out the intent of the Credit Documents.

(f) Applicable Permits. The Company shall obtain and maintain all Applicable Permits.

(g) Tariff Compliance. The Company shall (a) take all actions necessary to comply with and maintain its eligibility as a QFCP Generator under the Tariff, (b) maintain as true the conditions set forth in Sections 4.1.33, 4.1.35 and 4.2.7, (c) take all actions necessary to invoice and collect the maximum amounts available under the Tariff, including, if applicable, by declaring a Forced Outage Event or a Force Majeure Event (as defined in the Tariff), (d) procure natural gas feedstock solely pursuant to the Gas Tariff.

Section 9.16 Forced Outage Event.

The Company shall declare a Forced Outage Event if permitted under the Tariff if:

(a) Sponsor has reached the System Liability Cap;

(b) The Project fails to maintain the Efficiency Bank in a positive balance;

(c) The Project output is such that there has been a failure to meet the Power Performance Warranty during a Thirty-Day Power Performance Warranty Period, as such terms are defined in the MESPA and MOMA (i.e. 85%); or

(d) A Bankruptcy Event occurs with respect to the Sponsor or the Sponsor shall cease to carry on its business.

Section 9.17 Event of Eminent Domain. If an Event of Eminent Domain shall occur with respect to any Collateral, the Company shall (a) diligently pursue all its rights to compensation against the relevant Governmental Authority in respect of such Event of Eminent Domain, (b) not, without the consent of the Required Holders (which consent shall not be unreasonably withheld or delayed), compromise or settle any claim against such Governmental Authority in an amount in excess of [***] individually and [***] in the aggregate, and (c) pay or apply all Eminent Domain Proceeds in accordance with Section 3.7 of the Depositary Agreement. The Company consents to, and agrees not to object to or otherwise impede or impair, the participation of the Holders and/or the Collateral Agent in any expropriation proceedings involving an amount in excess of [***] individually and [***] in the aggregate, and the Company shall from time to time deliver to the Holders and the Collateral Agent all documents and instruments requested by them or it to permit such participation.

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Section 9.18 Environmental Laws.

The Company shall (a) comply with, and ensure compliance by all tenants, contractual counterparties, licensees and invitees, if any, with all applicable Hazardous Substance Laws and obtain and comply in all material respects with, and maintain, and ensure that all tenants, contractual counterparties, licensees and invitees obtain and comply in all material respects with, and maintain all Permits required by applicable Hazardous Substance Laws; (b) conduct and complete, or cause to be conducted and completed, all investigations, studies, sampling and testing, and all clean-up, remedial, removal, recovery and other actions required pursuant to Hazardous Substance Laws or otherwise as necessary to prevent itself or any Secured Party from incurring any material liability; (c) promptly comply in all material respects with all orders and directives of all Governmental Authorities in respect of Hazardous Substance Laws, except to the extent that the same are being contested in good faith by appropriate proceedings; (d) exercise care, custody and control over the Sites and the Project in such manner as not to pose a material or unreasonable hazard to the environment, health or safety in general; and (e) give (and shall cause the Operator and the contractors, to the extent applicable, to give) due attention to the protection and conservation of the environment in the implementation of each aspect of the Project, all in accordance with applicable Hazardous Substance Laws, Permits and Legal Requirements, and good industry practices.

Section 9.19 Independent Consultants. The Company shall (a) cooperate in all reasonable respects with the Independent Consultants and (b) ensure that each Independent Consultant is provided with all information reasonably requested by such consultant with respect to the financing, construction or operation of the Project and will exercise due care to ensure that any factual information which it may supply to such consultant is materially accurate in all respects, and not, by omission of information or otherwise, misleading in any material respect at the time such information is provided, to the extent that such consultant relied on such information in preparing its report.

Section 9.20 Partial Completion Buydown. In the event that less than 30 MW of nameplate capacity of Systems have achieved COD on or prior to the Date Certain, then the Company shall within ten Business Days re-calculate the size of the Notes under the Base Case Projections by (a) reducing the Project capacity assumption therein to the actual Project nameplate capacity, (b) maintaining DSCR at a [***] minimum through the Maturity Date under the base case, (c) maintaining DSCR at [***] minimum through the Maturity Date under the Forced Outage Tariff Structure, and (d) otherwise changing no assumptions in the Base Case Projections. The Company’s calculations shall be subject to review and approval by the Required Holders (in consultation with the Independent Engineer). Any amount by which, after such review and approval, the original total principal amount of the Notes exceeds the revised total principal amount of the Notes is the “Buydown Amount.” The Company shall prepay the Notes in the aggregate amount of the Buydown Amount within 30 days of notification from the Required Holders (in consultation with the Independent Engineer) that the Company’s re-calculation has been approved by the Required Holders (in consultation with the Independent Engineer).

Section 9.21 Separateness. The Company shall (a) maintain entity records and books of account separate from those of any other entity which is an Affiliate of the Company, (b) not

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commingle its funds or assets with those of any other entity which is an Affiliate of the Company, (c) provide that its governing body will hold all appropriate meetings to authorize and approve the Company’s actions, which meetings will be separate from those of other entities and (d) comply with the separateness provisions set forth in the Governing Documents of the Company.

Section 9.22 Rating. The Company, no less frequently than once per year (which year shall commence on the Closing Date (in the case of the first year) or the applicable anniversary of the Closing Date (in the case of each subsequent year) and end on the day prior to the immediately following anniversary of the Closing Date), obtain from the Rating Agency a ratings letter assigning a credit rating to the Notes (provided that there will be no minimum level required for such rating).

Section 9.23 Rating Event. In the event that, after the Closing Date, (i) the Sponsor obtains an investment grade rating and (ii) the “Forced Outage Event” payment provisions of the Tariff cease to be in effect (collectively, a “Rating Event”), at the Holders’ option, communicated to the Company within 30 days of the occurrence of such Rating Event, either (A) an investment grade guarantee securing the obligations of the Company under the Notes will be provided by the Sponsor, such guarantee to be in form and substance satisfactory to the Required Holders or (B) the Company shall make an Offer to Repay all of the Notes then outstanding in accordance with Section 8.1.3.

Section 9.24 Debt Service Coverage Ratio. No later than 10 days after each Repayment Date, the Company shall calculate and deliver to the Holders the DSCR for the calculation period for such Repayment Date. The calculations of the DSCR hereunder shall be used in determining the application and distribution of funds pursuant to Section 10.10 hereunder and Section 3.8 of the Depositary Agreement.

ARTICLE 10. NEGATIVE COVENANTS.

From the date of this Agreement until the Closing and thereafter, so long as any of the Notes are outstanding, the Company covenants that:

Section 10.1 Transactions with Affiliates. The Company shall not directly or indirectly enter into any transaction or series of transactions relating to the Project with or for the benefit of an Affiliate without the prior approval of the Required Holders, except for (a) the limited liability company agreement of the Company and the Operative Documents as in effect on the Closing Date and (b) as otherwise expressly permitted or contemplated by the Credit Documents.

Section 10.2 Dissolution; Merger.

The Company shall not (a) wind up, liquidate or dissolve its affairs, (b) combine, merge or consolidate with or into any other entity, or (c) purchase or otherwise acquire all or substantially all of the assets of any Person.

Section 10.3 Line of Business; Changes. The Company shall not (a) change the nature of its business or expand its business beyond the business contemplated in the Operative

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Documents or activities incidental thereto or take any action, whether by acquisition or otherwise, which would constitute or result in any material alteration to the nature of such business; (b) establish, create or acquire any Subsidiaries; or (c) directly or indirectly, change its legal form or any of its Governing Documents (including by the filing or modification of any certificate of designation) or any agreement to which it is a party with respect to its limited liability company interest or otherwise terminate, amend or modify any such Governing Document or agreement or any provision thereof, or enter into any new agreement with respect to its limited liability company interest, other than any such amendments, modifications or changes or such new agreements to which the prior consent of the Required Holders and the Collateral Agent (if appropriate) has been obtained or which are not adverse in any material respect to the interests of the Holders of the Notes.

Section 10.4 Sale or Lease of Assets. The Company shall not sell, lease, assign, transfer or otherwise dispose of assets, whether now owned or hereafter acquired, except (a) in the ordinary course of its business and at fair market value, (b) to the extent that such asset is unnecessary, worn out or no longer useful or usable in connection with the operation or maintenance of the Project, at fair market value, or (c) as expressly contemplated by the Operative Documents (including, without limitation, in connection with the return of any System to Sponsor as provided in the MESPA or MOMA). Upon any such sale, lease, assignment, transfer or other disposition of any such assets, all Liens in favor of Collateral Agent relating to such asset shall be released. The Company shall not enter into any sale and leaseback transactions.

Section 10.5 Terrorism Sanctions Regulations. The Company will not and will not permit any Controlled Entity to (a) become a Blocked Person or (b) have any investments in or engage in any dealings or transactions with any Blocked Person if such investments, dealings or transactions would cause any Holder of a Note to be in violation of any laws or regulations that are applicable to such Holder.

Section 10.6 Liens. The Company will not create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any property or asset (including without limitation, any document or instrument in respect of goods or account receivable) of the Company, whether now owned or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except Permitted Liens.

Section 10.7 Contingent Obligations. Except as provided in the Credit Documents, the Company shall not become liable as a surety, guarantor, accommodation endorser or otherwise, for or upon the obligation of any other Person or incur any Contingent Obligations; provided, that this Section 10.7 shall not be deemed to prohibit or otherwise limit the occurrence of Permitted Debt.

Section 10.8 Debt. The Company shall not incur, create, assume or permit to exist, directly or indirectly, any Debt except Permitted Debt.

Section 10.9 Investments. The Company shall not (a) make any investments (whether by purchase of stocks, bonds, notes, obligations or other securities, loan, extension of credit,

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advance or otherwise) other than Permitted Investments or make any capital contribution to any Person; or (b) other than Permitted Investments, own any equity interest in, lend money, extend credit or make advances to, or any deposits with (other than deposits or advances in relation to the payment for services in the ordinary course of business), or make deposits with, any Person other than Depositary.

Section 10.10 Restricted Payments.

Other than the Permitted Distribution and the Final Completion Date Distribution, the Company shall not directly or indirectly, make or declare any distribution, including but not limited to any repurchase of any equity interest of the Company (in cash, property or obligation) on, or any payment on account of, any interest in the Company (not including the Cash Grant proceeds), unless the following conditions have been satisfied (the “Distribution Conditions”):

(a) such distribution will occur no later than 15 days after a Repayment Date and will be made from amounts on deposit in the Distribution Suspense Account;

(b) no Default or Event of Default has occurred and is continuing as of the date of, or will result from, such distribution;

(c) the amount on deposit in the Debt Service Reserve Account is equal to the Debt Service Reserve Requirement; and

(d) the DSCR for the immediately preceding 12-month period (or, during the initial 12 months following the Final Completion Date, the actual number of complete quarters since the Final Completion Date) and as projected for the immediately succeeding 12-month period is greater than or equal to 1.25:1.

Section 10.11 Margin Loan Regulations. The Company shall not directly or indirectly apply any part of the proceeds of the Notes, any cash equity contributions received by the Company or other funds or revenues to the “buying,” “carrying” or “purchasing” of any margin stock within the meaning of Regulations T, U or X of the Federal Reserve Board, or any regulations, interpretations or rulings thereunder.

Section 10.12 Partnership, Separateness Etc. The Company shall not (a) become a general or limited partner in any partnership or a joint venturer in any joint venture, (b) create and hold stock in any Subsidiary, (c) engage in any business other than owning and operating the Project and related activities, (d) fail to maintain separate bank accounts and separate books of account, (e) fail to cause its liabilities to be readily distinguishable from the liabilities of the Sponsor and the other Affiliates of the Sponsor, (f) fail to conduct its business solely in its own name in a manner not misleading to other Persons as to its identity, or (g) fail to make all oral and written communications, including letters, invoices, purchase orders, contracts, statements, and applications solely in its name.

Section 10.13 Amendments. The Company shall not amend, modify, supplement or waive, accept, or permit or consent to the termination, amendment, modification, supplement or waiver (including any waiver (or refund) of damages (liquidated or otherwise) payable by any contractor under any Major Project Document) of, any provision of, or give any material

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consent, including a consent to appointment of a Service Provider under the MOMA (as such term is defined in the MOMA) or any other subcontractor under the MESPA or MOMA (each such termination, amendment, modification, supplement, waiver or consent, inclusive of any applicable change orders, being referred to herein as a “Project Document Modification”) under any of the Major Project Documents.

Section 10.14 Name and Location; Fiscal Year. The Company shall not change its name, its jurisdiction of organization, its organization identification number, its fiscal year or, except as required by GAAP, its accounting policies or reporting practices. The Company shall not change the location of its principal place of business unless it has given written notice to the Collateral Agent, specifying the location of the new principal place of business, not less than 30 days prior to the date such change in the location of the Company’s principal place of business is to be effective.

Section 10.15 Hazardous Substances. The Company shall not Release (or suffer the Release) into the environment any Hazardous Substances in violation of any Hazardous Substance Laws, Legal Requirements or Applicable Permits.

Section 10.16 Use of Sites. Subject to existing third party easements, rights of way, or other third party property rights over the Sites, the Company shall not use, maintain, operate or occupy, or allow the use, maintenance, operation or occupancy of, any portion of the Project or either Site for any purpose (a) which may (i) constitute a public or private nuisance or (ii) make void, voidable, or cancelable, or materially increase the premium of, any insurance policies then in force with respect to all or a portion of the Project, or (b) that could reasonably be expected to have a Material Adverse Effect.

Section 10.17 Project Documents. The Company shall not enter into or become a party to any Additional Project Document without (a) obtaining the consent from the Required Holders (unless the aggregate value thereof shall be less than [***] in which case such consent shall not be required), (b) using commercially reasonable efforts to obtain from its counterparty a Direct Agreement in the form of Exhibit 4.1.30 or as otherwise approved by the Required Holders in advance, and (c) providing an executed copy thereof to each of the Required Holders and the Collateral Agent within five Business Days after execution.

Section 10.18 Assignment by Third Parties. To the extent the Company’s consent is required, without prior consent of the Required Holders, the Company shall not consent to the assignment of any obligations under any Major Project Document by any counterparty thereto.

Section 10.19 Acquisition of Real Property. The Company shall not acquire or lease any real property or other interest in real property (excluding the acquisition of any easements or the acquisition (but not the exercise) of any options to acquire any such interests in real property the value of which is lower than [***] individually or [***] in the aggregate) other than the Sites, Easements and other interests in real property acquired on or prior to the Closing Date.

Section 10.20 ERISA. The Company shall not sponsor any employee benefit plans subject to Title I or Title IV of ERISA.

[***] Confidential Treatment Requested

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Section 10.21 Lease Obligations. The Company shall not create, incur, assume or suffer to exist any obligations as lessee for the rent or hire of any property under leases other than the Leases.

Section 10.22 Disputes. The Company shall not agree, authorize or otherwise consent to any proposed settlement, resolution or compromise of any litigation, arbitration or other dispute with any Person without the prior authorization of the Required Holders if such proposed settlement, resolution or compromise could reasonably be expected to result in a Material Adverse Effect.

Section 10.23 Assignment. The Company shall not assign its rights or obligations under any Credit Document or any Major Project Document to any Person, except pursuant to the Collateral Documents.

Section 10.24 Accounts. The Company shall not maintain, establish or use any account (other than the Accounts), other than (i) the Cash Grant Account, (ii) the System Refund Account and (iii) an operating account with a balance not to exceed [***].

Section 10.25 Regulations; Tariff.

(a) The Company shall not cause or permit, or take any action or inaction that would result in, loss of (a) the Project’s status as an Eligible Facility and its certification as an Exempt Wholesale Generator, or (b) its authorization to sell energy, capacity and ancillary services at market-based rates.

(b) The Company shall not take any action that would result in its loss of eligibility as a QFCP Generator under the Tariff.

(c) The Company shall not consent to any modification, amendment, repeal, waiver or suspension of the Tariff.

Section 10.26 Capital Expenditures. The Company shall not make any Capital Expenditures other than Capital Expenditures set forth in the Project Budget or in the then current Annual Operating Budget that are reasonably required in order to operate and maintain the Project in accordance with the Legal Requirements and the Major Project Documents.

ARTICLE 11. EVENTS OF DEFAULT.

An “Event of Default” shall exist if any of the following conditions or events shall occur and be continuing:

Section 11.1 Failure to Make Payments.

(a) The Company defaults in the payment of any principal or Make-Whole Amount, if any, on any Note for more than one Business Day after the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise; or

(b) The Company defaults in the payment of any interest on any Note for more than five Business Days after the same becomes due and payable.

[***] Confidential Treatment Requested

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Section 11.2 Misstatements. Any representation or warranty made in writing by or on behalf of the Company or by any officer of the Company in this Agreement or in any writing furnished in connection with the transactions contemplated hereby proves to have been false or incorrect in any material respect on the date as of which made.

Section 11.3 Breach of Terms of Agreement.

(a) the Company defaults in the performance of or compliance with any term contained in Sections 7.2(c), 9.2, 9.5, 9.7, 9.15(f), 9.16, 9.20, 9.23 and Article 10; or

(b) the Company defaults in the performance of or compliance with any term contained herein (other than those referred to in Sections 11.1, 11.2 or 11.3(a)) and such default is not remedied within 30 days after the earlier of (i) a Responsible Officer of the Company obtaining Knowledge of such default and (ii) the Company receiving written notice of such default from any Holder of a Note (any such written notice to be identified as a “notice of default” and to refer specifically to this Section 11.3); provided, that, if (A) such failure does not consist principally of the failure to pay money and cannot be cured within such 30 day period, (B) such failure is susceptible of cure within 90 days, (C) the Company is proceeding with diligence and good faith to cure such failure, (D) the existence of such failure has not had and could not, after considering the nature of the cure, be reasonably expected to have a Material Adverse Effect, and (E) the Holders shall have received an officer’s certificate signed by a Responsible Officer of the Company to the effect of clauses (A), (B), (C) and (D) above and stating what action the Company is taking to cure such failure, then such 30-day cure period shall be extended to such date, not to exceed a total of 90 days, as shall be necessary for the Company diligently to cure such failure.

(c) any Credit Party shall fail to perform or observe any covenant to be performed or observed by it under any Credit Document to which it is a party and not otherwise specifically provided for in this Article 11, and such failure shall continue unremedied for a period of 10 days after such Credit Party becomes aware thereof, provided that with respect to the Equity Contribution Agreement only, such period shall be 5 Business Days.

Section 11.4 Defaults Under Other Debt. (i) the Company is in default (as principal or as guarantor or other surety) in the payment of any principal of or premium or make-whole amount or interest on any Debt that is outstanding in an aggregate principal amount of at least $1,500,000 beyond any period of grace provided with respect thereto, or (ii) the Company is in default in the performance of or compliance with any term of any evidence of any Debt in an aggregate outstanding principal amount of at least $1,500,000 or of any mortgage, indenture or other agreement relating thereto or any other condition exists, and as a consequence of such default or condition such Debt has become, or has been declared (or one or more Persons are entitled to declare such Debt to be), due and payable before its stated maturity or before its regularly scheduled dates of payment, or (iii) as a consequence of the occurrence or continuation of any event or condition (other than the passage of time or the right of the Holder of Debt to convert such Debt into equity interests), (x) the Company has become obligated to purchase or

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repay Debt before its regular maturity or before its regularly scheduled dates of payment in an aggregate outstanding principal amount of at least $1,500,000 or (y) one or more Persons have the right to require the Company so to purchase or repay such Debt.

Section 11.5 Bankruptcy; Insolvency. Any Bankruptcy Event shall occur with respect to any Major Project Participant (other than DPL and PJM) so long it shall have material outstanding or unperformed obligations under any Operative Document to which is a Party; provided that a Bankruptcy Event shall occur with respect to the Tax Equity Investors only if either (i) a Bankruptcy Event has occurred with respect to Credit Suisse (USA), Inc. or (ii) 30 days have elapsed since a claim for payment has been made under the CS Guaranty and Credit Suisse (USA), Inc. has not paid any amount due under such CS Guaranty within such period of time.

Section 11.6 Judgments. A final judgment or judgments for the payment of money aggregating in excess of $1,500,000 are rendered against the Company and which judgments are not (i) fully covered by insurance and the insurer has been notified of, and has not disputed the claim for the payment of, the amount of the judgment or (ii) within 60 days after entry thereof, bonded, discharged or stayed pending appeal, or are not discharged within 60 days after the expiration of such stay.

Section 11.7 ERISA. If (i) any Plan subject to Title IV of ERISA shall fail to satisfy the minimum funding standards of ERISA or the Code for any plan year or part thereof or a waiver of such standards or extension of any amortization period is sought or granted under section 412 of the Code, (ii) a notice of intent to terminate any Plan shall have been or is reasonably expected to be filed with the PBGC or the PBGC shall have instituted proceedings under ERISA section 4042 to terminate or appoint a trustee to administer any Plan subject to Title IV of ERISA or the PBGC shall have notified the Company or any ERISA Affiliate that a Plan may become a subject of any such proceedings, (iii) the aggregate “amount of unfunded benefit liabilities” (within the meaning of section 4001(a)(18) of ERISA) under all Plans, determined in accordance with Title IV of ERISA, shall exceed the aggregate current value of the assets under all Plans, (iv) the Company or any ERISA Affiliate shall have incurred or is reasonably expected to incur any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, (v) the Company or any ERISA Affiliate withdraws from any Multiemployer Plan, or (vi) the Company establishes or amends any employee welfare benefit plan that provides post-employment welfare benefits in a manner that would increase the liability of the Company thereunder; and any such event or events described in clauses (i) through (vi) above, either individually or together with any other such event or events, could reasonably be expected to have a Material Adverse Effect.

As used in Section 11.7 the terms “employee benefit plan” and “employee welfare benefit plan” shall have the respective meanings assigned to such terms in Section 3 of ERISA.

Section 11.8 Ownership of the Project. The Company shall cease to be the sole owner of the Project.

Section 11.9 Loss of Collateral. (a) All or any material portion of the Collateral is damaged, seized or appropriated without appropriate insurance proceeds (subject to the underlying deductible) or without fair value being paid therefor so as to allow replacement of

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such Collateral or prepayment of the Notes and to allow the Company to continue satisfying its obligations hereunder and under the other Operative Documents, or (b) any Person other than Collateral Agent attaches or institutes proceedings to attach all or any material part of the Collateral, and any such proceeding or attachment or any judgment Lien against any such Collateral (other than Permitted Liens) (i) remains unlifted, unstayed or undischarged for a period of 30 days or (ii) is upheld in a final nonappealable judgment of a court of competent jurisdiction.

Section 11.10 Abandonment. At any time the Company shall announce that (i) it is abandoning the Project or (ii) the Project shall be abandoned or operation thereof shall be suspended for a period of more than 30 consecutive days for any reason (other than force majeure); provided, that none of (A) scheduled maintenance of the Project, (B) repairs to the Project, whether or not scheduled, or (C) a forced outage or scheduled outage of the Project, shall constitute abandonment or suspension of the Project, so long as the Company is diligently attempting to end such suspension.

Section 11.11 Security. Any of the Collateral Documents, once executed and delivered, shall fail to provide to the Collateral Agent the Liens, first priority security interest (subject to Permitted Liens described in clauses (a) and (e) of the definition thereof and, to the extent required by Governmental Rule, clauses (b) and (c) of the definition thereof), rights, titles, interest, remedies permitted by law, powers or privileges intended to be created thereby (including the priority intended to be created thereby) or, except in accordance with its terms, cease to be in full force and effect, or the first priority or validity thereof or the applicability thereof to the Notes or any other Obligations purported to be secured or guaranteed thereby or any part thereof shall be disaffirmed by or on behalf of the Company.

Section 11.12 Regulatory Status.

(a) An Adverse PUHCA Event shall occur that could reasonably be expected to have a Material Adverse Effect and within 30 days thereafter such Adverse PUHCA Event has not been cured.

(b) If loss of the Company’s market-based rate authority could reasonably be expected to have a Material Adverse Effect, (i) the Company shall have tendered notice to FERC that it seeks to cancel its market-based rate authority, or (ii) FERC shall have issued an order revoking the Company’s market-based rate authority.

(c) If the Company’s failure to comply with any requirements under the FPA applicable to a “public utility” with authority to sell at wholesale electric power at market-based rates could reasonably be expected to have a Material Adverse Effect, FERC shall have issued an order finding that the Company has not complied with such requirement under the FPA applicable to a “public utility” with authority to sell at wholesale electric power at market-based rates.

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Section 11.13 Loss of or Failure to Obtain Applicable Permits.

(a) The Company shall fail to obtain any Permit on or before the date that such Permit becomes an Applicable Permit with respect to the Project, and such failure could reasonably be expected to have a Material Adverse Effect.

(b) Any Applicable Permit shall be materially modified (other than modifications contemplated in a Project Document requested by the Company), revoked, canceled or not renewed by the issuing agency or other Governmental Authority having jurisdiction (or otherwise ceases to be in full force and effect) and within 45 days thereafter the Company is not able to demonstrate to the reasonable satisfaction of the Required Holders that such modification of, revocation of, cancellation of, failure to renew, or failure to maintain in full force and effect such Permit could not reasonably be expected to have a Material Adverse Effect.

Section 11.14 Credit Document Matters. At any time after the execution and delivery thereof, (a) any Credit Document or any material provision hereof or thereof (i) ceases to be in full force and effect or to be valid and binding on any party thereto other than a Secured Party (other than by reason of the satisfaction in full of the Obligations or any termination of a Credit Document in accordance with the terms hereof or thereof), or is assigned or otherwise transferred (except as otherwise required or expressly permitted hereunder or thereunder) or is prematurely terminated by any party thereto (other than a Secured Party), (ii) is or becomes invalid, illegal or unenforceable, or any party hereto or thereto (other than a Secured Party) repudiates or disavows or takes any action to challenge the validity or enforceability of such agreement, (iii) is declared null and void by a Governmental Authority of competent jurisdiction, or (iv) fails to or ceases to provide the rights, powers and privileges purported to be created thereby or hereby, or (b) any authorization or approval by any Governmental Authority necessary to enable any Credit Party to comply with or perform its Obligations or otherwise perform in accordance with the terms of the Credit Documents shall be revoked, withdrawn or withheld, or shall otherwise fail to be issued or remain in full force and effect, and the failure of such authorization or approval from such Governmental Authority, other than with respect to the Tariff, is reasonably expected to have a Material Adverse Effect.

Section 11.15 Project Document Matters.

(a) Company’s Defaults. The Company shall be in breach of, or in default of, any material obligation under a Major Project Document and is not otherwise waived by the counterparty of such Major Project Document and such breach or default shall not be remediable or, if remediable, shall continue unremedied for the lesser of (i) a period of 30 days or (ii) such period of time (without giving effect to any extension given to Collateral Agent under any applicable Direct Agreement with respect thereto) under such Major Project Document which the Company has available to it in which to remedy such breach or default.

(b) Third Party Defaults. Any Person other than the Company shall be in breach of, in default under a Major Project Document and such breach or default (i) shall not be remediable or, if remediable, shall continue unremedied for a period beyond the applicable grace period and (ii) has had or could reasonably be expected to have a Material Adverse Effect.

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(c) Third Party Direct Agreements. (i) Any Person other than the Company shall disaffirm or repudiate in writing its material obligations under any Direct Agreement, (ii) any representation or warranty made by any Person other than the Company in a Direct Agreement shall be untrue or misleading in any material respect as of the time made and such untrue or misleading representation or warranty could reasonably be expected to result in a Material Adverse Effect, or (iii) a Person other than the Company shall breach any material covenant of a Direct Agreement and such breach or default shall not be remediable or, if remediable, shall continue unremedied for a period of 30 days from the time the Company obtains Knowledge of such breach.

(d) Termination. At any time after the execution and delivery thereof, any Major Project Document or any material provision hereof or thereof (i) ceases to be in full force and effect or to be valid and binding on any party thereto (other than by reason of the satisfaction of performance of such agreement or provision or any other any termination thereof in accordance with the terms thereof), or is assigned or otherwise transferred (except as otherwise required or expressly permitted hereunder or thereunder) or is prematurely terminated by any party thereto, (ii) is or becomes invalid, illegal or unenforceable, or any party hereto or thereto repudiates or disavows or takes any action to challenge the validity or enforceability of such agreement, (iii) is declared null and void by a Governmental Authority of competent jurisdiction or written notice is given by any Governmental Authority or applicable counterparty contesting the validity or enforcement thereof, or (iv) fails to or ceases to provide the rights, powers and privileges purported to be created thereby or hereby.

Section 11.16 Eminent Domain. There shall have occurred any act or series of acts attributable to any Governmental Authority which (a) in the reasonable judgment of the Required Holders has the effect of depriving the Secured Parties of their fundamental rights as creditors in respect of the Credit Documents, (b) confiscates, expropriates, nationalizes or otherwise acquires compulsorily the ownership or control by the Company of all or any material part of the Project, or (c) in the reasonable judgment of the Required Holders has the effect of materially impairing the value of any Major Project Document, and such act or series of acts continues uncured for 90 days or more.

Section 11.17 Cash Grant Recapture.

(a) During the Recapture Period, (i) the Company becomes a Disqualified Person or causes, permits or consents to any transfer of any direct or indirect equity, ownership, profits or other interest in the Company or in any Project assets to a Disqualified Person or (ii) an interest in any Project assets is transferred by the Company to a Person that has not agreed to be jointly liable with the Company for Recapture Liabilities, in each case resulting in Recapture Liability that is not subject to the Recapture Indemnities and Guarantees that has not been breached by the applicable indemnitor thereunder; or

(b) any Recapture Liability has been assessed, imposed or levied against the Company and either (i) such Recapture Liability is not subject to a Recapture Indemnity and Guarantee or (ii) any indemnitor under the Recapture Indemnities and Guarantees is in breach thereof.

Section 11.18 Final Completion. Final Completion does not occur on or prior to the Date Certain (including upon payment of the Buydown Amount, in the event payment of the Buydown Amount will result in Final Completion being achieved).

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ARTICLE 12. REMEDIES ON DEFAULT, ETC.

Section 12.1 Acceleration. (a) If an Event of Default with respect to the Company described in Section 11.5 has occurred, all the Notes then outstanding shall automatically become immediately due and payable.

(b) If any other Event of Default has occurred and is continuing, any Holder or Holders of more than 25% in principal amount of the Notes at the time outstanding may at any time at its or their option, by notice or notices to the Company, declare all the Notes then outstanding to be immediately due and payable.

(c) If any Event of Default described in Section 11.1 has occurred and is continuing, any Holder or Holders of Notes at the time outstanding affected by such Event of Default may at any time, at its or their option, by notice or notices to the Company, declare all the Notes held by it or them to be immediately due and payable.

Upon any Notes becoming due and payable under this Section 12.1, whether automatically or by declaration, such Notes will forthwith mature and the entire unpaid principal amount of such Notes, plus (x) all accrued and unpaid interest thereon (including, but not limited to, interest accrued thereon at the Default Rate) and (y) the Make-Whole Amount determined in respect of such principal amount (to the full extent permitted by applicable law), shall all be immediately due and payable, in each and every case without presentment, demand, protest or further notice, all of which are hereby waived. The Company acknowledges, and the parties hereto agree, that each Holder of a Note has the right to maintain its investment in the Notes free from repayment by the Company (except as herein specifically provided for) and that the provision for payment of a Make-Whole Amount by the Company in the event that the Notes are prepaid or are accelerated as a result of an Event of Default, is intended to provide compensation for the deprivation of such right under such circumstances.

Section 12.2 Other Remedies. If any Default or Event of Default has occurred and is continuing, and irrespective of whether any Notes have become or have been declared immediately due and payable under Section 12.1, the Holder of any Note at the time outstanding may proceed to protect and enforce the rights of such Holder by an action at law, suit in equity or other appropriate proceeding, whether for the specific performance of any agreement contained herein or in any Note, or for an injunction against a violation of any of the terms hereof or thereof, or in aid of the exercise of any power granted hereby or thereby or by law or otherwise.

Section 12.3 Rescission. At any time after any Notes have been declared due and payable pursuant to Section 12.1(b) or (c), the Holders of not less than 76% in principal amount of the Notes then outstanding, by written notice to the Company, may rescind and annul any such declaration and its consequences if (a) the Company has paid all overdue interest on the Notes, all principal of and Make-Whole Amount, if any, on any Notes that are due and payable and are unpaid other than by reason of such declaration, and all interest on such overdue principal and

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Make-Whole Amount, if any, and (to the extent permitted by applicable law) any overdue interest in respect of the Notes, at the Default Rate, (b) neither the Company nor any other Person shall have paid any amounts which have become due solely by reason of such declaration, (c) all Events of Default and Defaults, other than non-payment of amounts that have become due solely by reason of such declaration, have been cured or have been waived pursuant to Article 17, and (d) no judgment or decree has been entered for the payment of any monies due pursuant hereto or to the Notes. No rescission and annulment under this Section 12.3 will extend to or affect any subsequent Event of Default or Default or impair any right consequent thereon.

Section 12.4 No Waivers or Election of Remedies, Expenses, Etc. No course of dealing and no delay on the part of any Holder of any Note in exercising any right, power or remedy shall operate as a waiver thereof or otherwise prejudice such Holder’s rights, powers or remedies. No right, power or remedy conferred by this Agreement or by any Note upon any Holder thereof shall be exclusive of any other right, power or remedy referred to herein or therein or now or hereafter available at law, in equity, by statute or otherwise. Without limiting the obligations of the Company under Article 15, the Company will pay to the Holder of each Note on demand such further amount as shall be sufficient to cover all costs and expenses of such Holder incurred in any enforcement or collection under this Article 12, including, without limitation, reasonable attorneys’ fees, expenses and disbursements.

ARTICLE 13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.

Section 13.1 Registration of Notes. The Company shall keep at its principal executive office a register for the registration and registration of transfers of Notes. The name and address of each Holder of one or more Notes, each transfer thereof and the name and address of each transferee of one or more Notes shall be registered in such register. If any Holder of one or more Notes is a nominee, then the name and address of the beneficial owner of such Note or Notes shall also be registered in such register as an owner and Holder thereof. Prior to due presentment for registration of transfer, the Person(s) in whose name any Note(s) shall be registered shall be deemed and treated as the owner and Holder thereof for all purposes hereof, and the Company shall not be affected by any notice or knowledge to the contrary. The Company shall give to any Holder of a Note that is an Institutional Investor promptly upon request therefor, a complete and correct copy of the names and addresses of all registered Holders of Notes.

Section 13.2 Transfer and Exchange of Notes.

(a) Upon surrender of any Note to the Company at the address and to the attention of the designated officer (all as specified in Section 18(iii)), for registration of transfer or exchange (and in the case of a surrender for registration of transfer accompanied by a written instrument of transfer duly executed by the registered Holder of such Note or such Holder’s attorney duly authorized in writing and accompanied by the relevant name, address and other information for notices of each transferee of such Note or part thereof), within ten Business Days thereafter, the Company shall execute and deliver, at the Company’s expense (except as provided below), one or more new Notes (as requested by the Holder thereof) in exchange therefor, in an aggregate principal amount equal to the unpaid principal amount of the surrendered Note. Each such new Note shall be payable to such Person as such Holder may request and shall be substantially in the form of Exhibit 1. Each such new Note shall be dated and bear interest from

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the date to which interest shall have been paid on the surrendered Note or dated the date of the surrendered Note if no interest shall have been paid thereon. The Company may require payment of a sum sufficient to cover any stamp tax or governmental charge imposed in respect of any such transfer of Notes as a condition of registering the transfer of Notes on its register. Notes shall not be transferred in denominations of less than $500,000 provided that if necessary to enable the registration of transfer by a Holder of its entire holding of Notes, one Note may be in a denomination of less than $500,000. Any transferee, by its acceptance of a Note registered in its name (or the name of its nominee), shall be deemed to have made the representations set forth in Article 6.

(b) The Purchasers understands that the Notes are not being registered under the Securities Act or any state securities law and are being sold to the Purchasers in a transaction that is exempt from the registration requirements of the Securities Act. Neither the Company nor any other person or entity is obligated to register the Notes under the Securities Act or any other securities or “Blue Sky” laws.

(c) The Purchasers understand that the Note will bear a legend to substantially the following effect:

THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). NEITHER THIS NOTE NOR ANY PORTION HEREOF MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE SECURITIES ACT AND ANY APPLICABLE PROVISIONS OF ANY STATE BLUE SKY OR SECURITIES LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION PROVISIONS.

Section 13.3 Replacement of Notes. Upon receipt by the Company at the address and to the attention of the designated officer (all as specified in Section 18(iii)) of evidence reasonably satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of any Note (which evidence shall be, in the case of an Institutional Investor, notice from such Institutional Investor of such ownership and such loss, theft, destruction or mutilation), and

(a) in the case of loss, theft or destruction, of indemnity reasonably satisfactory to it (provided that if the Holder of such Note is, or is a nominee for, an original Purchaser or another Holder of a Note with a minimum net worth of at least $50,000,000 or a Qualified Institutional Buyer, such Person’s own unsecured agreement of indemnity shall be deemed to be satisfactory), or

(b) in the case of mutilation, upon surrender and cancellation thereof, within ten Business Days thereafter,

the Company at its own expense shall execute and deliver, in lieu thereof, a new Note, dated and bearing interest from the date to which interest shall have been paid on such lost, stolen, destroyed or mutilated Note or dated the date of such lost, stolen, destroyed or mutilated Note if no interest shall have been paid thereon.

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ARTICLE 14. PAYMENTS ON NOTES.

Section 14.1 Place of Payment. Subject to Section 14.2, payments of principal, Make-Whole Amount, if any, and interest becoming due and payable on the Notes shall be made in New York, New York, at the principal office of the Collateral Agent in such jurisdiction. The Company may at any time, by notice to each Holder of a Note, change the place of payment of the Notes so long as such place of payment shall be either the principal office of the Company in such jurisdiction or the principal office of a bank or trust company in such jurisdiction.

Section 14.2 Home Office Payment. So long as any Purchaser or its nominee shall be the Holder of any Note, and notwithstanding anything contained in Section 14.1 or in such Note to the contrary, the Company will pay all sums becoming due on such Note for principal, Make-Whole Amount, if any, interest and all other amounts becoming due hereunder by the method and at the address specified for such purpose below such Purchaser’s name in Schedule A, or by such other method or at such other address as such Purchaser shall have from time to time specified to the Company in writing for such purpose, without the presentation or surrender of such Note or the making of any notation thereon, except that upon written request of the Company made concurrently with or reasonably promptly after payment or prepayment in full of any Note, such Purchaser shall surrender such Note for cancellation, reasonably promptly after any such request, to the Company at its principal executive office or at the place of payment most recently designated by the Company pursuant to Section 14.1. Prior to any sale or other disposition of any Note held by a Purchaser or its nominee, such Purchaser will, at its election, either endorse thereon the amount of principal paid thereon and the last date to which interest has been paid thereon or surrender such Note to the Company in exchange for a new Note or Notes pursuant to Section 13.2. The Company will afford the benefits of this Section 14.2 to any Institutional Investor that is the direct or indirect transferee of any Note purchased by a Purchaser under this Agreement and that has made the same agreement relating to such Note as the Purchasers have made in this Section 14.2.

ARTICLE 15. EXPENSES, ETC.

Section 15.1 Transaction Expenses. Whether or not the transactions contemplated hereby are consummated, the Company will pay all costs and expenses (including reasonable attorneys’ fees of a special counsel and, if reasonably required by the Required Holders, local or other counsel) incurred by the Purchasers and each other Holder of a Note in connection with such transactions and in connection with any amendments, waivers or consents under or in respect of the Credit Documents (whether or not such amendment, waiver or consent becomes effective), including, without limitation: (a) the costs and expenses incurred in enforcing or defending (or determining whether or how to enforce or defend) any rights under the Credit Documents or in responding to any subpoena or other legal process or informal investigative demand issued in connection with the Credit Documents, or by reason of being a Holder of any Note, (b) the costs and expenses, including financial advisors’ fees, incurred in connection with the insolvency or bankruptcy of the Company or in connection with any work-out or restructuring of the transactions contemplated by the Credit Documents and (c) the costs and expenses incurred in connection with the initial filing of this Agreement and all related documents and financial information with the SVO provided, that such costs and expenses under this clause (c) shall not exceed [***]. The Company will pay, and will save each Purchaser

[***] Confidential Treatment Requested

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and each other Holder of a Note harmless from, all claims in respect of any fees, costs or expenses, if any, of brokers and finders (other than those, if any, retained by a Purchaser or other Holder in connection with its purchase of the Notes).

Section 15.2 Survival. The obligations of the Company under this Article 15 will survive the payment or transfer of any Note, the enforcement, amendment or waiver of any provision of the Credit Documents, and the termination of the Credit Documents.

ARTICLE 16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.

All representations and warranties contained herein shall survive the execution and delivery of this Agreement and the Notes, the purchase or transfer by any Purchaser of any Note or portion thereof or interest therein and the payment of any Note, and may be relied upon by any subsequent Holder of a Note, regardless of any investigation made at any time by or on behalf of such Purchaser or any other Holder of a Note. All statements contained in any certificate or other instrument delivered by or on behalf of the Company pursuant to this Agreement shall be deemed representations and warranties of the Company made as of the date of delivery of such certificate or other instrument (except as otherwise provided therein) under this Agreement. Subject to the preceding sentence, the Credit Documents embody the entire agreement and understanding between each Purchaser and the Company and supersede all prior agreements and understandings relating to the subject matter hereof.

ARTICLE 17. AMENDMENT AND WAIVER.

Section 17.1 Requirements. This Agreement and the Notes may be amended, and the observance of any term hereof or of the Notes may be waived (either retroactively or prospectively), only with the written consent of the Company and the Required Holders, except that:

(a) no amendment or waiver of any of the provisions of Articles 1, 2, 3, 4, 5, 6 or 21 hereof, or any defined term (as it is used therein), will be effective as to any Purchaser unless consented to by such Purchaser in writing;

(b) no amendment or waiver may, without the written consent of each Purchaser and the Holder of each Note at the time outstanding, (i) subject to the provisions of Article 12 relating to acceleration or rescission, change the amount or time of any prepayment or payment of principal of, or reduce the rate or change the time of payment or method of computation of (x) interest on the Notes or (y) the Make-Whole Amount, (ii) change the percentage of the principal amount of the Notes the Holders of which are required to consent to any amendment or waiver, or (iii) amend any of Article 8 (except as set forth in Section 17.1(c)), Section 11.1(b), or Articles 12, 17 or 20; and

(c) the provisions of Section 8.5 may be amended or waived to permit offers to purchase made by the Company or an Affiliate pro rata to the Holders of all Notes at the time outstanding upon the same terms and conditions only with the written consent of the Company and the Super-Majority Holders.

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Section 17.2 Solicitation of Holders of Notes.

(a) Solicitation. The Company will provide each registered Holder of a Note on the note register maintained by the Company pursuant to Section 13.1 with sufficient information, at least 10 Business Days in advance of the date a decision is required, to enable such Holder to make an informed and considered decision with respect to any proposed amendment, waiver or consent in respect of any of the Credit Documents. The Company will deliver executed or true and correct copies of each amendment, waiver or consent effected pursuant to the provisions of this Article 17 to each registered Holder of a Note on the note register maintained by the Company pursuant to Section 13.1 promptly following the date on which it is executed and delivered by, or receives the consent or approval of, the requisite Holders of Notes.

(b) Payment. The Company will not directly or indirectly pay or cause to be paid any remuneration, whether by way of supplemental or additional interest, fee or otherwise, or grant any security or provide other credit support, to any Holder of a Note as consideration for or as an inducement to the entering into by such Holder of any waiver or amendment of any of the terms and provisions of any Credit Document unless such remuneration is concurrently paid, or security is concurrently granted or other credit support concurrently provided, on the same terms, ratably to each Holder of a Note even if such Holder did not consent to such waiver or amendment.

(c) Consent in Contemplation of Transfer. Any consent made pursuant to this Article 17 by a Holder of Notes that has transferred or has agreed to transfer its Notes to the Company or any Affiliate of the Company pursuant to a waiver under Section 17.1(c) or subsequent to Section 8.5 having been amended pursuant to Section 17.1(c) and has provided or has agreed to provide such written consent as a condition to such transfer shall be void and of no force or effect except solely as to such Holder, and any amendments effected or waivers granted or to be effected or granted that would not have been or would not be so effected or granted but for such consent (and the consents of all other Holders of Notes that were acquired under the same or similar conditions) shall be void and of no force or effect except solely as to such Holder.

Section 17.3 Binding Effect, etc. Any amendment or waiver consented to as provided in this Article 17 applies equally to all Holders of Notes and is binding upon them and upon each future Holder of any Note and upon the Company without regard to whether such Note has been marked to indicate such amendment or waiver. No such amendment or waiver will extend to or affect any obligation, covenant, agreement, Default or Event of Default not expressly amended or waived or impair any right consequent thereon. No course of dealing between the Company and any Holder of a Note nor any delay in exercising any rights under any Credit Document shall operate as a waiver of any rights of any Holder of such Note.

Section 17.4 Notes Held by Company, etc. Solely for the purpose of determining whether the Holders of the requisite percentage of the aggregate principal amount of Notes then outstanding approved or consented to any amendment, waiver or consent to be given under the Credit Documents, or have directed the taking of any action provided in the Credit Documents to be taken upon the direction of the Holders of a specified percentage of the aggregate principal amount of Notes then outstanding, Notes directly or indirectly owned by the Company or any of its Affiliates shall be deemed not to be outstanding.

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ARTICLE 18. NOTICES.

All notices and communications provided for hereunder shall be in writing and sent (a) by facsimile if the sender on the same day sends a confirming copy of such notice by an internationally recognized overnight delivery service (charges prepaid), (b) by registered or certified mail with return receipt requested (postage prepaid), or (c) by an internationally recognized overnight delivery service (with charges prepaid). Any such notice must be sent:

(i) if to any Purchaser or its nominee, to such Purchaser or nominee at the address specified for such communications in Schedule A, or at such other address as such Purchaser or nominee shall have specified to the Company in writing,

(ii) if to any other Holder of any Note, to such Holder at such address as such other Holder shall have specified to the Company in writing, or

(iii) if to the Company, to the Company at the following address: Diamond State Generation Partners, LLC, 1252 Orleans Drive, Sunnyvale, CA 94089, Attn: Bill Brockenborough, or at such other address as the Company shall have specified to the Holder of each Note in writing.

Notices under this Article 18 will be deemed given only when actually received during the normal business hours of the recipient on a Business Day or if received after such normal hours on a Business Day or on a day that is not a Business Day, then on the next succeeding Business Day.

ARTICLE 19. REPRODUCTION OF DOCUMENTS.

This Agreement and all documents relating thereto, including, without limitation, (a) consents, waivers and modifications that may hereafter be executed, (b) documents received by any Purchaser at the Closing (except the Notes themselves), and (c) financial statements, certificates and other information previously or hereafter furnished to any Purchaser, may be reproduced by such Purchaser by any photographic, photostatic, electronic, digital, or other similar process and such Purchaser may destroy any original document so reproduced. The Company agrees and stipulates that, to the extent permitted by applicable law, any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and whether or not such reproduction was made by such Purchaser in the regular course of business) and any enlargement, facsimile or further reproduction of such reproduction shall likewise be admissible in evidence. This Article 19 shall not prohibit the Company or any other Holder of Notes from contesting any such reproduction to the same extent that it could contest the original, or from introducing evidence to demonstrate the inaccuracy of any such reproduction.

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ARTICLE 20. CONFIDENTIAL INFORMATION.

For the purposes of this Article 20, “Confidential Information” means information delivered to any Purchaser by or on behalf of the Company in connection with the transactions contemplated by or otherwise pursuant to this Agreement that is proprietary in nature and that was clearly marked or labeled or otherwise adequately identified when received by such Purchaser as being confidential information of the Company, provided that such term does not include information that (a) was publicly known or otherwise known to such Purchaser prior to the time of such disclosure, (b) subsequently becomes publicly known through no act or omission by such Purchaser or any Person acting on such Purchaser’s behalf, (c) otherwise becomes known to such Purchaser other than through disclosure by the Company or (d) constitutes financial statements delivered to such Purchaser under Section 7.1 that are otherwise publicly available. Each Purchaser will maintain the confidentiality of such Confidential Information in accordance with procedures adopted by such Purchaser in good faith to protect confidential information of third parties delivered to such Purchaser, provided that such Purchaser may deliver or disclose Confidential Information to (i) its directors, officers, employees, agents, attorneys, trustees and affiliates (to the extent such disclosure reasonably relates to the administration of the investment represented by its Notes), (ii) its auditors, financial advisors and other professional advisors who agree to hold confidential the Confidential Information substantially in accordance with the terms of this Article 20, (iii) any other Holder of any Note, (iv) any Institutional Investor to which it sells or offers to sell such Note or any part thereof or any participation therein (if such Person has agreed in writing prior to its receipt of such Confidential Information to be bound by the provisions of this Article 20), (v) any Person from which it offers to purchase any Security of the Company (if such Person has agreed in writing prior to its receipt of such Confidential Information to be bound by the provisions of this Article 20), (vi) any federal or state regulatory authority having jurisdiction over such Purchaser, (vii) the NAIC or the SVO or, in each case, any similar organization, or any nationally recognized rating agency that requires access to information about such Purchaser’s investment portfolio, or (viii) any other Person to which such delivery or disclosure may be necessary or appropriate (w) to effect compliance with any law, rule, regulation or order applicable to such Purchaser, (x) in response to any subpoena or other legal process, (y) in connection with any litigation to which such Purchaser is a party or (z) if an Event of Default has occurred and is continuing, to the extent such Purchaser may reasonably determine such delivery and disclosure to be necessary or appropriate in the enforcement or for the protection of the rights and remedies under the Credit Documents. Each Holder of a Note, by its acceptance of a Note, will be deemed to have agreed to be bound by and to be entitled to the benefits of this Article 20 as though it were a party to this Agreement. On reasonable request by the Company in connection with the delivery to any Holder of a Note of information required to be delivered to such Holder under this Agreement or requested by such Holder (other than a Holder that is a party to this Agreement or its nominee), such Holder will enter into an agreement with the Company embodying the provisions of this Article 20.

In the event that as a condition to receiving access to information relating to the Company in connection with the transactions contemplated by or otherwise pursuant to this Agreement, any Purchaser is required to agree to a confidentiality undertaking (whether through Intralinks or otherwise) which is different from the terms of this Article 20, the terms of this Article 20 shall, as between such Purchaser and the Company, supersede the terms of any such other confidentiality undertaking.

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ARTICLE 21. SUBSTITUTION OF PURCHASER.

Each Purchaser shall have the right to substitute any one of its Affiliates as the purchaser of the Notes that it has agreed to purchase hereunder, by written notice to the Company, which notice shall be signed by both such Purchaser and such Affiliate, shall contain such Affiliate’s agreement to be bound by this Agreement and shall contain a confirmation by such Affiliate of the accuracy with respect to it of the representations set forth in Article 6. Upon receipt of such notice, any reference to such Purchaser in this Agreement (other than in this Article 21), shall be deemed to refer to such Affiliate in lieu of such original Purchaser. In the event that such Affiliate is so substituted as a Purchaser hereunder and such Affiliate thereafter transfers to such original Purchaser all of the Notes then held by such Affiliate, upon receipt by the Company of notice of such transfer, any reference to such Affiliate as a “Purchaser” in this Agreement (other than in this Article 21), shall no longer be deemed to refer to such Affiliate, but shall refer to such original Purchaser, and such original Purchaser shall again have all the rights of an original Holder of the Notes under this Agreement.

ARTICLE 22. MISCELLANEOUS.

Section 22.1 Successors and Assigns. All covenants and other agreements contained in this Agreement by or on behalf of any of the parties hereto bind and inure to the benefit of their respective successors and permitted assigns (including, without limitation, any subsequent Holder of a Note) whether so expressed or not.

Section 22.2 Payments Due on Non-Business Days. Anything in this Agreement or the Notes to the contrary notwithstanding, any payment of principal of or Make-Whole Amount or interest on any Note that is due on a date other than a Business Day shall be made on the next succeeding Business Day without including the additional days elapsed in the computation of the interest payable on such next succeeding Business Day; provided that if the maturity date of any Note is a date other than a Business Day, the payment otherwise due on such maturity date shall be made on the next succeeding Business Day and shall include the additional days elapsed in the computation of interest payable on such next succeeding Business Day.

Section 22.3 Accounting Terms. All accounting terms used herein which are not expressly defined in this Agreement have the meanings respectively given to them in accordance with GAAP. Except as otherwise specifically provided herein, (i) all computations made pursuant to this Agreement shall be made in accordance with GAAP, and (ii) all financial statements shall be prepared in accordance with GAAP. For purposes of determining compliance with the financial covenants contained in this Agreement, any election by the Company to measure any financial liability using fair value (as permitted by Accounting Standard Codification Topic No. 825-10-25 – Fair Value Option or any similar accounting standard) shall be disregarded and such determination shall be made as if such election had not been made.

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Section 22.4 Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by law) not invalidate or render unenforceable such provision in any other jurisdiction.

Section 22.5 Construction, etc. Each covenant contained herein shall be construed (absent express provision to the contrary) as being independent of each other covenant contained herein, so that compliance with any one covenant shall not (absent such an express contrary provision) be deemed to excuse compliance with any other covenant. Where any provision herein refers to action to be taken by any Person, or which such Person is prohibited from taking, such provision shall be applicable whether such action is taken directly or indirectly by such Person.

For the avoidance of doubt, all Schedules and Exhibits attached to this Agreement shall be deemed to be a part hereof.

Section 22.6 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original but all of which together shall constitute one instrument. Each counterpart may consist of a number of copies hereof, each signed by less than all, but together signed by all, of the parties hereto.

Section 22.7 Governing Law. This Agreement shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than such State.

Section 22.8 Jurisdiction and Process; Waiver of Jury Trial. (a) The Company irrevocably submits to the non-exclusive jurisdiction of any New York State or federal court sitting in the Borough of Manhattan, The City of New York, over any suit, action or proceeding arising out of or relating to this Agreement or the Notes. To the fullest extent permitted by applicable law, the Company irrevocably waives and agrees not to assert, by way of motion, as a defense or otherwise, any claim that it is not subject to the jurisdiction of any such court, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

(b) The Company consents to process being served by or on behalf of any Holder of Notes in any suit, action or proceeding of the nature referred to in Section 22.8(a) by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, return receipt requested, to it at its address specified in Article 18 or at such other address of which such Holder shall then have been notified pursuant to said Article. The Company agrees that such service upon receipt (i) shall be deemed in every respect effective service of process upon it in any such suit, action or proceeding and (ii) shall, to the fullest extent permitted by applicable law, be taken and held to be valid personal service upon and personal delivery to it. Notices hereunder shall be conclusively presumed received as evidenced by a delivery receipt furnished by the United States Postal Service or any reputable commercial delivery service.

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(c) Nothing in this Section 22.8 shall affect the right of any Holder of a Note to serve process in any manner permitted by law, or limit any right that the Holders of any of the Notes may have to bring proceedings against the Company in the courts of any appropriate jurisdiction or to enforce in any lawful manner a judgment obtained in one jurisdiction in any other jurisdiction.

(d) The parties hereto hereby waive trial by jury in any action brought on or with respect to this Agreement, the Notes or any other document executed in connection herewith or therewith.

Section 22.9 Scope of Liability.

Except as set forth in this Section 22.9 and Section 8.22 of the Pledge Agreement, notwithstanding anything in any Credit Document to the contrary, the Secured Parties shall have no recourse or claims with respect to the transactions contemplated by the Operative Documents against Pledgor, Sponsor or any of their respective Affiliates (other than the Company), shareholders, officers, directors or employees (collectively, the “Nonrecourse Persons”) and the Secured Parties’ recourse against the Company shall be limited to the Collateral, the Project, all Project Revenues, all proceeds of the Notes, Insurance Proceeds, Eminent Domain Proceeds, and all income or revenues of the foregoing as and to the extent provided herein and in the Collateral Documents (which, for the avoidance of doubt, excludes the payments allowed to any Nonrecourse Person pursuant to the terms of any Credit Documents); provided, that the foregoing provision of this Section 22.9 shall not in any way (a) constitute a waiver, release or discharge of any of the indebtedness, or of any of the terms, covenants, conditions, or provisions of any Credit Document (and the same shall continue, but without personal liability to the Nonrecourse Persons, until fully paid, discharged, observed, or performed) or otherwise relieve any such Person from its obligations under the Credit Documents to which it is a party or shall preclude, restrict, reduce, limit or otherwise affect the rights, powers and remedies of the Secured Parties to enforce (or cause to be enforced) such obligations against such Person or such Person’s properties to the extent permitted by any Credit Document to which it is a party; (b) limit, reduce, restrict or otherwise affect the right of any Secured Party (or any assignee, beneficiary or successor to any of them) to name the Company or any other Person as a defendant in any action or suit for a judicial foreclosure or for the exercise of any other remedy under or with respect to any Credit Document, or for injunction or specific performance, so long as no judgment in the nature of a deficiency judgment shall be enforced against any Nonrecourse Person, except as set forth in this Section 22.9; (c) limit, reduce, restrict or otherwise affect any right or remedy of any Secured Party (or any assignee or beneficiary thereof or successor thereto) with respect to, and each of the Nonrecourse Persons shall remain fully liable to the extent that it would otherwise be liable for its own actions with respect to, any fraud, willful misrepresentation (which shall not include innocent or negligent misrepresentation), or misappropriation of Project Revenues, proceeds of the Notes, Insurance Proceeds, Eminent Domain Proceeds or any other earnings, revenues, rents, issues, profits or proceeds from or of the Collateral, that should or would have been paid as provided herein or paid or delivered to any Secured Party (or any assignee or beneficiary thereof or successor thereto) towards any payment required under any other Credit

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Document; (d) affect or diminish or constitute a waiver, release or discharge of any specific written obligation, covenant, representation, or agreement in respect of the transactions contemplated by the Operative Documents made by any of the Nonrecourse Persons or any security granted by the Nonrecourse Persons in support of the obligations of such Persons under any Collateral Document (or as security for the obligations of the Company), including Pledgor’s obligations, covenants, representations and agreements under the Pledge Agreement; nor (e) limit the liability of (i) any Person who is a party to any Project Document or has issued any certificate or other statement in connection therewith with respect to such liability as may arise solely by reason of the terms and conditions of such Project Document (but subject to any limitation of liability in such Project Document), certificate or statement, or (ii) any Person rendering a legal opinion pursuant to this Agreement, in each case under this clause (e) relating solely to such liability of such Person as may arise under such referenced agreement, instrument or opinion. The limitations on recourse set forth in this Section 22.9 shall survive the termination of this Agreement.

Section 22.10 U.S. Tax Forms.

Each Holder, on or before the date it becomes a party to this Agreement and thereafter upon reasonable request of the Company, shall furnish to the Company, to the extent such Holder is legally eligible to do so, either a completed and signed IRS Form W-9 or IRS Form W-8BEN (or other applicable Form W-8, together with applicable attachments), as may be applicable, to claim a complete exemption from U.S. federal withholding tax.

*  *  *  *  *

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If you are in agreement with the foregoing, please sign the form of agreement on a counterpart of this Agreement and return it to the Company, whereupon this Agreement shall become a binding agreement between you and the Company.

Very truly yours,
DIAMOND STATE GENERATION PARTNERS, LLC
By	/s/ William E. Brockenborough
Name:	William E. Brockenborough
Title:	President

Note Purchase Agreement (Diamond State Generation Partners, LLC)

This Agreement is hereby accepted and agreed to as of the date hereof.
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By:	Babson Capital Management LLC, its investment adviser
By	/s/ Thomas P. Shea
Name:	Thomas P. Shea
Title:	Managing Director

Note Purchase Agreement (Diamond State Generation Partners, LLC)

This Agreement is hereby accepted and agreed to as of the date hereof.
C. M. LIFE INSURANCE COMPANY
By:	Babson Capital Management LLC, its investment adviser
By	/s/ Thomas P. Shea
Name:	Thomas P. Shea
Title:	Managing Director

Note Purchase Agreement (Diamond State Generation Partners, LLC)

This Agreement is hereby accepted and agreed to as of the date hereof.
MASSMUTUAL ASIA LIMITED
By:	Babson Capital Management LLC, its investment adviser
By	/s/ Thomas P. Shea
Name:	Thomas P. Shea
Title:	Managing Director

Note Purchase Agreement (Diamond State Generation Partners, LLC)

This Agreement is hereby accepted and agreed to as of the date hereof.
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
By	/s/ Joseph R. Cantey Jr.
Name:	Joseph R. Cantey Jr.
Title:	Director

Note Purchase Agreement (Diamond State Generation Partners, LLC)

This Agreement is hereby accepted and agreed to as of the date hereof.
AXA EQUITABLE LIFE INSURANCE COMPANY
By	/s/ Amy Judd
	Amy Judd, Investment Officer

Note Purchase Agreement (Diamond State Generation Partners, LLC)

This Agreement is hereby accepted and agreed to as of the date hereof.
GENWORTH LIFE AND ANNUITY INSURANCE COMPANY
By	/s/ John R. Endres
Name:	John R. Endres
Title:	Investment Officer

Note Purchase Agreement (Diamond State Generation Partners, LLC)

This Agreement is hereby accepted and agreed to as of the date hereof.
GENWORTH LIFE INSURANCE COMPANY OF NEW YORK
By	/s/ John R. Endres
Name:	John R. Endres
Title:	Investment Officer

Note Purchase Agreement (Diamond State Generation Partners, LLC)

This Agreement is hereby accepted and agreed to as of the date hereof.
MODERN WOODMEN OF AMERICA
By	/s/ Michael E. Dau
Name:	Michael E. Dau
Title:	Treasurer & Investment Manager

Note Purchase Agreement (Diamond State Generation Partners, LLC)

DIAMOND STATE GENERATION PARTNERS, LLC

1252 ORLEANS DRIVE

SUNNYVALE, CA 94089

INFORMATION RELATING TO PURCHASERS

NAME AND ADDRESS OF PURCHASER	PRINCIPAL AMOUNT OF NOTES TO BE PURCHASED
MODERN WOODMEN OF AMERICA	$	15,000,000.00

(1) All payments by wire transfer of immediately available funds to:

The Northern Trust Company

50 South LaSalle Street

Chicago, IL 60675

ABA No. [***]

Account Name: Modern Woodmen of America

Account No. [***]

with sufficient information to identify the source and application of such funds.

(2) All notices of payments and written confirmations of such wire transfers:

Modern Woodmen of America

Attn: Investment Accounting Department

1701 First Avenue

Rock Island, IL 61201

Fax: [***]

(3) All other communications:

Modern Woodmen of America

Attn: Investment Department

1701 First Avenue

Rock Island, IL 61201

investments@modern-woodmen.org

Fax: [***]

[***] Confidential Treatment Requested

SCHEDULE A

(to Note Purchase Agreement)

NAME AND ADDRESS OF PURCHASER	PRINCIPAL AMOUNT OF NOTES TO BE PURCHASED
AXA EQUITABLE LIFE INSURANCE COMPANY	$	15,000,000.00

1. All payments by wire transfer of immediately available funds to:

The Chase Manhattan Bank, N.A.

Account (s): AXA Equitable Life Insurance Company

4 Chase Metrotech Center

Brooklyn, New York 11245

ABA No.: 021-000021

Bank Account: [***]

Custody Account: [***]

Face Amount of [***]

with sufficient information to identify the source and application of such funds.

2. All notices of payments and written confirmations of such wire transfers:

AXA Equitable Life Insurance Company

C/O AllianceBernstein LP

1345 Avenue of the America

37^th Floor

New York, New York 10105

Attention: Cosmo Valente Telephone #: [***]

3. All other communications:

AXA Equitable Life Insurance Company

C/O AllianceBernstein LP

1345 Avenue of the Americas, 37th Floor

New York, NY 10105

Attention: Terry McCarthy

AllianceBernstein LP

Telephone #: [***]

[***] Confidential Treatment Requested

SCHEDULE A

(to Note Purchase Agreement)

NAME AND ADDRESS OF PURCHASER	PRINCIPAL AMOUNT OF NOTES TO BE PURCHASED
AXA EQUITABLE LIFE INSURANCE COMPANY	$	20,000,000.00

1. All payments by wire transfer of immediately available funds to:

The Chase Manhattan Bank, N.A.

Account (s): AXA Equitable Life Insurance Company

4 Chase Metrotech Center

Brooklyn, New York 11245

ABA No.: 021-000021

Bank Account: [***]

Custody Account: [***]

Face Amount of [***]

with sufficient information to identify the source and application of such funds.

2. All notices of payments and written confirmations of such wire transfers:

AXA Equitable Life Insurance Company

C/O AllianceBernstein LP

1345 Avenue of the America

37^th Floor

New York, New York 10105 Attention: Cosmo Valente Telephone #: [***]

3. All other communications:

AXA Equitable Life Insurance Company

C/O AllianceBernstein LP 1345 Avenue

of the Americas, 37th Floor New York,

NY 10105

Attention: Terry McCarthy

AllianceBernstein LP

Telephone #: [***]

[***] Confidential Treatment Requested

SCHEDULE A

(to Note Purchase Agreement)

NAME AND ADDRESS OF PURCHASER	PRINCIPAL AMOUNT OF NOTES TO BE PURCHASED
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA	$	35,000,000.00

1. All payments by wire transfer of immediately available funds through the Automated Clearing House System to:

JPMorgan Chase Bank, N.A.

ABA # 021-000-021

Account Number: [***]

Account Name: [***]

For Further Credit to the Account Number: [***]

Reference: [***]

Maturity Date: March 30, 2025/Interest Rate: 5.22% P&I Breakdown

with sufficient information to identify the source and application of such funds.

2. All notices of payments and written confirmations of such wire transfers:

Teachers Insurance and Annuity Association of America

730 Third Avenue

New York, New York 10017

Attention: Securities Accounting Division

Phone: [***]

Email: [***]

With a copy to:

JPMorgan Chase Bank, N.A.

P.O. Box 35308

Newark, New Jersey 07101

And to:

Teachers Insurance and Annuity Association of America

8500 Andrew Carnegie Boulevard

Charlotte, North Carolina 28262

Attention: Global Private Markets

Telephone:	[***] [***]
Facsimile:	[***]
Email:	[***]

[***] Confidential Treatment Requested

SCHEDULE A

(to Note Purchase Agreement)

3. All other communications:

Teachers Insurance and Annuity Association of America

8500 Andrew Carnegie Boulevard

Charlotte, North Carolina 28262

Attention: Global Private Markets

Telephone:	[***] [***]
Facsimile:	[***]
Email:	[***]

[***] Confidential Treatment Requested

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NAME AND ADDRESS OF PURCHASER	PRINCIPAL AMOUNT OF NOTES TO BE PURCHASED
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY	$	32,200,000.00

1. All payments by wire transfer of immediately available funds to:

MassMutual Co-Owned Account

Citibank

New York, New York

ABA # [***]

Acct # [***]

RE: Description of security, cusip, principal and interest split

with sufficient information to identify the source and application of such funds.

2. All notices of payments and written confirmations of such wire transfers:

Massachusetts Mutual Life Insurance Company

1295 State Street

Springfield, MA 01111

Attn: [***]

With a copy to:

Massachusetts Mutual Life Insurance

c/o Babson Capital Management LLC

1500 Main Street – Suite 2200

Springfield, MA 01115

Attn: Securities Investment Division

With email notification to:

1. [***]

2. [***]

3. [***]

3. All other communications:

Massachusetts Mutual Life Insurance Company

c/o Babson Capital Management LLC

1500 Main Street – Suite 2200

PO Box 15189

Springfield, MA 01115-5189

Attn: Securities Investment Division

[***] Confidential Treatment Requested

SCHEDULE A

(to Note Purchase Agreement)

With email notification to:

1. [***]

2. [***]

3. [***]

[***] Confidential Treatment Requested

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NAME AND ADDRESS OF PURCHASER	PRINCIPAL AMOUNT OF NOTES TO BE PURCHASED
C.M. LIFE INSURANCE COMPANY	$	3,500,000.00

1. All payments by wire transfer of immediately available funds to:

MassMutual Co-Owned Account

Citibank

New York, New York

ABA # [***]

Acct # [***]

RE: Description of security, cusip, principal and interest split

with sufficient information to identify the source and application of such funds.

2. All notices of payments and written confirmations of such wire transfers:

C. M. Life Insurance Company

c/o Massachusetts Mutual Life Insurance Company

1295 State Street

Springfield, MA 01111

Attn: [**]

With a copy to:

C. M. Life Insurance Company

c/o Babson Capital Management LLC

1500 Main Street – Suite 2200

Springfield, MA 01115

Attn: Securities Investment Division

With email notification to:

1. [***]

2. [***]

3. [***]

3. All other communications:

C. M. Life Insurance Company

c/o Babson Capital Management LLC

1500 Main Street – Suite 2200

PO Box 15189

Springfield, MA 01115-5189

Attn: Securities Investment Division

[***] Confidential Treatment Requested

SCHEDULE A

(to Note Purchase Agreement)

With email notification to:

1. [***]

2. [***]

3. [***]

[***] Confidential Treatment Requested

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NAME AND ADDRESS OF PURCHASER	PRINCIPAL AMOUNT OF NOTES TO BE PURCHASED
MASSMUTUAL ASIA LIMITED	$	4,300,000.00

1. All payments by wire transfer of immediately available funds to:

Gerlach & Co.

c/o Citibank, N.A.

ABA # [***]

Concentration Acct # [***]

Attn: [***]

FFC: [***]

Name of Security/CUSIP Number

with sufficient information to identify the source and application of such funds.

2. All notices of payments and written confirmations of such wire transfers:

MassMutual Asia Limited

c/o Massachusetts Mutual Life Insurance Company

1295 State Street

Springfield, MA 01111

Attn: [***]

With a copy to:

MassMutual Asia Limited

c/o Babson Capital Management LLC

1500 Main Street – Suite 2200

Springfield, MA 01115

Attn: Securities Investment Division

With email notification to:

1. [***]

2. [***]

3. [***]

3. All other communications:

MassMutual Asia Limited

c/o Babson Capital Management LLC

1500 Main Street – Suite 2200

PO Box 15189

Springfield, MA 01115-5189

Attn: Securities Investment Division

[***] Confidential Treatment Requested

SCHEDULE A

(to Note Purchase Agreement)

With email notification to:

1. [***]

2. [***]

3. [***]

[***] Confidential Treatment Requested

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NAME AND ADDRESS OF PURCHASER	PRINCIPAL AMOUNT OF NOTES TO BE PURCHASED
GENWORTH LIFE AND ANNUITY INSURANCE COMPANY	$	5,000,000.00

1. All payments by wire transfer of immediately available funds to:

The Bank of New York

ABA #: 021000018

Account #: [***]

SWIFT Code: [***]

Acct Name: Private Placement Income Collection Account

Attn: PP P&I Department

Reference: GLAIC / LA_TLC

CUSIP/PPN & Security Description, and Identify Principal & Interest Amounts

Face Amount of $5,000,000.00

And By Email: [***]

Fax: [***]

with sufficient information to identify the source and application of such funds.

2. All notices of payments and written confirmations of such wire transfers:

Genworth Financial, Inc.

Account: Genworth Life and Annuity Insurance Company

3001 Summer Street

Stamford, CT 06905

Attn: Trade Operations

Telephone No: [***]

Fax No: [***]

[***]

and

The Bank of New York

Income Collection Department

P.O. Box 19266

Newark, NJ 07195

Attn: PP P&I Department

Ref: GLAIC, CUSIP/PPN & Security Description

P&I Contact: [***]

[***] Confidential Treatment Requested

SCHEDULE A

(to Note Purchase Agreement)

3. All other communications:

Genworth Financial, Inc.

Account: Genworth Life and Annuity Insurance Company

3001 Summer Street, 2^nd Floor

Stamford, CT 06905

Attn: Private Placements

Telephone No: [***]

Fax No: [***]

[***]

[***] Confidential Treatment Requested

-80-

NAME AND ADDRESS OF PURCHASER	PRINCIPAL AMOUNT OF NOTES TO BE PURCHASED
GENWORTH LIFE AND ANNUITY INSURANCE COMPANY	$	5,000,000.00

1. All payments by wire transfer of immediately available funds to:

The Bank of New York

ABA #: [***]

Account #: [***]

SWIFT Code: [***]

Acct Name: Private Placement Income Collection Account

Attn: PP P&I Department

Reference: GLAIC / LATERMUL

CUSIP/PPN & Security Description, and Identify Principal & Interest Amounts

Face Amount of $5,000,000.00

And By Email: [***]

Fax: [***]

with sufficient information to identify the source and application of such funds.

2. All notices of payments and written confirmations of such wire transfers:

Genworth Financial, Inc.

Account: Genworth Life and Annuity Insurance Company

3001 Summer Street

Stamford, CT 06905

Attn: Trade Operations

Telephone No: [***]

Fax No: [***]

[***]

and

The Bank of New York

Income Collection Department

P.O. Box 19266

Newark, NJ 07195

Attn: [***]

Ref: [***] : [***]

[***] Confidential Treatment Requested

SCHEDULE A

(to Note Purchase Agreement)

3. All other communications:

Genworth Financial, Inc.

Account: Genworth Life and Annuity Insurance Company

3001 Summer Street, 2^nd Floor

Stamford, CT 06905

Attn: Private Placements

Telephone No: [***]

Fax No: [***]

[***]

[***] Confidential Treatment Requested

-82-

NAME AND ADDRESS OF PURCHASER	PRINCIPAL AMOUNT OF NOTES TO BE PURCHASED
GENWORTH LIFE AND ANNUITY INSURANCE COMPANY	$	5,000,000.00

1. All payments by wire transfer of immediately available funds to:

The Bank of New York

ABA #: [***]

Account #: [***]

SWIFT Code: [***]

Acct Name: Private Placement Income Collection Account

Attn: PP P&I Department

Reference: GLAIC / LASPIA

CUSIP/PPN & Security Description, and Identify Principal & Interest Amounts

Face Amount of $5,000,000.00

And By Email: [***]

Fax: [***]

with sufficient information to identify the source and application of such funds.

2. All notices of payments and written confirmations of such wire transfers:

Genworth Financial, Inc.

Account: Genworth Life and Annuity Insurance Company

3001 Summer Street

Stamford, CT 06905

Attn: Trade Operations

Telephone No: [***]

Fax No: [***]

[***]

and

The Bank of New York

Income Collection Department

P.O. Box 19266

Newark, NJ 07195

Attn: PP P&I Department

Ref: GLAIC, CUSIP/PPN & Security Description

P&I Contact: [***]

[***] Confidential Treatment Requested

SCHEDULE A

(to Note Purchase Agreement)

3. All other communications:

Genworth Financial, Inc.

Account: Genworth Life and Annuity Insurance Company

3001 Summer Street, 2^nd Floor

Stamford, CT 06905

Attn: [***]

Telephone No: [***]

Fax No: [***]

[***]

[***] Confidential Treatment Requested

-84-

NAME AND ADDRESS OF PURCHASER	PRINCIPAL AMOUNT OF NOTES TO BE PURCHASED
GENWORTH LIFE INSURANCE COMPANY OF NEW YORK	$	4,812,500.00

1. All payments by wire transfer of immediately available funds to:

The Bank of New York

ABA #: 021000018

Account #: [***]

SWIFT Code: [***]

Acct Name: [***]

Attn: [***]

Reference: [***]

CUSIP/PPN & Security Description, and Identify Principal & Interest Amounts

Face Amount of $5,000,000.00

And By Email: [***]

Fax: [***]

with sufficient information to identify the source and application of such funds.

2. All notices of payments and written confirmations of such wire transfers:

Genworth Financial, Inc.

Account: Genworth Life Insurance Company of New York

3001 Summer Street

Stamford, CT 06905

Attn: [***]

Telephone No: [***]

Fax No: [***]

[***]

and

The Bank of New York

Income Collection Department

P.O. Box 19266

Newark, NJ 07195

Attn: [***]

Ref: [***]

P&I Contact: [***]

[***] Confidential Treatment Requested

SCHEDULE A

(to Note Purchase Agreement)

3. All other communications:

Genworth Financial, Inc.

Account: Genworth Life Insurance Company of New York

3001 Summer Street, 2^nd Floor

Stamford, CT 06905

Attn: [***]

Telephone No: [***]

Fax No: [***]

[***]

[***] Confidential Treatment Requested

-86-

DEFINED TERMS

As used herein, the following terms have the respective meanings set forth below or set forth in the Section hereof following such term:

“Accounts” means the Construction Escrow Account, the Revenue Account, the Operating Account, the Distribution Suspense Account, the IDC Reserve Account, Debt Service Reserve Account, the Loss Proceeds Account, the Note Redemption Account and each cash collateral account referred to in the Credit Documents (other than the Cash Grant Account and System Refund Account), including any sub-accounts within such accounts.

“Additional Project Documents” means any material contracts or agreements related to the construction, testing, maintenance, repair, operation or use of the Project entered into by Company and any other Person, or assigned to Company, subsequent to the Closing Date; provided that any such contracts and agreements providing for the payment by or to Company of less than [***] or the provision to Company of less than [***] per annum individually in value of goods or services, shall be deemed not to constitute an Additional Project Document.

“Administrative Services Agreement” means the Administrative Services Agreement dated as of April 13, 2012 among Company, Pledgor and the Administrative Services Provider, as amended by the Omnibus Amendment.

“Administrative Services Provider” means Sponsor.

“Adverse PUHCA Event” means (i) loss of Exempt Wholesale Generator status for the Company or loss of Eligible Facility status for the Project, (ii) the Company shall have tendered notice to FERC that the Company has ceased to be an Exempt Wholesale Generator, (iii) FERC shall have issued an order determining that the Company no longer meets the criteria of an Exempt Wholesale Generator or takes other action revoking such Exempt Wholesale Generator status or (iv) the Company otherwise becoming subject to regulation under PUHCA.

“Affiliate” of a specified Person means any other Person that (a) directly, or indirectly through one or more intermediaries, Controls, is Controlled by or is under common Control with such Person, or (b) only with respect to matters relating to PUHCA, (i) is an “affiliate” as defined in Section 1262(1) of PUHCA or (ii) directly or indirectly owns, Controls or holds with power to vote, 5% or more of the outstanding voting securities of such Person. When used with respect to Company, “Affiliate” shall include Pledgor and any Affiliate thereof (other than Company).

“Agreement” means this Agreement as it may be amended or supplemented from time to time.

“ALTA” means American Land Title Association.

“Amortization Schedule” means the schedule showing the amortization of the Notes from the Closing Date to the Maturity Date, attached hereto as Schedule 8.1.

“Annual Operating Budget” is defined in Section 9.14(b).

“Anti-Money Laundering Laws” is defined in Section 5.16(c).

[***] Confidential Treatment Requested

SCHEDULE B

(to Note Purchase Agreement)

“Applicable Permit” means, at any time, any Permit (a) that is necessary under applicable Legal Requirements or any of the Operative Documents to have been obtained by or on behalf of the Company at such time in light of the stage of development, construction or operation of the Project to construct, test, operate, maintain, repair, lease, own or use the Project as contemplated by the Operative Documents, to sell electricity from the Project or deliver fuel to the Project, or for the Company to enter into any Operative Document or to consummate any transaction contemplated thereby, in each case in accordance with all applicable Legal Requirements, or (b) that is necessary so that none of the Company or any Secured Party nor any Affiliate of any of them may be deemed by any Governmental Authority to be subject to regulation under the FPA or PUHCA (except as provided in Section 5.24) or treated as a public utility under the Constitution and the laws of the State of Delaware as presently constituted and as construed by the courts of the State of Delaware with respect to the regulation of the rates of, or the financial or organizational regulation of, electric utilities as a result of the development and construction or operation of the Project or the sale of electricity therefrom. The Tariff and the Gas Tariff are always Applicable Permits.

“Applicable Third Party Permit” means, at any time, any Permit that is necessary to have been obtained by such time in light of the stage of development, construction or operation of the Project by any Person (other than the Company) that is a party to a Major Project Document or a Credit Document in order to perform such Person’s obligations thereunder (other than Permits necessary to conduct its business generally and maintain its existence and good standing), or in order to consummate any transaction contemplated thereby, in each case in accordance with all applicable Legal Requirements.

“Available Funds” means, at any time and without duplication, the aggregate committed amount of all sources of capital available to the Company by way of (a) amounts in the Construction Escrow Account, (b) undisbursed Insurance Proceeds or Eminent Domain Proceeds which are available for payment of Project Costs, (c) any Project Revenues which are available for payment of Project Costs and (d) to the extent not all committed equity has been invested in the Project and there are equity investment undertakings in place and the Holders reasonably have no reason to believe that the amounts committed to be invested thereunder will not be invested, the remainder of the commitments thereunder.

“Bankruptcy Event” shall be deemed to occur, with respect to any Person, if (a) that Person shall commence any case, proceeding or other voluntary action seeking to have an order for relief entered with respect to it, or seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, arrangement, adjustment, winding-up, reorganization, dissolution, composition under any applicable Debtor Relief Law or other relief with respect to it or its debts; (b) such Person shall apply for, or consent or acquiesce to, the appointment of, a receiver, administrator, administrative receiver, liquidator, sequestrator, trustee or other official with similar powers for itself or any substantial part of its assets; (c) such Person shall make a general assignment for the benefit of its creditors; (d) an involuntary case shall be commenced seeking liquidation or reorganization of such Person under any applicable Debtor Relief Law, or seeking issuance of a warrant of attachment, execution or distraint, or any similar proceedings shall be commenced against such Person under any other applicable law and (i) such Person consents to the institution of the involuntary case against it, (ii) the petition commencing the involuntary case is not timely controverted, (iii) the petition commencing the involuntary case is not dismissed within 45 days

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of its filing, (iv) an interim trustee is appointed to take possession of all or a portion of the property, and/or to operate all or any part of the business of such Person and such appointment is not vacated within 45 days, or (v) an order for relief shall have been issued or entered therein; or (e) a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, administrator, administrative receiver, liquidator, sequestrator, trustee or other official having similar powers, over such Person or all or a part of its property shall have been entered; or (f) any other similar relief shall be granted against such Person under any applicable Debtor Relief Law, or such Person shall file a petition or consent or shall otherwise institute any similar proceeding under any other applicable law, or shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in any of the acts set forth above in this definition; or (g) such Person shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due.

“Base Case Projections” means a projection of operating results showing at a minimum Company’s good faith estimates, as of the Closing Date, of revenues, operating expenses and sources and uses over the forecast period, in substantially the form of Schedule 4.1.27, which shall be of a nature and in an amount satisfactory to the Purchasers in consultation with Independent Engineer.

“Blocked Person” is defined in Section 5.16(a).

“Brookside Lease” means the Lease Agreement, dated as of April 19, 2012, between the Company and the Delaware Department of Transportation, an agency of the State of Delaware, relating to property located at 512 East Chestnut Hill Road, Newark, DE 19713, as amended from time to time.

“Brookside Site” means the real property which is the subject of the Brookside Lease.

“Business Day” means any day other than a Saturday, a Sunday or a day on which commercial banks in New York City or the State of California are required or authorized to be closed.

“Buydown Amount” is defined in Section 9.20.

“Capital Expenditures” mean expenditures made by the Company to acquire or construct fixed assets, plant and equipment which, in accordance with GAAP, are or should be included in “purchase of property and equipment” or similar items reflected in the statement of cash flows of the Company (including renewals, improvements and replacements thereto, but, notwithstanding the foregoing, excluding any such expenditures that are paid out of Loss Proceeds).

“Capital Lease” means, at any time, a lease with respect to which the lessee is required concurrently to recognize the acquisition of an asset and the incurrence of a liability in accordance with GAAP.

“Cash Grant” means a grant under Section 1603 of division B of the American Recovery and Reinvestment Act of 2009, as amended, with respect to the Project.

“Cash Grant Account” means the account established in the name of Pledgor pursuant to the Control Agreement, dated as of April 13, 2012, by and among the Pledgor, the Managing

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Member, Mehetia Inc. and The Bank of New York Mellon, into which the Cash Grant proceeds will be deposited, provided that such account shall not be an “Account” under the Depositary Agreement.

“Cash Grant Guidance” means the guidance issued on July 9, 2009 (as revised), by the U.S. Treasury Department for payments for specified energy property in lieu of tax credits under Section 1603 of the American Recovery and Reinvestment Act of 2009 (P.L. 111-5), as amended, and any clarification, amendment addition or supplement thereto, and any other guidance (including in the form of frequently asked questions and answers), instructions or terms and conditions published or issued by the U.S. Treasury Department or any other Governmental Authority.

“Change of Control” means (a) before the Final Completion Date, the Sponsor ceases to indirectly own and control 100% of the economic and voting interest in the Company (excluding any interests held by the Tax Equity Investors) or (b) after the Final Completion Date, the Sponsor ceases to indirectly own and control 50.1% of the economic and voting interest in the Company (excluding any interests held by the Tax Equity Investors).

“Closing” is defined in Article 3.

“Closing Date” is defined in Section 4.1.

“COD” for a System means “Commencement of Operations” of such System, as such term is defined in the MESPA.

“Code” means the Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations promulgated thereunder from time to time.

“Collateral” means all property which is subject or is intended to become subject to the security interests or liens granted by any of the Collateral Documents.

“Collateral Agency Agreement” means the Collateral Agency Agreement, dated as of the Closing Date, in form and substance satisfactory to the Purchasers, between the Purchasers and the Collateral Agent.

“Collateral Agent” means Deutsche Bank Trust Company Americas, acting in its capacity as collateral agent for the Secured Parties under the Credit Documents.

“Collateral Documents” means the Mortgage, the Pledge Agreement, the Security Agreement, the Collateral Agency Agreement, each Direct Agreement, the Interparty Agreement and any fixture filings, financing statements, or other similar documents filed, recorded or delivered in connection with the foregoing.

“Company” means Diamond State Generation Partners, LLC, a Delaware limited liability company.

“Company’s COD Certificate” means a certificate delivered to the Holders, substantially in the form of Exhibit 4.2.1(c).

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“Confidential Information” is defined in Article 20.

“Construction Escrow Account” is defined in Section 2.1 of the Depositary Agreement.

“Construction Services Agreement” means the Interconnection Service Agreement among PJM, the Company and DPL effective as of June 19, 2012.

“Contingent Obligation” means, as to any Person, any obligation, agreement, understanding or arrangement (including purchase or repurchase agreements, reimbursement agreements with respect to letters of credit or acceptances, indemnity arrangements, grants of collateral to support the obligations of another Person, keep-well agreements and take-or-pay or through-put arrangements) of such Person guaranteeing or intended to guarantee any indebtedness, leases, dividends or other obligations of any other Person in any manner, whether directly or indirectly; provided, that the term “Contingent Obligation” shall not include endorsements of instruments for deposit or collection in the ordinary course of business.

“Control” means the possession, directly or indirectly (either alone or pursuant to an arrangement or understanding with one or more other Persons), of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and the terms “Controlling” and “Controlled” shall have meanings correlative thereto.

“Controlled Entity” means any of the Subsidiaries of the Company and any Affiliate of the Company or Subsidiary of the Company that in each case is Controlled by the Company or a Subsidiary of the Company.

“Credit Documents” means this Agreement, any Notes, the Depositary Agreement, the Equity Contribution Agreement, the Collateral Documents, the Recapture Indemnities and Guarantees, and any other security agreements or letter agreement or similar document, and any amendment to the foregoing or consent or waiver given under the foregoing, entered into by any Secured Party, on the one hand, and the Company or one or more Affiliates of the Company, on the other hand, in connection with the transactions contemplated by the Credit Documents.

“Credit Event” means each of the Closing Date, each Drawdown and the Final Completion Date.

“Credit Parties” means the Company, Pledgor, Managing Member and Sponsor.

“CS Guaranty” means the Guaranty, dated as of April 13, 2012, as amended by the First Amendment to Guarantee, dated as of March 20, 2013 and issued by Credit Suisse (USA), Inc. in favor of the Company and the Collateral Agent.

“Date Certain” means June 30, 2014.

“Debt” of any Person means, without duplication, (a) all obligations (including contingent obligations) of such Person for borrowed money, (b) all obligations of such Person evidenced by

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bonds, debentures, notes or other similar instruments, (c) all obligations of such Person to pay the deferred purchase price of property or services, except trade accounts payable and other accrued expenses arising in the ordinary course of business which in accordance with GAAP would not be shown on the liability side of the balance sheet of such Person, (d) all obligations of such Person under leases which are or should be, in accordance with GAAP, recorded as capital leases in respect of which such Person is liable, (e) all obligations of such Person to purchase securities (or other property) which arise out of or in connection with the sale of the same or substantially similar securities (or property), (f) all deferred obligations of such Person to reimburse any bank or other Person in respect of amounts paid or advanced under a letter of credit or other instrument, (g) all obligations, contingent or otherwise, of such Person in respect of acceptances, letters of credit or similar extensions of credit, (h) all Debt (as described in the preceding clauses) of others secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) any Lien on any asset of such Person, whether or not such Debt is assumed by such Person and (i) all Debt (as described in the preceding clauses) of others guaranteed directly or indirectly by such Person or as to which such Person has an obligation which is substantially the economic equivalent of a guaranty.

“Debt Service” means, for the Company and for any period, all obligations for principal and interest payments and any fees, expenses and other charges, including fees and agent fees, due and payable in respect of all Debt for borrowed money in such period.

“Debt Service Reserve Account” is defined in Section 2.1 of the Depositary Agreement.

“Debt Service Reserve Requirement” means, with respect to any date and the Notes, an amount equal to the sum of (x) the greatest six (6) months of Debt Service under the Notes and (y) 90-days of RECs valued at $45 per REC, provided that the Debt Service Reserve Requirement shall never exceed the outstanding principal and interest to maturity of the Notes.

“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.

“Default” means an event or condition the occurrence or existence of which would, with the lapse of time or the giving of notice or both, become an Event of Default.

“Default Rate” means, with respect to any obligation payable under the Credit Documents, for any applicable period of time, the interest rate per annum equal to 2.00% above the interest rate otherwise applicable to such obligation for such period.

“Depositary” means Deutsche Bank Trust Company Americas, not in its individual capacity but solely as depositary agent, bank and securities intermediary under the Depositary Agreement.

“Depositary Agreement” means the Depositary Agreement, dated as of the Closing Date, among the Company, Collateral Agent and Depositary.

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“Direct Agreements” means the consents specified on Schedule 4.30.1 and any other third party consents to the assignments contemplated by the Credit Documents, in the form set forth in Exhibit 4.30.1.

“Disclosure Documents” is defined in Section 5.3.

“Disqualified Person” means (a) any Federal, State or local government (or any political subdivision, agency or instrumentality thereof); (b) any organization described in Section 501(c) of the Code and exempt from tax under Section 501(a) of the Code; (c) any entity referenced in Section 54(j)(4) of the Code; (d) any foreign person or entity as defined in Section 168(h)(2)(C) of the Code unless the exception under Section 168(h)(2)(B) of the Code applies with respect to the income from the Company for that Person; (e) any person described in Section 50(d)(1), including a real estate investment trust, as defined in Section 856(a) of the Code; and (f) any partnership or other pass-through entity (including a single member disregarded entity) any direct or indirect partner (or other direct or indirect holder of an equity or profits interest) of which is described in clauses (a)–(e) unless such person holds its interest in the partnership or other pass-through entity indirectly through a taxable “C” corporation; provided that, if and to the extent the definition of “Disqualified Person” under Section 1603 of the American Recovery and Reinvestment Act of 2009, as amended, is amended or supplemented after the Closing Date, the definition of “Disqualified Person” shall be interpreted to conform to such amendment or supplement and any Treasury guidance with respect thereto.

“Distribution Conditions” is defined in Section 10.10.

“Distribution Suspense Account” is defined in Section 2.1 of the Depositary Agreement.

“Dollars” and “$” means United States dollars or such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts in the United States of America.

“DPL” means Delmarva Power & Light Company, a Delaware and Virginia corporation.

“DPSC” means the Delaware Public Service Commission.

“Drawdown” means a disbursement of funds from the Construction Escrow Account in accordance with the terms of Section 3.2.2 of the Depositary Agreement.

“Drawdown Certificate” means a certificate delivered to the Holders substantially in the form of Exhibit 4.2.1(a).

“DSCR” means, for any period, the ratio of (a) Operating Cash Available for Debt Service for such period to (b) Debt Service for such period.

“Easements” shall have the meaning given in the granting clause of the applicable Mortgage.

“Efficiency Bank” is defined in the MESPA.

“Eligible Facility” means an “eligible facility” within the meaning of PUHCA.

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“Eminent Domain Proceeds” is defined in Section 1.1 of the Depositary Agreement.

“Energy” is defined in the Tariff.

“Environmental Consultant” means Terracon Consultants, Inc., or its successor appointed by the Required Holders and, for so long as no Event of Default or Default has occurred and is continuing, the Company.

“Environmental Laws” means any and all current or future federal, state, local and foreign statutes, laws, including common law, regulations or ordinances, rules, judgments, orders, decrees, permits licenses or restrictions imposed by a Governmental Authority relating to pollution or protection of the environment or natural resources and protection of human health, including but not limited to the National Environmental Policy Act, 42 U.S.C. Section 4321 et seq.; Federal Endangered Species Act, 16 U.S.C. Section 1551 et seq.; the Migratory Bird Treaty Act of 1918, 16 U.S.C. Section 703 et seq.; Bald and Golden Eagle Protection Act, 16 U.S.C. Section 668; and shall include all Hazardous Substances Laws.

“Environmental Reports” means, collectively, (a) the Phase 1 Environmental Site Assessment, Proposed Fuel Cell Facility (Red Lion Site) of Terracon Consultants, Inc. dated March 13, 2013 and (b) the Phase 1 Environmental Site Assessment, Proposed Fuel Cell Facility (Brookside Site) of Terracon Consultants, Inc., dated March 13, 2013.

“Equity Contribution Agreement” means the Equity Contribution Agreement, dated as of the Closing Date, among the Company, the Sponsor and the Collateral Agent.

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

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

“Event of Default” is defined in Article 11.

“Event of Eminent Domain” means any compulsory transfer or taking by condemnation, eminent domain or exercise of a similar power, or transfer under threat of such compulsory transfer or taking, of any part of the Collateral, by any agency, department, authority, commission, board, instrumentality or political subdivision of the State of Delaware, the United States or another Governmental Authority having jurisdiction.

“Exempt Wholesale Generator” means an “exempt wholesale generator” within the meaning of PUHCA and FERC’s regulations implementing PUHCA.

“Existing Financing Agreement” means the Credit Agreement, dated as of March 22, 2012, among the Company, the lenders party thereto and The Royal Bank of Scotland PLC as administrative agent and collateral agent.

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“Existing Systems” means 8.8 MW of Systems manufactured and installed by Sponsor at the Sites pursuant to the MESPA which are operating as of the Closing Date.

“Federal Reserve Board” means the Board of Governors of the Federal Reserve System.

“FERC” means the Federal Energy Regulatory Commission and its successors.

“Final Completion” means the date upon which conditions set forth in Sections 4.3 and 4.4 have been satisfied or waived in writing by the Required Holders.

“Final Completion Date” means the date upon which Final Completion is achieved.

“Final Completion Date Distribution” means a distribution in an amount up to the amounts remaining on deposit in the Construction Escrow Account and the IDC Reserve Account, in the aggregate, following the occurrence of the Final Completion Date, to be made to the Pledgor by the Company on or after the Final Completion Date.

“FIRREA” means the Federal Institutions Reform, Recovery and Enforcement Act of 1989.

“Forced Outage Event” is defined in the Tariff.

“Forced Outage Tariff Structure” is defined in the Base Case Projections.

“FPA” means the Federal Power Act, as amended, and FERC’s implementing regulations related thereto.

“Funded System” means a System with respect to which a payment under the MESPA has been financed or, in the case of the Systems that were in operation on the Closing Date, refinanced with the proceeds of the Notes hereunder.

“GAAP” means generally accepted accounting principles as in effect from time to time in the

United States of America.

“Gas Service Agreements” means, collectively, (i) the Large Volume Gas Qualified Fuel Cell Provider-Renewable Capable Service Agreement, effective as of June 19, 2012, between the Sponsor and DPL (for the Brookside Site), as assigned by Sponsor to the Company pursuant to the Assignment and Assumption Agreement, dated as of March 13, 2013, and (ii) the Large Volume Gas Qualified Fuel Cell Provider-Renewable Capable Service Agreement, effective as of December 12, 2012 between the Company and DPL (for the Red Lion Site).

“Gas Tariff” mean’s DPL’s Service Classification “LVG-QFCP-RC” filed for gas service applicable to REPS Qualified Fuel Cell Provider Projects and approved by the DPSC in Order No. 8062 dated October 18, 2011, as adopted and supplemented by DPSC’s Findings, Opinion and Order No. 8079, dated December 1, 2011.

“Governing Documents” means, with respect to any Person, the certificate or articles of incorporation, bylaws, operating agreement or other organizational or governing documents of such Person, and, in particular, (a) in the case of any corporation, the certificate of incorporation

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and by-laws (or similar documents) of such Person, (b) in the case of any limited liability company, the certificate of formation and operating agreement (or similar documents) of such Person, (c) in the case of any limited partnership, the certificate of formation and limited partnership agreement (or similar documents) of such Person, (d) in the case of any general partnership, the partnership agreement (or similar document) of such Person and (e) in any other case, the functional equivalent of the foregoing.

“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

“Governmental Rule” means any constitution, code, statute, law, regulation, ordinance, rule, judgment, order, decree, binding directive, treaty or other governmental restriction or any similar form of decision of or determination by, any Governmental Authority.

“Guaranty” means, with respect to any Person, any obligation (except the endorsement in the ordinary course of business of negotiable instruments for deposit or collection) of such Person guaranteeing any indebtedness, dividend or other obligation of any other Person in any manner, whether directly or indirectly, including (without limitation) obligations incurred through an agreement, contingent or otherwise, by such Person:

(a) to purchase such indebtedness or obligation or any property constituting security therefor;

(b) to advance or supply funds (i) for the purchase or payment of such indebtedness or obligation, or (ii) to maintain any working capital or other balance sheet condition or any income statement condition of any other Person or otherwise to advance or make available funds for the purchase or payment of such indebtedness or obligation;

(c) to lease properties or to purchase properties or services primarily for the purpose of assuring the owner of such indebtedness or obligation of the ability of any other Person to make payment of the indebtedness or obligation; or

(d) otherwise to assure the owner of such indebtedness or obligation against loss in respect thereof.

In any computation of the indebtedness or other liabilities of the obligor under any Guaranty, the indebtedness or other obligations that are the subject of such Guaranty shall be assumed to be direct obligations of such obligor.

“Hazardous Substances” means any and all substances or materials defined as “hazardous substances,” “pollutants,” “contaminants,” “hazardous waste,” “hazardous materials,” “regulated substances,” “hazardous chemical substance or mixture,” “imminently hazardous chemical substance or mixture,” toxic substances,” or similar terms, as such terms are designated, regulated classified, listed, or defined under or with respect to which any liability

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may be imposed pursuant to any Hazardous Substances Law, including without limitation any petroleum product (including byproducts or breakdown products of petroleum products), asbestos-containing material, polychlorinated biphenyls or urea formaldehyde foam insulation.

“Hazardous Substances Law” means any of:

(a) the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et seq.);

(b) the Federal Water Pollution Control Act (33 U.S.C. Section 1251 et seq.);

(c) the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.);

(d) the Clean Air Act (42 U.S.C. Section 7401 et seq.);

(e) the Emergency Planning and Community Right to Know Act (42 U.S.C. Section 11001 et seq.);

(f) the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Section 136 et seq.);

(g) the Oil Pollution Act of 1990 (P.L. 101-380, 104 Stat. 486);

(h) the Safe Drinking Water Act (42 U.S.C. Section 300f et seq.);

(i) the Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.);

(j) the Hazardous Materials Transportation Act (49 U.S.C. Section 1801 et seq.);

(k) applicable Delaware statutes related to the release of Hazardous Substances;

(l) Delaware ordinances and regulations related to the release of Hazardous Substances; and

(m) all other federal, state, local and municipal Governmental Rules, any and all Legal Requirements, and any and all common law requirements, rules and bases of liability regulating, relating to, or imposing liability or standards of conduct concerning pollution or protection of human health or the environment or which otherwise govern Hazardous Substances, as are now or may at any time hereafter be in effect, together with the regulations adopted pursuant to all foregoing.

“Holder” means, with respect to any Note, the Person in whose name such Note is registered in the register maintained by the Company pursuant to Section 13.1, provided, however, that if such Person is a nominee, then for the purposes of Articles 7 and 12, Section 17.2 and Article 18 and any related definitions in this Schedule B, “Holder” shall mean the beneficial owner of such Note whose name and address appears in such register.

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“Hot Box Replacement” means the permanent removal and replacement of the rack-mounted assemblies containing the arrays of fuel cell components in a System (which, for example in a Model ES-5700, includes six such assemblies).

“IDC Reserve Account” is defined in Section 2.1 of the Depositary Agreement.

“Improvements” is defined in the Mortgage.

“Independent Consultants” means, collectively, the Insurance Consultant and the Independent Engineer.

“Independent Engineer” means SAIC Energy, Environment & Infrastructure, LLC, or its successor appointed by the Required Holders, and for so long as no Event of Default or Default has occurred and is continuing, the Company.

“Independent Engineer’s COD Certificate” means a certificate delivered to the Holders, substantially in the form of Exhibit 4.2.1(d).

“Independent Engineer’s Drawdown Certificate” means a certificate delivered to the Holders, substantially in the form of Exhibit 4.2.1(b).

“INHAM Exemption” is defined in Section 6.2(e).

“Institutional Investor” means (a) any Purchaser of a Note, (b) any Holder of a Note holding (together with one or more of its affiliates) more than 5% of the aggregate principal amount of the Notes then outstanding, (c) any bank, trust company, savings and loan association or other financial institution, any pension plan, any investment company, any insurance company, any broker or dealer, or any other similar financial institution or entity, regardless of legal form, and (d) any Related Fund of any Holder of any Note.

“Insurance Consultant” means Moore-McNeil LLC, or its successor appointed by the Required Holders, and for so long as no Event of Default or Default has occurred and is continuing, the Company.

“Insurance Proceeds” is defined in Section 1.1 of the Depositary Agreement.

“Interconnection Agreements” mean the (a) Interconnection Service Agreement, dated June 19, 2012, entered into among Company, PJM and DPL with respect to the Red Lion Site, and the (b) the Standard Agreement for Interconnection, dated March 27, 2012, entered into by Company and DPL with respect to the Brookside Site.

“Interparty Agreement” means the Interparty Agreement, dated as of the Closing Date, among Company, Pledgor, Managing Member, Tax Equity Investors and the Collateral Agent.

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“Knowledge” means, with respect to the Company, the actual knowledge of the senior managers of the Company who are charged with direct or indirect responsibility for the Project.

“Leases” means the Red Lion Lease and the Brookside Lease.

“Legal Requirements” means, as to any Person, the Governing Documents of such Person, any requirement under a Permit, and any Governmental Rule in each case applicable to or binding upon such Person or any of its properties or to which such Person or any of its property is subject.

“Lien” means, with respect to any Person, any mortgage, lien, pledge, charge, security interest or other encumbrance, or any interest or title of any vendor, lessor, lender or other secured party to or of such Person under any conditional sale or other title retention agreement or Capital Lease, upon or with respect to any property or asset of such Person (including in the case of stock, stockholder agreements, voting trust agreements and all similar arrangements).

“Loss Event” is defined in Section 1.1 of the Depositary Agreement.

“Loss Proceeds” is defined in Section 1.1 of the Depositary Agreement.

“Loss Proceeds Account” is defined in Section 2.1 of the Depositary Agreement.

“Major Project Documents” means the MESPA, the MOMA, the Interconnection Agreements, each Lease, the Easements, the Service Application, the Administrative Services Agreement, the Gas Service Agreements, the Construction Services Agreement, any guaranty agreements related to the foregoing executed by Persons in favor of Company and, unless otherwise agreed by the Required Holders prior to its execution and delivery, any Additional Project Document.

“Major Project Participants” means, without duplication, the Company, Managing Member, Sponsor, Operator, PJM, Pledgor, DPL, the Administrative Services Provider, any indemnitor under a Recapture Indemnity and Guarantee and any guarantor thereof, the Tax Equity Investors party to the Interparty Agreement, and to the extent not already included in this list, any counterparty to a Major Project Document.

“Make-Whole Amount” is defined in Section 8.6.

“Managing Member” means Clean Technologies II, LLC, a Delaware limited liability company.

“Material” means material in relation to the business, operations, affairs, financial condition, assets, properties, or prospects of the Company taken as a whole.

“Material Adverse Effect” means an event, circumstance, condition or occurrence of whatever nature that materially and adversely affects (a) the business, assets (including the Project), property, prospects, results of operation or financial condition of a Major Project Participant, (b) the Company’s rights to the Project and the Project assets, (c) any Major Project Participant’s ability to perform its obligations under the Operative Documents, (d) the validity or priority of the Secured Parties’ security interests in the Collateral, or (e) the validity or enforceability of any Operative Document (including the ability of the Secured Parties to enforce any of their remedies thereunder).

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“Maturity Date” means March 30, 2025.

“Mehetia” means Mehetia Inc., a Delaware corporation.

“Memorandum” is defined in Section 5.3.

“MESPA” means the Master Energy Server Purchase Agreement between Sponsor and the Company, dated as of April 13, 2012, as amended by the Omnibus Amendment.

“MOMA” means the Master Operations and Maintenance Agreement, between the Company and Operator, dated as of April 13, 2012, as amended by the Omnibus Amendment.

“Mortgage” means the Leasehold Mortgage, Security Agreement, Assignment of Rents, and Financing Statement and Fixture Filing, dated as of the Closing Date, in form and substance satisfactory to the Purchasers, between the Company and Collateral Agent.

“Mortgaged Property” is defined in the granting clause of the Mortgage.

“Multiemployer Plan” means any Plan that is a “multiemployer plan” (as such term is defined in section 4001(a)(3) of ERISA).

“NAIC” means the National Association of Insurance Commissioners or any successor thereto.

“NAIC Annual Statement” is defined in Section 6.2(a).

“Net Available Amount” is defined in Section 1.1 of the Depositary Agreement.

“Note Redemption Account”is defined in Section 2.1 of the Depositary Agreement.

“Notes” is defined in Article 1.

“O&M Costs” means, for any period, cash amounts incurred and paid by the Company for the operation and maintenance of the Project or any portion thereof and for the purchase of goods and services in connection therewith, including (a) premiums for insurance policies, (b) costs of fuel and other consumables, (c) costs of obtaining any other materials, supplies, utilities or services for the Project, (d) costs of maintaining, renewing and amending Permits, (e) franchise, licensing, property, real estate, sales and excise Taxes, (f) general and administrative expenses, (g) employee salaries, wages and other employment-related costs, (h) business management and administrative service fees, (i) costs required to be paid by the Project under any Project Document or Credit Document (other than scheduled Debt Service and Project Costs but including scheduled interest or lease payments in respect of other Permitted Debt) or to satisfy any Legal Requirement or obtain or maintain any Permit, (j) legal, accounting and consulting fees and other transaction costs and all other fees payable to the Holders (other than amounts constituting scheduled Debt Service), (k) necessary Capital Expenditures (other than capital expenditures made in connection with the repair or restoration of any casualty suffered by the

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Project to the extent funded with insurance or similar proceeds applied pursuant to Section 3.7 of the Depositary Agreement or infusions of equity pursuant to the Credit Documents), and (l) all other fees and expenses necessary for the continued operation and maintenance of the Project and the conduct of the business of the Project, but exclusive in all cases of non-cash charges and also exclusive of all interest charges and charges for the payment or amortization of principal of the Notes. O&M Costs shall not include payments for restoration or repair of the Project from the Loss Proceeds Account or income Taxes.

“Obligations” means and includes all loans, advances, debts, liabilities, and obligations, howsoever arising, owed by the Company or the Pledgor (or, if such term is used by reference to any specific Person, by such Person) to any of the Secured Parties of every kind and description (whether or not evidenced by any note or instrument and whether or not for the payment of money), direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, pursuant to the terms of the Credit Documents, including (a) all principal, interest, Make-Whole Amount, fees, charges, expenses, attorneys’ fees and accountants fees, repayment obligations, prepayment obligations, and reimbursement obligations payable by the Company or the Pledgor thereunder, (b) the due and punctual performance of all covenants, agreements, obligations and liabilities of the Company or the Pledgor to the Secured Parties under or pursuant to the Credit Documents, (c) any and all sums advanced by any of the Secured Parties to preserve the Collateral or preserve or perfect Liens in the Collateral, and (d) in the event of any proceeding for the collection or enforcement described herein, after an Event of Default has occurred and is continuing and unwaived in accordance with the provisions hereof, the expenses of retaking, holding, preparing for sale or lease, selling or otherwise disposing of or realizing on the Collateral, or of any exercise by Collateral Agent, on behalf of the Secured Parties, of its rights under the Collateral Documents, together with reasonable attorney’s fees and court costs.

“OFAC” is defined in Section 5.16(a).

“OFAC Listed Person” is defined in Section 5.16(a).

“OFAC Sanctions Program” means any economic or trade sanction that OFAC is responsible for administering and enforcing. A list of OFAC Sanctions Programs may be found at http://www.ustreas.gov/offices/enforcement/ofac/programs/.

“Offer Settlement Date” is defined in Section 8.1.3(b).

“Offer to Repay” is defined in Section 8.1.3(b).

“Offer to Repay Notice” is defined in Section 8.1.3(b).

“Omnibus Amendment” means the Omnibus First Amendment to MESPA, MOMA and ASA, dated as of March 20, 2013, entered into among the Company, the Sponsor and Pledgor.

“Operating Account” is defined in Section 2.1 of the Depositary Agreement.

“Operating Budget Category” means (a) individually, any line item category set forth in that portion of the then-current Annual Operating Budget showing sources and uses of Project funds, and (b) collectively, all line item categories set forth in that portion of the then-current Annual Operating Budget showing sources and uses of Project funds.

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“Operating Cash Available for Debt Service” means, for any period, Project Revenues during such period minus O&M Costs during such period.

“Operative Documents” means, collectively, the Credit Documents and the Project Documents.

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

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

“Performance Tests” means any tests under the MESPA to demonstrate COD.

“Permit” means any approval, consent, waiver, exemption, variance, franchise, order, permit, authorization, right or license of or from a Governmental Authority.

“Permitted Debt” means (a) Debt incurred under the Credit Documents, (b) Debt pursuant to the terms of a Project Document (but not for borrowed money), either not more than 90 days past due or being contested in good faith, (c) trade or other similar Debt incurred in the ordinary course of business (but not for borrowed money), either not more than 90 days past due or being contested in good faith, (d) the following contingent liabilities, to the extent otherwise constituting Debt: (i) the acquisition of goods, supplies or merchandise in the normal course of business or normal trade credit, (ii) the endorsement of negotiable instruments received in the normal course of its business, and (iii) contingent liabilities incurred with respect to any Applicable Permit or Operative Document, (e) purchase money obligations incurred to finance the purchase price of discrete items of equipment not comprising an integral part of the Project that extend only to the equipment being financed in an aggregate amount of secured principal and capital lease obligations not exceeding $100,000 at any one time outstanding, and (f) obligations in respect of surety bonds or similar instruments in an aggregate amount not exceeding $100,000 at any one time outstanding.

“Permitted Distribution” means a distribution in an amount not to exceed $100,000 to be made to the Pledgor by the Company as of the Closing Date, subject to the satisfaction of the relevant conditions precedent under Section 4.1.

“Permitted Investments” is defined in the Depositary Agreement.

“Permitted Liens” means (a) the rights and interests of any Secured Party as provided in the Credit Documents; (b) statutory Liens for any current Tax, assessment or other governmental charge not yet due and payable, and Liens for Taxes, assessments or governmental charges being contested in accordance with the requirements of Section 9.4; (c) materialmen’s, mechanics’, workers’, repairmen’s, employees’ or other like Liens, arising in the ordinary course of business or in connection with the construction, operation or maintenance of the Project, either for amounts not yet due or for amounts being contested in good faith and by appropriate proceedings, so long as (i) such proceedings shall not involve any substantial danger of the sale, forfeiture or loss of the Project, either Site or any Easements, as the case may be, title thereto or

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any interest therein and shall not interfere in any material respect with the use or disposition of the Project, either Site or any Easements, (ii) a bond or other security reasonably acceptable to the Holders has been posted or provided in such manner and amount as to assure the Holders that any amounts determined to be due will be promptly paid in full when such contest is determined, or (iii) adequate cash reserves have been provided therefor; (d) Liens arising out of judgments or awards so long as an appeal or proceeding for review is being prosecuted in good faith and for the payment of which adequate reserves, bonds or other security reasonably acceptable to the Holders have been provided or are fully covered by insurance; (e) the Title Exceptions; (f) Liens, deposits or pledges to secure statutory obligations or performance of bids, tenders, contracts (other than for the repayment of borrowed money) or leases, or for purposes of like general nature in the ordinary course of its business, not to exceed $500,000 in the aggregate at any time, and with any such Lien to be released as promptly as practicable; (g) other Liens incident to the ordinary course of business that are not incurred in connection with the obtaining of any loan, advance or credit and that do not in the aggregate materially impair the use of the property or assets of Company or the value of such property or assets for the purposes of such business; and (h) involuntary Liens as contemplated by the Operative Documents (including a Lien of an attachment, judgment or execution) securing a charge or obligation, on any of Company’s property, either real or personal, whether now or hereafter owned in the aggregate sum of less than $100,000.

“Person” means an individual, partnership, corporation, limited liability company, association, trust, unincorporated organization, business entity or Governmental Authority.

“PJM” means PJM Interconnection, L.L.C., a regional transmission organization.

“PJM Agreements” is defined in the Tariff.

“PJM Grid” means the system of transmission lines and associated facilities that have been placed under PJM’s operational control.

“Placed in Service Date” means the date on which each System is “placed-in-service” within the meaning of the Code and Cash Grant Guidance.

“Placement Agent” is defined in Section 5.3.

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

“Pledge Agreement” means, the Pledge and Security Agreement, dated as of the Closing Date, in form and substance satisfactory to the Purchasers, among Pledgor, the Company and Collateral Agent.

“Pledgor” means Diamond State Generation Holdings, LLC, a Delaware limited liability company.

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“Portfolio” means, on an aggregate basis, all Systems owned by Company at any time that were purchased pursuant to the MESPA and that have achieved COD, other than Systems that have been repurchased by Sponsor pursuant to the terms of the MESPA.

“Project” means a portfolio of up to 150 Bloom Energy baseload fuel cell electricity generators with an aggregate capacity of 30 MW to be located on the Sites and the Easements commonly known as Brookside (for the 3 MW part of the Project, in Newark, Delaware) and Red Lion (for the 27 MW part of the Project, in New Castle County, Delaware).

“Project Budget” means the budget for all anticipated costs to be incurred in connection with the development, construction, installation, timing and start-up of the Project as set forth in Schedule 4.1.26.

“Project Costs” means: (a) the Purchase Price (as defined in the MESPA) of Systems; (b) all other Project-related costs and other development costs (including all Site related costs payable to any Person, including landowners or any Governmental Authority), insurance costs, management services fees and expenses and expenses to complete the development, design, construction and financing of the Project; (c) contingency funds, start-up costs and initial working capital costs; (d) O&M Costs due and payable prior to Final Completion; and (f) interest and fees pursuant to this Agreement prior to Final Completion.

“Project Document Modification” is defined in Section 10.13.

“Project Documents” means, without duplication, the Major Project Documents and any other agreement or document relating to the development, construction or operation of the Project to which the Company is a party.

“Project Revenues” means, without duplication, all income and cash receipts of the Company derived from the ownership or operation of the Project (other than Cash Grant proceeds), including payments received by the Company from DPL pursuant to the Tariff, from Sponsor under the MESPA and the MOMA (other than payments permitted to be deposited into the System Refund Account), proceeds of any delay in start up or business interruption or liability insurance (to the extent such liability insurance proceeds represent reimbursement of third party claims previously paid by the Company), income derived from the sale or use of electric capacity or energy transmitted or distributed or ancillary services or environmental attributes produced by the Project, proceeds from sale of assets, investment income on amounts in the Accounts (solely to the extent deposited in the applicable Account), but excluding solely for purposes of calculating Operating Cash Available for Debt Service, (a) any receipts derived from the sale of any property pertaining to the Project or incidental to the operation of the Project, as determined in conformity with cash accounting principles, (b) proceeds of casualty insurance, (c) performance liquidated damages under the MESPA and MOMA, (d) the proceeds of any condemnation awards relating to the Project and (e) proceeds from the Collateral Documents.

“Project Schedule” means the schedule for construction and completion of the Project as set forth in Schedule 4.1.28.

“property” or “properties” means, unless otherwise specifically limited, real or personal property of any kind, tangible or intangible, choate or inchoate.

-18-

“Prudent Electrical Practices” is defined in the MESPA.

“PTE” is defined in Section 6.2(a).

“PUHCA” means the Public Utility Holding Company Act of 2005 (42 U.S.C. §§ 16451-16463), and FERC’s implementing regulations related thereto (18 C.F.R. Part 366).

“Purchaser” or “Purchasers” means each of the purchasers whose signatures appear at the end of this Agreement and such Purchaser’s successors and assigns (so long as any such assignment complies with Section 13.2), provided, however, that any Purchaser of a Note that ceases to be the registered holder or a beneficial owner (through a nominee) of such Note as the result of a transfer thereof pursuant to Section 13.2 shall cease to be included within the meaning of “Purchaser” of such Note for the purposes of this Agreement upon such transfer.

“QFCP Generator” is defined in the Tariff.

“QPAM Exemption” is defined in Section 6.2(d).

“Qualified Fuel Cell Provider” is defined in the Tariff.

“Qualified Fuel Cell Provider Project” is defined in the Tariff.

“Qualified Institutional Buyer” means any Person who is a “qualified institutional buyer” within the meaning of such term as set forth in Rule 144A(a)(1) under the Securities Act.

“Ramp Up Period” means the period from the Closing Date through the Final Completion Date.

“Rating Agency” means Fitch Ratings Inc. to the extent that at each relevant time of determination, it has an active and current rating in effect on the Notes, or if Fitch Ratings Inc. shall cease to rate debt instruments of the type similar to the Notes, another nationally recognized rating agency or agencies then rating debt instruments of a type similar to the Notes as shall be selected by the Holders, in consultation with the Company, as a substitute therefor.

“Rating Event” is defined in Section 9.23.

“Real Property” means the real property, including the Sites and the Improvements, which is the subject of the Mortgages.

“Real Property Documents” means any documents, agreements or instruments pursuant to which Company has rights in Real Property, all easements, sub-easements, leases, subleases, licenses and other agreements with landowners, any non-disturbance agreements and any deeds pursuant to which Company owns a fee interest in real property.

“REC” means renewable energy credits.

“Recapture Indemnities and Guarantees” means each of (i) the Cash Grant Indemnity Agreement, dated as of March 20, 2013, by the Sponsor in favor of the Company and the Collateral Agent, (ii) the Cash Grant Indemnity Agreement, dated as of March 20, 2013, by Mehetia in favor of the Company and the Collateral Agent and (iii) the CS Guaranty.

-19-

“Recapture Liabilities” means any loss, liability or payment resulting from or required to be made to the United States of America (or any agency or instrumentality thereof) resulting from all or any portion of the Cash Grant being “recaptured” or disallowed as a result of the Project or any part thereof being disposed of, all or any portion of the Project ceasing to be specified energy property, an ownership interest in the Project or the Company being disposed of during the Recapture Period to a Disqualified Person, or otherwise, including any interest and penalties related thereto.

“Recapture Period” means the period commencing on the Placed in Service Date and ending on the fifth anniversary of the Placed in Service Date or, to the extent applicable, such different period as prescribed under the Code.

“Red Lion Lease” means the amended and restated lease agreement between Company and DPL, dated as of June 26, 2012, relating to property located at 1593 River Road, New Castle, Delaware 19720, as amended from time to time

“Red Lion Site” means the real property which is the subject of the Red Lion Lease.

“Related Fund” means, with respect to any Holder of any Note, any fund or entity that (i) invests in Securities or bank loans, and (ii) is advised or managed by such Holder, the same investment advisor as such Holder or by an affiliate of such Holder or such investment advisor.

“Release” means disposing, discharging, injecting, spilling, leaking, leaching, dumping, pumping, pouring, emitting, escaping or emptying into or upon any land or water or air.

“Repayment Date” has the meaning assigned to such term in the Amortization Schedule.

“Reportable Event” means any of the events set forth in section 4043(b) or (c) of ERISA for which notice to the PBGC has not been waived.

“REPS Act” means the Renewable Energy Portfolio Standards Act, as amended by S.B. 124, enacted July 10, 2011 (Title 26, Chap. 1, section 351 et seq. of the Code of the State of Delaware).

“Required Holders” means at any time on or after the Closing, the Holders of at least 50.1% in principal amount of the Notes at the time outstanding (exclusive of Notes then owned by the Company or any of its Affiliates).

“Responsible Officer” means, as to any Person, its president, chief executive officer, any vice president, treasurer, secretary, or assistant secretary, or any natural Person who is a managing general partner or manager or managing member of a limited liability company (or any of the preceding with regard to any such managing general partner, manager or managing member).

“Revenue Account” is defined in Section 2.1 of the Depositary Agreement.

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“Rights of Way” is defined in Section 4.1.37(vi).

“SEC” means the Securities and Exchange Commission of the United States, or any successor thereto.

“Secured Parties” means Collateral Agent and the Holders of the Notes, and each of their respective successors, transferees and assigns and shall include, without limitation, all former Collateral Agents and Holders of Notes to the extent that the Obligations owing to such Persons were incurred while such Persons were in such capacities and such Obligations have not been paid or satisfied in full; provided, that no Affiliate of Sponsor shall be a “Secured Party.”

“Securities” or “Security” shall have the meaning specified in section 2(1) of the Securities Act.

“Securities Act” means the Securities Act of 1933, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.

“Security Agreement” means the Security Agreement, dated as of the Closing Date, in form and substance satisfactory to the Purchasers, between the Company and Collateral Agent.

“Senior Financial Officer” means the chief financial officer, principal accounting officer, treasurer or comptroller of the Company.

“Service Application” is defined in the Tariff.

“Sites” means the Brookside Site and the Red Lion Site.

“Solvent” means, with respect to any Person, that as of the date of determination, (a) the aggregate value of all properties of such Person at their present saleable value (i.e., the amount that may be realized within a reasonable time, considered to be six months to one year, either through collection or sale at the regular market value, conceiving the latter as the amount that could be obtained for the property in question within such period by a capable and diligent businessperson from an interested buyer who is willing to purchase under ordinary selling conditions), exceed the amount of all the debts and liabilities (including contingent, subordinated, unmatured and unliquidated liabilities) of such Person, (b) such Person will not, on a consolidated basis, have an unreasonably small capital with which to conduct its business operations heretofore conducted and (c) such Person will have, on a consolidated basis, sufficient cashflow to enable it to pay its debts as they mature.

“Source” is defined in Section 6.2.

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

“Subsidiary” means, as to any Person, a corporation, partnership, limited liability company, limited liability partnership or other entity of which such Person: (a) owns 10% or more of the shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity and/or (b) controls the management, directly or indirectly through one or more intermediaries.

-21-

“Super-Majority Holders” means at any time on or after the Closing Date, the Holders of at least 80% in principal amount of the Notes at the time outstanding (exclusive of Notes then owned by the Company or any of its Affiliates).

“SVO” means the Securities Valuation Office of the NAIC or any successor to such Office.

“System” means each proprietary solid oxide fuel cell power generating unit to be purchased from Sponsor by the Company under the MESPA.

“System Liability Cap” means the liability caps referred to in Sections 8.2(b), 8.3(c), 8.9 and 10.5 of the MESPA and Sections 2.5(c), 2.8 and 7.1 of the MOMA.

“System Refund Account” means the account established by the Company into which, if any payments are received by the Company from the Sponsor based on refunds for a System’s purchase deposit (in accordance with Section 3.2(d) of the MESPA) or if there is a full refund of the purchase price of a full System (in accordance with Section 8.3 of the MESPA) and the applicable System is not a Funded System, any payment received by the Company representing the proportional amount thereof allocable to the equity in the Company will be deposited, provided that such account shall not be an “Account” under the Depositary Agreement.

“Tariff” means DPL’s Service Classification “QFCP-RC” for REPS Qualified Fuel Cell Provider Projects as approved by the DPSC in Order No. 8062 dated October 18, 2011, as adopted and supplemented by DPSC’s Findings, Opinion and Order No. 8079, dated December 1, 2011.

“Tax Equity Investors” means Mehetia and any other one or more investors in “Class B” membership interests in Pledgor (as contemplated by the limited liability company agreement of Pledgor as in effect on the Closing Date).

“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

“Title Exception” means the exceptions to title set forth in the Title Policy.

“Title Insurer” means First American Title Insurance Company.

“Title Policy” means the policy of the title insurance issued by the Title Insurer dated as of the Closing Date, including all amendments thereto, endorsements thereof and substitutions or replacements therefor.

“UCC” means the Uniform Commercial Code as the same may, from time to time, be in effect in the State of New York; provided, in the event that, by reason of mandatory provisions of law, any or all of the perfection or priority of the security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York the

-22-

term “UCC” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions of the Credit Documents relating to such perfection or priority and for purposes of definitions related to such provisions.

“Unsatisfied Condition” means a condition in a Permit that has not been satisfied and that either (a) must be satisfied before such Permit can become effective, (b) must be satisfied as of the date on which a representation is made or a condition precedent must be satisfied under this Agreement, or (c) must be satisfied as of a future date but with respect to which facts or circumstances exist which, to the Company’s Knowledge, could reasonably be expected to result in a failure to satisfy such Permit condition, and which failure could reasonably result in a Material Adverse Effect.

“USA PATRIOT Act” means United States Public Law 107-56, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.

-23-

RULES OF INTERPRETATION

1. The singular includes the plural and the plural includes the singular.

2. The word “or” is not exclusive. Thus, if a party “may do (a) or (b)”, then the party may do either or both. The party is not limited to a mutually exclusive choice between the two alternatives.

3. A reference to a Governmental Rule includes any amendment or modification to such Governmental Rule, and all regulations, rulings and other Governmental Rules promulgated under such Governmental Rule.

4. A reference to a Person includes its successors and permitted assigns to the extent permitted and in accordance with the terms of the Credit Documents.

5. Accounting terms have the meanings assigned to them by GAAP, as applied by the accounting entity to which they refer.

6. The words “include,” “includes” and “including” are not limiting.

7. A reference in a document to an Article, Section, Exhibit, Schedule, Annex or Appendix is to the Article, Section, Exhibit, Schedule, Annex or Appendix of such document unless otherwise indicated. Exhibits, Schedules, Annexes or Appendices to any document shall be deemed incorporated by reference in such document.

8. References to any document, instrument or agreement (a) shall include all exhibits, schedules and other attachments thereto, (b) shall include all documents, instruments or agreements issued or executed in replacement thereof, and (c) means such document, instrument or agreement, or replacement or predecessor thereto, as amended, waived, supplemented, restructured, repaid, refunded, refinanced or otherwise modified (in each case, to the extent applicable) from time to time (to the extent permitted and in accordance with the terms of the Credit Documents) and in effect at any given time.

9. The words “hereof,” “herein” and “hereunder” and words of similar import when used in any document shall refer to such document as a whole and not to any particular provision of such document.

10. References to “days” means calendar days, unless the term “Business Days” shall be used. References to a time of day means such time in New York, New York, unless otherwise specified. If the Company or any Affiliate of the Company is required to perform an action, deliver a document or take such other action by a calendar day and such day is not a Business Day, then the Company or such Affiliate shall take such action by the next succeeding “Business Day.”

11. The Credit Documents are the result of negotiations among, and have been reviewed by the Company, the Pledgor, the Purchasers, the Collateral Agent, the Depositary and their respective counsel. Accordingly, the Credit Documents shall be deemed to be the product of all parties thereto, and no ambiguity shall be construed in favor of or against the Company, the Pledgor, the Purchasers, the Collateral Agent and the Depositary.

-24-

12. The words “will” and “shall” shall be construed to have the same meaning and effect.

13. Capitalized terms in any Credit Document have the meanings set forth therein and any capitalized term used in a Credit Document and not defined therein or in this Schedule B but in another Credit Document has the meaning in such other Credit Document.

14. Any term defined in this Schedule B by reference to another document, instrument or agreement shall continue to have the meaning ascribed thereto, as in full force and effect as of the date of this Agreement (without giving effect to any amendment to such terms unless expressly consented to by the Collateral Agent and the Holders of the Notes), whether or not such other document, instrument or agreement remains in effect.

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SCHEDULE 4.1.22

LITIGATION

1. Nichols et al. v. Markell et al., No. 1:12-cv-00777, currently pending in the United States District Court for the District of Delaware.

2. John A. Nichols v. State Coastal Zone Industrial Control Board, Delaware Department of Natural Resources and Environmental Control, and Diamond State Generation Partners, LLC, C.A. No. N12A-07-001 MMJ (Delaware Superior Court), dismissal of Nichols’ appeal affirmed by the Delaware Superior Court on March 14, 2013; Nichols has 30 days to file an appeal with the Delaware Supreme Court.

SCHEDULE 4.1.22 TO NOTE PURCHASE AGREEMENT

Schedule 4.1.26 Project Budget

[***]

[Note: 5 pages redacted]

[***] Confidential Treatment Requested

Schedule 4.1.27 Base Case Projections

[***]

[Note: 86 pages redacted]

[***] Confidential Treatment Requested

Schedule 4.1.28 Project Schedule

[***]

[Note: 23 pages redacted]

[***] Confidential Treatment Requested

SCHEDULE 4.1.30

LIST OF DIRECT AGREEMENTS

1. Direct Agreement with respect to the MESPA.

2. Direct Agreement with respect to the MOMA.

3. Direct Agreement with respect to the Administrative Services Agreement.

SCHEDULE 4.1.30 TO NOTE PURCHASE AGREEMENT

SCHEDULE 5.3

DISCLOSURE MATERIALS

1. Base Case Projections.

2. “USPP Investor Presentation” of January 2013 posted to the datasite established by J.P. Morgan Securities LLC with respect to Note Purchase Agreement.

SCHEDULE 5.3 TO NOTE PURCHASE AGREEMENT

SCHEDULE 5.5

FINANCIAL STATEMENTS

1. Audited annual financial statements of Bloom Energy Corporation for the year ended December 31, 2011.

2. Unaudited quarterly financial statements of Bloom Energy Corporation for the quarter ended September 30, 2012.

3. Unaudited quarterly financial statements of Diamond State Generation Partners, LLC for the quarter ended September 30, 2012.

SCHEDULE 5.5 TO NOTE PURCHASE AGREEMENT

SCHEDULE 5.15

EXISTING DEBT

Debt in the amount of [***] (including a [***] debt service reserve letter of credit) of the Company under the Credit Agreement, dated as of March 22, 2012, among the Company, The Royal Bank of Scotland plc as administrative agent and collateral agent, and the lenders party thereto.

[***] Confidential Treatment Requested

SCHEDULE 5.15

(to Note Purchase Agreement)

SCHEDULE 5.19

PERMITS

Part I

Brookside

Permit	Issuing Authority	Status
National Pollutant Discharge Elimination System (“NPDES”) Permit (construction)	Delaware Department of Natural Resources and Environmental Control (“DNREC”)	Approved
Air Permit	DNREC	Approved
Stormwater Review and Engineering Approval	New Castle/DNREC	Completed
Planning Dept. and Site Plan Approval	New Castle County	Approved
Feasibility Study	PJM	Completed
Generation Interconnection Facilities Study Report	PJM	Completed
DelDOT Entrance Permit	DDOT	Issued
NPDES Notice of Termination (“NOT”)	DNREC	The NOT will be filed once construction has finished
Notice of Self-Certification of Exempt Wholesale Generator Status, filed in Docket No. EG12-44-000.	FERC	Filed March 15, 2012.
DPL’s Service Classification “LVG-QFCP-RC” filed for gas service applicable to REPS Qualified Fuel Cell Provider Projects	Delaware Public Services Commission (DPSC)	Approved by the DPSC in Order No. 8062 dated October 18, 2011, as adopted and supplemented by DPSC’s Findings, Opinion and Order No. 8079, dated December 1, 2011
DPL’s Service Classification “QFCP-RC” for REPS Qualified Fuel Cell Provider Projects	DPSC	Approved by the DPSC in Order No. 8062 dated October 18, 2011, as adopted and supplemented by DPSC’s Findings, Opinion and Order No. 8079, dated December 1, 2011
Order from FERC granting Project Company MBR Authority	FERC	Issued

SCHEDULE 5.19 TO NOTE PURCHASE AGREEMENT

Part II

Red Lion

Permit	Issuing Authority	Status
Stormwater Discharge Notice of Intent (formerly listed as “NOI”)	DNREC	Completed
Waiving of 100 foot well restriction on the deed	Delaware City Refining Co.	Approved
System Impact Study/ISA/CSA	PJM	Completed
Transmission line right of way	DPL	Not applicable
DNREC Coastal Zone Permit	DNREC	Approved
DNREC well permit	DNREC	Not applicable
Air Permit (Operating and Construction)	DNREC	Approved and Issued
Stormwater Review and Engineering Approval	New Castle County	Approved
Planning Dept. and Site Plan Approval	New Castle County	Approved
Record Plan	New Castle County	Approved
DDOT Entrance Permit	DDOT	Issued
Stormwater Discharge Notice of Intent	DNREC	Completed
Firemarshal Review	State of Delaware	Completed
Feasibility Study	PJM	Completed
Wetlands Review	New Castle County	Completed
NPDES NOT	DNREC	Will be filed once construction has finished
Notice of Self-Certification of Exempt Wholesale Generator Status, filed in Docket No. EG12-44-000.	FERC	Filed March 15, 2012.
DPL’s Service Classification “LVG-QFCP-RC” filed for gas service applicable to REPS Qualified Fuel Cell Provider Projects	Delaware Public Services Commission (DPSC)	Approved by the DPSC in Order No. 8062 dated October 18, 2011, as adopted and supplemented by DPSC’s Findings, Opinion and Order No. 8079, dated December 1, 2011
DPL’s Service Classification “QFCP-RC” for REPS Qualified Fuel Cell Provider Projects	DPSC	Approved by the DPSC in Order No. 8062 dated October 18, 2011, as adopted and supplemented by DPSC’s Findings, Opinion and Order No. 8079, dated December 1, 2011
Order from FERC granting Project Company MBR Authority	FERC	Issued

SCHEDULE 5.19 TO NOTE PURCHASE AGREEMENT

SCHEDULE 8.1

AMORTIZATION SCHEDULE

Date	Amortization Amount
3/30/2012	$	0.00
6/30/2012	$	0.00
9/30/2012	$	0.00
12/30/2012	$	0.00
3/30/2013	$	0.00
6/30/2013	$	0.00
9/30/2013	$	0.00
12/30/2013	$	0.00
3/30/2014	$	2,142,946.62
6/30/2014	$	2,264,546.36
9/30/2014	$	2,294,098.69
12/30/2014	$	2,324,036.68
3/30/2015	$	2,319,835.36
6/30/2015	$	2,443,743.50
9/30/2015	$	2,475,634.35
12/30/2015	$	2,507,941.38
3/30/2016	$	2,447,035.73
6/30/2016	$	2,572,603.83
9/30/2016	$	2,606,176.31
12/30/2016	$	2,640,186.91
3/30/2017	$	2,581,007.06
6/30/2017	$	2,708,323.49
9/30/2017	$	2,743,667.11
12/30/2017	$	2,779,471.97
3/30/2018	$	2,722,109.79
6/30/2018	$	2,851,267.61
9/30/2018	$	2,888,476.65
12/30/2018	$	2,926,171.27
3/30/2019	$	2,870,723.52
6/30/2019	$	3,001,820.75
9/30/2019	$	3,040,994.51
12/30/2019	$	3,080,679.49
3/30/2020	$	3,027,248.07
6/30/2020	$	3,160,387.94
9/30/2020	$	3,201,631.00
12/30/2020	$	3,243,412.29
3/30/2021	$	3,192,104.53
6/30/2021	$	3,327,395.78
9/30/2021	$	3,370,818.30
12/30/2021	$	3,414,807.48

SCHEDULE 8.1 TO NOTE PURCHASE AGREEMENT

3/30/2022	$	3,365,736.43
6/30/2022	$	3,503,293.58
9/30/2022	$	3,549,011.56
12/30/2022	$	3,595,326.16
3/30/2023	$	3,548,610.88
6/30/2023	$	3,688,554.54
9/30/2023	$	3,736,690.17
12/30/2023	$	3,785,453.98
3/30/2024	$	3,702,617.47
6/30/2024	$	3,843,687.57
9/30/2024	$	3,893,847.70
12/30/2024	$	3,944,662.41
3/30/2025	$	11,483,703.22
Total	$	144,812,500.00

SCHEDULE 5.19 TO NOTE PURCHASE AGREEMENT

SCHEDULE 9.2

REQUIRED INSURANCE

The Company shall, without cost to the Secured Parties, obtain and maintain or cause to be obtained and maintained in full force and effect the insurance policies as required in this Schedule.

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

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

At no time shall there be any gap in cover.

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

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

The Company hereby waives any and every claim for recovery against the Purchasers or their directors, officers and employees and agents for any and all loss or damage covered by any insurance policies to be maintained under this Schedule to the extent such loss or damage is recovered under any such policy.

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

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

• Additional Insured status for the Collateral Agent and each of the Purchasers, the Tax Equity Investors, the Sponsor and in the case of liability policies only also their

SCHEDULE 9.2 TO NOTE PURCHASE AGREEMENT

respective affiliates, directors, officers, employees and agents (collectively, the “Additional Insureds”). This requirement shall not apply to any professional indemnity policy.

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

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

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

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

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

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

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

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

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

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

• That the Collateral Agent for the benefit of the holders of the Notes shall be sole loss payee of any amounts payable under the policies in relation to the Company and the Project.

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

• From the first policy renewal following the date of this agreement, cover for unintentional errors and omissions for a $25,000,000 sublimit.

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

• An advance or partial payment endorsement.

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

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

SCHEDULE 9.2 TO NOTE PURCHASE AGREEMENT

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

• Severability.

• Cross liability with no insured or additional insured excluded.

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

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

• Each placing broker confirming:

• Summary policy terms in the pre-agreed format.

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

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

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

• The Insurance Consultant confirming that:

• The insurance provided complies with the requirements of this Agreement including this Schedule and further complies with the requirements of the Company in the Project Documents.

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

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

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

SCHEDULE 9.2 TO NOTE PURCHASE AGREEMENT

If in the opinion of the Company, acting reasonably, any insurance, including the terms and conditions, required endorsements and limits or deductibles thereof, hereby required by this Schedule to be maintained, other than insurance required to be maintained by law which shall be maintained at all times, shall not be available on commercially reasonable terms in the commercial insurance market, the Company shall promptly inform the Collateral Agent and each of the Purchasers of such purported unavailability and the Company shall seek a waiver from the Required Holders in relation to such purported unavailability in which case the Required Holders, acting after consultation with the Insurance Consultant, shall not unreasonably withhold agreement to waive such requirement to the extent the maintenance thereof is not so available. The granting by the Required Holders of any such waiver is conditional on: (i) the Company first requesting such waiver in writing, which request shall be accompanied by written reports prepared by the Company and its placing broker certifying that such insurance is not available on commercially reasonable terms in the commercial insurance market for projects of similar type and capacity and, in any case where the required amount is not so available, certifying as to the maximum amount which is so available, and explaining in detail the basis for such conclusions and the form and substance of such reports to be reasonably acceptable to the Required Holders after consultation with the Insurance Consultant; (ii) at any time after the granting of any such waiver, any Secured Party may request, and the Company shall furnish to each Secured Party within fifteen (15) days after such request, supplemental reports reasonably acceptable to the Required Holders updating the prior reports and reaffirming such conclusion; (iii) any such waiver granted by the Required Holders can amend, to the extent reasonably required to mitigate any increased risks created by the absence of insurance cover that is the subject of the waiver, any of the terms of this Schedule and this Agreement; (iv) any Purchaser may require the Company to obtain the best available insurance comparable to the requirements of this Schedule on commercially reasonable terms then available in the commercial insurance market (as determined by the Insurance Consultant); and (v) such waiver shall be effective only so long as such insurance shall not be available on commercially reasonable terms in the commercial insurance market (as determined by the Insurance Consultant) it being understood that the failure of the Company to furnish any supplemental reports shall be deemed to be conclusive evidence that such waiver is no longer effective because such condition no longer exists, but that such failure is not the only way to establish such non-existence.

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

Each liability insurance policy required pursuant to this Schedule that is permitted to be written on a “claims made” basis shall provide (a) a retroactive date (as such term is specified in each of such policies) that is no later than the Closing Date and (b) each time any policy written on a “claims made” basis is not renewed or the retroactive date of such policy is to be changed, the Company shall obtain and maintain, or cause to be obtained or maintained, for each such policy or policies the broadest extended reporting period coverage, or “tail”, reasonably available in the commercial insurance market for each such policy or policies but in no case less than three

SCHEDULE 9.2 TO NOTE PURCHASE AGREEMENT

(3) years. The Company may satisfy the requirements of this Section by obtaining “prior acts” coverage from a subsequent insurance carrier on terms acceptable to the Collateral Agent, acting reasonably.

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

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

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

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

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

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

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

SCHEDULE 9.2 TO NOTE PURCHASE AGREEMENT

APPENDIX 1

(a) Construction Phase Property Policy

If the Purchasers or Tax Equity Investors are pre funding construction phase expenditures then as a condition precedent to such funding, evidence shall be provided that is reasonably acceptable to the Required Holders or Tax Equity Investors (as applicable) that adequate property insurance is in place sufficient to cover the value of (a) the largest transit shipment and offsite storage; and (b) aggregate assets on site at the Project and Delay in Start-Up exposure prior to the All Risk Property and Business Interruption Insurance being in full force and effect. Furthermore, the Collateral Agent and each of the Purchasers will be added as additional insured to the construction general liability policy which shall have limits and terms adequate to cover their exposure.

(b) All Risk Property and Business Interruption Insurance

From the earlier of (a) Completion; and (b) First Funding Event, “All Risk Property” insurance shall be provided for all property, equipment and construction and erection activities associated with the Project on an “all risk” basis insuring the Company and the Additional Insureds, as their interests may appear, including but not limited to coverage for the perils of earth movement (including but not limited to earthquake, landslide, subsidence, sink hole and volcanic eruption), flood, named windstorm. There shall be no requirement for machinery breakdown coverage subject to the agreement of the Required Holders and the Tax Equity Investors, acting reasonably, that such risks are adequately covered by Power Performance Warranty.

The policy limit shall be an amount not less than the aggregate full replacement cost of the projects such amount also being referred to as the “full policy limit”. Full insurable value shall mean the full replacement cost value of the Project on a “new for old” basis, including but not limited any new or existing buildings or structures, any improvements to new or existing property, equipment, mechanical plant, electrical plant, spare parts, and supplies and temporary works.

Per occurrence sublimits shall be at least as follows:

•   Unintentional Errors & Omissions	$25M
•   Debris removal	25% of the amount payable for the direct physical loss
•   Architects and engineers fees	$2m
•   Expediting expense	$1m
•   Blueprints, drawings, etc.	$1m or less
•   On site pollution	$100,000

An annual aggregate sublimit shall be permitted for flood of $10M. An annual aggregate sublimit shall be permitted for earth movement of $25M subject to confirmation from the

SCHEDULE 9.2 TO NOTE PURCHASE AGREEMENT

independent engineer and accepted by the Required Holders and the Tax Equity Investors, acting reasonably, that any such damage is likely to be within this limit. Limits for windstorm shall be full policy limits on a per occurrence basis.

The All Risk Property policy shall include a seventy-two (72) hour flood/named windstorm/earthquake clause. There shall be no serial loss clause.

Business Interruption coverage insuring the loss of expected gross revenues for the largest single Project for a period of not less than the greater of (a) 12 months; and, (b) the longest lead time for replacement as determined by the Required Holders and the Tax Equity Investors in consultation with the Independent Engineer as a result of physical loss or damage by perils required to be insured under the All Risk Property policy, including all sections preceding this section, which cause a reduction in output.

Contingent business interruption insurance covering loss of gross revenues less non-continuing expenses for:

• Power Suppliers and Public Utilities Extension – loss, including delay, caused by interference/interruption of power/other utility including export substation – full cover.

• Prevention of Ingress/Egress 90 days

• Damage to an export substation cover for loss of expected gross revenues less non-recurrent costs for a six month indemnity period.

Some or all of the requirement for contingent business interruption can be reduced or eliminated subject to the agreement of the Required Holders and the Tax Equity Investors that such risks or proportions of such risks are adequately covered by the Tariff.

Deductibles shall be the best commercially available in accordance with prudent industry practice not exceeding 2% for earthquake.

(c) Marine Cargo and Marine Business Interruption Insurance

To the extent a material exposure exists, transit coverage, either included in a property policy or under a separate policy (including air, land and ocean cargo, as applicable) on an “all-risk” basis and a “warehouse to warehouse” basis with a per occurrence limit equal to not less than 110% of the value including transit and insurance of such shipment involving Project or any other Collateral assets to or from any storage site or the Project site at all times for which the Company has accepted risk of loss or has responsibility for providing insurance. Coverage shall include loading and unloading, temporary storage (as applicable). Coverage shall be maintained in accordance with prudent industry practice in all regards with per occurrence deductibles of not more than $100,000 for physical damage and other terms and conditions acceptable to the Required Holders and the Tax Equity Investors in consultation with the Insurance Consultant.

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

SCHEDULE 9.2 TO NOTE PURCHASE AGREEMENT

(d) General Liability

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

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

• Broad form property damage.

• Blanket contractual.

• Products/completed operations

• Advertising injury

• XCU

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

(e) Automobile Liability

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

(f) Workers’ Compensation and Employer’s Liability

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

(g) Pollution Liability

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

(h) Umbrella Liability Insurance

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

SCHEDULE 9.2 TO NOTE PURCHASE AGREEMENT

(i) Errors and Omissions Liability

Errors and omissions insurance for liability arising out of property damage or bodily injury to third parties as a result of prototype manufacturing errors and omissions liability $1,000,000 per glitch and in the aggregate. Deductibles shall be the best commercially available in accordance with prudent industry practice.

(j) Directors & Officers Insurance

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

SCHEDULE 9.2 TO NOTE PURCHASE AGREEMENT

[FORM OF NOTE]

THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). NEITHER THIS NOTE NOR ANY PORTION HEREOF MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE SECURITIES ACT AND ANY APPLICABLE PROVISIONS OF ANY STATE BLUE SKY OR SECURITIES LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION PROVISIONS.

THE HOLDER OF THIS NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH HOLDER OF A BENEFICIAL INTEREST THEREIN, AGREE TO TREAT THE NOTE AS INDEBTEDNESS OF THE COMPANY FOR APPLICABLE FEDERAL, STATE, AND LOCAL INCOME AND FRANCHISE TAX LAW AND FOR PURPOSES OF ANY OTHER TAX IMPOSED ON, OR MEASURED BY, INCOME.

EXHIBIT 1

(to Note Purchase Agreement)

DIAMOND STATE GENERATION PARTNERS, LLC

5.22% SENIOR SECURED NOTE DUE MARCH 30, 2025

No. [        ]	[Date]
$[        ]	PPN 25275@AA1

FOR VALUE RECEIVED, the undersigned, DIAMOND STATE GENERATION PARTNERS, LLC (herein called the “Company”), a limited liability company formed and existing under the laws of the State of Delaware, hereby promises to pay to [            ], or registered assigns, the principal sum of [                    ] DOLLARS (or so much thereof as shall not have been prepaid) on [            ,         ] (the “Maturity Date”), with interest (computed on the basis of a 360-day year of twelve 30-day months) (a) on the unpaid balance hereof at the rate of 5.22% per annum from the date hereof, payable quarterly, on the 30^th day of March, June, September and December in each year, commencing with the [            ] next succeeding the date hereof, and on the Maturity Date, until the principal hereof shall have become due and payable, and (b) to the extent permitted by law, on any overdue payment of interest and, during the continuance of an Event of Default, on such unpaid balance and on any overdue payment of any Make-Whole Amount, at the Default Rate, payable quarterly as aforesaid (or, at the option of the registered holder hereof, on demand).

Payments of principal of, interest on and any Make-Whole Amount with respect to this Note are to be made in lawful money of the United States of America at the principal office of the Collateral Agent in New York, New York or at such other place as the Company shall have designated by written notice to the holder of this Note as provided in the Note Purchase Agreement referred to below.

This Note is one of a series of Senior Secured Notes (herein called the “Notes”) issued pursuant to the Note Purchase Agreement, dated as of March 20, 2013 (as from time to time amended, the “Note Purchase Agreement”), between the Company and the respective Purchasers named therein and is entitled to the benefits thereof. Each holder of this Note will be deemed, by its acceptance hereof, to have (i) agreed to the confidentiality provisions set forth in Article 20 of the Note Purchase Agreement and (ii) made the representations set forth in Article 6 of the Note Purchase Agreement. Unless otherwise indicated, capitalized terms used in this Note shall have the respective meanings ascribed to such terms in the Note Purchase Agreement.

This Note is registered in the register of Notes maintained by the Company and, as provided in the Note Purchase Agreement, upon surrender of this Note for registration of transfer accompanied by a written instrument of transfer duly executed, by the registered holder hereof or such holder’s attorney duly authorized in writing, a new Note for a like principal amount will be issued to, and registered in the name of, the transferee. Prior to due presentment for registration of transfer, the Company may treat the person in whose name this Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, and the Company will not be affected by any notice to the contrary.

EXHIBIT 1

(to Note Purchase Agreement)

The Company will make required prepayments of principal on the dates and in the amounts specified in the Note Purchase Agreement. This Note is also subject to optional prepayment, in whole or from time to time in part, at the times and on the terms specified in the Note Purchase Agreement, but not otherwise.

If an Event of Default occurs and is continuing, the principal of this Note may be declared or otherwise become due and payable in the manner, at the price (including any applicable Make-Whole Amount) and with the effect provided in the Note Purchase Agreement.

This Note shall be construed and enforced in accordance with, and the rights of the Company and the holder of this Note shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than such State.

DIAMOND STATE GENERATION PARTNERS, LLC
By
	[Title]

EXHIBIT 1

(to Note Purchase Agreement)

EXHIBIT 4.1.13(a)

FORM OF OPINION OF COUNSEL TO THE COMPANY

[See Execution Version]

EXHIBIT 4.1.13(a) TO NOTE PURCHASE AGREEMENT

	ORRICK, HERRINGTON & SUTCLIFFE LLP
	51 WEST 52ND STREET
	NEW YORK, NEW YORK 10019-6142
	tel +1-212-506-5000
	fax +1-212-506-5151
	WWW.ORRICK.COM

March 20, 2013

To the Addressees listed on Schedule 1

Re: Diamond State Generation Partners, LLC

Ladies and Gentlemen:

We have acted as special counsel to Diamond State Generation Partners, LLC, a Delaware limited liability company (the “Company”), Diamond State Generation Holdings, LLC, a Delaware limited liability company (the “Pledgor”), Clean Technologies II, LLC, a Delaware limited liability company (the “Member”), and Bloom Energy Corporation, a Delaware corporation (the “Sponsor” and together with the Company, the Pledgor and the Member, the “Opinion Parties” and each an “Opinion Party”), in connection with the preparation, execution and delivery of (A) the Note Purchase Agreement, dated as of March 20, 2013 (the “Note Purchase Agreement”), among the Company and the note purchasers party thereto, and (B) the Transaction Documents (as defined below). This opinion is being furnished to you pursuant to Section 4.1.13(a) of the Note Purchase Agreement. Capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the Note Purchase Agreement. As used herein, “Accounts” means the Accounts as defined and listed in Section 2.1(a) of the Depositary Agreement on the date hereof.

In connection with this opinion, we have examined and relied on originals, or copies certified or otherwise identified to our satisfaction, of the following:

(1) the Note Purchase Agreement;

(2) the Equity Contribution Agreement;

(3) the Depositary Agreement;

(4) the Pledge Agreement;

(5) the Direct Agreement among Sponsor, Company and Deutsche Bank Trust Company Americas, as collateral agent for the Secured Parties (the “Collateral Agent”) with respect to the Administrative Services Agreement;

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March 20, 2013

Page 2

(6) the Direct Agreement among Sponsor, Company and the Collateral Agent with respect to the MESPA;

(7) the Direct Agreement among Sponsor, Company and the Collateral Agent with respect to the MOMA;

(8) the Security Agreement;

(9) the Collateral Agency Agreement;

(10) the Interparty Agreement;

(11) the Cash Grant Indemnity Agreement, dated as of March 20, 2013, by the Sponsor in favor of the Company and the Collateral Agent;

(12) the Mortgage;

(13) copies of the Certificate of Formation of the Company (formerly known as Germinis 2011 Generation Partners, LLC) and Certificate of Amendment of Certificate of Formation with respect to the Company, each as certified by the Secretary of State of the State of Delaware (“DE SOS”) on March 8, 2012;

(14) copies of the Tenth Amended and Restated Certificate of Incorporation of the Sponsor and Certificate of Amendment to the Tenth Amended and Restated Certificate of Incorporation of the Sponsor, each as certified by the DE SOS on June 15, 2012;

(15) a copy of the Certificate of Formation of the Member, as certified by the DE SOS on March 8, 2012;

(16) a copy of the Certificate of Formation of the Pledger, as certified by the DE SOS on March 8, 2012;

(17) the limited liability company operating agreements in effect as of the date hereof of each of the Company, the Pledgor and the Member;

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March 20, 2013

Page 3

(18) the by-laws in effect as of the date hereof of the Sponsor;

(19) certificates of good standing as to the Company, the Member, the Pledgor and the Sponsor issued by the DE SOS on March 11, 2013;

(20) the UCC financing statement, a copy of which is attached hereto as Exhibit A, naming the Pledgor as debtor and the Collateral Agent as secured party, to be filed with the DE SOS (the “Pledgor Financing Statement”);

(21) the UCC financing statement, a copy of which is attached hereto as Exhibit B, naming the Company as debtor and the Collateral Agent as secured party, to be filed with the DE SOS (the “Company Financing Statement”); and

(22) the UCC financing statement, a copy of which is attached hereto as Exhibit C, naming the Company as debtor and the Collateral Agent as secured party, and indicating that the Company is a transmitting utility, to be filed with the DE SOS (the “Transmitting Utility Financing Statement”).

The documents referenced in items (1) through (11) above are hereinafter referred to each as a “New York Transaction Document” and collectively as the “New York Transaction Documents”. The documents referenced in subparagraphs (1) through (12) above are hereinafter referred to each as a “Transaction Document” and collectively as the “Transaction Documents”.

Terms used in paragraphs 9 through 13 below or in any qualifications, assumptions, or other matters applicable to the opinions expressed in such paragraphs that are defined in the New York Uniform Commercial Code (the “NYUCC”) or the Delaware Uniform Commercial Code (the “DUCC”) and not otherwise defined herein shall have the meanings set forth in the NYUCC or the DUCC, as applicable.

We have also examined originals or copies, certified or otherwise identified to our satisfaction, of such corporate records, agreements, documents (including organizational documents of the Opinion Parties) and other instruments, and such certificates and comparable documents of public officials and of officers and representatives of the Opinion Parties, as we have deemed relevant and necessary as a basis for the opinions hereinafter set forth.

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March 20, 2013

Page 4

In connection with rendering the opinions expressed below, with your permission we have assumed the genuineness of all signatures, the legal capacity of all natural persons, the identity and capacity of all individuals acting or purporting to act as public officials, the authenticity and accuracy of all documents submitted to us as originals, the conformity to the authentic original documents of all documents submitted to us as copies thereof and the authenticity of the originals of such copies. As to questions of fact material to the opinions expressed below, we have relied, to the extent we deemed necessary or appropriate as a basis for such opinions, upon the representations, certificates and statements made or otherwise provided to us by the Opinion Parties and their respective officers and other representatives, and of public officials, and upon such documents, records and instruments as we have deemed appropriate, in each case without independent check or verification of the accuracy of such documents, records and instruments.

Further, with your permission we have assumed (i) that each of the parties (other than the Opinion Parties) to the Transaction Documents (A) is duly organized or formed and validly existing under the laws of its respective jurisdiction of organization or formation and has full power, authority, and legal right to enter into and perform its obligations under each Transaction Document to which it is a party, (B) has duly authorized each Transaction Document to which it is a party, and (C) has duly executed and delivered each Transaction Document to which it is a party, (ii) that each of the Transaction Documents constitutes the legal, valid and binding obligation of each of the parties thereto (other than the Opinion Parties), enforceable against such parties in accordance with its terms, (iii) that, except as otherwise expressly provided in paragraph 8 below with respect to the Opinion Parties, the parties to the Transaction Documents have received, or will receive by the time required, and will, to the extent required by any governmental requirement, maintain in full force and effect, all consents, approvals, filings, notices and other authorizations from any Governmental Authority (collectively, “Governmental Approvals”) which are required for the due execution, delivery and performance by the parties to the Transaction Documents and that such execution, delivery and performance by the parties to the Transaction Documents does not and will not conflict with any provision of any governmental requirement or the terms of any Governmental Approval applicable to the parties to the Transaction Documents or the conduct of their respective businesses or any agreement or instrument to which they are a party or by which they or their property are bound, (iv) the absence of any evidence extrinsic to the provisions of the Transaction Documents that the parties thereto intended a meaning contrary to that expressed by those provisions, and (v) the truth, accuracy and completeness of the information, representations and warranties contained in the records, documents, instruments and certificates we have reviewed. With respect to the opinions in paragraph 13, we have assumed that (i) each Account is a securities account maintained with the Depositary, (ii) the

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March 20, 2013

Page 5

Depositary is a securities intermediary and is acting in that capacity, and (iii) the Company does not control the Depositary, is not controlled by the Depositary, is not under common control with the Depositary, and is not an insider or affiliate of the Depositary, and the Depositary does not lease any collateral from the Company.

We express no opinion in paragraphs 1 through 8 and 14 through 16 as to the laws of any jurisdiction other than (a) the laws of the State of New York, (b) the federal laws of the United States of America and (c) the Delaware Limited Liability Company Act (the “DLLCA”), and (d) the General Corporation Law of the State of Delaware (the “DGCL”), in each case as in effect on the date hereof, and our opinion is limited to and applies only insofar as such laws may be concerned.

As you know, we are not admitted to practice law in the State of Delaware, and our opinions regarding the DLLCA and DGCL are based solely on our review of the text of those acts as set forth in the Delaware Laws Governing Business Entities Annotated Statutes and Rules, 2012 Fall Edition, published by LexisNexis, without regard to other Delaware statutory or judicial decisional law. Our opinions regarding the DUCC are based solely on our review of the text of Article 9 of the DUCC as set forth in the Delaware Uniform Commercial Code Annotated, 2012-2013 Edition, published by LexisNexis, without regard to judicial or administrative interpretations of such law. As a result, this firm has not conducted the same degree of review (for example, reviewing case law) that lawyers who regularly render opinions on Delaware law would conduct, and accordingly the opinions set forth herein as to the DUCC are not the equivalent of an opinion of Delaware counsel.

We have assumed that all governmental requirements have been duly enacted and validly promulgated, that each Governmental Authority has been duly constituted and that all public officials and all members of each Governmental Authority have been duly appointed and are lawfully holding the positions to which they have been elected or appointed, and that any actions taken by them under delegated authority are undertaken pursuant to properly delegated authority.

Based upon the foregoing and subject to the limitations, qualifications, exceptions and assumptions set forth herein, we are of the opinion that:

1. Based solely on our review of the documents listed in item (19) above, (i) each of the Company, the Member and the Pledgor is a limited liability company validly existing and in good standing under the DLLCA and (ii) the Sponsor is a corporation validly existing and in good standing under the DGCL.

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March 20, 2013

Page 6

2. Each of the Company, the Member and the Pledgor has the requisite limited liability company power and authority, and the Sponsor has the requisite corporate power and authority, to execute and deliver each Transaction Document to which it is a party. The Company has the requisite limited liability company power and authority to issue and sell the Notes pursuant to the Note Purchase Agreement.

3. The execution and delivery by the Company, the Pledgor and the Member of each Transaction Document to which it is a party, and the issuance and sale· by the Company of the Notes under the Note Purchase Agreement, have been authorized by all necessary limited liability company action on the part of the Company, the Pledgor and the Member.

4. The execution and delivery by the Sponsor of each Transaction Document to which it is a party have been authorized by all necessary corporate action on the part of the Sponsor.

5. Neither the execution and delivery of each Transaction Document to which it is a party, nor the performance by it of its obligations thereunder, in each case by each of the Opinion Parties, result in a violation of the organizational documents of such Opinion Party or any other Transaction Document.

6. Neither the execution and delivery of each New York Transaction Document to which it is a party, nor the performance by it of its obligations thereunder, in each case, by each of the Opinion Parties, result in a violation of any law of the State of New York or the United States or any rule or regulation thereunder applicable to such Opinion Party.

7. Each of the New York Transaction Documents constitutes the valid and binding obligation of each Opinion Party party thereto, enforceable against such Opinion Party in accordance with its respective terms.

8. No authorization, consent, waiver, approval or other action by any Governmental Authority under New York or United States federal laws which has not been obtained is required for (a) the due execution and delivery by each Opinion Party of each New York Transaction Document to which it is a party and (b) the issuance and sale by the Company of the Notes pursuant to the Note Purchase Agreement.

To the Addressees listed on Schedule 1

March 20, 2013

Page 7

9. The Security Agreement creates in favor of the Collateral Agent a security interest in the Company’s rights in the Collateral as defined therein (the “Company Collateral”).

10. The Pledge Agreement creates in favor of the Collateral Agent a security interest in the Pledger’s rights in the Collateral as defined therein (the “Pledger Collateral”).

(a) Upon the effective filing of the Company Financing Statement with the DE SOS, the security interest described in paragraph 9 will be perfected in such of the Company Collateral described in the Company Financing Statement in which a security interest can be perfected by the filing of a financing statement under the DUCC.

(b) Upon the effective filing of the Pledger Financing Statement with the DE SOS, the security interest described in paragraph 10 will be perfected in such of the Pledger Collateral described in the Pledger Financing Statement in which a security interest can be perfected by the filing of a financing statement under the DUCC.

(c) If the Company is a “transmitting utility” as defined in Section 9- 102(a)(80) of the DUCC (a matter as to which we express no opinion), then upon the effective filing of the Transmitting Utility Financing Statement with the DE SOS, the security interest described in paragraph 9 will be perfected in such of the Company Collateral described in the Transmitting Utility Financing Statement in which a security interest can be perfected by the filing of a financing statement under the DUCC.

11. The security interest described in paragraph 10 will be perfected in such of the Pledger Collateral that is a certificated security in registered form upon the Collateral Agent acquiring possession in the State of New York of the related security certificate, indorsed to the Collateral Agent or in blank by an effective indorsement.

12. The security interest described in paragraph 9 in such of the Company Collateral as consists of the Accounts and the security entitlements carried therein will be perfected upon the execution and delivery of the Security Agreement and the Depositary Agreement.

13. On the basis of the representations of the Company contained in Section 5.13 of the Note Purchase Agreement and the representations of the Purchasers in Article 6 of the Note Purchase Agreement, it is not necessary, in connection with the issuance and sale of the Notes by the Company to the Purchasers under the circumstances contemplated by the Note Purchase Agreement, to register the Notes under the Securities Act of 1933, as amended, or to qualify an indenture with respect thereto under the Trust Indenture Act of 1939, as amended.

To the Addressees listed on Schedule 1

March 20, 2013

Page 8

14. The issuance and sale of the Notes by the Company to the Purchasers under the Note Purchase Agreement, and the application of the proceeds thereof by the Company as provided in the Note Purchase Agreement, will not violate Regulations T, U or X of the Board of Governors of the Federal Reserve System.

15. None of the Opinion Parties is an “investment company” or “controlled” by a Person that is required to register as an “investment company” as such terms are defined in the Investment Company Act of 1940, as amended.

Our opinions are subject to the following limitations, qualifications, exceptions and assumptions:

A. Our opinion set forth in paragraph 7 above with respect to the enforceability of the New York Transaction Documents referenced therein are subject to the following:

(i) the enforceability of such New York Transaction Documents may be limited by the effect of bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar laws relating to or affecting the rights of creditors generally, including, without limitation, laws relating to fraudulent transfers or conveyances, preferences and equitable subordination;

(ii) the enforceability of such New York Transaction Documents may be limited by statutory requirements with respect to good faith, fair dealing and commercial reasonableness, by general principles of equity (including, without limitation, the concepts of materiality, good faith, fair dealing and commercial reasonableness, regardless of whether enforcement is sought in a proceeding in equity or at law) and by the effect of judicial decisions that have held that certain provisions are unenforceable where their enforcement would violate the implied covenant of good faith and fair dealing, or would be commercially unreasonable, or where a default is not material, including those provisions regarding various self-help or summary remedies without notice or opportunity for hearing or correction, especially if their operation would work a forfeiture or impose a penalty upon the burdened party;

To the Addressees listed on Schedule 1

March 20, 2013

Page 9

(iii) the availability of equitable remedies, including without limitation specific enforcement and injunctive relief, is subject to the discretion of the court before which any proceedings therefor may be brought; and

(iv) with respect to the enforceability of the choice of New York law provisions in the New York Transaction Documents, we have relied upon the provisions of New York General Obligations Law Section 5-1401 and our opinion is subject to the qualification that the enforceability of such provisions may be limited by public policy considerations of any jurisdiction other than New York that would cause the New York Transaction Documents to be unenforceable, illegal, invalid or insufficient under the laws of the State of New York.

B. In giving the opinion set forth in paragraph 7 above with respect to the enforceability of any of the New York Transaction Documents referenced therein, we express no opinion as to:

(i) the enforceability of any provisions of such New York Transaction Document that purport to establish (or may be construed to establish) evidentiary standards;

(ii) the legality, validity, binding effect or enforceability of any provisions of such New York Transaction Document insofar as they provide for the payment or reimbursement of costs and expenses or indemnification for claims, losses or liabilities that are determined by any court or other tribunal to be in excess of a reasonable amount or to be against public policy;

(iii) the enforceability under certain circumstances of any provisions of such New York Transaction Document indemnifying a party against liability for its own wrongful or negligent acts;

(iv) the effect of the compliance or noncompliance by any party to a New York Transaction Document (other than the Opinion Parties) with any state or federal laws or regulations (including, without limitation, any unpublished order, decree, or directive issued by any Governmental Authority) applicable to such Person because of its legal or regulatory status, the nature of its business or its authority to conduct business in any jurisdiction;

To the Addressees listed on Schedule 1

March 20, 2013

Page 10

(v) the enforceability of any provisions of such New York Transaction Document that provide that the assertion or employment of any right or remedy shall not prevent the concurrent assertion or employment of any other right or remedy, or that each and every remedy shall be cumulative and in addition to every other remedy or that any delay or omission to exercise any right or remedy shall not impair any other right or remedy or constitute a waiver thereof, but the inclusion of such provisions does not render such New York Transaction Document otherwise unenforceable nor does such inclusion make the remedies afforded by such New York Transaction Document inadequate for the practical realization of the rights and benefits purported to be provided thereby;

(vi) the enforceability of any provisions of such New York Transaction Document providing for indemnification to the extent such indemnification violates the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, or the securities laws of any state;

(vii) the enforceability in the federal courts of the United States of America of any forum selection clause in such New York Transaction Document, except to the extent any such clause is made enforceable by New York General Obligations Law Section 5-1402, as applied by a New York state court or federal court sitting in New York and applying New York forum selection principles. We express no opinion as to the enforceability of any provision of such New York Transaction Document insofar as it purports to confer subject matter jurisdiction on any U.S. District Court to adjudicate any controversy relating to such New York Transaction Document in any circumstances in which such court would not have subject matter jurisdiction. In addition, our opinion is qualified by reference to the discretion that a federal court may exercise in light of 28 U.S.C. Section 1404(a) and relevant case law;

(viii) the enforceability of any choice of law provisions in such New York Transaction Document, except to the extent any such choice of law provision is made enforceable by New York General Obligations Law Section 5-1401, as applied by a New York state court or federal court sitting in New York and applying New York choice of law principles; or

(ix) the enforceability of any provision of such New York Transaction Document purporting to (A) impose restrictions on non-written modifications and waivers, (B) authorize or validate conclusive or discretionary determinations, (C) provide proxies, powers and trusts to any party, (D) provide for liquidated damages, default interest, late charges, monetary penalties, prepayment premiums or other economic remedies to the extent constituting a penalty, (E) provide for the marshaling of assets or set-offs or (F) provide for certain acts or matters to be null and void automatically or ab initio in each case to the extent determined to constitute penalties or otherwise to violate public policy.

To the Addressees listed on Schedule 1

March 20, 2013

Page 11

C. Our opinion set forth in paragraph 6 above is based upon a review of those statutes, rules and regulations that, in our experience, are normally applicable to transactions of the type contemplated by the New York Transaction Documents referenced therein.

D. As noted above, we do not express any opinion in paragraphs 1 through 8 and 14 through 16 with respect to the law of any jurisdiction other than the federal laws of the United States of America, the laws of the State of New York, the DLLCA, and the DGCL. Without limiting the generality of the foregoing, we express no opinion concerning the laws of any other jurisdiction in which the parties may be located or in which enforcement of the Transaction Documents may be sought. In rendering our opinions we have not made any investigation of, and express no opinion concerning, laws, rules and regulations of (i) the State of New York relating to land use, zoning, construction, or transportation and all laws, rules and regulations promulgated by political subdivisions of the State of New York or (ii) the United States or the State of New York relating to (A) insurance, (B) banking regulations, (C) taxes, (D) utilities, energy or power generation, transmission or sale or (E) health, safety, sanitation, the environment, environmental contamination or environmental conservation. In addition, we express no opinion concerning Section 406 of the Employee Retirement Income Security Act of 1974, as amended, or state securities or “blue sky” laws, Section 4975 of the Internal Revenue Code of 1986, as amended, or any rules, regulations or orders thereunder.

We express no opinion in paragraphs 9 through 13 as to (a) any collateral to the extent that the applicable debtor does not have rights therein or the power to transfer rights therein, or any collateral that is not adequately and sufficiently described in the applicable documents, (b) any security interest for which value has not been given to the applicable debtor, (c) any collateral that is of a type described in Section 9-501(a)(l) of the NYUCC or Section 9- 501(a)(l) of the DUCC, or that constitutes consumer goods or a commercial tort claim, (c) any consumer transaction, (e) any collateral that constitutes a debt, liability, or other obligation of the secured party, or (f) the priority of any security interest. We express no opinion in paragraphs 11(a), (b), or (c) as to (i) the perfection of any security interest if the applicable financing statement does not sufficiently set forth the name and address of each of the debtor and the secured party, and the type and jurisdiction of organization of the debtor, or (ii) any collateral in which a security interest cannot be perfected by the filing of a financing

To the Addressees listed on Schedule 1

March 20, 2013

Page 12

statement with the DE SOS under the DUCC. We express no opinion in paragraphs 12 or 13 if the applicable debtor is a securities intermediary, broker, or commodity intermediary. We express no opinion as to any collateral described in the proviso to Section 2.1 of the Security Agreement. Any opinion expressed herein as to any security interest in proceeds is subject to the provisions of Section 9-315 of the NYUCC and Section 9-315 of the DUCC.

Section 9-102(a)(80) of the DUCC defines a “transmitting utility”

as: a person primarily engaged in the business of:

(A) operating a railroad, subway, street railway, or trolley bus;

(B) transmitting communications electrically, electromagnetically, or by light;

(C) transmitting goods by pipeline or sewer; or

(D) transmitting or producing and transmitting electricity, steam, gas, or water.

We express no opinion as to whether or not the Company is a transmitting utility within the meaning of Section 9-102(a)(80) of the DUCC. We express no opinion in paragraph 11(c) if the Company is not a transmitting utility within the meaning of Section 9-102(a)(80) of the DUCC.

The opinions set forth in paragraphs 9, 10, 12, and 13 above are limited to Article 9 of the NYUCC, and thus such opinions cover only security interests, collateral, transactions, and perfection methods to the extent governed by Article 9 of the NYUCC. The opinions set forth in paragraph 11 above are limited to Article 9 of the DUCC, and thus such opinions cover only security interests, collateral, transactions, and perfection methods to the extent governed by Article 9 of the DUCC. We express no opinion in paragraphs 9 through 13 as to any matter regarding choice of law.

We have no obligation to perfect or to maintain the perfection or the priority of any security interest described in this opinion letter or to advise anyone after the date hereof as to actions necessary or advisable to do so.

To the Addressees listed on Schedule 1

March 20, 2013

Page 13

This opinion is solely for the benefit of the Company and the addressees hereof in connection with the transactions contemplated by the Note Purchase Agreement and may not be relied upon or used by any other person or for any other purpose without our prior written consent, except that (a) transferees, successors and assignees of the Notes may rely on this opinion as if they were an original addressee, provided that any such reliance by a transferee, successor or assign must be actual and reasonable under the circumstances existing at the time of assignment, including any changes in law, facts or any other developments known to or reasonably knowable by the transferee, successor or assign at such time, and (b) you may provide copies of this opinion letter to (i) any governmental or regulatory agency (including, without limitation, the NAIC) having jurisdiction over you and (ii) any court of law or other tribunal in connection with any matter relating to the Note Purchase Agreement. This letter speaks only as of the date hereof. We disclaim any responsibility or obligation to update this opinion, to consider its applicability or correctness to other than its addressees, or to take into account changes in law, facts or any other developments of which we may later become aware.

Very truly yours,

ORRICK, HERRINGTON & SUTCLIFFE LLP

SCHEDULE 1

Addressees

Deutsche Bank Trust Company Americas, as Collateral Agent under the Note Purchase Agreement

Each Purchaser party to the Note Purchase Agreement

EXHIBIT A

UCC FINANCING STATEMENT

FOLLOW INSTRUCTIONS (front and back) CAREFULLY

A.	NAME & PHONE OF CONTACT AT FILER (optional)
	Lisa Phillips                                   (212) 906-1200
B.	SEND ACKNOWLEDGMENT TO: (Name and Address)
	Latham & Watkins LLP 885 Third Avenue New York, NY 10022 Lisa.phillips@lw.com	THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY

1. DEBTOR’S EXACT FULL LEGAL NAME-insert only=debtor name (1a or 1b)-do not abbreviate or combine names

	1a. ORGANIZATION’S NAME
	Diamond State Generation Holdings, LLC
OR	1b. INDIVIDUAL’S LAST NAME			FIRST NAME	MIDDLE NAME	SUFFIX
1c.	MAILING ADDRESS 1299 Orleans Drive			CITY Sunnyvale	STATE POSTAL CODE CA 94089	COUNTRY USA
1d. :SEE INSTRUCTIONS		IADD’L INFO RE 11e . TYPE OF ORGANIZATION		11. JURISDICTION OF ORGANIZATION	1g. ORGANIZATIONAL ID#. if any
		ORGANIZATION	LLC	Delaware
		DEBTOR	I			NONE
				I
2. ADDITIONAL DEBTOR’S EXACT FULL LEGAL NAME - insert only one debtor name (2a or 2b) - do not abbreviate or combine names
	2a. ORGANIZATION’S NAME
OR	2b. INDIVIDUAL’S LAST NAME			FIRST NAME	MIDDLE NAME	SUFFIX
2c. MAILING ADDRESS				CITY	STATE POSTAL CODE	COUNTRY
				2f. JURISDICTION OF ORGANIZATION	2g. ORGANIZATIONAL ID #, if any
2d. SEE INSTRUCTIONS		IADD’L INFO RE 2e. TYPE OF ORGANIZATION
		ORGANIZATION
		DEBTOR	I	I		NONE
			I
3. SECURED PARTY’S NAME (or NAME of TOTAL ASSIGNEE of ASSIGNOR S/P)-insert only one secured party name (3a or 3b)
	3a. ORGANIZATION’S NAME
	Deutsche Bank Trust Company Americas, as Collateral Agent
OR	3b. INDIVIDUAL’S LAST NAME			FIRST NAME	MIDDLE NAME	SUFFIX
3c. MAILING ADDRESS 60 Wall Street, MSNYC 60-2710				CITY New York	STATE POSTAL CODE NY 10005	COUNTRY USA

4. This FINANCING STATEMENT covers the following collateral:

See Schedule A attached hereto and by this reference incorporated herein for a description of the Collateral.

5. ALTERNATIVE DESIGNATION [if applicable]: ☐LESSEE/LESSOR ☐CONSIGNEE/CONSIGNOR ☐BAILEE/BAILOR ☐SELLER/BUYER ☐AG. LIEN ☐NON-UCC FILING
6. ☐This FINANCING STATEMENT is to be filed [for record] (or recorded) in the           REAL ESTATE RECORDS         Attach Addendum         [if applicable]	7. Check to REQUEST SEARCH REPORT (S) on Debtor(s) [ADDITIONAL FEE] [optional]	☐All Debtors ☐	Debtor 1☐	Debtor 2
8. OPTIONAL FILER REFERENCE DATA	034738-0017	F#376727
Filed with: DE - Secretary of State		A#543036

SCHEDULE A TO UCC-1 FINANCING STATEMENT

DEBTOR:	DIAMOND STATE GENERATION HOLDINGS, LLC
SECURED PARTY:	DEUTSCHE BANK TRUST COMPANY AMERICAS, as Collateral Agent

This Financing Statement covers all of the Debtor’s right, title and interest in the following property, whether now owned or hereafter existing, owned or acquired, and wherever located (collectively, the “Collateral”):

Any and all of Debtor’s right, title and interest, whether now owned or hereafter existing or acquired, in Diamond State Generation Partners, LLC, a Delaware limited liability company (the “Company’’), and all limited liability company interests of the Company related thereto (the “Pledged Equity Interests”), and:

(a) all rights to receive income, gain, profit, dividends and other distributions allocated or distributed to Debtor in respect of or in exchange for all or any portion of the Pledged Equity Interests;

(b) all of Debtor’s capital or ownership interest, including capital accounts, in the Company, and all accounts, deposits or credits of any kind with the Company;

(c) all of Debtor’s voting rights in or rights to control or direct the affairs of the Company;

(d) all of Debtor’s rights, title and interest, as the sole member of the Company, in, to or under any and all of the Company’s assets or properties;

(e) all other rights, title and interest in or to the Company derived from the Pledged Equity Interests;

(f) all indebtedness or other obligations of the Company owed to Debtor;

(g) all claims of Debtor for damages arising out of, or for any breach or default relating to, any of the foregoing;

(h) all rights of Debtor to terminate, amend, supplement, modify, or cancel, the Governing Documents, to take all actions thereunder and to compel performance and otherwise exercise all remedies thereunder;

(i) all Securities, notes, certificates and other Instruments representing or evidencing any of the foregoing rights and interests or the ownership thereof and any interest of Debtor reflected in the books of any financial intermediary pertaining to such rights and interests and all non-cash dividends, cash, options, warrants, stock splits, reclassifications, rights, Instruments or other Investment Property and other property or Proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such rights and interests; and

(j) to the extent not included in any of the foregoing, all Proceeds of the foregoing Collateral, whether cash or non-cash;

provided, that “Collateral” shall not include any dividend, distribution or other payment of whatever nature (whether in cash or kind) to Debtor not prohibited by the terms of the Note Purchase Agreement.

As used in this Financing Statement, the following terms have the following meanings:

“Governing Documents” means, collectively, (i) the Company’s certificate of formation, dated April 14, 2011, as amended by that certain Certificate of Amendment, dated May 26, 2011 (as amended from time to time) and (ii) the Company’s Second Amended and Restated Limited Liability Company Agreement dated as of March 20, 2013 (as amended from time to time).

“Note Purchase Agreement” means the agreement dated as of March 20, 2013 (as amended, amended and restated, supplemented modified from time to time) between the Company and the purchasers party thereto (the “Purchasers”) pursuant to which the Company will issue and sell the Notes to the Purchasers.

“Securities” shall have the meaning specified in section 2(1) of the Securities Act of 1933, as amended from time to time, and the rules and regulations promulgated thereunder · from time to time in effect.

“UCC” means the Uniform Commercial Code as the same may, from time to time, be in effect in the State of New York; provided, however, that in the event that, by reason of mandatory provisions of law, any or all of the perfection or priority of the security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such perfection or priority and for purposes of definitions related to such provisions.

Unless otherwise defined herein, (i) all capitalized terms used shall have the meanings provided the Note Purchase Agreement or, if not defined therein, the UCC, and (ii) all terms defined in the UCC and used herein shall have the same definitions herein as specified therein. If a term is defined in Article 9 of the UCC differently than in another Article of the UCC, the term has the meaning specified in Article 9.

EXHIBIT B

UCC FINANCING STATEMENT

FOLLOW INSTRUCTIONS /front and back\ CAREFULLY

A.	NAME & PHONE OF CONTACT AT FILER [optional]
	Lisa Phillips                                   (212) 906-1200
B.	SEND ACKNOWLEDGMENT TO: (Name and Address)
	Latham & Watkins LLP 885 Third Avenue New York, NY 10022 Lisa.phillips@lw.com	THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY

1. DEBTOR’S EXACT FULL LEGAL NAME-insert only one debtor name (1a or 1b)-do not abbreviate or combine names

	1a. ORGANIZATION’S NAME
	Diamond State Generation Partners, LLC
OR	1b. INDIVIDUAL’S LAST NAME			FIRST NAME	MIDDLE NAME	SUFFIX
1c.	MAILING ADDRESS 1252 Orleans Drive			CITY Sunnyvale	STATE POSTAL CODE CA 94089	COUNTRY USA
1d. see instructions		ADD’L INFO RE 11e. TYPE OF ORGANIZATION		11. JURISDICTION OF ORGANIZATION	1g. ORGANIZATIONAL ID #. if any
		ORGANIZATION	LLC	Delaware
		DEBTOR	I		I	NONE
2. ADDITIONAL DEBTOR’S EXACT FULL LEGAL NAME - insert only QM debtor name (2a or 2b) - do not abbreviate or combine names
	2a. ORGANIZATION’S NAME
OR	2b. INDIVIDUAL’S LAST NAME			FIRST NAME	MIDDLE NAME	SUFFIX
2c. MAILING ADDRESS				CITY	STATE POSTAL CODE	COUNTRY
2d. SEE INSTRUCTIONS		ADD’L INFO RE 2e. TYPE OF ORGANIZATION
		ORGANIZATION
		DEBTOR	I	I
			I			NONE
3. SECURED PARTY’S NAME (or NAME of TOTAL ASSIGNEE of ASSIGNOR S/P)-insert only pone secured party name (3a or 3b)
	3a. ORGANIZATION’S NAME
	Deutsche Bank Trust Company Americas, as Collateral Agent
OR	3b. INDIVIDUAL’S LAST NAME			FIRST NAME	MIDDLE NAME	SUFFIX
3c. MAILING ADDRESS 60 Wall Street, MSNYC 60-2710				CITY New York	STATE POSTAL CODE NY 10005	COUNTRY USA

4. This FINANCING STATEMENT covers the following collateral:

This financing statement covers all assets of the Debtor, whether now existing or hereafter arising.

Notwithstanding the foregoing, the collateral shall not include Debtor’s rights and interests in (1) proceeds from a cash grant under Section 1603 of division B of the American Recovery and Reinvestment Act of 2009, as amended, or (2) that certain cash grant account established and held by Debtor with Wilmington Trust, National Association.

5. ALTERNATIVE DESIGNATION [if applicable]: ☐LESSEE/LESSOR ☐CONSIGNEE/CONSIGNOR ☐BAILEE/BAILOR ☐SELLER/BUYER ☐AG. LIEN ☐NON-UCC FILING
6. ☐This FINANCING STATEMENT is to be filed (for record) (or recorded) in the REAL           ESTATE RECORDS         Attach Addendum         [if applicable]	7. Check to REQUEST SEARCH REPORT(S) on Debtor(s) [ADDITIONAL FEE] [optional]	☐All Debtors ☐	Debtor 1☐	Debtor 2
8. OPTIONAL FILER REFERENCE DATA	034738-0017	F#376729
Filed with: DE - Secretary of State		A#543038

EXHIBIT C

UCC FINANCING STATEMENT

FOLLOW INSTRUCTIONS /front and back) CAREFULLY

A.	NAME & PHONE OF CONTACT AT FILER (optional)
	Rosalind Rodburg                                   212-906-1874
B.	SEND ACKNOWLEDGMENT TO: (Name and Address)
	Latham & Watkins LLP 885 Third Avenue New York, NY 10022 Rosalind.Rodburg@lw.com	THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY

1. DEBTOR’S EXACT FULL LEGAL NAME-insert only one debtor name(1a or 1b)-do not abbreviate or combinenames

	1a. ORGANIZATION’S NAME
	Diamond State Generation Partners, LLC
OR	1b. INDIVIDUAL’S LAST NAME			FIRST NAME	MIDDLE NAME	SUFFIX
1c.	MAILING ADDRESS 1252 Orleans Drive			CITY Sunnyvale	STATE POSTAL CODE CA 94089	COUNTRY USA
1d. SEE INSTRUCTIONS		ADD’L INFO RE 11e . TYPE OF ORGANIZATION		1f. JURISDICTION OF ORGANIZATION	1g. ORGANIZATIONAL ID #, if any
		ORGANIZATION	LLC	Delaware	I
		DEBTOR	I			NONE
2. ADDITIONAL DEBTOR’S EXACT FULL LEGAL NAME • insert only one debtor name (2a or 2b) • do not abbreviate or combine names
	2a. ORGANIZATION’S NAME
OR	2b. INDIVIDUAL’S LAST NAME			FIRST NAME	MIDDLE NAME STATE POSTAL CODE	SUFFIX
2c. MAILING ADDRESS				CITY		COUNTRY
				21. JURISDICTION OF ORGANIZATION	2g. ORGANIZATIONAL ID #, if any
2d. SEE Instructions		ADD”L INFO RE I 2e. TYPE OF ORGANIZATION
		ORGANIZATION
		DEBTOR	I	I		NONE
			I
3. SECURED PARTY’S NAME (or NAME of TOTAL ASSIGNEE of ASSIGNOR SIP) - insert only. one secured party name (3a or 3b)
	3a. ORGANIZATION’S NAME
	Deutsche Bank Trust Company Americas, as Collateral Agent
OR	3b. INDIVIDUAL’S LAST NAME			FIRST NAME	MIDDLE NAME STATE POSTAL CODE	SUFFIX
3c. MAILING ADDRESS 60 Wall Street, MSNYC 60-2710				CITY New York	NY 10005	COUNTRY USA

4. This FINANCING STATEMENT covers the following collateral:

This financing statement covers all assets of the Debtor, including fixtures, whether now existing or hereafter arising.

Notwithstanding the foregoing, the collateral shall not include Debtor’s rights and interests in (1) proceeds from a cash grant under Section 1603 of division B of the American Recovery and Reinvestment Act of 2009, as amended, or (2) that certain cash grant account established and held by Debtor with Wilmington Trust, National Association.

5. ALTERNATIVE DESIGNATION [if applicable]: ☐LESSEE/LESSOR ☐CONSIGNEE/CONSIGNOR ☐BAILEE/BAILOR ☐SELLER/BUYER ☐AG. LIEN ☐NON-UCC FILING
6. ☐This FINANCING STATEMENT is to be filed [for record] (or recorded) in the REAL           ESTATE RECORDS Attach Addendum [if applicable]	7. Check to REQUEST SEARCH REPORT(S) on Debtor(s) [ADDITIONAL FEE]         [optional]	☐All Debtors ☐	Debtor 1 ☐	Debtor 2
8. OPTIONAL FILER REFERENCE DATA	034738-0017	F#377123
Filed with: DE - Secretary of State		A#543517

UCC FINANCING STATEMENT ADDENDUM
FOLLOW INSTRUCTIONS (front and back) CAREFULLY
9.	NAME OF FIRST DEBTOR (1a or 1b) ON RELATED FINANCING STATEMENT
OR	9a. ORGANIZATION’S NAME
	Diamond State Generation Partners, LLC
	9b. INDIVIDUAL’S LAST NAME    |    FIRST NAME    |    MIDDLE NAME. SUFFIX
10. MISCELLANEOUS:		THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY

11 ADDITIONAL DEBTOR’S EXACT FULL LEGAL NAME - insert only 2!!11 name (11a or 11b)- do not abbreviate or combine names
	11a. ORGANIZATION’S NAME
OR	11b. INDIVIDUAL’S LAST NAME			FIRST NAME	MIDDLE NAME	SUFFIX
11c. MAILING ADDRESS				CITY	STATE ‘POSTAL CODE	COUNTRY
				111. JURISDICTION OF ORGANIZATION	11g. ORGANIZATIONAL 10 #, if any
11d. SEE INSTRUCTIONS		IADD’L INFO RE 11e. TYPE OF ORGANIZATION
		ORGANIZATION
		DEBTOR	I	I		none
			I
12.	I ADDITIONAL SECURED PARTY’S g,: I I ASSIGNOR S/P’S NAME - Insert only one name (12a or 12b)
	12a. ORGANIZATION’S NAME
OR	12b. INDIVIDUAL’S LAST NAME			FIRST NAME	MIDDLE NAME	SUFFIX
12c.	MAILING ADDRESS			CITY	STATE POSTAL CODE	COUNTRY
13.	This FINANCING STATEMENT covers u timber to be cut or LJ as-extracted collateral, or is filed as a fixture filing.			16. Additional collateral description:
14.	Description of real estate:
				17. Check .only if applicable and check .ONLY one box.
15.	Name and address of a RECORD OWNER of above-described real estate (if Debtor does not have a record interest):			Debtor is a Trust or Trustee acting with respect to property held in trust or Decedent’s Estate
				18. Check only if applicable and check only one box.       Debtor is a TRANSMITTING UTILITY
				0 Filed in connection with a Manufactured-Horne Transaction
				Filed in connection with a Public-Finance Transaction

Exhibit 4.1.13(b)

FORM OF OPINION OF SPECIAL REGULATORY COUNSEL

TO THE COMPANY

[See Execution Version]

EXHIBIT 4.1.13(b) TO NOTE PURCHASE AGREEMENT

To the Addressees listed on Schedule 1

March 20, 2013

Page 2 of 4

for such opinions, upon the representations, certificates and statements made or otherwise provided to us by the Company and its respective officers and other representatives, and of public officials, and upon such documents, records and instruments as we have deemed appropriate, in each case without independent check or verification of the accuracy of such documents, records and instruments.

Further, with your permission we have assumed (i) that each of the parties to the Transaction Documents (A) is duly organized or formed and validly existing under the laws of its respective jurisdiction of organization or formation and has full power, authority, and legal right to enter into and perform its obligations under each Transaction Document to which it is a party, (B) has duly authorized each Transaction Document to which it is a party, and (C) has duly executed and delivered each Transaction Document to which it is a party, (ii) that each of the Transaction Documents constitutes the legal, valid and binding obligation of each of the parties thereto, enforceable against such parties in accordance with its terms, (iii) that, except as otherwise expressly provided in this opinion with respect to the Company, the parties to the Transaction Documents have received, or will receive by the time required, and will, to the extent required by any governmental requirement, maintain in full force and effect, all consents, approvals, filings, notices and other authorizations from any Governmental Authority (collectively, “Governmental Approvals”) which are required for the due execution, delivery and performance by the parties to the Transaction Documents and that such execution, delivery and performance by the parties to the Transaction Documents does not and will not conflict with any provision of any governmental requirement or the terms of any Governmental Approval applicable to the parties to the Transaction Documents or the conduct of their respective businesses or any agreement or instrument to which they are a party or by which they or their property are bound; provided, however, we have not made such assumptions with respect to the Governmental Approvals that are the subject of this opinion, (iv) the absence of any evidence extrinsic to the provisions of the Transaction Documents that the parties thereto intended a meaning contrary to that expressed by those provisions, and (v) the truth, accuracy and completeness of the information, representations and warranties contained in the records, documents, instruments and certificates we have reviewed.

We express no opinion as to any laws except the Federal Power Act, as amended (“FPA”), and the Public Utility Holding Company Act of 2005 (“PUHCA 2005”, and together with the FPA, the “Federal Utility Regulatory Laws”), in each case as in effect on the date hereof, and our opinion is limited to and applies only insofar as such laws may be concerned.

We have assumed that all governmental requirements have been duly enacted and validly promulgated, that each Governmental Authority has been duly constituted and that all public officials and all members of each Governmental Authority have been duly appointed and are lawfully holding the positions to which they have been elected or appointed, and that any actions taken by them under delegated authority are undertaken pursuant to properly delegated authority.

To the Addressees listed on Schedule 1

March 20, 2013

Page 3 of 4

Based upon the foregoing and subject to the limitations, qualifications, exceptions and assumptions set forth herein, we are of the opinion that:

1. The Company has received all necessary approvals from the Federal Energy Regulatory Commission (“FERC”) for its sale of electric energy, capacity and ancillary services from the facilities to markets operated by PJM Interconnection, L.L.C at market-based rates and to which FERC has granted all waivers from regulation and blanket authorizations under the FPA that are customarily granted to entities with market-based rate authority, including blanket authorization under Section 204 of the FPA to issue securities and assume liabilities.

2. Except with respect to regulations applicable to exempt wholesale generators, the Company is not subject to, or is exempt from, regulation under PUHCA 2005.

3. The Company is an exempt wholesale generator as defined in 18 C.F.R. § 366.1 of the FERC’s regulations implementing PUHCA 2005.

4. Except for those that have been previously obtained or made or which are authorized under the Federal Energy Regulatory Laws to be obtained or made after the date hereof, no consent, authorization, approval, or other action by FERC is required under the Federal Energy Regulatory Laws for the execution or delivery of the Note Purchase Agreement by the Company.

5. None of the Collateral Agent or the Purchasers of the Notes will, solely as a result of the Company’s execution, delivery or performance of the Note Purchase Agreement or the consummation of the transactions contemplated by the Transaction Documents, become subject to or not exempt from regulation under the Federal Energy Regulatory Laws (other than by reason of actions in connection with the Collateral Agent’s exercise of remedies, including but not limited to any action which would permit it to direct the operations or management of the Company or its facilities).

As noted above, we do not express any opinion with respect to the law of any jurisdiction other than the Federal Utility Regulatory Laws. Without limiting the generality of the foregoing, we express no opinion concerning the laws of any other jurisdiction in which the parties may be located or in which enforcement of the Transaction Documents may be sought.

To the Addressees listed on Schedule 1

March 20, 2013

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This opinion is solely for the benefit of the Company and the addressees hereof in connection with the transactions contemplated by the Note Purchase Agreement and may not be relied upon or used by any other person or for any other purpose without our prior written consent, except that (a) transferees, successors and assignees of the Notes may rely on this opinion as if they were an original addressee, provided that any such reliance by a transferee, successor or assign must be actual and reasonable under the circumstances existing at the time of assignment, including any changes in law, facts or any other developments known to or reasonably knowable by the transferee, successor or assign at such time, and (b) you may provide copies of this opinion letter to (i) any governmental or regulatory agency (including, without limitation, the NAIC) having jurisdiction over you and (ii) any court of law or other tribunal in connection with any matter relating to the Note Purchase Agreement. This letter speaks only as of the date hereof. We disclaim any responsibility or obligation to update this opinion, to consider its applicability or correctness to other than its addressees, or to take into account changes in law, facts or any other developments of which we may later become aware.

Very truly yours,

ORRICK, HERRINGTON & SUTCLIFFE LLP

SCHEDULE 1

Addressees

Deutsche Bank Trust Company Americas, as Collateral Agent under the Note Purchase Agreement

Each Purchaser party to the Note Purchase Agreement

SCHEDULE 2

TRANSACTION DOCUMENTS

1. Depositary Agreement

2. Pledge Agreement

3. Security Agreement

4. Collateral Agency Agreement

5. Interparty Agreement

SCHEDULE 3

FERC Documents

1. Diamond State Generation Partners, LLC, Application for Market-Based Rate Authority, Request for Waivers and Authorizations, Request for Finding of Qualification as Category 1 Seller, and Request for Expedited Consideration, filed with FERC on March 29, 2012, in Docket No. ER12-1383-000.

2. Diamond State Generation Partners, LLC, Amendment to Application and Request for Shortened Comment Period, filed with FERC on April 23, 2012, in Docket No. ER12-1383-001.

3. Diamond State Generation Partners, LLC, unpublished letter order issued by FERC on May 23, 2012, in Docket No. ER12-1383-001.

4. Diamond State Generation Partners, LLC, Notice of Self-Certification of Exempt Wholesale Generator Status, filed with FERC on March 15, 2012, in Docket No. EG12-44-000.

5. Notice of Effectiveness of Exempt Wholesale Generator Status, issued by FERC on June 12, 2012, in Docket Nos. EG12-36-000, etal.

6. Bloom Energy Corporation, et. al., Form FERC-65 Notification of Holding Company Status, filed with FERC on October 1, 2012, in Docket No. HC13-1-000.

7. Bloom Energy Corporation, et. al., Form FERC-65-B Notification of Waiver, filed with FERC on October 2, 2012, in Docket No. PH13-1-000.

8. Bloom Energy Companies, Form FERC-65 Revised Notification of Holding Company Status, filed with FERC on January 14, 2013, in Docket No. HC13-1-000.

9. Bloom Energy Companies, Form FERC-65-B Notification of Waiver, filed with FERC on January 14, 2013, in Docket No. PH13-9-000.

Exhibit 4.1.13(c)

FORM OF OPINION OF SPECIAL CONSTITUTIONAL COUNSEL

TO THE COMPANY

[See Execution Version]

EXHIBIT 4.1.13(c) TO NOTE PURCHASE AGREEMENT

ORRICK, HERRINGTON & SUTCLIFFE LLP THE ORRICK BUILDING 405 HOWARD STREET SAN FRANCISCO, CALIFORNIA 94105-2669   tel +1-415-773-5700 fax +1-415-773-5759   WWW.ORRICK.COM

March 20, 2013

The Parties Listed on Schedule A

Diamond State Generation Partners, LLC

Senior Secured Notes

Ladies and Gentlemen:

We have acted as counsel to Diamond State Generation Partners, LLC(the “Issuer”) in connection with its execution and delivery of (i) the Note Purchase Agreement (the “Note Purchase Agreement”), dated March 20, 2013, and (ii) the Security Agreement (the “Security Agreement”) dated March 20, 2013, between the Issuer, as grantor, and Deutsche Bank Trust Company Americas, as Collateral Agent. As used herein, the “Act” means Subchapter III-A (Renewable Energy Portfolio Standards) of Chapter 1 of Title 26 of the Delaware Code, commencing with Section 351, as amended to the date hereof; “Bloom” means the Sponsor as defined in the Note Purchase Agreement; “DPL” means DPL as defined in the Note Purchase Agreement; “Project” means the Project as defined in the Note Purchase Agreement; “Revenue Charge” means “revenue charge” as defined in the Security Agreement; “Revenue Property” means “revenue property” as defined in the Security Agreement; “State” means the state of Delaware; “State Pledge” means the last sentence of Section 364(h) of the Act; “Obligations” means obligations within the meaning of the State Pledge; and “Tariff’ means the Tariff as defined in the Note Purchase Agreement.

OPINIONS REQUESTED

You have requested our opinions as to whether:

1. The Issuer, as an owner of Revenue Property, could successfully challenge under the Contract Clause of the United States Constitution (the “Contract Clause”) the constitutionality of any legislation passed by the State legislature which becomes law, or any action of the Commission exercising legislative powers, which (in either case), without consent of the owners of Revenue Property, violates the State Pledge in a manner that substantially impairs the right of the Issuer, as an owner of Revenue Property, to receive the Revenue Charge as provided in the Tariff, before either (i) the Obligations are fully met and discharged, or (ii) adequate provision shall be made by law for the full recovery by the qualified fuel cell provider project, unless such court concludes that the State has demonstrated that, in light of the circumstances, such legislation is reasonable and necessary to serve a significant and legitimate public purpose, such as remedying a broad and general social or economic problem. Such legislation or Commission action is referred to herein as “Impairment Legislative Action.”

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2. If the State passes legislation which becomes law, or the Commission takes action, which (in either case), without consent of the owners of Revenue Property and without compensation, is in contravention of the State Pledge and diminishes the value of Revenue Property, there would be a compensable taking with respect to the Revenue Property under the Takings Clause of the Fifth Amendment to the United States Constitution (made applicable to the State by the Fourteenth Amendment to the United States Constitution, the “Takings Clause”) if the court determines that:

(A) the Revenue Property is property of a type protected by the Takings Clause; and

(B) the law or action, for a public use, either

(1) permanently appropriates the Revenue Property or denies all economically productive use of the Revenue Property;

(2) destroys the Revenue Property, other than in response to emergency conditions; or

(3) reduces the value of the Revenue Property and

(i) does not substantially advance a legitimate State interest, or

(ii) unduly interferes with the claimant’s reasonable investment-backed expectations.

ASSUMPTIONS

This opinion letter is based solely upon our examination of such matters of law as we have deemed necessary for purposes of rendering the opinions set forth herein. We have made no investigation of any matter.

We have assumed, without investigation, that the following statements are true and correct at all relevant times.

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The State has enacted the Act. Under certain circumstances, the Issuer is entitled to receive a portion of the Revenue Charge with respect to Revenue Property created pursuant to the Act and the Tariff, approved in Order No. 8062 adopted by the Public Service Commission (the “Commission”) of the State on October 18, 2011, and Order No. 8079, adopted by the Commission on December 1, 2011 (together, the “Orders”).

Section 364(h) of the Act provides:

Notwithstanding any other provision of the Delaware Code to the contrary except as otherwise provided in this chapter, with respect to revenue property, the tariffs with respect to disbursements and costs arising out of the qualified fuel cell provider project and recovery of costs addressed in subsections (a) through (c) of this section shall be irrevocable and the Commission shall not have authority either by rescinding, altering, or amending the tariff provisions or otherwise, to revalue or revise for ratemaking purposes the disbursements and costs arising out of the qualified fuel cell provider project, or the costs of recovering such costs, determine that the disbursements and costs of the qualified fuel cell provider project are unjust or unreasonable, or in any way reduce or impair the value of revenue property either directly or indirectly by taking project revenue amounts, disbursements or costs arising out of the qualified fuel cell provider project into account when setting other rates for the commission-regulated electric company; nor shall the disbursements, amount of revenues or costs arising with respect thereto be subject to reduction, impairment, postponement, or termination. Except as otherwise provided in this section, the State of Delaware does hereby pledge and agree with the owners of revenue property and the commission-regulated electric company as the agent for collecting and disbursement on behalf of a qualified fuel cell provider project and in collecting costs incurred by the electric company addressed in subsections (a) through (c) of this section that the State shall neither limit nor alter the revenue property and all rights thereunder until the obligations, are fully met and discharged, provided nothing contained in this section shall preclude the limitation or alteration if and when adequate provision shall be made by law for the full recovery by the qualified fuel cell provider project and the commission- regulated electric company.

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Revenue Property constitutes “revenue property” within the meaning of the State Pledge. Revenue Property constitutes a property right under State law. The Issuer is an owner of Revenue Property under State law. Bloom is a “qualified fuel cell provider” and the Project is a “qualified fuel cell provider project” within the meaning of the Act. The Issuer is a “QFCP Generator” within the meaning of the Tariff. Pursuant to the Tariff, the Issuer, as an owner of Revenue Property, is entitled to be paid a portion of the Revenue Charge for a specified period that does not exceed 25 years from the date hereof.

In enacting the Act, the purposes of the State included:

1. inducing Bloom and other qualified fuel cell providers to manufacture fuel cells within the State at facilities designated by the State as an economic development opportunity;

2. inducing the Issuer and other QFCP Generators to develop qualifying fuel cell provider projects located in the State;

3. inducing the Issuer and other QFCP Generators to commit to sell all electric energy, capacity, and ancillary services generated by those qualifying fuel cell provider projects into wholesale electric markets administered by PJM Interconnections, LLC (“PJM”), a regional transmission organization which coordinates the movement of wholesale electricity in all or parts of 13 states (including the State) and the District of Columbia; and

4. inducing DPL and other Commission-regulated electric companies to accept service applications submitted by the Issuer and other QFCP Generators by crediting Commission-regulated electric companies with renewable energy credits arising in respect of qualified fuel cell provider projects.

Under the Act, a revenue charge cannot be imposed with respect to a qualified fuel cell project unless and until the Commission approves a joint application filed by a Commission-regulated electric company and a qualifying fuel cell provider. The Revenue Charge has a finite term, not to exceed 25 years.

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DPL provides electric and gas utility service to service areas located in part in the State. DPL is an electric company that is subject to regulation by the Commission in connection with these electric and gas service areas in the State. DPL and the Issuer have executed and delivered a Service Application (the “Service Agreement”), dated as of June 28, 2011, which is a valid, binding, and enforceable contract under State law. The substantive provisions of the Service Agreement, however, by their terms become effective only upon the occurrence of specified events, including that the Act and the Tariff become effective.

The Act was validly enacted. The Tariff was legally and validly approved by the Commission. The Orders were legally and validly adopted by the Commission. The Act, the Orders, and the Tariff are valid and in full force and effect. The Service Agreement is valid and in full force and effect.

OPINIONS

(1) Based upon and subject to the assumptions and discussion set forth above, as well as the Analysis and the Limitations and Qualifications set forth below and the further qualification that there is no case directly on point, it is our opinion that, if the matter were properly briefed and presented to a court, the court, exercising reasonable judgment after full consideration of all relevant factors and of the case law discussed below under “Analysis,” would hold that the Issuer, as an owner of Revenue Property, could successfully challenge under the Contract Clause the constitutionality of any legislation passed by the State legislature which becomes law, or any action of the Commission exercising legislative powers, which (in either case), without consent of the owners of Revenue Property, violates the State Pledge in a manner that substantially impairs the right of the Issuer, as an owner of Revenue Property, to receive the Revenue Charge as provided in the Tariff, before either (i) the Obligations are fully met and discharged, or (ii) adequate provision is made by law for the full recovery by the qualified fuel cell provider project, unless such court concludes that the State has demonstrated that, in light of the circumstances, such legislation is reasonable and necessary to serve a significant and legitimate public purpose, such as remedying a broad and general social or economic problem.

(2) Based upon and subject to the assumptions and discussion set forth above, as well as the Analysis and the Limitations and Qualifications set forth below and the further qualification that there is no case directly on point, it is our opinion that, if the matter were properly briefed and presented to a court, the court, exercising reasonable judgment after full consideration of all relevant factors and of the case law discussed below under “Analysis,” would hold that if the State passes legislation which becomes

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law, or the Commission takes action, which (in either case), without consent of the owners of Revenue Property and without compensation, is in contravention of the State Pledge and diminishes the value of Revenue Property, there would be a compensable taking with respect to the Revenue Property under the Takings Clause if such court determines that:

(A) the Revenue Property is property of a type protected by the Takings Clause; and

(B) the law or action, for a public use, either

(1) permanently appropriates the Revenue Property or denies all economically productive use of the Revenue Property;

(2) destroys the Revenue Property, other than in response to emergency conditions; or

(3) reduces the value of the Revenue Property and

(i) does not substantially advance a legitimate State interest, or

(ii) unduly interferes with the claimant’s reasonable investment-backed expectations.

ANALYSIS

I. Contract Clause

The Contract Clause provides: “No state shall . . . pass any . . . Law impairing the Obligation of Contracts...” U.S. Const., art. I, § 10. The Contract Clause protects contracts to which a state or other government is a party as well as contracts between private parties. United States Trust Co. of New York v. New Jersey, 431 U.S. 1, 17 (1977). The general purpose of the Contract Clause is to encourage trade and credit by promoting confidence in the stability of contractual obligations. Id. at 15. The law is well settled that “the Contract Clause limits the power of states to modify their own contracts as well as to regulate those between private parties. Id. at 17 (citations omitted). Although the Contract Clause appears literally to proscribe “any” impairment, the Supreme Court has observed that ‘“the prohibition is not an absolute one and is not to be read with literal exactness like a mathematical formula.”’ Id. at 21 (quoting Home Building & Loan Assn. v. Blaisdell, 290 U.S. 398,428 (1934)).

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Whether a State law (including action by the Commission of a legislative nature) violates the Contract Clause is governed by a three-step inquiry: “The threshold inquiry is ‘whether the State law has, in fact, operated as a substantial impairment of a contractual relationship.”’ Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400,411 (1983) (quoting Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 244 (1978). This threshold inquiry itself has three components: “whether there is a contractual relationship, whether a change in law impairs that contractual relationship, and whether the impairment is substantial.” Gen. Motors Corp. v. Romein, 503 U.S. 181, 186 (1992). In addition, to succeed with a Contract Clause claim involving a contract with the State itself, a party must show that the contractual relationship is not an invalid attempt by the State to “surrender[] an essential attribute of its sovereignty.” US. Trust, 431 U.S. at 23 (alteration in original).

If the threshold inquiry is met, the courts inquire whether “the State, in justification, [has] a significant and legitimate public purpose behind the regulation, such as the remedying of a broad and general social or economic problem,” to guarantee that “the State is exercising its police power, rather than providing a benefit to special interests.” Energy Reserves Group, Inc. 459 U.S. at 411-12 (citation omitted). Finally, courts inquire “whether the adjustment of ‘the rights and responsibilities of contracting parties is based upon reasonable conditions and is of a character appropriate to the public purpose justifying the legislation’s adoption.”’ Id. at 412-13 (quoting US. Trust Co., 431 U.S. at 22). Thus, if State legislation (including action by the Commission of a legislative nature) is found to have substantially impaired contract rights, courts will find a violation of the Contract Clause unless the impairment is both “reasonable and necessary to serve an important public purpose.” US. Trust Co., 431 U.S. at 25. “The severity of the impairment measures the height of the hurdle the state legislation must clear.” Allied Structural Steel Co., 438 U.S. at 245. “Minimal alteration of contractual obligations may end the inquiry at the first stage. Severe impairment, on the other hand, will push the inquiry to a careful examination of the nature and purpose of the state legislation.” Id.

When applying these standards to a contract between private parties, at least with respect to an impairment caused by state law that imposes economic and social regulation, “courts properly defer to legislative judgment as to the necessity and reasonableness of a particular measure.” Energy Reserves, 459 U.S. at 412-413. “A higher level of scrutiny is required to assess abrogations of government obligations than in the case of legislative interference with the contract of private parties.’” Univ. of Hawaii Prof’Assembly v. Cayetano, 183 F.3d 1096, 1107 (9¹ Cir.h 1999). Accordingly, courts are "less deferential to a state's judgment of reasonableness and necessity when a state’s legislation is self-serving and impairs the obligations of its own contracts.” Id. (quotation omitted).

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The most recent case in which the Supreme Court upheld an impairment of a state contract, El Paso v. Simmons, 379 U.S. 497 (1965), involved unique facts, as discussed below. Similarly, in US. Trust Co., the Supreme Court noted that the “only time in this century that the alteration of a municipal bond contract has been sustained by this Court was in Faitoute Iron & Steel Co. v. City of Asbury Park, 316 U.S. 502, 62 S. Ct. 1129, 86 L. Ed. 1629 (1942).” 431 U.S. at 27. As discussed below, Faitoute Iron & Steel Co. involved unique circumstances that are not likely to be present in the case of Impairment Legislative Action.

A. Existence of a contractual relationship

A determination that the State Pledge is a binding contract with the State requires detailed analysis. “Federal law controls whether an agreement constitutes a contract for purposes of Contract Clause analysis.” General Motors Corp. v. Romein, 503 U.S. 181, 187 (1992). For there to be a valid contract with the State, the State must have intended to enter into a binding agreement, and the agreement must not have surrendered an essential attribute of State sovereignty.

1. Intent to contract

When a state legislature enacts a statute, there is a rebuttable presumption that it does not intend to bind itself contractually. National R.R. Passenger Corp. v. Atchison, Topeka & Santa Fe Ry. Co., 470 U.S. 451, 466 (1985); Dodge v. Board of Education, 302 U.S. 74, 78 (1937). This presumption can be rebutted by showing that the language of the statute indicates an intent to create contractual rights: “In general, a statute is itself treated as a contract when the language and circumstances evince a legislative intent to create private rights of a contractual nature enforceable against the State.” United States Trust Co., 431 U.S. at 18, note 14. See also Dodge, 302 U.S. at 78 (“it is of first importance to examine the language of the statute.”) and Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 104-105 (1938) (“the cardinal inquiry is as to the terms of the statute supposed to create such a contract”).

United States Trust Co. involved a pledge given by each of two states in connection with notes issued by a third governmental entity, the Port Authority of New York and New Jersey. The Port Authority was a separate legal entity, created pursuant to interstate compact. The Port Authority’s bonds were not a debt of either pledging state, and neither the full faith and credit nor the taxing power of either state was pledged to secure the Port Authority bonds. Rather the statute at issue in United States Trust Co. provided that the “2 States covenant and agree with each other and with the holders of any affected bonds....”431 U.S. at 18. The Court found that the “intent to make a contract [was] clear from the statutory language.” Id. Thus, the Court concluded that a contract between the states and bondholders could arise even though the states were not financial obligors on the Port Authority bonds and were not parties to the resolution pursuant to which the Port Authority bonds were issued. Id

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The Supreme Court in United States Trust Co. also addressed the issue of consideration: “as the chronology set forth above reveals, the purpose of the covenant was to invoke the constitutional protection of the Contract Clause as security against repeal. In return for their promise, the States received the benefit they bargained for: public marketability of Port Authority bonds ... ” 431 U.S. at 18.

In the case of the State Pledge, the State invoked the constitutional protection of the Contract Clause as security against State action that would limit or alter the revenue property or rights thereunder without adequate protection for the owners of revenue property. In return, the State will get what it bargained for: (1) development and operation of qualifying fuel cell provider projects in the State, with fuel cells manufactured at a facility located in the State, under circumstances determined by the State to be an economic development. opportunity, (2) the QFCP Generator’s commitment to sell all electric energy, capacity and ancillary services from the qualifying fuel project into wholesale electric markets administered by PJM, and (3) the electric companies agreement to accept service applications from QFCP Generators.

Similar to the statutory language at issue in United States Trust Co., Section 364(h) of the Act provides: “Except as otherwise provided in this section, the State of Delaware does hereby pledge and agree with the owners of revenue property and the commission-regulated electric company as the agent for collecting and disbursement on behalf of a qualified fuel cell provider project and in collecting costs incurred by the electric company addressed in subsections (a) through (c) of this section that the State shall neither ... ” (Emphasis added.) The terms “pledge” and “agree” evidence a legislative intent to create private rights of a contractual nature enforceable against the State.

2. Contract Formation

The Service Agreement was executed and delivered by the Issuer and DPL on June 28, 2011, several days before the Act became law and several months before the Commission adopted the Orders pursuant to which the Tariff became effective. The substantive provisions of the Service Agreement, however, by their terms become effective only upon the occurrence of specified events, including that the Act and the Tariff become effective. Thus, the substantive provisions of the Service Agreement became effective only after the Act became law.

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3. Reserved powers

The next “inquiry concerns the ability of the State to enter into an agreement that limits its power to act in the future.” United States Trust Co., 431 U.S. at 23. “It is often stated that ‘the legislature cannot bargain away the police power of a State.”’ Id. “This doctrine requires a determination of the State’s power to create irrevocable contract rights in the first place, rather than an inquiry into the purpose or reasonableness of the subsequent impairment. In short, the Contract Clause does not require a State to adhere to a contract that surrenders an essential attribute of its sovereignty.” Id.

The Court explained that “financial contracts” generally do not surrender police powers:

Whatever the propriety of a State’s binding itself to a future course of conduct in other contexts, the power to enter into effective financial contracts cannot be questioned. Any financial obligation could be regarded in theory as a relinquishment of the State’s spending power, since money spent to repay debts is not available for other purposes. Similarly, the taxing power may have to be exercised if debts are to be repaid. Notwithstanding these effects, the Court has regularly held that the States are bound by their debt contracts.

Id. at 24. See also United States v. Winstar Corp., 518 U.S. 839, 888-890 (1996).

Among other things, the State Pledge was created as an inducement (1) to qualifying fuel cell providers to develop and operate qualifying fuel cell provider projects in the State, with fuel cells manufactured at a facility located in the State, under circumstances determined by the State to be an economic development opportunity, and (2) to QFCP Generators to sell electric energy and capacity generated by those qualifying fuel cell projects into wholesale electric markets administered by PJM, all for the benefit of citizens, businesses and governments (including the State itself) served by Commission-regulated electric companies. The inducement is principally financial: the right to receive Revenue Charges imposed on and collected by the Commission-regulated electric company from its retail electric customers. As a result, the State Pledge would seem to be the type of “financial” contract that the Court in United States Trust Co. found to be a proper exercise of legislative authority.

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The Court in United States Trust Co. noted that “[n]ot every security provision, however, is necessarily financial. For example, a revenue bond might be secured by the State’s promise to continue operating the facility in question, yet such a promise surely could not validly be construed to bind the State never to close the facility for health and safety reasons.” Id at 25. In United States Trust Co., and in the cases following it, the “financial” contract at issue generally involved a government’s own money, i.e., a financial obligation of a governmental entity. In United States Trust Co., for example, the Port Authority, a government entity, promised to maintain a certain level of reserve funding and made various other financial commitments. In the present case, in contrast, no governmental entity will pledge its own financial resources. But the promise by the Port Authority to maintain a specified level of reserve funding was supported by a statutory pledge, adopted by the State of New York and by the State of New Jersey, to the effect that the “2 States covenant and agree with each other and with the holders of any affected bonds . . .” Thus, United States Trust Co. may support the proposition that a statutory pledge to future owners of revenue property is effective to invoke the Contract Clause where the pledge is to maintain specified aggregate revenues with respect to qualifying fuel cell provider projects and Commission-regulated electric companies through the imposition of revenue charges on retail electric customers of Commission- regulated electric utilities, even though the qualifying fuel cell provider projects are developed, owned, and operated by legal entities separate from the government entity giving the statutory pledge, and even though the revenue charges will be paid by persons unrelated to the governmental entity giving the statutory pledge.

Public utility regulation generally involves the exercise of police powers. Certain aspects of public utility regulation clearly relate to public health and safety. Such aspects include, for example, the obligation to serve, safety regulation at electric generation facilities, and regulations which promote the development and operation of alternative energy generating resources, such as qualifying fuel cell provider projects. Even though a purpose of the Act is to promote the development and operation of qualifying fuel cell provider projects, the State Pledge does not “surrender” the State’s police powers. Nothing in the State Pledge materially reduces or impacts State regulation of public utilities, including DPL. Nothing in the State Pledge limits the ability of the State to regulate the manner in which DPL provides electric utility service or to regulate DPL’s overall retail electric rates. The only impact of the State Pledge is to ensure that, so long as the applicable State law conditions are satisfied, the revenue charge will be part of electric utility bills for the specified time period and that the revenue charge will be adjusted from time to time to ensure collection of promised revenues. Thus, the State Pledge does not remove from the Commission its general regulatory authority over DPL, does not allow the revenue charge to be imposed with respect to a qualifying fuel cell project unless and until the Commission approves a joint application filed by a Commission-regulated electric company and a qualifying fuel cell provider, and the State Pledge has a finite term with respect to each qualified fuel cell provider project.

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The Texas Supreme Court upheld the validity of a state pledge similar in some respects to the State Pledge. Lower Colorado River Auth. v. McGraw, 83 S.W.2d 629, 637-638 (Tex. 1935).

Accordingly, it ought to be determined that the State Pledge does not surrender an essential attribute of State sovereignty and that the State Pledge gives rise to a contract between the State and the owners of Revenue Property.

B. Substantial impairment

Whether a legislative action “substantially” impairs a contract is a fact- specific analysis. It is not possible at this time to determine whether a future legislative action will constitute a substantial impairment. Accordingly, this opinion letter addresses only impairments of the State Pledge that are determined to be substantial.

C. Justification

Even if a new State legislative action substantially impairs the Issuer’s contractual rights, such impairment will not violate the Contract Clause if it is “reasonable and necessary to serve an important public purpose” (United States Trust Co., 431 U.S. at 25) “such as the remedying of a broad and general social or economic problem” (Energy Reserves Group, Inc. 459 U.S. at 411-412). The test has also been stated as “whether the adjustment of ‘the rights and responsibilities of contracting parties is based upon reasonable conditions and is of a character appropriate to the public purpose justifying the legislation’s adoption.”’ Energy Reserves Group, Inc. 459 U.S. at 412-413 (quoting United States Trust Co., 431 U.S. at 22). The State has the burden of proving that a substantial impairment is both reasonable and necessary. Cayetano, 183 F.3d at 1106.

In assessing the reasonableness of an impairment, courts “generally consider ‘the extent of the impairment as well as the public purpose to be served.”’ Southern California Gas Co. v. City of Santa Ana, 336 F.3d 885 at 894-895 (9¹ Cir. 2003) (quoting Cayetano, 183 F.3d at 1107). “However, an ‘impairment is not a reasonable one if the problem sought to be resolved by an impairment of the contract existed at the time the contractual obligation was incurred.”’ Id. at 895 (quoting Cayetano, 183 F.3d at 1107). “Changed circumstances and important government goals do not make an impairment reasonable if the changed circumstances are ‘of degree and not kind.”’ Id. (quoting United States Trust Co., 431 U.S. at 32).

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Another factor significant to the analysis is whether the contracting parties are operating in a heavily regulated industry. Energy Reserves, 459 U.S. at 413. Thus, in Energy Reserves, the Court held that state regulation of natural gas prices did not impair a private contract where it did not impair the parties’ “reasonable expectations.” Id. at 416. In the Issuer’s case, though the Revenue Charge will be an element of DPL’s electric utility rates, which are generally subject to Commission regulation, the State Pledge was enacted in order to alter the otherwise reasonable expectations and to provide additional confidence, through a State promise, that the Revenue Charge will remain available throughout the applicable time period to allow the Issuer to receive the specified revenues with respect to the Project.

The Supreme Court in the past has held that legislation substantially impairing contractual rights was both reasonable and necessary and therefore did not violate the Contract Clause. The most famous case is Home Building & Loan Ass’n v. Blaisdell, 290 U.S. 398 (1934). At issue in Blaisdell was the Minnesota Mortgage Moratorium Law, enacted in 1933, during the depth of the Great Depression, when Minnesota was under severe economic stress and appeared to have no effective alternatives. The statute was a temporary measure which allowed judicial extension of the time for mortgage redemption. A mortgagor who remained in possession during the extension period was required to pay a reasonable income or rental value to the mortgagee. Thus, the contracts being impaired were private contracts, not contracts with a government entity. The Court noted that, while “emergency does not create power, emergency may furnish the occasion for the exercise of power.” Id. at 426. In upholding the state mortgage moratorium law, the Court found five factors significant: (1) the state legislature and state supreme court found that an emergency existed “which furnished a proper occasion for the exercise of the reserved power of the state to protect the vital interests of the community,” and the U.S. Supreme Court found these findings to have support in the evidentiary record; (2) the law was passed to protect a basic social interest (housing), not a favored group; (3) the relief was appropriately tailored to the emergency that it was designed to meet; (4) the conditions upon which the period of redemption was extended were not unreasonable (with the exception of an initial thirty-day period, the extension required judicial approval; interest continued to accrue; the mortgagor was required to pay fair rental value during the period of extended possession); and (5) the legislation was limited to the duration of the emergency. Id. at 444-447. “The Blaisdell opinion thus clearly implied that if the Minnesota moratorium legislation had not possessed the characteristics attributed to it by the Court, it would have been invalid under the Contract Clause ...” Allied Structural Steel Co., 438 U.S. at 242.

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El Paso v. Simmons is the most recent case in which the Supreme Court has upheld an impairment of a state contract. El Paso concerned a 1941 Texas statute that limited to a five-year period the reinstatement rights of an interest-defaulting purchaser of land from the state. Prior Texas law had no such limit. Thus, any purchaser who defaulted on interest payments could at any future time reinstate his or her rights. This led to serious unforeseen consequences, including people purchasing state land with no intent of making interest payments out of speculation that the land might increase in value, for example, due to discovery of oil. 379 U.S. at 512-513. Also, it created situations in which the right to reinstate could be exercised by any one of multiple successive forfeiting parties. Id. The 1941 legislation was passed in direct response to these unforeseen circumstances. Id. The Court found that the right of reinstatement was not a substantial inducement to enter into purchase agreements. Id. at 514. The Court further found that the right to reinstatement was intended, not to allow real estate speculation, but rather to preserve “practical and substantial rights.” Id. at 514-515. The Court concluded that the repeal, rather than impairing a bargained-for expectation of the purchaser, had the effect of eliminating an unforeseen windfall. Id. at 515. Moreover, the purpose of the land sales was to raise money for public schools. The clouds on title arising from reinstatement rights, massive litigation to which this gave rise, and pattern of sale and forfeiture were costly to the school fund and to the development of land use. Id. at 515-516. The cloud on title also prevented the state from using lands subject to reinstatement for public purposes due to the possibility that any one of several past purchasers might at some unknowable future date assert the right to reinstatement. Id. at 516. The Court thus concluded that the statute did not violate the Contract Clause because the statute “was quite clearly necessary” and was “a mild one indeed, hardly burdensome to the purchaser who wanted to adhere to his contract of purchase, but nonetheless an important one to the State’s interest.” Id. at 516-517.

The most recently reported case in which impairment of a municipal bond contract has been upheld by the Supreme Court was Faitoute Iron & Steel Co. v. City of Asbury Park, 316 U.S. 502 (1942). That case involved particularly unique circumstances. The impairment legislative action was enacted to meet the public emergency arising from a default in the payment of municipal obligations and the resulting impairment of public credit. Id. at 504. The Court treated the legislation in essentially the same manner as a bankruptcy workout. Because the affected municipality was bankrupt, and creditors had no effective remedy without the legislation, the Court found that the legislation did not so much impair the bondholders’ rights as discharge the municipality’s debt. Id. at 509-512. The Court found that the legislation did not violate the Contract Clause because its passage was, in fact, the only proven way for assuring payment of unsecured municipal obligations. Id. at 512.

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The leading decision is United States Trust Co. As discussed above, United States Trust Co. concerned the repeal of a 2-state covenant relating to bonds issued by the Port Authority, an agency created through an interstate compact between the state of New York and the state of New Jersey. The covenant, made by both states in connection with the Port Authority’s acquisition of a railroad, was designed to create security for bonds issued by the Port Authority for non-railroad purposes. Pursuant to the covenant, the states covenanted and agreed not to apply “for any railroad purpose whatsoever other than permitted purposes hereinafter set forth” any “rentals, tolls, fares, fees, charges, revenues or reserves, which have been or shall be pledged in whole or in part as security” for the Port Authority’s bonds. 431 U.S. at 10. Eleven years after enactment of the covenant, a national energy crisis developed, and Congress enacted the Emergency Petroleum Allocation Act, in which it found that the hardships caused by the oil shortage “jeopardize the normal flow of commerce and constitute a national energy crisis which is a threat to the public health, safety and welfare.” Id. at 14. Both states repealed the legislation containing the covenant the next year. Id.

After stating the legal test discussed above, the Court first found that the case involved “a financial obligation” of the states, and the covenant thus did not necessarily run afoul of the states’ reserved powers. Id. at 23-24. The states argued that the repeal of the covenant did not substantially impair bondholders’ rights. They argued that the bonds retained an “A” credit rating from the leading rating agencies and that, after an initial adverse effect on their market price, they regained a price comparable to that prior to the repeal. Id. at 19. Nonetheless, the Court held that the outright repeal, without any attempt to make compensation, constituted a substantial impairment. The Court noted that “no one can be sure precisely how much financial loss the bondholders suffered” and concluded that the “outright repeal totally eliminated an important security provision and thus impaired the obligation of the States’ contract.” Id.

The Court then proceeded to analyze whether the repeal of the covenant was reasonable and necessary to effect an important public purpose. The Court acknowledged that the purposes behind the repeal, mass transportation, energy conservation, and environmental protection, are goals that are important and of legitimate public concern. Id. at 28. The Court found, however, that the repeal was neither necessary nor reasonable. It was not necessary because (I) “a less drastic modification would have permitted the contemplated plan without entirely removing the covenant’s limitations on the use of Port Authority revenues and reserves to subsidize commuter railroads” and (2) “without modifying the covenant at all, the States could have adopted alternative means of achieving their twin goals of discouraging automobile use and improving mass transit” (such as state taxes to encourage reduction in driving, elimination of commuter discounts or an increase in tolls). Id. at 30. The Court held the repeal to be unreasonable because “the need for mass transportation in the New York metropolitan area was not a new development, and the likelihood that publicly owned commuter railroads would produce

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substantial deficits was well known.” Id. at 31. The Court found the changes in condition to be “of degree and not of kind,” and therefore not sufficient to justify the impairment of the covenant. Id. at 32.¹

D. Impairment

In considering whether there has been a violation of the Contract Clause, the court must also determine whether the law impaired the contract or merely breached it.

As early as 1920, the Supreme Court noted the distinction between a breach of a contract to which a state is a party and an impairment of such a contract. See Hays v. Port of Seattle, 251 U.S. 233, 237 (1920) (it “is important to note the distinction between a statute that has the effect of violating or repudiating a contract previously made by the state and one that impairs its obligation.”). As the Ninth Circuit explained, the question is “whether the State has used its law-making powers not merely to breach its contractual obligations, but to create a defense to the breach that prevents the recovery of damages.” Cayetano, 183 F.3d at 1102.

The question should be whether the modification that the legislation imposes simply breaches the contract like any other unilateral attempt to modify an agreement, or whether the statute prevents or materially limits the contractor’s ability to enforce its contractual rights. For example, legislation impairs a public contract only if it prevents or materially limits the remedies that would be available if the contract were between private parties.

Id. at 1103. This has been called the “availability-of-remedy” test. TM Park Avenue Associates v. Pataki, 214 F.3d 344, 349 (2d. Cir. 2000). Thus, whether legislation impairs a contract, or merely breaches it, turns on whether the legislation leaves the other contracting party with an available remedy, i.e., whether, “rather than merely breaking [its] promise,” the state “set up a defense that prevented the promisee from obtaining damages, or some equivalent remedy, for the breach.” Horwitz-Matthews, Inc. v. City of Chicago, 78 F.3d 1248, 1251 (7th Cir. 1996).

¹  With respect to purely private contracts, the test is the same, with the only difference being the degree to which the courts defer to legislative judgment concerning the reasonableness and necessity of impairing legislation. See Allied Structural Steel Co.

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In Hays, the State of Washington had granted the plaintiff a contract to excavate a waterway. Twenty years later, the contract not having been performed for various reasons, the state transferred the rights to the waterway at issue to a municipality, along with the excavation rights. The Court found that this transfer breached, rather than impaired, the agreement because, to the extent the agreement was still in force, the state’s contractual “obligation remained as before, and formed the measure of [the plaintiffs] right to recover from the state for the damages sustained.” 251 U.S. at 237. In so holding, the Court distinguished an act that would have constituted an impairment:

Had the Legislature of Washington, pending performance or after complete performance by complainant, passed an act to alter materially the scope of his contract, to diminish his compensation, or to defeat his lien upon the filled lands, there would no doubt have been an attempted impairment of the obligation.

Id.

Thus, this opinion letter does not address breaches of the State Pledge, but rather only substantial impairments.

II. Takings Clause

The Fifth Amendment to the United States Constitution contains the following injunction: “nor shall private property be taken for public use, without just compensation.” This so-called “Takings Clause” is made applicable to the states through the Fourteenth Amendment. Palazzolo v. Rhode Island, 533 U.S. 606, 617 (2001).

Federal takings jurisprudence has developed two types of takings analyses, direct takings and regulatory takings. “And ‘ [w]hen the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner.”’ Arkansas Game and Fish Commission v. United States, 568 U.S., 133 S. Ct. 511, 518 (2012) (quoting Tahoe-Sierra Preservation Council v . Tahoe Regional Planning Agency, 535 U.S. 302, 322 (2002)). A different analysis applies, however, when the government does not directly appropriate private property for its own use, but “instead the interference with property rights ‘arises from some public program adjusting the benefits and burdens of economic life to promote the common good.”’ Tahoe-Sierra Preservation Council, 535 U.S. at 343 (quoting Penn Central Transportation Co. v. New York, 438 U.S. 104, 124 (1978)). It may also be possible for the government to “take” private property for a public use when government action destroys private property for a public use. See Arkansas Game and Fish Commission.

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The Supreme Court has also recently reemphasized that the analysis under the Takings Clause must be very fact-specific:

We have recognized, however, that no magic formula enables a court to judge, in every case, whether a given government interference with property is a taking. In view of the nearly infinite variety of ways in which government actions or regulations can affect property interests, the Court has recognized few invariable rules in this area.

True, we have drawn some bright lines, notably, the rule that a permanent physical occupation of property authorized by government is a taking. Loretto v. Teleprompter Manhattan CATV Corp., 458 U. S. 419, 426 (1982). So, too, is a regulation that permanently requires a property owner to sacrifice all economically beneficial uses of his or her land. Lucas v. South Carolina Coastal Council, 505 U. S. 1003, 1019 (1992). But aside from the cases attended by rules of this order, most takings claims turn on situation-specific factual inquiries. See Penn Central, 438 U.S., at 124.

Arkansas Game and Fish Commission, 133 S. Ct. at 518.

It is not possible at this time to know all the relevant facts relating to a future legislative or regulatory action.

In any case, there can only be a taking if there is a protected property interest in the first place. Thus, any takings analysis involves a two-part inquiry: (1) is there a recognized property interest, and (2) has the state taken property for a public purpose without paying just compensation?

A. Whether Revenue Property is protected by the Takings Clause.

‘‘‘ Property interests ... are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law.”’ Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1001 (1984) (quoting Webb’s Fabulous Pharms. Inc. v. Beckwith, 449 U.S. 155, 161 (1972) (alteration in original)). The Supreme Court has recognized that, where intangible property rights are protected by state law, they may also be protected by the Takings Clause. Id at 1003 (“That intangible property rights protected by state law are deserving

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of the protection of the Takings Clause has long been implicit in the thinking of this Court.”) See also United States Trust Co., 431 U.S. at 19 n. 16 (“Contract rights are a form of property and as such may be taken for a public purpose provided that just compensation is paid.”); Omnia Commercial Co. v. United States, 261 U.S. 502, 508 (1923) (“The contract in question was property within the meaning of the Fifth Amendment.”). The Court in Ruckelshaus held that a trade secret, if defined as property under state law, was property protected by the Takings Clause. 467 U.S. at 1003-1004.

On occasion, courts have denied claims under the Takings Clause on the ground that the claimant had no protected property interest. For example, in Jackson Sawmill Co., Inc. v. United States, 580 F.2d 302 (8th Cir. 1978), the court held that the claimant had no protected property interest in the traffic flowing over a bridge. The claimant had received a pledge from a city that the city would not build a second bridge within city limits. In reliance on that pledge, the claimant had issued bonds secured solely by tolls and other revenues from a bridge to be constructed with funds raised through the sale of the bonds. A decade later, the state and federal governments constructed a new bridge that caused a substantial reduction in traffic across the original bridge. The court denied the claimant’s taking claim, finding that “the law is clear in Missouri and Illinois. that plaintiffs do not have a constitutionally protected property right in traffic.” Id. at 306. See also US. ex. rel. and for Use of Tennessee Valley Authority v. Powelson, 319 U.S. 266 (1943) (no protected property right in the right to exercise the power of eminent domain).

We have assumed that Revenue Property is a property right under Delaware law.

B. Just compensation will be required only if a reviewing court concludes that Revenue Property has been “taken” for a public use.

1. Categorical takings.

As discussed above, where the government takes possession of private property, there is a categorical rule requiring the payment of just compensation. The Supreme Court applied this categorical rule where the government appropriated the interest earned on private funds held in a court deposit account, referring to the appropriation as a “forced contribution to general governmental revenues” and finding that “the county’s appropriation of the beneficial use of the fund is analogous to the appropriation of the use of private property ...” Webbs Fabulous Pharmacies, Inc, 449 U.S. at 163.

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The Supreme Court has also established a categorical rule requiring payment of just compensation “where regulation denies all economically beneficial or productive use of land.” Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992). While the Revenue Property is not land, and does not fit cleanly within the normal takings analysis, if a court concludes that Revenue Property is property protected by the Takings Clause, if a State statute or Commission action were to either (a) permanently appropriate the Revenue Charge for government use (for example, require that the Revenue Charge be paid to the State rather than to the Issuer), or (b) permanently deny all economic value in Revenue Property (for example, by permanently eliminating the Revenue Charge), a reviewing court could find a taking requiring the payment of just compensation, unless the government’s action falls within the “emergency” exception discussed below.

2. Emergency exception.

At least in the context of war, the United States Supreme Court has held that the government may destroy private property without paying just compensation under appropriate circumstances. In United States v. Caltex, 344 U.S. 149 (1952), the Court addressed a takings claim by owners of oil terminal facilities located in the Philippines destroyed by the United States military to prevent the Japanese from taking control of the facilities. The Court relied upon prior decisions holding that the United States was not required to compensate property owners when, in the Civil War, the army destroyed bridges to prevent the enemy from advancing and when American soldiers in the field in Cuba destroyed a factory thought to house germs of a contagious disease. See United States v. Pac. R.R. Co., 120 U.S. 227 (1887); Juragua Iron Co. v. United States, 212 U.S. 297 (1909). The Court found the destruction of the terminal facilities to be in furtherance of the war and therefore not compensable: “The short of the matter is that this property, due to the fortunes of war, had become a potential weapon of great significance to the invader. It was destroyed, not appropriated for subsequent use. It was destroyed that the United States might better and sooner destroy the enemy.” Caltex. 344 U.S. at 155.

In denying compensation, the Court in Caltex noted that the common law had “long recognized that in times of imminent peril—such as when fire threatened a whole community - the sovereign could, with immunity, destroy the property of a few that the property of many and the lives of many could be saved.” Caltex, 344 US. at 154. Thus, depending on the facts, a court might conclude that an emergency of sufficient magnitude warrants destroying the Revenue Property without affording just compensation.

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3. Regulatory takings.

If a State statute or Commission action were to reduce the value of Revenue Property without appropriating it or denying all economic value, and if the emergency exception does not apply, a reviewing court would undertake a more complex analysis. A party challenging government action as an unconstitutional taking “bears a substantial burden.” Eastern Enters. v. Apfel, 524 U.S. 498, 523 (1998). “Government regulation often ‘curtails some potential for the use or economic exploitation of private property ... ‘, and ‘not every destruction or injury to property by governmental action has been held to be a “taking” in the constitutional sense.”’ Id. (citations omitted). Rather, courts must determine whether regulation has gone “too far” such that “justice and fairness” require compensation for economic injury. Penn Central, 438 U.S. at 124. Thus, “whether a particular restriction will be rendered invalid by the government’s failure to pay for any losses proximately caused by it depends largely ‘upon the facts and circumstances [in that] case.”’ Id. (quoting United States v. Central Eureka Mining Co., 357 U.S. 155, 168 (1958) (alteration in original). The Supreme Court explained:

[W]e have “generally eschewed” any set formula for determining how far is too far, choosing instead to engage in “‘essentially ad hoc, factual inquiries.”’... Indeed, we still resist the temptation to adopt per se rules in our cases involving partial regulatory takings, preferring to examine “a number of factors” rather than a simple “mathematically precise” formula.

Tahoe-Sierra, 535 U.S. at 326 (citation omitted).

The Supreme Court had identified three factors relevant to the analysis: (a) the character of the government action; (b) the economic effect on the property owner; and (c) the extent to which the regulation interferes with reasonable investment-backed expectations. Palazzolo, 533 U.S. at 618. “These inquiries are informed by the purpose of the Takings Clause, which is to prevent the government from ‘forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.”’ Id. at 618-619 (quoting Armstrong v. United States, 364 U.S. 40, 49 (1960). The Court has referred to the third factor, the extent to which the regulation interferes with reasonable investment-backed expectations, as “particularly” and “especially” important. See Arkansas Game and Fish Commission, 133 S. Ct. at 518, 522; Penn Central, 438 U.S. at 124; Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426 (1982).

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(a) Character of the governmental action

The “character of the governmental action” analysis typically differentiates a “physical invasion” by the government from an interference that “arises from some public program adjusting the benefits and burdens of economic life to promote the common good.” Penn Central, 438 U.S. at 124. This is an area where the analogy between takings cases involving land becomes more tenuous when analyzing a potential taking of Revenue Property. Clearly there can be no “physical invasion” of Revenue Property. Thus, any new legislation or action of the Commission affecting the value of Revenue Property will necessarily in some sense be an adjustment of the “benefits and burdens of economic life,” and would likely be justified by the State as a program designed to “promote the common good.”

(b) Economic effect on the property owner

Where this factor is addressed in a case not involving a physical invasion of property, it generally has been discussed in the context of land use restrictions, such as zoning laws. The Supreme Court in Penn Central noted that where land use restrictions are “reasonably related to the promotion of the general welfare,” the Court has “uniformly reject[ed] the proposition that diminution in property value, standing alone, can establish a ‘taking.”’ Id. at 131. As the Court noted, “[g]ovemment could hardly go on if to some extent values incident to property could not be diminished without paying for every such change in the general law....” Id. at 124 (citation omitted). The general rule disfavors finding a taking where property rights are diminished by application of a general law that, in theory, benefits the entire public, including the property owner (e.g., presumably everyone benefits from preserving historical landmarks), and where specific property owners have not been singled out arbitrarily. See id. at 132 (contrasting “reverse spot zoning,” i.e., a land-use decision “which arbitrarily singles out a particular parcel for different, less favorable treatment than the neighboring ones”).

Other land use restrictions held not to be “takings” have arisen where the activity on one property was causing harm to one or more other properties, i.e., where the status quo was that some property was being damaged, and the law being challenged simply chose which property rights should be protected. See, e.g., Miller v. Schoene, 276 U.S. 272 (1928) Gust compensation not required for loss of market value where trees had to be destroyed because they produced “cedar rust” fatal to apple trees cultivated nearby); Hadacheck v. Sebastian, 239 U.S. 394 (1915) (no just compensation required where law prohibited continued operation of brickyard where legislature reasonably concluded that presence of brickyard was inconsistent with neighboring land uses); Goldblatt v. Hempstead, 369 U.S. 590 (1962) (no taking where safety ordinance banning excavations below the water table effectively prohibited the claimant from continuing a sand and gravel mining business, and the restriction did not prevent all reasonable use of the

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property). These holdings stem from the proposition that “‘all property in this country is held under the implied obligation that the owner’s use of it shall not be injurious to the community.”’ Keystone Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470, 491-492 (1987) (quoting Mugler v. Kansas, 123 U.S. 623, 665 (1887)). The Court in Penn Central noted that it “is, of course, implicit in Goldblatt that a use restriction on real property may constitute a ‘taking’ if not reasonably necessary to the effectuation of a substantial public purpose.” 438 U.S. at 127; see also Lucas, 505 U.S. at 1016 (stating that the Fifth Amendment is violated when land-use regulation “does not substantially advance legitimate state interests”). Where a land use restriction furthers a legitimate public purpose, the Supreme Court has suggested that restrictions may not constitute a taking unless they make use of the land “commercially impracticable.” Keystone Bituminous Coal, 480 U.S. at 495-496.

(c) Interference with distinct, reasonable investment- backed expectations

Even a state statute “that substantially furthers important public policies may so frustrate distinct investment-backed expectations as to amount to a ‘taking.’” Penn Central, 438 U.S. at 127. In Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922), the claimant had sold the surface rights to particular parcels of property, but expressly reserved the right to remove the coal thereunder. A Pennsylvania statute, enacted after the transactions took place, forbade any mining of coal that caused the subsidence of any house, unless the house was the property of the owner of the underlying coal and was more than 150 feet from the improved property of another. The Court found that the statute made it commercially impracticable to mine the coal. Id. at 414. Accordingly, it had nearly the same effect as the complete destruction of the rights the claimant had reserved and thus effected a taking without just compensation. See also Arkansas Game and Fish Commission, 133 S. Ct. at 522 (“Also relevant to the takings inquiry is the degree to which the invasion is intended or is the foreseeable result of authorized government action. [Citations omitted.] So, too, are the character of the land at issue and the owner’s ‘reasonable investment-backed expectations’ regarding the land’s use.”)

Unfortunately, these land use cases offer poor analogy to a taking of Revenue Property. Revenue Property cannot cause physical harm to other property, nor can its use be harmful to other property. The types of arguments that typically justify impairment of the value of physical property are therefore generally inapplicable to the type of legislation that would likely impact the value of Revenue Property.

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The Supreme Court has, however, on a few occasions, addressed takings claims unrelated to physical property. In Ruckelshaus, for example, the Court addressed an alleged taking of trade secrets, specifically, the EPA’s use of data submitted by an applicant for registration of a pesticide under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA). The Court focused solely on the third Penn Central factor - the interference with reasonable investment-backed expectations. 467 U.S. at 1005. The Court initially noted that a ‘“reasonable investment-backed expectation’ must be more than a ‘unilateral expectation or an abstract need.”’ Id. (quoting Webb’s Fabulous Pharms., 449 U.S. at 161). The Court analyzed Monsanto’s claims in three time-period based groups based on the reasonableness of its expectations given the regulatory scheme during each time period.

For data submitted to the EPA after October 1, 1978, the effective date of the amendment to FIFRA that allowed the EPA to use the data for purposes beyond consideration of the application, the Court found that Monsanto “could not have had a reasonable, investment-backed expectation that EPA would keep the data confidential beyond the limits prescribed in the amended statute itself.” Id. at 1006. Accordingly, for that time period, the Court found that the legislation did not effect a taking: “as long as Monsanto is aware of the conditions under which the data are submitted, and the conditions are rationally related to a legitimate Government interest, a voluntary submission of data by an applicant in exchange for the economic advantages of registration can hardly be called a taking.” Id. at 1007.

The Court then addressed the period prior to the enactment of an amendment to FIFRA in 1972 that explicitly addressed the EPA’s use of submitted data—prior to 1972 the act was silent with respect to the EPA’s authorized use and disclosure of data submitted to it. The Court found that, “absent an express promise, Monsanto had no reasonable investment-backed expectation that its information would remain inviolate in the hands of EPA,” and hence found no taking. Id. at 1008.²

However, for the period between 1972 and 1978, FIFRA expressly provided that data submitted in connection with a registration application and designated as a trade secret would only be used in connection with evaluating the application. Id. at 1010-1011. Accordingly, the Court found that the EPA’s use of Monsanto’s data for the purpose of evaluating registration applications submitted by other applicants would constitute a compensable taking if Monsanto could prove a loss of market value. Id. at 1012-1013.³ See also Connolly v. Pension Benefit Guaranty Corp., 475 U.S. 211 (1986)

²  The Court acknowledged, however, that an. “express promise” by the state can give rise to reasonable investment-backed expectations. 467 U.S. at 1008.

³  The Court also addressed whether the EPA’s taking of Monsanto’s trade secrets was for a “public use.” The Court stated that the “scope of the ‘public use’ requirement of the Takings Clause is ‘coterminous with the scope of a sovereign’s police powers.”’ Id. at 1014 (quoting Hawaii Housing Authority v. Midkiff, 467 U.S. 229,240 (1984)). The Court further noted that it had “rejected the notion that a use is a public use only if the property taken is put to use for the general public.” Id. “So long as the taking has a conceivable public character, ‘the means by which it will be attained is ... for Congress to determine.”’ Id. at 1014 (quoting Berman v. Parker, 348 U.S. 26, 33 (1954) (alteration in original)). The Court found the EPA’s use of Monsanto’s trade secrets to be for a “public use.” Id. at 1016.

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(applying regulatory takings analysis to pension withdrawal liability statute, concluding that statutory liability constituted a permanent deprivation or property, but concluding that the deprivation did not constitute a compensable taking). Compare Eastern Enters., 524 U.S. 498 (in which five justices concluded that the Coal Industry Retiree Health Benefit Act of 1992, creating retroactive employer liability for health benefits for former employees, did not implicate an identifiable property interest).

Thus, in the case of Revenue Property, factors relevant to a Takings Clause analysis would be whether the future State statute or Commission action breaches the State’s express promise in the State Pledge and whether the future State statute or Commission action arbitrarily singles out Revenue Property without regard to the risks QFCP Generators and others assumed when they acquired Revenue Property.

LIMITATIONS AND QUALIFICATIONS

We express no opinion as to any matter that is not governed by the Contracts Clause or the Takings Clause. Without limiting the generality of the foregoing, we express no opinion as to any laws of the State of Delaware.

As we are not Delaware counsel, we have not made any investigation as to whether any proposed legislation relating to the subject matter of this opinion letter is pending in the State legislature or any proposed action is pending before the Commission relating to the subject matter of this opinion letter. We express no opinion as to any such proposed legislation should it be enacted by the State legislature or any such proposed action should it be taken by the Commission.

We note that the case captioned Nichols et al. v. Markell et al., No. 1:12cv777, currently pending in the United States District Court for the District of Delaware, challenges the validity of the Act and the Orders. We express no opinion as to the validity of the Act, any Order, or the Tariff; rather we have assumed their validity.

The Parties Listed on Schedule A

March 20, 2013

Page 26

It is commonly understood, without any express statement, that opinion letters are necessarily technical and are informed by customary practice and usage. Thus, this opinion letter should not be used or relied on except in consultation with counsel. In particular, it is understood that an opinion letter is not a guaranty of an outcome but rather only an expression of professional judgment and that, in an actual case, a court could reach a different conclusion. In addition, the judicial analysis relating to the Contract Clause and the Takings Clause has typically proceeded on a case-by-case basis, and the court’s determination, in most cases, is strongly influenced by the facts and circumstances of the particular case. There are no reported controlling judicial precedents directly on point. Our analysis is a reasoned application of judicial decisions involving similar or analogous circumstances to what might occur in the future. Moreover, given the lack of judicial precedent directly on point, the novelty of Revenue Property, and the fact that DPL is part of a heavily regulated industry, the outcome of any litigation cannot be predicted with certainty. Consequently, there can be no assurance that a court will follow our reasoning or reach the conclusions which we believe current judicial precedent supports. The risk of uncertain outcomes in actual cases cannot be eliminated even when an opinion letter is rendered. We express no view as to whether this opinion letter is suitable for your purposes.

This opinion letter speaks only as of its date. We have no obligation to update this opinion letter for any change in the law or the facts. This opinion letter may be relied upon solely by the addressees listed on Schedule A for use in connection with the transactions described in the first paragraph. No one else may rely upon this opinion letter or the opinions expressed herein without our prior written consent.

Very truly yours,

ORRICK, HERRINGTON & SUTCLIFFE LLP

SCHEDULE A

Massachusetts Mutual Life Insurance Company

M. Life Insurance Company

MassMutual Asia Limited

Modem Woodmen of America, an Illinois fraternal benefit society

AXA Equitable Life Insurance Company

Teachers Insurance and Annuity Association of America

Genworth Life and Annuity Insurance Company

Genworth Life Insurance Company of New York

EXHIBIT 4.1.13(d)

FORM OF OPINION OF SPECIAL DELAWARE COUNSEL

TO THE COMPANY

[See Execution Version]

EXHIBIT 4.1.13(d) TO NOTE PURCHASE AGREEMENT

March 20, 2013

Each Purchaser Party to the Note Purchase Agreement

Deutsche Bank Trust Company Americas

As Collateral Agent (the “Collateral Agent”)

60 Wall Street

MSNYC 60-2710

New York, NY 10005

Re: Leasehold Mortgage from Diamond State Generation Partners, LLC. a Delaware limited liability company (“Mortgagor”) to the Collateral Agent

Ladies and Gentlemen:

We have acted as special Delaware counsel to Mortgagor for the limited purpose of rendering this opinion in connection with that certain Leasehold Mortgage, Security Instrument, Assignment of Rents, and Financing Statement As Fixture Filing of even date herewith executed by Mortgagor in favor of the Collateral Agent (the “Mortgage”) encumbering Mortgagor’s leasehold interest in each of 512 E. Chestnut Hill Road, Newark, DE and 1593 River Road, New Castle, DE (collectively, the Mortgaged Property’’).

In connection with rendering this opinion, we have examined a photocopy of the Mortgage, the Memorandum of Lease between Mortgagor, as tenant and the Delaware Department of Transportation, as landlord and the Memorandum of Lease between Mortgagor, as tenant, and the Delmarva Power & Light Company, as landlord (collectively, the “Memoranda”) and such other documents, instruments, certificates, legal opinions and corporate records, and such statutes, regulations and decisions and questions of law, as we have deemed necessary or appropriate in order to give the opinions set forth herein. Other than the Mortgage, we have not examined any other documents delivered in connection with the issuance of $144.812,500 in notes by the Mortgagor that are secured by the Mortgage (the· “Notes”).

Subject to the foregoing and the assumptions, qualifications and limitations set forth below, we are of the opinion that:

1. Enforceability (Remedies). The Mortgage is a valid and binding obligation of Mortgagor, enforceable against Mortgagor in accordance with its terms.

2. Form of Mortgage. The Mortgage is in proper form for recording in the Ne\v Castle County, DE Recorder of Deeds’ Office (the “Recorder’s Office”). When the Mortgage has been duly recorded and appropriately indexed, the Mortgage will be sufficient to create a lien on the Mortgaged Property in favor of the Collateral Agent, as security for the obligations described therein.

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As Collateral Agent

March 20, 2013

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3. Security Interests. The Mortgage creates a security interest in favor of the Collateral Agent in all of the collateral described therein that is of the type in which a security interest can be created under Division 9 of the Delaware Uniform Commercial Code (the “UCC”) (collectively, the · “UCC Collateral”). Upon the filing and acceptance of the Mortgage in the Recorder’s Office, the security interests created by the Mortgage in the UCC Collateral described in the Mortgage that are “fixtures,” as defined in the UCC and that are located in New Castle County, DE, will be perfected to the extent a security interest can be perfected in such fixtures by the filing of a financing statement as a fixture filing under the UCC.

4. No Recording Tax. Except for recording and filing fees, no recording, filing or privilege tax is payable to the State of Delaware in connection with the execution, delivery, recording, execution, enforcement or filing of the Mortgage.

5. No Violation of Law. The execution and delivery by Mortgagor of the Mortgage do not, and the performance by Mortgagor of its obligations thereunder, will not violate any published Delaware statute or regulation, which, in our experience, is normally applicable both to entities that arc not engaged in regulated business activities and to transactions of the type contemplated by the Mortgage.

6. Governmental Approvals and Filings. Except as noted in the following sentence, no consent, approval, order or authorization from, or registration or filing with, or notice to any governmental body of the State of Delaware is required in connection with the validity, binding effect, and enforceability of the Mortgage other than the recording and/or filing and indexing of the Mortgage and the Memoranda. We draw your attention to the fact that we have not investigated, and render no opinion regarding, whether Mortgagor or the Mortgaged Property is, or upon development or operation of the Mortgaged Property or foreclosure of the Mortgage will be, in violation of any of the matters described in qualification paragraph U) below.

7. Choice of Law. With respect to the provision in the Mortgage stating that it shall be governed by and construed in accordance with the laws of the State of Delaware, we believe that a state or federal court sitting in Delaware would uphold such choice of law provision.

Deutsche Bank Trust Company Americas

As Collateral Agent

March 20, 2013

Page 3 of 7

ASSUMPTIONS, QUALIFICATIONS AND LIMITATIONS

The foregoing opinions are subject to the following assumptions, qualifications and limitations:

(a) In rendering the opinions expressed herein, we have assumed: (i) the genuineness of all signatures; (ii) the authenticity and completeness of all documents submitted to us as originals; (iii) the conformity to authentic, original documents of all documents submitted to us as copies; (iv) the legal capacity of natural persons; (v) the due authorization, execution and delivery of the Mortgage by all parties thereto; (vi) the enforceability of the Mortgage against all parties other than Mortgagor; (vii) that all parties to the Mortgage: (A) are duly formed, validly existing, in good standing under all applicable laws and qualified to do business in all jurisdictions, as required by applicable law; (B) have the requisite power and authority to enter into and perform its/their obligations under the Mortgage; (C) have duly authorized, executed, and delivered the Mortgage; and (D) have satisfied those legal requirements that are applicable to it/them to the extent necessary to make the Mortgage enforceable against it/them; (viii) that the Collateral Agent has complied with all legal requirements pertaining to its status as such status relates to its rights to enforce the Mortgage against Mortgagor; (ix) that the Memoranda are duly recorded and indexed in the Recorder’s Office; (x) there has not been any mutual mistake of fact or misunderstanding, fraud, duress or undue influence;

(xi) that the conduct of the parties to the Mortgage has complied with any requirement of good faith, fair dealing and conscionability; (xii) that the Collateral Agent has acted in good faith and without notice of any defense against the enforcement of any rights created by, or adverse claim to any property or security interest transferred or created in connection with the Notes; (xiii) the constitutionality or validity of a relevant statute, rule, regulation or agency action is not in issue unless a reported decision in Delaware has specifically addressed but not resolved, or has established, its unconstitutionality or invalidity; (xiv) that Mortgagor has received adequate consideration in exchange for the Mortgage; (xv) that Mortgagee holds title to the Mortgaged Property; and (xvi) the proceeds of the Notes will be used for business and commercial purposes.

(b) In all cases where we have relied on an assumption, it should be understood that we have made no independent investigation into the matters covered by the assumption.

(c) With respect to certain factual matters relevant to our opinion, we have relied upon the representations and warranties made by the Collateral Agent and/or Mortgagor in the Mortgage.

(d) When an opinion or confirmation is given to our knowledge or to the best of our knowledge or with reference to matters of which we are aware or that are known to us, or with any other similar qualification, the relevant knowledge or awareness is limited to the conscious awareness of facts, without investigation, of any of the lawyers currently with this firm who have given substantive attention to legal representation of Mortgagor in connection with the Mortgage. No inference as to our knowledge of the existence or

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absence of any facts should be drawn from our representation of Mortgagor, nor should such knowledge held by persons other than the lawyers described in the preceding sentence be imputed to us. Without limiting the generality of any of the foregoing, it should be understood that we have not examined any of Mortgagor’s files, we have not made any special inquiry of Mortgagor and we have not examined any records of any court, administrative tribunal, or other similar entity in connection with this opinion letter.

(e) The validity, binding effect and enforceability of the Mortgage are subject to (i) the effect of bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer or conveyance and other similar laws affecting the rights and remedies of creditors generally, and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), including, without limitation, concepts of materiality, reasonableness, good faith, and fair dealing.

(f) Certain of the remedies, waivers, and other provisions of the Mortgage may not be enforceable; however, subject to the other qualifications and assumptions set forth in this letter, such unenforceability will not render the Mortgage invalid as a whole or preclude: the judicial foreclosure of the Mortgage, in accordance with applicable Delaware law, if the Notes are not repaid in full following maturity or upon acceleration of the Notes following a material default by Mortgagor under the Mortgage.

(g) We undertake no responsibility with respect to (i) recording the Memoranda and/or Mortgage, or (ii) examining the public records to determine if and/or when such documents have been recorded by others.

(h) The opinions in this letter are limited to the matters set forth herein. No opinion may be inferred or implied beyond the matters expressly stated in this letter; and the opinions must be read in conjunction with the assumptions, limitations, exceptions, and qualifications set forth in this letter. We assume no obligation to update this opinion to advise you of any changes in facts or laws subsequent to the date hereof.

(i) We express no opinion with respect to (i) the accuracy or completeness of the description of any real or personal property; or (ii) whether Mortgagor owns or has a mortgageable interest in the Mortgaged Property; or (iii) any matter pertaining to any of the leases purported to be encumbered by the Mortgage, including, without limitation, the validity, ownership or enforceability thereof: or (iv) the priority of any lien (or the lien of any advance) on the Mortgaged Property or any security interest in personal property; or

(v) any other title matter relating to this transaction. As to these matters, we understand the Collateral Agent is relying, it to the extent it deems appropriate, on such title insurance and/or UCC searches as they may obtain from a title insurance company and/or other companies satisfactory to the Collateral Agent.

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As Collateral Agent

March 20, 2013

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(j) We express no opinion with respect to the applicability of or compliance with any zoning, subdivision, land use, land development, environmental protection, health, safety, fire, construction, building or other laws, ordinances, or regulations that may be applicable to the Mortgaged Property or any matters concerning licenses, permits, or other approvals which may be required from any governmental authority. Our opinions regarding performance of Mortgagor’s obligations under the Mortgage, including the creation of the Mortgage, are based on the assumption that Mortgagor has or will have all licenses, permits, and approvals required in connection with such performance.

(k) Advances made by the note purchasers after entry of a judgment of foreclosure for the payment of taxes, insurance, and maintenance may not be secured by the Mortgage even though the Mortgage provide that such advances will be added to the mortgage debt.

(1) Without limiting the generality of qualification paragraph (t) above, we express no opinion as to the validity or enforceability of any provision of the Mortgage that (i) permits the note purchasers to increase the rate of interest, to collect a late charge in the event of delinquency or default, or to charge and collect a prepayment charge or prepayment premium to the extent deemed to be penalties or forfeitures: (ii) purports to gram The Collateral Agent a power-of-attorney; (iii) purports to entitle The Collateral Agent to take possession of collateral in any manner other than peaceably and by reason of the peaceable surrender of such possession by Mortgagor or by reason of appropriate judicial proceedings; (iv) purports to require that waivers must be in writing to the extent that an oral agreement or implied agreement by trade practice or course of conduct modifying provisions of the Mortgage has been made: (v) purports to grant The Collateral Agent the right to confess judgment for money or for possession of the Mortgaged Property; (vi) purports to be a waiver of the right to a jury trial or purports to require disputes or claims to be resolved by judicial reference, purports to be a waiver of any right to object to jurisdiction or venue, a waiver of any right to claim damages or to service of process, or a waiver of any provisions of Division 9 of the UCC that may not be waived, or a waiver of any other rights or benefits bestowed by operation of law or the waiver of which is limited by applicable law; (vii) purports to exculpate any party from its own negligent acts or limit any party from certain liabilities; (viii) purports to entitle The Collateral Agent to the appointment of a receiver on ex parte application, as a matter of right or without regard to the then value of the real property: (ix) purports to require the payment of attorneys’ fees to the extent such fees exceed reasonable attorneys’ fees or exceed amounts permitted by any applicable law; (x) purports to authorize The Collateral Agent to set off and apply any deposits at any time held, and any other indebtedness at any time owing, by The Collateral Agent to or for the account of Mortgagor or which purports to provide that any purchaser of a participation from any note purchaser may exercise setoff or similar rights with respect to such participation; (xi) purports to grant a power of sale under the Mortgage; (xii) purports to make the assignment provisions of the

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March 20, 2013

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assignment of rents and leases contained in the Mortgage absolute rather than for security only; (xiii) purports to avoid treatment of The Collateral Agent as a mortgagee in possession; or (xiv) purports to select a particular State’s law to govern the interpretation thereof

(m) The opinions given above with respect to the enforceability and perfection of security interests are subject to the following exceptions:

(i) the continued perfection of the security interests created under the Mortgage and perfected by the filing of the Mortgage may depend upon the continuation of Borrower’s present name: and

(ii) Borrower’s name on the Mortgage must be the same name indicated on the public record. See Section 9103 of the UCC and related comments.

(n) We express no opinion with respect to the effect of laws or regulations governing enforcement of remedies.

(o) We express no opinion with respect to any matter arising om of or related to the USA Patriot Act of 2001, as amended, the International Emergency Economic Powers Act 50 U.S.C. §§ 1701 et seq., The Trading with the Enemy Act, 50 U.S.C. app. 1 et seq., any regulations promulgated under the foregoing laws, Executive Order No. 13224 on Terrorist Financing, any sanctions program administered by the U.S. Department of Treasury’s Office of Foreign Asset Control, or any other laws, regulations, executive orders or government programs designed to combat terrorism or money laundering, or the effect of any of the foregoing laws, regulations, orders or programs, if applicable, to the transaction described in the Note Purchase Documents.

(p) Our examination of law relevant to the matters covered by this letter is limited to Delaware law. We express no opinion as to matters governed by federal law or by the laws of any other state or other jurisdiction or by the local law of any municipality located within the State of Delaware.

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As Collateral Agent

March 20, 2013

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This opinion may not be used or relied upon by any party other than the addresses hereof (and their successors, assigns and participants) and only in connection with the Notes. This opinion may not be used or relied on by any other person for other purpose (including the addressees hereof), without in each instance our prior written consent, except for the use of this opinion (i) in connection with review of the Notes by a regulatory agency having supervisory authority over the addressees hereof (including, without limitation, the National Association of Insurance Commissioners) for the purpose of confirming the existence of this opinion; (ii) in connection with the assertion of a defense as to which this opinion is relevant and necessary; and (iii) in response to a court order.

Very truly

Drinker Biddle & Reath LLP

ST/st

March 20, 2013

To Each of the Persons

Listed on Schedule A

Attached Hereto

Re: Diamond State Generation Partners, LLC

Ladies and Gentlemen:

We have acted as special Delaware counsel to Diamond State Generation Partners, LLC, a Delaware limited liability company (the “Company”). This opinion letter is being furnished to you at the request of the Company pursuant to Section 4.1.13(f) of the Note Purchase Agreement, dated March 20, 2013 (the “Note Purchase Agreement”) entered into by the Company and the purchasers of Notes listed on Schedule A attached hereto (the “Purchasers”), to provide financing for the Project (as defined in the Note Purchase Agreement) consisting of a portfolio of up to 150 baseload fuel cell electricity generators manufactured by Bloom Energy Corporation, a Delaware corporation (“Sponsor”), with an aggregate capacity of thirty (30) megawatts to be located in the State of Delaware. Capitalized terms used herein but not defined herein shall have the meanings assigned to such terms in the Note Purchase Agreement, except that reference in this letter to any document shall mean such document as in effect on the date hereof.

The Project will be owned and operated by the Company in accordance with certain tariff provisions of Delmarva Power & Light Company, a Delaware public utility (“DPL”) providing for Service Classifications “QFCP-RC” (the “Tariff’) and LVG-QFCP-RC (the “Gas Tariff’) as approved by Order No. 8062 of the Delaware Public Service Commission (the “Commission”) dated October 18, 2011, as adopted and supplemented by the Commission’s Findings, Opinion and Order No. 8079 dated December 1, 2011 (the “Tariff Approval Final Orders”) in PSC Docket No. 11- 362 styled “IN THE MATTER OF THE APPLICATION OF DELMARVA POWER AND LIGHT COMPANY FOR APPROVAL OF QUALIFIED FUEL CELL PROVIDER PROJECT TARIFFS (FILED AUGUST 19, 2011)” (the “Proceeding”).

For purposes of this letter, our review of documents has been limited to the review of originals or copies furnished to us of the following documents (the “Opinion Documents”):

(a) the REPS Act;

(b) the Note Purchase Agreement;

500 Delaware Avenue, Suite 1500  |  Wilmington, DE 19801-1494             T 302.888.6800             F 302.888.6989

Mailing Address     P.O. Box 2306  |   Wilmington, DE 19899-2306             www.morrisjames.com

To Each of the Persons

Listed in Schedule A Hereto

March 20, 2013

Page 2

(c) the Tariff and the Gas Tariff;

(d) the Application filed by DPL with the Commission in the Proceeding on August 19, 2011, seeking approval of the Tariff, including the direct testimony and schedules of DPL’s witnesses filed therewith (the “Application”);

(e) the direct testimony of The Honorable Colin P. O’Mara, Secretary of the Department of Natural Resources and Environmental Control of the State of Delaware (“DNREC”) filed in the Proceeding on August 19, 2011, and the joint certification, dated August 19, 2011 (the “Joint Certification”), signed by Secretary O’Mara in such capacity, and by the Honorable Alan B. Levin, as Director of the Delaware Economic Development Office (“DEDO”) submitted with such testimony;

(f) Commission Order No. 8025 dated September 6, 2011, and the Public Notice of Application and Public Comment Sessions for this Proceeding as ratified by the Commission therein;

(g) comments of the Delaware Public Advocate submitted in the Proceeding dated September 30, 2011;

(h) the Report on Delmarva Power’s Application for Approval of a New Electric Tariff Applicable to Proposed Bloom Energy Fuel Cell Project, submitted in the Proceeding, dated October 3, 2011;

(i) a transcript of the Commission Hearing taken pursuant to notice before Debra A. Donnelly, Registered Professional Reporter, in Legislative Hall, House Chamber, 411 Legislative Boulevard, Dover, Delaware on Tuesday, October 18, 2011, beginning at approximately 10:12 A.M. and concluding at 5:57 P.M. (the “Hearing Transcript”);

(g) the Tariff Approval Final Orders;

(k) the Service Agreement and Agreement to Comply with Obligations, dated as of June 28, 2011, between the Company and DPL (the “Service Agreement”);

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March 20, 2013

Page 3

(1) Commission Order No. 8256 dated December 18, 2012 (“Order 8256”), in PSC Regulation Docket No. 56, and the attachments thereto, including the approved modified Rules and Procedures to Implement the Renewable Energy Portfolio Standard attached thereto;

(m) DP&L’s monthly compliance filings in PSC Docket Nos. 12-173-04 - 12-173-13; and

(n) that certain letter agreement between DEDO and Bloom dated October 10, 2011.

For purposes of this letter, we have not reviewed any documents other than the Opinion Documents and certain written statements of governmental authorities and others referenced in this paragraph. In particular, we have not reviewed and express no opinion herein as to any other document that is referred to in or incorporated by reference into (and not attached as an exhibit, schedule, or otherwise) to any document reviewed by us. We have assumed herein that there exists no provision in any document that we have not reviewed that bears upon or is inconsistent with or contrary to the opinions in this letter. We have conducted no factual investigation of our own, and have relied solely upon the documents reviewed by us, the statements and information set forth in such documents (including without limitation the representations and warranties set forth in the Note Purchase Agreement), certain statements of governmental authorities and others (including without limitation the factual findings of the Commission in the Tariff Approval Final Orders), and the additional matters recited or assumed in this opinion letter, all of which we assume to be true, complete, and accurate and none of which we have investigated or verified.

We have assumed: (i) the due incorporation or due formation, as the case may be, due organization, and valid existence in good standing under the laws of all relevant jurisdictions of each of the parties and each of the signatories (other than natural persons) to each of the documents reviewed by us, and that none of such parties or signatories has dissolved; (ii) the due authorization, execution, and delivery (and, as applicable, filing) of each of such documents by each of the parties thereto and each of the signatories thereto; (iii) that each of such parties and signatories had and has the power and authority to execute, deliver, and perform (and, as applicable, file) each of such documents; and (iv) the legal capacity of all relevant natural persons.

We have assumed that: (i) all signatures on all documents reviewed by us are genuine; (ii) all documents furnished to us as originals are authentic; (iii) all documents furnished to us as copies or specimens conform to the originals thereof; (iv) all executed documents furnished to us have not been terminated, rescinded, altered, or amended; (v) each document reviewed by us constitutes the entire agreement among the parties thereto with respect to the subject matter thereof; and (vi) each document reviewed by us constitutes the legal, valid, and binding obligation of each of the parties thereto and is enforceable against each of such parties in accordance with its terms.

To Each of the Persons

Listed in Schedule A Hereto

March 20, 2013

Page 4

We have further assumed that: (i) no later than the commencement date of commercial operation of the full nameplate capacity of the Project, Sponsor will manufacture fuel cells in Delaware that are capable of being powered by Renewable Fuels (as defined in the REPS Act); (ii) the Project will be operated by Sponsor throughout its 21 year term; (iii) the Project will be up to thirty (30) megawatts nominal nameplate capacity and will not exceed such capacity without further Commission approval as provided in the REPS Act; (iv) DPL, Sponsor and the Company will perform their respective obligations under the Tariff and the Service Agreement in all material respects; (v) the charges imposed under the Tariff will be collected from DPL’s entire Delaware customer base in accordance with the Tariff; (vi) the installed nameplate capacity of the Project shall have been sourced from fuel cell units manufactured in accordance with the REPS Act; (vii) Sponsor, the Company, and their respective affiliates, investors and lenders have obtained, or will obtain in a timely manner, all consents, approvals, permits, authorizations, licenses and similar grants of right or authority from federal, state and local governmental authorities and private entities as shall be necessary for the lawful siting, construction, ownership, operation and maintenance of the Project and the consummation of the transactions contemplated by the Note Purchase Agreement (other than the approvals expressly required by the REPS Act); (viii) each of the Tariff Approval Orders was served by mail on the date of such order; and (ix) neither the Company nor the Sponsor nor any of their affiliates or investors sells or will sell any electrical energy to end-use customers in Delaware or sells or will sell electricity to retail electric customers utilizing the transmission and/or distribution facilities of a nonaffiliated electric utility or otherwise is or will be engaged in the provision of any electric transmission or distribution service in Delaware.

We note that Section 364(i) of the REPS Act provides that the courts of the State of Delaware shall have exclusive original jurisdiction over any dispute between the Company (in its capacity as owner of a “qualified fuel cell provider project” referred to therein) and DPL involving the interpretation of the obligations as contained in the Tariff, but Section P of the Tariff provides that DPL or the Project may institute an action in the Delaware Superior Court following informal dispute resolution. Accordingly, we assume that the Tariff is not intended, and will not be applied, to require that such action be instituted exclusively in the Delaware Superior Court

You have agreed that this opinion relates solely to the REPS Act and the characterization of the Project and Tariff thereunder and the status of the Company under Delaware’s Public Utility Act of 1974, 26 Del.C. §§ 101 et. seq. (the “Public Utility Act”). You have also agreed that we are expressing no other opinion herein with respect to the Project, the Note Purchase Agreement, the parties thereto, the transactions contemplated thereby, or any other transactions involving such parties or the characterization of any of the transactions contemplated by the parties to such transactions or any other matter. It is expressly understood that we express no opinion herein (i) as to the ownership of or title to any property, (ii) as to the creation or attachment of any lien, pledge, mortgage, or security interest, or (iii) as to the perfection of (including, without limitation, the proper place for filing to perfect) any lien, pledge, mortgage, or security interest, (iv) as to the priority of any lien, pledge, mortgage, or security interest, or (v) as to any matters concerning taxation.

To Each of the Persons

Listed in Schedule A Hereto

March 20, 2013

Page 5

Accordingly, based upon the foregoing and upon our examination of such questions of law and statutes as we have considered necessary or appropriate, and subject to the assumptions, qualifications, limitations and exceptions in this letter, we are of the opinion that, for purposes of Delaware law, if properly presented to a Delaware court, or to a United States Federal court sitting in Delaware and applying Delaware law (a “Delaware Court”), the Delaware Court:

1. Would find that the Tariff Approval Final Orders are final and non-appealable and in full force and effect.

2. Would find that the Project is a “qualified fuel cell provider project” within the meaning of Section 352(17) of the REPS Act.

3. Would find that Sponsor is a “qualified fuel cell provider” within the meaning of Section 352(16) of the REPS Act and that the designation of Sponsor’s plan to locate its manufacturing facility in Delaware as an “economic development opportunity” by DEDO and DNREC on August 19, 2011 in the Joint Certification satisfies the requirement in Section 352(16) b. of the REPS Act.

4. Would find that the Company is a “qualified fuel cell provider generator” within the meaning of the Tariff.

5. Would find that the Company is not a “retail electricity supplier” which is defined in Section 352(22) of the Public Utility Act, as follows:

(22) “Retail electricity supplier” means a person or entity that sells electrical energy to end-use customers in Delaware, including but not limited to nonregulated power producers, electric utility distribution companies supplying standard offer, default service, or any successor service to end-use customers. A retail electricity supplier does not include a municipal electric company for the purposes of this subchapter.

6. Would find that the Company is not an “electric supplier” which is defined in Section 1001(14) of the Public Utility Act as follows:

(14) “Electric supplier” means a person or entity certified by the Commission that sells electricity to retail electric customers utilizing the transmission and/or distribution facilities of a nonaffiliated electric utility, including:

a. Municipal corporations which choose to provide electricity outside their municipal limits (except to the extent provided prior to February 1, 1999);

To Each of the Persons

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March 20, 2013

Page 6

b. Electric cooperatives which, having exempted themselves from the Commission’s jurisdiction pursuant to §§ 202 (g) and 223 of this title, choose to provide electricity outside their assigned service territories; and

c. Any broker, marketer or other entity (including public utilities and their affiliates).

7. Would find that the Company is not a “public utility” defined in Section 102(2) of the Public Utility Act (a “Delaware Public Utility”) as follows:

“Public utility” includes every individual, partnership, association, corporation, joint stock company, agency or department of the State or any association of individuals engaged in the prosecution in common of a productive enterprise (commonly called a “cooperative”), their lessees, trustees or receivers appointed by any court whatsoever, that now operates or hereafter may operate for public use within this state, (however, electric cooperatives shall not be permitted directly or through an affiliate to engage in the production, sale or distribution of propane gas or heating oil), any natural gas, electric (excluding electric suppliers as defined in § 1001 of this title), water, wastewater (which shall include sanitary sewer charge), telecommunications (excluding telephone services provided by cellular technology or by domestic public land mobile radio service) service, system, plant or equipment. (emphasis added)

Insofar as the Company is not a Delaware Public Utility, such court would also find that the Company is not subject to rate, financial or organizational regulation by the Commission under the Public Utility Act, nor would any consent, authorization or approval or other action by the Commission, or any notice to or filing with the Commission, be required under the Public Utility Act for the execution and delivery by the Company of the Note Purchase Agreement.

We note that we have found no express exemption of QFCP Projects from regulation as Delaware Public Utilities under the Public Utility Act or the Commission’s orders or regulations. The Delaware courts apply a two part test to determine whether an entity is a Delaware Public Utility, examining first whether there is a sale of a regulated commodity to third parties and second whether the sale affects the public interest in a significant manner. See e.g., Eastern Shore Natural Gas Co. v. Delaware Public Service Com’n, 637 A.2d 10 (Del. 1994) (FERC regulated interstate natural gas pipeline that sold natural gas to eleven direct-sales industrial customers in Delaware was a Delaware Public Utility); Public Water Supply Company, Inc. v. DiPasquale, 802 A.2d 929 (Del. Super. 2002) (landlord that distributed well water in Delaware mobile home park was a Delaware Public Utility); The Reserves Development Corporation v. State of Delaware Public Service Commission, 2003 WL 139777 (Del. Super. Jan. 17, 2003) (homeowners’ association that distributes well water to its members is a Delaware Public Utility). Our opinion is based on our understanding,

To Each of the Persons

Listed in Schedule A Hereto

March 20, 2013

Page 7

and assumption, that the Company will be generating and selling electric energy, capacity and ancillary services exclusively at wholesale in the PJM wholesale markets as an Exempt Wholesale Generator with market-based rate authority from FERC, and will not be selling any regulated commodities to third parties in any manner that would affect the public interest in Delaware.

8. Would find that the Service Agreement which, inter alia, obligates DPL to comply with its obligations under the Tariff, creates binding obligations of DPL which are enforceable against DPL in accordance with the terms of the Service Agreement.

9. Would find that the Tariff is not subject to modification or revocation by the Commission except to the extent otherwise provided in the REPS Act.

The foregoing opinions are subject to (and we offer no opinion concerning the effect of) (i) bankruptcy, insolvency, moratorium, reorganization, receivership, fraudulent conveyance, preferential transfer, liquidation, and similar laws relating to or affecting rights and remedies of creditors generally; (ii) principles of equity, including, without limitation, applicable law relating to fiduciary duties (regardless of whether considered and applied in a proceeding in equity or at law); and (iii) standards of good faith, fair dealing, course of dealing, course of performance, materiality, and reasonableness that may be applied by a court, considerations of public policy, and the exercise of judicial discretion.

Our opinion is necessarily based on the assumption that in any case in which this question is considered, the question will be competently briefed and argued. Our opinion is reasoned and also presumes that any decision rendered will be based on existing legal precedents, including those discussed above.

We are attorneys admitted to practice in the State of Delaware. This opinion letter addresses only matters of Delaware law (excluding laws, rules and regulations pertaining to taxation, securities regulation, environmental regulation, land use and zoning), and we offer no opinion as to the laws of any other jurisdiction, including, without limitation, the federal laws of the United States of America or the laws of any other State. The opinions expressed in this letter are not a guaranty as to what any particular court would actually hold, but are reasoned opinions as to the decisions a court should reach if the issues are properly presented to it and the court followed existing precedent as to legal and equitable principles applicable in such cases. The recipients of this opinion should take these limitations into account in analyzing the risks associated with the transactions described herein.

We consent to your relying on this letter on the date hereof in connection with the Transaction and other matters set forth herein. Without our prior written consent, this letter may not be furnished or quoted to (except (i) to any accountant or attorney for any person or entity entitled hereunder to rely hereon or to whom or which this opinion letter may be furnished or quoted as

To Each of the Persons

Listed in Schedule A Hereto

March 20, 2013

Page 8

stated herein, (ii) the National Association of Insurance Commissioners or any other governmental or regulatory authority, (iii) any institutional investors which are transferees of the Notes, and (iv) as otherwise required by applicable law or required or requested by any governmental authority or any self-regulatory body having jurisdiction over a Purchaser), or relied upon by, any other person or entity, or relied upon for any other purpose. There are no implied opinions in this letter. This letter speaks only as of the date hereof, and we do not assume any continuing obligation or responsibility to advise you of any changes in law, or any change in circumstances of which we become aware, which may affect the opinion contained herein or to update, revise or supplement this opinion for any other reason.

Very truly yours,

NJC/PCC/am

SCHEDULE A

Purchasers:

AXA Equitable Life Insurance Company

M. Life Insurance Company

Genworth Life and Annuity Insurance Company

Genworth Life Insurance Company of New York

Massachusetts Mutual Life Insurance Company

MassMutual Asia Limited

Modem Woodmen of America

Teachers Insurance and Annuity Association of America

Exhibit 4.1.13(f)

FORM OF OPINION OF SPECIAL COUNSEL

TO THE PURCHASERS

[See Execution Version]

EXHIBIT 4.1.13(f) TO NOTE PURCHASE AGREEMENT

	53rd at Third 885 Third Avenue
	New York, New York 10022-4834
	Tel: +1.212.906.1200 Fax: +1.212.751.4864
	www.lw.com
	FIRM/ AFFILIATE OFFICES
	Abu Dhabi	Moscow
	Barcelona	Munich
	Beijing	New Jersey
	Boston	New York
March 20, 2013	Brussels	Orange County
	Chicago	Paris
	Doha	Riyadh
	Dubai	Rome
	Frankfurt	San Diego
	Hamburg	San Francisco
	Hong Kong	Shanghai
	Houston	Silicon Valley
	London	Singapore
	Los Angeles	Tokyo
	Madrid	Washington, D.C. Milan

To the Purchasers listed on Schedule A

hereto (collectively, the “Purchasers”)

Re: Diamond State Generating Partners, LLC Ladies and Gentlemen:

We have acted as your counsel in connection with the purchase by you of $144,812,500 aggregate principal amount of 5.22% Senior Secured Notes due March 30, 2025 (the “Notes”), issued by Diamond State Generation Partners, LLC, a Delaware limited liability company (the “Company”), pursuant to that certain Note Purchase Agreement dated as of March 20, 2013 (the “Note Purchase Agreement”), among the Company and you and the other Financing Documents (as defined below). This letter is furnished to you pursuant to Section 4.1.l 3(f) of the Note Purchase Agreement.

As such counsel, we have examined such matters of fact and questions of law as we have considered appropriate for purposes of this letter, except where a specified fact confirmation procedure is stated to have been performed (in which case we have with your consent performed the stated procedure). We have examined, among other things, the following:

(a) the Note Purchase Agreement;

(b) the Security Agreement, dated as of March 20, 2013 (the “Security Agreement”), between the Company and Deutsche Bank Trust Company Americas, as collateral agent for the Secured Parties (the “Collateral Agent”);

(c) the Pledge and Security Agreement, dated as of March 20, 2013 (the “Pledge Agreement”), among the Company, Diamond State Generation Holdings, LLC, a Delaware limited liability company (“Pledgor”) and the Collateral Agent;

(d) the Equity Contribution Agreement, dated as of March 20, 2013, among the Company, Bloom Energy Corporation, a Delaware corporation (the “Sponsor”) and the Collateral Agent;

(e) the Collateral Agency Agreement, dated as of March 20, 2013, among the Purchasers and the Collateral Agent;

(f) the Depositary Agreement, dated as of March 20, 2013 (the “Depositary Agreement”), among the Company, the Collateral Agent and Deutsche Bank Trust Company Americas, in its capacity as the Depositary (in such capacity, the “Depositary Bank”);

(g) the Notes listed on Schedule B hereto; and

(h) photocopies of the UCC-1 financing statements (i) naming the Company as debtor and the Collateral Agent as secured party and (ii) naming the Pledgor as debtor and the Collateral Agent as secured party, together with all schedules and exhibits to each financing statement, to be filed in the Office of the Secretary of State of the State of Delaware, copies of which are attached hereto as Exhibit A (collectively, the “Delaware Financing Statements”).

The documents described in subsections (a) - (g) above are referred to herein collectively as the “Financing Documents.” As used in this letter, the “New York UCC” shall mean the Uniform Commercial Code as now in effect in the State of New York and “Applicable UCC” shall mean the New York UCC and/or the Delaware UCC (as defined below).

As to factual matters we have, with your consent, relied upon the foregoing, and upon oral and written statements and representations of officers and other representatives of the Company and others, including the representations and warranties of the Company m the Financing Documents. We have not independently verified such factual matters.

We are opining as to the effect on the subject transactions only of the federal laws of the United States and the internal laws of the State of New York, except that with respect to our opinions set forth in paragraph 5 of this letter (as it relates to the Delaware UCC), we are opining as to the effect on the subject transactions only of the Delaware UCC. We express no opinion with respect to the applicability thereto, or the effect thereon, of the laws of any other jurisdiction, or in the case of the State of Delaware, any other laws, or as to any matters of municipal law or the laws of any local agencies within any state. With your permission, we have based our opinions set forth in paragraph 5 of this letter exclusively upon our review of Article 9 of the Uniform Commercial Code of the State of Delaware as set forth in the CCH Secured Transactions Guide without regard to judicial interpretations thereof or any regulations promulgated thereunder or any other laws of the State of Delaware (the “Delaware UCC”).

Our opinions herein are based upon our consideration of only those statutes, rules and regulations which, in our experience, are normally applicable to purchases of secured notes in private placement transactions. We express no opinion as to any state or federal laws or regulations applicable to the subject transactions because of the legal or regulatory status of any parties to the Financing Documents or the legal or regulatory status of any of their affiliates. Various issues pertaining to, among other things, (a) the organization or formation (as the case may be), authorization, execution and delivery, limited company or limited liability power (as the case may be), and good standing of the Obligors, (b) energy regulatory authorizations, approvals, licenses and permits and (c) certain U.S. constitutional issues are addressed in the opinions of Orrick, Herrington & Sutcliffe LLP, Drinker Biddle & Reath LLP and Morris James LLP, in their respective capacities as counsels to the Obligors, separately provided to you. We express no opinion with respect to those matters herein, and to the extent elements of those opinions are necessary to the conclusions expressed herein, we have, with your consent, assumed such matters.

Subject to the foregoing and the other matters set forth herein, as of the date hereof:

1. Each of the Financing Documents constitutes a legally valid and binding obligation of each Obligor party thereto, enforceable against each such Obligor in accordance with its terms.

2. The execution and delivery of the Financing Documents and the issuance of the Notes (only with respect to the Company), do not on the date hereof:

(i) violate any federal or New York statute, rule, or regulation applicable to the Company; or

(ii) require any consents, approvals, or authorizations to be obtained by the Company from, or any registrations, declarations or filings to be made by the Company with, any governmental authority under any federal or New York statute, rule or regulation applicable to the Company, except (a) filings and recordings required in order to perfect or otherwise protect the security interests under the Financing Documents and (b) any consents or approvals required in connection with a disposition of collateral including compliance with federal and state securities laws in connection with any sale of any portion of the collateral consisting of securities under such securities laws.

3. The Security Agreement creates a valid security interest in favor of the Collateral Agent in that portion of the collateral described in Section 2.1 of the Security Agreement in which the Company has rights and a valid security interest may be created under Article 9 of the New York UCC (the “Company UCC Collateral”), which security interest secures the Obligations (as defined in the Note Purchase Agreement).

4. The Pledge Agreement creates a valid security interest in favor of the Collateral Agent m that portion of the collateral described in Section 2.1 of the Pledge Agreement in which the Pledgor has rights and a valid security interest may be created under Article 9 of the New York UCC (the “Pledgor UCC Collateral” and, together with the Company UCC Collateral, the “UCC Collateral”), which security interest secures the Secured Obligations (as defined in the Pledge Agreement).

5. The Delaware Financing Statements naming the Company and the Pledgor (the “Delaware Entities”) as debtors are in appropriate form for filing in the Office of the Secretary of State the State of Delaware. Upon the proper filing of each of the Delaware Financial Statements in the Office of the Secretary of State of the State of Delaware, the security interest in favor of the Collateral Agent in each Delaware Entities’ rights in the UCC Collateral pledged by it and described in the Delaware Financing Statement will be perfected to the extent a security interest in such UCC Collateral can be perfected under the Delaware UCC by the filing of a financing statement in that office.

6. The provisions of the Depositary Agreement are effective under the New York UCC to perfect the security interest in favor of the Collateral Agent in that portion of the Company UCC Collateral consisting of security entitlements (as defined in Section 8-102(a)(l 7) of the New York UCC) with respect to financial assets (as defined in Section 8-102(a)(9) of the New York UCC) credited to the securities accounts maintained with Deutsche Bank Trust Americas (the “Securities Intermediary”) and described in Section 2.1 of the Depositary Agreement (the “Securities Accounts”), assuming (a) the Depositary Agreement has been duly authorized, executed and delivered by each of the parties thereto and is the legally valid and binding obligation of such parties, (b) the Securities Intermediary’s jurisdiction (determined in accordance with Section 8-110(e) of the New York UCC) is the State of New York, (c) that each of the Securities Accounts is a “securities account” (within the meaning of Section 8-501 of the New York UCC) and (d) the Securities Intermediary, with respect to any Securities Accounts, is acting in its capacity as a “securities intermediary” as defined in Section 8- 102(a)(14) of the New York UCC.

7. The Company is not required to be registered as an “investment company” within the meaning of the Investment Company Act of 1940, as amended.

8. No registration of the Notes under the Securities Act of 1933, as amended, and no qualification of an indenture under the Trust Indenture Act of 1939, as amended, is required for the purchase of the Notes by you in the manner contemplated by the Note Purchase Agreement. We express no opinion, however, as to when or under what circumstances any Notes initially sold to you may be reoffered or resold.

Except as expressly set forth in paragraphs 3 through 6, we do not express any opinion with respect to the creation, validity, attachment, perfection or priority of any security interest or lien or the effectiveness of any sale or other conveyance or transfer of real or personal property. The opinions above do not include any opinions with respect to compliance with laws relating to permissible rates of interest.

Our opinions are subject to:

a. the effects of bankruptcy, insolvency, reorganization, preference, fraudulent transfer, moratorium or other similar laws relating to or affecting the rights or remedies of creditors;

b. the effects of general principles of equity, whether considered in a proceeding in equity or at law (including the possible unavailability of specific performance or injunctive relief), concepts of materiality, reasonableness, good faith, fair dealing and the discretion of the court before which a proceeding is brought;

c. the invalidity under certain circumstances under law or court decisions of provisions for the indemnification of or contribution to a party with respect to a liability where such indemnification or contribution is contrary to public policy; and

d. we express no opinion with respect to (i) consents to, or restrictions upon, governing law, jurisdiction, venue, service of process, arbitration, remedies or judicial relief; (ii) advance waivers of claims, defenses, rights granted by law, or notice, opportunity for hearing, evidentiary requirements, statutes of limitation, trial by jury or at law, or other procedural rights; (iii) waivers of broadly or vaguely stated rights; (iv) provisions for exclusivity, election or cumulation of rights or remedies; (v) provisions authorizing or validating conclusive or discretionary determinations; (vi) grants of setoff rights; (vii) provisions to the effect that a guarantor is liable as a primary obligor, and not as a surety and provisions purporting to waive modifications of any guaranteed obligation to the extent such modification constitutes a novation; (viii) provisions for the payment of attorneys’ fees where such payment is contrary to law or public policy; (ix) proxies, powers and trusts; (x) provisions prohibiting, restricting, or requiring consent to assignment or transfer of any right or property; (xi) provisions for liquidated damages, default interest, late charges, monetary penalties, prepayment or make-whole premiums or other economic remedies to the extent such provisions are deemed to constitute a penalty and (xii) provisions permitting, upon acceleration of any indebtedness, collection of that portion of the stated principal amount thereof which might be determined to constitute unearned interest thereon.

We express no opinion or confirmation as to federal or state securities laws (except as set forth in paragraphs 7 and 8 of this letter as to federal securities laws), tax laws, antitrust or trade regulation laws, insolvency or fraudulent transfer laws, antifraud laws, compliance with fiduciary duty requirements, pension or employee benefit laws, usury laws, environmental laws, margin regulations, state or federal energy laws, utility regulation, laws and regulations relating to commodities trading, futures and swaps; Financial Industry Regulatory Authority rules; National Futures Association rules; or the rules of any stock exchange, clearing organization, designated contract market or other regulated entity for trading, processing, clearing or reporting transactions in securities, commodities, futures or swaps (without limiting other laws or rules excluded by customary practice).

Without limiting the generality of the foregoing, the opinions expressed above are also subject to the following limitations, exceptions and assumptions:

The effect of New York law and court decisions which provide that certain suretyship rights and defenses are available to a party that encumbers its property to secure the obligations of another.

The opinions set forth above are also subject to (i) the unenforceability of contractual provisions waiving or varying the rules listed in Section 9-602 of the New York UCC, (ii) the unenforceability under certain circumstances of contractual provisions respecting self-help or summary remedies without notice of or opportunity for hearing or correction, (iii) the effect of provisions of the New York UCC and other general legal principles that impose a duty to act in good faith and in a commercially reasonable manner, and (iv) the effect of Sections 9- 406, 9- 407, 9-408 and 9-409 of the New York UCC on any provision of any Financing Document that purports to prohibit, restrict, require consent for or otherwise condition the assignment of rights under such Financing Document.

Our opinions in paragraphs 3, 4 and 6 above are limited to Article 9 of the New York UCC, and our opinions in paragraph 5 are limited to Article 9 of the Delaware UCC, and therefore those opinion paragraphs, among other things, do not address collateral of a type not subject to, or excluded from the coverage of, Article 9 of the New York UCC and/or the Delaware UCC, as applicable (the “Applicable UCC”). Additionally,

(1) We express no opinion with respect to the priority of any security interest or lien.

(2) We express no opinion with respect to any agricultural lien or any collateral that consists of letter-of-credit rights, commercial tort claims, goods covered by a certificate of title, claims against any government or governmental agency, consumer goods, crops growing or to be grown, timber to be cut, goods which are or are to become fixtures, as-extracted collateral or cooperative interests.

(3) We assume the descriptions of collateral contained in, or attached as schedules to, the Financing Documents and any financing statements accurately and sufficiently describe the collateral intended to be covered by the Financing Documents or such financing statements. Additionally, we express no opinion as to whether the phrases “all personal property” or “all assets” or similarly general phrases would be sufficient to create a valid security interest in the collateral or particular item or items of collateral; however, we note that pursuant to Section 9- 504 of the Delaware UCC the phrases “all assets” or “all personal property” can be a sufficient description of collateral for purposes of perfection by the filing of a financing statement.

(4) We have assumed that each Obligor has, or with respect to after-acquired property will have, rights in the collateral granted by it or the power to transfer rights in such collateral, and that each such Obligor has received value and we express no opinion as to the nature or extent of such Obligor’s rights in any of the collateral and we note that with respect to any after- acquired property, the security interest will not attach until such Obligor acquires such rights or power.

(5) We call to your attention the fact that the perfection of a security interest in “proceeds” (as defined in the Applicable UCC) of collateral is governed and restricted by Section 9-315 of the Applicable UCC.

(6) We have assumed that the exact legal name of each Obligor is as set forth in the copy of the organizational documents certified by the Secretary of State of the State of Delaware, and we have also assumed the accuracy of the other factual information set forth on the Delaware Financing Statements.

(7) Section 552 of the federal Bankruptcy Code limits the extent to which property acquired by a debtor after the commencement of a case under the federal Bankruptcy Code may be subject to a security interest arising from a security agreement entered into by the debtor before the commencement of such case.

(8) We express no opinion with respect to any property subject to a statute, regulation or treaty of the United States whose requirements for a security interest’s obtaining priority over the rights of a lien creditor with respect to the property preempt Section 9-310(a) of the Delware UCC.

(9) We express no opinion with respect to any goods which are accessions to, or commingled or processed with, other goods to the extent that the security interest is limited by Section 9-335 or 9-336 of the Applicable UCC.

(10) We call to your attention that a security interest may not attach or become enforceable or be perfected as to contracts, licenses, permits, equity interests or other property that are not assignable under applicable law, or are subject to consent requirements or contractual or other prohibitions or restrictions on assignment, except to the extent that any such prohibitions, restrictions or consent requirements may be rendered ineffective to prevent the attachment of the security interest pursuant to Sections 9-406, 9-407, 9-408 or 9-409 of the New York UCC, as applicable, and we note that the extent of any security interest created in reliance on such UCC provisions may be limited. In addition, we call to your attention that your rights under the Financing Documents as secured parties may be subject to the provisions of the organizational and governing documents of any entity in which any equity interests (or other rights of equity holders or investors) are pledged and the provisions of the applicable laws under which any such entity is organized.

(11) We express no opinion regarding any security interest in any copyrights, patents, trademarks, service marks or other intellectual property, or any license or sublicense thereof or the proceeds of any of the foregoing except to the extent Article 9 of the New York UCC may be applicable to the foregoing and, without limiting the generality of the foregoing, we express no opinion as to the effect of any federal laws relating to copyrights, patents, trademarks, service marks or other intellectual property on the opinions expressed herein. In addition, we call to your attention that any license or sublicense of copyrights, patents, trademarks or other intellectual property may not be assignable unless such license or sublicense affirmatively permits the creation, perfection and enforcement of a security interest therein.

(12) We express no opinion with respect to any property or assets now or hereafter credited to any Securities Account that is a securities account except to the extent that (a) a “security entitlement” (as such term is defined in Section 8-NY\5638404.61 102(a)(l 7) of the New York UCC) has been created and (b) such asset is a

“financial asset” (as such term is defined in Section 8-102(a)(9) of the New York UCC). Furthermore, we express no opinion with respect to the nature or extent of the Securities Intermediary’s rights in, or title to, the securities or other financial assets underlying any “security entitlement” now or hereafter credited to a securities account. We note that to the extent the Securities Intermediary maintains any financial asset in a “clearing corporation” (as defined in Section 8- 102(5) of the New York UCC), pursuant to Section 8-111 of the New York UCC, the rules of such clearing corporation may affect the rights of the Securities Intermediary.

(13) We express no opinion as to any security interest in any portion of the collateral that is subject to an agreement prohibiting, restricting or conditioning the assignment thereof except to the extent that any such prohibitions or restrictions are rendered ineffective under the New York UCC or any such conditions have been complied with.

(14) Other than with respect to the Purchasers, we express no opinion with respect to the security interest of the Collateral Agent for the benefit of any Secured Party except to the extent that the Collateral Agent has been duly appointed as agent for such persons.

With your consent, except to the extent that we have expressly opined as to such matters with respect to the Obligors herein, we have assumed (a) that the Financing Documents have been duly authorized, executed and delivered by each of the parties thereto, (b) the genuineness of all signatures and the legal capacity of all natural persons, (c) that the Financing Documents constitute legally valid and binding obligations of the parties thereto other than the Obligors, enforceable against each of them in accordance with their respective terms, and (d) that the status of the Financing Documents as legally valid and binding obligations of the parties is not affected by any (i) breaches of, or defaults under, agreements or instruments, (ii) violations of statutes, rules, regulations or court or governmental orders, or (iii) failures to obtain required consents, approvals or authorizations from, or make required registrations, declarations or filings with, governmental authorities.

This letter is furnished only to you and is solely for your benefit in connection with the transactions referenced in the first paragraph. This letter may not be relied upon by you for any other purpose, or furnished to, assigned to, quoted to or relied upon by any other person, firm or entity for any purpose, without our prior written consent, which may be

granted or withheld in our discretion; provided that copies of this letter may be delivered to any governmental or regulatory authority with authority over a Purchaser (including the National Association of Insurance Commissioners) for disclosure (but not reliance) purposes. At your request, we hereby consent to reliance hereon by any future assignee of your interest in the Notes pursuant to an assignment that is made and consented to in accordance with the express provisions of Section 13.2 and Section 22.1 of the Note Purchase Agreement, on the condition and understanding that (i) this letter speaks only as of the date hereof, (ii) we have no responsibility or obligation to update this letter, to consider its applicability or correctness to other than its addressee(s), or to take into account changes in law, facts or any other developments of which we may later become aware, and (iii) any such reliance by a future assignee must be actual and reasonable under the circumstances existing at the time of assignment, including any changes in law, facts or any other developments known to or reasonably knowable by the assignee at such time.

Very truly yours,

LATHAM & WATKINS LLP

SCHEDULE A

Purchasers

AXA Equitable Life Insurance Company

C. M. Life Insurance Company

Genworth Life and Annuity Insurance Company

Genworth Life Insurance Company of New York

Massachusetts Mutual Life Insurance Company

MassMutual Asia Limited

Modem Woodmen of America

Teachers Insurance and Annuity Association of America

SCHEDULE B

Notes

NUMBER OF NOTE	TYPE OF NOTE	NAME OF INVESTOR	PRINCIPAL AMOUNT
1	5.22% Senior Secured Note due March 30, 2025	Modern Woodmen of America	$	15,000,000.00
2	5.22% Senior Secured Note due March 30, 2025	AXA Equitable Life Insurance Company	$	15,000,000.00
3	5.22% Senior Secured Note due March 30, 2025	AXA Equitable Life Insurance Company	$	20,000,000.00
4	5.22% Senior Secured Note due March 30, 2025	Teachers Insurance and Annuity Association of America	$	35,000,000.00
5	5.22% Senior Secured Note due March 30, 2025	Massachusetts Mutual Life Insurance Company	$	32,200,000.00
6	5.22% Senior Secured Note due March 30, 2025	C.M. Life Insurance Company	$	3,500,000.00
7	5.22% Senior Secured Note due March 30, 2025	MassMutual Asia Limited	$	4,300,000.00
8	5.22% Senior Secured Note due March 30, 2025	Genworth Life and Annuity Insurance Company	$	5,000,000.00
9	5.22% Senior Secured Note due March 30, 2025	Genworth Life and Annuity Insurance Company	$	5,000,000.00
10	5.22% Senior Secured Note due March 30, 2025	Genworth Life and Annuity Insurance Company	$	5,000,000.00
11	5.22% Senior Secured Note due March 30, 2025	Genworth Life Insurance Company of New York	$	4,812,500.00

EXHIBIT A

Delaware Financing Statements

(See following pages)

UCC FINANCING STATEMENT

FOLLOW INSTRUCTIONS (front and back) CAREFULLY

A.	NAME & PHONE OF CONTACT AT FILER [optional]
	Lisa Phillips                                   (212) 906-1200
B.	SEND ACKNOWLEDGMENT TO: (Name and Address)
	Latham & Watkins LLP 885 Third Avenue New York, NY 10022 lisa.phillips@lw.com	THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY

1. DEBTOR’S EXACT FULL LEGAL NAME-insert only one debtor name (1a or 1b) - do not abbreviate or combine names

	1a. ORGANIZATION’S NAME
	Diamond State Generation Holdings, LLC
OR	1b. INDIVIDUAL’S LAST NAME			FIRST NAME	MIDDLE NAME	SUFFIX
1c.	MAILING ADDRESS 1299 Orleans Drive			CITY Sunnyvale	STATE POSTAL CODE CA      | 94089	COUNTRY USA
1d. SEE INSTRUCTIONS		ADD’L INFO RE   |  e. TYPE OF ORGANIZATION		1f. JURISDICTION OF ORGANIZATION	1g. ORGANIZATIONAL ID #, if any
		ORGANIZATION	LLC	Delaware
						☐NONE
2. ADDITIONAL DEBTOR’S EXACT FULL LEGAL NAME - insert only one debtor name (2a or 2b) - do not abbreviate or combine names
	2a. ORGANIZATION’S NAME
OR	2b. INDIVIDUAL’S LAST NAME			FIRST NAME	MIDDLE NAME	SUFFIX
2c. MAILING ADDRESS				CITY	STATE       | POSTAL CODE	COUNTRY
2d. SEE INSTRUCTIONS		ADD’L INFO RE   |  2e. TYPE OF ORGANIZATION		2f. JURISDICTION OF ORGANIZATION	2g. ORGANIZATIONAL ID #, if any
		ORGANIZATION
		DEBTOR				☐NONE
3. SECURED PARTY’S NAME (or NAME of TOTAL ASSIGNEE of ASSIGNOR S/P)-insert only one secured party name (3a or 3b)
	3a. ORGANIZATION’S NAME
	Deutsche Bank Trust Company Americas, as Collateral Agent
OR	3b. INDIVIDUAL’S LAST NAME			FIRST NAME	MIDDLE NAME	SUFFIX
3c. MAILING ADDRESS 60 Wall Street, MSNYC 60-2710				CITY New York	STATE POSTAL CODE NY       | 10005	COUNTRY USA

4. This FINANCING STATEMENT covers the following collateral:

See Schedule A attached hereto and by this reference incorporated herein for a description of the Collateral.

5. ALTERNATIVE DESIGNATION [if applicable]: ☐LESSEE/LESSOR ☐CONSIGNEE/CONSIGNOR ☐BAILEE/BAILOR ☐SELLER/BUYER ☐AG. LIEN ☐NON-UCC FILING
6. ☐This FINANCING STATEMENT is to be filed [for record] (or recorded) in the REAL           ESTATE RECORDS. Attach Addendum [if applicable]	1. Check to REQUEST SEARCH REPORT(S) on Debtor(s) [ADDITIONAL FEE]         [optional]	☐All Debtors	☐Debtor 1	☐Debtor 2
8. OPTIONAL FILER REFERENCE DATA	034738-0017	F#376727
Filed with: DE - Secretary of State		A#543036

SCHEDULE A TO UCC-1 FINANCING STATEMENT

DEBTOR:	DIAMOND STATE GENERATION HOLDINGS, LLC
SECURED PARTY:	DEUTSCHE BANK TRUST COMPANY
	AMERICAS, as Collateral Agent

This Financing Statement covers all of the Debtor’s right, title and interest in the following property, whether now owned or hereafter existing, owned or acquired, and wherever located (collectively, the “Collateral”):

Any and all of Debtor’s right, title and interest, whether now owned or hereafter existing or acquired, in Diamond State Generation Partners, LLC, a Delaware limited liability company (the “Company”), and all limited liability company interests of the Company related thereto (the “Pledged Equity Interests”), and:

(a) all rights to receive income, gain, profit, dividends and other distributions allocated or distributed to Debtor in respect of or in exchange for all or any portion of the Pledged Equity Interests;

(b) all of Debtor’s capital or ownership interest, including capital accounts, in the Company, and all accounts, deposits or credits of any kind with the Company;

(c) all of Debtor’s voting rights in or rights to control or direct the affairs of the Company;

(d) all of Debtor’s rights, title and interest, as the sole member of the Company, in, to or under any and all of the Company’s assets or properties;

(e) all other rights, title and interest in or to the Company derived from the Pledged Equity Interests;

(f) all indebtedness or other obligations of the Company owed to Debtor;

(g) all claims of Debtor for damages arising out of, or for any breach or default relating to, any of the foregoing;

(h) all rights of Debtor to terminate, amend, supplement, modify, or cancel, the Governing Documents, to take all actions thereunder and to compel performance and otherwise exercise all remedies thereunder;

(i) all Securities, notes, certificates and other Instruments representing or evidencing any of the foregoing rights and interests or the ownership thereof and any interest of Debtor reflected in the books of any financial intermediary pertaining to such rights and interests and all non-cash dividends, cash, options, warrants, stock splits, reclassifications, rights, Instruments or other Investment Property and other property or Proceeds from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of such rights and interests; and

(j) to the extent not included in any of the foregoing, all Proceeds of the foregoing Collateral, whether cash or non-cash;

provided, that “Collateral” shall not include any dividend, distribution or other payment of whatever nature (whether in cash or kind) to Debtor not prohibited by the terms of the Note Purchase Agreement.

As used in this Financing Statement, the following terms have the following meanings:

“Governing Documents” means, collectively, (i) the Company’s certificate of formation, dated April 14, 2011, as amended by that certain Certificate of Amendment, dated May 26, 2011 (as amended from time to time) and (ii) the Company’s Second Amended and Restated Limited Liability Company Agreement dated as of March 20, 2013 (as amended from time to time).

“Note Purchase Agreement” means the agreement dated as of March 20, 2013 (as amended, amended and restated, supplemented modified from time to time) between the Company and the purchasers party thereto (the “Purchasers”) pursuant to which the Company will issue and sell the Notes to the Purchasers.

“Securities” shall have the meaning specified in section 2(1) of the Securities Act of 1933, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.

“UCC” means the Uniform Commercial Code as the same may, from time to time, be in effect in the State of New York; provided, however, that in the event that, by reason of mandatory provisions of law, any or all of the perfection or priority of the security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, the term “UCC” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such perfection or priority and for purposes of definitions related to such provisions.

Unless otherwise defined herein, (i) all capitalized terms used shall have the meanings provided the Note Purchase Agreement or, if not defined therein, the UCC, and (ii) all terms defined in the UCC and used herein shall have the same definitions herein as specified therein. If a term is defined in Article 9 of the UCC differently than in another Article of the UCC, the term has the meaning specified in Article 9.

UCC FINANCING STATEMENT

FOLLOW INSTRUCTIONS (front and back) CAREFULLY

A.	NAME & PHONE OF CONTACT AT FILER [optional]
	Lisa Phillips                                   (212) 906-1200
B.	SEND ACKNOWLEDGMENT TO: (Name and Address)
	Latham & Watkins LLP 885 Third Avenue New York, NY 10022 lisa.phillips@lw.com	THE ABOVE SPACE IS FOR FILING OFFICE USE ONLY

1. DEBTOR’S EXACT FULL LEGAL NAME-insert only one debtor name (1a or 1b)-do not abbreviate or combine names

	1a. ORGANIZATION’S NAME
	Diamond State Generation Partners, LLC
OR	1b. INDIVIDUAL’S LAST NAME			FIRST NAME	MIDDLE NAME	SUFFIX
1c.	MAILING ADDRESS 1252 Orleans Drive			CITY Sunnyvale	STATE POSTAL CODE CA       | 94089	COUNTRY USA
1d. SEE INSTRUCTIONS		ADD’L INFO RE   |  1e . TYPE OF ORGANIZATION		1f. JURISDICTION OF ORGANIZATION	1g. ORGANIZATIONAL ID #. if any
		ORGANIZATION	LLC	Delaware
		DEBTOR				☐ NONE
2. ADDITIONAL DEBTOR’S EXACT FULL LEGAL NAME - insert only one debtor name (2a or 2b) - do not abbreviate or combine names
	2a. ORGANIZATION’S NAME
OR	2b. INDIVIDUAL’S LAST NAME			FIRST NAME	MIDDLE NAME	SUFFIX
2c. MAILING ADDRESS				CITY	STATE      | POSTAL CODE	COUNTRY
2d. SEE INSTRUCTIONS		ADD’L INFO RE   |  2e. TYPE OF ORGANIZATION		2f. JURISDICTION OF ORGANIZATION	2g. ORGANIZATIONAL ID #, if any
		ORGANIZATION
		DEBTOR				☐ NONE
3. SECURED PARTY’S NAME (or NAME of TOTAL ASSIGNEE of ASSIGNOR S/P)-insert only one secured party name (3a or 3b)
	3a. ORGANIZATION’S NAME
	Deutsche Bank Trust Company Americas, as Collateral Agent
OR	3b. INDIVIDUAL’S LAST NAME			FIRST NAME	MIDDLE NAME	SUFFIX
3c. MAILING ADDRESS 60 Wall Street, MSNYC 60-2710				CITY New York	STATE POSTAL CODE NY      | 10005	COUNTRY USA

4. This FINANCING STATEMENT covers the following collateral:

This financing statement covers all assets of the Debtor, whether now existing or hereafter arising.

Notwithstanding the foregoing, the collateral shall not include Debtor’s rights and interests in (1) proceeds from a cash grant under Section 1603 of division B of the American Recovery and Reinvestment Act of 2009, as amended, or (2) that certain cash grant account established and held by Debtor with Wilmington Trust, National Association.

5. ALTERNATIVE DESIGNATION [if applicable]: ☐LESSEE/LESSOR ☐CONSIGNEE/CONSIGNOR ☐BAILEE/BAILOR ☐SELLER/BUYER ☐AG. LIEN ☐NON-UCC FILING
6. ☐This FINANCING STATEMENT is to be filed [for record] (or recorded) in the REAL           ESTATE RECORDS. Attach Addendum [if applicable]	1. Check to REQUEST SEARCH REPORT(S) on Debtor(s) [ADDITIONAL FEE]         [optional]	☐All Debtors	☐ Debtor 1	☐ Debtor 2
8. OPTIONAL FILER REFERENCE DATA	034738-0017	F#376729
Filed with: DE - Secretary of State		A#543038

FILING OFFICE COPY - UCC FINANCING STATEMENT (FORM UCC1) (REV. 05/22/02)

Exhibit 4.1.13(e)

FORM OF OPINION OF SPECIAL COUNSEL

TO THE PURCHASERS

[See Execution Version]

EXHIBIT 4.1.13(e) TO NOTE PURCHASE AGREEMENT

EXHIBIT 4.1.14

FORM OF INSURANCE CONSULTANT CERTIFICATE

Date: March 20, 2013

[Purchasers]

Re: Diamond State Generation Partners, LLC – Insurance Consultant’s Certificate

Ladies and Gentlemen:

The undersigned, a duly authorized representative of Moore-McNeil, LLC, a Tennessee limited liability company (the “Insurance Consultant”), hereby delivers this Insurance Consultant’s Certificate to you in accordance with Section 4.1.14 of that certain Note Purchase Agreement, dated as of March 20, 2013 (as amended, supplemented or otherwise modified from time to time, the “Note Purchase Agreement”), among Diamond State Generation Partners, LLC, a Delaware limited liability company (the “Company”) and the Purchasers party thereto. Capitalized terms used herein and not otherwise defined have the meanings provided in the Note Purchase Agreement.

The Insurance Consultant hereby makes the following statements in favor of the Secured Parties with respect to the Company and the Project as of the date hereof:

1. The Insurance Consultant acknowledges that pursuant to the Note Purchase Agreement, the Company is issuing Notes in connection with, among other things, the construction, operation and development of the Project and the Holders are relying on this Insurance Consultant’s Certificate and the Insurance Consultant’s report dated March 19, 2013 (the “Insurance Consultant’s Report”), with respect to the Project.

2. Attached hereto as Annex I is an accurate and complete copy of the Insurance Consultant’s Report.

3. The Insurance Consultant’s Report was prepared in good faith by the Insurance Consultant pursuant to the scope of services in accordance with generally accepted consulting practices.

4. Nothing has come to the attention of the Insurance Consultant that causes the Insurance Consultant to believe that the Insurance Consultant’s Report, as of the date hereof, contains any untrue statement of material fact or omits to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.

5. The Insurance Consultant hereby confirms, as of the date hereof, that the evaluation, conclusions and recommendations contained in the Insurance Consultant’s Report are accurate and complete in all material respects.

EXHIBIT 4.1.14 TO NOTE PURCHASE AGREEMENT

6. In connection with the preparation of the Insurance Consultant’s Report, personnel of the Insurance Consultant have participated in meetings or telephonic discussions with representatives of the Company and its Affiliates, the Company’s insurance broker, Collateral Agent, the Purchasers, counsel to the Company, counsel to Collateral Agent, and counsel to the Purchasers in respect of the Project.

7. Upon delivery of the certificate from the Company’s insurance broker and the original certificates of insurance, copies of which are attached hereto as Annex II, the Company will have provided satisfactory evidence of compliance with the terms and conditions of Sections 4.1.14, 4.1.15, 5.21 and 9.2 and Schedule 9.2 of the Note Purchase Agreement.

The undersigned, on behalf of the Insurance Consultant, hereby confirms that the Secured Parties shall be permitted to rely on the Insurance Consultant’s Report as if the Insurance Consultant’s Report was specifically addressed to each of them.

[Signature page follows]

EXHIBIT 4.1.14 TO NOTE PURCHASE AGREEMENT

IN WITNESS WHEREOF, the Insurance Consultant has caused this Insurance Consultant’s Certificate to be duly executed and delivered by an authorized officer of the Insurance Consultant as of the date first above written.

MOORE-MCNEIL, LLC,

a Tennessee limited liability company

By:

Name:

Title:

EXHIBIT 4.1.14 TO NOTE PURCHASE AGREEMENT

Annex I

to Insurance Consultant’s Certificate

Insurance Consultant’s Report

[See attached]

EXHIBIT 4.1.14 TO NOTE PURCHASE AGREEMENT

EXHIBIT 4.1.16

FORM OF INDEPENDENT ENGINEER CERTIFICATE

[LETTERHEAD OF INDEPENDENT ENGINEER]

To: the Purchasers identified on Exhibit A (the “Purchasers”)

Subject:	Independent Engineer’s Report
	Diamond State Generation Partners, LLC Project

Ladies and Gentlemen:

This letter is provided in accordance with Section 4.1.16 of that certain Note Purchase Agreement, dated as of March 20, 2013 (as amended, supplemented or otherwise modified from time to time, the “Note Purchase Agreement”), between Diamond State Generation Partners, LLC, a Delaware limited liability company (the “Company”) and the Purchasers party thereto (the “Purchasers”).

SAIC Energy, Environment & Infrastructure, LLC (“SAIC”) has been retained by Bloom Energy Corporation (“Bloom”) and the Purchasers to act as the Independent Engineer under the Note Purchase Agreement and has prepared an Independent Engineer’s Report dated March [    ], 2013 (the “Report”), a copy of which is attached hereto.

The Report was prepared pursuant to the scope of services under our Amended and Restated Professional Services Agreement, dated as of March 15, 2013 (the “Services Agreement”) with Bloom, the Collateral Agent and the Purchasers and those services were provided in accordance with generally accepted engineering practices.

In connection with the preparation of the Report, personnel of SAIC have participated in meetings or telephone discussions with representatives of the Company and its affiliates, the Purchasers, counsel to the Company, and counsel to the Purchasers in respect of the Project (as defined in the Report).

This letter and attached Report are solely for the information of, and assistance to, the Purchasers in conducting and documenting their investigation of the matters covered by the Report in connection with the Project, and it is not to be used, circulated, quoted, or otherwise referred to outside of the lending group for any purpose, nor is it to be referred to in whole or in part in any other document, except that reference may be made to it in the above-mentioned Note Purchase Agreement and in any list of closing documents pertaining to the Project.

SAIC disclaims any obligation to update this letter and the attached Report. This letter and the attached Report are not intended to, and may not, be construed to benefit any party other than the Purchasers.

EXHIBIT 4.1.16 TO NOTE PURCHASE AGREEMENT

Very truly yours,

SAIC ENERGY, ENVIRONMENT & INFRASTRUCTURE, LLC

Signature

Title

EXHIBIT 4.1.16 TO NOTE PURCHASE AGREEMENT

EXHIBIT A

PURCHASERS

AXA Equitable Life Insurance Company

C. M. Life Insurance Company

Genworth Life and Annuity Insurance Company

Genworth Life Insurance Company of New York

Massachusetts Mutual Life Insurance Company

MassMutual Asia Limited

Modern Woodmen of America

Teachers Insurance and Annuity Association of America

EXHIBIT 4.1.16 TO NOTE PURCHASE AGREEMENT

EXHIBIT B

REPORT

EXHIBIT 4.1.16 TO NOTE PURCHASE AGREEMENT

EXHIBIT 4.1.17

FORM OF ENVIRONMENTAL RELIANCE LETTERS

March 20, 2013

[Addressees (“Relying Parties”)]

RE: Grant of Reliance on Proposed Fuel Cell Facility (Red Lion Site), 1593 River Road, New Castle, New Castle County, Delaware Phase I ESA Report dated March 13, 2013, Terracon Project # J2137112 (“Reports”)

To whom it may concern:

Terracon hereby agrees to grant Relying Parties reliance on the above referenced “Reports” to the full extent and as if the final reports were contracted for and directed or addressed to Relying Parties, subject to the conditions below.

As of the date hereof, based upon the services performed and to the extent of our knowledge, information and belief, we are not aware of a release of a hazardous substance at the sites that requires remediation under current Hazardous Substances Law (as defined in that certain Note Purchase Agreement among Diamond State Generation Partners, LLC and the Purchasers (as defined therein) dated as of March 20, 2013).

The Reports reflect the opinions of Terracon as of the date of the Reports and the Relying Parties should be aware that conditions may have changed materially from that date. Terracon has no obligation to provide any information obtained or discovered by Terracon subsequent to the date of the Reports, or to perform any additional services, regardless of whether the information would affect any conclusions, recommendations, or opinions in the Reports. Further, Relying Parties recognize that if they have requested reliance on a Phase I report more than 180 days from the date of its issuance, or if Relying Parties have not provided a completed User Questionnaire form, Relying Parties acknowledge the grant of reliance does not satisfy ASTM requirements and may not satisfy the requirements set forth in 40 CFR Part 312 for “all appropriate inquiry” or other requirements necessary for CERCLA protection.

Relying Parties’ reliance upon the Reports is subject to all of the terms, limitations, restrictions, and caveats referenced in the Reports and related agreements. Terracon only performed those tasks as set out in the Reports. Any opinions or recommendations contained in the Reports are based solely on the Tasks agreed upon in the Agreements and/or presented in the Reports. Unless Terracon agrees in writing, no person or entity other than Relying Parties and Terracon’s client may rely upon the Reports.

EXHIBIT 4.1.17 TO NOTE PURCHASE AGREEMENT

March 20, 2013

[Addressees (“Relying Parties”)]

RE: Grant of Reliance on Proposed Fuel Cell Facility (Brookside Site), 512 East Chestnut Hill Road, Newark, New Castle County, Delaware Phase I ESA Report dated March 13, 2013, Terracon Project # J2137112 (“Reports”)

To whom it may concern:

Terracon hereby agrees to grant Relying Parties reliance on the above referenced “Reports” to the full extent and as if the final reports were contracted for and directed or addressed to Relying Parties, subject to the conditions below.

As of the date hereof, based upon the services performed and to the extent of our knowledge, information and belief, we are not aware of a release of a hazardous substance at the sites that requires remediation under current Hazardous Substances Law (as defined in that certain Note Purchase Agreement among Diamond State Generation Partners, LLC and the Purchasers (as defined therein) dated as of March 20, 2013).

The Reports reflect the opinions of Terracon as of the date of the Reports and the Relying Parties should be aware that conditions may have changed materially from that date. Terracon has no obligation to provide any information obtained or discovered by Terracon subsequent to the date of the Reports, or to perform any additional services, regardless of whether the information would affect any conclusions, recommendations, or opinions in the Reports. Further, Relying Parties recognize that if they have requested reliance on a Phase I report more than 180 days from the date of its issuance, or if Relying Parties have not provided a completed User Questionnaire form, Relying Parties acknowledge the grant of reliance does not satisfy ASTM requirements and may not satisfy the requirements set forth in 40 CFR Part 312 for “all appropriate inquiry” or other requirements necessary for CERCLA protection.

Relying Parties’ reliance upon the Reports is subject to all of the terms, limitations, restrictions, and caveats referenced in the Reports and related agreements. Terracon only performed those tasks as set out in the Reports. Any opinions or recommendations contained in the Reports are based solely on the Tasks agreed upon in the Agreements and/or presented in the Reports. Unless Terracon agrees in writing, no person or entity other than Relying Parties and Terracon’s client may rely upon the Reports.

EXHIBIT 4.1.17 TO NOTE PURCHASE AGREEMENT

EXHIBIT 4.1.30

FORM OF DIRECT AGREEMENT

This DIRECT AGREEMENT (as amended, modified or supplemented from time to time, this “Consent”), dated as of             , 2013, is executed by                     , a                      (“Contracting Party”), DIAMOND STATE GENERATION PARTNERS, LLC, a Delaware limited liability company (“Assignor”), and DEUTSCHE BANK TRUST COMPANY AMERICAS, as Collateral Agent (in its capacity as collateral agent for the Secured Parties, as defined below, “Collateral Agent”).

A. Assignor intends to develop, construct, install, finance, own, operate and maintain a portfolio of fuel cell electricity generators with an aggregate capacity of 30 MW, to be located on one or more sites in New Castle County, Delaware (the “Project”);

B. In order to finance the development, construction, installation, testing, leasing, operation and use of the Project and the acquisition of certain other assets related thereto, Assignor has entered into that certain Note Purchase Agreement, dated as of March 20, 2013 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Note Purchase Agreement”), among Assignor and the Purchasers party thereto (collectively with Collateral Agent, “Secured Parties”), pursuant to which, among other things, the Assignor will issue Notes (as defined in the Note Purchase Agreement) to the Purchasers;

C. Assignor has entered into that certain                     , dated as of             , 2013 (as amended, amended and restated, supplemented or otherwise modified from time to time in accordance with the terms thereof and hereof, the “Agreement”) with Contracting Party;

D. As collateral security for all obligations of Assignor to the Secured Parties under the Note Purchase Agreement and related documents, Assignor has granted to Collateral Agent a first-priority security interest in all of its right, title and interest in, to and under the Agreement (the “Assigned Interest”) pursuant to that certain Security Agreement, dated as of even date herewith (as amended, modified or supplemented from time to time, the “Security Agreement”), made by Assignor in favor of Collateral Agent for the benefit of the Secured Parties; and

E. It is a requirement under the Note Purchase Agreement that Contracting Party and the other parties hereto shall have executed this Consent.

EXHIBIT 4.1.30 TO NOTE PURCHASE AGREEMENT

NOW THEREFORE, in consideration of the foregoing and the mutual agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree, notwithstanding anything in the Agreement to the contrary, as follows:

1. Consent and Agreement. Contracting Party:

a. consents to the assignment of the Assigned Interest as collateral security to Collateral Agent;

b. acknowledges the right (but not the obligation) of Collateral Agent in the exercise of its rights and remedies under the Security Agreement to make all demands, give all notices, take all actions and exercise all rights of Assignor under the Agreement, and agrees to accept any such exercise; provided, however, that, insofar as Collateral Agent exercises any of its rights under the Agreement or makes any claims with respect to payments or other obligations under the Agreement, the terms and conditions of the Agreement applicable to such exercise of rights or claims shall apply to Collateral Agent to the same extent as to Assignor;

c. agrees not to (i) cancel or terminate the Agreement or suspend performance of its services thereunder, except as provided in the Agreement or by operation of law and, in any event, except as in accordance with Section 4 of this Consent; (ii) consent to or accept any cancellation or termination of the Agreement by Assignor without the prior written consent of the Collateral Agent, except as provided in the Agreement and in accordance with Section 4 of this Consent; or (iii) sell, assign or otherwise dispose (by operation of law or otherwise) of any part of its right, title or interest in the Agreement, in each case without the prior written consent of Collateral Agent;

d. agrees not to amend, supplement or modify the Agreement in any material respect without the prior written consent of Collateral Agent (such consent not to be unreasonably withheld or delayed); and

e. agrees to promptly deliver to Collateral Agent copies of all notices of default, suspension or termination delivered by Contracting Party under the Agreement.

2. Assignor’s Acknowledgement. Assignor acknowledges and agrees that Contracting Party is permitted to perform its obligations under the Agreement upon Collateral Agent’s exercise of Assignor’s rights in accordance with this Consent, and that Contracting Party shall bear no liability to Assignor solely as a result of performing its obligations under the Agreement upon such exercise by Collateral Agent.

3. Transferees. Contracting Party agrees that if Collateral Agent shall notify Contracting Party in writing that as a result of foreclosure (whether judicial or non-judicial), deed-in-lieu-of-foreclosure or other sale or transfer of the Assigned Interest, Collateral Agent or any other applicable purchaser, successor, assignee or designee (in each case, a “Transferee”) is to succeed to Assignor’s rights in the Assigned Interest, then the Transferee shall be substituted for Assignor under the Agreement and Contracting Party shall (a) recognize the Transferee as its counterparty under the Agreement and (b) continue to perform its obligations under the Agreement in favor of the Transferee; provided, however, that such Transferee has assumed in writing all of Assignor’s obligations under the Agreement, other than any obligations which by their nature are incapable of being cured. If Collateral Agent or an entity controlled by

EXHIBIT 4.1.30 TO NOTE PURCHASE AGREEMENT

Collateral Agent or one or more of the Secured Parties is the initial Transferee, such initial Transferee shall have the right to assign all of its interest in the Agreement to any subsequent Transferee, provided such subsequent Transferee has assumed in writing all of the initial Transferee’s obligations under the Agreement. Upon such assignment, the initial Transferee shall be released from any further liability under the Agreement.

4. Right to Cure. In the event of a default or breach by Assignor in the performance of any of its obligations under the Agreement, or upon the occurrence or non-occurrence of any event or condition under the Agreement which would immediately or with the passage of any applicable grace period or the giving of notice, or both, enable Contracting Party to terminate the Agreement or suspend its performance thereunder (a “Default”), Contracting Party shall not terminate the Agreement or suspend its performance thereunder until it first gives written notice of the Default to Collateral Agent and affords Collateral Agent (a) a period of 45 days from receipt of such notice to cure such Default if such Default is the failure to pay amounts to Contracting Party which are due and payable under the Agreement or (b) with respect to any other Default, a reasonable opportunity, but no more than 90 days from receipt of such notice, to cure such Default (provided that during such cure period Collateral Agent or Assignor continues to diligently attempt to cure such Default). If (i) possession of the Project is necessary to cure any Default, and Collateral Agent commences foreclosure or any other proceedings necessary to take possession of the Project, or (ii) Collateral Agent is prohibited by any court order or bankruptcy or insolvency proceedings from curing the Default or from commencing or prosecuting such proceedings, and provided all monetary obligations on Assignor’s part under the Agreement have been performed, then in either case the cure period in clause (b) of the previous sentence shall be extended for a reasonable period to allow Collateral Agent to complete such proceedings and Collateral Agent or the applicable Transferee to effect the cure.

5. Replacement Agreement. In the event that the Agreement is rejected or terminated as a result of any bankruptcy or insolvency proceeding, Contracting Party shall, at the option of Collateral Agent exercised within 45 days after such rejection or termination, enter into a new agreement with Collateral Agent or a designated entity controlled by Collateral Agent or one or more of the Secured Parties, having identical terms as the Agreement (subject to any conforming changes necessitated by the substitution of parties and other changes as the parties may mutually agree, the “Replacement Agreement”). Collateral Agent (or such designee, as the case may be) shall have the right to assign all of its interest in the Replacement Agreement to any person, provided such assignee has assumed in writing all of Collateral Agent’s or such designee’s obligations under the Agreement. Upon an assignment as discussed in the immediately preceding sentence, Collateral Agent or such designee shall be released from any further liability under the Agreement.

6. Refinancing. In the event that the Note Purchase Agreement is amended and restated, refinanced or replaced by other credit facilities (including without limitation a note offering, debt securities, bank facility or other type of financing, whether incurred by the Assignor or an affiliate thereof), this Consent shall continue in full force and effect for the benefit of the Assignor and the provider of such new credit facilities or their collateral agent(s) (the “New Collateral Agent”), provided that (i) within ten days following delivery by the Collateral Agent to Contracting Party of the notice that the Assignor’s obligations under the Note Purchase Agreement have been satisfied in full, the New Collateral Agent shall have notified the

EXHIBIT 4.1.30 TO NOTE PURCHASE AGREEMENT

Contracting Party that it assumes the rights and the prospective obligations of the Collateral Agent under this Consent, and shall have supplied substitute notice address information and (ii) thereafter, (A) the term “Collateral Agent” and “Secured Parties” shall be deemed to refer to the New Collateral Agent, or the lenders and other secured parties under such new credit facilities, as appropriate, (B) the term “Note Purchase Agreement” shall be deemed to refer to the credit agreement, indenture or other instrument providing for the new credit facilities, and (C) the term “Security Agreement” shall be deemed to refer to the security agreement under which the Assigned Interest is assigned as collateral to secure performance of the obligations of the Assignor or an affiliate thereof under the new credit facilities. In connection with any transaction described in this Section 6, upon the request of the Assignor, the Contracting Party shall execute and deliver to the agent or other representative of the New Collateral Agent a reasonable estoppel certificate confirming, if it can do so accurately, among other things, that as of the date of such certificate each of the Contracting Party and, to the best knowledge of the Contracting Party, the Assignor is in compliance with all of their respective material obligations under the Agreement.

7. No Liability. Contracting Party acknowledges and agrees that Collateral Agent (a) shall not have any liability or obligation under the Agreement until, if ever, Collateral Agent expressly assumes such obligations in writing and (b) has no obligation to cure any Default. Notwithstanding anything to the contrary herein, the sole recourse of Contracting Party in seeking the enforcement of any obligations under this Consent, the Agreement or a Replacement Agreement shall be to any Transferee’s right, title and interest in the Project.

8. Payment of Monies. Commencing on the date of this Consent and so long as the Note Purchase Agreement remains in effect, Contracting Party hereby agrees to make all payments required to be made by it under the Agreement in U.S. dollars and in immediately available funds, directly to Collateral Agent for deposit into the account to be established and notified to Contracting Party by Collateral Agent from time to time, to such other Person and/or at such other address or account as the Collateral Agent may from time to time specify in writing to Contracting Party. Assignor hereby instructs Contracting Party, and Contracting Party accepts such instructions, to make all payments due and payable to Assignor under the Agreement as set forth in the immediately preceding sentence.

9. Representations and Warranties. Contracting Party hereby represents and warrants to Assignor and Collateral Agent as of the date of this Consent as follows:

a. Contracting Party is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation/incorporation and has all requisite power and authority to execute, deliver and perform its obligations under the Agreement and this Consent.

b. The execution, delivery and performance by Contracting Party of the Agreement and this Consent have been duly authorized by all necessary action, and do not and will not require any further consents or approvals which have not been obtained, or violate any provision of any law, regulation, order, judgment, injunction or similar matters or breach any agreement presently in effect with respect to or binding on Contracting Party.

EXHIBIT 4.1.30 TO NOTE PURCHASE AGREEMENT

c. This Consent and the Agreement are legal, valid and binding obligations of Contracting Party, enforceable against Contracting Party in accordance with their respective terms except as enforceability may be limited by bankruptcy, reorganization, insolvency, moratorium and other laws affecting creditors’ rights in general and except to the extent that the availability of equitable remedies is subject to the discretion of the court before which any proceeding therefor may be brought.

d. The Agreement is in full force and effect and any amendment, supplement or modification thereto since the date of execution of the Agreement is reflected in the definition of “Agreement” set forth above.

e. To the best of Contracting Party’s knowledge, Assignor has fulfilled all of its obligations under the Agreement required as of the date hereof, and there are no breaches, Defaults or unsatisfied conditions presently existing (or which would exist after the passage of time and/or giving of notice) that would allow Contracting Party to terminate the Agreement or suspend its performance thereunder.

f. There is no litigation, action, suit, proceeding or investigation pending or (to the best of Contracting Party’s knowledge) threatened against Contracting Party before or by any court, administrative agency, arbitrator or governmental authority, body or agency which, if adversely determined, individually or in the aggregate, could adversely affect the performance by Contracting Party of its obligations hereunder or under the Agreement.

g. [The Agreement and this Consent are the only agreements between Assignor and Contracting Party with respect to the Project, and all of the conditions precedent to effectiveness under the Agreement have been satisfied or waived.] [Provision to be removed for Direct Agreements with Bloom Energy]

h. No excusable delay, force majeure, or the like, has occurred under the Agreement.

10. Additional Provisions. [To insert specific provisions as may be relevant to the Agreement. Such provisions, if any, to be identified after due diligence and review of the Agreement is complete.]

11. Notices. Any communications between the parties hereto or notices provided herein to be given, may be given to the following addresses:

If to Contracting Party:	NAME
	ADDRESS
	Attention:
	Telephone:
	Fax:
	Email:

EXHIBIT 4.1.30 TO NOTE PURCHASE AGREEMENT

If to Collateral Agent:	Deutsche Bank Trust Company Americas
	60 Wall Street, MS NYC60-2715
	New York, New York 10005-2858
	Attn: Trust and Agency Services
	Email: [●]
If to Assignor:	Diamond State Generation Partners, LLC
	1252 Orleans Drive
	Sunnyvale, CA 94089
	Attn: [***]
	Email: [***]

All notices hereunder shall be in writing and shall be considered as properly given (a) if delivered in person, (b) if sent by overnight delivery service, (c) if mailed by first class mail, postage prepaid, registered or certified with return receipt requested or (d) if sent by email; provided, that the foregoing clause (d) shall not apply to notices if the party to receive the notice has notified the other parties that it is incapable of receiving notices by email or if no email address is given above or later provided as an approved method of receiving notice. Notice so given shall be effective upon receipt by the addressee, except that communication or notice so transmitted by email shall be deemed to have been validly and effectively given upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return email or other written acknowledgement); provided, however, that if any notice is tendered to an addressee and the delivery thereof is refused by such addressee, such notice shall be effective upon such tender. Any party shall have the right to change its address for notice hereunder by giving of written notice to the other parties in the manner set forth herein above.

12. Binding Effect; Amendments; Confirmation. This Consent shall be binding upon and benefit the Contracting Party, Assignor and Collateral Agent and their respective successors, transferees and permitted assigns (including without limitation, any entity that refinances all or any portion of Assignor’s obligations under the Note Purchase Agreement). No termination, amendment, variation or waiver of any provisions of this Consent shall be effective unless in writing and signed by Contracting Party, Collateral Agent and Assignor.

13. Governing Law. This Consent shall be governed by the laws of the State of New York without reference to conflicts of laws rules thereof (other than Section 5-1401 of the New York General Obligations Law). CONTRACTING PARTY, ASSIGNOR, AND COLLATERAL AGENT HEREBY SUBMIT TO THE NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS CONSENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF CONTRACTING PARTY, ASSIGNOR AND COLLATERAL AGENT IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

[***] Confidential Treatment Requested

EXHIBIT 4.1.30 TO NOTE PURCHASE AGREEMENT

EACH OF CONTRACTING PARTY, ASSIGNOR AND COLLATERAL AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS CONSENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

14. Counterparts. This Consent may be executed in one or more duplicate counterparts, and when executed and delivered by all the parties listed below, shall constitute a single binding agreement.

[Signature pages follow]

EXHIBIT 4.1.30 TO NOTE PURCHASE AGREEMENT

IN WITNESS WHEREOF, the undersigned, by its officer thereunto duly authorized, has duly executed this Consent as of the date first above written.

[CONTRACTING PARTY]
By:
	Name:
	Title:

EXHIBIT 4.1.30 TO NOTE PURCHASE AGREEMENT

Accepted and agreed:
DIAMOND STATE GENERATION PARTNERS, LLC, a Delaware limited liability company as Grantor
By:
Name:
Title:
Accepted and agreed:
DEUTSCHE BANK TRUST COMPANY AMERICAS, as Collateral Agent
By:
	Name:
	Title:

EXHIBIT 4.1.30 TO NOTE PURCHASE AGREEMENT

EXHIBIT 4.2.1(a)

FORM OF DRAWDOWN CERTIFICATE

[LETTERHEAD OF COMPANY]

Date:                  ,         ¹

Drawdown Date:                  ,         

[                    ]

SAIC Energy, Environment & Infrastructure, LLC,

as Independent Engineer

Meditech Corporate Center, West Wing

550 Cochituate Road

Framingham, MA 01701

Re: Diamond State Generation Partners, LLC – Drawdown Certificate

Ladies and Gentlemen:

This Drawdown Certificate is delivered to you pursuant to Section 4.2.1(a) of the Note Purchase Agreement, dated as of March 20, 2013 (as amended, supplemented or otherwise modified from time to time, the “Note Purchase Agreement”), among Diamond State Generation Partners, LLC, a Delaware limited liability company (the “Company”), and the Purchasers party thereto. Capitalized terms used herein and not otherwise defined have the meanings provided in the Note Purchase Agreement.

I, [                    ], am a Responsible Officer of the Company. I have reviewed the provisions of the Credit Documents which are relevant to the furnishing of this Drawdown Certificate. To the extent that this Drawdown Certificate evidences, attests or confirms compliance with any covenants, representations, warranties or conditions precedent provided for in the Credit Documents, I have made such examination or investigation as was, in my opinion, reasonably necessary to enable me to express an informed opinion as to whether such covenants, representations, warranties or conditions have been complied with. This Drawdown Certificate relates to a Credit Event to take place on the date specified above as the “Drawdown Date” (the “Drawdown Date”).

I, on behalf of the Company, solely in my capacity as a Responsible Officer of the Company and not in my personal capacity, and without personal liability therefor, do hereby

¹  Certificate must be submitted to each of the Holders and Independent Engineer at least 7 Business Days prior to the date of each Drawdown.

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

certify to the Secured Parties that the following statements are accurate, true and complete on the date hereof (except for those statements that solely relate to a later date), and will be accurate, true and complete on and as of the Drawdown Date:

1) The aggregate Project Costs incurred, but not yet paid, through the date of the requested Credit Event are anticipated to be $        .

2) The Project Costs to be paid with the funds requested in connection with this Drawdown Certificate are to be paid with proceeds of the Notes deposited in the Construction Escrow Account in the amounts shown on Appendix I hereto.

3) The currently estimated aggregate Project Costs necessary to achieve Final Completion are as described and segregated in Appendix I hereto. Such amount is consistent with the current Project Budget (as amended, allocated, re-allocated or modified from time to time in accordance with Section 9.14 of the Note Purchase Agreement) or has otherwise been approved or permitted pursuant to the Note Purchase Agreement.

4) The variances in estimated Project Costs (from the Closing Date to the proposed Drawdown Date) are summarized in Appendix I hereto and such variances are described in the current or past construction progress reports delivered pursuant to Section 7.2(a) of the Note Purchase Agreement.

5) Attached in Appendix II hereto are the previously paid or due and payable invoices, purchase orders or other documents evidencing the Project Costs that are to be reimbursed or paid with the funds requested in connection with this Drawdown Certificate.

6) After taking into consideration the making of the Credit Event hereby requested, Available Funds are not less than the aggregate unpaid amount required: (a) to cause Final Completion to occur in accordance with all Legal Requirements, each Project Document pursuant to which construction work with respect to the Project is being performed, the Credit Documents, and the Project Schedule, on or before the Date Certain; and (b) to pay or provide for all anticipated non-construction Project Costs, all as set forth in the current Project Budget (as amended, allocated, re-allocated or modified from time to time in accordance with Section 9.14 of the Note Purchase Agreement). After taking into consideration the making of the Credit Event hereby requested, the sources and uses of such Available Funds to achieve Final Completion are as follows:

Sources		Uses
Total:	$	Total:	$

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

7) The estimated (a) Commencement of Operations date (under and as defined in the MESPA), (b) Final Completion Date, and (c) Placed in Service Date are each set forth on Appendix III hereto, in the case of clauses (a) and (c), with respect to the Systems being funded under this requested Credit Event.

8) Each representation and warranty of each Credit Party in any of the Credit Documents to which it is a party is true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” is true and correct in all respects) on and as of the date of the Drawdown Date, before and after giving effect to the Credit Event requested hereby, with the same effect as though made on and as of such date, unless such representation or warranty expressly relates solely to an earlier date.

9) To my knowledge, each representation and warranty of each Major Project Participant contained in the Operative Documents (other than the Note Purchase Agreement) is true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” or the like is true and correct in all respects) on and as of the Drawdown Date, before and after giving effect to the Credit Event requested hereby, with the same effect as though made on and as of such date, unless such representation and warranty expressly relates solely to an earlier date.

10) No Default or Event of Default has occurred and is continuing or will result from the funding of the Credit Event hereby requested.

11) All work that has been done on the Project to date has been done in a good and workmanlike manner and in accordance with the Project Documents (including any and all approved change orders made in accordance therewith, if any; any such approved change orders are listed on Appendix V together with all other requested and pending change orders) and there has not been filed against any of the Collateral or otherwise filed with or served upon the Company with respect to the Project or any part thereof, notice of any Lien, claim of Lien or attachment upon or claim affecting the right to receive payment of any of the moneys payable to any of the Persons named on such request which has not been released by payment or bonding or otherwise or which will not be released with the payment of such obligation out of the Notes or non-Note proceeds hereby requested, other than Permitted Liens.

12) Except for any such Liens being contested by the Company as permitted under the definition of “Permitted Liens”, attached in Appendix IV are duly executed Lien waivers required to be delivered to each of the Holders pursuant to Section 4.2.4 of the Note Purchase Agreement relating to mechanics’ and materialmen’s Liens from each Person performing work at the Site or having a statutory right to file a mechanics’ and/or materialmen’s Lien, as the case may be, for all work, services and materials (including equipment and fixtures of all kinds, done, previously performed or furnished for the construction of the Project), for which the related Project Costs have been or will, from the proceeds of the requested Drawdown, be paid.

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

13) Each Applicable Permit and Applicable Third Party Permit has been duly obtained or been assigned in the Company’s or the applicable third party’s name, is in full force and effect, is not subject to any current legal proceeding, and is not subject to any Unsatisfied Condition that could reasonably be expected to result in material modification or revocation of such Applicable Permit and Applicable Third Party Permit, and all applicable appeal periods with respect to such Applicable Permit and Applicable Third Party Permit have expired. The Permits which have been obtained by the Company are not subject to any restriction, condition, limitation or other provision that could reasonably be expected to have a Material Adverse Effect.

14) [The Sponsor has built a permanent manufacturing facility for Systems located in the State of Delaware, and all Systems beyond which the Project has exceeded 10 MW of nameplate capacity have been sourced from such facility.]¹

15) The Company is in compliance with the Tariff in all respects.

16) Each System being financed has achieved COD or will achieve COD prior to the Drawdown Date.

17) The Tax Equity Investors have contributed to the Pledgor and the Pledgor in turn has contributed to the Company 20% of the aggregate purchase price of the Systems to be financed with the proceeds of the requested Credit Event, consistent with the Base Case Projections.

18) Concurrently with this Drawdown, the Tax Equity Investors have contributed to the Company [30.10]% of the aggregate purchase price of the Systems to be financed with the proceeds of the requested Credit Event, consistent with the Base Case Projections. After giving effect to this Drawdown, the ratio of amounts drawn from the Construction Escrow Account to the total Notes have not exceeded the ratio of the aggregate nameplate capacity of commissioned Systems to 30 MW.

19) [All shared infrastructure at [the applicable Site] necessary for installation of each Funded System to be installed at such Site, including without limitation the “BOF Work” for such Site, as such term is defined in the MESPA, has been completed.² ]

20) At any time following the Closing Date, no event, circumstance or condition has occurred and is continuing that has, or could reasonably be expected to have, a Material Adverse Effect.

[Signature page follows]

¹  Insert after the first Funded System has caused the Project to exceed 10 MW of nameplate capacity.

²  Only include for first Credit Event for each Site.

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

IN WITNESS WHEREOF, the undersigned has caused this Drawdown Certificate to be duly executed and delivered on behalf of the Company as of the date first above written.

DIAMOND STATE GENERATION PARTNERS, LLC, a Delaware limited liability company

By:

Name:

Title:

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

APPENDIX I

to Drawdown Certificate

Currently Estimated Aggregate Project Costs

Project Cost	Amount
	$
	$
	$
	$
	$
	Total: $

Summary of Variances in Estimated Project Costs (from Closing Date to Proposed Drawdown Date)

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

APPENDIX II

to Drawdown Certificate

Invoices

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

APPENDIX III

to Drawdown Certificate

Estimated Dates

Expected Final Completion Date:             , 20    

Expected Commercial Operation Date: [Indicate Commercial Operation Date for each individual system, by Serial Number or other distinct means]

Expected Placed in Service Date: [Indicate Placed in Service Date for each individual system, by Serial Number or other distinct means]

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

APPENDIX IV

to Drawdown Certificate

Lien Waivers

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

APPENDIX V

to Drawdown Certificate

Change Orders

1. Approved

2. Requested and Pending

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

EXHIBIT 4.2.1(b)

FORM OF INDEPENDENT ENGINEER’S DRAWDOWN CERTIFICATE

[Letterhead of Independent Engineer]

(Delivered pursuant to Section 4.2.1(b)

of the Note Purchase Agreement)

Date:	[                    ]4
	Drawdown Date: [                    ]

[                    ]

Subject: Independent Engineer’s Drawdown Certificate

Ladies and Gentlemen:

This Drawdown Certificate (this “Certificate”) is delivered to you by SAIC Energy, Environmental & Infrastructure, LLC (“SAIC”) as “Independent Engineer” pursuant to Section 4.2.1(b) of the Note Purchase Agreement, dated as of March 20, 2013 (as amended, supplemented or otherwise modified from time to time, the “Note Purchase Agreement”), among Diamond State Generation Partners, LLC, a Delaware limited liability company (the “Company”), and the Purchasers party thereto.

The Independent Engineer hereby makes the following statements as of the date of this certificate:

1. We have reviewed the provisions of Section 4.2.1 of the Note Purchase Agreement as they identify the responsibilities of the Independent Engineer related to providing this Certificate as required by Section 4.2.1(b).

2. All defined terms set forth in this Certificate shall have the respective meanings specified in the Note Purchase Agreement unless the context otherwise requires or unless otherwise defined. We have reviewed the Note Purchase Agreement as to the meaning of defined terms used herein.

3. We have reviewed the Company’s [Drawdown Certificate] No. [    ] and the attachments thereto, dated as of [                    ] (the “Current Drawdown Certificate”), requesting that a Drawdown from the Construction Escrow Account in the aggregate amount of [$        ] (the “Drawdown”) be disbursed on [                    ] (the “Drawdown Date”).

⁴  Certificate must be submitted to each Holder (with a copy to the Company) at least 4 Business Days prior to the date of each Drawdown.

EXHIBIT 4.2.1(b) TO NOTE PURCHASE AGREEMENT

4. In connection herewith, we have reviewed: (a) the Company’s, contractors’ and subcontractors’ monthly construction progress reports dated [                    ] for progress through [                    ]; (b) we have also reviewed the material and data made available to us by Bloom Energy Corporation as the “Seller” under the MESPA; and (c) we have reviewed other material, such as invoices, applications for payment, payment receipts and lien waivers or releases, relating to the development of the Project as we believed was necessary to establish the accuracy of the technical aspects of the Current Drawdown Certificate.

5. We last visited the Project Sites on [                    ] and observed progress at the Project. Our site observations of progress did not include investigation of buried items or other unobservable items or hidden conditions. We have reviewed documentation and held discussions with the Company regarding the progress of construction activities at the Project since that time.

6. This Certificate was prepared pursuant to the scope of services under our Amended and Restated Professional Services Agreement, dated as of March [    ], 2013 (the “Services Agreement”) with Bloom Energy Corporation, the Collateral Agent and each of the Purchasers and with the degree of skill and diligence normally practiced by professional engineers or consultants performing the same or similar services on like projects.

Based upon the foregoing review and review procedures and on the understanding and assumption that we have been provided true and complete information from other parties as to the matters covered by the Current Drawdown Certificate, as of the date of this Certificate, except as set forth in Attachment A to this Certificate, we are of the opinion that:

a. Based on our review of the Company’s previous expenditures compared to the Project Budget and our review of the progress of engineering, procurement and construction, we concur with the Company’s estimate of the Project Costs to Final Completion as set forth in the Current Drawdown Certificate [If not, continue as follows: , except as noted in Attachment A [state reasons and approximate amount of variance, if known in Attachment A]];

b. Each of the (a) Commencement of Operations Dates, (b) Final Completion Date, and (c) Placed in Service Dates are expected to be achieved by the dates indicated in Appendix III of the Current Drawdown Certificate [If not, continue as follows: , except as noted in Attachment A. [state reasons scheduled dates will vary from the estimates set forth in the Current Drawdown Certificate in Attachment A];

c. Our scope of review, which, to the extent practical and consistent with our scope of work under our Services Agreement, includes periodically reviewing the progress of engineering, procurement and construction for the Project, has not brought to our attention, any errors in the information contained in the Current Drawdown Certificate; [If any paragraphs in the Current Drawdown Certificate are incorrect, list and specify reasons for each paragraph in Attachment A.]

d. To our knowledge no other Permits other than the permits identified in Schedule 5.19 of the Note Purchase Agreement are required in connection with the construction and operation of the Project;

EXHIBIT 4.2.1(b) TO NOTE PURCHASE AGREEMENT

e. To the best of our knowledge and the extent of our site observations, the quality of construction performed during the period covered by this Certificate was performed materially in conformance with the applicable construction Project Documents; [If unsatisfactory, specify reasons in Attachment A.]

f. The work accomplished during the period covered by this Certificate is in accordance with the Project Schedule; [If unsatisfactory, specify reasons in Attachment A.]

g. The request for funds in the Current Drawdown Certificate is in conformance, on a cumulative basis, with the drawdown schedule included with the Project Budget; and [If not, state reasons in Attachment A.]

h. To the best of our knowledge, there are no approved, pending or proposed change orders that are not listed in Appendix V to the Current Drawdown Certificate [except as noted in Attachment A [list change orders in Attachment A]].

This Certificate is solely for the information of and assistance to each of the Purchasers in conducting and documenting their investigation of the matters in connection with the Project and is not to be used, circulated, quoted, or otherwise referred to for any other purpose. This Certificate is not intended to, and may not, be construed to benefit any party other than the Purchasers.

Very truly yours,

SAIC ENERGY, ENVIRONMENT & INFRASTRUCTURE, LLC

[Name goes here]

[Title goes here]

[Name goes here]

[Title goes here]

EXHIBIT 4.2.1(b) TO NOTE PURCHASE AGREEMENT

SCHEDULE I – THIRD PARTIES

EXHIBIT 4.2.1(b) TO NOTE PURCHASE AGREEMENT

ATTACHMENT A

EXCEPTIONS AND CLARIFICATIONS

[List any exceptions or clarifications. If there are none indicate “NONE”.]

EXHIBIT 4.2.1(b) TO NOTE PURCHASE AGREEMENT

EXHIBIT 4.2.1(c)

FORM OF COMPANY’S COD CERTIFICATE

[LETTERHEAD OF COMPANY]

Date:              ,         ⁵

Drawdown Date:              ,         

[                    ]

SAIC Energy, Environment & Infrastructure, LLC,

as Independent Engineer

Meditech Corporate Center, West Wing

550 Cochituate Road

Framingham, MA 01701

Re: Diamond State Generation Partners, LLC – Drawdown Certificate Confirmation of COD

Ladies and Gentlemen:

This Drawdown Certificate Confirmation of Commencement of Operations (“Certificate of COD”) is delivered to you pursuant to Section 4.2.1(c) of the Note Purchase Agreement, dated as of March 20, 2013 (as amended, supplemented or otherwise modified from time to time, the “Note Purchase Agreement”), among Diamond State Generation Partners, LLC, a Delaware limited liability company, (the “Company”), and the Purchasers party thereto. Capitalized terms used herein and not otherwise defined have the meanings provided in the Note Purchase Agreement.

I, [                    ], am a Responsible Officer of the Company. I have reviewed the provisions of the Credit Documents which are relevant to the furnishing of this Drawdown Certificate of COD for the Systems listed in Appendix 1 to this Certificate of COD. To the extent that this Certificate of COD evidences, attests or confirms compliance with any covenants, representations, warranties or conditions precedent provided for in the Credit Documents, I have made such examination or investigation as was, in my opinion, reasonably necessary to enable me to express an informed opinion as to whether such covenants, representations, warranties or conditions have been complied with. This Certificate of COD relates to a Credit Event to take place on the date specified above as the “Drawdown Date” (the “Drawdown Date”).

⁵  Certificate must be submitted to each Holder and Independent Engineer at least 2 Business Days prior to the date of each Drawdown.

I, on behalf of the Company, solely in my capacity as a Responsible Officer of the Company and not in my personal capacity, and without personal liability therefor, do hereby certify to the Secured Parties that the following statement is accurate, true and complete on the date hereof, and will be accurate, true and complete on and as of the Drawdown Date:

1) COD has occurred with respect to the Systems listed in Appendix 1 being funded under this requested Credit Event.

IN WITNESS WHEREOF, the undersigned has caused this Drawdown Certificate Confirmation of COD to be duly executed and delivered on behalf of the Company as of the date first above written.

	DIAMOND STATE GENERATION
	PARTNERS, LLC, a Delaware limited liability company
	By:
	Name:
	Title:
Appendix

EXHIBIT 4.2.1(c) TO NOTE PURCHASE AGREEMENT

APPENDIX 1

Systems Commencement of Operations

Date:                  ,         ⁶

Drawdown Date:                  ,         

System Number System Description

⁶  Certificate must be submitted to each Holder and Independent Engineer at least 2 Business Days prior to the submission of each Drawdown.

EXHIBIT 4.2.1(c) TO NOTE PURCHASE AGREEMENT

EXHIBIT 4.2.1(d)

FORM OF INDEPENDENT ENGINEER’S COD CERTIFICATE

[Letterhead of Independent Engineer]

(Delivered pursuant to Section 4.2.1(d)

of the Note Purchase Agreement)

Date: [                    ]⁷

Drawdown Date: [                    ]

[                    ]

Subject: Independent Engineer’s Drawdown Certificate Confirmation of COD

Ladies and Gentlemen:

This Independent Engineer’s Drawdown Certificate Confirmation of COD (this “Certificate”) is delivered to you by SAIC Energy, Environmental & Infrastructure, LLC (“SAIC”) as “Independent Engineer” pursuant to Section 4.2.1(d) of the Note Purchase Agreement, dated as of March 20, 2013 (as amended, supplemented or otherwise modified from time to time, the “Note Purchase Agreement”), among Diamond State Generation Partners, LLC, a Delaware limited liability company (the “Company”) and the Purchasers party thereto.

The Independent Engineer hereby makes the following statements as of the date of this certificate:

1. We have reviewed the provisions of Section 4.2.1 of the Note Purchase Agreement as they identify the responsibilities of the Independent Engineer related to providing this Certificate as required by Section 4.2.1(d).

2. All defined terms set forth in this Certificate shall have the respective meanings specified in the Note Purchase Agreement unless the context otherwise requires or unless otherwise defined. We have reviewed the Note Purchase Agreement as to the meaning of defined terms used herein.

3. We have reviewed the Company’s [Drawdown Certificate] No. [    ] and the attachments thereto, dated as of [                    ] (the “Current Drawdown Certificate”), requesting that a Drawdown from the Construction Escrow Account be disbursed on [                    ] (the “Drawdown Date”). We have also reviewed the Company’s COD Certificate dated as of [                    ].

4. We last visited the Project Sites on [                    ] and observed progress at the Project. Our site observations of progress did not include investigation of buried items or

⁷  Certificate must be submitted to each Holder (with a copy to the Company) at least 1 Business Day prior to the date of each Drawdown.

other unobservable items or hidden conditions. We have reviewed documentation and held discussions with the Company regarding the progress of construction activities at the Project since that time.

5. This Certificate was prepared pursuant to the scope of services under our Amended and Restated Professional Services Agreement, dated as of March 15, 2013 (the “Services Agreement”) with Bloom Energy Corporation, the Collateral Agent and the Purchasers and with the degree of skill and diligence normally practiced by professional engineers or consultants performing the same or similar services on like projects.

Based upon the foregoing review and review procedures and on the understanding and assumption that we have been provided true and complete information from other parties as to the matters covered by the Current Drawdown Certificate, as of the date of this Certificate, except as set forth in this Certificate, we are of the opinion that:

A. COD [choose one: has/has not] occured with respect to the Systems being funded under this requested Credit Event.

This Certificate is solely for the information of and assistance to each of the Purchasers in conducting and documenting their investigation of the matters in connection with the Project and is not to be used, circulated, quoted, or otherwise referred to for any other purpose. This Certificate is not intended to, and may not, be construed to benefit any party other than the Purchasers.

Very truly yours,

SAIC ENERGY, ENVIRONMENT &

INFRASTRUCTURE, LLC

[Name goes here]

[Title goes here]

[Name goes here]

[Title goes here]

EXHIBIT 4.2.1(d) TO NOTE PURCHASE AGREEMENT

EXHIBIT 4.4.3

FORM OF FINAL COMPLETION CERTIFICATE OF THE COMPANY

[LETTERHEAD OF COMPANY]

Date:                  ,             

[Addressees]

SAIC Energy, Environment & Infrastructure, LLC,

as Independent Engineer

[Address]

Re: Diamond State Generation Partners, LLC – Final Completion Certificate

Ladies and Gentlemen:

This Final Completion Certificate (this “Certificate”) is delivered to you pursuant to Section 4.4.3 of the Note Purchase Agreement, dated as of March 20, 2013 (as amended, supplemented or otherwise modified from time to time, the “Note Purchase Agreement”), among Diamond State Generation Partners, LLC, a Delaware limited liability company (the “Company”) and the Purchasers party thereto. Capitalized terms used herein and not otherwise defined have the meanings provided in the Note Purchase Agreement.

I, [                    ], am a Responsible Officer of the Company. I have reviewed the provisions of the Credit Documents which are relevant to the furnishing of this Certificate. To the extent that this Certificate evidences, attests or confirms compliance with any covenants, representations, warranties or conditions precedent provided for in the Credit Documents, I have made such examination or investigation as was, in my opinion, reasonably necessary to enable me to express an informed opinion as to whether such covenants, representations, warranties or conditions have been complied with.

I, on behalf of the Company, solely in my capacity as a Responsible Officer of the Company and not in my personal capacity, and without personal liability therefor, do hereby certify to the Secured Parties that the following statements are accurate, true and complete on the date hereof, except as waived in writing by the Required Holders:

1) All facilities necessary for the Project as contemplated under the Tariff and the Operative Documents have been constructed, installed, completed, tested, commissioned and paid for in accordance with the Operative Documents.

2) All facilities necessary for the Project as contemplated under the Tariff and the Operative Documents have been completely constructed utilizing standards of workmanship and

EXHIBIT 4.4.3 TO NOTE PURCHASE AGREEMENT

materials in accordance with the MESPA and in accordance with the terms of the Tariff and Prudent Electrical Practices (as such term is defined in the MESPA) and all relevant equipment has been installed and is operating in accordance with the MESPA.

3) Each of the Systems has achieved COD.

4) [Choose one: [30 MW of Systems have passed the Performance Tests and have demonstrated performance at or better than nameplate capacity on or before the Date Certain.] / [Less than 30 MW of Systems have passed the Performance Tests and demonstrated performance at or better than nameplate capacity on or before the Date Certain, and the Company has paid the Buydown Amount.]]

5) All Major Project Documents are in full force and effect and no default or event of default has occurred and is continuing under any Major Project Document.

6) The Company (i) has obtained and delivered to each of the Purchasers copies of all material Applicable Permits obtained or to be obtained by or in the name of the Company and required to operate the Project, and (ii) is in compliance with all material Applicable Permits in all material respects thereunder.

7) The Tariff is final, non-appealable and in full force and effect.

8) All work that has been done on the Project to date has been done in a good and workmanlike manner and in accordance with the Project Documents (including any and all approved change orders made in accordance therewith, if any; any such approved change orders are listed on Appendix I together with all other requested and pending change orders) and there has not been filed against any of the Collateral or otherwise filed with or served upon the Company with respect to the Project or any part thereof, notice of any Lien, claim of Lien or attachment upon or claim affecting the right to receive payment of any of the moneys payable to any of the Persons named on such request which has not been released by payment or bonding or otherwise or which will not be released with the payment of such obligation out of the Notes or non Note proceeds hereby requested, other than Permitted Liens.

9) Except for any such Liens being contested by the Company as permitted under the definition of “Permitted Liens”, attached in Appendix II are duly executed Lien waivers required to be delivered to each of the Holders pursuant to Section 4.4.1 of the Note Purchase Agreement relating to mechanics’ and materialmen’s Liens from each Person performing work at the Site or having a statutory right to file a mechanics’ and/or materialmen’s Lien, as the case may be, for all work, services and materials (including equipment and fixtures of all kinds, done, previously performed or furnished for the construction of the Project), for which the related Project Costs have been or will be paid.

IN WITNESS WHEREOF, the undersigned has caused this Certificate to be duly executed and delivered on behalf of the Company as of the date first above written.

EXHIBIT 4.4.3 TO NOTE PURCHASE AGREEMENT

DIAMOND STATE GENERATION

PARTNERS, LLC, a Delaware limited liability company

By:

Name:

Title:

EXHIBIT 4.4.3 TO NOTE PURCHASE AGREEMENT

APPENDIX I

to Final Completion Certificate

Change Orders

1. Approved

2. Requested and Pending

EXHIBIT 4.4.3 TO NOTE PURCHASE AGREEMENT

APPENDIX II

to Final Completion Certificate

Lien Waivers

EXHIBIT 4.4.3 TO NOTE PURCHASE AGREEMENT

EXHIBIT 4.4.4

FORM OF FINAL COMPLETION CERTIFICATE OF THE INDEPENDENT ENGINEER

[Letterhead of Independent Engineer]

(Delivered pursuant to Section 4.4.4

of the Note Purchase Agreement)

Date: [                    ]

[Addressees]

Subject: Independent Engineer’s Final Completion Certificate

Ladies and Gentlemen:

This Independent Engineer’s Final Completion Certificate (this “Certificate”) is delivered to you by SAIC Energy, Environmental & Infrastructure, LLC (“SAIC”) as “Independent Engineer” pursuant to Section 4.4.4 of the Note Purchase Agreement, dated as of March 20, 2013 (as amended, supplemented or otherwise modified from time to time, the “Note Purchase Agreement”), among Diamond State Generation Partners, LLC, a Delaware limited liability company (the “Company”) and the Purchasers party thereto.

The Independent Engineer hereby makes the following statements as of the date of this Certificate:

1. We have reviewed the provisions of Sections 4.4.4 of the Note Purchase Agreement as they identify the responsibilities of the Independent Engineer related to providing this Certificate as required by Section 4.4.4. We issue this Certificate pursuant to our responsibilities with regard to the Project as set forth in the Note Purchase Agreement, including review of completion testing, infrastructure work, compliance with Project Schedule and budget and adequacy of remaining funds.

2. All defined terms set forth in this Certificate shall have the respective meanings specified in the Note Purchase Agreement unless the context otherwise requires or unless otherwise defined. We have reviewed the Note Purchase Agreement as to the meaning of defined terms used herein.

3. This Certificate was prepared pursuant to the scope of services under our Amended and Restated Professional Services Agreement, dated as of March 15, 2013 (the “Services Agreement”) with Bloom Energy Corporation, the Collateral Agent and each of the Purchasers and with the degree of skill and diligence normally practiced by professional

EXHIBIT 4.4.4 TO NOTE PURCHASE AGREEMENT

engineers or consultants performing the same or similar services on like projects. Our review and observations are based on the understanding and assumption that we have been provided true and complete information from other parties as to the matters covered by this Certificate.

4. All facilities necessary for the Project as contemplated under the Tariff and the applicable construction Project Documents have been constructed, installed, completed, tested, commissioned and paid for in accordance with the applicable construction Project Documents.

5. All facilities necessary for the Project as contemplated under the Tariff and the applicable construction Project Documents have been completely constructed utilizing standards of workmanship and materials in accordance with the MESPA and in accordance with the terms of the Tariff and Prudent Electrical Practices (as such term is defined in the MESPA) and all relevant equipment has been installed and is operating in accordance with the MESPA.

6. Each of the Systems has achieved COD.

7. [Choose one: [30 MW of Systems have passed the Performance Tests and have demonstrated performance at or better than nameplate capacity on or before the Date Certain.] / [Less than 30 MW of Systems have passed the Performance Tests and demonstrated performance at or better than nameplate capacity on or before the Date Certain, and the Company has paid the Buydown Amount.]]

This Certificate is solely for the information of and assistance to each of the Purchasers in conducting and documenting their investigation of the matters in connection with the Project and is not to be used, circulated, quoted, or otherwise referred to within or without the lending group for any other purpose. This Certificate is not intended to, and may not, be construed to benefit any party other than the Purchasers.

Very truly yours,

SAIC ENERGY, ENVIRONMENT &

INFRASTRUCTURE, LLC

[Name goes here]

[Title goes here]

[Name goes here]

[Title goes here]

EXHIBIT 4.4.4 TO NOTE PURCHASE AGREEMENT

EXHIBIT 8.1.3(b)

FORM OF OFFER TO REPAY NOTICE

[Insert name of holder of the Note]

[Insert address of holder of the Note]

[Insert date]

Reference is made to the Note Purchase Agreement dated as of March 20, 2013 (as amended, modified or supplemented and in effect from time to time, the “Note Purchase Agreement”) among Diamond State Generation Partners, LLC, a Delaware limited liability company (the “Company”) and the Purchasers party thereto. Terms used herein and not otherwise defined herein have the meanings assigned to such terms in the Note Purchase Agreement.

Pursuant to Section 8.1.3(b) of the Note Purchase Agreement, the Company hereby notifies you that it is making the following Offer to Repay:

1. The Offer Settlement Date shall be [        ]⁸.

2. The aggregate principal amount of all Notes to be repaid on the Offer Settlement Date shall be $[        ]⁹.

Please indicate your acceptance in whole or in part of the Offer to Repay by executing and delivering the notice in the form attached as Schedule 1 hereto on or prior to the fifth (5^th) Business Day prior to the Offer Settlement Date. If you do not accept the Offer to Repay in whole on or prior to [        ]¹⁰, you shall be deemed to have rejected the Offer to Repay, and, accordingly, your Notes will not be repaid on the Offer Settlement Date.

Sincerely,
DIAMOND STATE GENERATION PARTNERS, LLC
By:
	Name:
	Title:

⁸  Insert date twenty (20) Business Days after the date hereof.

⁹  Insert aggregate amount of all Notes to be repaid pursuant to this Offer to Repay Notice, which shall be the principal amount of the Notes at 100% of the principal amount thereof, together with accrued and unpaid interest thereon to the Offer Settlement Date and without payment of the Make-Whole Amount or any premium.

¹⁰  Insert the date that is five (5) Business Days prior to the Offer Settlement Date.

EXHIBIT 8.1.3(b) TO NOTE PURCHASE AGREEMENT

Schedule 1

TO OFFER TO REPAY NOTICE

FORM OF OFFER ACCEPTANCE NOTICE

OFFER ACCEPTANCE NOTICE

Diamond State Generation Partners, LLC

1252 Orleans Drive

Sunnyvale, CA 94089

Attention: [                    ]

[Insert Date]

Reference is made to the Note Purchase Agreement dated as of March 20, 2013 (as amended, modified or supplemented and in effect from time to time, the “Note Purchase Agreement”) among Diamond State Generation Partners, LLC, a Delaware limited liability company (the “Company”) and the Purchasers party thereto. Terms used herein and not otherwise defined herein have the meanings assigned to such terms in the Note Purchase Agreement. Reference is also made to the Offer to Repay Notice dated as of [Insert Date].

Pursuant to Section 8.1.3(b) of the Note Purchase Agreement, we hereby notify the Company that we accept the Offer to Repay in full as set forth in the Offer to Repay Notice.

Sincerely,
[Insert name of holder of the Notes]
By:
	Name:
	Title:

EXHIBIT 8.1.3(b)

To Note Purchase Agreement

EX-10

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

Exhibit 10.17

EXECUTION VERSION

MASTER ENERGY SERVER PURCHASE AGREEMENT

between

BLOOM ENERGY CORPORATION

as Seller

and

DIAMOND STATE GENERATION PARTNERS, LLC

as Buyer

dated as of April 13, 2012

TABLE OF CONTENTS

		Page
ARTICLE I. DEFINITIONS			2
Section 1.1.	Definitions		2
Section 1.2.	Other Definitional Provisions		12
ARTICLE II. PURCHASE AND SALE			13
Section 2.1.	Purchase Orders		13
Section 2.2.	Payment of Purchase Price		13
Section 2.3.	Purchase and Sale of Bloom Systems		15
ARTICLE III. DELIVERY AND INSTALLATION OF SYSTEMS AND BALANCE OF FACILITIES			15
Section 3.1.	Access to Site		15
Section 3.2.	Delivery of Bloom Systems		16
Section 3.3.	Delivery of Balance of Facility; Installation of Bloom Systems		17
Section 3.4.	Commissioning; Commencement of Operations		18
Section 3.5.	Insurance		19
Section 3.6.	Disposal; Right of First Refusal		20
Section 3.7.	Buyer’s Lender		20
Section 3.8.	Access; Cooperation		20
Section 3.9.	Performance Standards		20
Section 3.10.	Appointment of Independent Engineer		20
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF SELLER			21
Section 4.1.	Representations and Warranties as to Seller		21
Section 4.2.	Representations and Warranties as to Bloom Systems		22
Section 4.3.	Representations and Warranties as to QFCP-RC Tariff		23
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF BUYER			23
Section 5.1.	Organization		23
Section 5.2.	Authority		23
Section 5.3.	Consents and Approvals; No Violation		24
Section 5.4.	Legal Proceedings		24
ARTICLE VI. CONFIDENTIALITY			24
Section 6.1.	Confidential Information		24
Section 6.2.	Restricted Access		25
Section 6.3.	Permitted Disclosures		25
Section 6.4.	Publicity		26

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ARTICLE VII. LICENSE AND OWNERSHIP; SOFTWARE		26
Section 7.1.	IP License	26
Section 7.2.	Grant of Software License	27
Section 7.3.	No Software Warranty	27
Section 7.4.	Covenant	27
ARTICLE VIII. LIMITED WARRANTY		27
Section 8.1.	Portfolio Warranty	27
Section 8.2.	BOF Warranty	28
Section 8.3.	Portfolio Warranty Claims	28
Section 8.4.	Disclaimers	29
Section 8.5.	Exclusions	29
Section 8.6.	[Intentionally omitted.]	30
Section 8.7.	Power Performance Warranty	30
Section 8.8.	Efficiency Warranty	30
Section 8.9.	Gas Payment Shortfall	31
Section 8.10.	No Duplication of Terms	31
ARTICLE IX. EVENTS OF DEFAULT		31
Section 9.1.	Seller Default	31
Section 9.2.	Buyer Default	32
Section 9.3.	Buyer’s Remedies Upon Occurrence of a Seller Default	32
Section 9.4.	Seller’s Remedies Upon Occurrence of a Buyer Default	33
Section 9.5.	Force Majeure	33
ARTICLE X. INDEMNIFICATION		33
Section 10.1.	IP Indemnity	33
Section 10.2.	Indemnification of Seller by Buyer	34
Section 10.3.	Indemnification of Buyer by Seller	34
Section 10.4.	Indemnity Claims Procedure	35
Section 10.5.	Limitation of Liability	35
Section 10.6.	No Duplication of Claims	36
Section 10.7.	Survival	36
ARTICLE XI. MISCELLANEOUS PROVISIONS		36
Section 11.1.	Amendment and Modification	36
Section 11.2.	Intentionally Deleted	36
Section 11.3.	Waiver of Compliance; Consents	36
Section 11.4.	Notices	36
Section 11.5.	Assignment; Subcontractors	37
Section 11.6.	Dispute Resolution; Governing Law	37
Section 11.7.	Governing Law, Jurisdiction, Venue	37
Section 11.8.	Counterparts	37

ii

Section 11.9.	Interpretation	38
Section 11.10.	Entire Agreement	38
Section 11.11.	Construction of Agreement	38
Section 11.12.	Severability	38
Section 11.13.	Attorneys’ Fees	38
Section 11.14.	Further Assurances	39
Section 11.15.	Independent Contractors	39
Section 11.16.	Limitation on Export	39
Section 11.17.	Time of Essence	39
Section 11.18.	Right of Offset	39
Section 11.19.	No Rights in Third Parties	39

ANNEXES

Annex A

Annex B

Annex C

Annex D

Annex E

EXHIBITS

Exhibit A

Exhibit B

Exhibit C

iii

MASTER ENERGY SERVER PURCHASE AGREEMENT

This MASTER ENERGY SERVER PURCHASE AGREEMENT (this “Agreement”), dated as of April 13, 2012 (the “Agreement Date”), is entered into by and between BLOOM ENERGY CORPORATION, a Delaware corporation (“Seller”), and DIAMOND STATE GENERATION PARTNERS, LLC, a Delaware limited liability company (“Buyer”). Seller and Buyer are referred to in this Agreement individually, as a “Party” and, collectively, as the “Parties”.

RECITALS

WHEREAS, Seller is in the business of designing, constructing and installing on-site solid oxide fuel cell power generating systems capable of being powered by renewable fuels;

WHEREAS, Buyer is a company formed at the direction of Seller for the purpose of purchasing and owning Bloom Systems for the generation of electricity and sale of electricity and capacity generated by the Bloom Systems into the PJM Grid;

WHEREAS, the customer base of Delmarva Power & Light Company (“DPL”), an investor owned utility company regulated by the Delaware Public Service Commission (“DPSC”) will be subject to a charge to be collected on behalf of Buyer by DPL under the REPS Act and the Tariffs, and DPL has agreed to provide natural gas service and to serve as the collection and disbursement agent of Buyer pursuant to the Tariffs and the DPL Agreements;

WHEREAS, pursuant to REPS Act Section 352(16), Seller will be a “Qualified Fuel Cell Provider” (“QFCP”), and pursuant to the QFCP-RC Tariff, Buyer will be a “QFCP Generator” (“QFCP Generator”), and pursuant to REPS Act Section 352(17) the Facilities shall constitute a “Qualified Fuel Cell Provider Project” (“Qualified Fuel Cell Provider Project”);

WHEREAS, in 2011, Buyer purchased from Seller pursuant to the December 30 Bill of Sale, certain Bloom Systems and other parts and equipment to be incorporated into Bloom Systems, and Buyer presently owns such Bloom Systems and other parts and equipment;

WHEREAS, Buyer and Seller intended that the costs incurred by Seller for such Bloom Systems and other parts and equipment and the transfer of such Bloom Systems and other parts and equipment to Buyer in 2011 pursuant to the December 30 Bill of Sale qualified Buyer for the safe harbor for beginning construction in 2011 pursuant to the Guidance;

WHEREAS, Buyer desires to purchase, and Seller desires to sell, additional Bloom Systems which, together with the Bloom Systems previously purchased by Buyer, will have an aggregate Nameplate Capacity of up to 30 MW, and which Bloom Systems will be installed in two Facilities when and as the conditions to such installation are met as provided in this Agreement;

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

AGREEMENT

ARTICLE I.

DEFINITIONS

Section 1.1. Definitions. As used in this Agreement, capitalized terms not otherwise defined shall have the meanings set forth below:

“Actual kWh” means the actual energy output in kWh produced by each Bloom System and aggregated together.

“Administrative Services Agreement” means the Administrative Services Agreement dated as of April 13, 2012 among Seller, Buyer and Diamond State Generation Holdings, LLC.

“Affiliate” of any Person means a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person specified.

“Agreement” is defined in the preamble.

“Agreement Date” is defined in the preamble.

“Bill of Sale” means a bill of sale in substantially the form attached hereto as Exhibit B.

“Bloom System” or “Bloom Systems” means all on-site solid oxide fuel cell power generating systems capable of being powered by renewable fuels designed, constructed and installed by Seller, including both Safe Harbor Systems and Ordered Systems, which will have an aggregate Nameplate Capacity of up to 30 MW and which will be installed in two Facilities.

“BOF” means, for each Site, the Electrical Interconnection Facilities, the natural gas supply facilities, the water supply facilities, the data communications facilities, the foundations for the Bloom Systems, and any other ancillary facilities and equipment installed in connection with the Facility at each Site.

“BOF Warranty” is defined in Section 8.2.

“BOF Work” is defined in Section 3.4(a).

“Business Day” means a day other than a Saturday, Sunday or other day on which banks in New York, New York, or San Francisco, California, are authorized or required to close.

“Buyer” is defined in the preamble.

“Buyer Default” is defined in Section 9.2.

“Buyer Indemnitee” is defined in Section 10.3.

“Buyer’s Lender” means any Person providing senior or subordinated construction, debt or equity financing or refinancing for or in connection with the development, construction,

2

purchase, or installation of the Facility or any part thereof, including any equity and tax investor providing financing or refinancing in connection therewith, and any trustee or agent acting on their behalf, and any Person providing interest rate protection agreements to hedge any of the foregoing debt obligations.

“Calendar Quarter” means each period of three months ending on March 31, June 30, September 30 and December 31.

“Claiming Party” is defined in Section 9.5.

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

“Commencement of Operations” means, with respect to any Bloom System, the completion and the performance of all of the following activities:

(a) such Bloom System has been Placed in Service;

(b) such Bloom System (i) has been attached to the load at the Site and (ii) is performing at the Warranty Specifications (measured over a 24 hour period and not over the Look Back Period or on a Portfolio basis as referenced in the definition of Warranty Specifications; provided that for this purpose the percentage in “Minimum Power Product” shall be deemed to be 100% rather than 85%);

(c) such Bloom System has satisfied the conditions precedent for “Facility Commercial Operation Date” and the “Initial Delivery Date” (each as defined in the QFCP-RC Tariff) and Seller has performed and successfully completed all necessary acts under the Interconnection Agreements (including performance testing) and has obtained written permission from the applicable Person granting Buyer permission to interconnect with the PJM Grid pursuant thereto;

(d) Seller shall have furnished a written certification from Seller addressed to Buyer certifying, without any qualification, that Seller has installed such Bloom System in accordance with Performance Standards; and

(e) Seller shall have furnished a written certification from the Independent Engineer addressed to Buyer certifying, without any qualification, that (i) such Bloom System’s commissioning has been successfully completed and (ii) such Bloom System has achieved commercial operation (and if such Bloom System is the first Bloom System installed at such Facility then the Independent Engineer must also certify, without qualification, that Seller has installed all BOF Work necessary for the operation of that Facility).

“Company LLC Agreement” means the Amended and Restated Limited Liability Company Agreement of Diamond State Generation Holdings, LLC, dated as of April 13, 2012 between Clean Technologies II, LLC and Mehetia Inc.

“Confidential Information” is defined in Section 6.1.

“Credit Agreement” has the meaning set forth in the ECCA.

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“Credit Documents” has the meaning set forth in the ECCA. “DDOT” means the Delaware Department of Transportation.

“DDOT Site Lease” means the Lease Agreement between DDOT and Buyer dated as of July, 2011, as it may be amended to extend the term or otherwise.

“DDP (Incoterms 2010)” means Delivered Duty Paid (DDP) as such term is used in the International Rules for the Interpretation of Trade Terms (identified as “INCOTERMS^® 2010”) as prepared by the International Chamber of Commerce.

“December 30 Bill of Sale” means the Bill of Sale and Agreement, effective as of December 30, 2011, between Seller and Buyer pursuant to which Safe Harbor Systems and Safe Harbor Equipment were sold by Seller to Buyer for purposes of meeting the 5% safe harbor for Grant eligibility under the Guidance.

“Delivery Date” means, with respect to each Bloom System, the date when such Bloom System is physically delivered to its Site.

“Delivery Notice” has the meaning provided in Section 2.l(c).

“DPL” has the meaning provided in the recitals.

“DPL Agreements” means the service applications between Buyer and DPL with respect to the REPS Act and the Tariffs, whereby DPL shall (a) serve as the agent for collection of amounts due from Buyer (if any) and for disbursement of amounts due to Buyer under the QFCP-RC Tariff and (b) sell to Buyer natural gas under the Gas Tariff.

“DPL Site Lease” means the Lease Agreement between DPL and Buyer dated as of February 10, 2012.

“DPSC” has the meaning provided in the recitals.

“ECCA” means the Equity Capital Contribution Agreement with respect to Diamond State Generation Holdings, LLC, among Clean Technologies II, LLC, Diamond State Generation Holdings, LLC, Buyer and Mehetia Inc., dated as of March 16, 2012.

“Efficiency” means the quotient of E/F, where E = the electricity produced by the Portfolio, measured in BTUs (British Thermal Units) at a conversion rate of 3,412 BTUs per kWh, and F = the fuel consumed by the Portfolio, measured in BTUs on a Lower Heating Value basis.

“Efficiency Bank” means “banked” volumes of natural gas which the Buyer is permitted to accrue in a tracking account under the QFCP-RC Tariff Section C.(5) and which are available to offset any Efficiency Warranty shortfall. An example of the operation of the Efficiency Bank is attached as Exhibit C.

“Efficiency Warranty” has the meaning provided in Section 8.8.

4

“Efficiency Warranty Period” has the meaning provided in Section 8.8.

“Electrical Interconnection Facilities” means the equipment and facilities required to safely and reliably interconnect a Facility to the PJM Grid or the transmission system of another Transmitting Utility in whose territory the Facility is located, as applicable, including the collection system between each Bloom System, transformers and all switching, metering, communications, control and safety equipment, including the facilities described in any applicable Interconnection Agreement.

“Energy” means three-phase, 60-cycle alternating current electric energy constituting the Actual kWh.

“Equity Contributions” has the meaning set forth in the Company LLC Agreement.

“Facility” means the Bloom Systems and the BOF at a Site.

“Facility Meter” means the revenue quality electricity generation meter to be located at the metering point (the proposed location of which is to be identified in the Interconnection Agreement), which Facility Meter shall register all Energy produced by a Facility and delivered to the Interconnection Point.

“FERC” means the Federal Energy Regulatory Commission and any successor.

“Force Majeure Event” means any event or circumstance that (a) prevents a Party from performing its obligations under this Agreement; (b) was not foreseeable by such Party; (c) was not within the reasonable control of, or the result of the negligence of such Party; and (d) such Party is unable to reasonably mitigate, avoid or cause to be avoided with the exercise of due diligence. It shall include failure or interruption of performance due to: an act of God, civil or military authority, war, civil disturbances, terrorist activities, fire, explosions, the elements, the gas supplier’s failure to comply with gas delivery, quality or pressure requirements, the external power delivery system (a/k/a the grid) being out of the required specifications or total failure (a/k/a brownout or blackout), PJM or other electric grid curtailment, or failure of equipment not utilized by or under the control of the Party claiming the Force Majeure Event (or any Affiliate or subcontractor of such Party). Force Majeure Event does not include the lack of economic resources of a Party or Seller’s failure to design and construct the Bloom Systems and the BOF so as to meet the respective warranties hereunder.

“Funding Payments” has the meaning set forth in the ECCA.

“Gas Payment Shortfall” means the cost of natural gas, in any billing period under the QFCP-RC Tariff, for the quantity of natural gas used by Buyer that exceeds the quantity of natural gas that would have been utilized at the Target Heat Rate (as defined in the QFCP-RC Tariff) and the Efficiency Bank does not have a positive balance available to offset such excess.

“Gas Tariff” means DPL’s Service Classification “LVG-QFCP-RC” filed for gas service applicable to REPS Qualified Fuel Cell Provider Projects and approved by the DPSC in Order no. 8062 dated October 18, 2011, as adopted and supplemented by DPSC’s Findings, Opinion and Order No. 8079, dated December 1, 2011.

5

“Governmental Approvals” means (a) any authorizations, consents, approvals, licenses, rulings, permits, tariffs, rates, certifications, variances, orders, judgments, decrees by or with a relevant Governmental Authority and (b) any required notice to, any declaration of, or with, or any registration or filing by, or with, any relevant Governmental Authority.

“Governmental Authority” means any foreign, federal, state, local or other governmental, regulatory or administrative agency, court, commission, department, board, or other governmental subdivision, legislature, rulemaking board, court, tribunal, arbitrating body or other governmental authority.

“Grant” has the meaning set forth in the ECCA.

“Guidance” has the meaning set forth in the ECCA.

“Indemnifiable Loss” means any claim, demand, suit, loss, liability, damage, obligation, payment, cost or expense (including the cost and expense of any action, suit, proceeding, assessment, judgment, settlement or compromise relating thereto and reasonable attorneys’ fees and reasonable disbursements in connection therewith).

“Indemnified Party” is defined in Section 10.4.

“Indemnifying Party” is defined in Section 10.4.

“Independent Engineer” means the Person appointed pursuant to Section 3.10.

“Initial 10 MW” is defined in Section 4.2(d)(i).

“Initial Funding Date” has the meaning set forth in the ECCA.

“Intellectual Property” shall mean any or all of the following and all rights therein, arising therefrom, or associated therewith: (i) all U.S. patents and utility models and applications therefor and all reissues, divisions, re-examinations, renewals, extensions, provisionals, continuations and continuations-in-part thereof, improvements thereto, and equivalent or similar rights anywhere in the world in inventions and discoveries, including invention disclosures; (ii) all trade secrets, know-how and confidential and proprietary information, including software, and other rights in trade secrets, know-how and confidential or proprietary information including software; (iii) all copyrights, copyright registrations and applications therefor and all other rights corresponding thereto throughout the world, and any renewals, modifications and extensions thereof; (iv) all moral and economic rights of authors and inventors, however denominated, throughout the world; (v) all industrial designs and any registrations and applications therefor throughout the world; (vi) all rights in any words, names, symbols, or devices or any combinations thereof, adopted and used by the Seller and/or its licensees throughout the world to identify the source of its goods and services and distinguish them from those manufactured or sold by others, and all goodwill associated therewith, including all U.S. trademark and service mark registrations and applications therefor (including intent-to- use applications); all brand names, trade names, and trade dress; all rights in World Wide Web addresses and domain names

6

and applications and registrations therefor; and any renewals, modifications and extensions thereof; and (vii) any similar, corresponding or equivalent rights to any of the foregoing anywhere in the world.

“Interconnection Agreement” means an agreement among Buyer, DPL and/or PJM regarding interconnection of the Facility to the transmission or distribution system of the Transmitting Utility.

“Interconnection Point” is defined in the QFCP-RC Tariff.

“Investor” has the meaning set forth in the ECCA.

“IRS” means the Internal Revenue Service.

“kW” means kilowatt.

“kWh” means kilowatt-hour.

“Legal Requirement” means any law, statute, act, decree, ordinance, rule, directive (to the extent having the force of law), tariff (including the Tariffs), order, treaty, code or regulation or any interpretation of any of the foregoing, as enacted, issued or promulgated by any Governmental Authority, including all amendments, modifications, extensions, replacements or re-enactments thereof, in each case applicable to or binding upon such Person or any of its properties or to which such Person or any of its property is subject.

“Letter Agreement” means that certain Letter Agreement dated October 10, 2011 between Seller and the State of Delaware, as may be amended from time to time.

“Liens” means any lien, security interest, mortgage, hypothecation, encumbrance or other restriction on title or property interest.

“Look Back Period” means each calendar year following the Commencement of Operations for a Bloom System (or, in the case of the calendar year in which delivery of a Bloom System has occurred, the portion of such calendar year commencing on the date such Bloom System achieved Commencement of Operations), but excluding with respect to each relevant Bloom System any period during such calendar year when such Bloom System was (a) subject to a Force Majeure Event, (b) not delivering Energy to the PJM Grid because of a failure to perform by DPL under the DPL Agreements or PJM under the PJM Agreements, or (c) required to be disconnected from the PJM Grid or otherwise required not to deliver Energy to the PJM Grid as the result of a Legal Requirement or action by or a directive from the applicable electric utility or PJM with respect to such Bloom System (e.g., due to a grid event).

“Maximum Liability” means, with respect to Seller, the aggregate Residual Value of the Portfolio as of such date, and with respect to Buyer, one million Dollars ($1,000,000); provided that a reduction in the Maximum Liability of Seller shall never result in a requirement for Buyer or any Buyer Indemnitee to return any money to Seller. Maximum Liability will be determined on an aggregate basis between this Agreement and the O&M Agreement.

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“Minimum Efficiency Level” means fifty percent (50%) Efficiency while a Bloom System is operating at Nameplate Capacity, measured over the Efficiency Warranty Period.

“Minimum kWh” means the product of (x) the number of hours in the applicable Power Performance Warranty Period minus the number of hours for each Bloom System in the Portfolio as of the last day of the applicable Power Performance Warranty Period when each such Bloom System (i) was subject to a Force Majeure Event, (ii) was not delivering Energy to the PJM Grid because of a failure to perform by DPL under the DPL Agreements or PJM under the PJM Agreements or (iii) was required to be disconnected from the grid or otherwise required not to deliver Energy to the PJM Grid as the result of a Legal Requirement or action by or a directive from the applicable electric utility or PJM with respect to such Bloom System (e.g., due to a grid event), and (y) the Minimum Power Product for the applicable Power Performance Warranty Period.

“Minimum Power Product” means the aggregate Nameplate Capacity of the Bloom Systems in the Portfolio in kW for the applicable Power Performance Warranty Period multiplied by (1) eighty-five percent (85%) when this term is used for the One-Month Power Performance Warranty or (2) ninety-five percent (95%) when this term is used for the One-Year Power Performance Warranty. An example of a calculation of the Minimum Power Product is set forth in Annex A.

“MW” means megawatt.

“MWh” means megawatt-hour.

“Nameplate Capacity” means the maximum rated output of a generator, prime mover, or other electric power production equipment under specific conditions designated by the manufacturer.

“O&M Agreement” means the Master Operation and Maintenance Agreement, dated on or about the Agreement Date, between Seller and Buyer, providing for the maintenance and extended warranty of the Bloom Systems sold to Buyer under this Agreement.

“One-Month Power Performance Warranty Period” has the meaning provided in Section 8.7.

“One-Year Power Performance Warranty Period” has the meaning provided in Section 8.7.

“Ordered System” means each Bloom System that is ordered by Buyer from Seller pursuant to a Purchase Order.

“Party” and “Parties” have the meanings set forth in the preamble.

“Performance Standards” has the meaning provided in Section 3.9.

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“Permits” means all Governmental Approvals that are necessary under applicable Legal Requirements, this Agreement, or the O&M Agreement to have been obtained at such time in light of the stage of development of the Portfolio to site, construct, test, operate, maintain, repair, lease, own or use each Facility as contemplated in this Agreement, the O&M Agreement, or the ECCA, to sell electricity from the Portfolio or for a Party to enter into this Agreement or to consummate any transaction contemplated hereby, in each case in accordance with all applicable Legal Requirements.

“Permitted Liens” means any (a) Liens that are released or otherwise terminated at or prior to the Delivery Date of the encumbered assets; (b) obligations or duties to any Governmental Authority arising in the ordinary course of business (including under licenses and permits held by Buyer and under all applicable laws, rules, regulations and orders of any Governmental Authority); (c) obligations or duties under easements, leases or other property rights; (d) liens in favor of Buyer’s Lender; and (e) any other liens agreed to in writing by Seller and Buyer.

“Person” means any individual, partnership, limited liability company, joint venture, corporation, trust, unincorporated organization, or governmental entity or any department or agency thereof.

“PJM” means PJM Interconnection, LLC, a regional transmission organization.

“PJM Agreements” is defined in the QFCP-RC Tariff.

“PJM Grid” means the system of transmission lines, distribution lines, and associated facilities that have been placed under PJM’s operational control.

“Placed in Service” means, with respect to any Bloom System, the completion and performance of all of the following activities: (1) obtaining the necessary licenses and permits for the operation of such Bloom System and the sale of power generated by the Bloom System, (2) completion of critical tests necessary for the proper operation of such Bloom System, (3) synchronization of such Bloom System onto the electric distribution and transmission system of the relevant local utility and/or the PJM Grid and (4) the commencement of daily operation of such Bloom System.

“Portfolio” means, on an aggregate basis, all Bloom Systems owned by Buyer that were purchased pursuant to this Agreement or the December 30 Bill of Sale and that have achieved Commencement of Operations.

“Portfolio Warranty” is defined in Section 8.1.

“Power Performance Warranty” is defined in Section 8.7.

“Power Performance Warranty Period” is defined in Section 8.7.

“Prudent Electrical Practices” means those practices, methods, equipment, specifications and standards of safety and performance, as the same may change from time to time, as are commonly used by a significant portion of the grid-tied electrical generation industry operating

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in the United States as good, safe and prudent engineering practices in connection with the design, construction, operation, maintenance, repair and use of electrical and other equipment, facilities and improvements of such electrical generating facility, including any applicable practices, methods, acts, guidelines, standards and criteria of FERC, PJM, and all applicable Legal Requirements.

“Purchase Order” means a purchase order for Ordered Systems to be purchased by Buyer in substantially the form of Exhibit A.

“Purchase Price” means the purchase price for an Ordered System, based on the total Nameplate Capacity for such Ordered System, [***]. With respect to each Ordered System, there shall be credited against the Purchase Price the purchase price (set forth in the December 30 Bill of Sale) of any Safe Harbor Equipment incorporated into such Ordered System.

“OFCP” is defined in the recitals.

“OFCP Generator” is defined in the recitals.

“OFCP-RC Tariff” means DPL’s Service Classification “QFCP-RC” for REPS Qualified Fuel Cell Provider Projects as approved by the DPSC in Order no. 8062 dated October 18, 2011, as adopted and supplemented by DPSC’s Findings, Opinion and Order No. 8079, dated December 1, 2011.

“Qualified Fuel Cell Provider Project” is defined in the recitals.

“Representatives” of a Party means such Party’s authorized representatives, including its professional and financial advisors.

“REPS Act” means the Renewable Energy Portfolio Standards Act, as amended by S.B. 124, enacted July 10, 2011 (Title 26, Chap. 1, section 351 et seq. of the Code of the State of Delaware).

“Residual Value” means, for any Bloom System, [***] of the Purchase Price for such Bloom System until the second anniversary of Commencement of Operations, declining by [***] (i.e. [***]) on each anniversary of such date thereafter. (For example, on the fifth anniversary of Commencement of Operations, the Residual Value will be [***] of the Purchase Price).

“Safe Harbor Equipment” means all parts and equipment to be used in Bloom Systems sold by Seller to Buyer pursuant to the December 30 Bill of Sale.

“Safe Harbor Systems” means all Bloom Systems sold by Seller to Buyer pursuant to the December 30 Bill of Sale.

“SCADA” means the supervisory control and data acquisition systems.

“Section 8.2(b) Warranty” is defined in Section 8.2(b).

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“Seller” is defined in the Preamble.

“Seller Default” is defined in Section 9.1.

“Seller Indemnitee” is defined in Section 10.1.

“Service Provider” is defined in the O&M Agreement.

“Site” means, as applicable, (a) the parcel of land leased from DPL to Buyer under the DPL Site Lease and all easements appurtenant, easements in gross, license agreements and other rights running in favor of Buyer which provide access to the applicable Facility or (b) the parcel of land leased from DDOT to Buyer under the DDOT Site Lease and all easements appurtenant, easements in gross, license agreements and other rights running in favor of Buyer which provide access to the applicable Facility, in each case on which Seller shall install a Facility pursuant to this Agreement.

“Site Leases” means, collectively, the DPL Site Lease and the DDOT Site Lease.

“Site Preparation Services” means preparing each Site for installation of the Facility, obtaining the required Permits to construct, operate and maintain the each Facility, and providing for the Electrical Interconnection Facilities and any other ancillary facilities and equipment between the Bloom Systems and the local utility or PJM Grid and otherwise performing the tasks described in the QFCP-RC Tariff Section B.(2) or required to prepare each Site for the Bloom Systems at such Site to attain Commencement of Operations.

“Software” shall mean each software program provided by Seller to Buyer as source code, object code, firmware, printed or interpreted form.

“Software License” is defined in Section 7.1.

“Subsequent Funding Termination Date” has the meaning set forth in the ECCA.

“Tariffs” means the QFCP-RC Tariff and the Gas Tariff.

“Tax” (and, with correlative meaning, “Taxes” and “Taxable”) means:

(i) any taxes, customs, duties, charges, fees, levies, penalties or other assessments imposed by any federal, state, local or foreign taxing authority, including, but not limited to, income, gross receipts, windfall profit, severance, property, production, sales, use, license, excise, franchise, net worth, employment, occupation, payroll, withholding, social security, alternative or add-on minimum, ad valorem, transfer, stamp, or environmental tax, or any other tax, custom, duty, fee, levy or other like assessment or charge of any kind whatsoever, together with any interest, penalty, addition to tax, or additional amount attributable thereto; and

(ii) any liability for the payment of amounts with respect to payment of a type described in clause (i), including as a result of being a member of an affiliated, consolidated, combined or unitary group, as a result of succeeding to such liability as a result of merger, conversion or asset transfer or as a result of any obligation under any tax sharing arrangement or tax indemnity agreement.

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“Third Party Claim” means any claim, action, or proceeding made or brought by any Person who is not (a) a Party to this Agreement, (b) an Affiliate of a Party to this Agreement or (c) Mehetia ·Inc. or an Affiliate of Mehetia Inc. (and that is not a claim based on breach by the Indemnified Party of its obligations under this Agreement).

“Transaction Documents” means this Agreement, the O&M Agreement, the Company LLC Agreement, the ECCA and the Administrative Services Agreement.

“Transmitting Utility” has the meaning set forth in the QFCP-RC Tariff. “Treasury” has the meaning set forth in the ECCA.

“Warranty Period” means, for each Bloom System, the period beginning on the date of Commencement of Operation for such Bloom System and ending on the second anniversary of such date.

“Warranty Specifications” means (a) that the Portfolio has (i) achieved the Minimum kWh as provided in Section 8.7 and (ii) performed at no less than the Minimum Efficiency Level as provided in Section 8.8, and (b) that Seller is in compliance with Section 8.9.

Section 1.2. Other Definitional Provisions.

(a) As used in this Agreement and in any certificate or other documents made or delivered pursuant hereto or thereto, financial and accounting terms not defined in this Agreement or in any such certificate or other document, and financial and accounting terms partly defined in this Agreement or in any such certificate or other document to the extent not defined, will have the respective meanings given to them under GAAP. To the extent that the definitions of financial and accounting terms in this Agreement or in any such certificate or other document are inconsistent with the meanings of such terms under GAAP, the definitions contained in this Agreement or in any such certificate or other document will control.

(b) The words “hereof”, “herein”, “hereunder”, and words of similar import when used in this Agreement will refer to this Agreement as a whole and not to any particular provision of this Agreement. Section references contained in this Agreement are references to Sections in this Agreement unless otherwise specified. The term “including” will mean “including without limitation”.

(c) The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms.

(d) Any agreement, instrument or statute defined or referred to herein or in any instrument or certificate delivered in connection herewith means (unless otherwise indicated herein) such agreement, instrument or statute as from time to time amended, modified or supplemented and includes (in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein.

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(e) Any references to a Person are also to its permitted successors and assigns.

ARTICLE II.

PURCHASE AND SALE

Section 2.1. Purchase Orders.

(a) Buyer may, from time to time on or before the Subsequent Funding Termination Date, submit Purchase Orders to Seller for the purchase of Ordered Systems (not to exceed, in the aggregate with the Safe Harbor Systems, 30 MW in Nameplate Capacity) in accordance with the terms hereof. So long as no Buyer Default has occurred and is continuing hereunder, Seller shall promptly accept each such Purchase Order by countersigning and returning it to Buyer; provided that the failure of Seller to countersign or return to Buyer a Purchase Order shall not invalidate such Purchase Order and Seller shall be obligated to deliver the Ordered System under such Purchase Order as contemplated by this Agreement.

(b) Each Purchase Order shall specify, among other details required by the terms thereof, the number of Ordered Systems ordered, the Site to which each such Ordered System shall be delivered and the requested delivery date (which shall be no earlier than ten (10) days following the date of such Purchase Order, unless otherwise agreed by Seller) and the projected date Commencement of Operations for each such Ordered System is to occur.

(c) Seller shall give Buyer no less than ten (10) days prior written notice of the scheduled delivery date for each Ordered System (such notice, a “Delivery Notice”).

Section 2.2. Payment of Purchase Price. For each Ordered System for which Buyer has submitted a Purchase Order:

(a) Seller shall invoice Buyer for payment of the Purchase Price for such Ordered System as follows:

(A) on the Initial Funding Date [***] percent ([***]) of the Purchase Price for each Ordered System expected to be delivered in the first or second Calendar Quarter occurring after the Initial Funding Date (with Seller crediting against the Purchase Price the cost of Safe Harbor Equipment to be incorporated into such Ordered System, if any) and (B) on the first day of each Calendar Quarter thereafter, [***] percent ([***]) of the Purchase Price for each Ordered System expected to be shipped in the subsequent Calendar Quarter (with Seller crediting against the Purchase Price the cost of Safe Harbor Equipment to be incorporated into such Ordered System, if any); and

(i) on the Delivery Date for each Ordered System, [***] percent ([***]) of the Purchase Price for such Ordered System (with Seller crediting against the Purchase Price, to the extent not previously credited pursuant to Section 2.2(a)(i), the cost of Safe Harbor Equipment incorporated into such Ordered System, if any), plus any Taxes identified in the applicable invoice and for the account of Buyer under Section 2.2(c).

Notwithstanding the foregoing, if Buyer (a) admits in writing its inability to pay its debts generally as they become due; (b) files a petition or answer seeking reorganization or

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arrangement under the federal bankruptcy laws or any other applicable law or statute of the United States of America or any State, district or territory thereof; (c) makes an assignment for the benefit of creditors; (d) consents to the appointment of a receiver of the whole or any substantial part of its assets; (e) has a petition in bankruptcy filed against it, and such petition is not dismissed within [***] days after the filing thereof; or if (f) a court of competent jurisdiction enters an order, judgment, or decree appointing a receiver of the whole or any substantial part of Buyer’s assets, and such order, judgment or decree is not vacated or set aside or stayed within [***] days from the date of entry thereof; or (g) under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the whole or any substantial part of Buyer’s assets and such custody or control is not terminated or stayed within [***] days from the date of assumption of such custody or control, then Seller shall have the right to require that the payment of [***] percent ([***]) of the Purchase Price for such Ordered System as provided by clause (ii) above be made immediately prior to the delivery of such Ordered System.

(b) Each invoice shall include the following information for each applicable Bloom System:

(i) the Site on which the Ordered System will be installed and the location at which the Ordered System was manufactured;

(ii) the serial number, Nameplate Capacity and purchase order number;

(iii) the Purchase Price, including details of (x) all amounts previously paid towards or credited against the Purchase Price (including the cost of Safe Harbor Equipment incorporated into such Ordered System, if any) and (y) all amounts remaining due and payable on the Purchase Price;

(iv) whether any Safe Harbor Equipment owned by Buyer is or is to be incorporated into the Ordered System; and

(v) such other information as Buyer may reasonably request.

(c) Buyer shall pay all state and local sales, use or other transfer. Taxes required to be paid by Buyer and attributable to the transfer of the Ordered System to Buyer, except that Seller shall be responsible for and pay any Taxes arising as a result of any components of such Ordered Systems or any Ordered Systems being acquired from a source outside of the United States, provided that this reference to Ordered Systems “being acquired from a source outside of the United States” shall not relieve Seller of its obligations to deliver Bloom Systems (after the Initial 10 MW of Bloom Systems delivered hereunder or sold to Buyer pursuant to the December 30 Bill of Sale) manufactured in Delaware as required under the QFCP-RC Tariff.

(d) All final payments of the Purchase Price will be due five (5) Business Days following both (i) the receipt by Buyer of an invoice pursuant to Section 2.2(a)(ii) with respect to an Ordered System and (ii) certification to Buyer that Commencement of Operations of such Ordered System has occurred; provided, however, that the final payment for each Ordered System shall not be due until all shared infrastructure at such Site necessary for installation or operation of such Ordered System at such Site, including without limitation, the BOF Work for

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such Ordered System, shall have been completed in accordance with the Performance Standards and is available for commercial operation, as certified by the Independent Engineer. Interest shall accrue daily on sums not paid when due, at the lesser of a monthly rate of [***] percent ([***]) or the highest rate permissible by law on the unpaid balance.

(e) If Buyer defaults in any payment when due for any Ordered System (other than with respect to amounts being disputed in good faith), Seller may, on not less than five (5) Business Days prior notice to Buyer, at its option and without prejudice to its other remedies, (i) suspend performance of its obligations hereunder for such Ordered System, or defer delivery of such Ordered System to Buyer and (ii) require that (until all such outstanding payment defaults have been cured) the payment of [***] percent ([***]) of the Purchase Price for future Ordered Systems required under Section 2.2(a)(ii) above be made immediately prior to the delivery of such Ordered System, but Seller shall not be able to otherwise suspend performance of its obligations hereunder for other Bloom Systems for which no such default exists.

(f) Seller shall promptly pay all subcontractors working on the Bloom Systems delivered and installed under this Agreement. Seller shall discharge any Liens by such subcontractors within thirty (30) days of receiving notice thereof. Seller shall release all Liens in favor of Seller on each Ordered System upon final payment of the Purchase Price for such Ordered System. After receipt of the [***] deposit for each Ordered System as provided in Section 2.2(a)(i), Seller will issue a statement of the balance of the Purchase Price for such Ordered System, being the amount which, once paid to Seller, will cause Seller to release its lien on the Ordered System. Seller hereby agrees that third parties, such as, without limitation, Buyer’s Lenders, may rely on each such statement.

Section 2.3. Purchase and Sale of Bloom Systems. Except for Safe Harbor Equipment incorporated into an Ordered System (which Buyer holds title to as of the date hereof), upon the Delivery Date for an Ordered System Seller shall be deemed to have sold, assigned, conveyed, transferred and delivered to Buyer, and Buyer shall be deemed to have purchased, assumed and acquired from Seller, all of Seller’s right, title and interest in and to such Ordered System, the sale of such Ordered System shall occur and Seller shall provide Buyer with (a) a Bill of Sale evidencing the same and (b) lien waivers from each subcontractor performing BOF Work at the applicable Site, stating that such subcontractor has been paid all amounts owed to it as of the date of the lien waiver.

ARTICLE III.

DELIVERY AND INSTALLATION OF SYSTEMS AND BALANCE OF FACILITIES

Section 3.1. Access to Site. Seller shall be responsible for ascertainment of the suitability of each Site and each Site’s soil condition for construction of the applicable Facility. Notwithstanding the QFCP-RC Tariff, as between Seller and Buyer, Seller shall be solely responsible for all “Site Preparation Costs” (as defined in the QFCP-RC Tariff) and all Site Preparation Services. Seller, as administrator for Buyer pursuant to the Administrative Services Agreement shall provide, or arrange for DPL or DDOT, as applicable, to provide, access to the applicable Site to permit Seller to deliver and install each Bloom System and the BOF to the applicable Site and to connect the Facility to DPL or the PJM Grid, as the case may be. If Buyer requires a change in the location of the Site from that specified in a Purchase Order, Buyer shall submit a written notice to Seller setting forth the details of such location change.

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Section 3.2. Delivery of Bloom Systems.

(a) Each Ordered System shall be delivered to the applicable Site no more than ten (10) days before and no more than sixty (60) days after the requested delivery date specified in the applicable Purchase Order. Each Safe Harbor System shall be delivered to the applicable Site no more than sixty (60) days after the request for delivery of such Safe Harbor System by Buyer and in such a manner that a Grant is expected to be available for the applicable Site.

(b) Delivery of each Ordered System shall be DDP (Incoterms 2010) to the Site specified in the relevant Purchase Order, in accordance with the Delaware Uniform Commercial Code then in effect. Title to each Ordered System, except for title to any Safe Harbor Equipment which Buyer holds title to as of the date hereof, shall pass to Buyer upon Seller’s delivery of such Ordered System at the relevant Site, and such title shall be good and marketable and free of all Liens, except as provided in Section 2.2(f). Except for the Safe Harbor Equipment (with respect to which Buyer has the risk of loss or damage as of the date hereof), from and after the Delivery Date of each Ordered System all risk of loss or damage to such Ordered System shall be borne by Buyer.

(c) To the extent any Ordered System has not achieved Commencement of Operations within ninety (90) days of the Delivery Date for such Ordered System (other than as a result of a Force Majeure Event, except that failure to satisfy any of the conditions set forth in Sections 2.7(v), (w), (x), or (y) of the ECCA shall not be deemed a Force Majeure Event), then Buyer shall have the ongoing right until such requirements are met to elect that such Ordered System be removed from its Site and delivered to Seller at Seller’s expense in an AS IS condition and that Seller promptly (but in no event later than ninety (90) days thereafter) (i) refund such Ordered System’s purchase deposit under Section 2.2(a)(i) to Buyer, with all such refunded amounts being deposited by Seller into a separate control account of Buyer having Diamond State Generation Holdings, LLC as the secured party, (ii) restore that portion of the Site which was improved to accept the installation of such removed Ordered System and (iii) to the extent any such Ordered System contains Safe Harbor Equipment, use commercially reasonable efforts to install or use that Safe Harbor Equipment in another Bloom System located or to be located at the Site.

(d) To the extent any Ordered System has not achieved Commencement of Operations within six (6) months of payment of the applicable purchase deposit under Section 2.2(a)(i), Seller shall promptly (but in no event later than ninety (90) days thereafter) (i) refund such Ordered System’s purchase deposit to Buyer, with all such refunded amounts being deposited by Seller into a separate control account of Buyer having Diamond State Generation Holdings, LLC as the secured party and (ii) to the extent any such Ordered System contains Safe Harbor Equipment, use commercially reasonable efforts to install or use that Safe Harbor Equipment in another Bloom System located or to be located at the Site.

(e) To the extent that Seller has failed to comply with any of Seller’s obligations under the Letter Agreement (including, if so required by the State of Delaware, posting the

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security referred to in the Letter Agreement upon or prior to the Commencement of Operation of the first Bloom System), Buyer shall have the right to suspend any Purchase Orders (and payments with respect thereto) under this Agreement until such noncompliance is cured to the satisfaction of the State of Delaware.

(f) In the event that as of December 31, 2012, Buyer reasonably determines that Seller will be unable to achieve Commencement of Operations for at least 5 MW of Bloom Systems by the first Guaranteed Initial Delivery Date (as defined in the QFCP-RC Tariff), then prior to Buyer paying any amounts toward Bloom Systems for which Purchase Orders have been placed with Seller after December 31, 2012, Buyer shall have received assurance from Seller reasonably acceptable to Buyer that (i) Seller is reasonably likely to achieve such installed capacity by March 31, 2013 or (ii) the Tariff will remain available for the output of Bloom Systems achieving Commencement of Operations after such Guaranteed Initial Delivery Date, as well as those Bloom Systems installed prior to March 31, 2013 if such installed Nameplate Capacity is less than 5 MW.

Section 3.3. Delivery of Balance of Facility; Installation of Bloom Systems.

(a) Seller shall be responsible for engineering, procuring, constructing, installing and commissioning the BOF, and Seller shall cause each Bloom System to achieve Commencement of Operations without any compensation or reimbursement by Buyer, other than the Purchase Price under this Agreement, in accordance with the following (collectively, the “BOF Work”):

(i) Seller shall perform and complete all BOF Work in accordance and consistent with the Performance Standards;

(ii) Seller shall cause to be performed any and all studies, reports and applications (in the name of Buyer, if Seller is an Affiliate of Buyer) that are necessary for interconnection to the PJM Grid and to comply with the PJM Agreements;

(iii) Seller shall perform the BOF Work and act at all times as an independent contractor. Seller shall at all times maintain such supervision, direction and control over its employees, agents, subcontractors and representatives as is consistent with and necessary to preserve its independent contractor status. Seller is permitted to enter into contracts or otherwise hire one or more subcontractors to perform the Seller’s work on its behalf. Each subcontractor must be a reputable, qualified firm with an established record of successful performance in its trade, and shall obtain and maintain such insurance coverages having such terms as set forth in Annex B. Seller shall not be relieved from its obligation to provide the BOF Work if a subcontractor agrees to provide any or all of such BOF Work. No subcontractor is intended to be or will be deemed a third-party beneficiary of this Agreement. Nothing contained herein shall create any contractual relationship between any subcontractor and Buyer or obligate Buyer to pay or cause the payment of any amounts to any subcontractor, including any payment due to any third party. Seller shall not permit any subcontractor to assert any Lien against, or attach any Lien other than a Permitted Lien. None of Seller’s employees, subcontractors or any such subcontractor’s employees will be or will be considered to be employees of Buyer. Seller shall be fully responsible to Buyer for the acts and omissions of each such

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employee or subcontractor. Seller will be fully responsible for the payment of all wages, salaries, benefits and other compensation to its employees and for payment of any Taxes due because of the BOF Work;

(iv) Seller shall, and shall cause each of its subcontractors to, install the Bloom Systems and the BOF at each Site using items that are new or refurbished (to the extent that use of refurbished items complies with the Guidance), and undamaged at the time of such use or installation;

(v) Seller shall install, test, and cause the Commencement of Operations with respect to the Facility and each Bloom System as provided in Section 3.4;

(vi) Seller shall pay all amounts owed to its subcontractors and vendors in connection with the performance of the BOF Work on a timely basis and shall hold Buyer harmless against any claims asserted by such subcontractors and vendors;

(vii) Seller shall obtain and maintain, or cause to be obtained and maintained, all Permits necessary to design, install, and commission each Bloom System and to construct, occupy, and operate each Facility and each Site; and

(viii) Seller shall cause BOF Work to be completed in a good and workmanlike manner and in accordance with the Performance Standards, free and clear of all Liens other than Permitted Liens. The BOF Work shall not be considered complete until Seller shall have procured (A) the issuance of a certificate from the Independent Engineer addressed to Seller and Buyer, certifying without qualification, that the BOF Work has been completed and is available for commercial operation and (B) PJM’s, DPL’s and Buyer’s written acceptance thereof, as applicable.

(b) Title and risk of loss to each component of such BOF Work for that Site shall pass to Buyer as of the Delivery Date of the first Bloom System at such Site. For the avoidance of doubt, the passage of title and risk of loss with respect to the Bloom Systems shall have passed to Buyer prior to any Bloom System being Placed in Service.

Section 3.4. Commissioning; Commencement of Operations.

(a) Upon the occurrence of the Delivery Date for a Bloom System, Seller shall promptly perform the following:

(i) Seller shall provide installation, inspection, commissioning and start-up for each Bloom System and the BOF at the applicable Site in accordance with the QFCP- RC Tariff, the installation manuals provided for such Bloom System, the DPL Agreements, the PJM Agreements and the Site Leases, as applicable, and in conformance with Prudent Electrical Practices. Without limitation of the foregoing, each Bloom System will be connected to the natural gas source, water source and SCADA at the applicable Site and to the Facility’s Electrical Interconnection Facilities;

(ii) Prior to Commencement of Operations of each Bloom System, Seller shall perform an acceptance test (not less stringent than the testing applied to its fuel cell

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power generating systems for any other major customer of Seller) of each Bloom System and the applicable BOF and such Bloom System and applicable BOF shall have passed such test. Seller shall provide Buyer reasonable advance written notice of such testing;

(iii) Seller shall cause Commencement of Operations for such Bloom System to occur. Seller shall promptly certify in writing to Buyer when each Bloom System achieves Commencement of Operations;

(iv) Seller will provide to Buyer a single line diagram of the installation, electronic system manuals, copies of all relevant design documents, and printed system manuals, in each case relating to such Bloom System (in paper copy and electronic format). Seller shall also provide other deliverables relating to such Bloom System due to be delivered by Buyer under the DPL Agreements and/or PJM Agreements that, in each such case, relate to the BOF Work (e.g. as-built survey, applicable Governmental Approvals, commissioning reports, etc.). Seller shall deliver to Buyer any other documentation necessary to establish placement in service for purposes of section 48 of the Code or the Guidance;

(v) Seller shall be responsible for obtaining (in the name of Buyer, if Seller is an Affiliate of Buyer) and furnishing to DPL (A) the written certification of an authorized officer of Buyer certifying that the applicable Bloom System has achieved Facility Commercial Operation (as defined in the QFCP-RC Tariff) and (B) evidence of fulfillment of each condition precedent in QFCP-RC Tariff Section B; provided, however, if Seller is not an Affiliate of Buyer, Seller shall furnish all information in its control and fully cooperate with Buyer to fulfill those QFCP-RC Tariff conditions precedent that require action by or on behalf of Buyer;

(vi) Until Commencement of Operations of the last Bloom System for a Facility, Seller shall be responsible for providing physical security of such Facility; and

(vii) If requested by Buyer, Seller shall provide operator training and associated training materials to personnel of Buyer sufficient to instruct Buyer on operation of such Bloom System in conformance with Prudent Electrical Practices.

(b) Seller’s services under this Section 3.5 shall be fully comprehensive of all services, labor, and equipment necessary to complete installation of a fully commissioned and operating Bloom System in accordance with this Agreement, the DPL Agreements, the Site Leases and the PJM Agreements.

(c) Seller shall be responsible, at its sole cost and expense, for maintaining and complying with all Permits required to perform its services under this Agreement and Buyer agrees to cooperate with and assist Seller in obtaining such Permits.

Section 3.5. Insurance. Seller shall maintain the insurance described in Annex B with respect to each Facility until the last Bloom System in each Facility has achieved Commencement of Operations except for the Safe Harbor Systems for which Buyer shall be responsible to maintain such insurance.

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Section 3.6. Disposal; Right of First Refusal. In the event that Buyer decides to scrap, abandon or otherwise dispose of any Bloom System, Buyer shall notify Seller and Seller shall have the right but not the obligation to obtain title to the Bloom System and remove the Bloom System at Seller’s cost; provided, however, that Seller will not be responsible for remediation of Buyer’s Site in which the Bloom System was located. In the event that Buyer decides to sell or otherwise transfer title to any Bloom System, Buyer shall notify Seller and Seller shall have the right of first refusal to purchase or acquire the Bloom System on the same terms and conditions of such sale and shall have the right to remove the Bloom System at Seller’s cost, including the remediation of the Site in which the Bloom System was located in accordance with the terms of the applicable Site Lease.

Section 3.7. Buyer’s Lender. Seller shall furnish Buyer’s Lender such certifications regarding its actions under this ARTICLE III as Buyer’s Lender shall reasonably request and shall otherwise cooperate with Buyer’s Lender.

Section 3.8. Access; Cooperation. Seller shall provide to Buyer such other information that is in the possession of Seller or its Affiliates or is reasonably available to Seller regarding the permitting, engineering, construction, or operations of Seller, its subcontractors or the Facilities, and other data concerning Seller, its subcontractors or the Facilities that Buyer may, from time to time, reasonably request in writing, subject to Seller’s obligations of confidentiality to third parties with respect to such information. Until the date of Commencement of Operations for the last Bloom System to be installed at each Facility, Seller shall provide to Buyer monthly written reports describing permitting and development activities in the previous month and anticipated progress and activities for the upcoming month with respect to each Facility.

Section 3.9. Performance Standards. For the purpose of this Agreement, Seller shall perform under this Agreement in accordance and consistent with each of the following (unless the context requires otherwise): (A) permitted plans and specifications applicable to each Facility; (B) the manufacturer’s recommendations with respect to all equipment and all maintenance and operating manuals or service agreements, whenever furnished or entered into, including any subsequent amendments or replacements thereof, issued by the manufacturer, provided they are consistent with generally accepted practices in the fuel cell industry; (C) the requirements of all applicable insurance policies; (D) preserving all rights to any incentive payments, warranties, indemnities or other rights or remedies, and enforcing or assisting with the enforcement of the applicable warranties, making or assisting in making all claims with respect to all insurance policies; (E) all Legal Requirements and Permits/Governmental Approvals, (F) the PJM Agreements and the DPL Agreements; (G) any applicable provisions of the Site Leases, including any landlord rules and regulations, and (H) Prudent Electrical Practices (collectively, the “Performance Standards”); provided, however, that meeting the Performance Standards shall not relieve Seller of its other obligations under this Agreement.

Section 3.10. Appointment of Independent Engineer. For the purposes of this ARTICLE III, Seller shall not less than sixty (60) days prior to the commencement of the tests under Section 3.3 and Section 3.4 appoint an independent, suitably qualified professional engineer approved by Buyer who shall among other things witness the commissioning and testing of each Bloom System and the BOF Work pursuant to this ARTICLE III (the “Independent Engineer”). Unless objected to by Seller, Buyer or the Buyer’s Lender, the

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independent engineer appointed pursuant to the Credit Documents shall serve as the Independent Engineer under this Agreement. All fees and costs payable in respect of the Independent Engineer (including those incurred in making such appointment) shall be borne by Seller.

ARTICLE IV.

REPRESENTATIONS AND WARRANTIES OF SELLER

Section 4.1. Representations and Warranties as to Seller. Seller represents and warrants to Buyer as of the Agreement Date and as of each Delivery Date as follows:

(a) Incorporation; Qualification. Seller is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own, lease, and operate its business as currently conducted. Seller is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction that its business, as currently being conducted, shall require it to be so qualified, except where the failure to be so qualified would not have a material adverse effect on the Bloom Systems being sold under this Agreement.

(b) Authority. Seller has full corporate power and authority to execute and deliver the Transaction Documents to which it is a party and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Seller of the Transaction Documents to which it is a party and the consummation by Seller of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action required on the part of Seller and the Transaction Documents to which Seller is a party have been duly and validly executed and delivered by Seller. Each of the Transaction Documents to which Seller is a party constitutes the legal, valid and binding agreement of Seller, enforceable against Seller in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).

(c) Consents and Approvals; No Violation. Neither the execution, delivery and performance of the Transaction Documents to which Seller is a party nor the consummation by Seller of the transactions contemplated hereby and thereby will (i) conflict with or result in any breach of any provision of the certificate of incorporation or bylaws of Seller, (ii) with or without the giving of notice or lapse of time or both, conflict with, result in any violation or breach of, constitute a default under, result in any right to accelerate, result in the creation of any Lien on Seller’s assets, or create any right of termination under the conditions or provisions of any note, bond, mortgage, indenture, material agreement or other instrument or obligation to which Seller is a party or by which it, or any material part of its assets may be bound, in each case that would individually or in the aggregate result in a material adverse effect on the Seller or its ability to perform its obligations hereunder or (iii) constitute violations of any law, regulation, order, judgment or decree applicable to Seller, which violations, individually or in the aggregate, would result in a material adverse effect on the Seller or its ability to perform its obligations hereunder.

(d) Legal Proceedings. There are no pending or, to Seller’s knowledge, threatened claims, disputes, governmental investigations, suits, actions (including non-judicial real or

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personal property foreclosure actions), arbitrations, legal, administrative or other proceedings of any nature, domestic or foreign, criminal or civil, at law or in equity, by or against or otherwise affecting Seller that challenge the enforceability of the Transaction Documents to which Seller is a party or the ability of Seller to consummate the transactions contemplated hereby or thereby.

(e) U.S. Person. Seller is not a “foreign person” within the meaning of Section 1445(b)(2) of the Code.

Section 4.2. Representations and Warranties as to Bloom Systems. Seller represents and warrants to Buyer as of the Delivery Date for each Bloom System solely with respect to such Bloom System, as follows:

(a) Technical Specifications. Each Bloom System is an integrated system comprised of a fuel cell stack assembly and associated balance of plant components that converts a fuel into electricity using electrochemical means that (i) has a Nameplate Capacity of at least 0.5 kilowatts of electricity using an electrochemical process and (ii) has an electricity-only generation efficiency greater than thirty percent (30%).

(b) Taxes. Seller has timely filed or caused to be filed all tax returns that are required to be filed by it, and has paid or caused to be paid all Taxes that have become due as indicated thereon, except where the failure to so file or pay would not result in a material adverse effect on each such Bloom System.

(c) Title on Delivery. Except for the Safe Harbor Systems and Safe Harbor Equipment (as to which Buyer already holds title as of the date hereof), Seller has good title to each Bloom System and each such Bloom System is free and clear of all Liens other than Permitted Liens. Seller and, to the knowledge of Seller, its subcontractors, have not placed any Liens on the Site or the Facility other than Permitted Liens. To the extent that Seller has actual knowledge that any of its subcontractors has placed any Lien on a Bloom System or the Site, then Seller shall cause such Liens to be removed or bonded over in a manner reasonably satisfactory to Buyer. Buyer, Buyer’s Lender and DPL shall be indemnified against such lien claim, unless the applicable Site Lease requires additional or more stringent action, in which case the applicable Site Lease requirements shall control.

(d) Bloom Systems.

(i) As to the first 10 MW of Bloom Systems ordered, installed and paid for under this Agreement or consisting of Safe Harbor Systems (in the aggregate, the “Initial 10 MW”), Seller shall use commercially reasonable efforts to maintain sufficient manufacturing capacity (except as to the Safe Harbor Systems) and transportation capacity as will permit Buyer to order (except as to the Safe Harbor Systems) and Seller to fulfill the delivery of Bloom Systems in accordance with this Agreement. It is contemplated by the Parties that the Initial 10 MW shall be manufactured outside of the State of Delaware. Seller confirms that the Safe Harbor Systems were manufactured outside of the State of Delaware. Seller’s delivery of any Ordered System to Buyer pursuant to this Agreement shall be deemed to be Seller’s certification that such Ordered System is in compliance with the QFCP-RC Tariff. Seller shall promptly inform Buyer

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in writing if it becomes aware of any substantive reason why manufacturing of Bloom Systems (other than the Initial 10 MW) in the State of Delaware in accordance with the Tariffs shall not commence, or if it has commenced, shall cease before Commencement of Operations of the full 30 MW Nameplate Capacity of the Portfolio.

(ii) Seller shall be responsible for Buyer’s responsibilities and obligations regarding “Site Preparation Costs” (as defined in the QFCP-RC Tariff), including, but not limited to: (A) Seller shall exercise reasonable care not to unnecessarily exceed the “Site Preparation Cost Cap” (as defined in the QFCP Tariff) and (B) Seller shall periodically review with DPL the Site Preparation Costs as the Site Preparation Services progress and shall otherwise reasonably work with DPL in an effort to avoid unnecessarily exceeding the Site Preparation Cost Cap; provided that Buyer shall reasonably assist Seller in obtaining reimbursement of amounts in excess of the Site Preparation Cost Cap in accordance with the Tariffs and the DPL Agreements.

Section 4.3. Representations and Warranties as to QFCP-RC Tariff. Seller represents and warrants to Buyer, during the term of this Agreement, that the Portfolio shall not fail to receive full payment and service under the Tariffs for any of the following reasons:

(i) Seller shall not be a Qualified Fuel Cell Provider throughout the original term of the QFCP Tariff.

(ii) Seller shall not have achieved “commercial operation” (as defined in the QFCP-RC Tariff) of the minimum amounts of Nameplate Capacity on or before each Guaranteed Initial Delivery Date.

(iii) Seller shall take any action which causes: (A) Buyer not to qualify (or lose qualification) for service under the QFCP Tariff or (B) the Portfolio not to qualify (or lose qualification) as a Qualified Fuel Cell Provider Project.

(iv) Seller shall have not complied with any of its obligations under the Letter Agreement (including, if so required by the State of Delaware, posting the security referred to in the Letter Agreement upon or prior to the Commencement of Operation of the first Bloom System).

ARTICLE V.

REPRESENTATIONS AND WARRANTIES OF BUYER

Buyer represents and warrants to Seller as of the Agreement Date and as of each Delivery Date, as follows with respect to Buyer:

Section 5.1. Organization. Buyer is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware and has all requisite limited liability company power and authority to own, lease, and operate its business as currently conducted.

Section 5.2. Authority. Buyer has full limited liability company power and authority to execute and deliver the Transaction Documents to which Buyer is a party and to consummate the

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transactions contemplated hereby and thereby. The execution and delivery by Buyer of the Transaction Documents to which Buyer is a party and the consummation by Buyer of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary limited liability company action required on the part of Buyer and the Transaction Documents to which Buyer is a party have been duly and validly executed and delivered by Buyer. Each of the Transaction Documents to which Buyer is a party constitutes the legal, valid and binding agreement of Buyer, enforceable against Buyer in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).

Section 5.3. Consents and Approvals; No Violation. Neither the execution, delivery and performance by Buyer of the Transaction Documents to which Buyer is a party nor the consummation by Buyer of the transactions contemplated thereby will (a) conflict with or result in any breach of any provision of the Certificate of Formation or the limited liability company agreement of Buyer, or (b) result in a default (or give rise to any right of termination, cancellation or acceleration) under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, material agreement or other instrument or obligation to which Buyer is a party or by which any of its assets are bound, except for such defaults (or rights of termination, cancellation or acceleration) as to which requisite waivers or consents have been obtained or (iii) constitute violations of any law, regulation, order, judgment or decree applicable to Buyer, which violations, individually or in the aggregate, would result in a material adverse effect on Buyer or its ability to perform its obligations hereunder.

Section 5.4 Legal Proceedings. There are no pending or, to Buyer’s knowledge, threatened claims, disputes, governmental investigations, suits, actions (including non-judicial real or personal property foreclosure actions), arbitrations, legal, administrative or other proceedings of any nature, domestic or foreign, criminal or civil, at law or in equity, by or against or otherwise affecting Buyer which questions the Transaction Documents to which Buyer is a party or the ability of Buyer to consummate the transactions contemplated thereby.

ARTICLE VI.

CONFIDENTIALITY

Section 6.1. Confidential Information. Subject to the other terms of this ARTICLE VI the Parties shall, and shall cause their Affiliates and their respective stockholders, members, Subsidiaries and Representatives to, hold confidential all information they may have or obtain concerning the Seller and the Buyer and their respective assets, business, operations or prospects or this Agreement (the “Confidential Information”), including all materials and information furnished by Seller in performance of this agreement, regardless of form conveyed or whether financial or technical in nature, including any trade secrets and proprietary know how and software whether such information bears a marking indicating that they are proprietary or confidential or not; provided, however, that Confidential Information shall not include information that (x) is or becomes generally available to the public other than as a result of a disclosure by a Party or any of its Representatives or (y) is or becomes available to a Party or any of its Representatives on a nonconfidential basis prior to its disclosure by the other Party or its Representatives.

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Section 6.2. Restricted Access.

(a) Buyer agrees that the Bloom Systems themselves contain Seller’s valuable trade secrets. Buyer agrees (i) to restrict the use of such information to matters relating to the Bloom Systems, and (ii) to restrict access to such information as provided in Section 6.3 (b).

(b) Confidential Information will not be reproduced without Seller’s prior written consent, and following termination of this Agreement all copies of written information will be returned to Seller upon request (not to be made while materials are still of use to the operation of a Bloom System and no Buyer Default has occurred and is continuing), unless otherwise agreed by the Parties.

(c) The Bloom Systems are offered for sale and are sold by Seller subject to the condition that such sale does not convey any license, expressly or by implication, to manufacture, reverse engineer, duplicate or otherwise copy or reproduce any part of the Bloom Systems, documentation or Software without Seller’s express advance written permission. Buyer agrees not to remove the covering, not to access the interior or to reverse engineer, or give others the opportunity to open, access or reverse engineer any Bloom System or Software provided by Seller or cause or knowingly allow any third party to do so. Only Seller or its authorized representatives can open or access the interior of a Bloom System. Notwithstanding the foregoing, if any Bloom System is no longer covered by the O&M Agreement, Buyer shall be entitled to maintain, or cause a third party to maintain, such Bloom System, including replacing parts or components as needed or desired; provided that Buyer shall use commercially reasonable efforts to engage a third party to provide such maintenance that is not a competitor of Seller or its affiliates and is not in litigation or other material dispute with Seller.

Section 6.3. Permitted Disclosures.

(a) Legally Compelled Disclosure. Confidential Information may be disclosed (i) as required or requested to be disclosed by a Party or any of its Affiliates or their respective stockholders, members, Subsidiaries or Representatives as a result of any applicable Legal Requirement or rule or regulation of any stock exchange, the Financial Industry Regulatory Authority, Inc. or other regulatory authority or self-regulatory authority having jurisdiction over such Party, (ii) as required or requested by the IRS, the Department of Justice or the Office of the Inspector General in connection with a Bloom System, cash grant, or tax credits relating thereto, including in connection with a request for any private letter ruling, any determination letter or any audit, or (iii) as required by the DPL Agreements or PJM Agreements. If a Party becomes compelled by legal or administrative process to disclose any Confidential Information, such Party shall, to the extent permitted by Legal Requirements, provide the other Parties with prompt notice so that the other Parties may seek a protective order or other appropriate remedy or waive compliance with the non-disclosure provisions of this Section 6.3 with respect to the information required to be disclosed. If such protective order or other remedy is not obtained, or such other Parties waive compliance with the non-disclosure provisions of this Section 6.3 with respect to the information required to be disclosed, the first Party shall furnish only that portion of such information that it is advised, by opinion of counsel, is legally required to be furnished and shall exercise reasonable efforts, at the expense of the Party whose Confidential Information is being disclosed, to obtain reliable assurance that confidential treatment will be accorded such

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information, including, in the case of disclosures to the IRS described in clause (ii) above, to obtain reliable assurance that, to the maximum extent permitted by applicable Legal Requirements, such information will not be made available for public inspection pursuant to Section 6110 of the Code.

(b) Disclosure to Representatives. Notwithstanding the foregoing, and subject always to the restrictions in Section 6.2, a Party may disclose Confidential Information received by it to its actual or potential financing parties and its and their employees, consultants, legal counsel or agents who have a need to know such information; provided that such Party informs each such Person who has access to the Confidential Information of the confidential nature of such Confidential Information, the terms of this Agreement, and that such terms apply to them. The Parties shall use commercially reasonable efforts to ensure that each such Person complies with the terms of this Agreement and that any Confidential Information received by such Person is kept confidential.

(c) Other Permitted Disclosures. Nothing herein shall be construed as prohibiting a Party hereunder from using such Confidential Information in connection with (i) any claim against another Party hereunder and (ii) any exercise by a Party hereunder of any of its rights hereunder, (iii) a financing or proposed financing by Seller or Buyer or their Affiliates; (iv) a disposition or proposed disposition by Seller or any Affiliate of Seller of all or a portion of such Person’s direct or indirect equity interest in the Buyer and (v) a disposition or proposed disposition by any direct or indirect Affiliate of Buyer of all or a portion of such Person’s equity interests in the Buyer, provided that, in the case of items (iii), (iv) and (v), the potential purchaser has entered into a confidentiality agreement with respect to Confidential Information on customary terms used in confidentiality agreements in connection with corporate acquisitions before any such information may be disclosed and such confidentiality agreement has been provided to the non-disclosing Party.

Section 6.4. Publicity. Notwithstanding the provisions of this ARTICLE VI, the Parties shall consult with each other and agree in advance in connection with making public announcements regarding the product to be offered as contemplated by the Transaction Documents.

ARTICLE VII.

LICENSE AND OWNERSHIP; SOFTWARE

Section 7.1. IP License. Seller grants to Buyer a limited, non-exclusive, non- transferable license to use Seller’s Intellectual Property in conjunction with the purchase and use of a Bloom System (the “IP License”); provided, that such license may be transferred to Buyer’s Lender or its designee upon transfer of the Portfolio and underlying agreements to such party due to a foreclosure proceeding, deed-in-lieu-of-foreclosure or other similar remedy on account of Buyer’s Lender’s security interest herein and, if transferred to Buyer’s Lender or its designee, such license may be further transferred by such party to any other Person who acquires the Portfolio from Buyer’s Lender or its designee. Seller shall retain all right, title and ownership of any and all Intellectual Property. No right, title or interest in any Intellectual Property of Seller is granted, transferred or otherwise conveyed to Buyer under this Agreement except as otherwise expressly set forth herein. Buyer shall not modify, network, rent, lease, loan, sell, distribute or create derivative works based upon the Intellectual Property in whole or part, or cause or knowingly allow any third party to do so.

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Section 7.2. Grant of Software License.

(a) Seller grants to Buyer a limited, non-exclusive, non-transferable license to use the Software (the “Software License”). Seller shall retain all right, title and ownership of any Software (including all copyrights, patents, trade secrets or other intellectual or intangible property rights of any kind) provided to Buyer. Buyer agrees not to reverse engineer or decompile the Software or otherwise use the Software for any other purpose. Further, Buyer shall not modify, network, rent, lease, loan, sell, distribute or create derivative works based upon the Software in whole or part, or cause or knowingly allow any third party to do so.

(b) All data collected on the Bloom Systems using the Software and data collected on the Bloom Systems using Seller’s internal proprietary software are the sole property of Seller, and Seller hereby grants to Buyer a limited, non-exclusive, license to use the data collected on the Bloom Systems using the Software for internal purposes only provided the provisions of ARTICLE VI on confidentiality are maintained.

Section 7.3. No Software Warranty. Buyer acknowledges and agrees that the use of the Software is at Buyer’s sole risk. The Software and related documentation are provided “AS IS” and without any warranty of any kind and Seller EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

Section 7.4. Covenant. If Seller grants, bargains, sells, conveys, mortgages, assigns, pledges, warrants or transfers any Intellectual Property or Software that is required (a) for Seller or its Affiliate to perform its respective obligations under the Transaction Documents or (b) for the continued operation of the Bloom Systems without a material decrease in performance of the Bloom Systems, Seller shall cause such act or transaction to be subject to the grant of the IP License and Software License under this Agreement.

ARTICLE VIII.

LIMITED WARRANTY

Section 8.1. Portfolio Warranty.

(a) Subject to Section 8.5 below, Seller warrants to Buyer that (i) each Bloom System (other than any Software) will be free from defects in materials and workmanship at the Commencement of Operations of such Bloom System and (ii) that the Portfolio will comply with the Warranty Specifications during the Warranty Period (collectively, the “Portfolio Warranty”).

(b) The Portfolio Warranty is not transferable to any third person, including any person who buys a Bloom System from Buyer, without Seller’s prior written consent (which shall not unreasonably be withheld) other than to Buyer’s Lender or its designee (or any assignee of (or purchaser in foreclosure from) Buyer’s Lender) upon transfer of the Portfolio and underlying agreements to such party due to a foreclosure proceeding on account of Buyer’s

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Lender’s security interest herein and, if transferred to Buyer’s Lender or its designee (or any assignee of (or purchaser in foreclosure from) Buyer’s Lender), such party may freely transfer the Portfolio Warranty.

(c) Any period of time in which the Warranty Specifications are not met shall not extend the Warranty Period.

(d) The Portfolio Warranty shall survive any total or partial termination of this Agreement.

Section 8.2. BOF Warranty.

(a) BOF equipment, including but not limited to transformers, inverters, relays or meters, shall not be covered by the Portfolio Warranty, but instead shall be covered only by the warranty provided for such BOF equipment by its manufacturer (the “BOF Warranty”), which third party manufacturer warranties shall be assigned by Seller to Buyer; provided that if the warranty provided by the manufacturer of such ancillary equipment expires prior to the expiration of the Portfolio Warranty, Seller will provide all labor necessary to repair or replace the ancillary equipment provided by the third party manufacturer as required to meet the warranty specification of such manufacturer and will invoice for such labor services and for the actual cost of any replacement ancillary equipment. Seller covenants to pursue in good faith, and for the benefit of the Buyer, any warranty claim against any third party manufacturer of ancillary equipment relating to any Facility.

(b) In addition to the BOF Warranty, Seller warrants to Buyer through the first anniversary of the Commencement of Operations of the last Bloom System to be ordered and installed in the Facility pursuant to this Agreement that the BOF will not cause the Portfolio to fail to perform in accordance with the Warranty Specifications (the “Section 8.2(b) Warranty”). A claim under the Section 8.2(b) Warranty must be made in writing stating the defect or other basis for the claim. Upon receipt of notice of the claim and verification by Seller that the Section 8.2(b) Warranty is applicable, Seller or its designated subcontractor will promptly repair or replace, at Seller’s sole option and discretion, any portion of the BOF whose repair or replacement is necessary in order for the BOF not to cause the Portfolio to fail to perform in accordance with the Warranty Specifications; provided that the cumulative aggregate amount of Seller’s liability for all claims under this Section 8.2(b) together with the cumulative aggregate amount of Seller’s liability for all claims under Section 8.3(c) shall not exceed [***] percent ([***]) of the aggregate Purchase Price of all Bloom Systems in the Portfolio and the purchase price under the December 30 Bill of Sale (inclusive of any amounts paid or for which a pending claim has been made under the One-Year Power Performance Warranty under the O&M Agreement).

Section 8.3. Portfolio Warranty Claims.

(a) If Buyer desires to make a Portfolio Warranty claim during the Warranty Period, Buyer must notify Seller of the defect or other basis for the claim in writing.

(b) In the case of a claim relating to the Power Performance Warranty for a One-Month Power Performance Period or the Efficiency Warranty, upon receipt of such notice and verification by Seller that such One-Month Power Performance Warranty or Efficiency Warranty

[***] Confidential Treatment Requested

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is applicable, Seller or its designated subcontractor will promptly repair or replace, at Seller’s sole option and discretion, any Bloom System whose repair or replacement is required in order for the Portfolio to perform consistent with the Power Performance Warranty or the Efficiency Warranty, as applicable. Buyer is hereby notified that refurbished parts may be used in repair or replacement, but any such refurbished parts will have passed the same inspections and tests performed by Seller on its new parts of the same type before such refurbished parts are used in any repair. If such repair or replacement is not possible (as determined at Seller’s sole option and discretion), Seller will refund the Purchase Price of any such Bloom System to Buyer, in which case Seller shall be deemed to have taken title to such Bloom System, and such Bloom System shall be deemed to no longer constitute a portion of the Portfolio. Seller shall make such determination as promptly as practicable, but in any event within 90 days of Seller’s receipt of notice of the claim unless the specific nature of the problem requires a longer period in which to make such determination. If it is determined that a Bloom System will be removed pursuant to this Section 8.3, Seller shall at its sole cost and expense remove the Bloom System and any other ancillary equipment (including the concrete pad and any other improvements to the Site to the extent required under the applicable Site Lease) from the Site, restoring the Site to its condition before the installation, including closing all utility connections in the manner required by all Legal Requirements and the applicable Site Lease.

(c) In the case of a claim relating to the Power Performance Warranty for a One-Year Power Performance Warranty Period, upon receipt of such notice and verification that such One-Year Power Performance Warranty is applicable, Seller shall make a payment to Buyer in an amount to be calculated pursuant to Section 8.7; provided that the cumulative aggregate amount of Seller’s liability for all claims under this Section 8.3(c) together with the cumulative aggregate amount of Seller’s liability for all claims under Section 8.2(b) shall not exceed [***] percent ([***]) of the aggregate Purchase Price of all Bloom Systems in the Portfolio during the applicable period and the purchase price under the December 30 Bill of Sale (inclusive of any amounts paid or for which a pending claim has been made under the One-Year Power Performance Warranty under the O&M Agreement).

Section 8.4. Disclaimers. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN ARTICLE IV, THIS ARTICLE VIII AND THE OTHER TRANSACTION DOCUMENTS, THE BLOOM SYSTEMS ARE TRANSFERRED “AS IS, WHERE IS”, AND SELLER EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO LIABILITIES, OPERATIONS OF THE SYSTEMS, VALUE OR QUALITY OF THE BLOOM SYSTEMS OR THE PROSPECTS (FINANCIAL AND OTHERWISE), RISKS AND OTHER INCIDENTS OF THE BLOOM SYSTEMS. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN ARTICLE IV, THIS ARTICLE VIII AND THE OTHER TRANSACTION DOCUMENTS, SELLER SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, USAGE, SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE BLOOM SYSTEMS, OR ANY PART THEREOF. EXCEPT AS PROVIDED IN THE O&M AGREEMENT, NO PERSON IS AUTHORIZED TO MAKE ANY OTHER WARRANTY OR REPRESENTATION CONCERNING THE PERFORMANCE OF THE BLOOM SYSTEMS.

Section 8.5. Exclusions. The Portfolio Warranty shall not cover any obligations on the part of Seller caused by or arising from (a) Buyer’s (as opposed to Seller, Seller’s Affiliate, the Service

[***] Confidential Treatment Requested

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Provider (as defined in the O&M Agreement) or subcontractor acting as operator under the O&M Agreement) failure to properly protect the Bloom Systems from vandalism or other third-party’s actions or omissions, (b) Buyer’s (as opposed to Seller, Seller’s Affiliate, the Service Provider or subcontractor acting as operator under the O&M Agreement) failure to use the specified input fuel; (c) Buyer’s (as opposed to Seller, Seller’s Affiliate, the Service Provider or subcontractor acting as operator under the O&M Agreement) removal of any safety devices, (d) any conditions caused by unforeseeable movement in the environment in which the Bloom Systems are installed, (e) accidents, abuse, neglect, improper third party testing, vandalism, Force Majeure Events or acts of third parties, (f) DPL’s failure to comply with Seller’s gas delivery, quality or pressure requirements, (g) installation, operation, repair or modification of the Bloom Systems by anyone other than Seller or Seller’s authorized agents, or (h) any defect in construction materials or workmanship of the BOF or any deficiency in design of the BOF by Seller, provided that the exclusions in this clause (h) shall not extend to any Portfolio Warranty claim to the extent caused by or arising from (A) any defect in construction materials or workmanship of the BOF or (B) any deficiency in design of the BOF by Seller, in each case during the period while either the Section 8.2(b) Warranty or the O&M Agreement equivalent warranty is in effect. SELLER SHALL HAVE NO OBLIGATION UNDER THE PORTFOLIO WARRANTY AND MAKES NO REPRESENTATION AS TO BLOOM SYSTEMS WHICH HAVE BEEN OPENED OR MODIFIED BY BUYER OR ANYONE OTHER THAN SELLER, SELLER’S AFFILIATE, THE SERVICE PROVIDER OR SUBCONTRACTOR, ACTING AS OPERATOR UNDER THE O&M AGREEMENT, ANY PERSON ACTING AS AN OPERATOR UNDER THE O&M AGREEMENT (OR ANY SUCCESSOR AGREEMENT TO THE O&M AGREEMENT) OR ANY OF SUCH PERSON’S REPRESENTATIVES.

Section 8.6. [Intentionally omitted.]

Section 8.7. Power Performance Warranty. During the Warranty Period, Seller shall determine (i) for each full calendar month (the “One-Month Power Performance Warranty Period”) within five (5) Business Days after the end of such month and (ii) for the most recent Look Back Period (the “One-Year Power Performance Warranty Period” and, together with the One-Month Power Performance Warranty Period, each a “Power Performance Warranty Period”), whether the Bloom Systems in the Portfolio during such Power Perf01:mance Warranty Period have delivered to the Interconnection Point the Minimum kWh during such Power Performance Warranty Period (the “Power Performance Warranty”). If such Power Performance Warranty calculation indicates that the Actual kWh of the Bloom Systems was less than the Minimum kWh during the applicable Power Performance Warranty Period, then Seller shall so notify Buyer in writing of the basis of its determination and Buyer may make a claim under Section 8.3. An example of a Power Performance Warranty calculation for purposes of a Section 8.3 claim is attached as Annex C.

Section 8.8. Efficiency Warranty. During the Warranty Period, Seller shall determine for each full calendar month (the “Efficiency Warranty Period”) within five (5) Business Days after the end of such month whether the Portfolio has performed at the Minimum Efficiency Level (the “Efficiency Warranty”); provided that the Efficiency Bank shall be utilized to the extent necessary to meet the Efficiency Warranty. If the Minimum Efficiency Level has not been met during such Efficiency Warranty Period, then Seller shall so notify Buyer in writing of the basis of its determination and Buyer may make a claim under Section 8.3. An example of an Efficiency Warranty calculation for purposes of a Section 8.3 claim is attached as Annex D.

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Section 8.9. Gas Payment Shortfall. During the Warranty Period, Seller shall perform such services on the Bloom Systems as shall cause the_ Efficiency Bank to maintain a positive balance at all times. If the Efficiency Bank reaches a balance of less than zero during the Warranty Period, Seller shall reimburse Buyer for any Gas Payment Shortfall that Buyer incurs within ten (10) days after Buyer provides notice to Seller of such shortfall amount; provided that Seller’s cumulative aggregate liability under this Section 8.9 shall not exceed an amount equal to (i) one hundred percent (100%) of the aggregate Purchase Price of all Bloom Systems in the Portfolio during the applicable period and the purchase price under the December 30 Bill of Sale (inclusive of any amounts paid or for which a pending claim has been made for a Gas Payment Shortfall under the O&M Agreement), less (ii) the aggregate of all amounts paid by Seller (or claimed against Seller in the case of any claims that are pending at the time of such calculation) with respect to claims under Sections 8.2(b) and 8.3(c) hereunder and Section 2.5(c) of the O&M Agreement. An example of an Gas Payment Shortfall calculation for purposes of a Section 8.9 claim is attached as Annex E.

Section 8.10. No Duplication of Terms. Notwithstanding anything to the contrary in this Agreement, to the extent that the Portfolio Warranty, the Section 8.2(b) Warranty, a Gas Payment Shortfall payment or any other warranty, guarantee or indemnification provision set forth herein is duplicative of any warranty, guarantee or indemnification coverage provided under the O&M Agreement, the Parties acknowledge and agree that Buyer shall be entitled to make only a single claim under either this Agreement or the O&M Agreement, as applicable, and that limitations of liability set forth in each such agreement are to be calculated on an aggregate basis taking into account all claims for indemnification, warranty or otherwise (if any) made under this Agreement and the O&M Agreement.

ARTICLE IX.

EVENTS OF DEFAULT

Section 9.1. Seller Default. The occurrence at any time of any of the following events shall constitute a “Seller Default”:

(a) Failure to Pay. The failure of Seller to pay any amounts owing to Buyer on or before the day following the date on which such amounts are due and payable under the terms of this Agreement and Seller’s failure to cure each such failure within ten (10) days after Seller receives written notice from Buyer of each such failure;

(b) Failure to Perform Other Obligations. Unless due to a Force Majeure Event, the failure of Seller to perform or cause to be performed any other obligation required to be performed by Seller under this Agreement, or the failure of any representation and warranty set forth herein to be true and correct as and when made; provided, however, that if such failure by its nature can be cured, then Seller shall have a period of thirty (30) days after receipt of written notice of such failure to cure the same and a Seller Default shall not be deemed to exist during such period; provided, further, that if Seller commences to cure such failure during such period and is diligently and in good faith attempting to effect such cure, said period shall be extended for sixty (60) additional days;

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(c) Failure to Remedy Injunction. The failure of Seller to remedy any injunction that prohibits Buyer’s use of any Bloom System as contemplated by Section 10.1 within sixty (60) days of Seller’s receipt of written notice of Buyer being enjoined therefrom; or

(d) Bankruptcy. If Seller (i) admits in writing its inability to pay its debts generally as they become due; (ii) files a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other applicable law or statute of the United States of America or any State, district or territory thereof; (iii) makes an assignment for the benefit of creditors; (iv) consents to the appointment of a receiver of the whole or any substantial part of its assets; (v) has a petition in bankruptcy filed against it, and such petition is not dismissed within sixty (60) days after the filing thereof; or if (vi) a court of competent jurisdiction enters an order, judgment, or decree appointing a receiver of the whole or any substantial part of Seller’s assets, and such order, judgment or decree is not vacated or set aside or stayed within sixty (60) days from the date of entry thereof; or (vii) under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the whole or any substantial part of Seller’s assets and such custody or control is not terminated or stayed within sixty (60) days from the date of assumption of such custody or control.

Section 9.2. Buyer Default. The occurrence at any time of the following events with respect to Buyer shall constitute a “Buyer Default”:

(a) Failure to Pay. The failure of Buyer to pay any amounts owing to Seller on or before the day following the date on which such amounts are due and payable under the terms of this Agreement and Buyer’s failure to cure each such failure within ten (10) days after Buyer receives written notice of each such failure, except if such failure to pay is due to loan proceeds under the Credit Documents not being made available to Buyer because of action or inaction of Seller or any Affiliate; or

(b) Failure to Perform Obligations. Unless due to a Force Majeure Event, the failure of Buyer to perform or cause to be performed any obligation required to be performed by Buyer under this Agreement or the failure of any representation and warranty set forth herein to be true and correct as and when made; provided, however, that if such failure by its nature can be cured, then Buyer shall have a period of thirty (30) business days after receipt of written notice of such failure to cure the same and a Buyer Default shall not be deemed to exist during such period; provided, further, that if Buyer commences to cure such failure during such period and is diligently and in good faith attempting to effect such cure, said period shall be extended for sixty (60) additional days.

Section 9.3. Buyer’s Remedies Upon Occurrence of a Seller Default. If a Seller Default has occurred under Section 9.1(d), Buyer may terminate this Agreement by written notice, and assert all rights and remedies available to Buyer under Legal Requirements subject to the limitations of liability set forth in Section 10.5. If a Seller Default has occurred under Section 9.1(a), Section 9.1(b) or Section 9.1(c), Buyer may terminate this Agreement only with respect to those Bloom Systems for which such Seller Default has occurred by written notice,

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and assert all rights and remedies available to Buyer under Legal Requirements (other than the termination or suspension of this Agreement in its entirety) subject to the limitations of liability set forth in Section 10.5.

Section 9.4. Seller’s Remedies Upon Occurrence of a Buyer Default. If a Buyer Default has occurred Seller may terminate this Agreement only with respect to those Bloom Systems for which a Buyer Default has occurred; provided that if (a) such Buyer Default is a Buyer Default under Section 9.2(a) and has occurred and remains uncured with respect to ten (10) or more Bloom Systems and (b) the Class B Members (as defined in the Company LLC Agreement) have defaulted in making capital contributions under the Company LLC Agreement and such default remains uncured, then Seller may terminate this Agreement with respect to all Bloom Systems not yet paid in full by Buyer by written notice, and assert all rights and remedies available to Seller under Legal Requirements with respect to those Bloom Systems for which a Buyer Default has occurred, subject to the limitations of liability set forth in Section 10.5, including without limitation retaining any prior payments with respect to such Bloom Systems and selling such Bloom Systems to another buyer.

Section 9.5. Force Majeure. If either Party is rendered wholly or partially unable to perform any of its obligations under this Agreement by reason of a Force Majeure Event, that Party (the “Claiming Party”) will be excused from whatever performance is affected by the Force Majeure Event to the extent so affected; provided, however, that (a) the Claiming Party, within a reasonable time after the occurrence of such Force Majeure Event gives the other Party notice describing the particulars of the occurrence; (b) the suspension of performance shall be of no greater scope and of no longer duration than is reasonably required by the Force Majeure Event; (c) no liability of either Party for an event that arose before the occurrence of the Force Majeure Event shall be excused as a result of the Force Majeure Event; (d) the Claiming Party shall exercise commercially reasonable efforts to correct or cure the event or condition excusing performance and resume performance of all its obligations; and (e) when the Claiming Party is able to resume performance of its obligations under this Agreement, the Claiming Party shall promptly give the other Party notice to that effect and shall promptly resume performance.

ARTICLE X.

INDEMNIFICATION

Section 10.1. IP Indemnity.

(a) Except as expressly limited below, Seller agrees to indemnify, defend and hold Buyer harmless from any and all third party claims resulting from any alleged infringement of patents, copyrights or other third party intellectual property rights, or from the misuse of third party trade secrets by Bloom Systems purchased by Buyer from Seller. Buyer shall give Seller prompt notice of any such claims. Buyer shall give Seller control of the defense of such claim and Buyer authorizes Seller to settle or defend such claims in its sole discretion on Buyer’s behalf, subject to the proviso of the following sentence. Buyer shall assist Seller in defending any such claim (at Seller’s reasonable expense) upon request by Seller. Should Buyer be enjoined from selling or using the Bloom System as a result of such claim, Seller will, at its sole option and discretion, either (i) procure or otherwise obtain for Buyer the right to use or sell the Bloom System; (ii) modify the Bloom System so that it becomes non-infringing but still

33

substantially meets the original functional specifications of the Bloom System (in which event, for the avoidance of doubt, all warranties hereunder shall continue to apply unmodified); (iii) upon return of the Bloom System to Seller, as directed by Seller, provide to Buyer a non-infringing Bloom System meeting the functional specifications of the Bloom System, or (iv) when and if none of the first three options is reasonably available to Seller, authorize the return of the Bloom System to Seller and, upon receipt thereof, return to Buyer all monies paid by Buyer to Seller for the cost of the Bloom System itself, net of any monies paid by Seller to Buyer for any performance guaranties or other warranty claims; provided that Seller shall not elect the option in the preceding clause (i) without the Buyer’s written consent if such election is reasonably expected to materially decrease Buyer’s revenues or materially increase Buyer’s operating expenses.

(b) THIS INDEMNITY SHALL NOT COVER ANY CLAIM:

(i) for patent infringement based upon any combination made by Buyer of any Bloom System with any other product or products or modifications made by Buyer to any part of the Bloom System, unless such combination or modification is in accordance with Seller’s specifications for the Bloom System, or unless the combination or modification is made by or on behalf of or at the written request of Seller; or

(ii) for infringement of any proprietary rights arising in whole or in part from changes; combinations or modifications made to the Bloom System by Buyer or from any aspect of the Bloom System which was designed by or requested by Buyer on a custom basis.

Section 10.2. Indemnification of Seller by Buyer. Buyer shall indemnify, defend and hold harmless Seller, its officers, directors, employees, shareholders, Affiliates and agents (each, a “Seller Indemnitee”) from and against any and all Indemnifiable Losses asserted against or suffered by any Seller Indemnitee arising out of a claim by a third party (other than a claim for Seller Indemnitee’s breach of contract) and in any way relating to, resulting from or arising out of or in connection with any Third Party Claims against a Seller Indemnitee to the extent arising out of or in connection with (a) the negligent or intentional acts or omissions of Buyer or its subcontractors, agents or employees or others under Buyer’s control (excluding any Seller Affiliate) or (b) operation of Bloom Systems by any party other than Seller or an Affiliate or subcontractor of Seller after such Bloom Systems have been purchased by Buyer pursuant to this Agreement (but subject to Seller’s warranties, covenants and indemnities under this Agreement and any other Transaction Document to which Seller is a party); provided that Buyer shall have no obligation to indemnify Seller for any negligence, fraud or willful misconduct of any Seller Indemnitee or the breach by Seller or any Seller Indemnitee of its covenants and warranties under this Agreement or any other Transaction Document.

Section 10.3. Indemnification of Buyer by Seller. Seller shall indemnify, defend and hold harmless Buyer, its members, managers, officers, directors, employees, Affiliates and agents (each, a “Buyer Indemnitee”) from and against any and all Indemnifiable Losses asserted against or suffered by any Buyer Indemnitee arising out of a claim by a third party (other than a claim for Buyer Indemnitee’s breach of contract) and in any way relating to, resulting from or arising out of or in connection with any Third Party Claims against a Buyer Indemnitee to the

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extent arising out of or in connection with the negligent or intentional acts or omissions of Seller or its subcontractors, agents or employees or others under Seller’s control (other than matters addressed separately in Section 10.1, which shall be governed by the terms thereof); provided that, Seller shall have no obligation to indemnify Buyer for any negligence, fraud or willful misconduct of a Buyer Indemnitee, the breach by Buyer of its covenants and warranties under this Agreement or the inability to utilize any tax benefits (for the avoidance of doubt, the Grant is not considered a tax benefit).

Section 10.4. Indemnity Claims Procedure. Except as otherwise provided in Section 10.1, if any indemnifiable claim is brought against a Party (the “Indemnified Party”), then the other Party (the “Indemnifying Party”) shall be entitled to participate in, and, unless in the opinion of counsel for the Indemnifying Party a conflict of interest between the Parties may exist with respect to such claim, assume the defense of such claim, with counsel reasonably acceptable to the Indemnifying Party. If the Indemnifying Party does not assume the defense of the Indemnified Party, or if a conflict precludes the Indemnifying Party from assuming the defense, then the Indemnifying Party shall reimburse the Indemnified Party on a monthly basis for the Indemnified Party’s defense through separate counsel of the Indemnified Party’s choice. Even if the Indemnifying Party assumes the defense of the Indemnified Party with acceptable counsel, the Indemnifying Party, at its sole option, may participate in the defense, at its own expense, with counsel of its own choice without relieving the Indemnifying Party of any of its obligations hereunder.

Section 10.5. Limitation of Liability.

(a) Notwithstanding anything to the contrary in this Agreement, in no event shall a Party be liable to the other Party for an amount in excess of the Maximum Liability unless and to the extent such liability is the result of (i) (A) fraud or willful misconduct of a Party, (B) a Third Party Claim or (C) a claim of Seller against Buyer for the Buyer’s failure to pay the Purchase Price for any Bloom System (which amount shall not be included in calculating Buyer’s Maximum Liability), (ii) a claim against Seller under Section 10.1, which shall be included in calculating Seller’s Maximum Liability, and for which Seller shall not have liability in excess of twice the Maximum Liability, calculated when taken together with all other liabilities that are subject to the Maximum Liability cap, (iii) a claim against Seller in the event of any breach, default or misrepresentation of any representation and warranty or covenant set forth in Section 4.2(d) or Section 4.3 or (iv) a claim against Seller under Section 8.9. Subject always to the Maximum Liability limitations set forth in the preceding sentence, except for damages specifically provided for in this Agreement or in connection with the indemnification for damages awarded to a third party under a Third Party Claim, damages hereunder are limited to direct damages, and in no event shall a Party be liable to the other Party, and the Parties hereby waive claims, for (x) indirect, punitive, special or consequential damages or loss of profits; provided, however, that the loss of profits language set forth in this Section 10.5(a) shall not be interpreted to exclude from Indemnifiable Losses any claim, demand, suit, loss, liability, damage, obligation, payment, cost or expense (including the cost and expense of any action, suit, proceeding, assessment, judgment, settlement or compromise relating thereto and reasonable attorneys’ fees and reasonable disbursements in connection therewith) that would otherwise be included in the definition of Indemnifiable Losses because they result from a reduction in the profits of Buyer, Diamond State Generation Holdings, LLC, or both, and (y) losses or liabilities incurred by the officers, directors, members, managers, partners, shareholders or Affiliates of such Party (unless on behalf of Buyer).

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(b) Each Party hereby waives any claim under this ARTICLE X irrespective of the legal theory under which it is brought to the extent such claim is covered by the insurance of the claiming Party.

Section 10.6. No Duplication of Claims. Notwithstanding anything to the contrary in this Agreement, the Parties acknowledge and agree that no claiming or indemnified party shall be entitled to a double recovery under the indemnification provisions of this ARTICLE X and the indemnification provisions of the O&M Agreement, and the limitations of liability set forth in this Agreement and the O&M Agreement are to be calculated on an aggregate basis taking into account all claims (if any) made under this Agreement and the O&M Agreement.

Section 10.7. Survival. The Parties’ respective rights and obligations under this ARTICLE X shall survive any total or partial termination of this Agreement.

ARTICLE XI.

MISCELLANEOUS PROVISIONS

Section 11.1. Amendment and Modification. This Agreement may be amended, modified or supplemented only by written agreement of Buyer and Seller.

Section 11.2. Intentionally Deleted.

Section 11.3. Waiver of Compliance; Consents. Except as otherwise provided in this Agreement, any failure of any of the Parties to comply with any obligation, covenant, agreement or condition herein may be waived by the Party entitled to the benefits thereof only by a written instrument signed by the Party granting such waiver, but any such waiver of such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent failure to comply therewith.

Section 11.4. Notices. All notices and other communications hereunder shall be in writing and shall be deemed given when received if delivered personally or by facsimile transmission with completed transmission acknowledgment, or when delivered or when delivery is refused if mailed by overnight delivery via a nationally recognized courier or registered or certified first class mail (return receipt requested), postage prepaid, to the recipient Party at its below address (or at such other address or facsimile number for a Party as shall be specified by like notice; provided, however, that notices of a change of address shall be effective only upon receipt thereof):

To Seller:	Bloom Energy Corporation
	1299 Orleans Drive
	Sunnyvale, CA 94089-1137
	Attention: [***]
	Telephone: [***]
	Fax: [***]
	Email: [***]

[***] Confidential Treatment Requested

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To Buyer:	Diamond State Generation Partners, LLC
	c/o Bloom Energy Corporation
	1299 Orleans Drive
	Sunnyvale, CA 94089-1137
	Attention: [***] Telephone: [***]
	Fax: [***]
	Email: [***]

Section 11.5. Assignment; Subcontractors. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns (including by operation of law), but neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any Party, whether by operation of law or otherwise, without the prior written consent of the other Party, provided that either Party may collaterally assign its rights under this Agreement to any party providing debt or equity financing to it without the consent of the other Party. Notwithstanding the foregoing sentence, (a) Seller shall be entitled to assign its right, title and interest in and to this Agreement to an Affiliate under common ownership with Seller and (b) Seller shall be entitled to subcontract any of its obligations under this Agreement, provided that such assignment or subcontracting shall not excuse Seller from the obligation to competently perform any subcontracted obligations or to remain qualified as a QFCP.

Section 11.6. Dispute Resolution; Governing Law. In the event a dispute, controversy or claim arises hereunder, including any claim whether in contract, tort (including negligence), strict product liability or otherwise, the aggrieved Party will promptly provide written notification of the dispute to the other Party within ten (10) days after such dispute arises. Thereafter, a meeting shall be held promptly between the Parties, attended by representatives of the Parties with decision-making authority regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute. If the Parties are not successful in resolving a dispute within 21 days, then, subject to the limitations on remedies set forth in Section 9.3 and Section 9.4 and ARTICLE X, either Party may pursue whatever rights it has available under this Agreement, at law or in equity.

Section 11.7. Governing Law, Jurisdiction, Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN NEW YORK COUNTY, NEW YORK WITH RESPECT TO ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING TO A DISPUTE AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO.

Section 11.8. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signatures delivered by facsimile (or portable document format) will be considered original signatures, and each Party shall thereafter promptly deliver original signatures to the other Party.

[***] Confidential Treatment Requested

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Section 11.9. Interpretation. The articles, section and schedule headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the Parties and shall not in any way affect the meaning or interpretation of this Agreement.

Section 11.10. Entire Agreement. (a) The Transaction Documents and the exhibits, schedules, documents, certificates and instruments referred to therein, embody the entire agreement and understanding of the Parties in respect of the transactions contemplated by this Agreement.

(b) Each Party acknowledges that, in agreeing to enter into this Agreement, it has not relied on any representation, warranty, collateral contract or other assurance (except those repeated in this Agreement and any other agreement entered into on the date of this Agreement between the Parties) made by or on behalf of any other Party at any time before the signature of this Agreement. Each Party waives all rights and remedies which, but for this clause (b), might otherwise be available to it in respect of any such representation, warranty, collateral contract or other assurance.

Section 11.11. Construction of Agreement. The terms and provisions of this Agreement represent the results of negotiations between Buyer and Seller, each of which has been represented by counsel of its own choosing, and neither of which has acted under duress or compulsion, whether legal, economic or otherwise. Accordingly, the terms and provisions of this Agreement shall be interpreted and construed in accordance with their usual and customary meanings, and Buyer and Seller hereby waive the application in connection with the interpretation and construction of this Agreement of any rule of law to the effect that ambiguous or conflicting terms or provisions contained in this Agreement shall be interpreted or construed against the Party whose attorney prepared the executed draft or any earlier draft of this Agreement.

Section 11.12. Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party.

Section 11.13. Attorneys’ Fees. If any action or proceeding to enforce this Agreement or any provision hereof is brought by any Party, the prevailing party shall be entitled to recover from the non-prevailing Party its attorneys’ fees and its costs and expenses of suit, including actual attorneys’ and consultants’ fees. In the event that any Party hereto secures a judgment in any proceeding brought to enforce or interpret this Agreement, then any cost of expense incurred in enforcing or in successfully appealing from such judgment, including actual attorneys’ fees shall be paid by the Party against whom such judgment has been rendered or against whom an appeal is won, and shall be recoverable separately from and in addition to any other amount included in such judgment.

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Section 11.14. Further Assurances. Each Party agrees to execute and deliver such additional documents and instruments and to perform such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions, and conditions of this Agreement and the transactions contemplated by this Agreement.

Section 11.15. Independent Contractors. The Parties acknowledge that, save as expressly set out in this Agreement to the contrary, each Party is entering into this Agreement as an independent contractor and nothing in this Agreement shall be interpreted or applied so as to make the relationship of any of the Parties that of partners, joint ventures or anything other than independent contractors.

Section 11.16. Limitation on Export. Buyer agrees that it will not export, re-export, resell, ship or divert directly or indirectly any Bloom System in any form or technical data or Software furnished hereunder to any country prohibited by the United States government or any Government Authority, or for which an export license or other governmental approval is required, without first obtaining such license or approval.

Section 11.17. Time of Essence. Time is of the essence with respect to all matters contained in this Agreement.

Section 11.18. Right of Offset. Buyer at its sole option is hereby authorized to set off any amounts owed Buyer under the O&M Agreement or this Agreement, as applicable, against any amounts owed by Buyer to Seller under the O&M Agreement or this Agreement. The rights provided by this paragraph are in addition to and not in limitation of any other right or remedy (including any right to set-off, counterclaim, or otherwise withhold payment) to which Buyer may be entitled (whether by operation of law, contract or otherwise).

Section 11.19. No Rights in Third Parties. Except as otherwise specified herein, (a) nothing in this Agreement nor any action taken hereunder shall be construed to create any duty, liability or standard of care to any Person that is not a Party, (b) no person that is not a Party shall have any rights or interest, direct or indirect, in this Agreement or the services to be provided hereunder and (c) this Agreement is intended solely for the benefit of the Parties, and the Parties expressly disclaim any intent to create any rights in any third party as a third-party beneficiary to this Agreement or the services to be provided hereunder.

[Remainder of page intentionally left blank]

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IN WITNESS WHEREOF, Buyer and Seller have this Master Energy Server Purchase Agreement to be signed by their respective duly authorized officers as of the Agreement Date.

BUYER
DIAMOND STATE GENERATION PARTNERS, LLC a Delaware limited liability company
By:	/s/ William Brockenborough
Name:	William Brockenborough
Title:	Vice President

[Signature Page to Master Energy Server Purchase Agreement]

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SELLER
BLOOM ENERGY CORPORATION a Delaware corporation
By:	/s/ Martin Collins
Name:	Martin Collins
Title:

[Signature Page to Master Energy Server Purchase Agreement]

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Annex A

Minimum Power Product Example Calculation

1

MESPA

Annex A

Sample One-Month Minimum Power Product Example Calculation

	2014
Assumptions
Number of active Systems		150
Nameplate capacity		200 kW
One-Month Power Performance Warranty		85	%
Minimum Power Product Analysis
Minimum Power Product		25,500 kW

2

MESPA

AnnexA

Sample One-Year Minimum Power Product Example Calculation

	2014
Assumptions
Number of active Systems		150
Nameplate capacity		200 kW
One-Month Power Performance Warranty		95	%
One-Year Minimum Power Product Analysis
Minimum Power Product		28,500 kW

3

Annex B

Insurance

Without limiting the foregoing, Seller shall, without cost to Buyer, maintain in effect at all times the types of insurance required by the following provisions together with any other types of insurance required hereunder, with insurance companies rated A- X or better, by Best’s Insurance Guide and Key Ratings (or an equivalent rating by another nationally recognized insurance rating agency of similar standing if Best’s Insurance Guide and Key Ratings shall no longer be published) or other insurance companies of recognized responsibility satisfactory to Buyer, the following insurance coverages in form and amount acceptable to Buyer:

Commercial General Liability Insurance. Commercial General Liability insurance covering Seller and its operations, written on “occurrence” policy forms, including coverage for premises/operations, products/completed operations, broad form property damage, blanket contractual liability, and personal injury, with no exclusions for explosion, collapse and underground perils, or fire, with primary coverage limits of no less than One Million Dollars ($1,000,000) for injuries or death to one or more persons or damage to property resulting from any one occurrence, and a products and completed operations liability aggregate limit of not less than Two Million Dollars ($2,000,000). The commercial general liability policy shall also include a severability of interest clause with no exclusions or limitations on cross liability.

Automobile Liability Insurance. Automobile liability insurance including coverage for owned, leased, non-owned and hired automobiles for both bodily injury and property damage in accordance with statutory legal requirements, with combined single limits of no less than One Million Dollars ($1,000,000) per accident with respect to bodily injury, property damage or death.

Workers’ Compensation Insurance. Workers’ compensation insurance in accordance with statutory requirements, including coverage for employer’s liability with a limit of not less than One Million Dollars ($1,000,000) and such other forms of insurance which Seller is required by Law to provide for loss resulting from injury, sickness, disability or death of each of their employees.

Umbrella / Excess Liability. Umbrella or excess liability insurance of not less than Fifteen Million Dollars ($15,000,000) per occurrence and in the aggregate. Such coverage shall written on “occurrence” policy forms and provide excess cover over the insurance required above.

Errors & Omissions. E&O insurance of not less than One Million Dollars ($1,000,000) per occurrence and in the aggregate. Such coverage shall written on an “occurrence” or “claims made” policy form.

Installation or Builders All Risk. In the event that Seller takes risk of loss during the installation or construction process, builders risk insurance or installation floater on an all risk policy form including testing and commissioning plus resulting or ensuing damage arising out of design error or faulty workmanship, the perils of flood, earthquake, windstorm (named windstorm exclusion permitted), hail, lightning, strike, terrorism, riot and civil commotion, vandalism and malicious mischief, subject to terms, deductibles and sublimits that are consistent with exposure and current industry practice.

1

All-Risk Property Insurance. “All-Risk” property or marine all risk floater policy form, as such term is used in the insurance industry, including coverage for the perils of flood, earthquake, named windstorm, hail, lightning, strike, terrorism, riot and civil commotion, vandalism and malicious mischief, subject to terms that are consistent with current industry practice. Such policy shall insure all real and personal property of Seller whether at a fixed (including non-owned location for off-Site repair or refurbishment), off-Site storage or a warehouse location or while in the course of inland or ocean transit (as the case may be), for an amount of not less than the greater of $10,000,000 or the full replacement cost value of such property and equipment at risk at each location, unless otherwise agreed by Buyer.

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

(i) Off-Site property, to the extent exposure exist, in an amount not less than the full replacement cost values property at risk;

(ii) Inland transit, to the extent exposure exist, One Million Eight Hundred Ninety-One Thousand Dollars ($1,891,000) maximum but in no event less than an amount to satisfy the full replacement cost values of any shipment;

(iii) Earthquake, aggregated limit as commercially available but in no event less than $2,500,000;

(iv) Flood, aggregated limit as commercially available but in no event less than $2,500,000

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

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

All such policies may have per occurrence deductibles of not greater than One Hundred Thousand Dollars ($100,000) for all perils except five percent (5%) of TIV for Earthquake and Flood unless otherwise approved by Buyer.

Additional Insurance. To the extent that exposure changes and additional insurance (as to risks covered, policy amounts, policy provisions or otherwise) as are from time to time insured against for property and facilities similar in nature are available, such insurance as Buyer may reasonably require. To the extent that a Material Contract (as defined in the ECCA) requires Seller to maintain additional insurance coverage, higher limits or any other insurance requirement because of Seller’s undertakings pursuant to this Agreement (“Required Insurance”), Seller shall obtain and maintain the Required Insurance for as long as required under such Material Contract.

2

TERMS

Policies issued pursuant hereto shall contain the following or equivalent wording unless Seller demonstrates, and Buyer agrees, that such wording is not available on commercially reasonable terms (in which case alternative wording, if any, shall be subject to the agreement of Buyer).

No Coinsurance or Self-insurance/Replacement Cost. All property / marine type insurance shall be on a “no coinsurance or self-insurance/replacement cost” basis.

Additional Insured. All policies wherein Buyer has an insurable interest shall insure the interests of Buyer and all policies, other than Workers Compensation and Property, shall name (by endorsement if not so designated on the original policy wording) Buyer as additional insured, unless Buyer is named as an insured under the policy.

Waiver of Subrogation and Cancellation. To the extent not provided in the additional insured status, each policy shall waive subrogation against Buyer. Each such policy shall provide that if any premium or installment is not paid when due, or if such insurance is to be canceled, terminated or adversely materially changed for any reason whatsoever, the insurers (or their representatives) will promptly notify Buyer, and any such cancellation, termination or change shall not be effective until thirty (30) days, (ten (10) days with regard to nonpayment), after receipt of such notice by Buyer, other than in respect of policies covering war and kindred risks.

Annual Insurance Certificate. Each year the insurance program renews, a certificate signed by a duly authorized representative of Seller or its insurance broker/agent, showing the insurance pursuant to this Schedule and stating that such insurance complies in all material aspects with the terms hereof, together with evidence of payment of the premiums thereon, shall be provided to Buyer.

4

Annex C

Power Performance Warranty Claim Example Calculation

1

MESPA

Annex C

Sample One-Month Power Performance Warranty Claim Example Calculation

	2014
Assumptions
Number of active Systems		150
Nameplate capacity		200
Hours in the year		8760
Look back period		30 days
One-Month Power Performance Warranty analysis
One-Month Power Performance Warranty		85	%
Actual system output		80	%
Minimum kWh		18,360,000
Actual kWh		17,280,000
Underperformance (kWh)		1,080,000

2

MESPA

Annex C

Sample One-Year Power Performance Warranty Claim Example Calculation

	2015
Assumptions
Number of active Systems		150
Nameplate capacity		200
Hours in the year		8760
Look back period		365 days
Project COE – Applicable QFCP-RC Tarrif disburse $		[***]
One-Year Power Performance Warranty analysis
One-Year Power Performance Warranty		95	%
Actual system output		80	%
Minimum kWh		18,360,000
Actual kWh		17,280,000
Underperformance (kWh)		1,080,000
Power Performance Warranty Payment	$	[***]

[***] Confidential Treatment Requested

3

Annex D

Efficiency Warranty Claim Example Calculation

1

MESPA

Annex D

Sample One-Month Efficiency Warranty Claim Example Calculation

	2014
Assumptions
Number of active Systems		150
Nameplate capacity		200
Hours in the year		8760
Look back period		30 days
BTUs/kWh		3,412
LHV to HHV conversion		1.107
Actual power performance		96	%
One-Month Efficiency analysis
One-Month Efficiency Warranty		50	%
Actual system output		48	%
Maximum MMbtu		156,643
Actual MMbtu		163,170
MMbtu to be drawn from Efficiency Bank		(6,527	)
MMbtu to be deposited into Efficiency Bank		—
Underperformance (kWh)		1,080,000
Efficiency Bank beginning balan		104,429
Change		(6,527	)
Efficiency Bank ending balance		[***]

[***] Confidential Treatment Requested

2

Annex E

Sample Gas Payment Shortfall Claim Example Calculation

1

MESPA

Annex E

Sample Gas Payment Shortfall Claim Example Calculation

	2015
Assumptions
Number of active Systems		150
Nameplate capacity		200
Hours in the year		8760
Look back period		30 Days
BTUs/kWh		3,412
LHV to H HV conversion		1.107
Actual power performance		96	%
Cost of gas - Price charged under Gas Tariff for relevant pe $		[***] /MMbtu
Gas Shortfall analysis
One-Month Efficiency Warranty		50	%
Actual system efficiency		40	%
Maximum MMbtu		156,643
Actual MMbtu		195,804
MMbtu to be drawn from Efficiency Bank		(39,161	)
MMbtu to be deposited into Efficiency Bank		—
Efficiency Bank beginning balance		30,000
Change		(39, 161	)
Efficiency Bank shortfall		(9,161	)
Gas Shortfall payment	$	[***]

[***] Confidential Treatment Requested

2

Exhibit A

Form of Purchase Order

1

2

Exhibit B

Form of Bill of Sale

1

BILL OF SALE

This BILL OF SALE, dated as of is made by BLOOM ENERGY CORPORATION, a Delaware corporation (“Seller”), to DIAMOND STATE GENERATION PARTNERS, LLC, a Delaware limited liability company (“Buyer”), and is delivered pursuant to the Master Energy Server Purchase Agreement, dated as of             , 2012 (the “MESP Agreement”), between Seller and Buyer, in connection with the transfer of the assets described on Exhibit A attached hereto (the “Purchased System”).

Seller hereby assigns, conveys, sells, delivers, sets over and transfers to Buyer, for the consideration, and on the terms and conditions, set forth in the MESP Agreement, all of Seller’s rights, title and interest in, under and to the Purchased System, and Buyer hereby accepts such assignment and agrees, in accordance with the MESP Agreement, to assume all liabilities and obligations with respect thereto. This Bill of Sale shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.

This Bill of Sale shall be governed by, and construed in accordance with, the laws of the State of New York.

[Signature Page Follows]

2

In Witness Whereof, the parties hereto have caused this Bill of Sale to be signed by their respective duly authorized officers as of the date first written above.

SELLER:

BLOOM ENERGY CORPORATION

By:    

Name:

Title:

BUYER:

DIAMOND STATE GENERATION PARTNERS, LLC

By:    

Name:

Title:

3

EXHIBIT A

Purchased System

Original Purchase Order Number: [ xxx]

[ #] Systems, [Product Number]

Delivered to:

Serial Number(s):

Nameplate Capacity:                      kW

State (place) of origin:                     

4

Exhibit C

Efficiency Bank Operation Example Calculation

1

MESPA

Exhibit C

Efficiency Bank Operation Example Calculation

	2014
Assumptions
Number of active Systems		150
Nameplate capacity		200
Hours in the year		8760
Look back period		30 Days
BTUs/kWh		3,412
LHV to H HV conversion		1.107
Actual power performance		96	%
Gas Shortfall analysis
One-Month Efficiency Warranty		50	%
Actual system efficiency		56	%
Maximum MMbtu		156,643
Actual MMbtu		139,860
MMbtu to be drawn from Efficiency Bank
MMbtu to be deposited into Efficiency Bank		16,783
Efficiency Bank beginning balance		104,429
Change		16,783
Efficiency Bank ending balance		[***]

[***] Confidential Treatment Requested

2

EX-10

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

Exhibit 10.19

Execution Version

2014 ESA HOLDCO, LLC

a Delaware Limited Liability Company

AMENDED AND RESTATED OPERATING AGREEMENT

Dated as of September 24, 2014

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

2014 ESA HOLDCO, LLC

AMENDED AND RESTATED OPERATING AGREEMENT

TABLE OF CONTENTS

		Page
ARTICLE I DEFINITIONS			1
1.1.	Certain Definitions		1
1.2.	Other Definitional Provisions		13
ARTICLE II THE COMPANY			14
2.1.	Continuation of Limited Liability Company		14
2.2.	Name		14
2.3.	Principal Office		14
2.4.	Registered Office; Registered Agent		14
2.5.	Purposes		14
2.6.	Term		15
2.7.	Title to Property		15
2.8.	Units; Certificates of Membership Interest; Applicability of Article 8 of UCC		15
ARTICLE III CAPITAL CONTRIBUTIONS AND PAYMENTS			15
3.1.	Class A Interests; Capital Contributions of the Class A Member		15
3.2.	Class B Interests; Capital Contributions of the Class B Member		15
3.3.	No Other Required Capital Contributions		16
3.4.	No Right to Return of Capital Contributions		16
ARTICLE IV CAPITAL ACCOUNTS; ALLOCATIONS			16
4.1.	Capital Accounts		16
4.2.	Profits and Losses		17
4.3.	Special Allocations		17
4.4.	Curative Allocations		19
4.5.	Income Tax Allocations		20
4.6.	Other Allocation Rules		20
ARTICLE V DISTRIBUTIONS			21
5.1.	Distributions of Available Cash Flow		21
5.2.	Limitation		21
5.3.	Withholding		22
5.4.	Satisfaction of Certain Obligations Under Article XI		22
ARTICLE VI MANAGEMENT			25
6.1.	Managing Member		25
6.2.	Standard of Care; Required Consents		25
6.3.	Removal of Managing Member		29

1

6.4.	Indemnification and Exculpation	30
6.5.	Company Reimbursement	30
6.6.	Additional Covenants	30
ARTICLE VII RIGHTS AND RESPONSIBILITIES OF MEMBERS		30
7.1.	General	30
7.2.	Member Voting Rights	30
7.3.	Member Liability	31
7.4.	Withdrawal	31
7.5.	Member Compensation	31
7.6.	Other Ventures	31
7.7.	Confidential Information	31
7.8.	ERISA Matters	34
ARTICLE VIII ADMINISTRATIVE AND TAX MATTERS		35
8.1.	Intent for Income Tax Purposes	35
8.2.	Books and Records	35
8.3.	Information and Access Rights	36
8.4.	Reports	36
8.5.	Permitted Investments	37
8.6.	Tax Elections	38
8.7.	Tax Matters Member and Company Tax Filings	38
8.8.	Financial Accounting	40
8.9.	Legend	41
8.10.	Representations, Warranties and Covenants of the Class B Member	41
8.11.	Representations, Warranties and Covenants of the Class A Member	42
8.12.	Survival	43
8.13.	No Breach of Obligations	43
ARTICLE IX TRANSFERS OF INTERESTS; PURCHASE OPTION		44
9.1.	Transfer and Encumbrances of Membership Interests	44
9.2.	Buyout Option	48
ARTICLE X DISSOLUTION, LIQUIDATION AND TERMINATION		49
10.1.	Dissolution	49
10.2.	Liquidation and Termination	50
10.3.	Deficit Capital Accounts	51
10.4.	Termination	52
ARTICLE XI INDEMNIFICATION		52
11.1.	Indemnification of Class A Investor Group by the Class B Member	52
11.2.	Indemnification of Class B Investor Group by the Class A Member	53
11.3.	Brokers	53

2

11.4.	Limitation on Liability	53
11.5.	Procedure for Indemnification	54
11.6.	Exclusivity	55
11.7.	No Right of Contribution	55
11.8.	Entire Agreement	55
ARTICLE XII GENERAL PROVISIONS		55
12.1.	Offset	55
12.2.	Notices	56
12.3.	Counterparts	56
12.4.	Governing Law and Severability	57
12.5.	Entire Agreement	57
12.6.	Effect of Waiver or Consent	57
12.7.	Amendment or Modification	57
12.8.	Binding Effect	57
12.9.	Further Assurances	57
12.10.	Jurisdiction; Service of Process	58
12.11.	Limitation on Liability	58
EXHIBITS
Exhibit A	Capital Contributions Made
Exhibit B	Form of Membership Interest Certificate

3

2014 ESA HOLDCO, LLC

AMENDED AND RESTATED OPERATING AGREEMENT

THIS AMENDED AND RESTATED OPERATING AGREEMENT, dated as of September 24, 2014, is made and entered into by and among EXELON GENERATION COMPANY, LLC, a Pennsylvania limited liability company (together with its permitted successors and assigns, the “Class A Equity Investor”), as the Class A Member, and CLEAN TECHNOLOGIES 2014, LLC, a Delaware limited liability company (the “Class B Equity Investor”), as the Class B Member.

RECITALS

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

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

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

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

ARTICLE I

DEFINITIONS

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2

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

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

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

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

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

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

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

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

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

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

3

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

4

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

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

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

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

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

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

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

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

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

“Disqualified Transferee” means any Person which is, or whose Affiliate is, then (A) a party adverse in any pending or threatened action, suit or proceeding to the

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Company or the Class B Member or an Affiliate thereof, if the Company or such Member shall not have consented (in its sole and absolute discretion) to the Transfer to such Person, (B) with respect to any Transfer of a Class A Interest, directly or indirectly engaged in owning, managing, operating, maintaining or developing facilities utilizing fuel cells for the production of electricity for sale to others (an “Active Person”) except for an Affiliate of an Active Person where such Affiliate of an Active Person is an entity regularly involved in making passive investments in such facilities (a “Passive Investor”) if such Passive Investor has certified in a manner reasonably acceptable to the Class B Member that it has in place procedures to prevent its Affiliates which are Active Persons from acquiring confidential information relating to such passive investments; provided, however, that, for the avoidance of doubt, a Person will not be deemed to be an Active Person solely by virtue of owning an interest in a facility similar to the ownership interest of the Class A Member or (C) a Person to whom a Transfer of Membership Interests would cause a recapture of any ITC claimed by the Company with respect to a Facility pursuant to Section 50(a) of the Code.

“Effective Date” means the date of this Agreement.

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

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

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

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

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

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

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

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

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

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

“Fair Market Value” means, with respect to any Asset, the price at which such Asset would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell, and both having reasonable knowledge of the relevant facts, and specifically with respect to the Facility or any Membership Interest in the Company, as determined consistently with Section 4.05 of Revenue Procedure 2007-65.

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

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

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

“Holder” means any Member.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“Third Party” means a Person other than a Member or an Affiliate of a Member.

“Third Party Payment” has the meaning set forth in Section 5.4(c).

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

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

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

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

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

“Transferring Member” means a Person making a Transfer.

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

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

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

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

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

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

(ii) The Value of all Assets of the Company shall be adjusted to equal their respective gross Fair Market Values, as reasonably determined by the Managing Member with the Consent of the Members, as provided within Treasury Regulation Section 1.704- 1(b)(2)(iv)(f); provided, however, that any such adjustments (other than pursuant to the

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liquidation (as defined for purposes therein) of the Company) shall be made only if the Managing Member reasonably determines, with the Consent of the Members, that such adjustments are necessary or appropriate to reflect the relative economic interests of the Members in the Company;

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

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

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

1.2. Other Definitional Provisions

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

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

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ARTICLE II

THE COMPANY

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

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

2.3. Principal Office. The Company shall maintain a principal office which shall initially be located at the Class B Equity Investor’s principal place of business, located at 1252 Orleans Drive, Sunnyvale, CA 94089. The Managing Member may change the principal office of the Company from time to time upon written notice to the Members.

2.4. Registered Office; Registered Agent. The name of the registered agent of the Company in the State of Delaware at such address is Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware 19801. The address of the Company’s registered office in the State of Delaware is c/o Corporation Trust Company, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware 19801.

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

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

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

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

ARTICLE III

CAPITAL CONTRIBUTIONS AND PAYMENTS

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

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

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

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

ARTICLE IV

CAPITAL ACCOUNTS; ALLOCATIONS

4.1. Capital Accounts. The Company shall maintain for each Member a separate Capital Account in accordance with the rules of Treasury Regulation Section 1.704-1(b)(2)(iv). Each Member’s Capital Account shall be maintained in accordance with the following provisions:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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4.5. Income Tax Allocations.

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

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

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

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

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

4.6. Other Allocation Rules.

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

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

(c) The Company shall not report any portion of the Facility Debt as “recourse” debt for purposes of Code Section 752 or as Member Nonrecourse Debt. The Company shall allocate 100% of the “excess” Nonrecourse Liabilities of the Company for

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purposes of Treasury Regulation Section 1.752-3(a)(3) in accordance with how the Base Case Model sets forth that the deductions attributable to such remaining Nonrecourse Liabilities will be allocated among the Members, taking into account the allocations required under Section 4.5 above.

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

ARTICLE V

DISTRIBUTIONS

5.1. Distributions of Available Cash Flow.

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

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

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

(b) Notwithstanding Section 5.1(a),

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

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

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

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

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5.3.Withholding. Notwithstanding any other provision of this Agreement, the Company shall be entitled to comply with any withholding requirements under any Applicable Law and shall be entitled to remit amounts withheld to, and file required forms with, applicable taxing authorities. To the extent that the Company is required to withhold and pay over any amounts to any taxing authority with respect to distributions or allocations to any Member, the amount withheld shall be treated as a distribution of cash to such Member in the amount of such withholding. In the event of any claimed over withholding, Members shall be limited to an action against the applicable taxing authority. If an amount required to be withheld was not withheld from an actual distribution, the Company may reduce subsequent distributions by the amount of such required withholding and any penalties or interest thereon. Each Member agrees to furnish to the Company such forms or other documentation as is reasonably necessary to assist the Company in determining the extent of, and in fulfilling, its withholding obligations.

5.4. Satisfaction of Certain Obligations Under Article XI.

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

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

(c) To the extent that any Damages result from the Facility Company or the Company being held liable to a Third Party for the payment of any amounts and it is finally determined by a court of competent jurisdiction, after exhaustion of all time periods for appeal, that such Damages resulted from a breach by the Class B Equity Investor (whether in its capacity as the Class B Member, the Managing Member, the Tax Matters Member or otherwise), the Class A Equity Investor, the Company, the Facility Company or their respective Affiliates of their respective representations or warranties or covenants or obligations contained in this Agreement

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or any Transaction Documents (each such payment a “Third Party Payment”), and such Third Party Payment creates an item of deduction or loss or amortizable or depreciable basis for the Company for Capital Account purposes, then, on or before the first cash distribution under Section 5.1 made by the Company after the date on which the Class B Members or Class A Members, as applicable, deliver or are deemed to have delivered their notice under Section 5.4(a) and Section 5.4(b), as applicable, the Class B Members or the Class A Members, as applicable, shall make a Capital Contribution to the Company in an amount equal to the full amount of the Third Party Payment (or, if applicable, such lesser amount as shall have been agreed between the Class B Members or the Class A Members, as applicable, and the applicable indemnified persons or such amount as shall have been finally determined by a court of competent jurisdiction).

(d) Notwithstanding the provisions of Section 5.1, with respect to any Damages relating to a Class A Investor Claim or a Class B Investor Claim (other than as to which Section 5.4(c) applies and as to which the Capital Contribution required by Section 5.4 (c) has been made or paid into the Escrow), commencing with the first cash distribution under Section 5.1 made by the Company following the date that is thirty (30) days following the date that the indemnifying Members agree with the asserted claim, and in each case until the date on which payment in full of the relevant Damages (or, if applicable, such lesser amount as shall have been agreed between the indemnifying Members and the applicable indemnified Persons or such amount as shall have been finally determined by a court of competent jurisdiction) has been made as hereafter provided in this Section 5.4(d) or as otherwise paid by the indemnifying Members or any of their Affiliates, (1) any distributions as to which the indemnifying Members and any of their respective Affiliates would otherwise be entitled hereunder shall not be paid to such indemnifying Member or such Affiliates until the applicable indemnified Persons shall have received payment in full of such Damages (or, if applicable, such lesser amount as shall have been agreed between the indemnifying Members and the applicable indemnified Persons or such amount as shall have been finally determined by a court of competent jurisdiction), and (2) all Available Cash Flow otherwise payable to the indemnifying Members and their respective Affiliates shall be paid over to the applicable indemnified Persons to the extent necessary to pay in full such Damages (or, if applicable, such lesser amount as shall have been agreed between the indemnifying Members and the applicable indemnified Person or such amount as shall have been finally determined by a court of competent jurisdiction). In the event that (A) the distributions payable to the indemnifying Members and their respective Affiliates or the Available Cash Flow otherwise payable to the indemnifying Members and their respective Affiliates, in each case, fora Quarterly Period are not sufficient to pay the Damages relating to a Class A Investor Claim or a Class B Investor Claim (other than as to which Section 5.4(c) applies and as to which the Capital Contribution required by Section 5.4(c) has been made or paid into the Escrow), as applicable, or (B) such Damages have not otherwise been paid to the relevant indemnified parties within forty- five (45) days of the end of a Quarterly Period, then the indemnifying Members shall pay such Damages to the relevant indemnified parties within sixty (60) days of the end of such Quarterly Period. Upon receipt by the applicable indemnified Persons of the payment in full of such Damages (or, if applicable, such lesser amount as shall have been agreed between the indemnifying Members and the applicable indemnified Person or such amount as shall have been finally determined by a court of competent jurisdiction), the distributions and Available Cash Flow shall resume being distributed as required by the provisions of Section 5.1, subject to the application of this Section 5.4 to other Class A Investor Claims or Class B Investor Claims for Damages and the application of Section 5.5.

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(e) If the indemnifying Members or their respective Affiliates dispute all or a portion of any Damages in excess of [***] then any Capital Contributions that the indemnifying Members or their Affiliates would have to make with respect to any Third Party Payment or for other Damages, and any distributions as to which the indemnifying Members or their respective Affiliates would otherwise be entitled hereunder, as applicable, in each case up to the amount of such disputed Damages, shall be paid into an escrow (the “Escrow”) maintained at a commercial bank that is a member of the Federal Reserve System organized under the laws of the United States or any state thereof and has a combined capital and surplus of at least [***] (the “Escrow Agent”) pursuant to an escrow agreement in such Escrow Agent’s customary form and providing as follows:

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

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

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

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

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

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

[***] Confidential Treatment Requested

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

ARTICLE VI

MANAGEMENT

6.1. Managing Member.

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

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

6.2. Standard of Care; Required Consents.

(a) In carrying out its duties hereunder, the Managing Member (i) shall cause the Company to cause the Facility Company to operate the Facility and cause the Administrator to operate and manage the Facility, in accordance with the Facility Documents; provided, that, in performing such obligations, the Managing Member shall (A) exercise such care, skill and diligence as a reasonably prudent business company of established reputation engaged in the business of generating electricity from fuel cells would exercise in the conduct of its business and for the advancement or protection of its own interests and (B) perform such duties in accordance with applicable fuel cell industry standards and (ii) in instances not involving the

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operation or management of the Facility, shall act in good faith and in a manner reasonably believed to be in the best interests of the Company. Upon the occurrence of an “Event of Default” (as defined in the ASA) by the Administrator under the ASA that remains uncured for a period of thirty (30) days, the Class A Members may cause the Company or the Facility Company, as applicable, to enforce their respective rights under the ASA.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[***] Confidential Treatment Requested

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

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

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

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

(d) Notwithstanding any other provision of this Agreement to the contrary, at the written direction of the Class A Member, the Managing Member shall require the repurchase or reacquisition of all or part of a Facility if no required pursuant to the terms of Section 3.2(c), 5.7(b), 12.3 or 12.7(b) of the A&R PUMA.

6.3. Removal of Managing Member.

(a) The Managing Member will be subject to removal as Managing Member upon thirty (30) days’ notice by the Consent of the Class A Members if the Managing Member (x) has engaged in gross negligence, willful misconduct or fraud, (y) has breached any material duty, obligation or covenant of this Agreement or caused the Company or the Facility Company to breach any material duty, obligation or covenant of any Facility Document, or (z) is declared Bankrupt; provided, however, that in the case of clause (y), the Managing Member shall have the opportunity to cure such breach or violation within thirty (30) days of receiving notice of such breach (which thirty (30) period shall run concurrently with the required notice period); provided, further, that if such breach or violation cannot be cured within such period, and no long as the Managing Member is proceeding with diligence to cure such breach, the thirty (30) day cure period shall be extended by an additional thirty (30) days, for a total cure period of sixty (60) days.

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

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6.4. Indemnification and Exculpation.

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

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

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

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

ARTICLE VII

RIGHTS AND RESPONSIBILITIES OF MEMBERS

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

7.2. Member Voting Rights. Except as provided in Sections 6.2(b), and as otherwise expressly provided in this Agreement or as required by the Act, the consent of the Members shall not be required and the Managing Member (and not the other Members) shall have all right, power and authority to do for, on behalf of, and in the name of the Company, all things that the Managing Member deems necessary, proper or desirable to carry out its duties and responsibilities. Without limitation of the foregoing, to the extent that the consent of the Members is express required by this Agreement or the Act, except as provided in Sections 6.2(b), or as otherwise expressly provided in this Agreement, the Consent of the Members shall constitute approval by, or the authorization of, any action by or on behalf of the Company that expressly requires a vote, consent, approval or action of or an election by the Members; provided, that, without the prior written approval of each Member adversely affected thereby, no

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such consent shall (i) modify the limited liability of a Member; (ii) require a Member to provide funds to the Company, by loan, contribution or otherwise (or amend any of the conditions to making any loan or contribution); (iii) alter the interest of any Member in Capital Accounts, Profits, Losses, distributions or Available Cash Flow; or (iv) amend, supplement or otherwise modify Sections 6.2(b) or this Section 7.2, or, in each case, any of the definitions of capitalized terms used therein.

7.3. Member Liability.

(a) To the fullest extent permitted under the Act and under Applicable Law as currently or hereafter in effect, no Member shall have any personal liability whatsoever, whether to the Company or to its creditors for the debts, obligations, expenses or liabilities of the Company, whether arising in contract, tort or otherwise, which shall be solely the debts, obligations or liabilities of the Company, or for any of its losses, in excess of the value of such Member’s Capital Account, except as expressly provided herein.

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

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

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

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

7.7. Confidential Information.

(a) With respect to each of the Company and the Members, except to the extent necessary for the exercise of its rights and remedies and the performance of its obligations under this Agreement or otherwise with respect to the Facility Company or the Facility, such Member will not itself use or intentionally disclose (and will not permit the use or disclosure by any of its Affiliates, any of the officers, directors or employees of it or its Affiliates (collectively,

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“Representatives”), or any of its advisors, counsel and public accountants (collectively, “Advisors”)), directly or indirectly, any of the Facility Documents, this Agreement or other confidential information in respect of the transactions contemplated hereby (“Confidential Information”); provided, that (i) any such Member and its Affiliates, Representatives and Advisors may use and disclose Confidential Information to such Member’s Affiliates, Representatives and Advisors and to any other Member and its Affiliates, Representatives and Advisors, (ii) any such Member and its Affiliates, Representatives and Advisors may use and disclose Confidential Information that (A) has been publicly disclosed or is publicly known (other than by such Member or any of its Affiliates, Representatives or Advisors in breach of this Section 7.7), (B) has come into the possession of such Member or any of its Affiliates, Representatives or Advisors other than in connection with the transactions contemplated by this Agreement, or (C) has been independently developed by such Member or any of its Affiliates, Representatives or Advisors without use of information obtained under this Agreement, (iii) to the extent that that such disclosure is required by law, a subpoena or any other applicable legal process or by a Governmental Authority having jurisdiction over such Member or its Affiliates, such Member may disclose Confidential Information provided that in such case such Member shall, unless otherwise prohibited by law, (1) give prompt notice to the other Members that such disclosure is or may be required and (2) cooperate in protecting such confidential or proprietary nature of the Confidential Information which must so be disclosed; provided, that no such notification shall be required in respect of any disclosure to bank, insurance or financial industry regulatory authorities having jurisdiction over such Member or its Affiliates, (i) disclosures to lenders, potential lenders or other Persons providing financing to the Company or to the Facility Company or to their respective representatives and advisors, any Member or any Affiliate of any Member and potential purchasers of equity interests in the Company, any Member or any Affiliate of any Member are permitted if such Persons have agreed to abide by the terms of this Section 7.7 or have otherwise entered into an agreement with restrictions on disclosure substantially similar to the terms of this Section 7.7 (or in the case of advisors, are otherwise bound by professional or legal obligations of confidentiality), (v) any such Member and its Affiliates, Representatives and Advisors may disclose Confidential Information, and make such filings, as may be required by this Agreement or the Facility Documents, (vi) any Member which is an insurance company or an Affiliate thereof may disclose such information to the National Association of Insurance Commissioners and any rating agency requiring access to its portfolio, (vii) the Class B Equity Investor and its Affiliates, Representatives and Advisors may disclose Confidential Information relating to the Facilities (but not Confidential Information relating to any Member) to lenders, potential lenders or other Persons providing financing to any Person developing or proposing to develop the remaining phases of the Facilities and potential purchasers of equity interests in such Person or potential power or renewable energy credits purchasers from such Persons, or to any Person in connection with the operation of the Facilities, and (viii) any such Member may disclose Confidential Information to the United States Department of Treasury, the IRS or any state taxing authority in connection with any communication regarding the tax consequences of the Facilities, Facility Company’s ownership and operation of the Facilities, Company’s ownership of an interest in the Facility Company or such Member’s ownership of an interest in the Company; provided, that such Member shall, as soon as practicable, notify the Class B Equity Investor of such disclosure, furnish a copy of any written material provided to the IRS or any state taxing authority to the Class B Equity Investor and, if practicable, afford the Class B Equity Investor reasonable opportunity to comment on the

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proposed disclosure (but for the avoidance of doubt the Class B Equity Investor will not have the right to consent to such proposed disclosure). A Member’s obligations pursuant to this Article VII shall survive the Transfer of its Units. Notwithstanding anything herein to the contrary, the Class B Equity Investor and any of its Affiliates (including Affiliates formed subsequent to the date hereof) may use any operational data with respect to the Facilities for the purpose of researching, analyzing, designing, improving, developing, manufacturing, installing, modifying or operating other fuel cell-powered electric generating facilities, whether similar to or different from the Facilities.

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

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

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

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

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

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

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

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

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

(b) No Class A Member or any of its Member ERISA Affiliates shall (i) permit any Title IV Plan to fail to satisfy the minimum funding standards of ERISA or section 412 of the Code, (ii) seek a waiver of the minimum funding standards of ERISA or an extension

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of any amortization period under section 412 of the Code, (iii) file with the PBGC a notice of intent to terminate any Title IV Plan in a distress termination described in section 4041(c) of ERISA, (iv) permit a Title IV Plan funding to have an “at risk” status within the meaning of section 430(i) of the Code, (v) incur any material liability pursuant to Title IV of ERISA (other than for PBGC premiums due but not delinquent) or the penalty or excise tax provisions of the Code relating to employee benefit plans (or take or fail to take any action that is reasonably expected to result in the incurrence of any such liability), or (vi) withdraw from any Multiemployer Plan; unless any such event or events described in clauses (i) through (vi) above, either individually or together with any other such event or events, would not reasonably be expected to have a Material Adverse Effect. In addition, no Class A Member or any of its Member ERISA Affiliates shall permit the aggregate “amount of unfunded benefit liabilities” (within the meaning of section 4001(a)(18) of ERISA) under all Underfunded Title IV Plans, determined in accordance with Title IV of ERISA, to exceed the aggregate current value of the assets under all Underfunded Title IV Plans by an amount that, if required to be paid in an immediate lump-sum payment, could reasonably be expected to result in a Material Adverse Effect.

ARTICLE VIII

ADMINISTRATIVE AND TAX MATTERS

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

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

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

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

(c) Copies of the Prior LLC Agreement, this Agreement and all amendments thereto;

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

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

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

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

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

(a) Annually, within 120 days after the end of each calendar year (as such dates may be extended or waived by the applicable Members), audited consolidated financial statements and report for the Company and its consolidated subsidiaries, prepared by the Certified Public Accountant, prepared on a GAAP basis effective as of the end of the immediately-preceding year, including a consolidated balance sheet and consolidated statements of income, members’ equity and changes in cash flows (the “Annual Report”) and accompanied by a report of such accounting firm stating that their examination was made in accordance with generally accepted auditing standards and that in their opinion such financial statements and Annual Report of the Company and its consolidated subsidiaries fairly present the Company’s and its consolidated subsidiaries’ cash flows, results of operations and changes in financial position on a GAAP basis;

(b) Quarterly, within 45 days after the end of each calendar quarter, unaudited quarterly financial statements of the Company and its consolidated subsidiaries for such period and portion of the calendar year then ended, all in reasonable detail and fairly presenting the financial position of the Company and its consolidated subsidiaries, as of the end of such quarter, on a GAAP basis, subject to lack of footnotes and normal year-end adjustments;

(c) Quarterly, within 45 days after the end of each calendar quarter, a report setting forth (1) the kilowatt hours of electricity produced and sold during such quarter from the Facility, (2) the revenues and expenses of the Facility for the most recent available quarter, (3) in the case of the calendar quarters ending after January 31st, the same information set forth in (1) through (2) on a cumulative basis since the beginning of the Fiscal Year, and (4) a quarter and year to date performance versus budget, variance analysis and a short narrative regarding key operating events and issues;

(d) Annually, within 45 days prior to the start of each calendar year, the annual capital and operating budgets for the ompany and the Facility Company;

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

(f) Within 30 days after renewal, copies of policies of insurance maintained by or on behalf of the Company or any of its subsidiaries, including current certificates of insurance; and

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

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

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

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

(c) Interest-bearing demand or time deposits (including certificates of deposit) which are either:

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

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

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

(e) Commercial paper rated (on the date of acquisition thereof) at least A-1 or P-1 or equivalent by S&P or Moody’s, respectively (or an equivalent rating by another nationally recognized credit rating agency of similar standing if neither of such corporations is then in the business of rating commercial paper), maturing not more than 90 days from the date of creation thereof but excluding any such commercial paper issued by any Member or any Affiliate of the Managing Member; or

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

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

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

(b) To elect the accrual method of accounting;

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

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

Facility;

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

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

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

8.7. Tax Matters Member and Company Tax Filings.

(a) The Class B Equity Investor shall be, and so long as it continues to be the Managing Member, shall continue to be, the “tax matters partner” of the Company pursuant to Section 6231(a)(7) of the Code (the “Tax Matters Member”); provided, that if the Class B Equity Investor is no longer the Managing Member, the Person selected as the successor

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Managing Member pursuant to Section 6.3(b) shall appoint a new Tax Matters Member. The Tax Matters Member shall prepare, or cause to be prepared, and timely file (on behalf of the Company) all federal, state and local tax returns required to be filed by the Company. Each Member shall furnish to the Tax Matters Member all pertinent information in its possession relating to the Company’s operations that is reasonably necessary to enable the Company’s tax returns to be timely prepared and filed. The Tax Matters Member shall prepare, or cause to be prepared, the Company’s federal income tax return (including K-1 s) (the “Tax Return”) on a basis consistent with this Agreement and the assumptions contained in the Base Case Model (a “Consistent Return”), except as otherwise required by Applicable Law. The Tax Matters Member shall use commercially reasonable efforts to furnish to the Members, by no later than the 120 days following each Taxable Year, the Tax Return proposed to be filed by the Tax Matters Member, but in any event, shall furnish such Tax Return at least 30 days prior to the due date for filing, and, with respect to any Tax Return for any tax year relating to any portion of the Recapture Period, shall incorporate any reasonable comments of the Class A Members to such Tax Returns prior to filing, and, with respect to any other Tax Return, shall use good faith efforts to incorporate any reasonable comments of the Class A Members to such Tax Returns prior to filing. The Tax Matters Member shall furnish to the Members reasonable estimates (broken down by item and character of income, loss, deduction or credit) prior to the date 75 after the end of the Taxable Year and shall furnish to the Members copies of each Tax Return as filed. In the event that the Tax Matters Member anticipates furnishing to the Members a Tax Return that is not a Consistent Return, the Tax Matters Member shall notify the Members in writing no less than 30 days prior to the date on which it intends to furnish such Tax Return that such Tax Return will not be a Consistent Return, other than inconsistencies solely relating to variances in the anticipated operating results of the Facilities. If a Tax Return is timely objected to by the Class A Members, the Tax Matters Member shall submit such Tax Return, together with copies of all relevant workpapers used in preparation thereof, to a nationally recognized firm (other than the Certified Public Accountant) of independent public accountants or, if related to a legal matter, a law firm, in each case, selected by the Class A Members. The determination of such independent expert, and the Tax Return as completed by such expert, shall be final and binding on the Members, and the Tax Matters Member shall cause such final Tax Return to be filed; provided, that, if the Tax Return is required under Applicable Law to be filed prior to the date on which such independent expert makes its determination, the Tax Return shall be filed consistent with the positions set forth by the Tax Matters Member and will be amended by the Tax Matters Member to reflect the determination of such independent expert, as applicable. The Company shall bear the costs of the preparation and filing of its returns, including the fees of the independent expert.

(b) The Tax Matters Member, in consultation with the other Members, shall direct the defense of any claims made by the IRS to the extent that such claims relate to the adjustment of Company items at the Company level, provided that the Tax Matters Member shall consider in good faith any reasonable requests made by the Class A Members in respect of the strategy to be taken in connection with any such defense; and further provided, that, if the Tax Matters Member and the Class A Members are unable to agree on any strategy to be taken with respect to the defense of any such claims, such strategy shall be determined by tax counsel selected by the Tax Matters Member and approved by the Class A Members to make such determination. The Tax Matters Member shall select nationally recognized tax counsel to represent the Company in any such defense. The Tax Matters Member shall cause the Company to retain and to pay the fees and expenses of counsel approved as described in the preceding

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sentence and to pay the fees and expenses of other advisors chosen by the Tax Matters Member in consultation with the other Members. The Tax Matters Member shall promptly deliver to each Member a copy of all notices, communications, reports and writings received from the IRS by the Company relating to or potentially resulting in an adjustment of Company items, shall promptly advise each Member of the substance of any conversations with the IRS in connection therewith and shall keep the Members advised of all developments with respect to any proposed adjustments that come to its attention. In addition, the Tax Matters Member shall (A) provide each Member with a draft copy of any correspondence or filing to be submitted by the Company in connection with any administrative or judicial proceedings relating to the determination of Company items at the Company level reasonably in advance of such submission, (B) incorporate all reasonable changes or comments to such correspondence or filing that are approved or recommended by the Class A Members and (C) provide each Member with a final copy of correspondence or filing. The Tax Matters Member will provide each Member with written notice reasonably in advance of any meetings or conferences with respect to any administrative or judicial proceedings relating to the determination of Company items at the Company level (including any meetings or conferences with counsel or advisors to the Company with respect to such proceedings) and each Member shall have the right to participate, at its sole cost and expense, in any such meetings or conferences.

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

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

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

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

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

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

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

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

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

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

hereunder.

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

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

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

(f) The Class B Member is and will remain for federal income tax purposes a corporation (and not an S corporation) that is neither a Disqualified Person nor a disregarded

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

8.13. No Breach of Obligations. Notwithstanding anything to the contrary contained herein, in no event shall it be a breach of the Managing Member’s obligations pursuant to this

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Article VIII to deliver any report, financial statement or Tax Return within the specified timeframes to the extent any failure to comply with such obligations is attributable to either the failure of any Member to grant or object to any consent required pursuant to the terms hereof necessary to enable the Managing Member to comply with such obligations.

ARTICLE IX

TRANSFERS OF INTERESTS; PURCHASE OPTION

9.1. Transfer and Encumbrances of Membership Interests.

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

(b) Transfers of Membership Interests.

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

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

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

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

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

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

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

1) Notice. Written notice not less than ten (10) Business Days prior to the effective date of such Transfer.

2) Transfer Instrument. An instrument implementing the Transfer.

3) Ratification of this Agreement. An instrument, executed by the Transferring Member and its Transferee, containing the following information and agreements, to the extent they are not contained in the instrument described in Section 9.1(b)(iii)(A)(2): (1) the notice address of the Transferee; (2) if applicable, the Member Parent of the Transferee; (3) the allocations percentages as to each class of Membership Interest of the Transferring Member after the Transfer by such Transferring Member, and its Transferee (which must total the allocations percentages as to each class of Membership Interest of the Transferring Member before the Transfer); (4) the Transferee’s ratification of this Agreement and its confirmation that the representations and warranties in Article VIII applicable to it are true and correct with respect to it; (5) the Transferee’s ratification of the Facility Documents to which the Transferring Member is a party and agreement to be bound by them to the same extent that the Transferring Member was bound by them prior to the Transfer; (6) in the case of any Transfer of Class B Interests, the Transferee assumes the indemnity obligation set forth in Article XI; and (7) representations and warranties by the Transferring Member and its Transferee (aa) that the Transfer and admission is being made in accordance with Applicable Law, and (bb) that the conditions set forth in Sections 9.1(b)(iii)(B) and (C) have been satisfied.

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

(C) Tax Consequences.

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

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

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

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

5) Opinion Requirement. The Transferring Member or the Transferee delivers to the Company not later than eight (8) Business Days prior to the effective date of the Transfer, a written opinion of nationally recognized tax counsel reasonably acceptable to the other Members that such Transfer will not cause any of (1) the recapture of any ITC claimed by the Company with respect to a Facility for any Member other than the transferring Member, (2) the Company to be classified as an entity other than a partnership (or cause the Company to be treated as a publicly traded partnership) for purposes of the Code or (3) the Company being a “related person” to any purchaser under any power purchase agreement for power delivered from a Facility for purposes of Sections 267 or 707 of the Code.

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

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

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

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

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

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

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

(d) Right of First Bid. This Section 9.1(d) shall apply to any proposed voluntary Transfer of Membership Interests for cash or other tangible consideration under the conditions specified in Section 9.1(b)(i)(A). The Member proposing to make such a Transfer shall provide written notice of its intention to make a Transfer (a “Transfer Notice”) to all remaining Members. Upon receipt of a Transfer Notice, the Members entitled to receive the Transfer Notice shall have the right for a period of thirty (30) days to submit to the Transferring Member an unconditional offer to purchase, at the price and on the terms set forth in the notice of such offer (a “Bid”), all, but not less than all, of such Membership Interests in such proportions as the offering Members may agree, or, if they cannot agree, on a pro rata basis. Upon receipt of a proper Bid, the Member intending to Transfer its Membership Interests may, in its sole discretion, accept such Bid by notice to the offering Members within thirty (30) days of receipt of such Bid, whereupon the offering Members shall purchase such Membership Interests within five (5) Business Days following receipt of the acceptance of the Bid (or, in any event if

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later, the fifth Business Day after the receipt of all applicable regulatory and governmental approvals of the purchase). If the Member intending to Transfer its Membership Interests does not accept the Bid, such Member shall (i) so notify each Member who has submitted a Bid, and (ii) have the right for a period of one hundred and eighty (180) days thereafter (or, in any event, if later, the fifth(5^th) Business Day after the receipt of all applicable regulatory and governmental approvals of the purchase) to Transfer such Membership Interests at a price which is higher than the price set forth in the Bid and upon terms no less favorable in any material respect to such Member than the terms contained in the Bid; provided, that such Transfer shall be subject to any other applicable provisions of this Section 9.1.

9.2. Buyout Option.

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

(i) a Member becomes Bankrupt;

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

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

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

Member”.

(c) If a Buyout Event occurs, then each of the other Members shall have the option to acquire the Membership Interest of the Affected Member (or to cause it to be acquired by a third party designated by the other Members) on an “as is, where is” basis without representations or warranties (other than ownership of the Membership Interests by the Affected Member, that no Encumbrance exists against the Membership Interests of the Affected Member other than those created pursuant to this Agreement and that the sale of such Membership Interests do not require any governmental approvals that have not been obtained or create any conflict with the Affected Member’s organizational documents), expressed or implied (and with the Members exercising such preferential right also being referred to herein as “Purchasing Members”) upon giving the Company and all other Members 60 days’ written notice of an election to exercise its buyout rights pursuant to this Section 9.2 (a “Buyout Exercise Notice”) during such period.

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

(e) If an option to purchase is exercised in accordance with the other provisions of this Section 9.2, the closing of such purchase shall occur on the 60th day after the delivery of the Buyout Exercise Notice (or in any event, if later, the 30th day after the determination of the Fair Market Value pursuant to Section 9.2(d), or the fifth Business Day after the receipt of all applicable regulatory and governmental approvals to the purchase) and shall comply in all material respects with the requirements set forth in Section 9.1(b)(iii). Unless otherwise agreed among the Members, the Buyout Price shall be paid in cash at such closing.

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

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

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

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

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

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

ARTICLE X

DISSOLUTION, LIQUIDATION AND TERMINATION

10.1. Dissolution.

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

(i) The unanimous written consent of the Members;

(ii) Any other event upon the occurrence of which dissolution is required by the Act (which the Act does not allow to be waived by agreement of the Members), unless, to the extent permitted by the Act, Members (other than the Member with respect to which such event occurs) unanimously elect in writing, within 90 days of the date such event described in this Section 10.1(a)(ii) occurs, to continue the business of the Company, in which case the Company will not dissolve; or

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

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

10.2. Liquidation and Termination.

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

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

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

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

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

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

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

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

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

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

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

(vi) Any distribution to the Members in respect of their Capital Accounts pursuant to this Section 10.2 shall be made by the end of the Company taxable year in which a Liquidating Event occurs (or if later, within 90 days after the date of such Liquidating Event).

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

10.3. Deficit Capital Accounts. Except as provided in this Section 10.3, no Member shall be obligated to contribute cash to restore a deficit in its Capital Account. Notwithstanding the foregoing, each Member shall have the right by written notice signed by such Member to the Company (with a copy to all other Members) (the “DRO Notice”), at any time and in its sole discretion, to elect to undertake or increase the amount of, a limited deficit restoration obligation, the amount of which shall be specified in such DRO Notice (which amount is the “DRO Limit”). Nothing contained in this Agreement shall obligate any Member to issue a DRO Notice. A DRO Notice given by a Member pursuant hereto shall be deemed to constitute a duly adopted amendment to this Agreement without any further action by any party, and the

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corresponding limited deficit restoration obligation for such Member shall be considered part of a Consistent Return for purposes this Agreement. Further, upon the earlier of (a) the point in time at which the absolute value of the deficit balance in a Member’s Capital Account equals or exceeds its DRO Limit and (b) the end of the first Taxable Year during which the absolute value of the deficit balance in a Member’s Capital Account as of the end of such Taxable Year is less than the absolute value of the deficit balance in such Member’s Capital Account as of the end of the immediately preceding Taxable Year, such Member’s DRO Limit shall be automatically decreased (but not increased) at the end of such Taxable Year and each subsequent Taxable Year to an amount equal to the excess, if any, of (1) the absolute value of the deficit balance (if any) in such Member’s Capital Account at the end of such Taxable Year (prior to taking into account such reduction) over (2) the amount that such Member is deemed to be obligated to restore pursuant to the penultimate sentences in Treasury Regulation Sections 1.704-2(g)(1) and 1.704- 2(i)(5) as of the time of such reduction. In the event there is a “liquidation” of a Member’s interest in the Facility Company within the meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(g), after giving effect to all allocations (including, for the avoidance of doubt, such Member’s share of any Facility Company Minimum Gain and Member Nonrecourse Debt Minimum Gain and the allocations pursuant to Section 10.2), all distributions and all Capital Contributions for all periods, if that Member has a deficit balance in its Capital Account, calculated in accordance with this Agreement and without regard to such Members’ obligation pursuant to this Section 10.3 (except to the extent disregarding such obligation in calculating such amount is inconsistent with law, in which case such Member’s obligation pursuant to this Section 10.3 shall be taken into account in such calculation), then such Member shall be obligated to pay to the Company cash in an amount equal to such deficit balance by the end of the Taxable Year of the Company during which the liquidation of the Facility Company occurs, or if later, within ninety (90) days after the date of such liquidation; provided, however, that the restoration obligation of a Member shall not exceed such Member’s then DRO Limit.

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

ARTICLE XI

INDEMNIFICATION

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

52

respective representations and warranties or covenants contained in this Agreement or any other Transaction Document (collectively, “Class A Investor Claims”). To the extent that any such Damages relating to a Class A Investor Claim remain unpaid after such claim has been made therefor pursuant to this Article XI, any distributions otherwise payable to the Class B Member under this Agreement shall be used to satisfy the obligations of the Class 13 Member, the Company or their Affiliates, as applicable, hereunder in accordance with Section 5.4.

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

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

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

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

53

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

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

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

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

54

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

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

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

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

ARTICLE XII

GENERAL PROVISIONS

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

55

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

If to the Class B Member, to:

Clean Technologies 2014, LLC

c/o Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, CA 94089-1137

Attention: [***]

Telephone: [***]

Facsimile: [***]

Email: [***]

If to the Investor Member, to:

Exelon Generation Company, LLC

10 S. Dearborn St., 52^nd Floor

Chicago, IL 60603

Attention: [***]

with a copy to:

Exelon Business Services Company, LLC

10 South Dearborn St., 49^th Floor

Chicago, IL 60603

Attn: [***]

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

12.3. Counterparts. This Agreement may be executed in one or more counterparts, each bearing the signatures of one or more Members. Each such counterpart shall be considered

[***] Confidential Treatment Requested

56

an original and all of such counterparts shall constitute a single agreement binding all the parties as if all had signed a single document. Signatures of the parties hereto transmitted by facsimile or portable document format (PDF) shall be deemed to be their original signatures for all purposes.

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

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

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

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

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

12.9. Further Assurances. In connection with this Agreement and the transactions contemplated hereby, each Member shall execute and deliver any additional documents and instruments and perform any additional acts that may be necessary or appropriate to effectuate

57

and perform the provisions of this Agreement and those transactions contemplated here, including all filing, recording, publishing and other acts appropriate to comply with all requirements for the operation of a limited liability company under the laws of all jurisdictions where the Company shall conduct business.

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

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

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

[SIGNATURE PAGE FOLLOWS]

58

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

EXELON GENERATION COMPANY, LLC
By:	/s/ Kyle B. Crowley
Name:	Kyle B. Crowley
Title:	Vice President - Exelon Generation Company, LLC and Senior Vice President and Chief Development Officer Exelon Corporation
CLEAN TECHNOLOGIES 2014, LLC
By:	/s/ William E. Brockenborough
Name:	William E. Brockenborough
Title:	Vice President

EXHIBIT A

EXECUTION DATE CONTRIBUTIONS MADE

	Class A Equity Investor	Amount			Capital Account Balance			Units	Percentage of Class A Interest Owned
Effective Date	Exelon Generation Company, LLC		[	***]		[	***]	100 Class A Units		100	%
	Class B Equity Investor	Amount			Capital Account Balance			Units	Percentage of Class B Interest Owned
Effective Date	Clean Technologies 2014 LLC		[	***]		[	***]	100 Class B Units		100	%

[***] Confidential Treatment Requested

Exhibit A - 1

MEMBERSHIP CERTIFICATE

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

CERTIFICATE FOR MEMBERSHIP INTEREST

IN

2014 ESA HOLDCO, LLC

Certificate No. A - 1

The undersigned, as the Managing Member of 2014 ESA HOLDCO, LLC, a Delaware limited liability company (the “Company”), hereby certifies that Exelon Generation Company, LLC, a Pennsylvania limited liability company, is the holder of a Class A Interest in the Company to the extent and as described in Exhibit A to the Amended and Restated Operating Agreement of the Company, effective as of September 24, 2014, as amended and restated from time to time (the “Agreement”) (a copy of which is on file at the principal office of the Company). All capitalized terms not otherwise defined herein have the meanings ascribed to them in the Agreement.

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

Dated: September 24, 2014

CLEAN TECHNOLOGIES 2014, LLC
By:	/s/ Bill Brockenborough
Name:	Bill Brockenborough
Title:	Vice President

EX-10

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. Exhibit 10.21   EXECUTION VERSION

AMENDED AND RESTATED

PURCHASE, USE AND MAINTENANCE AGREEMENT

between

BLOOM ENERGY CORPORATION

as Seller

and

2014 ESA PROJECT COMPANY, LLC

as Buyer

dated as of July 18, 2014

TABLE OF CONTENTS

		Page
ARTICLE I.	DEFINITIONS		1
Section 1.1	Definitions		1
Section 1.2	Other Definitional Provisions		13
ARTICLE II.	PURCHASE AND SALE		14
Section 2.2	Payment of Purchase Price		15
Section 2.3	Purchase and Sale of Facilities		17
Section 2.4	PPA Termination and Re-Purchase of Facilities		18
ARTICLE III.	DELIVERY AND INSTALLATION OF BLOOM SYSTEMS AND BALANCE OF FACILITIES		18
Section 3.1	Access to Site		18
Section 3.2	Physical Delivery of Bloom Systems		18
Section 3.3	Delivery of Balance of Facility; Installation of Bloom Systems		19
Section 3.4	Commissioning; Commencement of Operations		21
Section 3.5	Insurance		22
Section 3.6	Disposal; Right of First Refusal		22
Section 3.7	Buyer’s Lender		22
Section 3.8	Access; Cooperation		22
Section 3.9	Performance Standards		22
Section 3.10	Appointment of Independent Engineer		23
ARTICLE IV.	FACILITY SERVICES		23
Section 4.1	In General		23
Section 4.2	Operation and Maintenance Services		23
Section 4.3	Service Fees		24
Section 4.4	Remote Monitoring		25
Section 4.5	Permits		25
Section 4.6	Service Providers		25
Section 4.7	Rights to Deliverables		25
ARTICLE V.	WARRANTIES		26
Section 5.1	Facility Services Warranty		26
Section 5.2	Annual Capacity Warranty		26
Section 5.3	Efficiency Warranty		26
Section 5.4	Quarterly Capacity Warranty		26
Section 5.5	Portfolio Warranty		27
Section 5.6	Exclusions		28
Section 5.7	Portfolio Warranty Claims		28

i

TABLE OF CONTENTS

(Continued)

		Page
Section 5.8	Indemnification Regarding Performance Under PPAs		29
Section 5.9	Disclaimers		30
Section 5.10	Title		30
Section 5.11	Covenants Relating to Refund Value		30
Section 5.12	Covenants Relating to the Policy		31
ARTICLE VI.	RECORDS		31
Section 6.1	Record-Keeping Documentation		31
Section 6.2	Reports; Other Information		32
ARTICLE VII.	DATA ACCESS		32
Section 7.1	Access to Data and Meters		32
ARTICLE VIII.	REPRESENTATIONS AND WARRANTIES OF SELLER		32
Section 8.1	Representations and Warranties as to Seller		32
Section 8.2	Representations and Warranties as to Bloom Systems		33
ARTICLE IX.	REPRESENTATIONS AND WARRANTIES OF BUYER		34
Section 9.1	Organization		34
Section 9.2	Authority		34
Section 9.3	Consents and Approvals; No Violation		34
Section 9.4	Legal Proceedings		34
ARTICLE X.	CONFIDENTIALITY		35
Section 10.1	Confidential Information		35
Section 10.2	Restricted Access		35
Section 10.3	Permitted Disclosures		36
Section 10.4	Publicity		37
ARTICLE XI.	LICENSE AND OWNERSHIP; SOFTWARE		37
Section 11.1	IP License To Use		37
Section 11.2	Grant of Third Party Software License		38
Section 11.3	No Software Warranty		38
Section 11.4	Covenant		38
Section 11.5	Representations and Warranties		39

ii

TABLE OF CONTENTS

(Continued)

		Page
ARTICLE XII.	EVENTS OF DEFAULT AND TERMINATION		39
Section 12.1	Seller Default		39
Section 12.2	Buyer Default		40
Section 12.3	Buyer’s Remedies Upon Occurrence of a Seller Default		40
Section 12.4	Seller’s Remedies Upon Occurrence of a Buyer Default		41
Section 12.5	Preservation of Rights		41
Section 12.6	Force Majeure		41
Section 12.7	Termination of PPAs		41
ARTICLE XIII.	INDEMNIFICATION		42
Section 13.1	IP Indemnity		42
Section 13.2	Indemnification of Seller by Buyer		43
Section 13.3	Indemnification of Buyer by Seller		43
Section 13.4	Indemnity Claims Procedure		44
Section 13.5	Limitation of Liability		44
Section 13.6	Liquidated Damages; Estoppel		45
Section 13.7	Survival		45
ARTICLE XIV.	MISCELLANEOUS PROVISIONS		45
Section 14.1	Amendment and Modification		45
Section 14.2	Waiver of Compliance		45
Section 14.3	Notices		46
Section 14.4	Assignment; Subcontractors		46
Section 14.5	Dispute Resolution; Governing Law		47
Section 14.6	Governing Law, Jurisdiction, Venue		47
Section 14.7	Counterparts		47
Section 14.8	Interpretation		48
Section 14.9	Entire Agreement		48
Section 14.10	Construction of Agreement		48
Section 14.11	Severability		48
Section 14.12	Further Assurances		48
Section 14.13	Independent Contractors		48
Section 14.14	Limitation on Export		49
Section 14.15	Time of Essence		49
Section 14.16	No Rights in Third Parties		49

iii

TABLE OF CONTENTS

(Continued)

		Page
ANNEXES
Annex A	Minimum Power Product Example Calculation
Annex B	Insurance
Annex C	Capacity Warranty Claim Example Calculation and Amounts Payable
Annex D	List of PPAs
EXHIBITS
Exhibit A	Form of Purchase Order
Exhibit B	Form of Bill of Sale
Exhibit C	Facilities
Exhibit D	Service Fees
Exhibit E	Form of Certification of Installation
Exhibit F	Form of Independent Engineer Certification of Commencement of Operations

iv

AMENDED AND RESTATED

PURCHASE, USE AND MAINTENANCE AGREEMENT

This AMENDED AND RESTATED PURCHASE, USE AND MAINTENANCE AGREEMENT (this “Agreement”), dated as of July 18, 2014 (the “Agreement Date”), is entered into by and between BLOOM ENERGY CORPORATION, a Delaware corporation (“Seller”), and 2014 ESA PROJECT COMPANY, LLC, a Delaware limited liability company (“Buyer”). Seller and Buyer are referred to in this Agreement individually, as a “Party” and, collectively, as the “Parties”.

RECITALS

WHEREAS, Seller is in the business of designing, constructing and installing on-site solid oxide fuel cell power generating systems;

WHEREAS, Buyer is a company formed at the direction of Seller for the purpose of purchasing and owning Bloom Systems for the generation of electricity and sale of electricity generated by the Bloom Systems;

WHEREAS, Buyer desires to purchase, and Seller desires to sell, Bloom Systems which will have an aggregate System Capacity of up to 20.95 MW, and which Bloom Systems will be installed in certain Facilities in connection with PPAs entered into by Buyer when and as the conditions to such installation are met as provided in this Agreement; and

WHEREAS, Seller has agreed to provide certain operation and maintenance services to Buyer subject to the conditions of this Agreement.

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

AGREEMENT

ARTICLE I.

DEFINITIONS

Section 1.1 Definitions. As used in this Agreement, capitalized terms not otherwise defined shall have the meanings set forth below:

“Actual kWh” means the actual energy output in kWh produced by a Facility and measured by the Facility Meter, and, where appropriate in the context of this Agreement, aggregated together.

“Administrative Services Agreement” means the Administrative Services Agreement dated as of July 18, 2014, among Seller, Buyer and Holdco.

“Affiliate” of any Person means a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person specified, provided that neither Buyer’s Lender nor the Class A Member shall be considered an Affiliate of either Party.

1

“Agreement” is defined in the preamble.

“Agreement Date” is defined in the preamble.

“Annual Capacity Warranty” is defined in Section 5.2.

“Annual Capacity Warranty Period” means, with respect to a Facility, each calendar year following the Commencement of Operations of such Facility (or, in the case of the calendar year in Commencement of Operations of such Facility has occurred, the portion of such calendar year commencing on the date such Facility achieved Commencement of Operations).

“Annual Report” is defined in Section 6.1(a)(iii).

“Appraisal Procedure” means within fifteen (15) days of a Party invoking the procedure described in this definition the Buyer and the Seller shall engage a Qualified Appraiser, mutually acceptable to them, to determine the Fair Market Value of a Bloom System or Facility, as applicable.

“Approved LDC” means, with respect to each Site, the local natural gas distribution company serving the PPA Customer at such Site. For the avoidance of doubt, natural gas supplied by any Approved LDC shall be deemed to satisfy Seller’s requirements regarding the quality and composition of natural gas supplied to the Bloom Systems sold to Buyer hereunder.

“Available Annual Capacity Warranty Amount” means the amount determined by subtracting the sum of (x) the aggregate amount of Annual Capacity Warranty payments previously paid and (y) the aggregate amount of Refund Adder payments previously paid from (z) the Max Annual Capacity Warranty Amount.

“Base Case Model” has the meaning set forth in the ECCA.

“Bill of Sale” means a bill of sale in substantially the form attached hereto as Exhibit B.

“Bloom Member” means Clean Technologies 2014, LLC.

“Bloom Systems” means all on-site solid oxide fuel cell power generating systems capable of being powered by natural gas designed, constructed and installed by Seller, which will be installed in the Facilities, and “Bloom System” means each such system.

“BOF” means, for each Site, the Electrical Interconnection Facilities, the natural gas supply facilities, the water supply facilities, the data communications facilities, the foundations for the Bloom Systems and any other ancillary facilities and equipment installed in connection with the Facility at each Site and all other things ancillary to the Facility and required on or in the vicinity of the Site which are necessary to achieve Commencement of Operations at each such Site.

2

“BOF Work” is defined in Section 3.3(a).

“Business Day” means a day other than a Saturday, Sunday or other day on which banks in New York, New York, or San Francisco, California, are authorized or required to close.

“Buyer” is defined in the preamble.

“Buyer Default” is defined in Section 12.2.

“Buyer Indemnitee” is defined in Section 13.3(a).

“Buyer’s Lender” means each note purchaser party to the Note Purchase Agreement, any trustee or agent acting on its behalf, and its permitted successors and assigns as referred to in the Loan Agreement.

“Calendar Quarter” means each period of three months ending on March 31, June 30, September 30 and December 31.

“Capacity Warranty” means the Quarterly Capacity Warranty or the Annual Capacity Warranty, as applicable.

“Capacity Warranty Period” means the Quarterly Capacity Warranty Period or the Annual Capacity Warranty Period, as applicable.

“Claiming Party” is defined in Section 12.6.

“Class A Member” has the meaning set forth in the Holdco LLC Agreement.

“Class B Member” has the meaning set forth in the Holdco LLC Agreement.

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

“Commencement of Operations” means, with respect to any Facility, the completion and the performance of all of the following activities:

(a) each Bloom System comprising such Facility has been Delivered;

(b) such Facility has been Placed in Service;

(c) such Facility (i) has been attached to the load at the applicable Site and (ii) is providing the Minimum Power Product;

(d) Seller has performed and successfully completed all necessary acts under the applicable Interconnection Agreement (including performance testing) and has obtained permission from the applicable Person granting Buyer permission to 3 interconnect such Facility with the distribution or transmission facilities of the Transmitting Utility;

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(e) Seller shall have furnished a written certification, in the form attached hereto as Exhibit E from Seller addressed to Buyer with a copy to the Independent Engineer certifying, without any qualification, that Seller has installed each Bloom System comprising such Facility in accordance with the Performance Standards;

(f) Seller shall have provided to the Independent Engineer, on behalf of Buyer, all Documentation reasonably required by the Independent Engineer for the Facility to achieve commercial operation; and

(g) Seller shall have furnished a written certification from the Independent Engineer in the form of Exhibit F addressed to Buyer and to Buyer’s Lender certifying, without any qualification, that (i) such Facility’s installation and commissioning requirements pursuant to this Agreement have been successfully completed, (ii) such Facility has achieved commercial operation, and (iii) each of the requirements set out in paragraphs (a) to (f) of this definition have been satisfied.

“Confidential Information” is defined in Section 10.1.

“DDP (Incoterms 2010)” means Delivered Duty Paid (DDP) as such term is used in the International Rules for the Interpretation of Trade Terms (identified as “INCOTERMS® 2010”) as prepared by the International Chamber of Commerce.

“Delay LDs” is defined in Section 3.2(c).

“Delivery” is defined in Section 2.3.

“Delivery Date” means, with respect to each Facility, the date of Delivery as described in Section 2.3.

“Documentation” means all documentation, including testing, engineering, specification and operation and maintenance manuals, Training Materials, drawings, reports, standards, schematics, directions, samples and patterns in computer and readable form, which is necessary to meet the requirements of Section 3.4.

“ECCA” means that certain Equity Capital Contribution Agreement between Investor and Bloom Member, dated as of the Agreement Date.

“Efficiency” means the quotient of E/F, where E = the electricity produced by the applicable Fleet, Facility or Bloom System, measured in BTUs (British Thermal Units) at a conversion rate of 3,412 BTUs per kWh, and F = the fuel consumed by such Fleet, Facility or Bloom System, as applicable, measured in BTUs on a lower heating value basis.

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“Efficiency Warranty” is defined in Section 5.3.

“Efficiency Warranty Period” means each calendar month following the Commencement of Operations of the Facility (or, in the case of the calendar month in which Commencement of Operations occurred, the portion of such calendar month commencing on the date such Facility achieved Commencement of Operations), but excluding with respect to each relevant Bloom System any period when such Bloom System was (i) was subject to a Force Majeure Event, (ii) was not delivering Energy because of a failure to perform by the applicable PPA Customer, except to the extent caused or contributed to by Seller or its employees, agents, subcontractors or representatives, or (iii) was required by a Legal Requirement (which for this purpose shall include any utility requirement) to be disconnected from the distribution or transmission facilities of the Transmitting Utility or otherwise required not to deliver Energy as the result of a Legal Requirement or action by or a directive from the applicable Transmitting Utility with respect to such Facility (e.g., due to a grid event), except to the extent caused or contributed to by Seller or its employees, agents, subcontractors and representatives.

“Electrical Interconnection Facilities” means the equipment and facilities required to safely and reliably interconnect a Facility to the transmission system of the Transmitting Utility, including the collection system between each Bloom System, transformers and all switching, metering, communications, control and safety equipment, including the facilities described in any applicable Interconnection Agreement.

“Energy” means three-phase, 60-cycle alternating current electric energy constituting the Actual kWh.

“Execution Date” has the meaning set forth in the ECCA.

“Facility” means the Bloom Systems and the BOF at a Site.

“Facility Meter” means the revenue quality electricity generation meter to be located at the metering point (the proposed location of which is to be identified in the applicable Interconnection Agreement), which shall register all Energy produced by a Facility and delivered to the Interconnection Point.

“Fair Market Value” means, with respect to any Facility, Bloom System or part thereof, the price at which such asset would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell, and both having reasonable knowledge of the relevant facts, and specifically with respect to the Facility or any portion thereof, as determined consistently with Section 4.05 of Revenue Procedure 2007-65.

“Facility Purchase Conditions” means for a relevant Facility that the Facility has not been Placed in Service (including specifically because the events described in clauses (2), (3) and (4) of the definition of Placed in Service have not occurred), but that (a) the events described in clause (1) of the definition of Placed in Service have occurred, (b) all of Seller’s obligations under Section 3.3(a)(ii) of this Agreement have been performed, (c) a single line diagram of the Facility installation has been finalized and delivered to Buyer, and (d) Commencement of Operations is reasonably expected to occur within thirty (30) days following Delivery.

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“FERC” means the Federal Energy Regulatory Commission and any successor.

“Fleet” means on an aggregate basis, all Bloom Systems owned by Buyer that (i) are purchased pursuant to this Agreement, (ii) have been incorporated into Facilities which have been Placed in Service, and (iii) are installed pursuant to a given PPA.

“Force Majeure Event” means any event or circumstance that (a) prevents a Party from performing its obligations under this Agreement; (b) was not reasonably foreseeable by such Party; (c) was not within the reasonable control of, or the result of the negligence of such Party or a breach of this Agreement by such Party; and (d) such Party is unable to reasonably mitigate, avoid or cause to be avoided with the exercise of due diligence. “Force Majeure Events” shall include failure or interruption of performance due to: an act of God, civil or military authority, war, civil disturbances, terrorist activities, fire, explosions, the external power delivery system (a/k/a the grid) being out of the required specifications or totally failing (a/k/a brownout or blackout), or electric grid curtailment. Force Majeure Event does not include the lack of economic resources of a Party, Seller’s failure to design and construct the Facilities so as to meet the respective warranties hereunder, or the supply of natural gas from any source other than an Approved LDC. If an event or circumstance gives rise to a Force Majeure Event as defined herein under this Agreement, but such event or circumstance does not also constitute a ‘Force Majeure Event’ as defined under the applicable PPA (depending on which Facilities are affected), then for the purposes of any rights and obligations of the parties under this Agreement that relate to corresponding rights or obligations under such PPA such event or circumstance will not constitute a Force Majeure Event under this Agreement.

“Funding Date” has the meaning set forth in the ECCA.

“Funding Date Deadline” has the meaning set forth in the ECCA.

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

“Governmental Approvals” means (a) any authorizations, consents, approvals, licenses, rulings, permits, tariffs, rates, certifications, variances, orders, judgments, decrees by or with a relevant Governmental Authority and (b) any required notice to, any declaration of, or with, or any registration or filing by, or with, any relevant Governmental Authority.

“Governmental Authority” means any foreign, federal, state, local or other governmental, regulatory or administrative agency, court, commission, department, board, or other governmental subdivision, legislature, rulemaking board, court, tribunal, arbitrating body or other governmental authority.

“Holdco” means 2014 ESA HoldCo, LLC, a Delaware limited liability company.

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“Holdco LLC Agreement” means that certain Amended and Restated Operating Agreement of Holdco, to be entered into on or before the first Funding Date by the Class A Member and the Class B Member.

“Indemnifiable Loss” means any claim, demand, suit, loss, liability, damage (including any losses arising as a result of the loss or recapture of any ITC), obligation, payment, cost or expense (including the cost and expense of any action, suit, proceeding, assessment, judgment, settlement or compromise relating thereto and reasonable attorneys’ fees and reasonable disbursements in connection therewith).

“Indemnified Party” is defined in Section 13.4.

“Indemnifying Party” is defined in Section 13.4.

“Independent Engineer” means the Person appointed pursuant to Section 3.10.

“Intellectual Property” shall mean any or all of the following and all rights therein, whether arising under the laws of the United States or any other jurisdiction (i) all patents and patent applications (and all reissues, divisions, re-examinations, renewals, extensions, provisionals, continuations and continuations-in-part thereof), patent disclosures and inventions (whether patentable or not); (ii) all trade secrets, know-how and confidential and proprietary information; (iii) all copyrights and copyrightable works (including computer programs) and registrations and applications therefor and any renewals, modifications and extensions thereof; (iv) all moral and economic rights of authors and inventors, however denominated, throughout the world; (v) unregistered and registered design rights and any registrations and applications for registration thereof; (vi) trademarks, service marks, trade names, service names, brand names, trade dress, logos, slogans, corporate names, trade styles, domain names and other source or business identifiers, whether registered or not, together with all applications therefor and all extensions and renewals thereof and all goodwill associated therewith; (vii) semiconductor chip “mask” works, and registrations and applications for registration thereof, (viii) database rights; (ix) all other forms of intellectual property, including waivable or assignable rights of publicity or moral rights; and (x) any similar, corresponding or equivalent rights to any of the foregoing anywhere in the world.

“Interconnection Agreement” means an agreement between the PPA Customer (or the Buyer (as required)) and the applicable Transmitting Utility regarding interconnection of a Facility to the transmission or distribution system of such Transmitting Utility.

“Interconnection Point” means, with respect to each Facility, the point at which title and risk of loss with respect to the electricity produced by such Facility passes to the applicable PPA Customer.

“Investor” means Exelon Generation Company, LLC.

“IRS” means the Internal Revenue Service.

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

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“kW” means kilowatt.

“kWh” means kilowatt-hour.

“Legal Requirement” means any law, statute, act, decree, ordinance, rule, directive (to the extent having the force of law), tariff, order, treaty, code or regulation or any interpretation of any of the foregoing, as enacted, issued or promulgated by any Governmental Authority, NERC, any Person that NERC has delegated its authority to under the Federal Power Act or any Person that operates an interstate electric transmission system, including all amendments, modifications, extensions, replacements or re-enactments thereof, in each case applicable to or binding upon such Person or any of its properties or to which such Person or any of its property is subject.

“Liens” means any lien, security interest, mortgage, hypothecation, encumbrance or other restriction on title or property interest.

“Loan Agreement” means the agreement between the Buyer and the Buyer’s Lender or thereafter any subsequent, additional or alternative lenders pursuant to which the Buyer’s Lender provides finance or enters into a funding arrangement with Buyer to finance all or part of the costs of the Purchase Price of the Facilities.

“Managing Member” has the meaning set forth in the Holdco LLC Agreement.

“Max Annual Capacity Warranty Amount” means the product of [***] multiplied by (y) the System Capacity of all Systems in the Portfolio in kW on the Funding Date Deadline.

“Maximum Liability” means, with respect to Seller, the greater of (i) the aggregate Residual Value of the Portfolio as of such date, and (ii) the Performance LD Cap plus any Delay LDs paid to Buyer plus any liability for any PPA Warranties that Seller has incurred pursuant to Section 5.8 plus any Indemnifiable Losses arising from the loss or recapture of any ITC, and with respect to Buyer, One Million Dollars ($1,000,000) provided that a reduction in the Maximum Liability of Seller shall never result in a requirement for Buyer or any Buyer Indemnitee to return any money to Seller.

“Minimum Efficiency Level” means an Efficiency quotient of 45% measured over the Efficiency Warranty Period.

“Minimum kWh” means the product of (x) the number of hours in the applicable Capacity Warranty Period minus the number of hours for each Bloom System at the applicable Site or in the Portfolio, as applicable, as of the last day of the applicable Capacity Warranty Period following Commencement of Operations with respect to the applicable Facility when each such Bloom System (i) was subject to a Force Majeure Event, (ii) was not delivering Energy, or was delivering Energy at a reduced level, because of a failure to perform by the applicable PPA Customer, except to the extent caused or contributed to by Seller or its employees, agents, subcontractors or representatives, or (iii) was required by a Legal Requirement (which for this purpose shall include any utility requirement) to be disconnected from the distribution or

[***] Confidential Treatment Requested

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transmission facilities of the Transmitting Utility or otherwise required not to deliver Energy as the result of a Legal Requirement or action by or a directive from the applicable Transmitting Utility with respect to the applicable Facility (e.g., due to a grid event), except to the extent caused or contributed to by Seller or its employees, agents, subcontractors and representatives, and (y) the Minimum Power Product for the applicable Capacity Warranty Period.

“Minimum Power Product” means (1) when this term is used for the Quarterly Capacity Warranty, the aggregate System Capacity of the Bloom Systems in the Portfolio in kW for the applicable Quarterly Capacity Warranty Period multiplied by 80% (2) when this term is used for the Annual Capacity Warranty, the aggregate System Capacity of the Bloom Systems in the Portfolio in kW for the applicable Annual Capacity Warranty Period multiplied by 94.77% and (3) when this term is used for the determination of Commencement of Operations, the aggregate System Capacity of the Bloom Systems in the Facility in kW for a 24 hour period multiplied by 100%. An example of a calculation of the Minimum Power Product is set forth in Annex A.

“MW” means megawatt.

“NERC” means the North American Electric Reliability Corporation or any successor.

“Party” and “Parties” have the meanings set forth in the preamble.

“Performance LD Cap” has the meaning provided in Section 5.7(c).

“Performance Standards” has the meaning provided in Section 3.9.

“Permits” means all Governmental Approvals that are necessary under applicable Legal Requirements or this Agreement to have been obtained at such time in light of the stage of development of the Portfolio to site, construct, test, operate, maintain, repair, lease, own or use each Facility as contemplated in this Agreement to sell electricity from the Portfolio or for a Party to enter into this Agreement or to consummate any transaction contemplated hereby, in each case in accordance with all applicable Legal Requirements.

“Permitted Liens” means any (a) Liens that are released or otherwise terminated at or prior to the Physical Delivery Date of the encumbered assets; (b) obligations or duties to any Governmental Authority arising in the ordinary course of business (including under licenses and Permits held by Buyer and under all applicable laws, rules, regulations and orders of any Governmental Authority); (c) obligations or duties under easements, leases or other property rights; (d) Liens in favor of Buyer’s Lender; and (e) any other Liens agreed to in writing by Seller and Buyer.

“Person” means any individual, partnership, limited liability company, joint venture, corporation, trust, unincorporated organization, or governmental entity or any department or agency thereof

“Physical Delivery” means for each Bloom System, physical delivery of such Bloom System to its Site.

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“Physical Delivery Date” means for each Bloom System, the date of Physical Delivery.

“Placed in Service” means, with respect to any Facility, the completion and performance of all of the following activities: (1) obtaining the necessary licenses and Permits for the operation of such Facility and the sale of power generated by the Facility in accordance with clause (4) of this definition, (2) completion of critical tests necessary for the proper operation of such Facility in accordance with clause (4) of this definition, (3) synchronization of such Facility onto the electric distribution and transmission system of the applicable Transmitting Utility, and (4) the commencement of regular, continuous, daily operation of such Facility.

“Policy” means the credit protection insurance policy issued by Indian Harbor Insurance Co. in favor of Buyer, dated as of July 18, 2014.

“Portfolio” means, on an aggregate basis, all Bloom Systems owned by Buyer that are purchased pursuant to this Agreement and that have been incorporated into Facilities which have been Placed in Service.

“Portfolio Warranty” is defined in Section 5.5(a).

“PPA” means each power purchase, energy server use, or similar agreement entered into between Buyer and a PPA Customer listed on Annex D hereto, as the same may be updated from time to time by the mutual agreement of the Parties.

“PPA Customer” means each non-Buyer counter-party to a PPA.

“PPA Warranties” has the meaning provided in Section 5.8.

“Prudent Electrical Practices” means those practices, methods, equipment, specifications and standards of safety and performance, as the same may change from time to time, as are commonly used by a significant portion of the grid-tied fuel cell electrical generation industry operating in the United States as good, safe and prudent engineering practices in connection with the design, construction, operation, maintenance, repair and use of electrical and other equipment, facilities and improvements of such electrical generating facility, including any applicable practices, methods, acts, guidelines, standards and criteria of FERC and all applicable Legal Requirements.

“Purchase Order” means a purchase order for a Facility or Facilities to be purchased by Buyer in substantially the form of Exhibit A.

“Purchase Price” means a purchase price for each Facility, based on the aggregate System Capacity of the Bloom Systems comprising such Facility, [***] plus any Taxes for the account of Buyer under Section 2.2(c) in respect of such Facility.

“Qualified Appraiser” means a nationally recognized third-party appraiser reasonably acceptable to Buyer and Seller which shall (i) be qualified to appraise power systems similar to the Bloom Systems, and/or experienced in such businesses in the general geographic region of the relevant Facility, and (ii) not be associated with either Buyer or Seller or any Affiliate thereof.

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“Quarterly Capacity Warranty Payment” has the meaning provided in Section 5.4(a).

“Quarterly Capacity Warranty” has the meaning provided in Section 5.4(a).

“Quarterly Capacity Warranty Period” means, with respect to a Facility, each Calendar Quarter following the Commencement of Operations of such Facility (or, in the case of the Calendar Quarter in which Commencement of Operations of such Facility, the portion of such Calendar Quarter commencing on the date such Facility achieved Commencement of Operations).

“Refund Adder” means, with respect to any System in respect of which Refund Value is being paid, an amount determined by multiplying the System Capacity of such System by a fraction, the numerator of which is the then Available Annual Capacity Warranty Amount and the denominator of which is the aggregate number of kWs in the Portfolio at the time such Refund Value is to be paid.

“Refund Value” means, with respect to any Bloom System (including any Underperforming System) or Facility, the Residual Value of such Bloom System or Facility, as calculated as of the date that Seller becomes obligated to refund such amount to Buyer.

“Representatives” of a Party means such Party’s authorized representatives, including its professional and financial advisors.

“Residual Value” means, for any Bloom System or Facility, the greater of (a) the Fair Market Value of such Facility or Bloom System (and a pro rata portion of the BOF allocable to such Bloom System) (as determined under the Appraisal Procedure if the Buyer and Seller cannot agree as to that Fair Market Value within ten (10) days), and (b) 100% of the Purchase Price for such Bloom System or Facility until the first anniversary of Commencement of Operations of the applicable Facility, declining by 7.14% (i.e. 1/14th) on each anniversary of such date thereafter (for example, on the fifth anniversary of Commencement of Operations, the Residual Value will be 71.43% of the Purchase Price).

“SCADA” means the supervisory control and data acquisition systems.

“Seller” is defined in the preamble.

“Seller Default” is defined in Section 12.1.

“Seller Indemnitee” is defined in Section 13.2.

“Service Fees” is defined in Section 4.3(a).

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“Service Provider” means an operation and maintenance contractor appointed by the Seller and approved by the Buyer pursuant to Section 4.6.

“Service Technicians” is defined in Section 4.2(d).

“Site” means the parcel of land leased or licensed from a PPA Customer to Buyer under a Site Lease and all easements appurtenant, easements in gross, license agreements and other rights running in favor of Buyer which provide access to the applicable Facility.

“Site Lease” means each agreement between Buyer and a PPA Customer regarding the lease, license, or similar contractual arrangement providing Buyer with the right of access to a Site for the purposes of performing Buyer’s obligations pursuant to the applicable PPA.

“Site Preparation Services” means preparing each Site for installation of a Facility, obtaining the required Permits to construct, operate and maintain the Facility, and providing for natural gas interconnection facilities, the Electrical Interconnection Facilities and any other ancillary facilities and equipment between the Bloom Systems and the applicable Transmitting Utility and otherwise performing the tasks required to prepare each Site for the Facility at the Site to attain Commencement of Operations.

“Software” shall mean all computer software that is necessary for Buyer to own and operate the Facilities in compliance with the terms of this Agreement and the PPAs.

“Software License” is defined in Section 11.2(a).

“System Capacity” means, with respect to a Bloom System, the “System Capacity” set forth on the applicable specification sheet provided by the manufacturer of such Bloom System.

“Tax” (and, with correlative meaning, “Taxes” and “Taxable”) means:

(i) any taxes, customs, duties, charges, fees, levies, penalties or other assessments imposed by any federal, state, local or foreign taxing authority, including, but not limited to, income, gross receipts, windfall profit, severance, property, production, sales, use, license, excise, franchise, net worth, employment, occupation, payroll, withholding, social security, alternative or add-on minimum, ad valorem, transfer, stamp, or environmental tax, or any other tax, custom, duty, fee, levy or other like assessment or charge of any kind whatsoever, together with any interest, penalty, addition to tax, or additional amount attributable thereto; and

(ii) any liability for the payment of amounts with respect to payment of a type described in clause (i), including as a result of being a member of an affiliated, consolidated, combined or unitary group, as a result of succeeding to such liability as a result of merger, conversion or asset transfer or as a result of any obligation under any tax sharing arrangement or tax indemnity agreement.

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“Term” means the period which (a) shall commence on the first day of the Warranty Period for the first Facility to achieve Commencement of Operation and (b) shall, unless terminated earlier under ARTICLE XII of this Agreement or unless extended by mutual agreement of the Parties, terminate on the date that is the last day of the Warranty Period for the last Facility to achieve Commencement of Operations.

“Third Party Claim” means any claim, action, or proceeding made or brought by any Person who is not (a) a Party to this Agreement, or (b) an Affiliate of a Party to this Agreement (and that is not a claim based on breach by the Indemnified Party of its obligations under this Agreement).

“Training Materials” is defined in Section 4.7.

“Transaction Documents” means this Agreement and the Administrative Services Agreement.

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

“Underperforming Systems” means any Bloom System that fails to deliver, in any Calendar Quarter during which the Portfolio fails to satisfy Quarterly Capacity Warranty, a number of kWh greater than or equal to the product of (x) such Bloom System’s System Capacity multiplied by 80% and (y) the number of hours in such quarter minus the number of hours as of the last day of such quarter when such Bloom System (i) was subject to a Force Majeure Event, (ii) was not delivering Energy because of a failure to perform by the applicable PPA Customer, except to the extent caused or contributed to by Seller or its employees, agents, subcontractors or representatives, or (iii) was required by a Legal Requirement (which for this purpose shall include any utility requirement) to be disconnected from the distribution or transmission facilities of the Transmitting Utility or otherwise required not to deliver Energy as the result of a Legal Requirement or action by or a directive from the applicable Transmitting Utility with respect to the applicable Facility (e.g., due to a grid event), except to the extent caused or contributed to by Seller or its employees, agents, subcontractors and representatives.

“Warranty Period” means, for each Bloom System, the period beginning on the date the applicable Facility achieves the requirements of subsections (a), (c) and (d) of the definition of “Commencement of Operations” and ending on the later of (i) fifteenth (15th) anniversary of the date of Commencement of Operations of such Facility and (ii) if the applicable PPA has been renewed or extended, the date on which such PPA expires or terminates.

“Warranty Specifications” means the Annual Capacity Warranty, the Quarterly Capacity Warranty and the Efficiency Warranty.

Section 1.2 Other Definitional Provisions.

(a) As used in this Agreement and in any certificate or other documents made or delivered pursuant hereto or thereto, financial and accounting terms not defined in this

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Agreement or in any such certificate or other document, and financial and accounting terms partly defined in this Agreement or in any such certificate or other document to the extent not defined, will have the respective meanings given to them under GAAP. To the extent that the definitions of financial and accounting terms in this Agreement or in any such certificate or other document are inconsistent with the meanings of such terms under GAAP, the definitions contained in this Agreement or in any such certificate or other document will control.

(b) The words “hereof’, “herein”, “hereunder”, and words of similar import when used in this Agreement will refer to this Agreement as a whole and not to any particular provision of this Agreement. Section references contained in this Agreement are references to Sections in this Agreement unless otherwise specified. The term “including” will mean “including without limitation”.

(c) The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms.

(d) Any agreement, instrument or statute defined or referred to herein or in any instrument or certificate delivered in connection herewith means (unless otherwise indicated herein) such agreement, instrument or statute as from time to time amended, amended and restated, modified or supplemented and includes (in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein.

(e) Any references to a Person are also to its permitted successors and assigns.

ARTICLE II.

PURCHASE AND SALE

Section 2.1 Purchase Orders.

(a) In accordance with the terms hereof, Buyer may, from time to time, submit Purchase Orders to Seller for the purchase of Facilities (not to exceed, in the aggregate, 20.95 MW in System Capacity) in accordance with the terms hereof. So long as no Buyer Default has occurred and is continuing hereunder, Seller shall promptly accept each such Purchase Order by countersigning and returning it to Buyer; provided that the failure of Seller to countersign or return to Buyer a Purchase Order shall not invalidate such Purchase Order and Seller shall be obligated to deliver the Bloom Systems comprising such Facility under such Purchase Order as contemplated by this Agreement.

(b) Each Purchase Order shall specify, among other details required by the terms thereof, (i) the aggregate System Capacity of Bloom Systems ordered, (ii) the Sites to which such Facility(ies) shall be delivered, (iii) the aggregate System Capacity to be delivered to each Site and (iv) the requested Physical Delivery Date for the Bloom Systems.

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Section 2.2 Payment of Purchase Price. For each Facility for which Buyer has submitted a Purchase Order:

(a) Seller shall invoice Buyer for payment of the Purchase Price for such Facility as follows:

(i) upon the Physical Delivery Delivery Date of all applicable Bloom Systems,forty percent (40%) of the Purchase Price for such Facility plus 100% of the Taxes to be paid by Buyer pursuant to 2.2(c) for such Facility; and

(ii) upon Commencement of Operations for the Facility, sixty percent (60%) of the Purchase Price for such Facility.

(b) Each invoice shall include the following information for each applicable Facility:

(i) the Site on which the Facility is installed or will be installed;

(ii) the serial number and System Capacity of each Bloom System comprising such Facility, and purchase order number;

(iii) the Purchase Price, including details of (x) all amounts previously paid towards or credited against the Purchase Price, and (y) all amounts remaining due and payable on the Purchase Price;

(iv) the Physical Delivery Date or expected Physical Delivery Date, as applicable;

(v) the date of Delivery or expected date of Delivery, as applicable;

(vi) for each invoice provided upon Commencement of Operations for a Facility, a copy of the written certification by the Independent Engineer for that Facility as required by paragraph (g) of the definition of ‘Commencement of Operations’; and

(vii) such other information as Buyer may reasonably request.

(c) Buyer shall pay all state and local sales, use or other transfer Taxes required to be paid by Buyer and attributable to the transfer of the Facility to Buyer, except that Seller shall be responsible for and pay any Taxes arising as a result of any components of such Facility or any Facility being acquired from a source outside of the United States.

(d) Payments of the portion of the Purchase Price set forth in Section 2.2(a)(i) for a Facility shall be payable on the date of receipt by Buyer of an invoice pursuant to Section 2.2(a)(i) with respect to such Facility and must be paid no later than the date that is five (5) Business Days following both (i) the first Funding Date for such Facility following [***] comprising such Facility, and (ii) the date of certification in writing to Buyer that on the date of Physical Delivery, of such Bloom Systems, the Facility Purchase Conditions were true and correct. If a PPA is terminated by a PPA Customer with respect to one or more Facilities prior to the date such Facilities have achieved Commencement

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of Operations, then Seller shall repurchase the Facilities from the Buyer on an AS IS basis by refunding (x) to Holdco the portion of the Purchase Price paid by Investor, which amount shall not exceed the percentage of the Purchase Price of the applicable Facilities paid by Investor for such Facilities and (y) to Buyer the portion of the Purchase Price paid by Bloom Member, which amount shall not exceed the percentage of the Purchase Price of the applicable Facilities paid by Bloom Member for such Facilities, in which case Seller shall promptly remove such Facilities from the applicable Site and take title to such Facilities upon payment of such refund amount, and the applicable Bloom Systems shall no longer constitute a portion of the Portfolio. If a Facility is repurchased by Seller pursuant to this Section 2.2(d), Seller shall at its sole cost and expense remove the applicable Bloom Systems and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable Site Lease) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections in the manner required by all Legal Requirements and the applicable Site Lease.

(e) Final payments of the Purchase Price set forth in Section 2.2(a)(ii) shall be payable on the date of receipt by Buyer of an invoice pursuant to Section 2.2(a)(ii) with respect to a Facility and must be paid no later than the date that is five (5) Business Days following the latest of (i) the next Funding Date following the receipt by Buyer of an invoice pursuant to Section 2.2(a)(ii) with respect to such Facility, (ii) the date of funding of the portion of the final payment of the Purchase Price set forth in Section 2.2(a)(ii) that is to be funded under the Loan Agreement with respect to such Facility and (iii) the date of certification to Buyer that Commencement of Operations of the Facility has occurred.

(f) If Buyer defaults in any payment when due for any Facility (other than with respect to amounts being disputed in good faith), Seller may, on not less than five (5) Business Days prior notice to Buyer, at its option and without prejudice to its other remedies, (i) suspend performance of its obligations hereunder for such Facility, or defer delivery of such Facility to Buyer and (ii) require that (until all such outstanding payment defaults have been cured) the payment of the portion of the Purchase Price for future Facilities required under Section 2.2(a)(ii) above be made immediately prior to the delivery of the applicable Bloom Systems, but Seller shall not be able to otherwise suspend performance of its obligations hereunder for other Facilities for which no such default exists.

(g) Seller shall promptly pay all subcontractors working on the Facilities delivered and installed under this Agreement (including, for clarification, subcontractors working off-Site), and shall, at the time of each payment made to any such subcontractor, obtain a partial or final lien waiver, as applicable, in a form approved by Buyer, and promptly provide Buyer with a copy of each such lien waiver. Seller shall discharge any Liens by such subcontractors within thirty (30) days of receiving notice thereof. Seller shall release all Liens in favor of Seller on’ each Facility upon final payment of the Purchase Price for such Facility. Upon the failure of Seller to discharge a Lien required to be discharged under this Section 2.2, or else promptly to provide a bond in an amount and from a surety acceptable to Buyer to protect against such Lien, in each case, within thirty (30) days after Seller is aware of the existence thereof, Buyer may, but shall not be obligated to, pay, discharge or obtain a bond or security for such Lien and, upon such payment, discharge or posting of security therefor, shall be entitled immediately to recover from Seller the amount thereof, together with all reasonable and necessary expenses actually

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incurred by Buyer in connection with such payment or discharge, or to set off all such amounts against any amounts owed by Buyer to Seller hereunder. After receipt of the portion of the Purchase Price for each Facility as provided in Section 2.2(a)(i), Seller will issue a statement of the balance of the Purchase Price for such Facility, being the amount which, once paid to Seller, will cause Seller to release its lien on the Facility. Seller hereby agrees that third parties, such as, without limitation, Buyer’s Lender, may rely on each such statement.

(h) Notwithstanding the foregoing in this Section 2.2 or any other provision of this Agreement to the contrary, if Buyer (a) admits in writing its inability to pay its debts generally as they become due; (b) files a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other applicable law or statute of the United States of America or any State, district or territory thereof; (c) makes an assignment for the benefit of creditors; (d) consents to the appointment of a receiver of the whole or any substantial part of its assets; (e) has a petition in bankruptcy filed against it, and such petition is not dismissed within ninety (90) days after the filing thereof; or if (f) a court of competent jurisdiction enters an order, judgment, or decree appointing a receiver of the whole or any substantial part of Buyer’s assets, and such order, judgment or decree is not vacated or set aside or stayed within ninety (90) days from the date of entry thereof; or (g) under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the whole or any substantial part of Buyer’s assets and such custody or control is not terminated or stayed within ninety (90) days from the date of assumption of such custody or control, then Seller shall have no obligation to deliver any Facility hereunder, or if Physical Delivery for the Bloom Systems comprising a Facility has already occurred, Seller shall have the right to require immediate payment of any amount due under Section 2.2(a)(i) and the right to require that the final payment of the Purchase Price for such Facility be made promptly (but no earlier than Commencement of Operations of such Facility).

(i) With respect to any payment due from one party to the other pursuant to this Agreement, unless being contested in good faith, interest shall accrue daily at the lesser of a monthly rate of [***] or the highest rate permissible by law on the unpaid balance.

Section 2.3 Purchase and Sale of Facilities. Upon the “Delivery Date” for a Facility as provided in the invoice described in Section 2.2(a)(i) above, which date in any case may not be earlier than when Physical Delivery of all Bloom Systems comprising such Facility occurs, nor any later than the date for which the Facility Purchase Conditions for the Facility are and remain true and correct, (1) Seller shall have sold, assigned, conveyed, transferred and delivered to Buyer, and Buyer shall have purchased, assumed and acquired from Seller, all of Seller’s right, title and interest in and to such Facility, (ii) the sale of such Facility shall occur, and (iii) Seller shall provide Buyer with (a) a Bill of Sale evidencing the same, and (b) lien waivers from each subcontractor performing BOF Work at the applicable Site, stating that such subcontractor has been paid all amounts owed to it as of the date of the lien waiver (the foregoing being “Delivery”).

[***] Confidential Treatment Requested

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Section 2.4 PPA Termination and Re-Purchase of Facilities.

(a) Subject to Section 12.7(b), in the event that (i) a PPA Customer terminates a PPA with respect to a Facility prior to its expiration, (ii) the applicable PPA Customer pays Buyer the termination value due under the applicable PPA, and (iii) Buyer has paid all amounts owed by it to Buyer’s Lender under the Loan Agreement in respect of the applicable PPA termination and Buyer’s Lender has released the applicable collateral, Buyer shall distribute such Facility to Holdco without cost to Holdco.

(b) In the event that a PPA Customer terminates a PPA with respect to a Facility prior to its expiration and the applicable PPA Customer pays Buyer the termination value due under the applicable PPA, Buyer shall reimburse Seller for any costs or expenses incurred in connection with the removal of the Bloom Systems.

ARTICLE III.

DELIVERY AND INSTALLATION OF

BLOOM SYSTEMS AND BALANCE OF FACILITIES

Section 3.1 Access to Site. Seller shall be responsible for ascertainment of the suitability of the Sites, the environment around the Sites, the Sites’ soil condition and other ground conditions for construction of the Facilities. As between Seller and Buyer, Seller shall be solely responsible for all Site Preparation Services at Seller’s cost. Seller, as administrator for Buyer pursuant to the Administrative Services Agreement, shall provide access to the Sites to permit Seller to deliver and install each Bloom System and the BOF to the Sites and to connect the applicable Facility to the distribution and transmission facilities of the Transmitting Utility, as applicable. If a PPA Customer requires a change in the location of a Site from that specified in a Purchase Order, (a) Buyer shall submit a written notice to Seller setting forth the details of such location change, (b) the Seller shall administer and perform the Site Preparation Services as required for that changed location to the extent required and in accordance with the relevant PPA and (c) to the extent that such PPA Customer pays to Buyer an amount under the applicable PPA in connection with such required change in the location of a Site, Buyer shall pay the same to Seller promptly upon receipt from such PPA Customer, except that Buyer shall retain the portion of such amount equaling any applicable Relocation Revenue Loss (as defined in the applicable PPA). If a PPA Customer requires changes in the installation of a Bloom System such that the PPA Customer owes the Buyer change fees pursuant to the applicable PPA, Buyer shall pay the same to Seller promptly upon receipt from such PPA Customer.

Section 3.2 Physical Delivery of Bloom Systems.

(a) Physical Delivery of each Bloom System shall occur no more than sixty (60) days after the issuance of the applicable Purchase Order.

(b) Physical Delivery of each Bloom System shall be DDP (Incoterms 2010) to its Site, in accordance with the California Uniform Commercial Code then in effect. Title to each Bloom System shall pass to Buyer upon Seller’s Delivery of such Bloom System, and such title shall be good and marketable and free of all Liens, except for Permitted Liens. From and after Seller’s Delivery of each Bloom System to Buyer all risk of loss or damage to such Bloom System shall be borne by Buyer.

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(c) Following the Funding Date Deadline, in the event that the average time (weighted on the basis of System Capacity) from Physical Delivery to achievement of Commencement of Operations of all Facilities included in the Portfolio exceeds sixty (60) days, then Seller shall, within sixty (60) days following the Funding Date Deadline, pay to the Buyer, or such other party as Seller and the Class A Members shall achieve a return equal to the 15-year internal rate of return as set forth in the Base Case Model (such amount, “Delay LDs”). For the calculation of such amount, all assumptions set forth in the Base Case Model will be unchanged from those used on the Execution Date, except to update the shipment schedule to reflect the actual dates of Physical Delivery and Commencement of Operations.

(d) To the extent any Facility has not achieved Commencement of Operations within the earlier of (i) six (6) months of the payment of the portion of Purchase Price set forth in Section 2.2(a)(i) for the final Bloom System to be incorporated into such Facility and (ii) the Funding Date Deadline, then Buyer shall have the ongoing right for the period from the end of that six-month period until the earlier of the date that such Facility has achieved Commencement of Operations and ninety (90) days after the end of that six-month period to elect that such Facility be removed from its Site and delivered to Seller at Seller’s expense in an AS IS condition and that Seller promptly (but in no event later than thirty (30) days thereafter) (i) refund (x) to Holdco the portion of the Purchase Price paid by Investor, which amount shall not exceed the percentage of the Purchase Price of the applicable Facilities paid by Investor for such Facilities and (y) to Buyer the portion of the Purchase Price paid by Bloom Member, which amount shall not exceed the percentage of the Purchase Price of the applicable Facilities paid by Bloom Member for such Facilities, at which time title and risk of loss with respect to such Facility shall pass back to Seller, and (ii) restore that portion of the Site which was improved to accept the installation of such removed Facility.

Section 3.3 Delivery of Balance of Facility; Installation of Bloom Systems.

(a) Seller shall be responsible for engineering, procuring, constructing, installing and commissioning the BOF, and Seller shall cause each Facility to achieve Commencement of Operations without any compensation or reimbursement by Buyer, other than the Purchase Price under this Agreement, in accordance with the following (collectively, the “BOF Work”):

(i) Seller shall perform and complete all BOF Work in accordance and consistent with the Performance Standards;

(ii) Seller shall cause to be performed any and all studies, reports and applications (in the name of Buyer, if Seller is an Affiliate of Buyer) that are necessary for interconnection to the distribution and transmission facilities of the Transmitting Utility;

(iii) Seller shall perform the BOF Work and act at all times as an independent contractor. Seller shall at all times maintain such supervision, direction and control over

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its employees, agents, subcontractors and representatives as is consistent with and necessary to preserve its independent contractor status. Seller is permitted to enter into contracts or otherwise hire one or more subcontractors to perform the Seller’s work on its behalf. Each subcontractor must be a reputable, qualified firm with an established record of successful performance in its trade, and shall obtain and maintain such insurance coverages having such terms as set forth in Annex B. Seller shall not be relieved from its obligation to provide the BOF Work if a subcontractor agrees to provide any or all of such BOF Work. No subcontractor is intended to be or will be deemed a third-party beneficiary of this Agreement. Nothing contained herein shall create any contractual relationship between any subcontractor and Buyer or obligate Buyer to pay or cause the payment of any amounts to any subcontractor, including any payment due to any third party. Seller shall not permit any subcontractor to assert any Lien against any Facility or Bloom System, or attach any Lien other than a Permitted Lien. None of Seller’s employees, subcontractors or any such subcontractor’s employees will be or will be considered to be employees of Buyer. Seller shall be fully responsible to Buyer for the acts and omissions of each such employee or subcontractor. Seller will be fully responsible for the payment of all wages, salaries, benefits and other compensation to its employees and for payment of any Taxes due because of the BOF Work;

(iv) Seller shall, and shall cause each of its subcontractors to, install the Bloom Systems and the BOF at each Site using items that are new, and undamaged at the time of such use or installation;

(v) Seller shall install, test, and cause the Commencement of Operations with respect to each Facility as provided in Section 3.4;

(vi) Seller shall pay all amounts owed to its subcontractors and vendors in connection with the performance of the BOF Work on a timely basis and shall hold Buyer harmless against any claims asserted by such subcontractors and vendors;

(vii) Seller shall obtain and maintain, or cause to be obtained and maintained (where required, in the name of the Buyer or each PPA Customer, as the case may be), all Permits necessary to design, install, commission, construct, occupy, and operate each Facility and each Site; and

(viii) Seller shall cause BOF Work to be completed in a good and workmanlike manner and in accordance with the Performance Standards, free and clear of all Liens other than Permitted Liens. The BOF Work shall not be considered complete until Seller shall have procured the issuance of the Independent Engineer’s certificate in the form of Exhibit F hereto.

(b) Title and risk of loss to each component of such BOF Work for the Site which is not performed and provided on assets owned by a relevant PPA Customer or relevant Transmitting Utility shall pass to Buyer upon the later of the Physical Delivery Date of the first Bloom System at the Site and the date such component is installed as part of the Facility at the Site. For the avoidance of doubt, the passage of title and risk of loss with respect to each Facility shall have passed to Buyer prior to such Facility being Placed in Service. From and after the Commencement of Operations of the Facility of which particular BOF Work is a part, all risk of loss or damage to such BOF Work which is owned by Buyer shall be borne by Buyer.

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Section 3.4 Commissioning; Commencement of Operations.

(a) Upon the occurrence of the Physical Delivery for a Bloom System, Seller shall promptly perform the following, at Seller’s sole cost:

(i) Seller shall provide installation, inspection, commissioning and start-up for each Bloom System and the BOF at the applicable Site in accordance with the installation manuals provided for such Bloom System and the applicable Site Lease, and in conformance with Prudent Electrical Practices. Without limitation of the foregoing, each Facility will be connected by the Seller to the natural gas source, water source and SCADA at the applicable Site and to the applicable Facility’s Electrical Interconnection Facilities;

(ii) Prior to Commencement of Operations of each Facility, Seller shall, upon reasonable notice to the Independent Engineer and the Buyer, perform an acceptance test as is required and approved by the Independent Engineer (but not less stringent than the testing applied to its fuel cell power generating systems for any other major customer of Seller) of each Bloom System incorporated into such Facility and the applicable BOF in the presence of the Independent Engineer (if so required by the Independent Engineer) and the Buyer (if Buyer elects to attend), and such Bloom Systems and applicable BOF shall have passed such test as witnessed by the Independent Engineer (if so required by the Independent Engineer);

(iii) Seller shall cause Commencement of Operations for such Facility to occur. Seller shall promptly certify in writing to Buyer when each Facility achieves Commencement of Operations;

(iv) Seller will provide to Buyer, prior to the Commencement of Operations, a single line diagram of the Facility installation, electronic system manuals, copies of all relevant design documents, and printed system manuals, in each case relating to such Facility (in paper copy and electronic format). Seller shall deliver to Buyer any other documentation necessary to establish placement in service for purposes of section 48 of the Code;

(v) Until Commencement of Operations of the Facility, Seller shall be responsible for providing physical security of such Facility; and

(vi) If requested by Buyer, Seller shall provide operator training and associated training materials to personnel of Buyer sufficient to instruct Buyer on operation of such Facility in conformance with Prudent Electrical Practices.

(b) Seller’s services under this Section 3.4 shall be fully comprehensive of all services, labor, and equipment necessary to complete installation of a fully commissioned and operating Facility in accordance with this Agreement, the applicable PPA, the applicable Interconnection Agreement, and the applicable Site Lease.

(c) Seller shall be responsible, at its sole cost and expense, for maintaining and complying with all Permits required to perform its services under this Agreement and Buyer agrees to cooperate with and assist Seller in obtaining such Permits.

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Section 3.5 Insurance. Seller shall maintain, on Buyer’s behalf, the insurance described in Annex B with respect to each Facility until the end of the Warranty Period with respect to such Facility.

Section 3.6 Disposal; Right of First Refusal.

(a) In the event that Buyer decides to scrap, abandon or otherwise dispose of any Bloom System, Buyer shall notify Seller and Seller shall have the right but not the obligation to obtain title to the Bloom System and remove the Bloom System at Seller’s cost; provided, however, that Seller will not be responsible for remediation of the Site in which the Bloom System was located.

(b) Except as set forth in Section 2.4, in the event that Buyer desires to sell or otherwise transfer title to any Bloom System to a transferee other than a PPA Customer pursuant to a PPA or to Buyer’s Lender or its designee (or any assignee of (or purchaser in foreclosure from) Buyer’s Lender) in connection with Buyer’s Lender’s exercise of its security interest in such Bloom System, Buyer shall notify Seller and Seller shall have the right of first refusal to purchase or acquire the Bloom System on the same terms and conditions of such sale. In the event that Seller exercises such right of first refusal, Seller shall, promptly following payment of the purchase price of such Bloom System, remove the Bloom System at Seller’s cost, including the remediation of the Site in which the Bloom System was located in accordance with the terms of the applicable Site Lease.

Section 3.7 Buyer’s Lender. Seller shall furnish Buyer’s Lender such certifications regarding its actions under this ARTICLE III as Buyer’s Lender shall reasonably request and shall otherwise cooperate with Buyer’s Lender.

Section 3.8 Access; Cooperation. Seller shall provide to Buyer such other information that is in the possession of Seller or its Affiliates or is reasonably available to Seller regarding the permitting, engineering, construction, or operations of Seller, its subcontractors or the Facilities, and other data concerning Seller, its subcontractors or the Facilities that Buyer may, from time to time, reasonably request in writing, subject to Seller’s obligations of confidentiality to third parties with respect to such information.

Section 3.9 Performance Standards. For the purpose of this Agreement, Seller shall perform under this Agreement in accordance and consistent with each of the following (unless the context requires otherwise): (A) plans and specifications subject to Permits under applicable law and applicable to each Facility; (B) the manufacturer’s recommendations with respect to all equipment and all maintenance and operating manuals or service agreements, whenever furnished or entered into, including any subsequent amendments or replacements thereof, issued by the manufacturer, provided they are consistent with generally accepted practices in the fuel cell industry; (C) the requirements of all applicable insurance policies; (D) preserving all rights to any incentive payments, warranties, indemnities or other rights or remedies, and enforcing or

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assisting with the enforcement of the applicable warranties, making or assisting in making all claims with respect to all insurance policies; (E) all Legal Requirements and Permits/Governmental Approvals; (F) any applicable provisions of the Site Leases, including any landlord rules and regulations; (G) Prudent Electrical Practices; and (H) the relevant provisions of each Interconnection Agreement, and each PPA (collectively, the “Performance Standards”); provided, however, that meeting the Performance Standards shall not relieve Seller of its other obligations under this Agreement.

Section 3.10 Appointment of Independent Engineer. For the purposes of this ARTICLE III, Seller and the Buyer will appoint the Independent Engineer effective as from the Agreement Date. The Independent Engineer may be replaced upon the mutual agreement of Seller and Buyer at any time. The Independent Engineer shall act as independent engineer, reviewer, and certifier as contemplated in this Agreement. The Independent Engineer’s duties will include a duty of care to the Buyer’s Lender. The Independent Engineer will, among other things, witness the commissioning and testing of each Bloom System and the BOF Work pursuant to this ARTICLE III (the “Independent Engineer”). All fees and costs payable in respect of the Independent Engineer (including those incurred in making such appointment) shall be borne by Seller.

ARTICLE IV.

FACILITY SERVICES

Section 4.1 In General. During the Warranty Period, Seller shall service each Facility so that the Portfolio meets the Warranty Specifications and so that the BOF will not cause the Portfolio to fail to perform in accordance with the Warranty Specifications, as more fully set forth in ARTICLE V (such services, collectively, the “Facility Services”). The Facilities covered under this Agreement are set forth in Exhibit C hereto. As each Facility installed pursuant to this Agreement achieves Commencement of Operations Seller shall update Exhibit C to include such Facility; provided, that the Parties rights and obligations under this Agreement shall be deemed to apply to each such Facility irrespective of Seller’s failure to update such Exhibit C.

Section 4.2 Operation and Maintenance Services. Seller is hereby granted the right and authority (and, to the extent necessary to carry out its functions hereunder, a limited power of attorney) and agrees, for the benefit of Buyer, to operate safely and reliably each Facility and to maintain during the Warranty Period in accordance with the terms of this Agreement each such Facility in good condition and repair in accordance with the Warranty Specifications, Performance Standards and Prudent Electrical Practices. During the Warranty Period, the specific responsibilities of Seller under this Agreement shall include the following:

(a) Facility Operations. Seller shall ensure that all Facility components are operated and maintained safely and in a manner designed to meet the Warranty Specifications and Performance Standards and as required under this Agreement.

(b) Facility Maintenance. Seller shall perform, or cause to be performed, all scheduled and unscheduled maintenance required on the Facilities in order to meet the Warranty Specifications and Performance Standards. In that regard, Seller’s responsibilities hereunder shall include, without limitation, promptly correcting any Bloom System or BOF malfunctions,

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either by (i) recalibrating or resetting the malfunctioning Bloom System or BOF, or (ii) subject to Section 5.7(b), repairing or replacing Bloom System or BOF components which are defective, damaged, worn or otherwise in need of repair or replacement.

(c) Repair and Replacement of Power Modules. Seller shall repair or replace the power modules included in each Facility as necessary to ensure that such Facility satisfies the Capacity Warranty and the Efficiency Warranty as set forth herein. Buyer agrees that Seller may replace such power modules with power modules of a different model provided that such replacement model has been subjected to inspections and tests performed by Seller in coordination with the Independent Engineer (or another independent engineer mutually selected by Seller and Buyer, who both Buyer and Seller have reasonably determined to be capable of performing such inspections and testing) which indicate that such replacement power module model is reasonably expected to perform at least as well as the model it replaces. Notwithstanding the foregoing, Seller represents to Buyer that it reasonably expects that any repair or replacement of power modules to be made within five (5) years of the date the applicable Facility was Placed in Service will have an aggregate value of replaced parts that is less than eighty percent (80%) of the Facility’s total value (the cost of the new parts plus the value of the remaining Facility originally Placed in Service).

(d) Personnel. Seller shall ensure that all operations and maintenance functions contemplated by this Section are performed by technically competent and qualified personnel (the “Service Technicians”). Seller shall ensure that all Service Technicians: (i) participate in a maintenance training program and receive confirmation of having achieved the requisite level of proficiency for the tasks they are assigned to perform, and (ii) attend periodic “refresher” training programs to the extent Seller deems necessary, in its reasonable judgment. The Seller shall at all times retain an operations manager who shall be dedicated to the overall supervision and management of performance of the Seller’s obligations under this Agreement.

(e) Spare Parts. Seller shall establish and maintain an adequate spare parts inventory.

(f) Programs and Procedures. Prior to the date of the Commencement of Operations of the first Facility, Seller shall have adopted and implemented programs and procedures intended to ensure safe and reliable operation of the Facilities.

Section 4.3 Service Fees.

(a) Buyer shall compensate Seller for the Facility Services, on a Calendar Quarter basis, by paying Seller the “Service Fees” equal, for each Facility, to (A) the rate (in $/kW) specified in Exhibit D hereto for such Facility for the applicable Calendar Quarter since the applicable Facility achieved Commencement of Operations, multiplied by (B) the aggregate System Capacity (in kW) of the Bloom Systems comprising the applicable Facility, for the applicable Calendar Quarter.

(b) Commencing on the date each Facility achieves Commencement of Operations, with respect to each quarter of such Facility’s Warranty Period, the Service Fees shall be invoiced not later than fifteen (15) Business Days prior to the first day of such quarter, and, subject to Section 4.3(c) and Section 5.4 shall be payable no later than the second (2nd)

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Business Day of such quarter. Interest shall accrue daily on the Service Fees not paid when due, at the lesser of the monthly rate of (i) [***] and (ii) the highest rate permissible by law on such unpaid balance. Seller shall be under no obligation to provide or perform services hereunder for any Facility whose Service Fee, other than a Service Fee disputed in good faith, has not been paid (or offset pursuant to Section 5.4) in full within thirty (30) days of invoice until such date upon which the Service Fee has been paid.

(c) If Buyer disputes any amount shown in an invoice issued by Seller in accordance with Section 4.3(a): (i) Buyer must pay the undisputed portion of the invoice amount within the time prescribed by Section 4.3(a), and (ii) liability for the disputed portion of that invoice will be determined in accordance with the dispute resolution procedure set out in Section 14.5.

(d) Any disputed portion of an invoiced amount which was not paid under Section 4.3(c) and is determined as being due to Seller in accordance with the dispute resolution procedure set out in Section 14.5 must be paid by Buyer within ten (10) days of the determination of the dispute in accordance with the procedure set out in Section 14.5 plus, if it is determined in accordance with the dispute resolution procedures that the disputed portion was not disputed in good faith, interest calculated in accordance with Section 4.3(b).

Section 4.4 Remote Monitoring. For purposes of determining when repair services are necessary, Seller shall monitor and evaluate the information gathered through remote monitoring of each Facility as well as the maintenance and inspection Site visits.

Section 4.5 Permits.

(a) Seller shall be responsible, at its sole cost and expense, for maintaining and complying with all Permits required to perform the Facility Services under this Agreement, and shall promptly notify Buyer of any material challenges to the status of a Permit for a Facility, or any other material issues or anticipated material issues relating to obtaining or maintaining a Permit for a Facility.

(b) Buyer agrees to cooperate with and assist Seller in obtaining all Permits.

Section 4.6 Service Providers. Seller may appoint an unrelated third party, who is appropriately qualified, licensed, and financially responsible, to operate and maintain the Facilities throughout the Term (a “Service Provider”). Seller shall submit such appointment of any Service Provider to Buyer for its prior written approval, which approval shall not be unreasonably withheld or delayed. No such appointment nor the approval thereof by Buyer, however, shall relieve Seller of any liability, obligation, or responsibility resulting from a breach of this Agreement.

Section 4.7 Rights to Deliverables. Buyer agrees that Seller shall, except as expressly set forth herein, retain all rights, title and interest, including Intellectual Property rights, in any Training Materials provided to Buyer in connection with the services performed hereunder. “Training Materials” means any and all materials, documentation, notebooks, forms, diagrams, manuals and other written materials and tangible objects, describing how to operate and maintain the Facilities, including any corrections, improvements and enhancements which are delivered by Seller to Buyer, but excluding any data and reports delivered to Buyer.

[***] Confidential Treatment Requested

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ARTICLE V.

WARRANTIES

Section 5.1 Facility Services Warranty. During the Warranty Period, Seller shall perform the services to the Bloom Systems and the BOF necessary for the Portfolio to perform to the Warranty Specifications (the “Facility Services Warranty”).

Section 5.2 Annual Capacity Warranty. During the Warranty Period, Seller shall determine within ten (10) Business Days after the end of each calendar year, whether the Portfolio has delivered to the applicable Interconnection Points the Minimum kWh during such Capacity Warranty Period (“Annual Capacity Warranty”). If such calculation indicates that the Actual kWh delivered by the Portfolio was less than the Minimum kWh during such calendar year, then Seller shall so notify Buyer in writing of the basis of its determination and Buyer may make a claim under Section 5.7 based on the average tolling rate of the applicable Fleet during the Capacity Warranty Period in order to compensate for the Buyer’s loss of revenue resulting from the failure of the Portfolio to deliver the Minimum kWh. For the purposes of avoiding double counting of any kWh shortfalls in calculating Capacity Warranty payments, a claim made in respect of the Annual Capacity Warranty for a calendar year will be reduced by the total amount paid by the Seller in respect of claims under the Quarterly Capacity Warranty for the Calendar Quarters in that calendar year. If the Seller fails to perform any Capacity Warranty calculation within the periods required by this Section 5.2, the Buyer may perform its own calculations and may make a claim under Section 5.7. An example of an Annual Capacity Warranty calculation for purposes of a Section 5.7 claim is attached as Annex C.

Section 5.3 Efficiency Warranty. During the Warranty Period, Seller shall determine for each full calendar month within five (5) Business Days after the end of such month whether each Facility that has achieved Commencement of Operations has performed at the Minimum Efficiency Level (the “Efficiency Warranty”). If the Minimum Efficiency Level has not been met during such month, then Seller shall so notify Buyer in writing of the basis of its determination and Buyer may make a claim under Section 5.7. If the Seller fails to perform any Efficiency Warranty calculation within the periods required by this Section 5.3, the Buyer may perform its own calculations and may make a claim under Section 5.7.

Section 5.4 Quarterly Capacity Warranty.

(a) During the Warranty Period, Seller shall determine, on the first Business Day following the end of each Calendar Quarter, whether the Portfolio has delivered to the applicable Interconnection Points the Minimum kWh during the immediately preceding Capacity Warranty Period (the “Quarterly Capacity Warranty”). If such calculation indicates that the Actual kWh of the Portfolio was less than the Minimum kWh during such Calendar Quarter, then Seller shall (i) so notify Buyer in writing of the basis of its determination, (ii) submit a revised invoice for the subsequent quarter reflecting the offset provided for in Section 5.4(b), and (iii) make a payment to Buyer (as set forth in Section 5.4(b)) in an amount calculated as set forth on Annex C based on the average tolling rate of the applicable Fleet during the Capacity Warranty Period in order to compensate for the Buyer’s loss of revenue resulting from the failure of the Portfolio to deliver the Minimum kWh (such payment, a “Quarterly Capacity Warranty Payment”), which Quarterly Capacity Warranty Payment shall be understood to constitute liquidated damages

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pursuant to Section 13.6. If the Seller fails to perform any Capacity Warranty calculation within the periods required by this Section 5.4, the Buyer may perform its own calculations and may make a claim under this Section 5.4.

(b) Quarterly Capacity Warranty Payments owed pursuant to this Section 5.4 shall be paid as follows: first, the Service Fees owed by Buyer for a Calendar Quarter shall be offset to the extent of any Quarterly Capacity Warranty Payment arising out of the prior Calendar Quarter, and second, any remaining amount owed by Seller to Buyer after such offset shall be due and payable in cash, such payment to be paid no later than the fifth Business Day of the Calendar Quarter immediately following the Calendar Quarter with respect to which such Quarterly Capacity Warranty Payment arose. In the event that Buyer owes Seller any Services Fees after the offset of Quarterly Capacity Warranty Payments, payment of such Services Fees shall be paid within fifteen (15) days of Buyer’s receipt of the revised invoice required pursuant to Section 5.4(a)(ii).

(c) In the event that Seller is liable to Buyer for any cash payment of a Quarterly Capacity Warranty Payment following the offset provided in Section 5.4(b) and has failed to make such cash payment within thirty (30) days of the final day of the Calendar Quarter in which the Portfolio fails to satisfy the Quarterly Capacity Warranty, Buyer may return a sufficient number of Underperforming Systems such that the remainder of the Portfolio would have satisfied such Quarterly Capacity Warranty had such returned Underperforming Systems been excluded from the calculation for such Calendar Quarter. With respect to each such returned. Underperforming System, Seller shall immediately refund to Buyer the Refund Value of such Underperforming System as liquidated damages pursuant to Section 13.6, and shall promptly remove such returned Underperforming System from the applicable Site and be deemed to have taken title to such Underperforming System, and such Underperforming System shall be deemed to no longer constitute a portion of the Portfolio. If a Bloom System will be removed pursuant to this Section 5.4(c), Seller shall at its sole cost and expense remove the Bloom System and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable Site Lease) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections in the manner required by all Legal Requirements and the applicable Site Lease. For the avoidance of doubt, Buyer’s return of Underperforming Systems pursuant to this Section 5.4(c) shall not relieve Seller of its obligation to pay to Buyer, or decrease the amount of, the Quarterly Capacity Warranty Payment set forth in Section 5.4(a).

Section 5.5 Portfolio Warranty.

(a) Subject to Section 13.5(a), Seller warrants to Buyer that (i) each Bloom System (other than any Software) and the BOF related to each Bloom System will be free from defects in materials and workmanship at the beginning of the Warranty Period for such Bloom System and (ii) the Portfolio, including the BOF related to the Bloom System, will comply with the Warranty Specifications during the Warranty Period, and the BOF will not cause the Portfolio to fail to perform in accordance with the Warranty Specifications (collectively, the “Portfolio Warranty”).

(b) The Portfolio Warranty is not transferable to any third person, including any person who buys a Bloom System from Buyer, without Seller’s prior written consent (which

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shall not unreasonably be withheld) other than to Buyer’s Lender or its designee (or any assignee of (or purchaser in foreclosure from) Buyer’s Lender) upon transfer of the Portfolio and underlying agreements to such party due to a foreclosure proceeding on account of Buyer’s Lender’s security interest herein and, if transferred to Buyer’s Lender or its designee (or any assignee of (or purchaser in foreclosure from) Buyer’s Lender), such party may freely transfer the Portfolio Warranty.

(c) Any period of time in which the Warranty Specifications are not met shall not extend the Warranty Period.

Section 5.6 Exclusions. The Portfolio Warranty shall not cover any obligations on the part of Seller to the extent caused by or arising from (a) the Bloom Systems or BOF being affected by vandalism or other third-party’s actions or omissions occurring after Commencement of Operations (other than to the extent that Seller, Seller’s Affiliate, or a Seller subcontractor fails to properly protect the Bloom Systems and was required to do so under the Transaction Documents); (b) any failure relating to a PPA Customer’s failure to supply natural gas as required under the applicable PPA; (c) Buyer’s (as opposed to Seller, Seller’s Affiliate, the Service Provider or a subcontractor thereof) or a PPA Customer’s removal of any safety devices, (d) any conditions caused by unforeseeable movement in the environment in which the Bloom Systems are installed (provided that normal soil settlement, shifting, subsidence or cracking will not constitute ‘unforeseeable movement’), (e) accidents, abuse, neglect, improper third party testing (unless caused by Seller, Seller’s Affiliate, the Service Provider or a subcontractor thereof) or Force Majeure Events, or (f) installation, operation, repair or modification of the Bloom Systems or BOF by anyone other than Seller or Seller’s authorized agents. SELLER SHALL HAVE NO OBLIGATION UNDER THE PORTFOLIO WARRANTY AND MAKES NO REPRESENTATION AS TO BLOOM SYSTEMS OR BOF WHICH HAVE BEEN OPENED OR MODIFIED BY BUYER OR ANYONE OTHER THAN SELLER, SELLER’S AFFILIATE, THE SERVICE PROVIDER OR SUBCONTRACTOR, OR ANY OF SUCH PERSON’S REPRESENTATIVES, IN EACH CASE TO THE EXTENT OF ANY DAMAGE OR OTHER NEGATIVE CONSEQUENCE OF SUCH OPENING OR MODIFICATION.

Section 5.7 Portfolio Warranty Claims.

(a) Subject to the provisions of Section 13.5(a), if Buyer desires to make a Portfolio Warranty claim during the Warranty Period, Buyer must notify Seller of the defect or other basis for the claim in writing.

(b) In the case of a claim relating to the Efficiency Warranty, upon receipt of such notice and verification by Seller that such Efficiency Warranty is applicable, Seller or its designated subcontractor will promptly, and in all cases within ninety (90) days, repair or replace, at Seller’s sole option and discretion, any Bloom System(s) or any portion of the BOF whose repair or replacement is required in order for the applicable Facility to perform consistent with the Efficiency Warranty. Buyer is hereby notified that refurbished parts may be used in repair or replacement activities, provided that (i) any such refurbished parts will have passed the same inspections and tests performed by Seller on its new parts of the same type before such refurbished parts are used in any repair or replacement, and (ii) Seller shall within thirty (30) days of a written request therefor by Buyer, provide a report for any or all Bloom Systems

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purchased hereunder that lists all components that have been replaced in any individual Bloom System. If such repair or replacement of one or more Bloom Systems is not feasible (as determined at Seller’s sole option and discretion) and Seller notifies Buyer to such effect, Seller will refund to Buyer the Refund Value of such Bloom Systems (calculated as of the date of such refund), in which case Seller shall be deemed to have taken title to such Bloom System, and such Bloom System shall be deemed to no longer constitute a portion of the Portfolio. Seller shall make such determination as to the feasibility of repair or replacement as promptly as practicable, but in any event within ninety (90) days after Seller’s receipt of notice of the claim unless the specific nature of the problem requires a longer period in which to make such determination (in which case Seller must make a determination within a reasonable time) provided such longer period for a determination does not cause any breach of a PPA or Financing Document. In the event that Seller has not completed the repair or replacement of the Bloom System within ninety (90) days of the end of the calendar month in which Seller received notice of a claim (or within one hundred twenty (120) days if the specific nature of the problem required a period longer than ninety (90) days in which to determine the feasibility of repair or replacement), or repurchased the Bloom System as contemplated in this Section 5.7(b) in the time period in this Section 5.7(b) then Buyer has the right to require Seller (in which case Seller agrees) to procure return of the Bloom System(s) in question to Seller (at Seller’s cost) and Seller will refund to Buyer the Refund Value of such Bloom System, in which case Seller shall be deemed to have taken title to such Bloom Systems upon payment of the Refund Value, and such Bloom Systems shall be deemed to no longer constitute a portion of the Portfolio and shall be removed as described in the previous sentence. If it is determined that a Bloom System will be removed pursuant to this Section 5.7, Seller shall at its sole cost and expense remove the Bloom System and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable Site Lease) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections in the manner required by all Legal Requirements and the applicable Site Lease. The rights and obligations of the Parties under this Section 5.7(b) are in addition to and separate from any other rights of Buyer under this Article 5.

(c) In the case of a claim relating to the Annual Capacity Warranty, upon receipt of such notice and verification that such Annual Capacity Warranty is applicable, Seller shall make a payment to Buyer in an amount to be calculated pursuant to Section 5.2; provided that the cumulative aggregate amount of Seller’s liability for all claims under this Section 5.7(c) shall not exceed $375/kW of aggregate System Capacity of all Bloom Systems in the Portfolio (the “Performance LD Cap”). For the avoidance of doubt, the cap set forth in this Section 5.7(c) does not apply where the Seller is required to repair or replace the Bloom Systems or pay the Refund Value and other amounts incurred to remove the Bloom Systems and ancillary equipment as set out in Section 5.4(c) or Section 5.7(b).

Section 5.8 Indemnification Regarding Performance Under PPAs. Without in anyway limiting and in addition to Buyer’s remedies pursuant to Section 5.2 to Section 5.7, inclusive, in the event that Buyer incurs any liability to a PPA Customer with respect to any performance guarantee, power performance shortfall or any efficiency warranty or cost excess (collectively the “PPA Warranties”), Seller shall indemnify and hold Buyer harmless for any such liability, costs and expenses incurred by Buyer pursuant to such PPA Warranties. Without in anyway limiting and in addition to the foregoing, in the event that the failure of any Bloom System(s) to

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comply with any PPA Warranty causes the termination of a PPA (in whole or in part), then (a) Buyer may return the applicable Bloom System(s) to Seller and Seller will refund to Buyer the Refund Value of such Bloom Systems, in which case Seller shall be deemed to have taken title to such Bloom Systems, and such Bloom System shall be deemed to no longer constitute a portion of the Portfolio, and (b) Seller shall indemnify and hold Buyer harmless for any amount the Buyer is liable to a PPA Customer in connection with such termination. If it is determined that a Bloom System will be removed pursuant to this Section 5.8, Seller shall at its sole cost and expense remove the Bloom System and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable Site Lease) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections in the manner required by all Legal Requirements and the applicable Site Lease. For the avoidance of doubt, claims, credits, reimbursements and any other payments made under this Section 5.8 are not subject to the cap set forth in Section 5.7(c) with respect to claims relating to the Annual Capacity Warranty and shall not count against such cap. Seller shall make any payment owed to Buyer in respect of the PPA Warranties under this Section 5.8 prior to or concurrently with Buyer’s corresponding payment to the PPA Customer.

Section 5.9 Disclaimers. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN ARTICLE VIII, THIS ARTICLE V AND THE OTHER TRANSACTION DOCUMENTS, THE FACILITIES ARE TRANSFERRED “AS IS, WHERE IS”, AND SELLER EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO LIABILITIES, OPERATIONS OF THE FACILITIES, VALUE OR QUALITY OF THE FACILITIES OR THE PROSPECTS (FINANCIAL AND OTHERWISE), RISKS AND OTHER INCIDENTS OF THE FACILITIES. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN ARTICLE VIII, THIS ARTICLE V AND THE OTHER TRANSACTION DOCUMENTS, SELLER SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, USAGE, SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE FACILITIES, OR ANY PART THEREOF. NO PERSON IS AUTHORIZED TO MAKE ANY OTHER WARRANTY OR REPRESENTATION CONCERNING THE PERFORMANCE OF THE FACILITIES.

Section 5.10 Title. Title to all replacement items, parts, materials and equipment supplied under or pursuant to this Agreement to Buyer shall transfer to Buyer upon installation or inclusion in a Facility.

Section 5.11 Covenants Relating to Refund Value.

(a) If the Refund Value in respect of a Facility is payable pursuant to this Agreement, then, in addition to paying the Refund Value in respect of such Facility, Seller shall also pay to Buyer the then-applicable Refund Value Adder in respect of such Facility.

(b) If the Refund Value in respect of a Facility is payable pursuant to this Agreement at any time during the initial term of the PPA applicable to such Facility, then for a period of ten (10) years following the date that such Refund Value is paid, neither Seller nor any of its Affiliates may install a Facility at the same PPA Customer location, unless (a) the Class A

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Member is an investor in the entity that owns such newly installed Facility, (b) Seller obtains the prior consent of the Class A Member or (c) Seller provided the Class A Member with the opportunity to participate as an investor in the entity that owns such newly installed Facility and the Class A Member declined to participate in such investment; provided that, with respect to clause (c), the terms that were offered to the Class A Member were not materially different than those ultimately agreed to with the investor in the entity that owns such newly installed Facility.

Section 5.12 Covenants Relating to the Policy. Seller shall not knowingly take (or fail to take) any action that could reasonably be expected to cause any breach or termination of the Policy.

ARTICLE VI.

RECORDS

Section 6.1 Record-Keeping Documentation.

(a) Seller shall ensure that operation, service and maintenance records concerning Seller’s activities hereunder are properly created and maintained at all times. Such records shall include, but not be limited to, the following:

(i) a separate “Maintenance Specification Log” for each Facility in a paper or electronic format (with entries made for each inspection, including any discrepancies found during such inspection), a copy of which shall be submitted, in paper or electronic format, to Buyer along with the corresponding Annual Reports;

(ii) a Site service report completed in respect of each inspection, repair, replacement, service or other activity or observation made by Seller in connection with its responsibilities hereunder, detailing the nature of the problems with a Facility detected and the specifics of the problem resolution and submitted to Buyer within ten (10) Business Days of the date when such problem is resolved or within ten (10) Business Days of a routine inspection or service;

(iii) an annual report submitted to Buyer within forty-five (45) Business Days after the end of each calendar year (“Annual Report”) containing sufficient information, detail and documentation as may be reasonably requested by Buyer relating to the operating performance of the Facility for the preceding calendar year; and

(iv) any other records, reports, or other documentation required to be delivered by Buyer to Buyer’s Lender pursuant to any agreement to which both such entities are a party or that are reasonably requested by Buyer.

(b) All such records required to be created and maintained pursuant to Section 6.1(a) shall be kept available at the Seller’s office and made available for the Buyer’s inspection upon request at all reasonable times. Any documentation prepared by Seller during the Term for the purposes of this Agreement shall be directly prepared for Buyer’s benefit and immediately become Buyer’s property. Any such documentation shall be stored by Seller on behalf of Buyer until its final delivery to Buyer. Seller may retain a copy of all records related to each Facility for future analysis.

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Section 6.2 Reports; Other Information. Without in any way limiting Seller’s other reporting, notification, and other similar obligations under this Agreement, during the Warranty Period, Seller shall furnish to Buyer the following reports, notices, and other information regarding the Bloom Systems:

(a) Promptly upon Seller’s knowledge of the occurrence of any damage to any Facility or Site, notice of such damage in reasonable detail; and

(b) Any information Buyer may reasonably request in connection with any claim filed by Buyer under any insurance maintained with respect to the Facilities, and any information such insurance providers may reasonably request in connection with such claim.

ARTICLE VII.

DATA ACCESS

Section 7.1 Access to Data and Meters. Throughout the Term, and thereafter to the extent relevant to calculations necessary for periods prior to the end of the Term and subject to any confidentiality obligation owed to any third party and/or any restrictions on the disclosure of information which may be subject to intellectual property rights restricting disclosure:

(a) Buyer shall grant Seller access to all data relating to the electricity production of each Facility, it being understood that it is Seller’s responsibility to determine the performance of the Facility, and any other calculations as required under this Agreement, and that it is Buyer’s responsibility to handle all accounting and invoicing activities;

(b) Buyer shall allow Seller access to all data from all Facility Meters; and

(c) Seller shall be entitled to use the foregoing data for its internal purposes and make such data available to third parties for analysis.

ARTICLE VIII.

REPRESENTATIONS AND WARRANTIES OF SELLER

Section 8.1 Representations and Warranties as to Seller. Seller represents and warrants to Buyer as of the Agreement Date and as of each Delivery Date as follows:

(a) Incorporation; Qualification. Seller is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own, lease, and operate its business as currently conducted. Seller is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction that its business, as currently being conducted, shall require it to be so qualified, except where the failure to be so qualified would not have a material adverse effect on the Bloom Systems being sold under this Agreement.

(b) Authority. Seller has full corporate power and authority to execute and deliver the Transaction Documents to which it is a party and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Seller of the Transaction Documents to which it is a party and the consummation by Seller of the transactions

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contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action required on the part of Seller and the Transaction Documents to which Seller is a party have been duly and validly executed and delivered by Seller. Each of the Transaction Documents to which Seller is a party constitutes the legal, valid and binding agreement of Seller, enforceable against Seller in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).

(c) Consents and Approvals; No Violation. Neither the execution, delivery and performance of the Transaction Documents to which Seller is a party nor the consummation by Seller of the transactions contemplated hereby and thereby will (i) conflict with or result in any breach of any provision of the certificate of incorporation or bylaws of Seller, (ii) with or without the giving of notice or lapse of time or both, conflict with, result in any violation or breach of, constitute a default under, result in any right to accelerate, result in the creation of any Lien on Seller’s assets, or create any right of termination under the conditions or provisions of any note, bond, mortgage, indenture, material agreement or other instrument or obligation to which Seller is a party or by which it, or any material part of its assets may be bound, in each case that would individually or in the aggregate result in a material adverse effect on the Seller or its ability to perform its obligations hereunder or (iii) constitute violations of any law, regulation, order, judgment or decree applicable to Seller, which violations, individually or in the aggregate, would result in a material adverse effect on the Seller or its ability to perform its obligations hereunder.

(d) Legal Proceedings. There are no pending or, to Seller’s knowledge, threatened claims, disputes, governmental investigations, suits, actions (including non-judicial real or personal property foreclosure actions), arbitrations, legal, administrative or other proceedings of any nature, domestic or foreign, criminal or civil, at law or in equity, by or against Seller that challenge the enforceability of the Transaction Documents to which Seller is a party or the ability of Seller to consummate the transactions contemplated hereby or thereby, in each case, that could reasonably be expected to result in a material adverse effect on Seller or its ability to perform its obligations hereunder.

(e) U.S. Person. Seller is not a “foreign person” within the meaning of Section 1445(b)(2) of the Code and has provided a Certificate of Non-Foreign Status in the form and substance required by Section 1445 of the Code and the regulations thereunder.

(f) Purchase Price of Facility. The Purchase Price paid for each Facility in accordance with Section 2.2 is an amount that is equal to the Fair Market Value of each Facility, as determined on an arms-length basis.

Section 8.2 Representations and Warranties as to Bloom Systems. Seller represents and warrants to Buyer as of the Physical Delivery Date for each Bloom System solely with respect to such Bloom System, as follows: Seller has good title to each Bloom System and each such Bloom System is free and clear of all Liens other than Permitted Liens. Neither Seller nor any of its subcontractors have placed any Liens on the Sites or the Facilities other than Permitted Liens. To the extent that Seller has actual knowledge that any of its subcontractors has placed any Lien on a Bloom System, Facility, or Site, then Seller shall cause such Liens to be

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discharged, or shall provide a bond in an amount and from a surety acceptable to Buyer to protect against such Lien, in each case, within thirty (30) days after Seller is aware of the existence thereof. Seller shall indemnify Buyer and Buyer’s Lender against any such lien claim, provided that if the applicable Site Lease requires additional or more stringent action, Seller shall also indemnify Buyer and Buyer’s Lender for the costs and expenses of such actions.

ARTICLE IX.

REPRESENTATIONS AND WARRANTIES OF BUYER

Buyer represents and warrants to Seller as of the Agreement Date and as of each Delivery Date, as follows with respect to Buyer:

Section 9.1 Organization. Buyer is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware and has all requisite limited liability company power and authority to own, lease, and operate its business as currently conducted.

Section 9.2 Authority. Buyer has full limited liability company power and authority to execute and deliver the Transaction Documents to which Buyer is a party and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Buyer of the Transaction Documents to which Buyer is a party and the consummation by Buyer of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary limited liability company action required on the part of Buyer and the Transaction Documents to which Buyer is a party have been duly and validly executed and delivered by Buyer. Each of the Transaction Documents to which Buyer is a party constitutes the legal, valid and binding agreement of Buyer, enforceable against Buyer in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).

Section 9.3 Consents and Approvals; No Violation. Neither the execution, delivery and performance by Buyer of the Transaction Documents to which Buyer is a party nor the consummation by Buyer of the transactions contemplated thereby will (a) conflict with or result in any breach of any provision of the Certificate of Formation or the limited liability company agreement of Buyer, or (b) result in a default (or give rise to any right of termination, cancellation or acceleration) under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, material agreement or other instrument or obligation to which Buyer is a party or by which any of its assets are bound, except for such defaults (or rights of termination, cancellation or acceleration) as to which requisite waivers or consents have been obtained or (c) constitute violations of any law, regulation, order, judgment or decree applicable to Buyer, which violations, individually or in the aggregate, would result in a material adverse effect on Buyer or its ability to perform its obligations hereunder.

Section 9.4 Legal Proceedings. There are no pending or, to Buyer’s knowledge, threatened claims, disputes, governmental investigations, suits, actions (including non-judicial real or personal property foreclosure actions), arbitrations, legal, administrative or other proceedings of any nature, domestic or foreign, criminal or civil, at law or in equity, by or

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against Buyer that challenges the enforceability the Transaction Documents to which Buyer is a party or the ability of Buyer to consummate the transactions contemplated thereby, in each case, that could reasonably be expected to result in a material adverse effect on Buyer or its ability to perform its obligations hereunder.

ARTICLE X.

CONFIDENTIALITY

Section 10.1 Confidential Information. Subject to the other terms of this ARTICLE X the Parties shall, and shall cause their Affiliates and their respective stockholders, members, subsidiaries and Representatives to, hold confidential all information they may have or obtain concerning the Seller and the Buyer and their respective assets, business, operations or prospects or this Agreement (the “Confidential Information”), including all materials and information furnished by Seller in performance of this Agreement, regardless of form conveyed or whether financial or technical in nature, including any trade secrets and proprietary know how and Software whether such information bears a marking indicating that they are proprietary or confidential or not; provided, however, that Confidential Information shall not include information that (x) is or becomes generally available to the public other than as a result of an unauthorized disclosure by a Party or any of its Representatives, (y) is or becomes available to a Party or any of its Representatives on a nonconfidential basis from a source other than the other Party or its Representatives, provided that such source was not and is not bound by any contractual, legal or fiduciary obligation of confidentiality with respect to such information or (z) was or is independently developed or conceived by a Party or its Representatives without reference to the Confidential Information of the other Party.

Section 10.2 Restricted Access.

(a) Buyer agrees that the Facilities themselves contain Seller’s valuable trade secrets. Buyer agrees (i) to restrict the use of such information to matters relating to the Facilities, and (ii) to restrict access to such information as provided in Section 10.3(b).

(b) Seller’s Confidential Information will not be reproduced without Seller’s prior written consent, and following termination of this Agreement all copies of such written information will be returned to Seller upon written request (not to be made while materials are still of use to the operation of a Facility and no Buyer Default has occurred and is continuing), unless otherwise agreed by the Parties. Buyer’s Confidential Information will not be reproduced by Seller without Buyer’s prior written consent, and following termination of this Agreement all copies of such written information will be returned to Buyer upon written request or shall be certified by Seller as having been destroyed.

(c) Subject to ARTICLE XI and Section 10.2(a) and (b) hereof, the Facilities are offered for sale and are sold by Seller subject to the condition that such sale does not convey any license, expressly or by implication, to manufacture, reverse engineer, duplicate or otherwise copy or reproduce any part of the Facilities, documentation or Software without Seller’s express advance written permission. Subject to ARTICLE XI hereof, Buyer agrees not to remove the covering, not to access the interior or to reverse engineer, or cause or knowingly allow any third party to open, access the interior or reverse engineer any Facility or Software provided by Seller.

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Subject to ARTICLE XI hereof, and anything contemplated pursuant to this Agreement, only Seller or its authorized representatives may open or access the interior of a Facility. Notwithstanding the foregoing or anything else herein to the contrary, and without limitation of the rights set forth in ARTICLE XI hereof, if any Facility is no longer covered by this Agreement or another agreement between Buyer and Seller (or any Affiliate of Seller) regarding the operation and maintenance of such Facility, Buyer shall be entitled to maintain, or cause a third party to maintain, such Facility, including replacing parts or components as needed or desired; provided that Buyer shall use commercially reasonable efforts to engage a third party to provide such maintenance that is not a competitor of Seller or its Affiliates and is not in litigation or other material dispute with Seller.

Section 10.3 Permitted Disclosures.

(a) Legally Compelled Disclosure. Confidential Information may be disclosed (i) as required or requested to be disclosed by a Party or any of its Affiliates or their respective stockholders, members, subsidiaries or Representatives as a result of any applicable Legal Requirement or rule or regulation of any stock exchange, the Financial Industry Regulatory Authority, Inc. or other regulatory authority or self-regulatory authority having jurisdiction over such Party, (ii) as required or requested by the IRS, the Department of Justice or the Office of the Inspector General in connection with a Facility, cash grant, or tax credits relating thereto, including in connection with a request for any private letter ruling, any determination letter or any audit or (iii) as required under any Interconnection Agreement. If a Party becomes compelled by legal or administrative process to disclose any Confidential Information, such Party shall, to the extent permitted by Legal Requirements, provide the other Parties with prompt notice so that the other Parties may seek a protective order or other appropriate remedy or waive compliance with the non-disclosure provisions of this Section 10.3 with respect to the information required to be disclosed. If such protective order or other remedy is not obtained, or such other Parties waive compliance with the non-disclosure provisions of this Section 10.3 with respect to the information required to be disclosed, the first Party shall furnish only that portion of such information that it is advised, by opinion of counsel, is legally required to be furnished and shall exercise reasonable efforts, at the expense of the Party whose Confidential Information is being disclosed, to obtain reliable assurance that confidential treatment will be accorded such information, including, in the case of disclosures to the IRS described in clause (ii) above, to obtain reliable assurance that, to the maximum extent permitted by applicable Legal Requirements, such information will not be made available for public inspection pursuant to Section 6110 of the Code.

(b) Disclosure to Representatives. Notwithstanding the foregoing, and subject always to the restrictions in Section 10.2, a Party may disclose Confidential Information received by it to its and its Affiliates’ actual or potential investors or financing parties (including, for the avoidance of doubt, disclosure by Buyer to Buyer’s Lender and the Class A Member and Class B Member) and its and their employees, consultants, legal counsel or agents who have a need to know such information; provided that such Party informs each such Person who has access to the Confidential Information of the confidential nature of such Confidential Information, the terms of this Agreement, and that such terms apply to them. The Parties shall use commercially reasonable efforts to ensure that each such Person complies with the terms of this Agreement and that any Confidential Information received by such Person is kept confidential.

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(c) Other Permitted Disclosures. Nothing herein shall be construed as prohibiting a Party hereunder from using such Confidential Information in connection with (i) any claim against another Party hereunder, (ii) any exercise by a Party hereunder of any of its rights hereunder, (iii) a financing or proposed financing by Seller or Buyer or their respective Affiliates; (iv) a disposition or proposed disposition by Seller or any Affiliate of Seller of all or a portion of such Person’s direct or indirect equity interest in the Buyer, (v) a disposition or proposed disposition by any direct or indirect Affiliate of Buyer of all or a portion of such Person’s equity interests in the Buyer, (vi) a disposition or proposed disposition by Buyer of any Bloom System; or (vii) any disclosure required to be made to a PPA Customer (or otherwise) under a PPA, provided that, in the case of items (iii), (iv), (v) and (vi), the potential financing party or purchaser has entered into a confidentiality agreement with respect to Confidential Information on customary terms used in confidentiality agreements in connection with corporate financings or acquisitions before any such information may be disclosed and a copy of such confidentiality agreement has been provided to the non-disclosing party for informational purposes, which copy of such confidentiality agreement may contain redactions of confidential information relating to the potential financing or purchaser except as otherwise required to be disclosed pursuant to the Holdco LLC Agreement. No disclosures of Confidential Information shall be made by Buyer in exercise of its rights under this Section 10.3(c) until Seller has first had the opportunity to exercise its right to take or purchase the Bloom System in question, if applicable.

Section 10.4 Publicity. Notwithstanding the provisions of this ARTICLE X, the Parties shall consult with each other and agree in advance in connection with making public announcements regarding the transactions contemplated by the Transaction Documents.

ARTICLE XI.

LICENSE AND OWNERSHIP; SOFTWARE

Section 11.1 IP License To Use. Subject to Section 11.2, Seller grants to Buyer a limited (as described herein), non-exclusive, royalty-free, irrevocable (except as described in Article XII hereof), non-transferable (except as described herein) license to use the Intellectual Property contained in the Documentation and the Facilities purchased hereunder (collectively, “Seller’s Intellectual Property”) in conjunction with the purchase and use of each Facility in accordance with the terms hereof and each PPA and Interconnection Agreement (the “IP License”); provided, that (a) such license may be transferred to Buyer’s Lender or its designee upon transfer of the Portfolio and underlying agreements to such party due to a foreclosure proceeding, deed-in-lieu-of-foreclosure or other similar remedy on account of Buyer’s Lender’s security interest herein and, if transferred to Buyer’s Lender or its designee, such license may be further transferred by such party to any other Person who acquires the Portfolio from Buyer’s Lender or its designee, (b) such license may be transferred by Buyer to any third party Buyer is entitled to engage to maintain any Facility pursuant to Section 10.2(c), (c) such license may be transferred by Buyer to any successor or assign of Buyer permitted pursuant to Section 14.4, and (d) in the event of an voluntary or involuntary bankruptcy of Buyer, Seller hereby expressly consents to the assumption and assignment of the IP License by Buyer as necessary to allow Buyer’s continued use of each Facility in accordance with the terms hereof and each PPA and Interconnection Agreement. Seller shall retain all right, title and ownership of any and all Intellectual Property licensed by Seller hereunder. No right, title or

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interest in any such Intellectual Property is granted, transferred or otherwise conveyed to Buyer under this Agreement except as otherwise expressly set forth herein. Buyer shall not, except as otherwise provided herein, modify, network, rent, lease, loan, sell, distribute or create derivative works based upon the Seller’s Intellectual Property in whole or part, or cause or knowingly allow any third party to do so.

Section 11.2 Grant of Third Party Software License.

(a) Seller grants to Buyer a limited (as described herein), non-exclusive, royalty-free, irrevocable (except as described in ARTICLE XII hereof), non-transferable (except as described herein) license to use the Software (the “Software License”); provided, that (i) such license may be transferred to Buyer’s Lender or its designee upon transfer of the Portfolio and underlying agreements to such party due to a foreclosure proceeding, deed-in-lieu-of-foreclosure or other similar remedy on account of Buyer’s Lender’s security interest herein and, if transferred to Buyer’s Lender or its designee, such license may be further transferred by such party to any other Person who acquires the Portfolio from Buyer’s Lender or its designee, (ii) such license may be transferred by Buyer to any third party Buyer is entitled to engage to maintain any Facility pursuant to Section 10.2(c), and (iii) such license may be transferred by Buyer to any successor or assign of Buyer permitted pursuant to Section 14.4. No right, title or interest in any Software provided to Buyer (including all copyrights, patents, trade secrets or other intellectual or intangible property rights of any kind contained therein) is granted, transferred, or otherwise conveyed to Buyer under this Agreement except as expressly set forth herein. Buyer agrees not to reverse engineer or decompile the Software or otherwise use the Software for any purpose other than in connection with the use of the Facilities. Further, Buyer shall not modify, network, rent, lease, loan, sell, distribute or create derivative works based upon the Software in whole or part, or cause or knowingly allow any third party to do so.

(b) All data collected on the Facilities by Seller using the Software and data collected on the Facilities using Seller’s internal proprietary software are the sole property of Seller to be used by Seller in accordance with applicable law, and Seller hereby grants to Buyer a limited, non-exclusive, irrevocable (except as set forth in ARTICLE XII hereof), royalty-free license to use the data collected on the Facilities using such Software or the Seller’s internal proprietary software only for purposes of using such Facilities and administering the Transaction Documents or as required pursuant to the terms of any PPA or Interconnection Agreement, provided the provisions of ARTICLE X on confidentiality are maintained.

Section 11.3 No Software Warranty. Buyer acknowledges and agrees that the use of the Software is at Buyer’s sole risk. The Software and related documentation are provided “AS IS” and without any warranty of any kind and Seller EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

Section 11.4 Covenant. If Seller grants, bargains, sells, conveys, mortgages, assigns, pledges, warrants or transfers any Intellectual Property or Software that is required (a) for Seller or its Affiliates to perform their respective obligations under the Transaction Documents or (b) for the continued maintenance and operation of the Facilities without a material decrease in performance of the Facilities, Seller shall cause such act or transaction to be subject to the grant of the IP License and Software License under this Agreement.

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Section 11.5 Representations and Warranties. Seller represents and warrants to Buyer as of the Agreement Date and as of each Delivery Date as follows with respect to all Intellectual Property that is required (i) for Seller or its Affiliates to perform their respective obligations under the Transaction Documents, and (ii) for the continued operation of the Facilities in accordance with the Transaction Documents, the PPAs and the Interconnection Agreements without a material decrease in performance of the Facilities:

(a) Seller owns or has the right to use and to authorize Buyer to use all such Intellectual Property and Software; and

(b) Seller and its Affiliates are not infringing on any Intellectual Property of any third party with respect to the actions described in subsection (i) and (ii) of Section 11.5 and the Facilities do not infringe on any Intellectual Property of any third party.

ARTICLE XII.

EVENTS OF DEFAULT AND TERMINATION

Section 12.1 Seller Default. The occurrence at any time of any of the following events shall constitute a “Seller Default”:

(a) Failure to Pay. The failure of Seller to pay any undisputed amounts owing to Buyer on or before the day following the date on which such amounts are due and payable under the terms of this Agreement and Seller’s failure to cure each such failure within five (5) Business Days after Seller receives written notice from Buyer of each such failure;

(b) Failure to Perform Other Obligations. Unless due to a Force Majeure Event, the failure of Seller to perform or cause to be performed any other material obligation required to be performed by Seller under this Agreement, or the failure of any representation and warranty set forth herein to be true and correct as and when made; provided, however, that if such failure by its nature can be cured, then Seller shall have a period of thirty (30) days after receipt of written notice of such failure to cure the same and a Seller Default shall not be deemed to exist during such period; provided, further, that if Seller commences to cure such failure during such period and is diligently and in good faith attempting to effect such cure, said period shall be extended for sixty (60) additional days;

(c) Failure to Remedy Injunction. The failure of Seller to remedy any injunction that prohibits Buyer’s use of any Facility as contemplated by Section 13.1 within sixty (60) days of Seller’s receipt of written notice of Buyer being enjoined therefrom; or

(d) Bankruptcy. If Seller (i) admits in writing its inability to pay its debts generally as they become due; (ii) files a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other applicable law or statute of the United States of America or any State, district or territory thereof; (iii) makes an assignment for the benefit of creditors; (iv) consents to the appointment of a receiver of the whole or any substantial part of its assets; (v) has a petition in bankruptcy filed against it, and such petition is not dismissed within

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sixty (60) days after the filing thereof; or if (vi) a court of competent jurisdiction enters an order, judgment, or decree appointing a receiver of the whole or any substantial part of Seller’s assets, and such order, judgment or decree is not vacated or set aside or stayed within sixty (60) days from the date of entry thereof; or (vii) under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the whole or any substantial part of Seller’s assets and such custody or control is not terminated or stayed within sixty (60) days from the date of assumption of such custody or control.

Section 12.2 Buyer Default. The occurrence at any time of the following events with respect to Buyer shall constitute a “Buyer Default”:

(a) Failure to Pay. The failure of Buyer to pay any undisputed amounts owing to Seller on or before the day following the date on which such amounts are due and payable under the terms of this Agreement and Buyer’s failure to cure each such failure within five (5) Business Days after Buyer receives written notice of each such failure; or

(b) Failure to Perform Other Obligations. Unless due to a Force Majeure Event, the failure of Buyer to perform or cause to be performed any material obligation required to be performed by Buyer under this Agreement or the failure of any representation and warranty set forth herein to be true and correct as and when made; provided, however, that if such failure by its nature can be cured, then Buyer shall have a period of thirty (30) days after receipt of written notice of such failure to cure the same and a Buyer Default shall not be deemed to exist during such period; provided, further, that if Buyer commences to cure such failure during such period and is diligently and in good faith attempting to effect such cure, said period shall be extended for sixty (60) additional days.

Section 12.3 Buyer’s Remedies Upon Occurrence of a Seller Default. If a Seller Default has occurred under Section 12.1(d), Buyer may terminate this Agreement by written notice, and assert all rights and remedies available to Buyer under Legal Requirements subject to the limitations of liability set forth in Section 13.5. If a Seller Default has occurred under Section 12.1(a), Section 12.1(b) or Section 12.1(c), Buyer may terminate this Agreement only with respect to those Facilities for which such Seller Default has occurred by written notice, and (i) assert all rights and remedies available to Buyer under Legal Requirements subject to the limitations of liability set forth in Section 13.5, or (ii) require the Seller and, if so required, Seller shall repurchase the relevant Facility in respect of which this Agreement is being terminated from the Buyer on an AS IS basis by paying the Refund Value of any such Facility, calculated as of the date of such refund, in which case Seller shall take title to such Facility upon paying the Refund Value, and such Facility shall no longer constitute a portion of the Portfolio; provided, however, that if a Seller Default has occurred under Section 12.1(a) or Section 12.1(b) and remains uncured with respect to ten (10) or more Facilities, then Buyer may terminate this Agreement by written notice with respect to all Facilities. If a Facility will be removed pursuant to this Section 12.3, Seller shall at its sole cost and expense remove the Facility and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable Site Lease) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections in the manner required by all Legal Requirements and the applicable Site Lease.

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Section 12.4 Seller’s Remedies Upon Occurrence of a Buyer Default. If a Buyer Default has occurred Seller may terminate this Agreement only with respect to those Facilities for which a Buyer Default has occurred and remains uncured; provided that if such Buyer Default is a Buyer Default under Section 12.2(a) and has occurred and remains uncured with respect to ten (10) or more Facilities, then Seller may terminate this Agreement with respect to all Facilities not yet paid in full by Buyer by written notice, and assert all rights and remedies available to Seller under Legal Requirements with respect to those Facilities for which a Buyer Default has occurred, subject to the limitations of liability set forth in Section 13.5, including without limitation retaining any prior payments with respect to such Facilities and selling such Facilities to another buyer.

Section 12.5 Preservation of Rights. Termination of this Agreement shall not affect any rights or obligations as between the Parties which may have accrued prior to such termination or which expressly or by implication are intended to survive termination whether resulting from the event giving rise to termination or otherwise, including, without limitation, Article XI.

Section 12.6 Force Majeure. If either Party is rendered wholly or partially unable to perform any of its obligations under this Agreement by reason of a Force Majeure Event, that Party (the “Claiming Party”) will be excused from whatever performance is affected by the Force Majeure Event to the extent so affected; provided, however, that (a) the Claiming Party, within a reasonable time after the occurrence of such Force Majeure Event gives the other Party notice describing the particulars of the occurrence; (b) the suspension of performance shall be of no greater scope and of no longer duration than is reasonably required by the Force Majeure Event; (c) no liability of either Party for an event that arose before the occurrence of the Force Majeure Event shall be excused as a result of the Force Majeure Event; (d) the Claiming Party shall exercise commercially reasonable efforts to correct or cure the event or condition excusing performance and resume performance of all its obligations; and (e) when the Claiming Party is able to resume performance of its obligations under this Agreement, the Claiming Party shall promptly give the other Party notice to that effect and shall promptly resume performance.

Section 12.7 Termination of PPAs.

(a) In the event that a PPA is terminated with respect to a Facility, this Agreement shall be deemed terminated with respect to that Facility and any amounts payable to the Seller in respect of such Facility after the date of termination shall cease to be payable; provided, however, that any amounts payable to Seller with respect to Seller’s services performed prior to such PPA termination shall remain payable in accordance with the terms of this Agreement.

(b) In the event that the termination of this Agreement under Section 12.7(a) results from the default of Seller under this Agreement or the Administrative Services Agreement, Seller shall repurchase the relevant Facilities in respect of which this Agreement is being terminated from the Buyer on an AS IS basis by paying the Refund Value of any such Facilities, calculated as of the date of such refund, in which case Seller shall take title to such Facilities upon paying the Refund Value, and the applicable Bloom Systems shall no longer constitute a portion of the Portfolio. If a Facility will be removed pursuant to this Section 12.7, Seller shall at its sole cost and expense remove (or cause the removal of) the Facility and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent

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required under the applicable Site Lease) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections in the manner required by all Legal Requirements and the applicable Site Lease.

ARTICLE XIII.

INDEMNIFICATION

Section 13.1 IP Indemnity.

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

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(b) THIS INDEMNITY SHALL NOT COVER ANY CLAIM:

(i) for Intellectual Property infringement, conflict, violation or misuse arising from or in connection with any combination made by Buyer of any Bloom System with any other product or products or modifications made by or on behalf of Buyer to any part of the Bloom System, unless such combination or modification is (A) in accordance with Seller’s specifications for the Bloom System, or (B) made by or on behalf of or at the written request of Seller where Seller has requested the specific combination or modification giving rise to the claim by Seller; or

(ii) for infringement of any Intellectual Property rights arising in whole or in part from any aspect of the Bloom System which was designed by or requested by the Buyer on a custom basis.

Section 13.2 Indemnification of Seller by Buyer. Buyer shall indemnify, defend and hold harmless Seller, its officers, directors, employees, shareholders, Affiliates and agents (each, a “Seller Indemnitee”) from and against any and all Indemnifiable Losses asserted against or suffered by any Seller Indemnitee arising out of a claim by a third party (other than a claim for Seller Indemnitee’s breach of contract) and in any way relating to, resulting from or arising out of or in connection with any Third Party Claims against a Seller Indemnitee to the extent arising out of or in connection with (a) the negligent or intentional acts or omissions of Buyer or its subcontractors, agents or employees or others under Buyer’s control (excluding any Seller Affiliate) or breach by Buyer of its obligations under the Agreement, or (b) operation of Bloom Systems by any party other than Seller or an Affiliate or subcontractor of Seller after such Bloom Systems have been purchased by Buyer pursuant to this Agreement (but subject to Seller’s warranties, covenants and indemnities under this Agreement and any other Transaction Document to which Seller is a party); provided that Buyer shall have no obligation to indemnify Seller to the extent caused by or arising out of (i) any negligence, fraud or willful misconduct of any Seller Indemnitee or the breach by Seller or any Seller Indemnitee of its covenants and warranties under this Agreement or any other Transaction Document, (ii) any operation of Bloom Systems by a party outside of Buyer’s control or direction or by a party taking such action despite Buyer’s reasonable efforts to prevent the same or (iii) any breach by Seller or its Affiliate in its capacity as the administrator under the Administrative Services Agreement or as Managing Member under the Holdco LLC Agreement.

Section 13.3 Indemnification of Buyer by Seller.

(a) Seller shall indemnify, defend and hold harmless Buyer, its members, managers, officers, directors, employees, Affiliates and agents (each, a “Buyer Indemnitee”) from and against any and all Indemnifiable Losses asserted against or suffered by any Buyer Indemnitee arising out of (1) a claim by a third party (other than a claim for Buyer Indemnitee’s breach of contract) and in any way relating to, resulting from or arising out of or in connection with any Third Party Claims against a Buyer Indemnitee to the extent arising out of or in connection with the negligent or intentional acts or omissions of Seller or its subcontractors, agents or employees or others under Seller’s control (other than matters addressed separately in Section 13.1, which shall be governed by the terms thereof) or (2) a breach by Seller of its obligations under the Agreement; provided that, Seller shall have no obligation to indemnify Buyer to the extent

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caused by or arising out of any negligence, fraud or willful misconduct of a Buyer Indemnitee, the breach by Buyer or any Buyer Indemnitee of its covenants and warranties under this Agreement or the inability to utilize any tax benefits.

(b) Except as otherwise set forth in this Agreement, in the event that Buyer incurs any liability, cost, loss or expense to a PPA Customer (including relating to a breach of a PPA) in relation to the repurchase by or return to Seller of any Bloom System under this Agreement, Seller shall indemnify and hold Buyer harmless for any such liability, cost, loss or expense incurred by Buyer.

Section 13.4 Indemnity Claims Procedure . Except as otherwise provided in Section 13.1, if any indemnifiable claim is brought against a Party (the “Indemnified Party”), then the other Party (the “Indemnifying Party”) shall be entitled to participate in, and, unless in the reasonable opinion of counsel for the Indemnifying Party a conflict of interest between the Parties may exist with respect to such claim, assume the defense of such claim, with counsel reasonably acceptable to the Indemnifying Party. If the Indemnifying Party does not assume the defense of the Indemnified Party, or if a conflict precludes the Indemnifying Party from assuming the defense, then the Indemnifying Party shall reimburse the Indemnified Party on a monthly basis for the Indemnified Party’s reasonable defense expenses through separate counsel of the Indemnified Party’s choice. Even if the Indemnifying Party assumes the defense of the Indemnified Party with acceptable counsel, the Indemnifying Party, at its sole option, may participate in the defense, at its own expense, with counsel of its own choice without relieving the Indemnifying Party of any of its obligations hereunder.

Section 13.5 Limitation of Liability.

(a) Notwithstanding anything to the contrary in this Agreement, in no event shall a Party be liable to the other Party for an amount in excess of the Maximum Liability unless and to the extent such liability is the result of (A) fraud, willful default, willful misconduct, or gross negligence of a Party or that Party’s employees, agents, subcontractors (except that for the purposes of this provision, the Seller and its employees, agents and subcontractors will not be deemed to be employees, agents or subcontractors of the Buyer), (B) a Third Party Claim, (C) a claim of Seller against Buyer for the Buyer’s failure to pay the Service Fees or Purchase Price for any Facility (which amounts shall not be included in calculating Buyer’s Maximum Liability), (D) a claim with respect to injury to or death of any person, (E) the Seller’s abandonment to the extent constituting a repudiation of this Agreement in respect of all or any part of the Facilities, or (F) events or circumstances in respect of which insurance proceeds are available or that would have been available but for a failure by the Seller to maintain, or comply with the terms of, insurance that it is required to obtain and maintain under this Agreement, and any amounts so received will not be included when calculating the Seller’s Maximum Liability. Subject always to the Maximum Liability limitations set forth in the preceding sentence, except for damages or amounts specifically provided for in this Agreement or in connection with the indemnification for damages awarded to a third party under a Third Party Claim, damages hereunder are limited to direct damages, and in no event shall a Party be liable to the other Party, and the Parties hereby waive claims, for (x) indirect, punitive, special or consequential damages or loss of profits; provided, however, that the loss of profits language set forth in this Section 13.5(a) shall not be interpreted to exclude from Indemnifiable Losses any (i) losses

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arising as a result of the loss or recapture of any ITC or (ii) claim, demand, suit, loss, liability, damage, obligation, payment, cost or expense (including the cost and expense of any action, suit, proceeding, assessment, judgment, settlement or compromise relating thereto and reasonable attorneys’ fees and reasonable disbursements in connection therewith) that would otherwise be included in the definition of Indemnifiable Losses because they result from a reduction in the profits of Buyer or interest, costs or expenses payable by Buyer to the Buyer’s Lender, and (y) losses or liabilities incurred by the officers, directors, members, managers, partners, shareholders or Affiliates of such Party (unless on behalf of Buyer).

(b) Each Party hereby waives any claim under this ARTICLE XIII irrespective of the legal theory under which it is brought to the extent such claim is covered by the insurance of the claiming Party.

Section 13.6 Liquidated Damages; Estoppel. The Parties acknowledge and agree that it would be impracticable or impossible to determine with precision the amount of damages that would or may be incurred by Buyer as a result of the Portfolio’s failure to satisfy the Quarterly Capacity Warranty. It is therefore understood and agreed by the Parties that: (a) Buyer may be damaged by Seller’s failure to satisfy Quarterly Capacity Warranty; (b) it would be impractical or impossible to fix the actual damages to Buyer resulting therefrom; and (c) any cash payments of a Quarterly Capacity Warranty Payment and any Refund Values payable to Buyer under Section 5.4(c) this Agreement for failure to meet such obligations are in the nature of liquidated damages, and not a penalty, and are fair and reasonable estimate of compensation for the losses that Buyer may reasonably be anticipated to incur by such failure. Seller hereby (i) waives any argument that its failure to comply with its obligations set forth in Section 5.4 would not cause Buyer irreparable harm, (ii) agrees that it shall be estopped from arguing the invalidity, or otherwise questioning the reasonableness, of the liquidated damages provided for herein, and (iii) agrees that it will consent to the entry of judgment ordering payment of such liquidated damages in any court of competent jurisdiction. Seller and Buyer each agree that Buyer shall be under no obligation to submit any dispute regarding the payment of any Refund Value when due to the dispute resolution mechanism set forth in Section 14.5, but may rather immediately pursue whatever rights it has available under this Agreement, at law or in equity in accordance with Section 14.6 herein.

Section 13.7 Survival. The Parties’ respective rights and obligations under this ARTICLE XIII shall survive any total or partial termination of this Agreement.

ARTICLE XIV.

MISCELLANEOUS PROVISIONS

Section 14.1 Amendment and Modification. This Agreement may be amended, modified or supplemented only by written agreement of Buyer and Seller.

Section 14.2 Waiver of Compliance., Consents. Except as otherwise provided in this Agreement, any failure of any of the Parties to comply with any obligation, covenant, agreement or condition herein may be waived by the Party entitled to the benefits thereof only by a written instrument signed by the Party granting such waiver, but any such waiver of such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent failure to comply therewith.

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Section 14.3 Notices. All notices, provisions of Documentation, reports, certifications, or other documentation, and other communications hereunder shall be in writing and shall be deemed given when received if delivered personally or by facsimile transmission with completed transmission acknowledgment or by electronic mail, or when delivered if mailed by overnight delivery via a nationally recognized courier or registered or certified first class mail (return receipt requested), postage prepaid, to the recipient Party at its below address (or at such other address or facsimile number for a Party as shall be specified by like notice; provided, however, that notices of a change of address shall be effective only upon receipt thereof):

To Seller:	Bloom Energy Corporation
	1299 Orleans Drive
	Sunnyvale, CA 94089-1137
	Attention: [***]
	Telephone: [***]
	Fax: [***]
	Email: [***]
To Buyer:	2014 ESA Project Company, LLC
	1252 Orleans Drive
	Sunnyvale, CA 94089-1137
	Attention: [***]
	Telephone: [***]
	Fax: [***]
	Email: [***]
	With a copy to:
	2014 ESA Project Company, LLC
	c/o Exelon Generation Company, LLC
	10 S. Dearborn St., 52nd Floor
	Chicago, IL 60603
	Attention: [***]
	With a copy to:
	Exelon Business Services Company, LLC
	10 South Dearborn St., 49th Floor
	Chicago, IL 60603
	Attn: [***]

Section 14.4 Assignment; Subcontractors. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns (including by operation of law), but neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any Party, whether by

[***] Confidential Treatment Requested

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operation of law or otherwise, without the prior written consent of the other Party, provided that Buyer may collaterally assign its rights under this Agreement to any party providing debt or equity financing to it without the consent of Seller. Notwithstanding the foregoing sentence, (a) Seller shall be entitled to assign its right, title and interest in and to this Agreement to an Affiliate under common ownership with Seller with the prior consent of Buyer, and (b) Seller shall be entitled to subcontract any of its obligations under this Agreement without consent, provided that such assignment or subcontracting shall not excuse Seller from the obligation to competently perform any subcontracted obligations or any of its other obligations under the Agreement.

Section 14.5 Dispute Resolution; Governing Law.

(a) Except as provided in Section 13.6, in the event a dispute, controversy or claim arises hereunder, including any claim whether in contract, tort (including negligence), strict product liability or otherwise, the aggrieved Party will promptly provide written notification of the dispute to the other Party within ten (10) days after such dispute arises. Thereafter, a meeting shall be held promptly between the Parties, attended by representatives of the Parties with decision-making authority regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute. If the Parties are not successful in resolving a dispute within twenty-one (21) days of such meeting, then, subject to the limitations on remedies set forth in Section 12.3 and Section 12.4 and ARTICLE XIII, either Party may pursue whatever rights it has available under this Agreement, at law or in equity in accordance with Section 14.6 herein.

(b) In the event of any dispute arising out of or relating to this Agreement, each Party hereby consents to service of process made to the addressees set forth in Section 14.3 herein either by overnight delivery by a nationally recognized courier or by certified first class mail, return receipt requested, and hereby acknowledges that service by such means shall constitute valid and lawful service of process against the Party being served.

(c) Each Party hereby agrees that, in the event of any dispute arising out of or relating to this Agreement, it will not oppose the joinder of operator to such action or proceeding.

Section 14.6 Governing Law, Jurisdiction, Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW OR OTHER PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING TO ANY SUCH DISPUTE AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO.

Section 14.7 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute

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one and the same instrument. Signatures delivered by facsimile (or portable document format) will be considered original signatures, and each Party shall thereafter promptly deliver original signatures to the other Party.

Section 14.8 Interpretation. The article, section and schedule headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the Parties and shall not in any way affect the meaning or interpretation of this Agreement.

Section 14.9 Entire Agreement. The Transaction Documents and the exhibits, schedules, documents, certificates and instruments referred to therein, embody the entire agreement and understanding of the Parties in respect of the transactions contemplated by this Agreement.

(a) Each Party acknowledges that, in agreeing to enter into this Agreement, it has not relied on any representation, warranty, collateral contract or other assurance (except those repeated in this Agreement and any other agreement entered into on the date of this Agreement between the Parties) made by or on behalf of any other Party at any time before the signature of this Agreement. Each Party waives all rights and remedies which, but for this clause (a), might otherwise be available to it in respect of any such representation, warranty, collateral contract or other assurance.

Section 14.10 Construction of Agreement. The terms and provisions of this Agreement represent the results of negotiations between Buyer and Seller, each of which has been represented by counsel of its own choosing, and neither of which has acted under duress or compulsion, whether legal, economic or otherwise. Accordingly, the terms and provisions of this Agreement shall be interpreted and construed in accordance with their usual and customary meanings, and Buyer and Seller hereby waive the application in connection with the interpretation and construction of this Agreement of any rule of law to the effect that ambiguous or conflicting terms or provisions contained in this Agreement shall be interpreted or construed against the Party whose attorney prepared the executed draft or any earlier draft of this Agreement.

Section 14.11 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party.

Section 14.12 Further Assurances. Each Party agrees to execute and deliver such additional documents and instruments and to perform such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions, and conditions of this Agreement and the transactions contemplated by this Agreement.

Section 14.13 Independent Contractors. The Parties acknowledge that, save as expressly set out in this Agreement to the contrary, each Party is entering into this Agreement as an independent contractor and nothing in this Agreement shall be interpreted or applied so as to make the relationship of any of the Parties that of partners, joint ventures or anything other than independent contractors.

48

Section 14.14 Limitation on Export. Buyer agrees that it will not export, re-export, resell, ship or divert directly or indirectly any Facility or any part thereof in any form or technical data or Software furnished hereunder to any country prohibited by the United States Government or any other Governmental Authority, or for which an export license or other Governmental Approval is required, without first obtaining such license or approval.

Section 14.15 Time of Essence. Time is of the essence with respect to all matters contained in this Agreement.

Section 14.16 No Rights in Third Parties. Except as otherwise specified herein, (a) nothing in this Agreement nor any action taken hereunder shall be construed to create any duty, liability or standard of care to any Person that is not a Party, (b) no person that is not a Party shall have any rights or interest, direct or indirect, in this Agreement or the services to be provided hereunder and (c) this Agreement is intended solely for the benefit of the Parties, and the Parties expressly disclaim any intent to create any rights in any third party as a third-party beneficiary to this Agreement or the services to be provided hereunder.

[Remainder of page intentionally left blank]

49

IN WITNESS WHEREOF, Buyer and Seller have caused this Amended and Restated Purchase, Use and Maintenance Agreement to be signed by their respective duly authorized officers as of the Agreement Date.

BUYER:
2014 ESA PROJECT COMPANY, LLC
a Delaware limited liability company
By:	/s/ William E. Brockenborough
Name:	William E. Brockenborough
Title:	Vice President

[Signature Page to Amended and Restated Purchase, Use and Maintenance Agreement]

SELLER:
BLOOM ENERGY CORPORATION
a Delaware corporation
By:	/s/ William H. Kurtz
Name:	William H. Kurtz
Title:	Chief Financial Officer

[Signature Page to Amended and Restated Purchase, Use and Maintenance Agreement]

Annex A

Minimum Power Product Example Calculation

Sample Quarterly Minimum Power Product Example Calculation

Assumptions
Number of active Systems	46
Nameplate capacity	200		kW
Quarterly Capacity Warranty	80	%
Quarterly Minimum Power Product Analysis
Minimum Power Product	7,630		kW

Sample Annual Minimum Power Product Example Calculation

Assumptions
Number of active Systems	46
Nameplate capacity	200	]	kW
Annual Capacity Warranty	95	%
Quarterly Minimum Power Product Analysis
Minimum Power Product	8,740		kW

Annex B

Insurance

Insurance. At all times during the Term, without cost to Buyer, Seller shall maintain in force and effect the following insurance, which insurance shall not be subject to cancellation, termination or other material adverse changes unless the insurer delivers to Buyer written notice of the cancellation, termination or change at least thirty (30) days in advance of the effective date of the cancellation, termination or material adverse change or if notice from the insurer to the Buyer of material adverse change is not available on commercially reasonable terms then the Seller shall provide the Buyer with such notice as soon as reasonably possible after becoming aware of such change:

(a) Worker’s Compensation Insurance as required by the laws of the state in which Buyer’s facilities are located;

(b) Employer’s liability insurance with limits at policy inception not less than One Million Dollars ($1,000,000.00);

(c) Commercial General Liability Insurance, including bodily injury and property damage liability (arising from premises, operations, contractual liability endorsements, products liability, or completed operations) with limits not less than Two Million Dollars ($2,000,000.00); at policy inception;

(d) If there is exposure, automobile liability insurance in accordance with prudent industry practice with a limit of not less than $1,000,000 per claim; and

(e) Umbrella liability insurance acting in excess of underlying employer’s liability, commercial general liability and automobile liability policies with limits not less than Fifteen Million Dollars ($15,000,000.00) except that any subcontractors shall be required to maintain such insurance with limits of not less than Three Million Dollars ($3,000,000.00)

Seller shall cause Buyer to be included as additional insured to all insurance policies required in accordance with the provisions of this Agreement except for worker’s compensation. The required insurance must be written as a primary policy not contributing to or in excess of any policies carried by the Seller, and each must contain a waiver of subrogation, in form and substance reasonably satisfactory to the Buyer, in favor of the Buyer.

The insurances contemplated in this clause are primary. The Parties acknowledge that, if a claim is made under any of the insurances contemplated in this Agreement, it is their intention that the insurer cannot require the Party first to exhaust indemnities referred to in this Agreement before the insurer’s obligation to perform is mature, subject to the insurer’s later pursuing subrogation, in which event any recovery will be credited by such insurer pro tanto in favor of the policyholder. The general liability and umbrella liability insurances required by this agreement shall provide blanket contractual coverage to the full policy limit. Where applicable, each of these insurances will:

(a) be effected with an insurer reasonably acceptable to the Buyer;

(b) not contain any exclusion, endorsement, amendment or alteration, unless first approved by the Buyer (such approval not to be unreasonably withheld or delayed);

(c) contain a waiver of subrogation in favor of the Buyer;

(d) contain deductibles in accordance with prudent industry practice and approved by Buyer acting reasonably; and

(e) include a provision that such insurance is primary insurance with respect to the interests of the Buyer and Seller and that any other insurance maintained by the Buyer is excess and not contributory insurance with the insurances required under this Agreement.

Seller shall provide Buyer with evidence of compliance with these insurance requirements when requested by Buyer from time to time on a reasonable basis.

Annex C

Capacity Warranty Claim Example Calculation and Amounts Payable

Sample Quarterly Capacity Warranty Claim Example Calculation

Assumptions
Number of Systems	46
System Capacity	200		kW
Hours/Day	24		Hours
Measurement Period	90		Days
Force Majeure Outage in Period(1)			Hours
PPA Customer Outage in Period(1)			Hours
Legal/Grid Outage in Period(1)			Hours
Average Tolling Rate	[***]		/kWh
Quarterly Minimum Power Product Analysis
Minimum kWh = (Measurement Period days * 24 Hours/Day)			kWh
– Force Majeure Hours
– PPA Customer Outage Hours
– Legal/Grid Outage Hours)
* Minimum Power Product(2)
Actual kWh = Actual generation in Period			kWh
Actual Capacity Factor = Actual kWh/(Minimum kWh/Quarterly Capacity Warranty Factor) * 100 %
Quarterly Capacity Warranty Factor	80	%
Actual Capacity Factor			78%
Minimum kWh	15,897,600		kWh
Actual kWh	15,500,160		kWh
Underperformance (kWh)	397,440		kWh
Quarterly Capacity Warranty Payment	[***]

(1) As described in the “Minimum kWh” definition above.

(2) As calculation per Annex A herein.

[***] Confidential Treatment Requested

Sample One-Year Capacity Warranty Claim Example Calculation

Assumptions
Number of Systems			46
System Capacity			200			kW
Hours/Day			24			Hours
Measurement Period			365			Days
Force Majeure Outage in Period(1)						Hours
PPA Customer Outage in Period(1)						Hours
Legal/Grid Outage in Period(1)						Hours
Average Tolling Rate A (3)	$	[***]			/kWh
Average Tolling Rate B (4)	$	[***]			/kWh
One-Year Capacity Warranty analysis
Minimum kWh = (Measurement Period Days * 24 Hours/Day)					kWh
– Force Majeure Hours
– PPA Customer Outage Hours
– Legal/Grid Outage Hours)
* Minimum Power Product(2)
Actual kWh = Actual generation in Period					kWh
Actual Capacity Factor = Actual kWh/(Minimum kWh/One-Year Capacity Warranty Factor) * 100 %
One-Year Capacity Warranty						95%
Actual Output					90%
Minimum kWh		76,562,400
Actual kWh					72,532,800
Underperformance (kWh)					4,029,600
Quarterly Capacity Warranty Payment				$	[***]

Notes:

(1) As described in the “Minimum kWh” definition above.

(2) As calculated per Annex A herein.

(3) Average Tolling Rate A, calculated as set forth in the example, below, shall be used until Capacity Warranty Claim reaches [***]

(4) Average Tolling Rate B shall at all times equal [***] and shall be used after Capacity Warranty Claim reaches [***]

[***] Confidential Treatment Requested

Average Tolling Rate Example Calculation

Assumptions Installed Capacity	Tolling Rate
200kW	[***]
1000kW	[***]
Calculation
Tolling Rate	= ((2000kW)*[***]/kWh) + (1000kW)*[***]/kWh)) / (2000kW+1000kW)
	= [***]/kWh

* Tolling Rate to reflect the applicable tolling rate in each PPA for the period in which the shortfall in the Quarterly Capacity Warranty occurred.

[***] Confidential Treatment Requested

Annex D

List of PPAs

1. That certain Energy System Use Agreement, dated as of December 31, 2013, by and between Home Depot U.S.A Inc. and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

2. That certain Energy System Use Agreement No. 20131206.035.C, dated as of March 31, 2014, by and between AT&T Corp. and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

3. That certain Energy System Use Agreement No. 20131206.036.C, dated as of March 31, 2014, by and between AT&T Corp. and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

4. That certain Energy System Use Agreement No. 20131206.037.C, dated as of March 31, 2014, by and between Pacific Bell Telephone Company and the Buyer, as amended by Amendment No. 1 to Energy System Use Agreement No. 20131206.037.C, effective as of May 15, 2014, by and between Pacific Bell Telephone company and the Buyer, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time.

5. That certain Energy System Use Agreement No. 20131206.039.C, dated as of February 21, 2014, by and between Pacific Bell Telephone Company and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

6. That certain Energy System Use Agreement No. 20140225.013.C, dated as of March 21, 2014, by and between Pacific Bell Telephone Company and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

Exhibit A

Form of Purchase Order

	PURCHASE ORDER
2014 ESA Project Company, LLC		Page 1 of 1
PO Number: Revision: PO Type: PO Status:	Supplier Details:	Bloom Energy 1299 Orleans Drive Sunnyvale, CA 94089 United States
Ship-To Address:	Bill-To Address:	1299 Orleans Drive Sunnyvale, CA 94089 United States

Payment terms		Shipping Terms	Freight terms
Net 30
Creation Date	Buyer	Requestor	Vendor Contact
-    -13

Line	Deliver Date	Part Number / Part Description	Quantity	Unit Price (USD)	Taxable (Y/N)	Total (USD)
1		Ship-To:
Total PO Amount (Exclusive of Tax)

Note to Supplier:

Bloom Energy Standard Terms and Conditions apply.

Note to Supplier:

Bloom Energy Standard Terms and Conditions Apply

Exhibit B

Form of Bill of Sale

BILL OF SALE

This BILL OF SALE, dated as of [            ] [    ], 201  , is made by BLOOM ENERGY CORPORATION, a Delaware corporation (“Seller”), to 2014 ESA PROJECT COMPANY, LLC, a Delaware limited liability company (“Buyer”), and is delivered pursuant to the Amended and Restated Purchase, Use and Maintenance Agreement, dated as of July 18, 2014 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “A&R PUMA”), between Seller and Buyer, in connection with the transfer of the assets described on Exhibit A attached hereto (the “Purchased System”).

Seller hereby assigns, conveys, sells, delivers, sets over and transfers to Buyer, for the consideration, and on the terms and conditions, set forth in the A&R PUMA, all of Seller’s rights, title and interest in, under and to the Purchased System, and Buyer hereby accepts such assignment .

This Bill of Sale shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.

This Bill of Sale shall be governed by, and construed in accordance with, the laws of the State of California.

[Signature Page Follows]

IN WITNESS WHEREOF, the parties hereto have caused this Bill of Sale to be signed by their respective duly authorized officers as of the date first written above.

SELLER:

BLOOM ENERGY CORPORATION

By:

Name:

Title:

BUYER:

2014 ESA PROJECT COMPANY, LLC

By:

Name:

Title:

EXHIBIT A TO BILL OF SALE

Purchased System

Exhibit C

Facilities

Site No.	PPA Customer	Address	City	State	Size (kW)	Price ($/kWh)
1
2
3
4
5
6
7
8
9
Total:

Exhibit D

Service Fees

Calendar Quarter Since Commencement of Operations for the applicable Facility	Rate ($/kW)
1 through 4		[***]
5 through 8		[***]
9 through 12		[***]
13 through 16		[***]
17 through 20		[***]
21 through 24		[***]
25 through 28		[***]
29 through 32		[***]
33 through 36		[***]
37 through 40		[***]
41 through 44		[***]
45 through 48		[***]
49 through 52		[***]
53 through 56		[***]
57 through 60		[***]
For Calendar Quarters occurring during a PPA renewal or extension period		[***]

[***] Confidential Treatment Requested

Exhibit E

Form of Certification of Installation

To:

1. 2014 ESA PROJECT COMPANY, LLC (Buyer); and

2. [Lender].

Copy: Leidos Engineering, LLC (Independent Engineer)

This Certificate is given pursuant to paragraph (e) of the definition of Commencement of Operations in the Amended and Restated Purchase, Use and Maintenance Agreement between the BLOOM ENERGY CORPORATION (Seller) and the Buyer dated July 18, 2014 (as amended, amended and restated, supplemented or otherwise modified from time to time, the A&R PUMA).

Terms defined in the A&R PUMA have the same meaning where used in this Certificate.

This certificate is provided in respect of the Site known as [insert Site where Facility is located] (Site).

The Seller hereby certifies that in respect of the Site:

1. Each Bloom System comprising the Facility has been installed, commissioned and tested in accordance with the Performance Standards and all other requirements of the A&R PUMA; and

2. All BOF and BOF Work necessary for the operation of the Facility has been installed, commissioned and tested in accordance with the Performance Standards and all other requirements of the A&R PUMA.

This Certificate may be relied upon by the Buyer and the Buyer’s Lender.

Signed for and on behalf of BLOOM ENERGY CORPORATION

By:

Name:

Title:

Exhibit F

Form of Independent Engineer Certification of Commencement of Operations

[Date of Certificate]

To:

1. BLOOM ENERGY CORPORATION

2. 2014 ESA PROJECT COMPANY, LLC

Subject: Independent Engineer’s Commencement of Operations Certificate PPA IV Project

Ladies and Gentlemen:

This certificate (“Certificate”) is being delivered to 2014 ESA Project Company, LLC, a Delaware limited liability company (“Buyer”), on behalf of Leidos Engineering, LLC (the “Independent Engineer”) as required by clause (g) of the definition of “Commencement of Operations” in the Amended and Restated Purchase, Use and Maintenance Agreement (as amended, amended and restated, supplemented or otherwise modified from time to time, the “A&R PUMA”), dated as of July 18, 2014, between Buyer and Bloom Energy Corporation, a Delaware corporation (“Seller”). Capitalized terms used, but not defined herein, shall have the meanings ascribed to them in the A&R PUMA.

As of the date of this Certificate, the Independent Engineer is of the opinion that:

1. The installation, commissioning and testing of the Bloom System(s) listed in Table 1 on Attachment A, attached hereto, has been successfully completed in accordance with the requirements of the A&R PUMA;

2. Each of the requirements set out in paragraphs (a) through (f) of the definition of Commencement of Operations in the A&R PUMA have been satisfied with respect to the Facility listed in Table 1 on Attachment A, attached hereto;

3. Each Bloom System comprising the Facility listed in Table 1 on Attachment A, attached hereto, has achieved commercial operation; and

4. Seller has completed all BOF Work necessary for the operation of the Facility listed in Table 1 on Attachment A, attached hereto.

This Certificate was prepared with the understanding and assumption that the information provided to us in relation to this certificate is true, correct and complete. Our review and observations were performed pursuant to the scope of services under our Professional Services Agreement, dated as of October 17, 2013, as amended (the “Professional Services Agreement”) with Seller, and with the degree of skill and diligence normally practiced by professional engineers or consultants performing the same or similar services on like projects.

This Certificate is solely for the information of and assistance to the Buyer’s Lender in conducting and documenting their investigation of the matters in connection with the applicable System and is not to be used, circulated, quoted, or otherwise referred to

within or without the lending group for any other purpose. The Independent Engineer disclaims any obligation to update this Certificate. This Certificate is not intended to, and may not, be relied upon by any party other than the Buyer’s Lender.

LEIDOS ENGINEERING, LLC

By:

Name:

Title:

ATTACHMENT A

COMPLETED BLOOM SYSTEMS

Table 1

Facility List and Commencement of Operations (“CO”) Date

Serial No. Location of Facility Unit Model Net Capacity (kW-AC) CO Date

EX-10

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

Exhibit 10.22

EXECUTION VERSION

EQUITY CAPITAL CONTRIBUTION AGREEMENT

by and among

CLEAN TECHNOLOGIES 2014, LLC

and

EXELON GENERATION COMPANY, LLC JULY 18, 2014

TABLE OF CONTENTS

		Page
ARTICLE ONE DEFINITIONS AND PRINCIPLES OF INTERPRETATION			1
1.1.	Definitions		1
1.2.	Rules of Interpretation		10
ARTICLE TWO EQUITY CAPITAL CONTRIBUTIONS			11
2.1.	Execution Date		11
2.2.	Contributions		11
2.3.	Execution of LLC Agreement		12
2.4.	Use of Funding Date Proceeds		12
2.5.	Final List of Facilities		13
ARTICLE THREE REPRESENTATIONS AND WARRANTIES REGARDING THE FACILITY ENTITIES AND EACH FACILITY			13
3.1.	Organization and Good Standing		13
3.2.	Authorization, Execution and Enforceability		13
3.3.	No Violation		14
3.4.	Subsidiaries; Non-Related Liabilities		14
3.5.	Members of the Company; Additional Membership Interests		14
3.6.	Warranty of Title; Personal Property		15
3.7.	Facilities; Governmental Approvals		15
3.8.	Intellectual Property		15
3.9.	Employees		15
3.10.	Brokers		16
3.11.	Consents and Approvals		16
3.12.	Compliance with Applicable Law		16
3.13.	Litigation		16
3.14.	Contracts		16
3.15.	Default		17
3.16.	Environmental Matters		17
3.17.	Casualty Defect		17
3.18.	Real Property		17
3.19.	PUHCA and FPA Status		17
3.20.	Affiliate Transactions		18
3.21.	Information		18
3.22.	Insurance		18
3.23.	State Regulation		18
3.24.	Taxes		18
3.25.	Tax Representations		19
3.26.	Bankruptcy		20
3.27.	Executive Order 13224 and the Patriot Act		20

TABLE OF CONTENTS

(continued)

		Page
3.28.	Facility Costs		20
3.29.	Facility Purchase Conditions		20
3.30.	Financial Statements		21
ARTICLE FOUR REPRESENTATIONS AND WARRANTIES REGARDING THE BLOOM MEMBER			21
4.1.	Organization and Good Standing		21
4.2.	Authorization, Execution and Enforceability		21
4.3.	No Violation		21
4.4.	Brokers		21
4.5.	Consents and Approvals		22
4.6.	Litigation		22
4.7.	United States Person		22
4.8.	Disqualified Person		22
4.9.	Ownership		22
4.10.	No Options		22
4.11.	Compliance with Law		22
4.12.	Fees		23
ARTICLE FIVE REPRESENTATIONS AND WARRANTIES OF THE INVESTOR			23
5.1.	Organization and Good Standing		23
5.2.	Authorization, Execution and Enforceability		23
5.3.	No Violation		23
5.4.	Consents and Approvals		24
5.5.	Litigation		24
5.6.	Investment Intent; Unregistered Securities		24
5.7.	Accredited Investor		24
5.8.	Brokers		24
5.9.	United States Person		25
5.10.	[Intentionally Left Blank		25
5.11.	Disqualified Person		25
5.12.	Related Party		25
5.13.	Compliance with ERISA		25
5.14.	No Other Representations		26
ARTICLE SIX CONDITIONS PRECEDENT			26
6.1.	Execution Date Conditions Precedent		26
6.2.	Funding Date Conditions Precedent		27

2

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

3

LIST OF SCHEDULES AND ANNEXES TO

EQUITY CAPITAL CONTRIBUTION AGREEMENT

SCHEDULES

Schedule A	Bloom Member Contribution
Schedule B	Investor Contribution

ANNEXES

Annex 1	Reserved
Annex 2	Base Case Model
Annex 3	Insurance Requirements
Annex 4	“Knowledge” Persons
Annex 5	Third Party Consents and Approvals
Annex 6	Form of Company LLC Agreement
Annex 7	Form of Independent Engineer Use of Work Product Agreement
Annex 8	Affiliate Transactions
Annex 9	Tax Matters
Annex 10	Forms of Financing Documents
Annex 11	Forms of Principal Facility Documents

EQUITY CAPITAL CONTRIBUTION AGREEMENT

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

PRELIMINARY STATEMENTS:

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

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

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

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

ARTICLE ONE

DEFINITIONS AND PRINCIPLES OF INTERPRETATION

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

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

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

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

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

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

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

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

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

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

“Bankruptcy” or “Bankrupt” as to any Person means the filing of a petition for relief as to any such Person as debtor or bankrupt under the Bankruptcy Code or like provision of law (except if such petition is contested by such Person and has been dismissed within sixty (60) days); insolvency of such Person as finally determined by a court proceeding; filing by such Person of a petition or application to accomplish the same or for the appointment of a receiver or a trustee for such Person or a substantial part of its assets; commencement of any proceedings relating to such Person under any other reorganization, arrangement, insolvency, adjustment of debt or liquidation law of any jurisdiction, whether now in existence or hereinafter in effect, either by such Person or by another, provided that if such proceeding is commenced by another, such Person indicates its approval of such proceeding, consents thereto or acquiesces therein, or such proceeding is contested by such Person and has not been finally dismissed within sixty (60) days.

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

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

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

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

2

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“FERC” means the Federal Energy Regulatory Commission.

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

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

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

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

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

“Funding Date Deadline” means September 30, 2015.

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

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

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

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

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

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

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

“Independent Engineer” means Leidos Engineering, LLC.

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

“Initial Investor Contribution Amount” means, with respect to any Tranche, an amount equal to 9.93% of the anticipated Purchase Price (as defined in the A&R PUMA) with respect to the Facilities in such Tranche.

“Insurance Consultant” means Moore-McNeil, LLC.

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

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

“Interparty Agreement” means that certain Interparty Agreement, dated as of the date hereof, by and among the Facility Company, the Investor and Deutsche Bank Trust Company Americas, as collateral agent on behalf of the Secured Parties hereto.

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

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

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

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

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

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

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

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

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

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

“MW” means megawatt.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

1.2. Rules of Interpretation.

In this Agreement:

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

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

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

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

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

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ARTICLE TWO

EQUITY CAPITAL CONTRIBUTIONS

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

2.2. Contributions.

(a) On the Execution Date, the Bloom Member shall make a contribution to the Company in an amount equal to $750,000 which amount shall be used to pay Transaction Expenses and Facility Costs due on or about the Execution Date.

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

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

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

(c) Notwithstanding anything in Section 2.2(b) to the contrary,

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

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

[***] Confidential Treatment Requested

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

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

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

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

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

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

[***] Confidential Treatment Requested

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

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

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

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

ARTICLE THREE

REPRESENTATIONS AND WARRANTIES REGARDING THE FACILITY ENTITIES AND EACH FACILITY

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

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

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

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

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

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

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

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

3.7. Facilities; Governmental Approvals. As of the date this representation is made or confirmed, the Facility Company owns (or holds enforceable leasehold rights or easements to) all Assets (other than Governmental Approvals or intellectual property rights) necessary for the construction, installation, operation and maintenance of the Facilities and has obtained all Governmental Approvals, and owns, or holds a license with respect to, all intellectual property rights (without any known conflict with, or infringement of, the rights of others), in each case, required as of such date to construct such Facilities, own any installed Facilities and operate and sell electric power from any operating Facilities in compliance with Applicable Law, and to execute and deliver, and perform obligations as of such date under, the Investment Documents and all Financing Documents and Principal Facility Documents to which the Facility Company is a party. Each of the Governmental Approvals obtained as of such date is validly issued, final and in full force and effect and is not subject to any current legal proceeding or to any unsatisfied condition which is reasonably likely to have a Material Adverse Effect on the Facility Company. The Facility Company is in compliance in all material respects with all applicable Governmental Approvals and no Facility Entity has received written notice from a Governmental Authority of an actual or potential violation of any such Governmental Approval that could reasonably be expected to have a Material Adverse Effect on the Facility Company.

3.8. Intellectual Property. To the Knowledge of the Bloom Member, no product or service marketed or sold (or proposed to be marketed or sold) by either Facility Entity violates or will violate any license or infringes or will infringe any intellectual property rights of any other party. Neither Facility Entity has received any written communications alleging that such Facility Entity has violated, or by conducting its business, would violate any of the patents, trademarks, service marks, tradenames, copyrights, trade secrets, mask works or other proprietary rights or processes of any other Person.

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

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

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

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

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

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

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

3.16. Environmental Matters.

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

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

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

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

3.18. Real Property. The real property referred to in each PPA and any Site Lease is all the real property that is necessary for the construction, installation, operation and maintenance of the Facilities other than those real property interests that can be reasonably expected to be available on commercially reasonable terms as and to the extent required.

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

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

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

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

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

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

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

3.25. Tax Representations.

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

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

(c) As of the Funding Date on which an Investor Contribution is being made with respect to a Facility, no federal, state, or local tax credit (including the ITC) has been claimed with respect to any property that is part of the applicable Tranche. No application has been submitted, for a grant provided under Section 1603 of the American Recovery and Reinvestment Tax Act of 2009, as amended by the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010, with respect to any property that is part of any Facility.

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

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

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

(g) Other than de minimis property, material or parts, each Facility consists of property, materials or parts not used by any person prior to having been first placed in as state of readiness and availability for their specific design function as part of the Facility.

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(h) No portion of the basis of the Facility is attributable to “qualified rehabilitation expenditures” within the meaning of Section 47(c)(2)(A) of the Code.

(i) No grants (for purposes of this paragraph, “grants” shall not include any credits, benefits, emissions reductions, offsets or allowances, howsoever entitled, attributable to the generation from the Facilities, and its respective avoided emission of pollutants) have been provided by the United States, a state, a political subdivision of a state, or any other Governmental Authority for use in constructing or financing any Facility or with respect to which the Bloom Member, the Company, the Facility Company, or any Facility is the beneficiary. No proceeds of any issue of state or local government obligations have been used to provide financing for any Facility the interest on which is exempt from tax under Code Section 103. No subsidized energy financing (within the meaning of Code Section 45(b)(3)) has been provided, directly or indirectly, under a federal, state, or local program provided in connection with any Facility.

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

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

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

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

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

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

ARTICLE FOUR

REPRESENTATIONS AND WARRANTIES REGARDING THE BLOOM MEMBER

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ARTICLE FIVE

REPRESENTATIONS AND WARRANTIES OF THE INVESTOR

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

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

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

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

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

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

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

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

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

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

5.10. [Intentionally Left Blank.]

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

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

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

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

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

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

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5.14. No Other Representations. The Investor is not relying on any representations or warranties whatsoever, express, implied, at common law, statutory or otherwise, except for the representations or warranties expressly set out in this Agreement and the other Investment Documents.

ARTICLE SIX

CONDITIONS PRECEDENT

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

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

(b) Investor has received a legal opinion of O’Melveny & Myers LLP as counsel to the Bloom Member with respect to the enforceability of this Agreement in form and substance reasonably satisfactory to the Investor;

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

(d) Investor has received a tax opinion from McDermott Will & Emery LLP, which opinion shall be in form and substance reasonably satisfactory to the Investor;

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

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

26

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

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

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

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

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

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

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

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

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

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

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

(a) Investor has received at least three (3) Business Days’ notice (or shorter period acceptable to the Investor) from the Bloom Member of the Funding Date (which notice of the Funding Date includes the number of Facilities to be funded, the kW of the Facilities to be funded, the location of the Facilities to be funded, the estimated date of Commencement of Operations for the Facilities to be funded, the Persons (and the account information with respect thereto) designated to receive the payments set forth in Section 2.2;

27

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

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

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

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

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

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

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

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

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

28

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

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

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

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

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

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

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

(r) [***]

(s) [***]

[***] Confidential Treatment Requested

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ARTICLE SEVEN

GENERAL PROVISIONS

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

If to the Bloom Member, to:

Clean Technologies 2014, LLC

c/o Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, CA 94089-1137

Attention: [***]

Telephone: [***]

Facsimile: [***]

Email: [***]

If to the Investor, to:

Exelon Generation Company, LLC

10 S. Dearborn St., 52nd Floor

Chicago, IL 60603

Attention: [***]

with a copy to:

Exelon Business Services Company, LLC

10 South Dearborn St., 49th Floor

Chicago, IL 60603

Attn: [***]

[***] Confidential Treatment Requested

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

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

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

7.4. Limitation on Liability.

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

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

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

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

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

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

32

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

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

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

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

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

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

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

33

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

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

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

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

7.17. Confidentiality.

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

34

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

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

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7.18. Further Assurances.

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

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

[SIGNATURE PAGE FOLLOWS]

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

CLEAN TECHNOLOGIES 2014, LLC
By:	/s/ William E. Brockenborough
Name:	William E. Brockenborough
Title:	Vice President

[Signature Page to the Equity Capital Contribution Agreement]

EXELON GENERATION COMPANY, LLC
By:	/s/ Kyle B. Crowley
Name:	Kyle B. Crowley
Title:	Vice President

[Signature Page to the Equity Capital Contribution Agreement]

Schedule A

Bloom Member Contribution: $10,111,447.23

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

Schedule B

Investor Contribution: $91,003,025.09

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

ANNEX 1

[RESERVED]

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

ANNEX 2

Base Case Model

[***]

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

[***] Confidential Treatment Requested for a Microsoft Excel Model

ANNEX 3

Insurance Requirements

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

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

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

At no time shall there be any gap in cover.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• An advance or partial payment endorsement.

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

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

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

• Severability.

• Cross liability with no insured or additional insured excluded.

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

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

• Each placing broker confirming:

• Summary policy terms in the pre-agreed format.

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

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

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

• The Insurance Consultant confirming that:

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

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

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

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

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

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

4

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

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

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

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

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

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

5

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

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

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

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

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APPENDIX 1

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

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

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

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

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

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

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

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

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

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

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

Such policy may have per occurrence deductibles of not greater than One Hundred Thousand Dollars ($100,000) for all perils except (a) five percent (5%) of the value of property damaged by either earthquake or flood subject to a minimum of up to Two Hundred and Fifty Thousand Dollars ($250,000) and (b) fourteen (14) days for Business Interruption.

• Marine Cargo and Marine Business Interruption Insurance

To the extent a material exposure exists, transit coverage, either included in a property policy or under a separate policy (including air, land and ocean cargo, as applicable) on an “all- risk” basis and a “warehouse to warehouse” basis with a per occurrence limit equal to not less than 110% of the value including transit and insurance of such shipment involving Project or any other Collateral assets to or from any storage site or the Project site at all times for which the Facility Company has accepted risk of loss or has responsibility for providing insurance. Coverage shall include loading and unloading, temporary storage (as applicable). Coverage shall be maintained in accordance with prudent industry practice in all regards with per occurrence deductibles of not more than $100,000 for physical damage and other terms and conditions acceptable to the Required Holders and the Investor in consultation with the Insurance Consultant.

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

• General Liability

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

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

• Broad form property damage.

• Blanket contractual.

• Products/completed operations

• Advertising injury

• XCU

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

• Automobile Liability

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

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• Workers’ Compensation and Employer’s Liability

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

• Pollution Liability

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

• Umbrella Liability Insurance

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

• Errors and Omissions Liability

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

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

• Directors & Officers Insurance

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

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ANNEX 4

“Knowledge” Persons

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

[***] Confidential Treatment Requested

ANNEX 5

Third Party Consents and Approvals

None.

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

ANNEX 6

Form of Company LLC Agreement

See Attached.

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

ANNEX 6 (Form of Company LLC Agreement)

2014 ESA HOLDCO, LLC

A DELAWARE LIMITED LIABILITY COMPANY AMENDED AND RESTATED OPERATING AGREEMENT

DATED AS OF [            ], 2014

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

TABLE OF CONTENTS

ARTICLE I DEFINITIONS	1
1.1.      Certain Definitions	1
1.2.      Other Definitional Provisions	13
ARTICLE II THE COMPANY	1
2.1.      Continuation of Limited Liability Company	1
2.2.      Name	1
2.3.      Principal Office	1
2.4.      Registered Office; Registered Agent	1
2.5.      Purposes	1
2.6.      Term	2
2.7.      Title to Property	2
2.8.      Units; Certificates of Membership Interest; Applicability of Article 8 of UCC	2
ARTICLE III CAPITAL CONTRIBUTIONS AND PAYMENTS	2
3.1.      Class A Interests; Capital Contributions of the Class A Member	2
3.2.      Class B Interests; Capital Contributions of the Class B Member	2
3.3.      No Other Required Capital Contributions	3
3.4.      No Right to Return of Capital Contributions	3
ARTICLE IV CAPITAL ACCOUNTS; ALLOCATIONS	3
4.1.      Capital Accounts	3
4.2.      Profits and Losses	4
4.3.      Special Allocations	4
4.4.      Curative Allocations	6
4.5.      Income Tax Allocations	6
4.6.      Other Allocation Rules	7
ARTICLE V DISTRIBUTIONS	8
5.1.      Distributions of Available Cash Flow	8
5.2.      Limitation	8
5.3.      Withholding	8
5.4.      Satisfaction of Certain Obligations Under Article XI	9
ARTICLE VI MANAGEMENT	12
6.1.      Managing Member	12
6.2.      Standard of Care; Required Consents	12
6.3.      Removal of Managing Member	16

6.4.      Indemnification and Exculpation	16
6.5.      Company Reimbursement	17
6.6.      Additional Covenants	17
ARTICLE VII RIGHTS AND RESPONSIBILITIES OF MEMBERS	17
7.1.      General	17
7.2.      Member Voting Rights	17
7.3.      Member Liability	17
7.4.      Withdrawal	18
7.5.      Member Compensation	18
7.6.      Other Ventures	18
7.7.      Confidential Information	18
7.8.      ERISA Matters	21
ARTICLE VIII ADMINISTRATIVE AND TAX MATTERS	22
8.1.      Intent for Income Tax Purposes	22
8.2.      Books and Records	22
8.3.      Information and Access Rights	22
8.4.      Reports	23
8.5.      Permitted Investments	23
8.6.      Tax Elections	24
8.7.      Tax Matters Member and Company Tax Filings	25
8.8.      Financial Accounting	27
8.9.      Legend	27
8.10.    Representations, Warranties and Covenants of the Class B Member	28
8.11.    Representations, Warranties and Covenants of the Class A Member	29
8.12.    Survival	30
8.13.    No Breach of Obligations	30
ARTICLE IX TRANSFERS OF INTERESTS; PURCHASE OPTION	30
9.1.      Transfer and Encumbrances of Membership Interests	30
9.2.      Buyout Option	34
ARTICLE X DISSOLUTION, LIQUIDATION AND TERMINATION	35
10.1.    Dissolution	35
10.2.    Liquidation and Termination	36
10.3.    Deficit Capital Accounts	37
10.4.    Termination	38
ARTICLE XI INDEMNIFICATION	38
11.1.    Indemnification of Class A Investor Group by the Class B Member	38
11.2.    Indemnification of Class B Investor Group by the Class A Member	39
11.3.    Brokers	39

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11.4.    Limitation on Liability	39
11.5.    Procedure for Indemnification	40
11.6.    Exclusivity	41
11.7.    No Right of Contribution	41
11.8.    Entire Agreement	41
ARTICLE XII GENERAL PROVISIONS	42
12.1.    Offset	42
12.2.    Notices	42
12.3.    Counterparts	43
12.4.    Governing Law and Severability	43
12.5.    Entire Agreement	43
12.6.    Effect of Waiver or Consent	43
12.7.    Amendment or Modification	43
12.8.    Binding Effect	44
12.9.    Further Assurances	44
12.10.  Jurisdiction; Service of Process	44
12.11.  Limitation on Liability	44

EXHIBITS

Exhibit A	Capital Contributions Made
Exhibit B	Form of Membership Interest Certificate

3

2014 ESA HOLDCO, LLC

AMENDED AND RESTATED OPERATING AGREEMENT

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

RECITALS

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

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

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

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

ARTICLE I

DEFINITIONS

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

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

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

“Adjusted Capital Account Deficit” means, with respect to any Member, the deficit balance, if any, in the Capital Account established and maintained for such Member, as the same is specially computed as of the end of each Taxable Year after giving effect to the following adjustments:

(i) Credit to such Member’s Capital Account any amounts which such Member elects to restore pursuant to Section 10.3 or is deemed obligated to restore pursuant to the penultimate sentences in Treasury Regulation Section 1.704-2(g)(1) and 1.704-2(i)(5); and

(ii) Debit to such Member’s Capital Account any items described in Treasury Regulation Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6).

The foregoing definition of Adjusted Capital Account Deficit is intended to comply with the provisions of Treasury Regulation Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently with such Regulation.

“Advisors” has the meaning set forth in Section 7.7(a).

“Affected Member” has the meaning set forth in Section 9.2(b).

“Agreement” means this Amended and Restated Operating Agreement, as amended, supplemented or restated from time to time pursuant to the provisions hereof.

“Annual Report” means the report delivered pursuant to Section 8.4(a).

“Appraisal Procedure” means, within fifteen (15) days of a party invoking the procedure described in this definition, the Class A Members and Class B Members shall engage a Qualified Appraiser, mutually acceptable to the Members, to determine the Fair Market Value of the Class A Interests.

“Available Cash Flow” means, with respect to any date of determination, the gross cash receipts from Company and Facility Company operations (including sales and dispositions of Company and Facility Company Assets), insurance payments, warranty payments, cash previously reserved and all Capital Contributions received from Members, in each case during the period beginning on the date the last cash distribution was made to Members and ending on such date of determination, less the portion thereof used to pay, or establish reserves for, all Company and Facility Company expenses (including amounts due and payable to the Class B Member or any Affiliate under the ASA and debt service obligations under the Financing Documents), and Company Reimbursable Expenses.

“Bid” has the meaning set forth in Section 9.1(d).

“Bloom Guarantee” means the limited guaranty made by Bloom Energy Corporation, a Delaware corporation, in favor of the Class A Equity Investor.

“Buyout Event” has the meaning set forth in Section 9.2(a).

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“Buyout Exercise Notice” has the meaning set forth in Section 9.2(c).

“Buyout Price” has the meaning set forth in Section 9.2(d).

“Capital Account” means the capital account established and maintained for a Member pursuant to Section 4.1.

“Capital Contribution” means any cash or the Value of any other property (net of liabilities secured by such property that the Company is considered to assume or take subject to under Code Section 752) that a Member directly or indirectly contributes to the Company pursuant to Article III or has previously contributed to the Company.

“Cash Equivalents” means any of the following having a maturity of not greater than one year from the date of issuance thereof: (a) readily marketable direct obligations of the government of the United States of America or any agency or instrumentality thereof or obligations unconditionally guaranteed by the full faith and credit of the government of the United States of America, (b) insured certificates of deposit of or time deposits with any commercial bank that is a member of the Federal Reserve System, which issues (or the parent of which issues) commercial paper rated as described in clause (c) below, which is organized under the laws of the United States or any State thereof and which has combined capital and surplus of at least $1,000,000,000 or (c) commercial paper issued by any corporation, other than an Affiliate of the Managing Member, organized under the laws of any State of the United States and rated at least “Prime-1” (or the then equivalent grade) by Moody’s Investor Service, Inc. (or any successor thereto) or “A-1” (or the then equivalent grade) by Standard & Poor’s Rating Group, a division of Standard & Poor’s Corporation (or any successor thereto).

“Certified Public Accountant” means a firm of independent public accountants selected from time to time by the Managing Member and approved with the Consent of the Members. The initial Certified Public Accountant is PricewaterhouseCoopers LLP.

“Change of Member Control” means with respect to the Class B Member, an event (such as a Transfer of voting securities) that causes such Member to cease to be Controlled by such Member’s Member Parent; provided, however, that an event that causes such Class B Member’s Member Parent to be Controlled by another Person shall not constitute a Change of Member Control.

“Claims” means all claims, suits, demands, injunctions, actions, causes of action, assessments, cleanup and remedial obligations, judgments, awards, liabilities, losses (including amounts paid in settlement of claims), damages (including any loss of profits, consequential, punitive, incidental or special damages recovered by any Third Party, but excluding any loss of profits, consequential, punitive, incidental or special damages asserted by any Member or an Affiliate), fines, fees, taxes, penalties, costs and expenses of every kind and character (including litigation costs and reasonable attorneys’ and experts’ fees and expenses, including such fees and expenses at trial and on any appeal).

“Class A Equity Investor” has the meaning set forth in the preamble.

“Class A Interest” means a Membership Interest issued pursuant to Section 3.1, which entitles the Holder thereof to receive the distributions of cash and property, allocations of profits and losses and other rights that are accorded Holders of a Class A Interest under this Agreement.

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“Class A Investor Claim” has the meaning set forth in Section 11.1.

“Class A Investor Group” has the meaning set forth in Section 11.1.

“Class A Member(s)” means each Person holding a Class A Interest. As of the Effective Date, the Class A Member means the Class A Equity Investor.

“Class A Unit” means a unit representing a Class A Interest having the rights, preferences and designations provided for such class in this Agreement.

“Class B Equity Investor” has the meaning set forth in the preamble.

“Class B Interest” means the Membership Interest issued pursuant to Section 3.2, which entitles the Holder thereof to receive distributions of cash and property, allocations of profits and losses and other rights that are accorded Holders of a Class B Interest under this Agreement.

“Class B Investor Claim” has the meaning set forth in Section 11.2.

“Class B Investor Group” has the meaning set forth in Section 11.2.

“Class B Member” means the Person(s) holding a Class B Interest. Initially, and as of the Effective Date, the Class B Member means the Class B Equity Investor.

“Class B Unit” means a unit representing a Class B Interest having the rights, preferences and designations provided for such class in this Agreement.

“Company” has the meaning set forth in the recitals.

“Company Minimum Gain” has the meaning given the term “partnership minimum gain” set forth in Treasury Regulation Section 1.704-2(b)(2) and will be determined as provided in Treasury Regulation Section 1.704-2(d).

“Company Reimbursable Expenses” means all reasonable Third Party costs and expenses (including legal, accounting and auditing fees) incurred either by the Managing Member on behalf of the Company or the Company on behalf of the Facility Company, in the performance of duties relating to the Company’s or the Facility Company’s activities or business, in accordance with this Agreement.

“Confidential Information” has the meaning set forth in Section 7.7(a).

“Consent of the Class A Members” means, at any time, the consent or approval of Class A Members who own in the aggregate more than fifty percent (50%) of the Class A Units outstanding at such time.

“Consent of the Class B Members” means, at any time, the consent or approval of Class B Members who own in the aggregate more than fifty percent (50%) of the Class B Units outstanding at such time.

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“Consent of the Members” means each of (i) the Consent of the Class A Members and (ii) the Consent of the Class B Members.

“Consistent Return” has the meaning set forth in Section 8.7(a).

“Control”, “Controlled”, and “Controlling” means the possession, directly or indirectly, of any of the following: (i) in the case of a corporation, more than fifty percent (50%) of the outstanding voting securities thereof; (ii) in the case of a limited liability company, partnership, limited partnership or joint venture, the right to more than fifty percent (50%) of the distributions (including liquidating distributions) therefrom; (iii) in the case of a trust or estate, including a business trust, more than fifty percent (50%) of the beneficial interest therein; (iv) in the case of any other entity, more than fifty percent (50%) of the economic or beneficial interest therein; or (v) in the case of any entity, the power or authority, through ownership of voting securities, by contract or otherwise, to exercise a controlling influence over the management of the entity.

“Damages” all claims, actions, causes of action, demands, assessments, losses, damages, liabilities, judgments, settlements, taxes, penalties, costs, and expenses (including reasonable attorneys’ fees and expenses, including without limitation, such fees and expenses at trial and on any appeal), of any nature whatsoever.

“Delaware Certificate” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware on November 12, 2013, as amended or restated from time to time.

“Depreciation” means, for each Taxable Year or other period, an amount equal to the depreciation, amortization or other cost recovery deduction allowable with respect to an Asset for such period, except that if the Value of any Asset differs from its adjusted basis for federal income tax purposes at the beginning of such period, Depreciation shall be an amount which bears the same ratio to such beginning Value as the federal income tax depreciation, amortization or other cost recovery deduction for such year or other period bears to such beginning adjusted tax basis; provided, however, that if the federal income tax depreciation, amortization or other cost recovery deduction for such year is zero, Depreciation shall be determined with reference to such beginning Value using any method selected by the Managing Member and reasonably acceptable to the Members.

“Disqualified Transferee” means any Person which is, or whose Affiliate is, then (A) a party adverse in any pending or threatened action, suit or proceeding to the Company or the Class B Member or an Affiliate thereof, if the Company or such Member shall not have consented (in its sole and absolute discretion) to the Transfer to such Person, (B) with respect to any Transfer of a Class A Interest, directly or indirectly engaged in owning, managing, operating, maintaining or developing facilities utilizing fuel cells for the production of electricity for sale to others (an “Active Person”) except for an Affiliate of an Active Person where such Affiliate of an Active Person is an entity regularly involved in making passive investments in such facilities (a “Passive Investor”) if such Passive Investor has certified in a manner

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reasonably acceptable to the Class B Member that it has in place procedures to prevent its Affiliates which are Active Persons from acquiring confidential information relating to such passive investments; provided, however, that, for the avoidance of doubt, a Person will not be deemed to be an Active Person solely by virtue of owning an interest in a facility similar to the ownership interest of the Class A Member or (C) a Person to whom a Transfer of Membership Interests would cause a recapture of any ITC claimed by the Company with respect to a Facility pursuant to Section 50(a) of the Code.

“Effective Date” means the date of this Agreement.

“Emergency” means an event has occurred which the Managing Member reasonably believes requires imminent action to address and which, if not taken, could materially and adversely affect the Company or Facility Company including, but not limited to, acts of God, floods, earthquakes, lightning, ice and ice storms, hurricanes, tornadoes, other natural disasters or environmental catastrophes, fires, explosions, accidents, wars, riots, civil disturbances, blockades or acts of a public enemy.

“Equity Capital Contribution Agreement” has the meaning set forth in the recitals.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.

“ERISA Affiliate” means any Person (whether or not incorporated) which is under common control with the Company within the meaning of section 4001(a) of ERISA or that is treated as a single employer together with the Company under section 414 of the Code.

“Escrow” has the meaning set forth in Section 5.4(e).

“Escrow Agent” has the meaning set forth in Section 5.4(e).

“Escrowed Funds” has the meaning set forth in Section 5.4(e)(i).

“Facility Company” means 2014 ESA Project Company, LLC, a Delaware limited liability company.

“Facility Debt” means non-recourse senior debt of the Facility Company from a lender or group of lenders reasonably satisfactory to Investor.

“Facility Documents” means, collectively, (i) the Principal Facility Documents or any agreement entered into in replacement or substitution of any such agreement and (ii) any other agreement (including, without limitation, any agreement to sell electricity or renewable energy credits) entered into by the Company or the Facility Company after the Effective Date having a term in excess of one (1) year and providing for payments by or to the Company or the Facility Company in excess of $100,000 per year.

“Fair Market Value” means, with respect to any Asset, the price at which such Asset would change hands between a willing buyer and a willing seller, neither being under any

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compulsion to buy or to sell, and both having reasonable knowledge of the relevant facts, and specifically with respect to the Facility or any Membership Interest in the Company, as determined consistently with Section 4.05 of Revenue Procedure 2007- 65.

“Financing Documents” means the Note Purchase Agreement, security agreement, pledge agreement, depositary agreement and any other material agreement entered into in connection therewith between the Facility Company and each note purchaser party to the Note Purchase Agreement.

“Fiscal Year” means the calendar year, except that the initial Fiscal Year of the Company commenced on Effective Date and the final Fiscal Year of the Company shall end on the date on which the Company is terminated under Article X.

“GAAP” means United States generally accepted accounting principles consistently applied.

“Holder” means any Member.

“Indebtedness” means indebtedness for borrowed money and any capital lease of any property as lessee, but expressly does not include short-term (i.e., less than one year in maturity) trade payables or operating leases incurred in the ordinary course of business.

“IRS” means the Internal Revenue Service and any successor Governmental Authority.

“ITC” means the investment tax credit under Section 48 of the Code.

“Licenses and Permits” means any filings with, and licenses, permits, approvals and authorizations from, any Governmental Authority, including Environmental Permits.

“Liquidating Events” has the meaning set forth in Section 10.1(a).

“Managing Member” means a Member appointed by the Members pursuant to Article VI to manage the affairs of the Company on their behalf and any other Person hereafter appointed as a successor Managing Member of the Company as provided in Article VI. Pursuant to its appointment by the Members in Section 6.1, the Class B Equity Investor shall be the initial Managing Member of the Company.

“Member ERISA Affiliate” means, with respect to each Member, any Person (whether or not incorporated) which is under common control with such Member within the meaning of section 4001(a) of ERISA or that is treated as a single employer together with such Member under section 414 of the Code (excluding the Company or any of its other ERISA Affiliates).

“Member Nonrecourse Debt Minimum Gain” has the meaning given the term “partner nonrecourse debt minimum gain” set forth in Treasury Regulation Section 1.704-2(i)(2), and will be computed as provided in Treasury Regulation Section 1.704- 2(i)(3).

“Member Nonrecourse Debt” has the meaning given the term “partner nonrecourse debt” in Treasury Regulation Section 1.704-2(b)(4).

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“Member Nonrecourse Deductions” an amount, with respect to each Member Nonrecourse Debt, equal to the Company Minimum Gain that would result if such Member Nonrecourse Debt were treated as a Nonrecourse Liability, determined in accordance with Treasury Regulation Section 1.704-2(i)(3).

“Member Parent” means, with respect to a Member, the first company in the chain of ownership that directly or indirectly owns and Control such Member on the Effective Date or, if applicable, from and after the date of a Change of Member Control in accordance with Section 9.1(b)(iv), and that is itself not a special purpose entity (i.e., it owns meaningful (as measured by dollar value) assets in addition to its direct or indirect ownership interests in such Member.)

“Member” means those Persons who execute the signature page of this Agreement or otherwise agree to be bound hereby and are admitted to the Company as Members pursuant to this Agreement, excluding any Person (i) having solely the status of an assignee or (ii) that has ceased to be a Member.

“Membership Interest” as to any Member means the entire limited liability company interest and rights of that Member in the Company, including, without limitation, its right to a share of the profits, losses, deductions and credits of the Company and its right to a distributive share of the Assets of the Company in accordance with the provisions hereof. Membership Interests shall consist of Class A Interests and Class B Interests, each of which shall constitute a separate class of limited liability company interests, but shall not constitute a “series” for purposes of Section 18-215 of the Act.

“Moody’s” means Moody’s Investor Service, or any successor entity.

“Multiemployer Plan” means, with respect to each Member, a “multiemployer plan” (as such term is defined in section 4001(a)(3) of ERISA), which is, or within the immediately preceding six years was, contributed to by such Member or any of its Member ERISA Affiliates.

“Nonrecourse Deductions” has the meaning given such term in Treasury Regulation Sections 1.704-2(b)(1) and 1.704-2(c).

“Nonrecourse Liability” has the meaning given such term in Treasury Regulation Section 1.704-2(b)(3).

“Note Purchase Agreement” means that certain Note Purchase Agreement, dated as of July 18, 2014, by and among the Facility Company and each note purchaser party thereto.

“Obligations” has the meaning given to such term in the Note Purchase Agreement.

“Offtaker” means each counterparty under each Power Purchase Agreement.

“Passive Investor” has the meaning set forth in the definition of “Disqualified Transferee” herein.

“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA or any successor thereto.

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“Permitted Investment” has the meaning given to such term in Section 8.5.

“Plan” means, with respect to each Member, an “employee benefit plan” (as defined in section 3(3) of ERISA) subject to Title I of ERISA (other than a Multiemployer Plan) that is or, within the immediately preceding six years, has been established or maintained, or to which contributions are or, within the immediately preceding six years, have been made or required to be made, by such Member or any of its Member ERISA Affiliates or with respect to which such Member or any of its Member ERISA Affiliates may have any liability.

“Prior LLC Agreement” has the meaning set forth in the recitals.

“Profits” and “Losses” means, for each Taxable Year or other period, an amount equal to the Company’s taxable income or loss for such Taxable Year or period, determined in accordance with Code Section 703(a) (for this purpose, all items of income, gain, loss, or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss), with the following adjustments:

(i) Any income of the Company that is exempt from federal income tax and not otherwise taken into account in computing Profits and Losses pursuant to this definition shall be added to such taxable income or loss;

(ii) Any expenditures of the Company described in Code Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant to Treasury Regulation Section 1.704 1(b)(2)(iv)(i), and not otherwise taken into account in computing Profits and Losses pursuant to this definition, shall be subtracted from such taxable income or loss;

(iii) In the event the Value of any Company Asset is adjusted pursuant to subsections (ii) or (iii) in the definition of “Value”, the amount of such adjustment shall be taken into account as gain or loss from the disposition of such Asset for purposes of computing Profits or Losses;

(iv) Gain or loss resulting from any disposition of Company property with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the Value of the property disposed of, notwithstanding that the adjusted tax basis of such property differs from its Value;

(v) In lieu of the depreciation, amortization, and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for such Taxable Year or other period as determined in accordance with the definition of Depreciation;

(vi) To the extent an adjustment to the adjusted tax basis of any Company Asset pursuant to Code Section 734(b) is required, pursuant to Treasury Regulation Section 1.704-(b)(2)(iv)(m)(4), to be taken into account in determining Capital Accounts as a result of a distribution other than in liquidation of a Member’s interest in the Company, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the Asset) or loss (if the adjustment decreases such basis) from the disposition of such Asset and shall be taken into account for purposes of computing Profits or Losses; and

(vii) Notwithstanding any other provision of this definition, any items that are specially allocated pursuant to Sections 4.3, 4.4, 4.5 and 4.6 shall not be taken into account in computing Profits or Losses (i.e., such items of income and gain will otherwise be subtracted from, and such items of loss and deduction will otherwise be added back to, “Profits” or “Losses”).

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“Purchasing Member” has the meaning set forth in Section 9.2(c).

“Qualified Appraiser” means a nationally recognized third-party appraiser which shall (i) be qualified to appraise independent fuel cell electric generating businesses and/or experienced in such businesses in the general geographic region of the Facilities, (ii) have been engaged in the appraisal or business valuation and consulting business for a period of not less than five years, and (iii) not be associated with any Member or any Affiliate thereof.

“Quarterly Period” means the three-month periods ending each April 1, July 1, October 1 and January 1; provided that the first Quarterly Period shall commence on the Effective Date and end on the last day of the calendar quarter in which the Effective Date occurs.

“Recapture Period” means the five year period beginning on the date that the last Facility is placed into service for federal income tax purposes.

“Regulatory Allocations” has the meaning set forth in Section 4.4.

“Representatives” has the meaning set forth in Section 7.7(a).

“S&P” means Standard & Poors Ratings Group, a division of McGraw Hill, Inc., or any successor entity.

“Securities” with respect to any Person, such Person’s capital stock or limited liability company interests or any options, warrants or other Securities which are directly or indirectly convertible into, or exercisable or exchangeable for, such Person’s capital stock or limited liability company interests (whether or not such derivative Securities are issued by the Company). Whenever a reference herein to Securities refers to any derivative Securities, the rights of an Equity Investor shall apply to such derivative Securities and all underlying Securities directly or indirectly issuable upon conversion, exchange or exercise of such derivative Securities.

“Securities Act” means the Securities Act of 1933 or any successor statute, as amended from time to time.

“Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, joint venture or other entity of which such Person (either alone or through or together with any other Person pursuant to any agreement, arrangement, contract or other commitment) owns, directly or indirectly, 50% or more of the stock or other equity interests the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such corporation or other legal entity.

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“Tax Information” has the meaning set forth in Section 7.7(b).

“Tax Matters Member” has the meaning set forth in Section 8.7(a).

“Tax Return” has the meaning set forth in Section 8.7(a).

“Taxable Year” means the taxable year of the Company for federal income tax purposes.

“Terminated Member” has the meaning set forth in Section 9.2(f).

“Termination Value” has the meaning assigned to such term in each applicable Power Purchase Agreement.

“Third Party” means a Person other than a Member or an Affiliate of a Member. “Third Party Payment” has the meaning set forth in Section 5.4(c).

“Title IV Plan” means, with respect to each Member, a Plan subject to Title IV of ERISA to which such Member or any of its Member ERISA Affiliates is, or within the immediately preceding six years was, an “employer” as defined in section 3(35) of ERISA.

“Transaction Documents” means this Agreement, the Equity Capital Contribution Agreement, the A&R PUMA and the ASA.

“Transfer” means, as to any Asset (including, without limitation, the Units), a sale, assignment, conveyance, gift, exchange, lease or other disposition or transfer of such Asset by a Member, whether effected voluntarily, involuntarily or by operation of Applicable Law (including, a merger, conversion or consolidation in which the Person owning such Asset is not the surviving entity).

“Transfer Notice” has the meaning set forth in Section 9.1(d).

“Transferee” means a Person to which a Transfer is made. “Transferring Member” means a Person making a Transfer.

“Treasury Regulations” means the regulations promulgated under the Code by the United States Department of Treasury, as such regulations may be amended from time to time. All references herein to specific sections of the regulations shall be deemed also to refer to any corresponding provisions of succeeding regulations, and any reference to temporary regulations shall be deemed also to refer to any corresponding provisions of final regulations.

“Underfunded Title IV Plan” means a Title IV Plan for which the aggregate benefit liabilities determined as of the end of such Title IV Plan’s most recently ended plan year on the basis of actuarial assumptions specified for funding purposes for such Title IV Plan in such Title IV Plan’s most recent actuarial statement exceeded the aggregate current value of the assets of such Title IV Plan.

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“Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to time in the States of Delaware and New York.

“Units” means each of the Class A Units and Class B Units. Upon a Transfer by any Member in accordance with the provisions of this Agreement of any portion of such Member’s Membership Interest, the assignee shall receive from the Transferring Member a number of Units of the relevant class equal to the percentage of the Membership Interest so Transferred multiplied by the total number of Units owned by the Transferring Member immediately prior to the Transfer.

“Value” means, with respect to any Asset of the Company, such Asset’s adjusted basis for federal income tax purposes, except as follows:

(i) The initial Value of any Asset contributed by a Member to the Company shall be the gross Fair Market Value of such Assets, as reasonably determined by the Managing Member with the Consent of the Members; provided, that the initial Value of the Assets contributed to the Company pursuant to Section 3.2 shall be the Appraised Value of Assets;

(ii) The Value of all Assets of the Company shall be adjusted to equal their respective gross Fair Market Values, as reasonably determined by the Managing Member with the Consent of the Members, as provided within Treasury Regulation Section 1.704- 1(b)(2)(iv)(f); provided, however, that any such adjustments (other than pursuant to the liquidation (as defined for purposes therein) of the Company) shall be made only if the Managing Member reasonably determines, with the Consent of the Members, that such adjustments are necessary or appropriate to reflect the relative economic interests of the Members in the Company;

(iii) The Value of any Asset distributed to any Member shall be the gross Fair Market Value of such Asset on the date of distribution (taking Code Section 7701(g) into account), as the Managing Member shall reasonably determine, with the Consent of the Members;

(iv) The Value of Company Assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such Assets pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Treasury Regulation Section 1.704- 1(b)(2)(iv)(m) (consistent with subparagraph (vi) of the definition of “Profits” and “Losses” and Section 4.3(f)); provided, however, that the Value shall not be adjusted pursuant to this clause (iv) to the extent the Members determine that an adjustment pursuant to clause (ii) of this definition is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this clause (iv); and

(v) If the Value of an Asset has been determined or adjusted pursuant to clause (i), (ii) or (iv) of this definition, such Value shall thereafter be adjusted by the Depreciation taken into account with respect to such Asset for purposes of computing Profits and Losses.

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1.2. Other Definitional Provisions

(a) Construction. As used herein, singular shall include the plural, the masculine gender shall include the feminine and neuter, feminine gender shall include the masculine and neuter and the neuter gender shall include the masculine and feminine unless the content otherwise indicates.

(b) References. References to Articles and Sections are intended to refer to Articles and Sections of this Agreement, and all references to Exhibits and Schedules are intended to refer to Exhibits and Schedules attached to this Agreement, each of which is made a part of this Agreement for all purposes. Information contained in any Schedule shall be deemed contained in each and every other schedule without requiring repetition thereof. The term “including” means “including, without limitation.” Any date specified for action that is not a Business Day shall mean the first Business Day after such date. Any reference to a Person shall be deemed to include such Person’s permitted successors and assigns. Any reference to any document or documents shall be deemed to refer to such document or documents as amended, modified, supplemented or replaced from time to time. Whenever a Person is to determine that something is “satisfactory to,” “acceptable to,” or “to the satisfaction of” such Person, the determination may not be made in bad faith.

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ARTICLE II

THE COMPANY

2.1. Continuation of Limited Liability Company. The parties hereto hereby continue the Company formed on November 12, 2013, as a limited liability company pursuant to the Act. The rights and obligations of the Members shall be as provided in the Act, except as otherwise expressly provided herein. The Managing Member shall from time to time execute or cause to be executed all such certificates, instruments and other documents, or cause to be done all such filings, as the Managing Member may deem necessary or appropriate to operate, continue or terminate the Company as a limited liability company under the laws of the State of Delaware and to qualify the Company to do business in such states where such qualification is necessary or desirable.

2.2. Name. The name of the Company is, and the business of the Company shall continue to be conducted under the name of 2014 ESA HoldCo, LLC or such other name or names as the Managing Member may designate from time to time, with the Consent of the Members. The Managing Member shall take any action that it determines is required to comply with the Act, assumed name act, fictitious name act, or similar statute in effect in each jurisdiction or political subdivision in which the Company proposes to do business and the Members agree to execute any documents requested by the Managing Member in connection with any such action.

2.3. Principal Office. The Company shall maintain a principal office which shall initially be located at the Class B Equity Investor’s principal place of business, located at 1252 Orleans Drive, Sunnyvale, CA 94089. The Managing Member may change the principal office of the Company from time to time upon written notice to the Members.

2.4. Registered Office; Registered Agent. The name of the registered agent of the Company in the State of Delaware at such address is Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware 19801. The address of the Company’s registered office in the State of Delaware is c/o Corporation Trust Company, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware 19801.

2.5. Purposes. The purpose of the Company is to own the Facility Company, which will develop, own, operate, maintain and repair the Facilities, for the purpose of producing electricity; to cause the Facility Company to sell electricity and renewable energy credits produced by the Facilities; to enter into, comply with, perform its obligations and enforce its rights, and cause the Facility Company to enter into, comply with, perform their obligations and enforce their rights, under this Agreement and the Facility Documents; and to engage in and perform any and all activities necessary, incidental, related or desirable to allow the Facility Company, to produce and sell electricity and renewable energy credits from the Facilities. The Company shall not engage in any activity or own any Assets that are not directly related to the Company’s purpose as set forth in this Section 2.5. The Company shall not allow the Facility Company to engage in any activity or own any Assets other than as required in connection with the Facility Company’s ownership and operation of the Facilities.

2.6. Term. The Company’s existence shall be perpetual, unless earlier dissolved and terminated in accordance with this Agreement.

2.7. Title to Property. Title to Company or Facility Company Assets, as applicable, whether tangible or intangible, shall be held in the name of the Company or the Facility Company, as applicable, and no Member, individually, shall have title to or any interest in such property by reason of being a Member. Membership Interests of each Member shall be personal property for all purposes.

2.8. Units; Certificates of Membership Interest; Applicability of Article 8 of UCC. Membership Interests shall be represented by Units, divided into Class A Units (in the case of Class A Interests) and Class B Units (in the case of Class B Interests). The Membership Interests represented by Class A Units and Class B Units shall have the respective rights, preferences and designations ascribed to such Units in this Agreement. The Members hereby specify, acknowledge and agree that all Units (and the Membership Interests represented thereby) are securities governed by Article 8 and all other provisions of the Uniform Commercial Code, and pursuant to the terms of Section 8-103(c) of the Uniform Commercial Code, such interests shall be “securities” for all purposes under such Article 8 and under all other provisions of the Uniform Commercial Code. All Units (and the Membership Interests represented thereby) shall be represented by certificates substantially in the form attached hereto as Exhibit B, shall be recorded in a register thereof maintained by the Company, and shall be subject to such rules for the issuance thereof in compliance with this Agreement, as the Managing Member may from time to time determine.

ARTICLE III

CAPITAL CONTRIBUTIONS AND PAYMENTS

3.1. Class A Interests; Capital Contributions of the Class A Member. On the Effective Date, and each Funding Date thereafter, the Class A Member shall make the Capital Contribution to be made by it with respect to the applicable Tranche pursuant to the terms and conditions set forth in the Equity Capital Contribution Agreement. In consideration of such Capital Contributions, on the Effective Date, the Class A Member shall be issued Class A Units in the amount set forth opposite its name in Exhibit A and be admitted to the Company as a Class A Member. The Class A Member shall be entitled to the allocations, distributions and other rights as are prescribed for the Class A Member in this Agreement. The Class A Member’s Capital Account balance as of the Effective Date and each Funding Date thereafter with respect to its Membership Interest shall be as indicated on Exhibit A hereto.

3.2. Class B Interests; Capital Contributions of the Class B Member. On the Effective Date, and each Funding Date thereafter, the Class B Member shall make the Capital Contribution to be made by it with respect to the applicable Tranche pursuant to the terms and conditions set forth in the Equity Capital Contribution Agreement. In addition, the Class B Member shall hold Class B Units in the amount set forth opposite its name in Exhibit A. The Class B Member shall be entitled to the allocations, distributions and other rights as are prescribed for the Class B Member in this Agreement. The Class B Member’s additions to its Capital Account as of the Effective Date and each Funding Date thereafter (and the Class B Member’s Capital Account as of the Effective Date and each Funding Date thereafter) are shown on Exhibit A hereto, which amounts include the Value of property contributed by the Class B Member to the Company prior to and on such dates.

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3.3. No Other Required Capital Contributions. Except as provided in Sections 3.2 and 5.4(c), no Member shall be obligated to make Capital Contributions in excess of the amount of such Member’s required Capital Contribution made on the Effective Date or any additional Funding Date thereafter.

3.4. No Right to Return of Capital Contributions. Except as otherwise provided in this Agreement, no Member may require a return of its Capital Contributions or the payment of interest thereon from the Company or from another Member.

ARTICLE IV

CAPITAL ACCOUNTS; ALLOCATIONS

4.1. Capital Accounts. The Company shall maintain for each Member a separate Capital Account in accordance with the rules of Treasury Regulation Section 1.704-l(b)(2)(iv). Each Member’s Capital Account shall be maintained in accordance with the following provisions:

(a) To each Member’s Capital Account there shall be credited the Member’s Capital Contributions, such Member’s distributive share of Profits and items of income and gain under Section 4.2 and any items in the nature of income or gain which are specially allocated to the Member pursuant to Section 4.3, Section 4.4 and Section 10.2(a) and the amount of any Company liabilities assumed by the Member or which are secured by any Company Asset distributed to such Member.

(b) To each Member’s Capital Account there shall be debited the amount of cash and the Value of any Company Asset distributed to such Member pursuant to any provision of this Agreement or the Equity Capital Contribution Agreement, such Member’s distributive share of Losses and items or loss and deduction under Section 4.2 and any items of loss and deduction which are specially allocated to the Member pursuant to Section 4.3, Section 4.4 and Section 10.2(a) and the amount of any liabilities of such Member assumed by the Company or which are secured by any property contributed by such Member to the Company.

(c) In determining the amount of any liability for purposes of the foregoing subsections (a) or (b), there shall be taken into account Code Section 752(c) and any other applicable provisions of the Code and the Treasury Regulations.

(d) In the event any Membership Interest in the Company is transferred in accordance with the terms of this Agreement, the Transferee shall succeed to the Capital Account of the transferor to the extent it relates to the transferred Membership Interest.

This Section 4.1 and the other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Treasury Regulation Section 1.704-1(b) and 1.704-2, and will be interpreted and applied in a manner consistent with such Treasury Regulations. The Managing Member also shall make any adjustments that are necessary or appropriate to maintain equality between the Capital Accounts of the Members and the amount of capital reflected on the Company’s balance sheet, as computed for book purposes, in accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(q).

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4.2. Profits and Losses. For purposes of maintaining Capital Accounts, after making the allocations provided under Section 4.3, all items of Company income, loss, gain, deduction and credit for any Fiscal Year will be allocated among the Members as follows:

(a) General Allocations. Except as provided in the following subsection (b) of this Section 4.2, Profits and Losses and constituent items of Company income, gain, loss, and deduction thereof shall be allocated for each Fiscal Year or part of a Fiscal Year, 90% to the Class A Members pro rata according to their respective Class A Units and 10% to the Class B Members pro rata according to their respective Class B Units.

(b) Items in Connection with Liquidation. Except as provided in the following subsection (c) of this Section 4.2, Profits and Losses and any other items of income, gain, loss or deduction, credits (including any ITCs) and any credit recapture (including any ITC recapture) for the Taxable Year in which there is a disposition of all or substantially all of the Assets of the Company pursuant to Section 10.2(a)(iii) shall be specially allocated pursuant to Section 10.2(a)(iv) and Section 10.2(a)(v).

(c) Allocation of ITC. It is the intention of the Members that both (i) the allocations provided in Section 4.2(a) constitute, for purposes of Treasury Regulations Section 1.46-3(f)(2)(i), the ratio in which the Members divide the general profits of the Company (that is, the taxable income of the partnership as described in Code Section 702(a)(9)) regardless of whether the Company has a profit or a loss for its Taxable year during which the Facility with respect to which the ITC is claimed is placed in service for federal income tax purposes, and (ii) the allocations provided in Section 4.2(a), constitute, for purposes of Treasury Regulations Section 1.46-3(f)(2)(ii), the allocation of all related items of income, gain, loss and deduction with respect to each item in respect of the Facility with respect to which the ITC is claimed. Accordingly, the Members’ shares of the basis of the Facility with respect to which the ITC is claimed shall be determined by reference to such general profits ratio under Treasury Regulations Section 1.46-3(f)(2)(i), and under the special allocation under Treasury Regulations Section 1.46- 3(f)(2)(ii), as 90% to the Class A Members, pro rata according to their respective Class A Units and 10% to the Class B Members pro rata according to their respective Class B Units.

4.3. Special Allocations. The following special allocations shall be made in the following order:

(a) Company Minimum Gain Chargeback. Notwithstanding the other provisions of this Article IV, except as provided in Treasury Regulation Section 1.704-2(f), if there is a net decrease in Company Minimum Gain during any Taxable Year, each Member shall be specially allocated items of Company income and gain for such Taxable Year (and, if necessary, subsequent Taxable Years) in an amount equal to such Member’s share of the net decrease in Company Minimum Gain, determined in accordance with Treasury Regulation Section 1.704-2(g). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated

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shall be determined in accordance with Treasury Regulation Sections 1.704-2(f)(6) and 1.704-2(j)(2). This Section 4.3(a) is intended to comply with the minimum gain chargeback requirement in Treasury Regulation Section 1.704-2(f) and shall be interpreted consistently therewith.

(b) Chargeback of Minimum Gain Attributable to Member Nonrecourse Debt. Notwithstanding the other provisions of this Article IV, except as provided in Treasury Regulation Section 1.704-2(i)(4), if there is a net decrease in Member Nonrecourse Debt Minimum Gain attributable to a Member Nonrecourse Debt during any Taxable Year, each Member who has a share of the Member Nonrecourse Debt Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Treasury Regulation Section 1.704-2(i)(5), shall be specially allocated items of Company income and gain for such Taxable Year (and, if necessary, subsequent Taxable Years) in an amount equal to such Member’s share of the net decrease in Member Nonrecourse Debt, determined in accordance with Treasury Regulation Section 1.704-2(i)(4). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Treasury Regulation Sections 1.704-2(i)(4) and 1.704-2(j)(2). This Section 4.3(b) is intended to comply with the partner nonrecourse debt minimum gain chargeback requirement in Treasury Regulation Section 1.704-2(i)(4) and shall be interpreted consistently therewith.

(c) Qualified Income Offset. In the event any Member unexpectedly receives any adjustments, allocations or distributions described in Treasury Regulations Sections 1.704- 1(b)(2)(ii)(d)(4), (5) or (6), items of Company income and gain shall be specially allocated to such Member in an amount and manner sufficient to eliminate, to the extent required by Treasury Regulations, the Adjusted Capital Account Deficit of the Member as quickly as possible; provided, that an allocation pursuant to this Section 4.3(c) shall be made only if and to the extent that such Member would have an Adjusted Capital Account Deficit after all other special allocations provided for in this Section 4.3 have been tentatively made as if this Section 4.3(c) were not in this Agreement.

(d) Loss Limitations. Losses allocated pursuant to Section 4.2 and Section 10.2(a)(v) shall not exceed the maximum amount of Losses and other items of loss or deduction that can be allocated without causing any Member to have an Adjusted Capital Account Deficit at the end of any Taxable Year. In the event some but not all of the Members would have Adjusted Capital Account Deficits as a consequence of an allocation of Losses pursuant to Section 4.2 or Section 10.2(a)(v), the limitation set forth in this Section 4.3(d) shall be applied on a Member by Member basis and Losses and items of loss or deduction not allocable to any Member as a result of such limitation shall be allocated to the other Members in the manner otherwise required pursuant to Section 4.2 and Section 10.2(a) to the extent such other Members have positive balances in their Capital Accounts so as to allocate the maximum permissible Losses to each Member under Treasury Regulation Section 1.704-1(b)(2)(ii)(d).

(e) Gross Income Allocation. In the event any Member has a deficit Capital Account at the end of any Taxable Year that is in excess of the sum of (i) the amount such Member is obligated to restore pursuant to Section 10.3 of this Agreement and (ii) the amount such Member is deemed obligated to restore pursuant to the penultimate sentences of Treasury Regulation

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Sections 1.704-2(g)(1) and 1.704-2(i)(5), each such Member shall be specially allocated items of Company income and gain in the amount of such excess as quickly as possible; provided, that an allocation pursuant to this Section 4.3(e) shall be made only if and to the extent that such Member would have a deficit Capital Account in excess of such sum after all other special allocations provided for in this Section 4.3 have been made as if Section 4.3(c) and this Section 4.3(e) were not in this Agreement.

(f) Nonrecourse Deductions. Nonrecourse Deductions for any Taxable Year shall be specially allocated to the Members 90% to the Class A Members, pro rata according to their respective Class A Units and 10% to the Class B Members pro rata according to their respective Class B Units.

(g) Member Nonrecourse Deductions. Any Member Nonrecourse Deductions for any Taxable Year shall be specially allocated to the Member who bears the economic risk of loss with respect to the Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable in accordance with Treasury Regulation Section 1.704-2(i)(1).

(h) Section 754 Adjustments. If the Company distributes property to a Member in liquidation of the Membership Interest of the Member and there is an adjustment in the adjusted tax basis of Company property under Section 734(b) of the Code, such that the first sentence of Treasury Regulation Section 1.704-1(b)(2)(iv)(m)(4) applies, there will be a corresponding adjustment to the Capital Account of the Member receiving the distribution. If the Company distributes cash to a Member in excess of its outside basis in its Membership Interest, leading to an adjustment in the inside basis of the Company property under Section 734(b) of the Code pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m)(2), then solely for purposes of adjusting Capital Accounts of the Members, the adjustment in the inside basis will be treated as gain or loss and be allocated among the Members in accordance with Section 4.2, as in effect at the time of the adjustment. This provision is intended to comply with Treasury Regulation Sections 1.704-1(b)(2)(iv)(m)(2) and (4).

4.4. Curative Allocations. The allocations required under Section 4.3(a) through (c), (e) and (f) (the “Regulatory Allocations”) are intended to comply with certain requirements of the Treasury Regulations. It is the intent of the Members that, to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or with special allocations of other items of Company income, gain, loss or deduction pursuant to this Section 4.4. Therefore, notwithstanding any other provisions of this Article IV, the Regulatory Allocations shall be taken into account in allocating items of income, gain, loss, deduction and credit among the Members such that, to the extent possible, the net amount of allocations of such items and the Regulatory Allocations to each Member shall be equal to the net amount that would have been allocated to each Member if the Regulatory Allocations had not occurred and all Company items were allocated pursuant to Section 4.2, Section 10.2(a)(iv) and Section 10.2(a)(v).

4.5. Income Tax Allocations.

(a) Except as otherwise provided in this Section 4.5, for federal, state and local income tax purposes each item of income, gain, loss and deduction of the Company shall be allocated to the Members in the same manner as such items are allocated for book purposes pursuant to this Article IV.

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(b) In accordance with Code Section 704(c) and the Treasury Regulations thereunder, income, gain, loss, and deduction with respect to any property contributed to the capital of the Company shall, solely for tax purposes, be allocated among the Members so as to take account of any variation between the adjusted basis of such property to the Company for federal income tax purposes and its initial Value (computed in accordance with the definition of Value) using the remedial allocation method permitted by Treasury Regulation Section 1.704- 3(d).

(c) In the event the Value of any Company Asset is adjusted pursuant to subparagraph (ii) of the definition of Value, subsequent allocations of income, gain, loss, and deduction with respect to such Asset shall take account of any variation between the adjusted basis of such Asset for federal income tax purposes and its Value in the same manner as under Code Section 704(c) and the Treasury Regulations thereunder.

(d) Any items of loss or deduction attributable to property contributed by a Member shall to the extent of an amount equal to the excess of (A) the federal income tax basis of such property at the time of its contribution over (B) the Value of such property at such time, be allocated in its entirety to such contributing Member and the tax basis of such property for purposes of computing the amounts of all items allocated to any other Member (including a transferee of the contributing Member) shall be equal to its Value.

(e) Allocations pursuant to this Section 4.5 are solely for federal, state, and local income taxes and shall not affect, or in any way be taken into account in computing, any Member’s Capital Account or share of Profits, Losses, other items, or distributions pursuant to any provision of this Agreement.

4.6. Other Allocation Rules.

(a) For purposes of determining the Profits, Losses, or any other items allocable to any period, Profits, Losses, and any such other items shall be determined on a daily, monthly, or other basis, as determined by the Managing Member using any permissible method under Code Section 706 and the Treasury Regulations thereunder.

(b) The Members are aware of the income tax consequences of the allocations made by this Article IV and Section 10.2(a) and hereby agree to be bound by the provisions of this Article IV and Section 10.2(a) in reporting their shares of Company income and loss for income tax purposes, unless otherwise required by law or the IRS.

(c) The Company shall not report any portion of the Facility Debt as “recourse” debt for purposes of Code Section 752 or as Member Nonrecourse Debt. The Company shall allocate 100% of the “excess” Nonrecourse Liabilities of the Company for purposes of Treasury Regulation Section 1.752-3(a)(3) in accordance with how the Base Case Model sets forth that the deductions attributable to such remaining Nonrecourse Liabilities will be allocated among the Members, taking into account the allocations required under Section 4.5 above.

(d) To the extent permitted by Treasury Regulation Section 1.704-2(h)(3), the Managing Member shall endeavor to treat distributions of Available Cash Flow as having been made from the proceeds of a Nonrecourse Liability or a Member Nonrecourse Debt only to the extent that such distributions would cause or increase an Adjusted Capital Account Deficit for any Member.

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ARTICLE V

DISTRIBUTIONS

5.1. Distributions of Available Cash Flow.

(a) Subject to Article Two of the Equity Capital Contribution Agreement and Sections 6.6(a) and 10.2(a)(vi), Available Cash Flow shall be distributed for each Quarterly Period to the Members, in the following percentages:

(i) 90% of Available Cash Flow shall be distributed to the Class A Members pro rata in accordance with their respective Class A Units; and

(ii) 10% of Available Cash Flow shall be distributed to the Class B Members pro rata in accordance with their respective Class B Units.

(b) Notwithstanding Section 5.1(a),

(i) all Available Cash Flow attributable to a payment by Seller to the Company pursuant to Section 3.2(c) of the A&R PUMA shall be distributed one hundred percent (100%) to the Class A Members, pro rata in accordance with their respective Class A Units;

(ii) all Available Cash Flow or other amount equal to any payment by Seller to the Company pursuant to Sections 2.2(d)(x) and 3.2(d)(x) of the A&R PUMA shall be distributed one hundred percent (100%) to the Class A Members, pro rata in accordance with their respective Class A Units; and

(iii) all Available Cash Flow or other amount equal to any payment by Seller to the Facility Company pursuant to Sections 2.2(d)(y) and 3.2(d)(y) of the A&R PUMA shall be distributed one hundred percent (100%) to the Class B Members, pro rata in accordance with their respective Class B Units.

5.2. Limitation. The distributions described in this Article V shall be made only from Available Cash Flows and only to the extent that there shall be sufficient Available Cash Flows to enable the Managing Member to make payments in accordance with the terms hereof. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to a Member on account of Membership Interest if such distribution (including a return of Capital Contributions) would violate the Act or any other Applicable Law.

5.3. Withholding. Notwithstanding any other provision of this Agreement, the Company shall be entitled to comply with any withholding requirements under any Applicable Law and shall be entitled to remit amounts withheld to, and file required forms with, applicable taxing authorities. To the extent that the Company is required to withhold and pay over any

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amounts to any taxing authority with respect to distributions or allocations to any Member, the amount withheld shall be treated as a distribution of cash to such Member in the amount of such withholding. In the event of any claimed over withholding, Members shall be limited to an action against the applicable taxing authority. If an amount required to be withheld was not withheld from an actual distribution, the Company may reduce subsequent distributions by the amount of such required withholding and any penalties or interest thereon. Each Member agrees to furnish to the Company such forms or other documentation as is reasonably necessary to assist the Company in determining the extent of, and in fulfilling, its withholding obligations.

5.4. Satisfaction of Certain Obligations Under Article XI.

(a) Upon receipt of a notice of a Class A Investor Claim pursuant to Section 11.1, Section 11.3 or Section 11.4 , any Class B Member or its Affiliates shall have the right to cure such asserted breach and no such cure shall be an acknowledgement or agreement as to the existence or amount of such Class A Investor Claim. Within 30 days following receipt of such notice, the Class B Members shall notify the relevant indemnified parties, all other Members and the Company in writing whether the Class B Members agree with or dispute all or a portion of such Class A Investor Claim, specifying the amount, if any, so agreed to. If the Class B Members do not deliver such notice within the time specified, the Class B Members shall be deemed to have delivered a notice on the 30th day from its receipt of notice of the Class A Investor Claims disputing the entire amount of such Class A Investor Claim.

(b) Upon receipt of a notice of a Class B Investor Claim pursuant to Section 11.2, any Class A Member or its Affiliates shall have the right to cure such asserted breach and no such cure shall be an acknowledgement or agreement as to the existence or amount of such Class B Investor Claim. Within 30 days following receipt of such notice, the Class A Members shall notify the relevant indemnified parties, all other Members and the Company in writing whether the Class A Members agree with or dispute all or a portion of such Class B Investor Claim, specifying the amount, if any, so agreed to. If the Class A Members do not deliver such notice within the time specified, the Class A Members shall be deemed to have delivered a notice on the 30th day from its receipt of notice of the Class B Investor Claims disputing the entire amount of such Class B Investor Claim.

(c) To the extent that any Damages result from the Facility Company or the Company being held liable to a Third Party for the payment of any amounts and it is finally determined by a court of competent jurisdiction, after exhaustion of all time periods for appeal, that such Damages resulted from a breach by the Class B Equity Investor (whether in its capacity as the Class B Member, the Managing Member, the Tax Matters Member or otherwise), the Class A Equity Investor, the Company, the Facility Company or their respective Affiliates of their respective representations or warranties or covenants or obligations contained in this Agreement or any Transaction Documents (each such payment a “Third Party Payment”), and such Third Party Payment creates an item of deduction or loss or amortizable or depreciable basis for the Company for Capital Account purposes, then, on or before the first cash distribution under Section 5.1 made by the Company after the date on which the Class B Members or Class A Members, as applicable, deliver or are deemed to have delivered their notice under Section 5.4(a) and Section 5.4(b), as applicable, the Class B Members or the Class A Members, as applicable, shall make a Capital Contribution to the Company in an amount equal to the full amount of the

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Third Party Payment (or, if applicable, such lesser amount as shall have been agreed between the Class B Members or the Class A Members, as applicable, and the applicable indemnified persons or such amount as shall have been finally determined by a court of competent jurisdiction).

(d) Notwithstanding the provisions of Section 5.1, with respect to any Damages relating to a Class A Investor Claim or a Class B Investor Claim (other than as to which Section 5.4(c) applies and as to which the Capital Contribution required by Section 5.4(c) has been made or paid into the Escrow), commencing with the first cash distribution under Section 5.1 made by the Company following the date that is thirty (30) days following the date that the indemnifying Members agree with the asserted claim, and in each case until the date on which payment in full of the relevant Damages (or, if applicable, such lesser amount as shall have been agreed between the indemnifying Members and the applicable indemnified Persons or such amount as shall have been finally determined by a court of competent jurisdiction) has been made as hereafter provided in this Section 5.4(d) or as otherwise paid by the indemnifying Members or any of their Affiliates, (1) any distributions as to which the indemnifying Members and any of their respective Affiliates would otherwise be entitled hereunder shall not be paid to such indemnifying Member or such Affiliates until the applicable indemnified Persons shall have received payment in full of such Damages (or, if applicable, such lesser amount as shall have been agreed between the indemnifying Members and the applicable indemnified Persons or such amount as shall have been finally determined by a court of competent jurisdiction), and (2) all Available Cash Flow otherwise payable to the indemnifying Members and their respective Affiliates shall be paid over to the applicable indemnified Persons to the extent necessary to pay in full such Damages (or, if applicable, such lesser amount as shall have been agreed between the indemnifying Members and the applicable indemnified Person or such amount as shall have been finally determined by a court of competent jurisdiction). In the event that (A) the distributions payable to the indemnifying Members and their respective Affiliates or the Available Cash Flow otherwise payable to the indemnifying Members and their respective Affiliates, in each case, for a Quarterly Period are not sufficient to pay the Damages relating to a Class A Investor Claim or a Class B Investor Claim (other than as to which Section 5.4(c) applies and as to which the Capital Contribution required by Section 5.4(c) has been made or paid into the Escrow), as applicable, or (B) such Damages have not otherwise been paid to the relevant indemnified parties within forty- five (45) days of the end of a Quarterly Period, then the indemnifying Members shall pay such Damages to the relevant indemnified parties within sixty (60) days of the end of such Quarterly Period. Upon receipt by the applicable indemnified Persons of the payment in full of such Damages (or, if applicable, such lesser amount as shall have been agreed between the indemnifying Members and the applicable indemnified Person or such amount as shall have been finally determined by a court of competent jurisdiction), the distributions and Available Cash Flow shall resume being distributed as required by the provisions of Section 5.1, subject to the application of this Section 5.4 to other Class A Investor Claims or Class B Investor Claims for Damages and the application of Section 5.5.

(e) If the indemnifying Members or their respective Affiliates dispute all or a portion of any Damages in excess of [***] then any Capital Contributions that the indemnifying Members or their Affiliates would have to make with respect to any Third Party Payment or for other Damages, and any distributions as to which the indemnifying Members or their respective Affiliates would otherwise be entitled hereunder, as applicable, in each case up to the amount of such disputed Damages, shall be paid into an escrow (the “Escrow”) maintained at a commercial

[***] Confidential Treatment Requested

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bank that is a member of the Federal Reserve System organized under the laws of the United States or any state thereof and has a combined capital and surplus of at least $1,000,000,000 (the “Escrow Agent”) pursuant to an escrow agreement in such Escrow Agent’s customary form and providing as follows:

(i) funds paid into such Escrow shall be invested in Cash Equivalents (such escrowed funds together with the earnings thereon being referred to herein as the “Escrowed Funds”);

(ii) Escrowed Funds shall be disbursed by the Escrow Agent as follows:

(A) Upon the Escrow Agent’s receipt of a written notice from the indemnifying Members or their Affiliates, as applicable, and the applicable indemnified Persons, the Escrow Agent shall disburse Escrowed Funds to the party or parties, and in the amount or amounts, specified in such joint written notice; and

(B) Upon receipt by the Escrow Agent of a judgment or order of a court of competent jurisdiction regarding all matters relating to such Class A Investor Claims or Class B Investor Claims, as applicable, and, if there exists a right of appeal therefrom, the expiration of the time for appealing such judgment or order without appeal of such judgment or order by any party, the Escrow Agent shall disburse the Escrowed Funds as specified in or consistent with such judgment or order.

(iii) The indemnifying Members or their Affiliates shall pay the Escrow Agent’s fees and charges related to the Escrow unless the amount finally determined to be payable to the indemnified Persons pursuant to subclauses (A) or (B) above is less than [***] of the amount claimed by the indemnified Persons, in which case, the indemnified Persons making the Class A Investor Claims or Class B Investor Claims, as applicable, shall bear all of the Escrow Agent’s fees and charges.

(f) Amounts paid or distributed to the indemnified Persons pursuant to this Section 5.4 shall be deemed distributed to the indemnifying Members and immediately paid by the indemnifying Members to the applicable indemnified Person. Such amount shall be grossed up and paid on an after-tax basis (assuming the highest marginal federal income tax rates then applicable to corporations and an assumed combined state and local income tax rate of [***] for purposes of a gross up).

(g) The Members, for themselves, their Affiliates, successors and permitted assigns, agree that, notwithstanding anything to the contrary herein or in any other agreement, (i) except as hereinafter provided, the provisions of this Section 5.4 and Article XI shall be the indemnified Persons’ sole and exclusive means of recovery in respect of this Agreement, the Equity Capital Contribution Agreement and the ASA for such Damages, and (ii) the indemnified Persons will not bring any action or proceeding, or take any other action, to recover any such Damages except as provided by this Section 5.4 and Article XI.

[***] Confidential Treatment Requested

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ARTICLE VI

MANAGEMENT

6.1. Managing Member.

(a) The Class B Equity Investor is hereby appointed by the Members as the initial Managing Member of the Company. Except as provided in Section 6.2 or as otherwise expressly provided herein, the Managing Member shall conduct, direct and exercise control over all activities of the Company, and shall have full power and authority on behalf of the Company to manage and administer the business and affairs of the Company and to do or cause to be done any and all acts considered by the Managing Member to be necessary or appropriate to conduct the business of the Company (including, without limitation, taking all necessary actions to cause the Company to, and to cause the Company to cause the Facility Company to, perform their respective obligations and enforce their respective rights under the Facility Documents to which it is a party and to otherwise carry out their respective purposes) without the need for approval by or any other consent from any Member, including, but not limited to, the authority to bind the Company in making contracts and incurring obligations in the Company’s name in the course of the Company’s business. Except to the extent that a Member is also the Managing Member or authority is delegated from the Managing Member, no Member shall have any authority to bind the Company.

(b) Notwithstanding any other provision of this Article VI, in the event of the occurrence of an Emergency, the Managing Member will be entitled, without having to obtain the consent of any other Member, to cause the Company to take any action that the Managing Member deems appropriate, consistent with prudent operating practices, in order to protect the interests of the Company or the Facility Company, or as required by Applicable Law (including causing the Facility Company to take any action that the Managing Member deems appropriate, consistent with prudent operating practices).

6.2. Standard of Care; Required Consents.

(a) In carrying out its duties hereunder, the Managing Member (i) shall cause the Company to cause the Facility Company to operate the Facility and cause the Administrator to operate and manage the Facility, in accordance with the Facility Documents; provided, that, in performing such obligations, the Managing Member shall (A) exercise such care, skill and diligence as a reasonably prudent business company of established reputation engaged in the business of generating electricity from fuel cells would exercise in the conduct of its business and for the advancement or protection of its own interests and (B) perform such duties in accordance with applicable fuel cell industry standards and (ii) in instances not involving the operation or management of the Facility, shall act in good faith and in a manner reasonably believed to be in the best interests of the Company. Upon the occurrence of an “Event of Default” (as defined in the ASA) by the Administrator under the ASA that remains uncured for a period of thirty (30) days, the Class A Members may cause the Company or the Facility Company, as applicable, to enforce their respective rights under the ASA.

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(b) Notwithstanding any other provision of this Agreement to the contrary, the Managing Member may not take any of the following actions without having first obtained the Consent of the Class A Members (such consent not to be unreasonably withheld or delayed):

(i) Do any act in contravention of this Agreement or of the organizational documents of the Facility Company;

(ii) Cause the Company to engage in any business or activity that is not within the purpose of the Company or to change such purpose, or cause the Facility Company to engage in any business or activity that is not within the purpose of the organizational documents of the Facility Company or cause the Facility Company to change such purpose;

(iii) Cause the Company to be treated other than as a partnership for United States federal income tax purposes (including by electing under Treasury Regulation Section 301.7701-3 to be classified as an association) or cause the Facility Company to be treated as anything other than a disregarded entity for United States federal income tax purposes (including by electing under Treasury Regulation Section 301.7701-3 to be classified as an association taxable as a corporation);

(iv) Make any tax election, or cause either the Company or the Facility Company to make any tax election, other than as provided in this Agreement;

(v) Admit any additional Member to the Company except as permitted under this Agreement, or cause any additional member to be admitted to the Facility Company except upon the exercise by the lenders of their rights under the Financing Documents to foreclose on the Facility Company’s membership interests;

(vi) Any sale, lease or other voluntary disposition of any membership interest in the Facility Company;

(vii) Cause the Company or the Facility Company to permit (A) possession of property of the Company or the Facility Company, as applicable, by any Member (unless such action is taken pursuant to the express terms of the Facility Documents), (B) the assignment, transfer or pledge of rights of the Company or the Facility Company in specific property of the Company or the Facility Company, as applicable, for other than a Company or Facility Company purpose or other than for the benefit of the Company or the Facility Company, or (C) any commingling of the funds of the Company or the Facility Company with the funds of any other Person;

(viii) Causing or permitting the Company or the Facility Company to take or file any action or institute any proceedings in bankruptcy, or consent to any such filing or proceeding;

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(ix) (i) Any issuance or redemption by the Company of any membership units or other equity interests of any kind in the Company; (ii) any issuance or redemption by the Facility Company of any membership interests or other equity interests of any kind in the Facility Company; or (iii) any sale or issuance of any option, warrant or similar right to acquire any interest of any kind in either the Company or the Facility Company, in each case except as expressly provided for in this Agreement;

(x) (i) Any merger, conversion or consolidation of either the Company or the Facility Company, or any sale of all or substantially all of the assets of either the Company or the Facility Company; (ii) either the Company or the Facility Company acquiring all or substantially all of the assets or stock of any person; (iii) changing either the Company’s or the Facility Company’s legal form; (iv) recapitalizing either the Company or the Facility Company; or (v) liquidating, winding-up or dissolving either the Company or the Facility Company, in each case except as expressly permitted under this Agreement;

(xi) Causing or permitting either the Company or the Facility Company to take any of the following actions;

(A) amend, modify or waive in any material respect, cancel or terminate any Facility Documents (for the avoidance of doubt, the Managing Member may, without the Consent of the Class A Members, cause or permit either the Company or the Facility Company to amend any of the Facility Documents to allow for the addition, removal or modification of sites so long as such amendment could not reasonably be expected to have a material adverse effect on the performance of the Company as contemplated by the Base Case Model);

(B) assign, release, relinquish, consent to any departure from, or waive the rights or obligations of any party to any Facility Documents, except for any such actions which are not material or which are taken in the ordinary course of business;

(xii) (i) terminating the ASA, or entering into a new or replacement agreement in place of the ASA, except, in each case, to the extent expressly set forth in the terms of this Agreement; (ii) terminating the A&R PUMA, or entering into a new or replacement agreement in place of the A&R PUMA, except, in each case, to the extent expressly set forth in this Agreement; or (iii) providing any consent, approval or waiver that would allow the waiver of any material rights of either the Company or the Facility Company;

(xiii) Allowing or granting any lien on the assets or rights of either the Company or the Facility Company, other than Permitted Encumbrances;

(xiv) Causing or permitting either the Company or the Facility Company to (i) make loans to third parties or (ii) repay (other than repayments in accordance with scheduled maturity or which are otherwise mandatory pursuant to the terms of any Financing Documents), voluntarily prepay or redeem, or refinance or modify any of the terms of, any indebtedness of either the Company or the Facility Company;

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(xv) Except as provided in the Financing Documents and the Facility Documents, borrow, or cause the Company or the Facility Company to borrow, any money in the name or on behalf of the Company or the Facility Company, as applicable, or execute and issue promissory notes and other negotiable or non- negotiable instruments and evidences of indebtedness, except the Managing Member may borrow, or cause the Company or the Facility Company to borrow money in the name and on behalf of the Company or the Facility Company, as applicable, in such amounts as the Managing Member shall reasonably determine are necessary to comply with all applicable environmental laws, ordinances, rules and regulations;

(xvi) Except as provided in the Financing Documents and the Facility Documents and except for Permitted Encumbrances, mortgage, pledge, assign in trust or otherwise encumber, or cause the Company or the Facility Company to mortgage, pledge, assign in trust or otherwise encumber, any Company or Facility Company property, or to assign, or cause the Company the Facility Company to assign any monies owing or to be owing to the Company or the Facility Company except to secure the payment of any borrowing permitted hereunder and except for customary liens contained in or arising under any operating agreements, construction contracts and similar agreements executed by or binding on the Company or the Facility Company with respect to amounts not yet due or not yet delinquent (or, if delinquent, that are being contested by the Managing Member, the Company or the Facility Company in good faith and for which adequate reserves have been set aside in accordance with GAAP) or except for statutory liens for amounts not yet due or not yet delinquent (or, if delinquent, that are being contested by the Managing Member, the Company or the Facility Company in good faith and for which adequate reserves have been set aside in accordance with GAAP), provided that in no event shall the Managing Member mortgage, pledge, assign in trust or otherwise encumber the Company’s right to receive Capital Contributions from the Members;

(xvii) Sell, lease, transfer, assign or distribute any interest in the Facility Company or cause the Company or the Facility Company to sell, lease, transfer, assign or distribute (A) any Facility or (B) any Asset or related group of Assets with a Fair Market Value in excess of [***] in one or a related series of transactions, except, in the case of each of clauses (A) and (B), pursuant to the Power Purchase Agreements or pursuant to the A&R PUMA;

(xviii) Enter into, or cause the Company or the Facility Company to enter into: (A) any material amendment, modification, waiver or termination of any agreement with an Affiliate of the Managing Member; (B) any substitution or replacement of any Facility Document or any agreement with an Affiliate, (C) any additional Facility Document or agreement with an Affiliate (it being understood that the Class A Member shall have the opportunity to review and make reasonable comments with respect to any subsequent Power Purchase Agreements, if any, that are proposed to be entered into); or

(xix) Take, or cause the Company or the Facility Company to take, any System(s) out of service, except as permitted pursuant to the terms of the A&R PUMA or the Power Purchase Agreements.

[***] Confidential Treatment Requested

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Notwithstanding anything contained herein to the contrary, for so long as any indebtedness or obligations remain outstanding under the Financing Documents, each Member hereby acknowledges that the consent of certain parties to the Financing Documents, such as the Facility Lenders, may be required in connection with the Facility Company taking certain actions.

(c) Prior to the dissolution of the Company under the terms of this Agreement, the Managing Member shall devote such time and effort to the Company’s business as may be necessary to adequately promote the interests of the Company and the mutual interests of the Members.

(d) Notwithstanding any other provision of this Agreement to the contrary, at the written direction of the Class A Member, the Managing Member shall require the repurchase or reacquisition of all or part of a Facility if so required pursuant to the terms of Section 3.2(c), 5.7(b), 12.3 or 12.7(b) of the A&R PUMA.

6.3. Removal of Managing Member.

(a) The Managing Member will be subject to removal as Managing Member upon thirty (30) days’ notice by the Consent of the Class A Members if the Managing Member (x) has engaged in gross negligence, willful misconduct or fraud, (y) has breached any material duty, obligation or covenant of this Agreement or caused the Company or the Facility Company to breach any material duty, obligation or covenant of any Facility Document, or (z) is declared Bankrupt; provided, however, that in the case of clause (y), the Managing Member shall have the opportunity to cure such breach or violation within thirty (30) days of receiving notice of such breach (which thirty (30) day period shall run concurrently with the required notice period); provided, further, that if such breach or violation cannot be cured within such period, and so long as the Managing Member is proceeding with diligence to cure such breach, the thirty (30) day cure period shall be extended by an additional thirty (30) days, for a total cure period of thirty (30) days.

(b) If the Managing Member is so removed, the Consent of the Members shall be required to elect a successor Managing Member to succeed to all the rights, and to perform all of the obligations, set forth for the Managing Member hereunder.

6.4. Indemnification and Exculpation.

(a) To the fullest extent permitted by Applicable Law, the Managing Member and its respective officers, directors, employees and agents shall be exculpated from, and the Company shall indemnify such Persons from and against, all Claims any of them incur by reason of any act or omission performed or omitted by such Person in a manner that is consistent with its rights and obligations under Applicable Law and this Agreement; provided, however, that this indemnity does not apply to Claims that are attributable to the gross negligence, willful misconduct or fraud of such Person or a breach by the Managing Member or the Class B Member or any Affiliate thereof of its covenants or representations set forth in any Investment Document or any Facility Document.

(b) To the fullest extent permitted by Applicable Law, expenses to be incurred by an indemnified Person under this Section 6.4 shall, from time to time, be advanced by or on behalf of the Company prior to the final disposition of any matter upon receipt by the Company of an undertaking from a Person with sufficient credit capacity to repay such amount if it shall be determined that the indemnified Person is not entitled to be indemnified under this Agreement.

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6.5. Company Reimbursement. The Company shall directly pay and reimburse the Managing Member for all Company Reimbursable Expenses incurred from time to time.

6.6. Additional Covenants. The Managing Member shall cause the Facility Company to distribute to the Company any System in respect of which an Offtaker has made a payment of Termination Value pursuant to the relevant PPA; provided that the Facility Lenders shall have first released their lien on such System. Following any such distribution of a System to the Company, the Company shall cause such System to be remarketed by the Administrator pursuant to the ASA. If such System is sold following such remarketing, the proceeds of such sale shall first be paid to such Offtaker to the extent required pursuant to the relevant terms of the applicable Power Purchase Agreement. Any remaining sale proceeds shall be considered “Available Cash Flow” and shall be distributed to the Members in accordance with Section 5.1.

ARTICLE VII

RIGHTS AND RESPONSIBILITIES OF MEMBERS

7.1. General. The rights and responsibilities of the Members shall be as provided in the Delaware Certificate, this Agreement and the Act.

7.2. Member Voting Rights. Except as provided in Sections 6.2(b), and as otherwise expressly provided in this Agreement or as required by the Act, the consent of the Members shall not be required and the Managing Member (and not the other Members) shall have all right, power and authority to do for, on behalf of, and in the name of the Company, all things that the Managing Member deems necessary, proper or desirable to carry out its duties and responsibilities. Without limitation of the foregoing, to the extent that the consent of the Members is express required by this Agreement or the Act, except as provided in Sections 6.2(b), or as otherwise expressly provided in this Agreement, the Consent of the Members shall constitute approval by, or the authorization of, any action by or on behalf of the Company that expressly requires a vote, consent, approval or action of or an election by the Members; provided, that, without the prior written approval of each Member adversely affected thereby, no such consent shall (i) modify the limited liability of a Member; (ii) require a Member to provide funds to the Company, by loan, contribution or otherwise (or amend any of the conditions to making any loan or contribution); (iii) alter the interest of any Member in Capital Accounts, Profits, Losses, distributions or Available Cash Flow; or (iv) amend, supplement or otherwise modify Sections 6.2(b) or this Section 7.2, or, in each case, any of the definitions of capitalized terms used therein.

7.3. Member Liability.

(a) To the fullest extent permitted under the Act and under Applicable Law as currently or hereafter in effect, no Member shall have any personal liability whatsoever, whether

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to the Company or to its creditors for the debts, obligations, expenses or liabilities of the Company, whether arising in contract, tort or otherwise, which shall be solely the debts, obligations or liabilities of the Company, or for any of its losses, in excess of the value of such Member’s Capital Account, except as expressly provided herein.

(b) A Member shall be liable only to make its Capital Contributions as provided herein and in the Equity Capital Contribution Agreement and shall not be required to restore a deficit balance in its Capital Account, except as provided in Section 10.3. The failure of the Company to observe any formalities or requirements relating to the exercise of its powers or management of its business or affairs under this Agreement or the Act shall not be grounds for imposing personal liability on the Members or the Managing Member for liabilities of the Company.

7.4. Withdrawal. Except as otherwise provided in this Agreement, no Member shall be entitled to: (i) voluntarily withdraw from the Company; (ii) withdraw any part of such Member’s Capital Contributions from the Company; (iii) demand the return of such Member’s Capital Contributions; or (iv) receive property other than cash in return for such Member’s Capital Contribution.

7.5. Member Compensation. No Member shall receive any interest, compensation or drawing with respect to its Capital Contributions or its Capital Account or for services rendered on behalf of the Company or otherwise, in its capacity as a Member, except as otherwise provided in this Agreement or the ASA.

7.6. Other Ventures. Notwithstanding any other provision of this Agreement or any duty existing at law or in equity, the Members (including the Managing Member) and their respective Affiliates at any time and from time to time may engage in and possess interests in other business ventures of any and every type and description, including other business ventures competitive with, or of the same type and description as, the Company and the Facility Company, independently or with others.

7.7. Confidential Information.

(a) With respect to each of the Company and the Members, except to the extent necessary for the exercise of its rights and remedies and the performance of its obligations under this Agreement or otherwise with respect to the Facility Company or the Facility, such Member will not itself use or intentionally disclose (and will not permit the use or disclosure by any of its Affiliates, any of the officers, directors or employees of it or its Affiliates (collectively, “Representatives”), or any of its advisors, counsel and public accountants (collectively, “Advisors”)), directly or indirectly, any of the Facility Documents, this Agreement or other confidential information in respect of the transactions contemplated hereby (“Confidential Information”); provided, that (i) any such Member and its Affiliates, Representatives and Advisors may use and disclose Confidential Information to such Member’s Affiliates, Representatives and Advisors and to any other Member and its Affiliates, Representatives and Advisors, (ii) any such Member and its Affiliates, Representatives and Advisors may use and disclose Confidential Information that (A) has been publicly disclosed or is publicly known (other than by such Member or any of its Affiliates, Representatives or Advisors in breach of this

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Section 7.7), (B) has come into the possession of such Member or any of its Affiliates, Representatives or Advisors other than in connection with the transactions contemplated by this Agreement, or (C) has been independently developed by such Member or any of its Affiliates, Representatives or Advisors without use of information obtained under this Agreement, (iii) to the extent that that such disclosure is required by law, a subpoena or any other applicable legal process or by a Governmental Authority having jurisdiction over such Member or its Affiliates, such Member may disclose Confidential Information provided that in such case such Member shall, unless otherwise prohibited by law, (1) give prompt notice to the other Members that such disclosure is or may be required and (2) cooperate in protecting such confidential or proprietary nature of the Confidential Information which must so be disclosed; provided, that no such notification shall be required in respect of any disclosure to bank, insurance or financial industry regulatory authorities having jurisdiction over such Member or its Affiliates, (iv) disclosures to lenders, potential lenders or other Persons providing financing to the Company or to the Facility Company or to their respective representatives and advisors, any Member or any Affiliate of any Member and potential purchasers of equity interests in the Company, any Member or any Affiliate of any Member are permitted if such Persons have agreed to abide by the terms of this Section 7.7 or have otherwise entered into an agreement with restrictions on disclosure substantially similar to the terms of this Section 7.7 (or in the case of advisors, are otherwise bound by professional or legal obligations of confidentiality), (v) any such Member and its Affiliates, Representatives and Advisors may disclose Confidential Information, and make such filings, as may be required by this Agreement or the Facility Documents, (vi) any Member which is an insurance company or an Affiliate thereof may disclose such information to the National Association of Insurance Commissioners and any rating agency requiring access to its portfolio, (vii) the Class B Equity Investor and its Affiliates, Representatives and Advisors may disclose Confidential Information relating to the Facilities (but not Confidential Information relating to any Member) to lenders, potential lenders or other Persons providing financing to any Person developing or proposing to develop the remaining phases of the Facilities and potential purchasers of equity interests in such Person or potential power or renewable energy credits purchasers from such Persons, or to any Person in connection with the operation of the Facilities, and (viii) any such Member may disclose Confidential Information to the United States Department of Treasury, the IRS or any state taxing authority in connection with any communication regarding the tax consequences of the Facilities, Facility Company’s ownership and operation of the Facilities, Company’s ownership of an interest in the Facility Company or such Member’s ownership of an interest in the Company; provided, that such Member shall, as soon as practicable, notify the Class B Equity Investor of such disclosure, furnish a copy of any written material provided to the IRS or any state taxing authority to the Class B Equity Investor and, if practicable, afford the Class B Equity Investor reasonable opportunity to comment on the proposed disclosure (but for the avoidance of doubt the Class B Equity Investor will not have the right to consent to such proposed disclosure). A Member’s obligations pursuant to this Article VII shall survive the Transfer of its Units. Notwithstanding anything herein to the contrary, the Class B Equity Investor and any of its Affiliates (including Affiliates formed subsequent to the date hereof) may use any operational data with respect to the Facilities for the purpose of researching, analyzing, designing, improving, developing, manufacturing, installing, modifying or operating other fuel cell-powered electric generating facilities, whether similar to or different from the Facilities.

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(b) The foregoing obligations shall not apply to the tax treatment or tax structure of the transactions contemplated hereby and each Member (and any employee, representative, or agent of any Member) may disclose to any and all Persons, without limitation of any kind, the tax treatment and tax structure of the transactions contemplated hereby and all other materials of any kind (including opinions or other tax analysis) that are provided to any Member relating to such tax treatment and tax structure (all such information that may be disclosed being the “Tax Information”). However, any such Tax Information is required to be kept confidential to the extent necessary to comply with any applicable securities laws. The preceding sentences are intended to cause the transactions contemplated hereby not to be treated as having been offered under conditions of confidentiality for purposes of Sections 1.6011-4(b)(3) and 301.6111- 2(a)(2)(ii) (or any successor provision) of the Treasury Regulations issued under the Code and shall be construed in a manner consistent with such purpose. For purposes of this provision, the Tax Information includes only those facts that may be relevant to understanding the purported or claimed U.S. federal income tax treatment or tax structure of the transactions contemplated hereby and, to eliminate any doubt, therefore specifically does not include information that either reveals or standing alone or in the aggregate with other information so disclosed tends of itself to reveal or allow the recipient of the information to ascertain the identity of any Company, any Member or the Class B Equity Investor (or potential member), or any other third parties involved in any of the transactions contemplated hereby or any other potential transactions with any of the foregoing.

(c) Except as otherwise permitted by this Section 7.7, no Member shall include in a press release or otherwise disclose (other than as required to be included in a filing to any bank, insurance or financial industry regulatory authority having jurisdiction over such Member, its affiliates, permitted transferees, any security exchange or the Securities Exchange Commission or as required by Applicable Law) the name of any Member as an equity investor or potential equity investor without the prior written consent of such Member which consent shall not be unreasonably withheld.

(d) If the Company or any subsidiary thereof is required at any time to make any regulatory filing that identifies by name, or otherwise relates specifically to, any Member or any of its Affiliates or permitted transferees, then the Company shall submit (or the Company shall cause its subsidiary to submit) an advance draft of such regulatory filing to such Member or its Affiliate or permitted transferee, as applicable, and each such Member shall cooperate and shall provide such information as is necessary to complete such filing. Such Member (or its Affiliate or permitted transferee, as applicable) shall have the right to provide comments to such regulatory filing as it relates to such Member (or its Affiliate or permitted transferee), and the Company or its subsidiary shall incorporate or accommodate, prior to submitting such filing, such comments.

(e) If any Member is required at any time to make any regulatory filing (other than a filing to any bank, insurance or financial industry regulatory authority having jurisdiction over such Member or its affiliates) that identifies by name, or otherwise relates specifically to, any other Member, then such Member shall submit an advance draft of the relevant portions of such regulatory filing to such other Member. Such other Member shall have the right to provide comments to such regulatory filing as it relates to such other Member, and the Member making such filing shall incorporate or accommodate, prior to submitting such filing, such comments.

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7.8. ERISA Matters. The covenants set forth this Section 7.8 apply only to a Class A Member during the time that such Class A Member is an ERISA Affiliate.

(a) Each Class A Member shall deliver to the Company promptly, and in any event within ten Business Days after the Class A Member becoming aware of any of the following, a written notice setting forth the nature thereof and the action, if any, that the Class A Member or its Member ERISA Affiliate proposes to take with respect thereto:

(i) with respect to any Plan (other than any Multiemployer Plan) that is subject to Title IV of ERISA, any reportable event, as defined in section 4043(c) of ERISA and the regulations thereunder, for which notice thereof has not been waived pursuant to such regulations as in effect on the date hereof; provided, however, that the notice to the Company under this Section 7.8(a)(i) with respect to such reportable event shall be timely if it is provided within ten Business Days after the earlier of the filing of the notice with the Pension Benefit Guaranty Corporation with respect to such event or the due date for the filing of such notice with the Pension Benefit Guaranty Corporation; or

(ii) the taking by the PBGC of steps to institute, or the threatening by the PBGC in writing of the institution of, proceedings under section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Title IV Plan, or the receipt by any Member ERISA Affiliate of a notice from a Multiemployer Plan that such action has been taken by the PBGC with respect to such Multiemployer Plan; or

(iii) any event, transaction or condition that could reasonably be expected to result in the incurrence of any liability by any Member ERISA Affiliate pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans which has not been satisfied, or in the imposition of any lien on any of the rights, properties or assets of any Member ERISA Affiliate pursuant to Title I or IV of ERISA or such penalty or excise tax provisions, if such liability or lien, taken together with any other such liabilities or liens then existing, could reasonably be expected to have a Material Adverse Effect.

(b) No Class A Member or any of its Member ERISA Affiliates shall (i) permit any Title IV Plan to fail to satisfy the minimum funding standards of ERISA or section 412 of the Code, (ii) seek a waiver of the minimum funding standards of ERISA or an extension of any amortization period under section 412 of the Code, (iii) file with the PBGC a notice of intent to terminate any Title IV Plan in a distress termination described in section 4041(c) of ERISA, (iv) permit a Title IV Plan funding to have an “at risk” status within the meaning of section 430(i) of the Code, (v) incur any material liability pursuant to Title IV of ERISA (other than for PBGC premiums due but not delinquent) or the penalty or excise tax provisions of the Code relating to employee benefit plans (or take or fail to take any action that is reasonably expected to result in the incurrence of any such liability), or (vi) withdraw from any Multiemployer Plan; unless any such event or events described in clauses (i) through (vi) above, either individually or together with any other such event or events, would not reasonably be expected to have a Material Adverse Effect. In addition, no Class A Member or any of its Member ERISA Affiliates shall permit the aggregate “amount of unfunded benefit liabilities” (within the meaning of section

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4001(a)(18) of ERISA) under all Underfunded Title IV Plans, determined in accordance with Title IV of ERISA, to exceed the aggregate current value of the assets under all Underfunded Title IV Plans by an amount that, if required to be paid in an immediate lump-sum payment, could reasonably be expected to result in a Material Adverse Effect.

ARTICLE VIII

ADMINISTRATIVE AND TAX MATTERS

8.1. Intent for Income Tax Purposes. The Members intend that the Company be treated as a partnership for federal, state and local income tax purposes and that it be operated in a manner consistent with such treatment, but that the Company not be operated or treated as a “partnership” for any other purpose, including, but not limited to, Section 303 of the Federal Bankruptcy Code, and the provisions of this Agreement may not be construed to suggest otherwise. The Members intend that the Facility Company be treated as a disregarded entity for federal, state and local tax purposes.

8.2. Books and Records. The Company’s books of account shall be prepared and maintained in accordance with generally accepted accounting principles for the type of business of the Company. The Managing Member shall cause to be kept, at the principal place of business of the Company, full and proper ledgers and other books of account of all receipts and disbursements and other financial activities of the Company, including the following documents:

(a) A copy of the certificate of formation of the Company and the Facility Company and all certificates of amendment thereto, together with executed copies of any powers of attorney pursuant to which any certificate has been executed;

(b) Copies of the Company’s and the Facility Company’s federal, state and local income tax or information returns and reports (including any information or reports pertaining to any tax elections made by the Company or the Facility Company), if any, for the three (3) most recent Taxable Years of the Company; thereto;

(c) Copies of the Prior LLC Agreement, this Agreement and all amendments

(d) Copies of the constituent documents in respect of the Facility Company;

(e) Financial statements, including a consolidated balance sheet and consolidated statements of income (or loss), of the Company and its consolidated subsidiaries for, to the extent applicable, each of the three (3) most recent Fiscal Years, including quarterly and monthly internal consolidated financial statements of the Company; and

(f) The Company’s books and records for at least the current and, to the extent applicable, the past three (3) Fiscal Years.

8.3. Information and Access Rights. The Members and their respective agents will have the right, at their sole risk and expense and upon reasonable prior notice to the Managing Member, to inspect the Facilities and all relevant books and records relating thereto and make copies thereof. Any such inspection will be conducted during normal business hours and so as not to unreasonably interfere with the business of the Managing Member.

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8.4. Reports. The Managing Member shall, at the Company’s expense, deliver, or caused to be delivered to each Member, the following reports, information and financial statements at the times indicated below:

(a) Annually, within 120 days after the end of each calendar year (as such dates may be extended or waived by the applicable Members), audited consolidated financial statements and report for the Company and its consolidated subsidiaries, prepared by the Certified Public Accountant, prepared on a GAAP basis effective as of the end of the immediately- preceding year, including a consolidated balance sheet and consolidated statements of income, members’ equity and changes in cash flows (the “Annual Report”) and accompanied by a report of such accounting firm stating that their examination was made in accordance with generally accepted auditing standards and that in their opinion such financial statements and Annual Report of the Company and its consolidated subsidiaries fairly present the Company’s and its consolidated subsidiaries’ cash flows, results of operations and changes in financial position on a GAAP basis;

(b) Quarterly, within 45 days after the end of each calendar quarter, unaudited quarterly financial statements of the Company and its consolidated subsidiaries for such period and portion of the calendar year then ended, all in reasonable detail and fairly presenting the financial position of the Company and its consolidated subsidiaries, as of the end of such quarter, on a GAAP basis, subject to lack of footnotes and normal year-end adjustments;

(c) Quarterly, within 45 days after the end of each calendar quarter, a report setting forth (1) the kilowatt hours of electricity produced and sold during such quarter from the Facility, (2) the revenues and expenses of the Facility for the most recent available quarter, (3) in the case of the calendar quarters ending after January 31st, the same information set forth in (1) through (2) on a cumulative basis since the beginning of the Fiscal Year, and (4) a quarter and year to date performance versus budget, variance analysis and a short narrative regarding key operating events and issues;

(d) Annually, within 45 days prior to the start of each calendar year, the annual capital and operating budgets for the Company and the Facility Company;

(e) Promptly upon becoming aware of any such event or circumstance, notice of (i) any material litigation pending or, to the knowledge of the Managing Member, threatened against the Facility Company or the Company and (ii) any material event of default under the Facility Documents;

(f) Within 30 days after renewal, copies of policies of insurance maintained by or on behalf of the Company or any of its subsidiaries, including current certificates of insurance; and

(g) Promptly following any request therefor, such other reports and information in the possession of the Managing Member as reasonably requested by the Members and such other reports reasonably requested by and paid for by the requesting Member to the extent external costs are incurred with respect to the preparation of such reports.

8.5. Permitted Investments. All cash of the Company may only be invested and reinvested in one of the following investment alternatives (“Permitted Investments”) (but not directly or indirectly in any “public utility” or “holding company” as defined in the FPA unless any applicable FERC approval has been obtained):

(a) Direct obligations of the United States of America (including obligations issued or held in book-entry form on the books of the Department of the Treasury of the United States of America) or obligations the timely payment of the principal of and interest on which are fully guaranteed by the United States of America;

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(b) Obligations, debentures, notes or other evidence of Indebtedness issued or guaranteed by any of the following: Export-Import Bank of the United States, Federal Housing Administration or other agency or instrumentality of the United States;

(c) Interest-bearing demand or time deposits (including certificates of deposit) which are either:

(i) insured by the Federal Deposit Insurance Corporation, or

(ii) held in banks and savings and loan associations, having general obligations rated at least “AA” or equivalent by S&P or Moody’s, or if not so rated, secured at all times, in the manner and to the extent provided by law, by collateral security described in clauses (a) or (b) of this definition, of a market value of no less than the amount of moneys so invested;

(d) Obligations of any state of the United States or any agency or instrumentality of any of the foregoing which are rated at least “AA” by S&P or at least “Aa” by Moody’s;

(e) Commercial paper rated (on the date of acquisition thereof) at least A-1 or P-1 or equivalent by S&P or Moody’s, respectively (or an equivalent rating by another nationally recognized credit rating agency of similar standing if neither of such corporations is then in the business of rating commercial paper), maturing not more than 90 days from the date of creation thereof but excluding any such commercial paper issued by any Member or any Affiliate of the Managing Member; or Member.

(f) Any other investments agreed to by the Members and the Managing

8.6. Tax Elections. The Managing Member shall make the following federal income tax elections on the appropriate Company tax returns:

(a) To the extent permitted under Code Section 706, to elect the calendar year as the Company’s Taxable Year;

(b) To elect the accrual method of accounting;

(c) To elect to amortize any organizational and start-up expenses of the Company ratably over a period of 180 months as permitted by Code Sections 709(b);

(d) To make any election the Managing Member reasonably determines is necessary to claim the ITC with respect to a Facility;

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(e) If a distribution of the Company’s property as described in Section 734 of the Code occurs or a transfer of Membership Interest as described in Section 743 of the Code occurs to elect pursuant to Section 754 of the Code to adjust the basis of the Company’s properties; and

(f) To elect under Section 6231(a)(1)(B)(ii) of the Code and the Treasury Regulation thereunder to treat the Company as a partnership to which the provisions of Sections 6221 through 6234 of the Code, inclusive, apply.

The Managing Member shall make no other tax elections for the Company, except as otherwise provided herein, without the written Consent of the Members, such consent not to be unreasonably withheld; provided, however, that the Managing Member may, subject to the limitation that the Tax Return shall be filed no later than August 1st of the year following the Company’s Taxable Year, elect to extend the time for filing any Company tax return as provided for under the Code and applicable State statutes. Neither the Company nor any Member may make an election for the Company to be excluded from the application of the provisions of subchapter K of chapter 1 of subtitle A of the Code or any similar provisions of any state Applicable Law. No Member, Managing Member, officer or agent of the Company is authorized to, or may, file IRS Form 8832 (or such alternative or successor form) to elect to have the Company or the Facility Company classified as a corporation for federal income tax purposes under Regulation Section 301.7701-3.

8.7. Tax Matters Member and Company Tax Filings.

(a) The Class B Equity Investor shall be, and so long as it continues to be the Managing Member, shall continue to be, the “tax matters partner” of the Company pursuant to Section 6231(a)(7) of the Code (the “Tax Matters Member”); provided, that if the Class B Equity Investor is no longer the Managing Member, the Person selected as the successor Managing Member pursuant to Section 6.3(b) shall appoint a new Tax Matters Member. The Tax Matters Member shall prepare, or cause to be prepared, and timely file (on behalf of the Company) all federal, state and local tax returns required to be filed by the Company. Each Member shall furnish to the Tax Matters Member all pertinent information in its possession relating to the Company’s operations that is reasonably necessary to enable the Company’s tax returns to be timely prepared and filed. The Tax Matters Member shall prepare, or cause to be prepared, the Company’s federal income tax return (including K-1s) (the “Tax Return”) on a basis consistent with this Agreement and the assumptions contained in the Base Case Model (a “Consistent Return”), except as otherwise required by Applicable Law. The Tax Matters Member shall use commercially reasonable efforts to furnish to the Members, by no later than the 120 days following each Taxable Year, the Tax Return proposed to be filed by the Tax Matters Member, but in any event, shall furnish such Tax Return at least 30 days prior to the due date for filing, and, with respect to any Tax Return for any tax year relating to any portion of the Recapture Period, shall incorporate any reasonable comments of the Class A Members to such Tax Returns prior to filing, and, with respect to any other Tax Return, shall use good faith efforts to incorporate any reasonable comments of the Class A Members to such Tax Returns prior to filing. The Tax Matters Member shall furnish to the Members reasonable estimates (broken down by item and character of income, loss, deduction or credit) prior to the date 75 days after the end of the Taxable Year and shall furnish to the Members copies of each Tax Return as filed. In the event that the Tax Matters Member anticipates furnishing to the Members a Tax Return

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that is not a Consistent Return, the Tax Matters Member shall notify the Members in writing no less than 30 days prior to the date on which it intends to furnish such Tax Return that such Tax Return will not be a Consistent Return, other than inconsistencies solely relating to variances in the anticipated operating results of the Facilities. If a Tax Return is timely objected to by the Class A Members, the Tax Matters Member shall submit such Tax Return, together with copies of all relevant workpapers used in preparation thereof, to a nationally recognized firm (other than the Certified Public Accountant) of independent public accountants or, if related to a legal matter, a law firm, in each case, selected by the Class A Members. The determination of such independent expert, and the Tax Return as completed by such expert, shall be final and binding on the Members, and the Tax Matters Member shall cause such final Tax Return to be filed; provided, that, if the Tax Return is required under Applicable Law to be filed prior to the date on which such independent expert makes its determination, the Tax Return shall be filed consistent with the positions set forth by the Tax Matters Member and will be amended by the Tax Matters Member to reflect the determination of such independent expert, as applicable. The Company shall bear the costs of the preparation and filing of its returns, including the fees of the independent expert.

(b) The Tax Matters Member, in consultation with the other Members, shall direct the defense of any claims made by the IRS to the extent that such claims relate to the adjustment of Company items at the Company level, provided that the Tax Matters Member shall consider in good faith any reasonable requests made by the Class A Members in respect of the strategy to be taken in connection with any such defense; and further provided, that, if the Tax Matters Member and the Class A Members are unable to agree on any strategy to be taken with respect to the defense of any such claims, such strategy shall be determined by tax counsel selected by the Tax Matters Member and approved by the Class A Members to make such determination. The Tax Matters Member shall select nationally recognized tax counsel to represent the Company in any such defense. The Tax Matters Member shall cause the Company to retain and to pay the fees and expenses of counsel approved as described in the preceding sentence and to pay the fees and expenses of other advisors chosen by the Tax Matters Member in consultation with the other Members. The Tax Matters Member shall promptly deliver to each Member a copy of all notices, communications, reports and writings received from the IRS by the Company relating to or potentially resulting in an adjustment of Company items, shall promptly advise each Member of the substance of any conversations with the IRS in connection therewith and shall keep the Members advised of all developments with respect to any proposed adjustments that come to its attention. In addition, the Tax Matters Member shall (A) provide each Member with a draft copy of any correspondence or filing to be submitted by the Company in connection with any administrative or judicial proceedings relating to the determination of Company items at the Company level reasonably in advance of such submission, (B) incorporate all reasonable changes or comments to such correspondence or filing that are approved or recommended by the Class A Members and (C) provide each Member with a final copy of correspondence or filing. The Tax Matters Member will provide each Member with written notice reasonably in advance of any meetings or conferences with respect to any administrative or judicial proceedings relating to the determination of Company items at the Company level (including any meetings or conferences with counsel or advisors to the Company with respect to such proceedings) and each Member shall have the right to participate, at its sole cost and expense, in any such meetings or conferences.

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(c) Without the consent of the Class A Members, the Tax Matters Member shall not (A) commence a judicial action (including filing a petition as contemplated in Section 6226(a) or Section 6228 of the Code) with respect to a federal income tax matter or appeal any adverse determination of a judicial tribunal; (B) enter into a settlement agreement with the IRS which purports to bind the Members; (C) intervene in any action as contemplated by Section 6226(b) of the Code; (D) file any request contemplated in Section 6227(b) of the Code; or (E) enter into an agreement extending the period of limitations as contemplated in Section 6229(b)(1)(B) of the Code.

(d) The provisions of this Article VIII will survive the termination of the Company or the termination of any Member’s interest in the Company and will remain binding on the Member for the period of time necessary to resolve with the IRS or other federal tax agency any and all federal income tax matters relating to the Company that are subject to Code Sections 6221 through 6233.

(e) The Tax Matters Member and the Members will treat the Company as the owner of the Facilities for federal income and other applicable tax purposes in all tax filings.

(f) Each Member shall provide the other Members with such assistance as may reasonably be requested by such other Members in connection with the preparation of any Tax Return, any audit or other examination by any taxing authority, or any judicial or administrative proceedings relating to the liability for any taxes with respect to the operations of the Company and the Project Company or the ITC or depreciation deductions with respect to any Facility.

8.8. Financial Accounting. Each Member may report the transactions contemplated hereby for financial accounting purposes in such manner as the Member and its accountants may determine appropriate.

8.9. Legend. Until (a) the securities representing ownership of membership interests in the Company are effectively registered under the Securities Act of 1993, as amended, or (b) the holder of such securities delivers to the Company a written opinion of counsel of such holder to the effect that such legend is no longer necessary under the Securities Act of 1933, as amended, the Company will cause each certificate representing its securities to be stamped or otherwise imprinted with the following legend:

THE MEMBERSHIP INTEREST REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAW OF ANY STATE. SUCH MEMBERSHIP INTEREST MAY NOT BE SOLD OR TRANSFERRED UNLESS SUBSEQUENTLY REGISTERED OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE. THIS CERTIFICATE EVIDENCES AN INTEREST IN 2014 ESA HOLDCO, LLC AND SHALL BE A SECURITY GOVERNED BY ARTICLE 8 OF THE UNIFORM COMMERCIAL CODE AS IN EFFECT FROM TIME TO TIME IN THE STATES OF DELAWARE AND NEW YORK AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OTHER APPLICABLE JURISDICTION.

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8.10. Representations, Warranties and Covenants of the Class B Member. The Class B Member represents and warrants on the Effective Date and covenants as follows:

(a) The Class B Member is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware.

(b) The Class B Member has the full limited liability company right, power and authority to perform its obligations hereunder.

(c) This Agreement is a legal valid and binding obligation of the Class B Member enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and by general equitable principles.

(d) Such Member (or if it is a disregarded entity, or if it and its owner are disregarded entities, its owner or its owner’s owner) is and will remain a United States person within the meaning of Section 7701(a)(30) of the Code and is not, and will not become, subject to withholding under Section 1446 of the Code.

(e) That no part of the aggregate Capital Contributions made by such Member and used by such Member to acquire any Units, constitutes “plan assets” within the meaning of Department of Labor Reg. §2510.3-101, as modified by Section 3(42) of ERISA, of any “employee benefit plan” within the meaning of section 3(3) of ERISA that is subject to Part 4 of Subtitle B of Title I of ERISA, or other “benefit plan investor” (as defined in section 3(42) of ERISA) or assets allocated to any insurance company separate account or general account in which any such employee benefit plan or benefit plan investor (or related trust) has any interest.

(f) The Class B Member is and will remain for federal income tax purposes a corporation (and not an S corporation) that is neither a Disqualified Person nor a disregarded entity; provided, however, if, for federal income tax purposes, a Class B Member is a disregarded entity, then each beneficial owner of such Class B Member (or if such beneficial owner is a partnership or disregarded entity, then each beneficial owner of such partnership or disregarded entity) is and will remain an individual or corporation (and not an S corporation or disregarded entity) that is neither a Disqualified Person nor a disregarded entity for federal income tax purposes.

(g) The Class B Member will not take any action that would cause (or fail to take any action within its reasonable control, and not prohibited under any Financing Document or Principal Facility Document to prevent) (i) the Assets of the Company to become subject to the alternative depreciation system within the meaning of Section 168(g) of the Code or (B) “tax- exempt use property” within the meaning of Section 168(h) of the Code, or (ii) any portion of the basis of any Facility to be attributable to “qualified rehabilitation expenditures” within the meaning of Section 47(c)(2)(A) of the Code.

(h) The Class B Member shall not become a “related person” with respect to any lender under the Financing Documents for purposes of Treasury Regulation Section 1.752- 4(b).

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(i) Based upon its Knowledge of the facts pertaining to the transaction as of the date hereof, the Class B Member will not report the transaction to the IRS as a “reportable transaction” pursuant to Code Section 6111, the relevant Treasury Regulations and any other administrative authorities or pronouncements, in each case as they exist on the date hereof; provided, however, that if such facts or law change in a manner affecting the reportability of the transaction, this covenant shall not be applicable.

(j) Except to the extent the Company is or becomes a “related person” to any purchaser under any power purchase agreement for power delivered from a Facility for purposes of Sections 267 or 707 of the Code on account of a relationship with any Class A Member or any Affiliate thereof, the Company shall not become a “related person” to any purchaser under any power purchase agreement for power delivered from a Facility for purposes of Sections 267 or 707 of the Code.

8.11. Representations, Warranties and Covenants of the Class A Member. The Class A Member represents and warrants on the Effective Date and covenants to the Class B Member as follows:

(a) It is an entity duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.

(b) It has the full right, power and authority to perform its obligations hereunder.

(c) This Agreement is a legal valid and binding obligation of such Member enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and by general equitable principles.

(d) Such Member (or if it is a disregarded entity, or if it and its owner are disregarded entities, its owner or its owner’s owner) is and will remain a United States person within the meaning of Section 7701(a)(30) of the Code and is not, and will not become, subject to withholding under Section 1446 of the Code.

(e) The Class A Member will not take any action that would cause (or fail to take any action within its reasonable control, and not prohibited under any Financing Document or Principal Facility Document to prevent) (i) the Assets of the Company to become subject to the alternative depreciation system within the meaning of Section 168(g) of the Code or (B) “tax- exempt use property” within the meaning of Section 168(h) of the Code, or (ii) any portion of the basis of any Facility to be attributable to “qualified rehabilitation expenditures” within the meaning of Section 47(c)(2)(A) of the Code.

(f) The Class A Member is and will remain for federal income tax purposes a corporation (and not an S corporation) that is neither a Disqualified Person nor a disregarded entity; provided, however, if, for federal income tax purposes, a Class A Member is a disregarded entity, then each beneficial owner of such Class A Member (or if such beneficial owner is a partnership or disregarded entity, then each beneficial owner of such partnership or disregarded entity) is and will remain an individual or corporation (and not an S corporation or disregarded entity) that is neither a Disqualified Person nor a disregarded entity for federal income tax purposes.

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(g) The Class A Member shall not become a “related person” with respect to any lender under the Financing Documents for purposes of Treasury Regulation Section 1.752- 4(b).

(h) Based upon its Knowledge of the facts pertaining to the transaction as of the date hereof, it will not report the transaction to the IRS as a “reportable transaction” pursuant to Code Section 6111, the relevant Treasury Regulations and any other administrative authorities or pronouncements, in each case as they exist on the date hereof; provided, however, that if such facts or law change in a manner affecting the reportability of the transaction, this covenant shall not be applicable.

(i) That no part of the aggregate Capital Contributions made by such Member and used by such Member to acquire any Units, constitutes “plan assets” within the meaning of Department of Labor Reg. §2510.3-101, as modified by section 3(42) of ERISA, of any “employee benefit plan” within the meaning of section 3(3) of ERISA that is subject to Part 4 of Subtitle B of Title I of ERISA, or other “benefit plan investor” (as defined in section 3(42) of ERISA) or assets allocated to any insurance company separate account or general account in which any such employee benefit plan or benefit plan investor (or related trust) has any interest.

8.12. Survival. The representations, warranties and covenants herein shall be continuing agreements of the Members that made them and shall continue until the termination of this Agreement.

8.13. No Breach of Obligations. Notwithstanding anything to the contrary contained herein, in no event shall it be a breach of the Managing Member’s obligations pursuant to this Article VIII to deliver any report, financial statement or Tax Return within the specified timeframes to the extent any failure to comply with such obligations is attributable to either the failure of any Member to grant or object to any consent required pursuant to the terms hereof necessary to enable the Managing Member to comply with such obligations.

ARTICLE IX

TRANSFERS OF INTERESTS; PURCHASE OPTION

9.1. Transfer and Encumbrances of Membership Interests.

(a) General Restriction. A Member may not Transfer or create or allow an Encumbrance (other than a Permitted Encumbrance of the type described in clause (n) of such term’s definition) on all or any portion of its Membership Interest, except in strict accordance with this Section 9.1. References in this Agreement to Transfers or Encumbrances of a “Membership Interest” shall also refer to Transfers or Encumbrances of a portion of a Membership Interest. Any attempted Transfer or Encumbrance of any Membership Interest, other than in strict accordance with this Section 9.1, shall be, and is hereby declared, null and void ab initio. The Members agree that a breach of the provisions of this Section 9.1 may cause irreparable injury to the Company and to the other Members for which monetary damages (or other remedy at law) are inadequate in view of (i) the complexities and uncertainties in measuring the actual damages that would be sustained by reason of the failure of a Member to comply with such provision and (ii) the uniqueness of the Company’s business and the relationship among the Members. Accordingly, the Members agree that the provisions of this Section 9.1 may be enforced by specific performance.

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(b) Transfers of Membership Interests.

(i) General Provision. A Member may not Transfer all or any portion of its Membership Interest except by complying with the following requirements:

(A) No Transfer by the Class B Member may be made without the prior written consent of the Class A Member (such consent not to be unreasonably withheld). Any Transfer by the Class B Member shall be subject to the right of first Bid provisions of Section 9.1(d), and may not be made to any Disqualified Transferee.

(B) No Transfer by the Class A Member may be made without the prior written consent of the Class B Member (such consent not to be unreasonably withheld), provided that the Class A Member may make such a Transfer to any Affiliate of the Class A Member without the consent of the Class B Member.

(C) Any such Transfer must comply with the requirements of Section 9.1(b)(iii) and, if the Transferee is to be admitted as a Member, Section 9.1(b)(ii).

(ii) Admission of Transferee as a Member. A Transferee has the right to be admitted to the Company as a Member, with the Membership Interest so transferred to such Transferee, only if (A) the Transferring Member making the Transfer has granted the Transferee the Transferring Member’s entire Membership Interest, or, in the case of Transfer of a part of such Member’s Membership Interest, the express right to be so admitted; and (B) such Transfer is effected in strict compliance with this Section 9.1.

(iii) Requirements Applicable to All Transfer and Admissions. In addition to the requirements set forth in Sections 9.1(b)(i) and 9.1(b)(ii), any Transfer of a Membership Interest and any admission of a Transferee as a Member shall also be subject to the following requirements, and such Transfer (and admission, if applicable) shall not be effective unless such requirements are complied with:

(A) Transfer Documents. The following documents must be delivered to the Managing Member and each other Member:

(1) Notice. Written notice not less than ten (10) Business Days prior to the effective date of such Transfer.

(2) Transfer Instrument. An instrument implementing the Transfer.

(3) Ratification of this Agreement. An instrument, executed by the Transferring Member and its Transferee, containing the following information and agreements, to the extent they are not contained in the instrument described in Section 9.1(b)(iii)(A)(2): (1) the notice address of the Transferee; (2) if applicable, the Member Parent of the Transferee; (3)

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the allocations percentages as to each class of Membership Interest of the Transferring Member after the Transfer by such Transferring Member, and its Transferee (which must total the allocations percentages as to each class of Membership Interest of the Transferring Member before the Transfer); (4) the Transferee’s ratification of this Agreement and its confirmation that the representations and warranties in Article VIII applicable to it are true and correct with respect to it; (5) the Transferee’s ratification of the Facility Documents to which the Transferring Member is a party and agreement to be bound by them to the same extent that the Transferring Member was bound by them prior to the Transfer; (6) in the case of any Transfer of Class B Interests, the Transferee assumes the indemnity obligation set forth in Article XI; and (7) representations and warranties by the Transferring Member and its Transferee (aa) that the Transfer and admission is being made in accordance with Applicable Law, and (bb) that the conditions set forth in Sections 9.1(b)(iii)(B) and (C) have been satisfied.

(B) Applicable Laws; Securities Laws. Such Transfer does not violate any provision of Applicable Law, including, without limitation, applicable securities laws.

(C) Tax Consequences.

(1) Entity Classification. Such Transfer will not cause the Company to be classified as an entity other than a partnership (or cause the Company to be treated as a publicly traded partnership) for purposes of the Code.

(2) Tax-Exempt Use Property. Such Transfer will not cause the Assets of the Company to become (in whole or in part) “tax-exempt use property” within the meaning of Section 168(h) of the Code.

(3) Tax Disqualified Person. Such Transfer will not cause the recapture of any ITC with respect to any Member other than the transferring Member.

(4) Related Person. Such Transfer will not result in either (1) a Member being a “related person” with respect to any lender under the Financing Documents for purposes of Treasury Regulation Section 1.752-4(b), or (2) the Company being a “related person” to any purchaser under any power purchase agreement for power delivered from a Facility for purposes of Sections 267 or 707 of the Code.

(5) Opinion Requirement. The Transferring Member or the Transferee delivers to the Company not later than eight (8) Business Days prior to the effective date of the Transfer, a written opinion of nationally recognized tax counsel reasonably acceptable to the other Members that

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such Transfer will not cause any of (1) the recapture of any ITC claimed by the Company with respect to a Facility for any Member other than the transferring Member, (2) the Company to be classified as an entity other than a partnership (or cause the Company to be treated as a publicly traded partnership) for purposes of the Code or (3) the Company being a “related person” to any purchaser under any power purchase agreement for power delivered from a Facility for purposes of Sections 267 or 707 of the Code.

Solely for purposes of this Section 9.1(b)(iii)(C), any direct or indirect Transfer of an interest in a Member which would cause any event described in Section 9.1(b)(iii)(C) to occur with respect to a Membership Interest of that Member shall be treated as a Transfer by that Member of its Membership Interest.

(D) Payment of Expenses. The Transferring Member and its Transferee shall pay, or reimburse the Company and each other Member for, all reasonable costs and expenses incurred by the Company and such other Members in connection with the Transfer and admission, on or before the tenth day after the receipt by that Person of the Company’s or such other Member’s invoice for the amount due.

(E) No Release. No Transfer of a Membership Interest shall effect a release of the Transferring Member from any liabilities to the Company or the other Members arising from events occurring prior to or in connection with the Transfer.

(F) Consents and Permits. All permits, consents, approvals and licenses with respect to such Transfer shall have been obtained (including any approval by FERC that the Company, the Facility Company or any party to a Transfer requires).

(G) Investment Company Act. Such Transfer does not require the Company to register as an “investment company” under the Investment Company Act of 1940, as amended.

(iv) Change of Member Control. A Change of Member Control of the Class B Member must also comply with the requirements of this Section 9.1 (other than Section 9.1(b)(iii)(A)(2), Section 9.1(b)(iii)(A)(3)), for a Transfer of the Class B Member’s interest at such time.

(c) Encumbrances of Membership Interest. A Member may encumber its Membership Interest if the instrument creating such Encumbrance provides that any Transfer upon foreclosure of such Encumbrance (or Transfer in lieu of such foreclosure) must comply with the requirements of Sections 9.1(b)(i) and 9.1(b)(iii). Any such Encumbrance, and any Transfer upon foreclosure of such Encumbrance (or Transfer in lieu of such foreclosure) that complies with such requirements shall be a Permitted Encumbrance and a permitted transfer pursuant to this Section 9.1.

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(d) Right of First Bid. This Section 9.1(d) shall apply to any proposed voluntary Transfer of Membership Interests for cash or other tangible consideration under the conditions specified in Section 9.1(b)(i)(A). The Member proposing to make such a Transfer shall provide written notice of its intention to make a Transfer (a “Transfer Notice”) to all remaining Members. Upon receipt of a Transfer Notice, the Members entitled to receive the Transfer Notice shall have the right for a period of thirty (30) days to submit to the Transferring Member an unconditional offer to purchase, at the price and on the terms set forth in the notice of such offer (a “Bid”), all, but not less than all, of such Membership Interests in such proportions as the offering Members may agree, or, if they cannot agree, on a pro rata basis. Upon receipt of a proper Bid, the Member intending to Transfer its Membership Interests may, in its sole discretion, accept such Bid by notice to the offering Members within thirty (30) days of receipt of such Bid, whereupon the offering Members shall purchase such Membership Interests within five (5) Business Days following receipt of the acceptance of the Bid (or, in any event if later, the fifth Business Day after the receipt of all applicable regulatory and governmental approvals of the purchase). If the Member intending to Transfer its Membership Interests does not accept the Bid, such Member shall (i) so notify each Member who has submitted a Bid, and (ii) have the right for a period of one hundred eighty (180) days thereafter (or, in any event, if later, the fifth (5th) Business Day after the receipt of all applicable regulatory and governmental approvals of the purchase) to Transfer such Membership Interests at a price which is higher than the price set forth in the Bid and upon terms no less favorable in any material respect to such Member than the terms contained in the Bid; provided, that such Transfer shall be subject to any other applicable provisions of this Section 9.1.

9.2. Buyout Option.

(a) This Section 9.2 shall apply to any of the following events (each a “Buyout Event”):

(i) a Member becomes Bankrupt;

(ii) a Member dissolves and commences liquidation or winding up;

(iii) there occurs an event that makes it unlawful for the Member to continue to be a Member.

(b) In each case, the Member with respect to whom a Buyout Event has occurred is referred to herein as the “Affected Member”.

(c) If a Buyout Event occurs, then each of the other Members shall have the option to acquire the Membership Interest of the Affected Member (or to cause it to be acquired by a third party designated by the other Members) on an “as is, where is” basis without representations or warranties (other than ownership of the Membership Interests by the Affected Member, that no Encumbrance exists against the Membership Interests of the Affected Member other than those created pursuant to this Agreement and that the sale of such Membership Interests do not require any governmental approvals that have not been obtained or create any conflict with the Affected Member’s organizational documents), expressed or implied (and with the Members exercising such preferential right also being referred to herein as “Purchasing Members”) upon giving the Company and all other Members 60 days’ written notice of an election to exercise its buyout rights pursuant to this Section 9.2 (a “Buyout Exercise Notice”) during such period.

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(d) The purchase price (the “Buyout Price”) for a Membership Interest being purchased pursuant to this Section 9.2 shall be the Fair Market Value of such Membership Interest as to which a Buyout Event has occurred, as determined under the Appraisal Procedure.

(e) If an option to purchase is exercised in accordance with the other provisions of this Section 9.2, the closing of such purchase shall occur on the 60th day after the delivery of the Buyout Exercise Notice (or in any event, if later, the 30th day after the determination of the Fair Market Value pursuant to Section 9.2(d), or the fifth Business Day after the receipt of all applicable regulatory and governmental approvals to the purchase) and shall comply in all material respects with the requirements set forth in Section 9.1(b)(iii). Unless otherwise agreed among the Members, the Buyout Price shall be paid in cash at such closing.

(f) Upon the occurrence of a closing under Section 9.2(e), the following provisions shall apply to the Affected Member (at, and following, such time, a “Terminated Member”):

(i) The Terminated Member shall cease to be a Member immediately upon the occurrence of the closing.

(ii) The Terminated Member shall no longer be entitled to receive any distributions (including liquidating distributions) or allocations from the Company, and it shall not be entitled to exercise any voting or consent rights or to receive any further information (or access to information) from the Company (other than any required tax information).

(iii) The Terminated Member must pay to the Company, immediately upon the occurrence of the closing, all amounts owed to the Company by such Terminated Member.

(iv) The Terminated Member shall remain obligated for all liabilities it may have under this Agreement or otherwise with respect to the Company that accrue prior to the closing.

(v) The Membership Interest, including the Capital Account balance attributable thereto, of the Terminated Member shall be allocated among the Purchasing Members in the proportion of the total Buyout Price paid by each Purchasing Member.

ARTICLE X

DISSOLUTION, LIQUIDATION AND TERMINATION

10.1. Dissolution.

(a) The Company will dissolve and its business and affairs will be wound up on the first to occur of the following (the “Liquidating Events”):

(i) The unanimous written consent of the Members;

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(ii) Any other event upon the occurrence of which dissolution is required by the Act (which the Act does not allow to be waived by agreement of the Members), unless, to the extent permitted by the Act, Members (other than the Member with respect to which such event occurs) unanimously elect in writing, within 90 days of the date such event described in this Section 10.1(a)(ii) occurs, to continue the business of the Company, in which case the Company will not dissolve; or Assets.

(iii) The Transfer by the Company of all or substantially all of its

(b) Each Member agrees that, to the fullest extent permitted by Applicable Law, it will not dissolve itself or the Company or withdraw from the Company except as set forth in Section 10.1(a).

10.2. Liquidation and Termination.

(a) On dissolution of the Company, the Managing Member shall act as liquidator or may appoint one or more other Persons as liquidator. The liquidator shall proceed diligently to wind up the affairs of the Company and make final distributions as provided in this Agreement. The costs of liquidation will be borne as a Company expense. Until final distribution, the liquidator shall continue to operate the Company with all of the power and authority of the Managing Member. The steps to be accomplished by the liquidator are as follows:

(i) As promptly as reasonably practicable after dissolution and again after final liquidation, the liquidator shall cause a proper accounting to be made by the Certified Public Accountants of the Company’s and the Facility Company’s Assets, liabilities, and operations through the last day of the calendar month in which the dissolution occurs or the final liquidation is completed, as applicable;

(ii) The liquidator shall pay from Company funds all of the debts and liabilities of the Company and the Facility Company or otherwise make adequate provision for them (including the establishment of a cash escrow fund for contingent, conditional or unmatured liabilities in such amount and for such term as the liquidator may reasonably determine);

(iii) with respect to the remaining Assets of the Company:

(A) the liquidator shall use all commercially reasonable efforts to obtain the best possible price and may sell any or all of the Company’s, and the Facility Company’s Assets (subject to any and all restrictions to which the Company or the Facility Company is subject, including restrictions under Applicable Laws or any Permitted Encumbrances), including to the Members at such price, but in no event lower than the Fair Market Value thereof; and

(B) with respect to all of the Company’s or the Facility Company’s Assets that have not been sold, the Values of such Assets shall be determined pursuant to subparagraph (ii) of the definition of Value;

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(iv) items of income, gain, loss and deduction (including any such items attributable to the disposition of Assets pursuant to Section 10.2(a)(iii)) for the Taxable Year during which the distribution of liquidation proceeds occurs shall be allocated as follows:

(A) first, after giving effect to the special allocations in Section 4.3, items of gross income, gain and credit arising in connection with the liquidation shall first be allocated to each Member having a negative balance in its Capital Account, in the proportion that such negative balance bears to the total negative balances in the Capital Accounts of all Members, until each Member has been allocated items of gross income and gain equal to any such negative balance in its Capital Account and such deficit balance has thereby been eliminated;

(B) then, any remaining items of income or gain shall be allocated among the Members until the aggregate positive Capital Account balances of the Class B Members and the aggregate positive Capital Account balances of the Class A Members are in proportion to the percentages set forth in Section 4.2(a); and;

(C) finally, any remaining items of income or gain shall be allocated among the Members, 90% to the Class A Members pro rata according to their respective Class A Units and 10% to the Class B Members pro rata according to their respective Class B Units.

(v) After giving effect to all allocations (including those under Section 4.2 and Sections 10.2(a)(iv)), all distributions (including those under Section 5.1) and all Capital Contributions (including those under Section 3.1 and Section 3.2) for all periods, all remaining cash and property (including any Available Cash Flow and liquidation proceeds) shall be distributed to the Members in accordance with the positive balances in their Capital Accounts; and

(vi) Any distribution to the Members in respect of their Capital Accounts pursuant to this Section 10.2 shall be made by the end of the Company taxable year in which a Liquidating Event occurs (or if later, within 90 days after the date of such Liquidating Event).

(b) The distribution of cash or property to a Member in accordance with the provisions of this Section 10.2 constitutes a complete return to the Member of its Capital Contributions and a complete distribution to the Member on account of its Membership Interest and all the Company’s property and constitutes a compromise to which all Members have consented pursuant to Section 18-502(b) of the Act.

10.3. Deficit Capital Accounts. Except as provided in this Section 10.3, no Member shall be obligated to contribute cash to restore a deficit in its Capital Account. Notwithstanding the foregoing, each Member shall have the right by written notice signed by such Member to the Company (with a copy to all other Members) (the “DRO Notice”), at any time and in its sole discretion, to elect to undertake or increase the amount of, a limited deficit restoration obligation,

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the amount of which shall be specified in such DRO Notice (which amount is the “DRO Limit”). Nothing contained in this Agreement shall obligate any Member to issue a DRO Notice. A DRO Notice given by a Member pursuant hereto shall be deemed to constitute a duly adopted amendment to this Agreement without any further action by any party, and the corresponding limited deficit restoration obligation for such Member shall be considered part of a Consistent Return for purposes this Agreement. Further, upon the earlier of (a) the point in time at which the absolute value of the deficit balance in a Member’s Capital Account equals or exceeds its DRO Limit and (b) the end of the first Taxable Year during which the absolute value of the deficit balance in a Member’s Capital Account as of the end of such Taxable Year is less than the absolute value of the deficit balance in such Member’s Capital Account as of the end of the immediately preceding Taxable Year, such Member’s DRO Limit shall be automatically decreased (but not increased) at the end of such Taxable Year and each subsequent Taxable Year to an amount equal to the excess, if any, of (1) the absolute value of the deficit balance (if any) in such Member’s Capital Account at the end of such Taxable Year (prior to taking into account such reduction) over (2) the amount that such Member is deemed to be obligated to restore pursuant to the penultimate sentences in Treasury Regulation Sections 1.704-2(g)(1) and 1.704- 2(i)(5) as of the time of such reduction. In the event there is a “liquidation” of a Member’s interest in the Facility Company within the meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(g), after giving effect to all allocations (including, for the avoidance of doubt, such Member’s share of any Facility Company Minimum Gain and Member Nonrecourse Debt Minimum Gain and the allocations pursuant to Section 10.2), all distributions and all Capital Contributions for all periods, if that Member has a deficit balance in its Capital Account, calculated in accordance with this Agreement and without regard to such Members’ obligation pursuant to this Section 10.3 (except to the extent disregarding such obligation in calculating such amount is inconsistent with law, in which case such Member’s obligation pursuant to this Section 10.3 shall be taken into account in such calculation), then such Member shall be obligated to pay to the Company cash in an amount equal to such deficit balance by the end of the Taxable Year of the Company during which the liquidation of the Facility Company occurs, or if later, within ninety (90) days after the date of such liquidation; provided, however, that the restoration obligation of a Member shall not exceed such Member’s then DRO Limit.

10.4. Termination. On completion of the satisfaction of liabilities and distribution of Assets as provided in this Agreement, the Managing Member (or such other Person or Persons as the Act may require or permit) shall cause the cancellation of the Delaware Certificate and any filings made as provided in Section 2.1 and shall take such other actions as may be necessary to terminate the Company.

ARTICLE XI

INDEMNIFICATION

11.1. Indemnification of Class A Investor Group by the Class B Member. Without in any way limiting any rights the Class A Equity Investor has under the Bloom Guarantee, and subject to the terms and conditions of this Article XI, the Class B Member hereby indemnifies, defends, reimburses and holds harmless the Class A Equity Investor and its parent or subsidiary companies, partners and other Affiliates, and their respective officers, directors, employees, attorneys, contractors and agents (collectively, the “Class A Investor Group”), from and against any and all Damages asserted against, resulting to, imposed upon, or incurred by the Class A

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Investor Group, directly or indirectly, by reason of or resulting from any breach by the Class B Member (whether in its capacity as the Class B Member, the Managing Member, the Tax Matters Member or otherwise), the Company or the Administrator or their Affiliates of their respective representations and warranties or covenants contained in this Agreement or any other Transaction Document (collectively, “Class A Investor Claims”). To the extent that any such Damages relating to a Class A Investor Claim remain unpaid after such claim has been made therefor pursuant to this Article XI, any distributions otherwise payable to the Class B Member under this Agreement shall be used to satisfy the obligations of the Class B Member, the Company or their Affiliates, as applicable, hereunder in accordance with Section 5.4.

11.2. Indemnification of Class B Investor Group by the Class A Member. Subject to the terms and conditions of this Article XI, the Class A Member hereby indemnifies, defends, reimburses and holds harmless the Class B Equity Investor and its parent or subsidiary companies, partners and other Affiliates, and their respective officers, directors, employees, attorneys, contractors and agents (collectively, the “Class B Investor Group”), from and against any and all Damages asserted against, resulting to, imposed upon, or incurred by the Class B Investor Group, directly or indirectly, by reason of or resulting from (a) any breach by the Class A Investor Group of their respective representations and warranties or covenants contained in this Agreement, any other relevant Transaction Document (collectively, “Class B Investor Claims”). To the extent that any such Damages relating to a Class B Investor Claim remain unpaid after such claim has been made therefor pursuant to this Article XI, any distributions otherwise payable to a Class A Member under this Agreement shall be used to satisfy the obligations of such Class A Member, the Company or their Affiliates, as applicable, hereunder in accordance with Section 5.4.

11.3. Brokers. Each Member agrees to indemnify and hold harmless the other Member from and against any and all claims, obligations, actions, liabilities, losses, damages, costs or expenses (including court costs and attorneys’ fees) of any kind or character arising out of or resulting from any agreement, arrangement or understanding alleged to have been made by, or on behalf of, the Company or the Administrator or their Affiliates with any broker or finder in connection with this Agreement or the transaction contemplated hereby.

11.4. Limitation on Liability. The indemnification obligations of the parties hereto pursuant to this Article XI shall be subject to the following limitations:

(a) The amount of Damages required to be paid by any party to indemnify any other party pursuant to this Article XI as a result of any Class A Investor Claim or Class B Investor Claim shall be reduced to the extent of any amounts actually received by such other party after the Effective Date pursuant to (i) the Equity Capital Contribution Agreement, (ii) the Bloom Guarantee, and (iii) the terms of the insurance policies (if any) obtained and maintained by the Company, the Facility Company, the Class A Equity Investor or the Class B Equity Investor or any Affiliate thereof covering such claim. In the event an indemnified party or any of its Affiliates receives proceeds from indemnification under the Equity Capital Contribution Agreement, the Bloom Guarantee, or any insurance policy with respect to a Class A Investor Claim or Class B Investor Claim for which it previously received indemnification payments, such indemnified party shall promptly pay to the indemnifying party such proceeds to the extent such proceeds and the previously paid indemnification payments, in the aggregate, exceed the amount of the applicable Class A Investor Claim or Class B Investor Claim.

39

(b) Damages paid pursuant to this Article XI shall, to the maximum extent permitted under Applicable Law, be treated as an adjustment to the capital contributions of the Members (or otherwise as a non-taxable reimbursement, contribution, or return of capital, as the case may be). To the extent any Damages paid pursuant to this Article XI are includible in the recipient’s gross income, as determined by agreement of the parties, or if there is no agreement, by an opinion of a nationally-recognized tax counsel selected jointly by the parties at a “should” level of comfort that such amount is includable as income of the recipient, solely to the extent the tax liability with respect to the inclusion of such payment of Damages in the income of the recipient is greater than the tax liability of the recipient would have been if there had been no breach giving rise to the payment of Damages, such payment will be grossed-up and paid on an after-tax basis (assuming the then-highest highest marginal federal income tax rate then applicable to corporations). In the event an indemnified party is entitled to claim an item of loss or deduction, credit or other tax benefit with respect to an item that gives rise to the receipt of an indemnity payment, such tax benefit shall be taken into account for purposes of determining the amount of the indemnification payment and, to the extent payment has been made to an indemnified party prior to the period in which such tax benefit was claimed, the indemnified party shall promptly repay the indemnifying party an amount equal to the present value of such loss or deduction, credit or other tax benefit (in each case, assuming then-highest marginal federal income tax rate then applicable to corporations).

(c) The indemnification obligations of the parties pursuant to this Agreement shall be limited to actual Damages and shall not include special, incidental, consequential, indirect, punitive, or exemplary Damages (including lost profits and damages for a lost opportunity); provided, that any incidental, consequential, indirect, punitive, or exemplary Damages recovered by a third party (including Governmental Entities) against a Person entitled to indemnity pursuant to this Article XI shall be included in the Damages recoverable under such indemnity; and provided, further, that the loss of the ITC shall not be considered as special, incidental, consequential, indirect, punitive or exemplary damages and shall be included in the Damages recoverable under this indemnity.

(d) No member of the Class A Investor Group or the Class B Investor Group may receive compensation for Damages suffered by such Person to the extent that such Damages are attributable to (a) the gross negligence or willful misconduct of such Person or (b) the breach of any representation or warranty by such Person in this Agreement or any other Investment Document to the extent such representation or warranty was false when made.

11.5. Procedure for Indemnification. After receipt by an indemnified party under Section 11.1, Section 11.2, Section 11.3 or Section 11.4 of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party under such Section, give written notice to the indemnifying party of the commencement thereof. The failure to promptly notify the indemnifying party shall not relieve it of any liability that it may have to any indemnified party with respect to such action; provided that, to the extent that any such failure to provide prompt notice is responsible for an increase in the indemnity obligations of the indemnifying party, the indemnifying party shall not be responsible for any such increase. In case any such action shall be brought against an

40

indemnified party and it shall give written notice to the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it may wish, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party. If the indemnifying party elects to assume the defense of such action, the indemnified party shall have the right to employ separate counsel at its own expense and to participate in the defense thereof. If the indemnifying party elects not to assume (or fails to assume) the defense of such action, the indemnified party shall be entitled to assume the defense of such action with counsel of its own choice, at the expense of the indemnifying party. If the action is asserted against both the indemnifying party and the indemnified party and (i) there is a conflict of interests which renders it inappropriate for the same counsel to represent both the indemnifying party and the indemnified party or (ii) such action could reasonably be expected to result in the imposition of criminal liability, the indemnifying party shall be responsible for paying for separate counsel for the indemnified party; provided, however, that if there is more than one indemnified party and it is practical for all such parties to be represented by common counsel, the indemnifying party shall not be responsible for paying for more than one separate firm of attorneys to represent the indemnified parties, regardless of the number of indemnified parties. If the indemnifying party elects to assume the defense of such action, (a) no compromise or settlement thereof may be effected by the indemnifying party without the indemnified party’s written consent (which shall not be unreasonably withheld) unless the sole relief provided is monetary damages that are paid in full by the indemnifying party and (b) the indemnifying party shall have no liability with respect to any compromise or settlement thereof effected without its written consent (which shall not be unreasonably withheld) unless the indemnifying party has failed to defend such indemnified party against such action. If this Section 11.5 conflicts with the contest provisions in Section 8.7 with respect to any contest or claim relating to taxes, Section 8.7 shall govern.

11.6. Exclusivity. Subject to Section 5.4, the parties hereto agree that, in relation to any breach, default, or nonperformance of any representation, warranty, covenant, or agreement made or entered into by the Class B Member (whether in its capacity as the Class B Member, the Managing Member, the Tax Matters Member or otherwise) pursuant to this Agreement, any other Investment Document, the ASA or any certificate, instrument, or document delivered pursuant hereto or thereto or arising out of the transactions contemplated herein or therein, the only relief and remedy available to the other parties hereto in respect of said breach, default, or nonperformance shall be Damages, but only to the extent properly claimable hereunder and as limited pursuant to this Article XI or otherwise hereunder.

11.7. No Right of Contribution. After the Effective Date, the Company shall have no liability to indemnify the Class B Equity Investor on account of the breach of any representation or warranty or the nonfulfillment of any covenant or agreement of the Company; and the Class B Equity Investor shall not have any right of contribution against the Company.

11.8. Entire Agreement. Article XI of this Agreement constitutes the entire agreement and understanding of the parties with respect to indemnification hereunder.

41

ARTICLE XII

GENERAL PROVISIONS

12.1. Offset. Whenever the Company (or another Person on behalf of the Company) is to pay or distribute any sum to any Member, any amounts then owed by such Member or its Affiliate to the Company (as determined in writing to the satisfaction of the other Members) shall be deducted from such sum before payment.

12.2. Notices. Any notice or other communication to be given hereunder shall be in writing and shall be delivered by hand (including, without limitation, by express courier against written receipt) or sent by registered prepaid first class mail, facsimile copy or by email transmission to the persons or addresses specified below (or such other Person or address as a Member may previously have notified all other Parties in writing for that purpose). A notice or other communication shall be deemed to have been served when delivered by hand at that address or received by email or facsimile copy (provided the sender can and does provide evidence of successful transmission), or, if sent by registered prepaid first class mail as aforesaid, on the date delivered. Any notice or other communication received on a day that is not a Business Day or later than 5:00 p.m. on a Business Day shall be deemed to be received on the next Business Day. The names and addresses for the service of notices referred to in this Section 12.2 are:

If to the Class B Member, to:

Clean Technologies 2014, LLC

c/o Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, CA 94089-1137

Attention: [***]

Telephone: [***]

Facsimile: [***]

Email: [***]

If to the Investor Member, to:

Exelon Generation Company, LLC

10 S. Dearborn St., 52nd Floor

Chicago, IL 60603

Attention: [***]

with a copy to:

Exelon Business Services Company, LLC

10 South Dearborn St., 49th Floor

Chicago, IL 60603

Attn: [***]

Any Party may change the address or number to which notices to such Party are to be delivered by providing notice of such change to each other Party in the manner set forth above. Any notice to be provided to the Company shall be provided to the Managing Member at the address set forth in this Section.

[***] Confidential Treatment Requested

42

12.3. Counterparts. This Agreement may be executed in one or more counterparts, each bearing the signatures of one or more Members. Each such counterpart shall be considered an original and all of such counterparts shall constitute a single agreement binding all the parties as if all had signed a single document. Signatures of the parties hereto transmitted by facsimile or portable document format (PDF) shall be deemed to be their original signatures for all purposes.

12.4. Governing Law and Severability. This Agreement shall be deemed made and prepared and shall be construed and interpreted in accordance with the internal laws of the State of Delaware, without regard to the principles of conflicts of laws thereof which may require the application of the law of another jurisdiction. If any provision of this Agreement shall be contrary to any other Applicable Law, at the present time or in the future, such provision shall be deemed null and void, but this shall not affect the legality of the remaining provisions of this Agreement. This Agreement shall be deemed to be modified and amended so as to be in compliance with Applicable Law and this Agreement shall then be construed in such a way as will best serve the intention of the parties at the time of the execution of this Agreement.

12.5. Entire Agreement. This Agreement, including any Schedules and Exhibits, together with the other Investment Documents, constitutes the entire agreement among the Members regarding the terms and operations of the Company, except as amended in writing pursuant to the requirements of this Agreement, and supersedes all prior and contemporaneous agreements, statements, understandings and representations of the parties.

12.6. Effect of Waiver or Consent. A waiver or consent, express or implied, to or of any breach or default by any Person in the performance by that Person of its obligations under this Agreement, or any Investment Document is not a consent or waiver to or of any other breach or default in the performance by that Person of the same or any other obligations of that Person under this Agreement, or any Investment Document. Failure on the part of a Person to complain of any act of any Person or to declare any Person in default with respect to its obligations under this Agreement, or any Investment Document, irrespective of how long that failure continues, does not constitute a waiver by that Person of its rights with respect to that default until the applicable statute of limitations period has run.

12.7. Amendment or Modification. Except as otherwise provided herein, this Agreement may be amended or modified from time to time only by a written instrument executed by all Members. Notwithstanding anything contained herein to the contrary, for so long as any indebtedness or Obligations remain outstanding under the Financing Documents, each Member hereby acknowledges that the consent of certain parties to the Financing Documents, such as the Facility Lenders, may be required in connection with the Facility Company taking certain actions. Any such consent shall be obtained in writing from the Facility Lenders and any other required parties to the Financing Documents as and when required pursuant to the terms of the Financing Documents.

43

12.8. Binding Effect. Subject to the restrictions on Transfers set forth in this Agreement, this Agreement is binding on and inures to the benefit of the Members and their respective legal representatives, permitted successors and permitted assigns.

12.9. Further Assurances. In connection with this Agreement and the transactions contemplated hereby, each Member shall execute and deliver any additional documents and instruments and perform any additional acts that may be necessary or appropriate to effectuate and perform the provisions of this Agreement and those transactions contemplated here, including all filing, recording, publishing and other acts appropriate to comply with all requirements for the operation of a limited liability company under the laws of all jurisdictions where the Company shall conduct business.

12.10. Jurisdiction; Service of Process. Each of the parties hereto hereby irrevocably consents to the non-exclusive jurisdiction of the courts of the State of New York and of any federal court located in the Southern District of New York in connection with any suit, action or other proceeding arising out of or relating to this Agreement or the transactions contemplated hereby; agrees to waive any objection to venue in the State and County of New York; and agrees that, to the extent permitted by law, service of process in connection with any such proceeding may be effected by mailing in the same manner provided in Section 11.3 hereof.

12.11. Limitation on Liability. NO CLAIMS SHALL BE MADE BY ANY PARTY HERETO OR ANY OF ITS AFFILIATES, DIRECTORS, EMPLOYEES, ATTORNEYS OR AGENTS AGAINST ANY OTHER PARTY HERETO OR ANY OF ITS AFFILIATES, DIRECTORS, EMPLOYEES, ATTORNEYS OR AGENTS FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (WHETHER OR NOT THE CLAIM THEREFORE IS BASED ON CONTRACT, TORT, DUTY IMPOSED BY LAW OR OTHERWISE), IN CONNECTION WITH, ARISING OUT OF OR IN ANY WAY RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR THE OTHER INVESTMENT DOCUMENTS OR ANY ACT OR OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH; AND EACH PARTY HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE UPON ANY SUCH CLAIM FOR ANY SUCH SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR, PROVIDED, HOWEVER, THAT AT ANY TIME (a) IF AN ITC IS RECAPTURED FROM THE FACILITY COMPANY BECAUSE THE CLASS B MEMBER OR ITS AFFILIATE, OR ANY FACILITY ENTITY BREACHES ANY REPRESENTATION, WARRANTY OR COVENANT, THE VALUE OF THE ITC THAT IS RECAPTURED SHALL NOT CONSTITUTE CONSEQUENTIAL DAMAGES AND (b) IF AN ITC IS RECAPTURED FROM THE FACILITY COMPANY BECAUSE THE CLASS A MEMBER OR ITS AFFILIATE BREACHES ANY REPRESENTATION, WARRANTY OR COVENANT, THE VALUE OF THE ITC THAT IS RECAPTURED SHALL NOT CONSTITUTE CONSEQUENTIAL DAMAGES.

THE OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT ARE OBLIGATIONS OF THE PARTIES ONLY AND NO RECOURSE SHALL BE AVAILABLE UNDER THIS AGREEMENT AGAINST ANY OFFICER, DIRECTOR, MANAGER, MEMBER, PARTNER, OR AFFILIATE OF ANY PARTY.

44

[SIGNATURE PAGE FOLLOWS]

45

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.

EXELON GENERATION COMPANY, LLC

By:

Name:

Title:

CLEAN TECHNOLOGIES 2014, LLC

By:

Name:

Title:

EXHIBIT A

EXECUTION DATE CONTRIBUTIONS MADE

	Class A Equity Investor	Amount			Capital Account Balance			Units	Percentage of Class A Interest Owned
Effective Date	Exelon Generation Company, LLC	$	[	]	$	[	]	[    ] Class A Units		100	%
	Class B Equity Investor	Amount			Capital Account Balance			Units	Percentage of Class B Interest Owned
Effective Date	Clean Technologies 2014, LLC	$	[	]	$	[	]	100 Class B Units		100	%

EXHIBIT B

FORM OF MEMBERSHIP CERTIFICATE

THE MEMBERSHIP INTEREST REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAW OF ANY STATE. SUCH MEMBERSHIP INTEREST MAY NOT BE SOLD OR TRANSFERRED UNLESS SUBSEQUENTLY REGISTERED OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE. THIS CERTIFICATE EVIDENCES AN INTEREST IN 2014 ESA HOLDCO, LLC AND SHALL BE A SECURITY GOVERNED BY ARTICLE 8 OF THE UNIFORM COMMERCIAL CODE AS IN EFFECT FROM TIME TO TIME IN THE STATES OF DELAWARE AND NEW YORK AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OTHER APPLICABLE JURISDICTION.

CERTIFICATE FOR MEMBERSHIP INTEREST

IN

2014 ESA HOLDCO, LLC

Certificate No. [A][B] – [    ]

The undersigned, as the Managing Member of 2014 ESA HOLDCO, LLC, a Delaware limited liability company (the “Company”), hereby certifies that [                     a,                     ], is the holder of a Class [    ] Interest in the Company to the extent and as described in Exhibit A to the Amended and Restated Operating Agreement of the Company, effective as of [            ], 2014, as amended and restated from time to time (the “Agreement”) (a copy of which is on file at the principal office of the Company). All capitalized terms not otherwise defined herein have the meanings ascribed to them in the Agreement.

This Certificate is not negotiable or transferable except by operation of law, or as otherwise provided in the Agreement, and any such transfer will be valid only upon delivery of this Certificate, together with an assignment in a form sufficient to convey an interest in a limited liability company pursuant to the Delaware Limited Liability Company Act, as it may be amended and in effect from time to time, or any successor statute thereto, duly executed, to the Transferee Member of the Company.

Dated: [                    ]

CLEAN TECHNOLOGIES 2014, LLC

By:

Name:

Title:

Exhibit B - Page 1

ANNEX 7

Form of Independent Engineer Use of Work Product Agreement

See Attached.

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

Form of Agreement with Leidos for

Use of Work Products in connection with

PPA IV Fuel Cell Project

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***] Confidential Treatment Requested

Form of Agreement with Leidos for

Use of Work Products in connection with

PPA IV Fuel Cell

[***]

[***]

[***]

[***]

[***]

[***]

ACKNOWLEDGED & AGREED

EXELON CORPORATION

Signature

Name

Title

Date

[***] Confidential Treatment Requested

Form of Agreement with Leidos for

Use of Work Products in connection with

PPA IV Fuel Cell

LEIDOS ENGINEERING, LLC

Signature

Name

Title

Date

3

ANNEX 8

Affiliate Transactions

(terms as defined in this Agreement, unless noted otherwise)

1. A&R PUMA

2. ASA

3. Facility Company LLC Agreement

4. P. O. Number 001 by and between Seller and Project Company, dated as of June 24, 2014

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

ANNEX 9

Tax Matters

None.

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

ANNEX 10

Forms of Financing Documents

See Execution Versions.

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

EX-10

Exhibit 10.23

Execution Version

FIRST AMENDMENT TO

EQUITY CAPITAL CONTRIBUTION AGREEMENT

THIS FIRST AMENDMENT TO EQUITY CAPITAL CONTRIBUTION AGREEMENT (this “Amendment”) is effective as of March 16, 2015, by and between Exelon Generation Company, LLC, a Pennsylvania limited liability company (together with its permitted successors and assigns, the “Investor”), and Clean Technologies 2014, LLC, a Delaware limited liability company (the “Bloom Member”). The Investor and the Bloom Member shall be referred to individually herein as a “Party” and collectively as the “Parties”. Capitalized terms used herein and not otherwise defined have the meanings provided in the Equity Capital Contribution Agreement, dated as of July 18, 2014, by and between the Parties (the “ECCA”).

RECITALS

A.    WHEREAS, the Parties desire to amend the ECCA as more fully set forth in this Amendment.

NOW, THEREFORE, in consideration of the mutual covenants set forth in this Amendment, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree to amend the ECCA as follows:

AGREEMENT

1. Amendment to the ECCA.

Section 3.19 is deleted in its entirety and replaced with the following text:

“3.19 PUHCA and FPA Status. The Company has obtained an exemption or waiver of the FERC’s regulations under PUHCA regarding accounting, record-retention and reporting requirements of 18 C.F.R. §§ 366.21, 366.22, and 366.23. The Facility Company has not sold and will not sell electric energy, unless such sales are (1) exclusively to retail users; or (2) pursuant to a State-approved net metering program, provided that the amount of electricity sold during any billing cycle has been or will be no greater than the amount of electricity purchased in the same billing cycle or, if such electricity sold exceeds such amount, the Facility Company has obtained authorization from FERC to make sales at wholesale of electric energy, capacity and ancillary services at market-based rates pursuant to Section 205 of the FPA, in which case the Facility Company will be subject to applicable regulatory requirements with applicable exemptions and waivers of utility regulation typically extended by FERC to an entity that sells electric energy, capacity and ancillary services at wholesale at market-based rates.

2. Ratification. The ECCA, as amended hereby, is in all respects ratified and confirmed and shall be and remain in full force and effect. All references to the ECCA in any other document or instrument shall be deemed to mean such ECCA as amended by this Amendment.

3. Amendments. No amendment, modification, termination or waiver of any provision of this Amendment shall be effective unless the same shall be in writing and duly executed by the Parties.

4. Enforceability. This Amendment shall be enforceable by and binding upon and shall inure to the benefit of the Parties hereto and their respective successors and assigns.

5. Governing Law. THIS AMENDMENT SHALL BE DEEMED MADE AND PREPARED AND SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS THEREOF WHICH MAY REQUIRE THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).

6. Counterparts and Facsimile Execution. This Amendment may be executed and delivered (including by “portable document format”) in one or more counterparts, all of which shall be considered one and the same and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to each other Party, it being understood that all Parties need not sign the same counterpart. Signatures of the Parties transmitted by electronic mail shall be deemed to be their original signatures for all purposes.

7. Severability. If any term or other provision of this Amendment is invalid, illegal, or incapable of being enforced by any rule of applicable law, or public policy, all other terms and provisions of this Amendment shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated herein are not affected in any manner materially adverse to any Party.

[Remainder of page intentionally left blank.]

2

IN WITNESS WHEREOF, each Party has caused this Amendment to be signed on its behalf effective as of the date first written above.

EXELON GENERATION COMPANY, LLC
By:	/s/ Kyle B. Crowley
Name:	Kyle B. Crowley
Title:	Vice President - Exelon Generation Company Sr. Vice President and Chief Development Officer - Exelon Corporation

[Signature Page to First Amendment to Equity Capital Contribution Agreement]

CLEAN TECHNOLOGIES 2014, LLC
By:	/s/ William E. Brockenborough
Name:	William E. Brockenborough
Title:	Vice President

[Signature Page to First Amendment to Equity Capital Contribution Agreement]

EX-10

Exhibit 10.24

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Execution

AMENDMENT NO. 2

EQUITY CAPITAL CONTRIBUTION AGREEMENT

This AMENDMENT NO. 2 TO EQUITY CAPITAL CONTRIBUTION AGREEMENT (this “Amendment”), is entered into effective as of September 30, 2015 (“Effective Date”) by and between Clean Technologies 2014, LLC, a Delaware limited liability company (the “Clean Technologies”) Exelon Generation Company, LLC (“Exelon”, and together with Clean Technologies, the “Parties”). Capitalized terms used and not otherwise defined herein have the meanings given to them in the ECCA (as defined below). All Section references, unless otherwise indicated, shall be references to Sections of the ECCA and the rules of interpretation set forth in the ECCA apply as if set forth herein.

RECITALS

WHEREAS, reference is hereby made to that certain Equity Capital Contribution Agreement, dated as of July 18, 2014, by and between Clean Technologies and Exelon, as amended by that Amendment No. 1 to Equity Capital Contribution Agreement, dated as of March 16, 2015 by and between Clean Technologies and Exelon (as amended, the “ECCA”);

WHEREAS, the Company wishes to hereby amend the ECCA in order to extend the “Funding Date Deadline” set forth therein; and

WHEREAS, as of the Effective Date, the Company has also entered into an Amendment No. 2 to the Note Purchase Agreement, by and between the Company and its noteholders, pursuant to which the Funding Date Deadline is extended for purposes of the Note Purchase Agreement.

NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, and for other consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto hereby agree as follows:

AGREEMENT

Section 1. Amendment to the ECCA. The following definition of the capitalized term “Funding Date Deadline” is hereby amended and restated in its entirety to read as follows:

“Funding Date Deadline” means March 31, 2016.

Section 2. Consent to Amendment of Note Purchase Agreement. Exelon hereby consents to the execution and delivery by 2014 ESA Project Company, LLC, an indirectly-owned subsidiary of Exelon, of that certain Amendment No. 2 to Note Purchase Agreement, attached as Exhibit A hereto, for all purposes, including without limitation pursuant to Section 6.2 of that certain Amended and Restated Operating Agreement of 2014 ESA HoldCo, LLC dated as of September 24, 2014.

Section 3. No Other Changes or Waivers. Except as expressly provided or contemplated by this Amendment, all of the terms, conditions and provisions of the ECCA remain unaltered and in full force and effect. Except as specifically provided herein, the execution, delivery and performance of this Amendment shall not be deemed as a waiver of any other matters or any future matters. The ECCA and this Amendment shall be read and construed as one instrument.

Section 4. Headings. The section and paragraph headings contained in this Amendment are for reference purposes only and shall not affect in any way the meaning and interpretation of this Amendment.

Section 5. Governing Law. THIS AMENDMENT SHALL BE DEEMED MADE AND PREPARED AND SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS THEREOF WHICH MAY REQUIRE THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).

Section 6. Severability. Any provision of this Amendment that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, (provided the substance of the agreement between the Parties is not thereby materially altered) and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by Applicable Law, the Parties hereto hereby waive any provision of law which renders any provision hereof prohibited or unenforceable in any respect.

Section 7. Counterparts. This Agreement may be executed in counterparts, each of which shall be an original, but each of which, when taken together, shall constitute one and the same instrument. Signatures of the Parties hereto transmitted by facsimile or portable document format (PDF) shall be deemed to be their original signatures for all purposes.

[The remainder of this page intentionally left blank]

2

IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed by their respective officers thereunto duly authorized as of the Effective Date.

CLEAN TECHNOLOGIES 2014, LLC
By:	/s/ William E. Brockenborough
Name:	William E. Brockenborough
Title:	Vice President
EXELON GENERATION COMPANY, LLC
By:	/s/ Gary D. Fromer
Name:	Gary D. Fromer
Title:	Senior Vice President

SIGNATURE PAGE TO AMENDMENT NO. 2 TO ECCA

EXHIBIT A

AMENDMENT NO. 2 TO NOTE PURCHASE AGREEMENT

EXECUTION VERSION

AMENDMENT NO. 2

NOTE PURCHASE AGREEMENT

This AMENDMENT NO. 2 TO NOTE PURCHASE AGREEMENT (this “Amendment”), is entered into effective as of September 25, 2015 by and among 2014 ESA Project Company, LLC, a Delaware limited liability company (the “Company”), and each of the undersigned Holders of Notes. Capitalized terms used and not otherwise defined herein have the meanings given to them in the Note Purchase Agreement (as defined below). All Section references, unless otherwise indicated, shall be references to Sections of the Note Purchase Agreement and the rules of interpretation set forth in the Note Purchase Agreement apply as if set forth herein.

RECITALS

WHEREAS, reference is hereby made to that certain Note Purchase Agreement, dated as of July 18, 2014, by and among the Company and the Purchasers party thereto, as amended by that certain Amendment No. 1 to Note Purchase Agreement, dated as of March 16, 2015, by and among the Company and the Holders of Notes party thereto (as amended, the “Note Purchase Agreement”); and

WHEREAS, the Company wishes to hereby amend the Note Purchase Agreement, in accordance with Article 17 of the Note Purchase Agreement, by amending Schedule B and Schedule 8.1 to the Note Purchase Agreement.

NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, and for other consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto hereby agree as follows:

AGREEMENT

Section 1. Amendments to the Note Purchase Agreement.

i. The following definition of the capitalized term “Date Certain” in Schedule B to the Note Purchase Agreement is hereby amended and restated in its entirety to read as follows:

“Date Certain” means March 31, 2016.

ii. Schedule 8.1 to the Note Purchase Agreement is hereby amended and restated in its entirety to read as Schedule 8.1 attached hereto.

Section 2. Effective Date. This Amendment has been duly executed by the Company. This Amendment shall be effective (the “Effective Date”) upon the receipt by, or on behalf of, the Company of duly executed counterparts of this Amendment signed by each of the Holders of Notes whose name appears on the signature pages hereto and who constitute all of the Holders of the Notes as of the date hereof.

Section 3. Partial Completion Buydown. As of the Effective Date, Systems with aggregate system capacity of [***] MW have achieved COO. The Company hereby informs the Holders that, as of the Effective Date, the Company anticipates that [***] MW of system capacity of Systems will achieve COO on or prior to the Date Certain, as such term is amended pursuant to this Amendment, and agrees that, pursuant to Section 9.18 of the Note Purchase Agreement, the Company shall prepay the Notes in the amount calculated pursuant to such Section 9.18 based on the actual aggregate system capacity of Systems that have achieved COO as of the Date Certain. For example, the Company would prepay the Notes in the aggregate amount of $[***] on March 31, 2016 if [***] MW of system capacity of Systems have achieved COO on or prior to the Date Certain, plus accrued and unpaid interest thereon. The Company and each Holder of Notes whose name appears on the signature pages hereto and who constitute all of the Holders of the Notes as of the date hereof agree that each Holder of Notes shall have received, no later than 10 Business Days prior to the Date Certain, verification from the Independent Engineer that the re-calculation of the size of the Notes under the Base Case Projections complies with the requirements set forth in clauses (a), (b) and (c) of Section 9.18 of the Note Purchase Agreement.

Section 4. No Other Changes or Waivers. Except as expressly provided or contemplated by this Amendment, all of the terms, conditions and provisions of the Note Purchase Agreement remain unaltered and in full force and effect. Except as specifically provided herein, the execution, delivery and performance of this Amendment shall not be deemed as a waiver of any other matters or any future matters. The Note Purchase Agreement and this Amendment shall be read and construed as one instrument. This Amendment constitutes a Credit Document for all purposes.

Section 5. Representations and Warranties. The Company hereby represents and warrants that, as of the Effective Date (both immediately before and immediately after giving effect to the occurrence of the Effective Date and any transactions to occur thereon):

i. It has all requisite power and authority to enter into this Amendment and to carry out the transactions contemplated by, and perform its obligations under, the Note Purchase Agreement as amended by this Amendment.

ii. The execution and delivery of this Amendment and the performance of the Note Purchase Agreement as amended by this Amendment have been duly authorized by all necessary action on the part of the Company.

iii. The execution and delivery by the Company of this Amendment and the performance by it of the Note Purchase Agreement as amended by this Amendment do not and will not violate any Legal Requirement or any Obligation and will not result in, or require, the creation or imposition of any Lien on any of its properties or revenues pursuant to any Legal Requirement or any such Obligation (other than the Liens created by the Collateral Documents on the Closing Date and from time to time thereafter).

[***] Confidential Treatment Requested

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iv. This Amendment has been duly executed and delivered by the Company and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as enforceability may be limited by

bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting creditors’ rights generally and except as enforceability may be limited by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

v. No consent or authorization of, filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person which has not been received, filed, given or done is required in connection with the transactions contemplated herein or the execution, delivery, performance, validity or enforceability of this Amendment.

vi. No event has occurred and is continuing or will result from the consummation of the transactions contemplated by this Amendment that would constitute a Default or an Event of Default.

vii. The representations and warranties set forth in Article 5 of the Note Purchase Agreement are true and correct in all material respects (except for any such representation or warranty that relates solely to a specific date, in which case, such representation or warranty was true and correct in all material respects as of such date); provided that, to the extent any such representation and warranty itself is qualified by “materiality”, “Material Adverse Effect” or similar qualifier, it is true and correct in all respects.

viii. In accordance with Section 9.18 of the Note Purchase Agreement, it has delivered to each of the Holders of Notes whose name appears on the signature pages hereto and who constitute all of the Holders of the Notes as of the date hereof a true, accurate and complete re-calculation of the size of the Notes under the Base Case Projections which re-calculation (x) (i) reduces the Project capacity assumption therein to the actual Project system capacity, and (ii) updates the COO dates to reflect the actual COO dates for those Systems which have achieved such milestone as of the Effective Date, and the projected COO date for those Systems which are to achieve such milestone subsequent to the Effective Date, (y) maintains DSCR at [***] minimum through the Maturity Date under the Downside Case, and (z) otherwise changes no assumptions in the Base Case Projections.

Section 6. Headings. The Section titles contained in this Amendment are and shall be without substantive meaning or content of any kind whatsoever and are not a part of the agreement between the parties hereto.

Section 7. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD PERMIT THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.

[***] Confidential Treatment Requested

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Section 8. Severability. Any provision of this Amendment that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by law) not invalidate or render unenforceable such provision in any other jurisdiction.

Section 9. Counterparts. This Amendment and any amendments, waivers, consents or supplements hereto or in connection herewith may be executed in one or more duplicate counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document. Signatures of the parties hereto transmitted by facsimile or portable document format (PDF) shall be deemed to be their original signatures for all purposes.

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If you are in agreement with the foregoing, please sign the form of agreement on a counterpart of this Amendment and return it to the Company, whereupon this Amendment shall become a binding agreement between you and the Company.

Very truly yours, 2014 ESA PROJECT COMPANY, LLC
By:	/s/ Illegible
Name:	Illegible
Title:	Vice President

This Amendment is hereby accepted and agreed to as of the date hereof.

THE VARIABLE ANNUITY LIFE INSURANCE COMPANY

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA

UNITED GUARANTY RESIDENTIAL INSURANCE COMPANY

By: AIG Asset Management (U.S.) LLC, Investment Adviser

By:	/s/ Andrew M. Bouffard
Name:	Andrew M. Bouffard
Title:	Vice President

Signature Page to Amendment No.2 to Note Purchase Agreement

This Amendment is hereby accepted and agreed to as of the date hereof.

THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA

By:	/s/ Barry Scheinholtz
Name:	Barry Scheinholtz
Title:	Senior Director

THE GUARDIAN INSURANCE & ANNUITY COMPANY, INC.

By:	/s/ Barry Scheinholtz
Name:	Barry Scheinholtz
Title:	Senior Director

Signature Page to Amendment No.2 to Note Purchase Agreement

This Amendment is hereby accepted and agreed to as of the date hereof.

VOYA RETIREMENT INSURANCE AND ANNUITY COMPANY (F/K/A ING LIFE INSURANCE AND ANNUITY COMPANY)

VOYA INSURANCE AND ANNUITY COMPANY (F/K/A ING USA ANNUITY AND LIFE INSUR.\NCE COMPANY)

RELIASTAR LIFE INSURANCE COMPANY

SECURITY LIFE OF DENVER INSURANCE COMPANY

By: Voya Investment Management LLC, as Agent

By:	/s/ Paul Aronson
Name:	Paul Aronson
Title:	Senior Vice President

Signature Page to Amendment No.2 to Note Purchase Agreement

This Amendment is hereby accepted and agreed to as of the date hereof.

MODERN WOODMEN OF AMERICA

By:	/s/ Douglas A. Pannier
Name:	Douglas A. Pannier
Title:	Group Head - Private Placements

Signature Page to Amendment No.2 to Note Purchase Agreement

This Amendment is hereby accepted and agreed to as of the date hereof.

PAN-AMERICAN LIFE INSURANCE COMPANY

By:	/s/ Lisa Baudot
Name:	Lisa Baudot
Title:	Vice President, Securities

Signature Page to Amendment No.2 to Note Purchase Agreement

SCHEDULE 8.1

AMORTIZATION SCHEDULE

Date	Amortization Amount
12/30/2015	$	122,436
3/30/2016	$	128,209
6/30/2016	$	128,074
9/30/2016	$	175,570
12/30/2016	$	283,778
3/30/2017	$	322,238
6/30/2017	$	362,358
9/30/2017	$	317,260
12/30/2017	$	428,879
3/30/2018	$	470,338
6/30/2018	$	512,590
9/30/2018	$	469,323
12/30/2018	$	583,514
3/30/2019	$	628,497
6/30/2019	$	675,158
9/30/2019	$	636,143
12/30/2019	$	754,178
3/30/2020	$	803,139
6/30/2020	$	853,445
9/30/2020	$	817,834
12/30/2020	$	939,455
3/30/2021	$	991,776
6/30/2021	$	1,044,925
9/30/2021	$	1,011,834
12/30/2021	$	1,136,745
3/30/2022	$	1,193,344
6/30/2022	$	1,251,661
9/30/2022	$	1,223,555
12/30/2022	$	1,353,076
3/30/2023	$	1,413,931
6/30/2023	$	1,475,647
9/30/2023	$	1,450,598
12/30/2023	$	1,583,969
3/30/2024	$	1,649,689
6/30/2024	$	1,717,163
9/30/2024	$	1,697,674

Date	Amortization Amount
12/30/2024	$	1,836,252
3/30/2025	$	1,906,855
6/30/2025	$	1,978,103
9/30/2025	$	1,962,152
12/30/2025	$	2,105,212
3/30/2026	$	2,180,815
6/30/2026	$	2,256,278
9/30/2026	$	2,244,806
12/30/2026	$	2,362,529
3/30/2027	$	2,442,904
6/30/2027	$	2,523,071
9/30/2027	$	2,516,907
12/30/2027	$	2,669,304
3/30/2028	$	2,755,161
6/30/2028	$	2,840,213
9/30/2028	$	2,838,596
12/30/2028	$	2,996,442
3/30/2029	$	3,074,790
6/30/2029	$	3,165,739
9/30/2029	$	3,170,090
12/30/2029	$	3,333,618
3/30/2030	$	9,533,546
Total	$	93,301,386

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EX-10

Exhibit 10.25

[***]    Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

EXECUTION VERSION

2014 ESA PROJECT COMPANY, LLC

$99,000,000.00

6.07% Senior Secured Notes due March 30, 2030

NOTE PURCHASE AGREEMENT

Dated July 18, 2014

TABLE OF CONTENTS

SECTION	HEADING	PAGE
ARTICLE 1.    Authorization of Notes			1
ARTICLE 2.    Sale and Purchase of Notes			1
ARTICLE 3.    Closing			1
ARTICLE 4.    Conditions Precedent			2
Section 4.1	Conditions Precedent to Closing		2
Section 4.2	Conditions Precedent to All Drawdowns		8
Section 4.3	Conditions Precedent to each Credit Event		11
ARTICLE 5.    Representations and Warranties of the Company			12
Section 5.1	Organization; Power and Authority		12
Section 5.2	Authorization, Etc.		13
Section 5.3	Disclosure		13
Section 5.4	Subsidiaries		13
Section 5.5	Financial Statements; Material Liabilities		13
Section 5.6	Compliance with Laws, Other Instruments, Etc.		14
Section 5.7	Governmental Authorizations, Etc.		14
Section 5.8	Observance of Agreements, Statutes and Orders		14
Section 5.9	Taxes		14
Section 5.10	Tax Status		15
Section 5.11	Licenses, Permits, Etc.		15
Section 5.12	Compliance with ERISA		15
Section 5.13	Private Offering by the Company		16
Section 5.14	Use of Proceeds; Margin Regulations		16
Section 5.15	Existing Debt; Future Liens		17
Section 5.16	Foreign Assets Control Regulations, Etc.		17
Section 5.17	Status under Certain Statutes		18
Section 5.18	Environmental Matters		18
Section 5.19	Permits		18
Section 5.20	Solvency		19
Section 5.21	Insurance		19
Section 5.22	Litigation		19
Section 5.23	Labor Matters		20
Section 5.24	Governmental Regulation		20
Section 5.25	Ranking of Obligations; Perfection and Priority of Liens		20
Section 5.26	Project Construction		21
Section 5.27	Adverse Change		21
Section 5.28	Major Project Documents		21
Section 5.29	Sufficiency of Rights		21
Section 5.30	Real Estate		21

-i-

Section 5.31	Investments	22
Section 5.32	No Recordation, Etc.	22
Section 5.33	Organizational ID Number; Location of Tangible Collateral	22
ARTICLE 6.    Representations of the Purchasers		23
Section 6.1	Purchase for Investment	23
Section 6.2	Source of Funds	23
Section 6.3	Institutional Accredited Investor	24
ARTICLE 7.    Information as to Company		25
Section 7.1	Financial Statements and Rating Letter	25
Section 7.2	Other Reporting Requirements	25
Section 7.3	Officer’s Certificate	28
Section 7.4	Visitation	28
Section 7.5	Electronic Delivery	28
ARTICLE 8.    Payment and Prepayment of the Notes		29
Section 8.1	Required Payments; Mandatory Prepayments; Offer to Repay	29
Section 8.2	Optional Prepayments with Make-Whole Amount	30
Section 8.3	Allocation of Partial Prepayments	31
Section 8.4	Maturity; Surrender, Etc.	31
Section 8.5	Purchase of Notes	31
Section 8.6	Make-Whole Amount	31
ARTICLE 9.    Affirmative Covenants		33
Section 9.1	Compliance with Laws	33
Section 9.2	Insurance	33
Section 9.3	Maintenance of Properties	33
Section 9.4	Payment of Taxes and Claims	33
Section 9.5	Corporate Existence, Etc.	34
Section 9.6	Books, Records	34
Section 9.7	Use of Proceeds, Equity Contributions, Project Revenues	34
Section 9.8	Payment	34
Section 9.9	Additional Direct Agreements	35
Section 9.10	Performance of the Major Project Documents	35
Section 9.11	Utility Regulation	35
Section 9.12	Construction of the Project	35
Section 9.13	Operation and Maintenance of Project; Operating Budget	35
Section 9.14	Preservation of Rights; Further Assurances	36
Section 9.15	Event of Eminent Domain	38
Section 9.16	Environmental Laws	38
Section 9.17	Independent Consultants	38
Section 9.18	Partial Completion Buydown	38
Section 9.19	Separateness	39

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Section 9.20	Rating	39
Section 9.21	Debt Service Coverage Ratio	39
Section 9.22	Policy Proceeds, Subrogation and Consent	39
Section 9.23	Tax Status	40
Section 9.24	UCC Filings	40
Section 9.25	Post-Closing Deliverables	40
ARTICLE 10.    Negative Covenants		40
Section 10.1	Transactions with Affiliates	40
Section 10.2	Dissolution; Merger	40
Section 10.3	Line of Business; Changes	40
Section 10.4	Sale or Lease of Assets	41
Section 10.5	Terrorism Sanctions Regulations	41
Section 10.6	Liens	41
Section 10.7	Contingent Obligations	41
Section 10.8	Debt	41
Section 10.9	Investments	41
Section 10.10	Restricted Payments	42
Section 10.11	Margin Loan Regulations	42
Section 10.12	Partnership, Separateness Etc.	42
Section 10.13	Amendments	43
Section 10.14	Name and Location; Fiscal Year	43
Section 10.15	Hazardous Substances	43
Section 10.16	Use of Sites	43
Section 10.17	Project Documents	43
Section 10.18	Assignment by Third Parties	43
Section 10.19	Acquisition of Real Property	44
Section 10.20	ERISA	44
Section 10.21	Lease Obligations	44
Section 10.22	Disputes	44
Section 10.23	Assignment	44
Section 10.24	Accounts	44
Section 10.25	Capital Expenditures	44
Section 10.26	Insurance Policy	44
ARTICLE 11.    Events of Default		44
Section 11.1	Failure to Make Payments	44
Section 11.2	Misstatements	45
Section 11.3	Breach of Terms of Agreement	45
Section 11.4	Defaults Under Other Debt	45
Section 11.5	Bankruptcy; Insolvency	46
Section 11.6	Judgments	46
Section 11.7	ERISA	46
Section 11.8	Ownership of the Project	47
Section 11.9	Loss of Collateral	47

-iii-

Section 11.10	Insurance Policy	47
Section 11.11	Security	47
Section 11.12	Regulatory Status	47
Section 11.13	Loss of or Failure to Obtain Applicable Permits	47
Section 11.14	Credit Document Matters	48
Section 11.15	Project Document Matters	48
Section 11.16	Eminent Domain	49
ARTICLE 12.    Remedies on Default, Etc.		49
Section 12.1	Acceleration	49
Section 12.2	Other Remedies	51
Section 12.3	Rescission	51
Section 12.4	No Waivers or Election of Remedies, Expenses, Etc.	52
ARTICLE 13.    Registration; Exchange; Substitution of Notes		52
Section 13.1	Registration of Notes	52
Section 13.2	Transfer and Exchange of Notes	52
Section 13.3	Replacement of Notes	53
ARTICLE 14.    Payments on Notes		53
Section 14.1	Place of Payment	53
Section 14.2	Home Office Payment	54
ARTICLE 15.    Expenses, Etc.		54
Section 15.1	Transaction Expenses	54
Section 15.2	Survival	55
ARTICLE 16.    Survival of Representations and Warranties; Entire Agreement		55
ARTICLE 17.    Amendment and Waiver		55
Section 17.1	Requirements	55
Section 17.2	Solicitation of Holders of Notes	56
Section 17.3	Binding Effect, etc.	56
Section 17.4	Notes Held by Company, etc.	56
ARTICLE 18.    Notices		57
ARTICLE 19.    Reproduction of Documents		57
ARTICLE 20.    Confidential Information		57
ARTICLE 21.    Substitution of Purchaser		59
ARTICLE 22.    Miscellaneous		59

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Section 22.1	Successors and Assigns	59
Section 22.2	Payments Due on Non-Business Days	59
Section 22.3	Accounting Terms	59
Section 22.4	Severability	59
Section 22.5	Construction, etc.	60
Section 22.6	Counterparts	60
Section 22.7	Governing Law	60
Section 22.8	Jurisdiction and Process; Waiver of Jury Trial	60
Section 22.9	Scope of Liability	61
Section 22.10	U.S. Tax Forms	62

SCHEDULE A	—	Information Relating To Purchasers
SCHEDULE B	—	Defined Terms
SCHEDULE C	—	Energy Server Use Agreements
SCHEDULE 4.1.25	—	Project Budget
SCHEDULE 4.1.26(a)	—	Base Case Projections
SCHEDULE 4.1.26(b)	—	Downside Case
SCHEDULE 4.1.27	—	Project Schedule
SCHEDULE 4.1.29	—	List of Direct Agreements
SCHEDULE 5.3	—	Disclosure Materials
SCHEDULE 5.5	—	Financial Statements
SCHEDULE 5.15	—	Existing Debt
SCHEDULE 5.19	—	Permits
SCHEDULE 8.1	—	Amortization Schedule
SCHEDULE 9.2	—	Required Insurance
EXHIBIT 1	—	Form of 6.07% Senior Secured Note due March 30, 2030
EXHIBIT 4.1.13(a)	—	Form of Opinion of Special Counsel for the Company
EXHIBIT 4.1.13(b)	—	Form of Opinion of Local Regulatory Counsel for the Company
EXHIBIT 4.1.13(c)	—	Form of Opinion of Local Counsel for the Company
EXHIBIT 4.1.13(d)	—	Form of Opinion of Special Counsel for the Purchasers

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EXHIBIT 4.1.14	—	Form of Insurance Consultant Certificate
EXHIBIT 4.1.16	—	Form of Independent Engineer Certificate
EXHIBIT 4.1.29(a)	—	Form of No. 1 Direct Agreement
EXHIBIT 4.1.29(b)	—	Form of No. 2 Direct Agreement
EXHIBIT 4.1.29(c)	—	Form of No. 3 Direct Agreement
EXHIBIT 4.2.1(a)	—	Form of Drawdown Certificate
EXHIBIT 4.2.1(b)	—	Form of Independent Engineer’s Drawdown Certificate
EXHIBIT 4.2.1(c)	—	Form of Company’s COO Certificate
EXHIBIT 4.2.1(d)	—	Form of Independent Engineer’s COO Certificate
EXHIBIT 4.2.11	—	Form of Opinion of Special Counsel for the Company
EXHIBIT 4.2.12	—	Form of Home Depot Parent Guaranty
EXHIBIT 7.2(a)	—	Form of Quarterly Construction Report
EXHIBIT 8.1.3(b)	—	Form of Offer to Repay Notice

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6.07% Senior Secured Notes due March 30, 2030

July 18, 2014

TO EACH OF THE PURCHASERS LISTED IN

SCHEDULE A HERETO:

Ladies and Gentlemen:

2014 ESA Project Company, LLC, a Delaware limited liability company (the “Company”), agrees with each of the Purchasers as follows:

ARTICLE 1. AUTHORIZATION OF NOTES.

The Company will authorize the issuance and sale of $99,000,000.00 aggregate principal amount of its 6.07% Senior Secured Notes due March 30, 2030 (the “Notes”, such term to include any such notes issued in substitution therefor pursuant to Article 13). The Notes shall be substantially in the form set out in Exhibit 1. Certain capitalized and other terms used in this Agreement are defined in Schedule B; and references to a “Schedule” or an “Exhibit” are, unless otherwise specified, to a Schedule or an Exhibit attached to this Agreement.

ARTICLE 2. SALE AND PURCHASE OF NOTES.

Subject to the terms and conditions of this Agreement, the Company will issue and sell to each Purchaser and each Purchaser will purchase from the Company, at the Closing provided for in Article 3, Notes in the principal amount specified opposite such Purchaser’s name in Schedule A at the purchase price of 100% of the principal amount thereof. The Purchasers’ obligations hereunder are several and not joint obligations and no Purchaser shall have any liability to any Person for the performance or non-performance of any obligation by any other Purchaser hereunder.

ARTICLE 3. CLOSING.

The sale and purchase of the Notes to be purchased by each Purchaser shall occur at the offices of Latham & Watkins LLP, 885 Third Avenue, New York, New York 10022, at 10:00 a.m., New York City time, at a closing on July 18, 2014 (the “Closing”) or on such other Business Day thereafter on or prior to July 18, 2014 as may be agreed upon by the Company and the Purchasers. At the Closing the Company will deliver to each Purchaser the Notes to be purchased by such Purchaser in the form of a single Note (or such greater number of Notes in denominations of at least $500,000 as such Purchaser may request) dated the date of the Closing and registered in such Purchaser’s name (or in the name of its nominee), against delivery by such Purchaser to the Company or its order of immediately available funds in the amount of the purchase price therefor by wire transfer of immediately available funds for the account of the Company to account number [***]

[***] Confidential Treatment Requested

[***]. If at the Closing the Company shall fail to tender such Notes to any Purchaser as provided above in this Article 3, or any of the conditions specified in Sections 4.1 and 4.3 shall not have been fulfilled to such Purchaser’s satisfaction, such Purchaser shall, at its election, be relieved of all further obligations under this Agreement, without thereby waiving any rights such Purchaser may have by reason of such failure or such nonfulfillment.

ARTICLE 4. CONDITIONS PRECEDENT.

Section 4.1 Conditions Precedent to Closing.

Each Purchaser’s obligation to purchase and pay for the Notes to be sold to such Purchaser at the Closing is subject to the prior satisfaction of each of the following conditions unless waived by each Purchaser (the date such conditions precedent are so satisfied or waived being referred to as the “Closing Date”):

Section 4.1.1 Performance; No Default. The Company shall have performed and complied with all agreements and conditions contained in this Agreement required to be performed or complied with by it prior to or at the Closing. The Company shall not have entered into any transaction since the date of the Memorandum that would have been prohibited by Article 10 had such Article applied since such date.

Section 4.1.2 Purchase Permitted By Applicable Law, Etc.

(i) On the Closing Date, such Purchaser’s purchase of the Notes shall (a) be permitted by the laws and regulations of each jurisdiction to which such Purchaser is subject, without recourse to provisions (such as section 1405(a)(8) of the New York Insurance Law) permitting limited investments by insurance companies without restriction as to the character of the particular investment, (b) not violate any applicable law or regulation (including, without limitation, Regulation T, U or X of the Board of Governors of the Federal Reserve System) and (c) not subject such Purchaser to any tax, penalty or liability under or pursuant to any applicable law or regulation, which law or regulation was not in effect on the date hereof. If requested by such Purchaser, such Purchaser shall have received a certificate of a Responsible Officer of the Company certifying as to such matters of fact as such Purchaser may reasonably specify to enable such Purchaser to determine whether such purchase is so permitted.

(ii) No federal, state or law or regulation, or any interpretation thereof, exists which would make the Notes, or the securing of the Notes by the Collateral, or any other aspect of the transactions contemplated herein, illegal, or which would subject the Purchasers or any of their Affiliates to any penalties, sanctions or fines.

Section 4.1.3 Sale of Other Notes. Contemporaneously with the Closing, the Company shall sell to each other Purchaser and each other Purchaser shall purchase the Notes to be purchased by it at the Closing as specified in Schedule A.

[***] Confidential Treatment Requested

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Section 4.1.4 Private Placement Number. A Private Placement Number issued by Standard & Poor’s CUSIP Service Bureau (in cooperation with the SVO) shall have been obtained for the Notes.

Section 4.1.5 Changes in Corporate Structure. The Company shall not have changed its jurisdiction of formation, or been a party to any merger or consolidation or succeeded to all or any substantial part of the liabilities of any other entity, at any time following December 31, 2013.

Section 4.1.6 Funding Instructions. At least three Business Days prior to the Closing Date, each Purchaser shall have received written instructions signed by a Responsible Officer of the Company on letterhead of the Company confirming the information specified in Article 3, including (i) the name and address of the transferee bank, (ii) such transferee bank’s ABA number and (iii) the account name and number into which the purchase price for the Notes is to be deposited.

Section 4.1.7 Resolutions. The Company shall have delivered to each of the Purchasers a copy of one or more resolutions or other authorizations, in form and substance reasonably satisfactory to the Purchasers, of each Credit Party as of the Closing Date certified by a Responsible Officer of such Credit Party as being true, complete, in full force and effect on the Closing Date and not amended, modified, revoked or rescinded, authorizing, as applicable and among other things, the issuance of the Notes herein provided for, the granting of the Liens under the Collateral Documents, the provision of the guaranties, warranties and indemnities, the contribution of equity to the Company and the execution, delivery and performance of this Agreement, the other Operative Documents and any instruments or agreements required hereunder or thereunder to which such Credit Party is a party.

Section 4.1.8 Incumbency. The Company shall have delivered to each of the Purchasers a certificate, in form and substance reasonably satisfactory to the Purchasers, from each Credit Party signed by the appropriate authorized officer or manager of each such Credit Party and dated as of the Closing Date, as to the incumbency and specimen signature of each natural Person authorized to execute and deliver this Agreement, the other Operative Documents and any instruments or agreements required hereunder or thereunder to which such Credit Party is a party, including various certificates to be delivered by such Credit Party pursuant to this Section 4.1.

Section 4.1.9 Governing Documents. The Company shall have delivered to each of the Purchasers, in each case certified by a Responsible Officer of such Credit Party as being true, correct and complete on the Closing Date, (a) copies of the certificate of formation, charter or other state certified constituent documents of each Credit Party, certified as of a recent date by the secretary of state of such Credit Party’s state of organization, and (b) copies of the bylaws, limited liability company operating agreement, partnership agreement or other comparable operating documents, if applicable, of each Credit Party.

Section 4.1.10 Good Standing Certificates. The Company shall have delivered to each of the Purchasers certificates (in so-called “long-form” if available) issued by the secretary of state of the state in which each Credit Party is formed or incorporated, as applicable, in each case (a) dated a date reasonably close to the Closing Date and (b) certifying that such Credit Party is in good standing and is qualified to do business in, and has paid all franchise Taxes or similar Taxes due to, such states.

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Section 4.1.11 Credit Documents and Project Documents. The Company shall have delivered to each of the Purchasers (a) true, correct and complete copies of each Credit Document, all of which shall (i) have been duly authorized, executed and delivered by the parties thereto and in form and substance reasonably satisfactory to the Purchasers, and (ii) be in full force and effect and accompanied by a certificate of the Company certifying to the foregoing, (b) a certified list of, and true, correct and complete copies of, each Major Project Document executed on or prior to the Closing Date, each in form and substance reasonably satisfactory to the Purchasers, (i) all of which shall have been duly authorized, executed and delivered by the parties thereto, and be in full force and effect on the Closing Date and (ii) with respect to which no material breaches or defaults have occurred and are continuing thereunder, and accompanied by a certificate of the Company certifying to the foregoing and (c) each document, certificate, or other deliverable required to be delivered under each Credit Document as of the Closing Date.

Section 4.1.12 Third Party Approvals. Except for the Permits which are expected to be obtained after the Closing Date, the Company shall have received all Applicable Permits by any Person (including any Governmental Authority) reasonably required in connection with any transaction contemplated in any Operative Document except where such failure could not reasonably be expected to result in a Material Adverse Effect.

Section 4.1.13 Opinions of Counsel. The Company shall have delivered to each Purchaser opinions in form and substance satisfactory to such Purchaser and addressed to each such Purchaser, dated as of the Closing Date (a) from O’Melveny & Myers LLP, as counsel and as special California regulatory counsel for the Company, substantially in the form of Exhibit 4.1.13(a), (b) from Brown Rudnick LLP, Bevan, Mosca, Giuditta & Zarillo, P.C. and Harris Beach PLLC, as regulatory counsel for the Company in the States of Connecticut, New Jersey and New York, respectively, in the form of Exhibit 4.1.13(b), (c) from Morris James LLP, as special Delaware counsel for the Company covering the enforceability of the Home Depot ESA and from Bevan, Mosca, Giuditta & Zarillo, P.C. as special New Jersey counsel for the Company covering the enforceability of AT&T ESA-1, substantially in the form set forth in Exhibit 4.1.13(c) and (d) from Latham & Watkins LLP, the Purchasers’ special counsel in connection with such transactions, substantially in the form set forth in Exhibit 4.1.13(d) and covering such other matters incident to such transactions as such Purchaser may reasonably request. The Company also shall have delivered to Fitch Ratings, Inc., an opinion from O’Melveny & Meyers LLP, counsel for the Company, covering non-consolidation matters, which opinion shall be in form and substance satisfactory to, and addressed to, Fitch Ratings, Inc. and each Purchaser.

Section 4.1.14 Certificate of Insurance Consultant. The Company shall have delivered to each of the Purchasers the Insurance Consultant’s certificate, dated as of the Closing Date and in substantially the form of Exhibit 4.1.14, together with the Insurance Consultant’s report that (a) summarizes the insurance arrangements for the Project and (b) concludes that such insurance is adequate and customary.

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Section 4.1.15 Insurance. Insurance complying with terms and conditions set forth in Schedule 9.2 shall be in full force and effect and each of the Purchasers and the Insurance Consultant shall have received a certificate from the Company’s insurance broker(s), dated as of the Closing Date and in form and substance reasonably satisfactory to the Purchasers, (a) identifying underwriters, type of insurance, insurance limits and policy terms, (b) listing the special provisions required as set forth in Schedule 9.2, (c) describing the insurance obtained and (d) stating that such insurance is in full force and effect and that all premiums then due thereon have been paid and that, in the opinion of such broker(s), such insurance complies with the terms and conditions set forth in Schedule 9.2.

Section 4.1.16 Certificate of the Independent Engineer. The Company shall have delivered to each of the Purchasers the Independent Engineer’s certificate, dated as of the Closing Date and in substantially the form of Exhibit 4.1.16, together with the Independent Engineer’s report, in form and substance reasonably satisfactory to the Purchasers, attached thereto.

Section 4.1.17 [Reserved]

Section 4.1.18 Funding of the IDC Reserve Account. The Company shall have funded, or shall fund contemporaneously with the Closing from proceeds of the Notes, the IDC Reserve Account in an amount equal to [***].

Section 4.1.19 Funding of the Debt Service Reserve Account. The Company shall have funded, or shall fund contemporaneously with the Closing from the proceeds of the Notes, the Debt Service Reserve Account with a portion of the proceeds of the Notes up to the Debt Service Reserve Requirement.

Section 4.1.20 Permit Schedule. The Company shall have delivered to each of the Purchasers Schedule 5.19, in form and substance reasonably satisfactory to the Purchasers.

Section 4.1.21 Absence of Litigation. The Company shall have delivered to the each of the Purchasers a certificate confirming that (i) there are no actions, suits or proceedings by or before any Governmental Authority or arbitrator pending or, to the Company’s Knowledge, threatened in writing by or against any Credit Party related to the Project and (ii) to the Company’s Knowledge, there are no actions, suits or proceedings by or before any Governmental Authority or arbitrator pending or threatened in writing by or against any Major Project Participant (other than the Credit Parties) related to the Project.

Section 4.1.22 Payment of Fees. All Taxes, fees and other costs payable in connection with the execution, delivery recordation and filing of the documents and instruments referred to in this Section 4.1, and in connection with any other charges related thereto, and due on or before the Closing Date shall have been paid in full or, if and in the manner specifically approved by the Purchasers, provided for. The Company shall have paid (or caused to be paid) or shall have made arrangements in the manner reasonably satisfactory to the payee for the payment of all outstanding amounts due, as of the Closing Date, and owing to the Purchasers’ special counsel referred to in Section 4.1.13 and the Independent Consultants to the extent reflected in a statement rendered to the Company at least one Business Day prior to the Closing Date.

[***] Confidential Treatment Requested

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Section 4.1.23 Financial Statements. The Company shall have delivered to each of the Purchasers accurate and complete copies of the most recent audited annual financial statements of Sponsor for the year ended December 31, 2013, together with a certificate from the appropriate Responsible Officer of Sponsor, dated as of the Closing Date, stating that no material adverse change in the consolidated assets, liabilities, operations or financial condition of Sponsor has occurred from those set forth in the most recent financial statements provided to the Purchasers.

Section 4.1.24 Collateral Requirements. The Company shall have delivered to the Collateral Agent and each of the Purchasers evidence reasonably satisfactory to the Purchasers that the Company or other applicable Lien grantor has taken or caused to be taken all such actions, executed and delivered or caused to be executed and delivered all such agreements, documents and instruments, and made or caused to be made all such filings and recordings that may be necessary in order to create in favor of the Collateral Agent a valid and (upon such filing and recording) perfected first priority Lien in such Person’s rights, title and interest in and to the Collateral in which a security interest can be perfected by possession, control or by making filings under the UCC. Such actions shall include only delivery:

(i) to each of the Purchasers, of the Pledge Agreement, the Security Agreement and the Depositary Agreement, duly executed by each Credit Party and each other Person party thereto;

(ii) to the Collateral Agent, of all pledged securities, including all certificates, agreements or instruments representing or evidencing such pledged securities, accompanied by instruments of transfer and membership interest powers undated and endorsed in blank to the extent such pledged interests are certificated;

(iii) to the Collateral Agent, of all promissory notes or other instruments (duly endorsed, where appropriate, in a manner reasonably satisfactory to the Purchasers) evidencing any Collateral;

(iv) to the Collateral Agent, of all other certificates, agreements, including control agreements, or instruments necessary to perfect the Collateral Agent’s security interest in all Chattel Paper, all Instruments, all Deposit Accounts and all Investment Property of the Company (as each such term is defined in the Security Agreement and to the extent required by the Security Agreement);

(v) to the Collateral Agent, of UCC financing statements in appropriate form for filing under the UCC, and, where appropriate (but excluding for real property located in California), fixture filings or transmitting utility filings, and such other documents under applicable Legal Requirements in each jurisdiction as may be necessary to perfect the first priority Liens created, or purported to be created, by the Collateral Documents and, with respect to all UCC financing statements required to be filed pursuant to the Credit Documents, evidence satisfactory to the Purchasers that the Company has retained, at its sole cost and expense, CT Corporation, National Corporate Research, Ltd. or another service provider acceptable to the Purchasers for the tracking of all such financing statements and notification to the Collateral Agent of the upcoming lapse or expiration thereof;

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(vi) to each of the Purchasers, of certified copies of UCC, tax and judgment lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a date no less recent than ten Business Days before the Closing Date or as otherwise acceptable to the Purchasers listing all effective financing statements, lien notices or comparable documents that name the Company and Pledgor as debtor and that are filed in those state and county jurisdictions in which any property of such Person is located and the state and county jurisdictions in which such Person is organized or maintains its principal place of business and such other searches that the Purchasers deem necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens) showing that upon due filing or recordation (assuming such filing or recordation occurred on the date of such respective reports), as the case may be, the security interests created under the Collateral Documents, with respect to the Collateral, will be prior to all other financing statements, fixture filings or other security documents wherein the security interest is perfected by filing or recording in respect of the Collateral;

(vii) to each of the Purchasers, of an opinion of counsel (which counsel shall be reasonably satisfactory to the Purchasers) with respect to the perfection of the security interests in favor of the Collateral Agent in the Collateral that can be perfected by possession, control or by making filings under the UCC (it being understood and agreed that no opinions of local counsel with respect to local Collateral shall be provided), in each case in form and substance reasonably satisfactory to the Purchasers; and

(viii) to each of the Purchasers, of evidence reasonably satisfactory to the Purchasers of payment or arrangements for payment by the Company of all applicable recording Taxes, stamp duties, registration fees or charges, filing costs and other similar expenses, if any, required to be paid in connection with the execution, delivery or filing of, or the perfection of any Operative Document or otherwise in connection with the Collateral.

Section 4.1.25 Project Budget. The Company shall have delivered to each of the Purchasers the Project Budget in substantially the form of Schedule 4.1.25.

Section 4.1.26 Base Case Projections. The Company shall have delivered to each of the Purchasers the Base Case Projections, in substantially the form of Schedule 4.1.26(a) and Schedule 4.1.26(b).

Section 4.1.27 Project Schedule. The Company shall have delivered to each of the Purchasers the Project Schedule in substantially the form of Schedule 4.1.27.

Section 4.1.28 Establishment of Accounts. The Accounts required to be established as of the Closing Date for the Project under the Depositary Agreement shall have been established and funded in accordance with the Operative Documents, to the satisfaction of the Purchasers.

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Section 4.1.29 Direct Agreements. The Company shall have delivered to each of the Purchasers executed Direct Agreements from the Sponsor with respect to the PUMA and the ASA, which Direct Agreements shall be substantially in the form of Exhibit 4.1.29(a) or otherwise reasonably satisfactory to the Purchasers.

Section 4.1.30 Anti-Terrorism Compliance. At least five Business Days prior to the Closing Date, each Purchaser shall have received all documentation and other information requested by such Purchaser, which is required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act, or pursuant to such Purchaser’s internal policies.

Section 4.1.31 Other Real Estate Requirements. The Company shall have delivered to each of the Purchasers copies of (i) all Leases or easements in which the Company holds the lessor’s interest or other agreements relating to possessory interests, if any, in the Real Property and (ii) all NDAs obtained as of the Closing Date.

Section 4.1.32 Solvency Certificate. The Company shall have delivered to each of the Purchasers a certificate from the president of the Company, certifying that the Company is Solvent after giving effect to the transactions contemplated hereby.

Section 4.1.33 Utility Laws. No federal, state or local law or regulation exists as of the Closing Date under which any Purchaser would become, solely as a result of the transactions contemplated in the Credit Documents, subject to and not subject to an exemption from or waiver of regulation as an “electric utility,” “electric corporation,” “electrical company,” “public utility,” or “holding company” under the FPA, PUHCA or the laws of the States of California, Connecticut, New York and New Jersey and any other state in which the Company operates facilities that generate electricity except a Purchaser may become subject to such regulation upon the exercise of remedies under the Credit Documents.

Section 4.1.34 Insurance Policy. The Company shall have delivered to the Purchasers a fully executed copy of the Policy, in form and substance reasonably satisfactory to the Purchasers, dated on or before the Closing Date, issued by the Insurer and (i) such Policy is in full force and effect and (ii) all premiums then due and owing thereunder have been paid.

Section 4.1.35 Equity Capital Contribution Agreement. The Company shall have delivered to the Purchasers a true, correct and complete copy of the Equity Capital Contribution Agreement, in form and substance reasonably satisfactory to the Purchasers, (i) which shall have been duly authorized, executed and delivered by the parties thereto and be in full force and effect on the Closing Date and (ii) with respect to which no material breaches or defaults have occurred and are continuing thereunder, and accompanied by a certificate of the Company certifying to the foregoing.

Section 4.2 Conditions Precedent to All Drawdowns.

The obligations of the Holders to permit any Drawdown from the Proceeds Escrow Account are, in each case, subject to the prior satisfaction by the Company of each of the following conditions (unless waived in writing by the Required Holders) with respect to such Drawdown:

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Section 4.2.1 Drawdown Certificate and Independent Engineer’s Drawdown Certificate.

(a) At least seven Business Days prior to the proposed date of a Drawdown, the Company shall have provided each Holder and the Independent Engineer with a duly executed copy of a Drawdown Certificate, dated the date of delivery of such certificate, setting forth the date of the proposed occurrence of such Drawdown and signed by a Responsible Officer of the Company, substantially in the form of Exhibit 4.2.1(a) (the “Drawdown Certificate”).

(b) At least four Business Days prior to the proposed date of a Drawdown, the Independent Engineer shall have provided the Company and the Company shall have provided each Holder with a certificate of the Independent Engineer signed by an authorized representative of the Independent Engineer, substantially in the form of Exhibit 4.2.1(b) (the “Independent Engineer’s Drawdown Certificate”).

(c) At least two Business Days prior to the proposed date of a Drawdown, the Company shall have provided each Holder (with a copy to the Independent Engineer) with a certificate, confirming that COO has occurred with respect to the Systems being funded under the requested Drawdown and signed by an authorized representative of the Company, substantially in the form of Exhibit 4.2.1(c) (the “Company’s COO Certificate”).

(d) At least one Business Day prior to the proposed date of a Drawdown, the Independent Engineer shall have provided the Company and the Company shall have provided each Holder with a certificate dated the date of delivery of such certificate, confirming that COO has occurred with respect to the Systems being funded under the requested Drawdown, substantially in the form of Exhibit 4.2.1(d) (the “Independent Engineer’s COO Certificate”).

Section 4.2.2 Available Funds. After taking into consideration the making of the applicable Drawdown, Available Funds shall not be less than the aggregate unpaid amount required to cause Final Completion to occur in accordance with all Legal Requirements, the PUMA, each other Project Document pursuant to which construction work with respect to the Project is being performed and the Credit Documents on or before the Date Certain.

Section 4.2.3 Permits.

(a) Each Applicable Permit and Applicable Third Party Permit with respect to the System or Systems being funded under the requested Drawdown shall have been duly obtained and issued or been assigned in the Company’s or the applicable third party’s name, shall be in full force and effect, shall not be subject to any current legal proceeding, and shall not be subject to any Unsatisfied Condition that could reasonably be expected to result in material modification or revocation of such Applicable Permit and Applicable Third Party Permit, and all applicable appeal periods with respect to such Applicable Permit and Applicable Third Party Permit shall have expired, except in each case where such failure, legal proceeding or unsatisfied condition could reasonably be expected to result in a Material Adverse Effect.

(b) The Permits which have been obtained by the Company with respect to the System or Systems being funded under the requested Drawdown shall not be subject to any restriction, condition, limitation or other provision that could reasonably be expected to have a Material Adverse Effect.

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Section 4.2.4 Lien Releases. Subject to the Company’s right to contest Liens as described in the definition of “Permitted Liens,” the Company shall have delivered (such delivery may be conditioned upon concurrent receipt of payment by the relevant Person) if applicable, to each Holder duly executed Lien waivers relating to mechanics’ and materialmen’s Liens, in form and substance reasonably acceptable to each Holder.

Section 4.2.5 Acceptable Work; No Liens. All work that has been done on the Project has been done in accordance with the PUMA, and there shall not have been filed against any of the Collateral or otherwise filed with or served upon the Company with respect to the Project or any part thereof, notice of any Lien, claim of Lien or attachment upon or claim affecting the right to receive payment of any of the moneys payable to any of the Persons named on such request which has not been released by payment or bonding or otherwise or which will not be released with the payment of such obligation out of the proceeds of the Notes, other than Permitted Liens.

Section 4.2.6 System COO. Each System being financed with such Drawdown has achieved COO.

Section 4.2.7 Equity Funding; Proportional Funding.

(a) Prior to the date any System is placed in service, the Pledgor shall have contributed to the Company [***] of the aggregate purchase price of such System, consistent with the Base Case Projections.

(b) Concurrently with any Drawdown, the Pledgor shall have contributed to the Company [***] of the aggregate purchase price of the Systems placed in service through the date of such Drawdown, consistent with the Base Case Projections.

(c) After giving effect to any Drawdown, the ratio of (x) the proceeds of the Notes drawn from the Proceeds Escrow Account to (y) the total Notes (adjusted for proceeds from the Notes used to fund the Debt Service Reserve Account, the IDC Reserve Account, and to the payment of transaction expenses) shall not exceed the ratio of the aggregate system capacity of commissioned Systems to 20.95 MW.

(d) The Equity Capital Contribution Agreement shall continue to be in full force and effect and, to the Company’s Knowledge, no material breaches or defaults have occurred and are continuing thereunder.

Section 4.2.8 Insurance Policy. The Policy is in full force and effect and all premiums then due and owing thereunder, as well as premiums thereunder that are required to be paid by the fifteenth day of the current calendar quarter, have been paid.

Section 4.2.9 Utilities. All process water, sewer, telephone, waste disposal, electric and all other utility services necessary for the development, construction, ownership and operation of the Project are either contracted for, or are readily available on commercially reasonable terms, with respect to the System or Systems being funded under such requested Drawdown.

[***] Confidential Treatment Requested

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Section 4.2.10 Direct Agreements. (a) Prior to the date of the first Drawdown but no later than ten (10) Business Days following the Closing Date, the Company shall have delivered to each of the Purchasers an executed Direct Agreement from the Offtaker with respect to the Home Depot ESA, which Direct Agreement shall be substantially in the form of Exhibit 4.1.29(b) or otherwise reasonably satisfactory to the Purchasers.

(b) Prior to the date of the first Drawdown but no later than September 30, 2014, the Company shall have delivered to each of the Purchasers executed Direct Agreements from the Offtakers with respect to each of the AT&T ESAs, which Direct Agreements shall be substantially in the form of Exhibit 4.1.29(c) or otherwise reasonably satisfactory to the Purchasers.

Section 4.2.11 Opinions of Counsel. (a) Prior to the date of the first Drawdown but no later than ten (10) Business Days following the Closing Date, the Company shall have delivered to each Purchaser an opinion addressed to each such Purchaser, dated on or before the date of the first Drawdown from Morris James LLP, as special Delaware counsel for the Company covering the enforceability of the Direct Agreement relating to the Home Depot ESA, substantially in the form of Exhibit 4.1.13(c) but covering only the enforceability of the Direct Agreement relating to the Home Depot ESA or in form and substance reasonably satisfactory to such Purchaser.

(b) Prior to the date of the first Drawdown but no later than September 30, 2014, the Company shall have delivered to each Purchaser an opinion addressed to each such Purchaser, dated on or before the date of the first Drawdown from O’Melveny & Myers LLP, as counsel for the Company, covering the enforceability of each Direct Agreement relating to each AT&T ESA, substantially in the form of Exhibit 4.2.11 or in form and substance reasonably satisfactory to such Purchaser.

Section 4.2.12 Home Depot Parent Guaranty. Prior to the date of the first Drawdown but no later than ten (10) Business Days following the Closing Date, the Company shall have delivered to each of the Purchasers a true, correct and complete copy of, the executed Home Depot Parent Guaranty, in the form of Exhibit 4.2.12, (i) which shall have been duly authorized, executed and delivered by the Home Depot Parent, and be in full force and effect on such date and (ii) with respect to which no material breaches or defaults have occurred and are continuing thereunder, and accompanied by a certificate of the Company certifying to the foregoing.

Section 4.3 Conditions Precedent to each Credit Event.

Section 4.3.1 Representations and Warranties.

(a) Each representation and warranty of each Credit Party in any of the NPA Documents shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the date of such Credit Event, before and after giving effect to the applicable Credit Event, with the same effect as though made on and as of such date, unless such representation or warranty expressly relates solely to an earlier date; and the Company shall have certified to the Purchasers or Holders, as applicable, as to the foregoing.

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(b) Each representation and warranty of each Major Project Participant contained in the Operative Documents (other than this Agreement and the Policy) shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” or the like shall be true and correct in all respects) on and as of the date of such Credit Event, before and after giving effect to the Credit Event, with the same effect as though made on and as of such date, unless such representation and warranty expressly relates solely to an earlier date.

Section 4.3.2 No Default or Event of Default. No Default or Event of Default shall have occurred and be continuing or will result from the relevant Credit Event.

Section 4.3.3 No Material Adverse Effect. At any time following the Closing Date, there shall not have occurred and be continuing any event, circumstance or condition that has, or could reasonably be expected to have, a Material Adverse Effect.

Section 4.3.4 Additional Documentation.

(a) With respect to Additional Project Documents entered into or obtained, transferred or required (whether because of the status of the development, construction or operation of the Project or otherwise) since the date of the most recent Credit Event, the Purchasers shall have received copies of such Additional Project Documents.

(b) With respect to any NDAs entered into or obtained since the date of the most recent Credit Event, the Purchasers shall have received copies of all such NDAs.

ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.

The Company represents and warrants to each Purchaser that:

Section 5.1 Organization; Power and Authority.

(a) The Company is a limited liability company duly formed, validly existing and in good standing under the laws of its jurisdiction of formation, and is duly qualified as a foreign company and is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company has the limited liability company power and authority to own or hold under lease the properties it purports to own or hold under lease, to transact the business it transacts and proposes to transact, to execute and deliver this Agreement and the other Operative Documents to which it is a party (including, without limitation, the Notes) and to perform the provisions hereof and thereof, including to construct, own and operate the Project.

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(b) The sole member of the Company is the Pledgor.

Section 5.2 Authorization, Etc. This Agreement and the other Operative Documents to which the Company is a party (including, without limitation, the Notes) have been duly authorized by all necessary limited liability company action on the part of the Company, and this Agreement constitutes, and upon execution and delivery thereof each other Operative Document to which the Company is a party will constitute, a legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms, except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

Section 5.3 Disclosure. The Company, through its agent, J.P. Morgan Securities, LLC. has delivered to each Purchaser a copy of a Private Placement Memorandum, dated May, 2014 (the “Memorandum”), relating to the transactions contemplated hereby. The Memorandum fairly describes, in all material respects, the general nature of the business and principal properties of the Company. This Agreement, the Memorandum and the documents, certificates or other writings delivered to the Purchasers by or on behalf of the Company in connection with the transactions contemplated hereby and identified in Schedule 5.3, and the financial statements listed in Schedule 5.5 (this Agreement, the Memorandum and such documents, certificates or other writings and such financial statements delivered to each Purchaser prior to June 20, 2014 being referred to, collectively, as the “Disclosure Documents”), taken as a whole, do not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading in light, as of the date such information is dated or the Closing Date, of the circumstances under which they were made; provided, that to the extent any such information, report, financial statement, certificate, Certificate of Drawdown, exhibit, schedule or other document was based upon or constitutes a forecast or projection, the Company represents only that it acted in good faith and utilized reasonable assumptions and due care in the preparation of such information, report, financial statement, certificate, Certificate of Drawdown, exhibit, schedule or other document; provided further, that the Company makes no representations with respect to information related to third parties other than the Sponsor which is set forth in the investor presentation titled “Bloom Energy Overview,” dated May 2014 posted to the datasite established by J.P. Morgan Securities LLC. Except as disclosed in the Disclosure Documents, since December 31, 2013, there has been no change in the financial condition, operations, business, properties or prospects of the Company or the Sponsor except changes that individually or in the aggregate could not reasonably be expected to have a Material Adverse Effect. There is no fact known to the Company that could reasonably be expected to have a Material Adverse Effect that has not been set forth herein or in the Disclosure Documents.

Section 5.4 Subsidiaries. The Company does not have any Subsidiaries.

Section 5.5 Financial Statements; Material Liabilities. The Company has delivered to each of the Purchasers copies of the financial statements of Sponsor listed on Schedule 5.5. All of said financial statements (including related schedules and notes) fairly present in all material respects the consolidated financial position of Sponsor as of the dates specified in such

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Schedule and the results of its operations and cash flows and have been prepared in accordance with GAAP consistently applied throughout the periods involved except as set forth in the notes thereto (subject, in the case of any interim financial statements, to normal year- end adjustments). Neither the Company nor Sponsor has any Material liabilities that are not disclosed in the Disclosure Documents.

Section 5.6 Compliance with Laws, Other Instruments, Etc. The execution, delivery and performance by the Company of this Agreement and the other Operative Documents to which the Company is a party (including, without limitation, the Notes) will not (i) contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien (other than pursuant to the Credit Documents) in respect of any property of the Company under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, Governing Documents, or any other agreement or instrument to which the Company is bound or by which the Company or its properties may be bound or affected, (ii) conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment, decree, or ruling of any court, arbitrator or Governmental Authority applicable to the Company or (iii) violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to the Company.

Section 5.7 Governmental Authorizations, Etc. No consent, approval or authorization of, or registration, filing or declaration with, (other than Permits which are expected to be obtained after the Closing Date) any Governmental Authority after the date hereof is required in connection with the execution, delivery or performance by the Company of this Agreement or any other Operative Documents to which the Company is a party (including, without limitation, the Notes).

Section 5.8 Observance of Agreements, Statutes and Orders. The Company is not (i) in default under any term of any agreement or instrument to which it is a party or by which it is bound, (ii) in violation of any order, judgment, decree or ruling of any court, arbitrator or Governmental Authority or (iii) in violation of any applicable law, ordinance, rule or regulation of any Governmental Authority (including, without limitation, Environmental Laws, the USA PATRIOT Act or any of the other laws and regulations that are referred to in Section 5.16), which default or violation, individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.

Section 5.9 Taxes. The Company has filed all tax returns that are required to have been filed in any jurisdiction, and has paid all taxes shown to be due and payable on such returns and all other taxes and assessments levied upon it or its properties, assets, income or franchises, to the extent such taxes and assessments have become due and payable and before they have become delinquent, except for any taxes and assessments (i) the amount of which is not individually or in the aggregate Material or (ii) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which the Company has established adequate reserves in accordance with GAAP. The Company knows of no basis for any other tax or assessment that could reasonably be expected to have a Material Adverse Effect. The charges, accruals and reserves on the books of the Company in respect of U.S. federal, state or other taxes for all fiscal periods are adequate.

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Section 5.10 Tax Status. The Company is and has been at all times since formation an entity that is disregarded as separate from its owner for U.S. federal and applicable state and local income tax purposes.

Section 5.11 Licenses, Permits, Etc.

(a) The Company owns or has the right to use all licenses, permits, franchises, authorizations, patents, copyrights, service marks, trademarks and trade names, or rights thereto, that are necessary for the operation of its business, without known conflict with the rights of others. No product or service of the Company infringes in any material respect any license, permit, franchise, authorization, patent, copyright, service mark, trademark, trade name or other right owned by any other Person.

(b) To the Knowledge of the Company, there is no violation by any Person of any right of the Company with respect to any license, patent, copyright, service mark, trademark, trade name or other right owned or used by the Company.

(c) There exists no pending or, to the Knowledge of the Company, threatened claim or litigation against or affecting the Company, contesting its right to sell or use any such product, process, method, substance, part or other material.

(d) The Company owns no registered patents, copyrights or trademarks, or applications therefor.

Section 5.12 Compliance with ERISA.

(a) The Company and each ERISA Affiliate have operated and administered each Plan subject to Title IV (other than any Multiemployer Plan) in compliance in all material respects with all applicable laws. Neither the Company nor any ERISA Affiliate has incurred any material liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans (as defined in section 3 of ERISA) which has not been satisfied, and no event, transaction or condition has occurred or exists that could reasonably be expected to result in the incurrence of any such material liability by the Company or any ERISA Affiliate, or in the imposition of any material Lien on any of the rights, properties or assets of the Company or any ERISA Affiliate, in either case pursuant to Title I or IV of ERISA or to section 430(k) of the Code or to such penalty or excise tax provisions or to section 4068 of ERISA.

(b) The present value of the aggregate benefit liabilities under all of the Underfunded Plans, determined as of the end of each such Underfunded Plan’s most recently ended plan year on the basis of the actuarial assumptions specified for funding purposes in such Underfunded Plan’s most recent actuarial valuation report, did not exceed the aggregate current value of the assets of all of the Underfunded Plans, determined by reference to the current value of the assets allocable to each such Underfunded Plan’s benefit liabilities as of the end of such Underfunded Plan’s most recently ended plan year, by an amount that, if required to be paid in an immediate lump-sum payment, could reasonably be expected to result in a Material Adverse Effect. The term “Underfunded Plan” means a Plan (other than a Multiemployer Plan) for which the aggregate benefit liabilities determined as of the end of such Plan’s most recently ended plan year on the basis of actuarial assumptions specified for funding purposes for such Plan in such Plan’s

most recent actuarial statement exceeded the aggregate current value of the assets of such Plan, the term “benefit liabilities” has the meaning specified in section 4001 of ERISA and the terms “current value” and “present value” have the meaning specified in section 3 of ERISA.

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(c) The Company and its ERISA Affiliates have not incurred any material partial or complete withdrawal liabilities (and are not subject to material contingent withdrawal liabilities) under section 4201 or 4204 of ERISA in respect of Multiemployer Plans.

(d) The expected postretirement benefit obligation (determined as of the last day of the Company’s most recently ended fiscal year in accordance with Financial Accounting Standards Board Statement No. 106, without regard to liabilities attributable to continuation coverage mandated by section 4980B of the Code) of the Company is zero.

(e) The execution and delivery of this Agreement and the issuance and sale of the Notes hereunder will not involve any transaction that is subject to the prohibitions of section 406 of ERISA or in connection with which a tax could be imposed pursuant to section 4975(c)(1)(A)-(D) of the Code. The representation by the Company in the first sentence of this Section 5.12(e) is made in reliance upon and subject to the accuracy of, each Purchaser’s representation in Section 6.2 as to the sources of the funds used to pay the purchase price of the Notes to be purchased by such Purchaser.

Section 5.13 Private Offering by the Company. Neither the Company nor anyone acting on its behalf has offered the Notes or any similar Securities for sale to, or solicited any offer to buy any of the same from, or otherwise approached or negotiated in respect thereof with, any Person other than the Purchasers and not more than 35 other Institutional Investors, each of which has been offered the Notes at a private sale for investment. Neither the Company nor anyone acting on its behalf has taken, or will take, any action that would subject the issuance or sale of the Notes to the registration requirements of section 5 of the Securities Act or to the registration requirements of any securities or blue sky laws of any applicable jurisdiction.

Section 5.14 Use of Proceeds; Margin Regulations. The Company will apply the proceeds of the sale of the Notes (i) on the Closing Date as set forth in Section 9.7(a)(A) and (ii) thereafter as set forth in Section 9.7(a)(B). No part of the proceeds from the sale of the Notes hereunder will be used, directly or indirectly, for the purpose of buying or carrying any margin stock within the meaning of Regulation U of the Board of Governors of the Federal Reserve System (12 CFR 221), or for the purpose of buying or carrying or trading in any Securities under such circumstances as to involve the Company in a violation of Regulation X of said Board (12 CFR 224) or to involve any broker or dealer in a violation of Regulation T of said Board (12 CFR 220). Margin stock does not constitute any of the value of the assets of the Company and the Company does not have any present intention that margin stock will constitute any of the value of such assets. As used in this Section, the terms “margin stock” and “purpose of buying or carrying” shall have the meanings assigned to them in said Regulation U.

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Section 5.15 Existing Debt; Future Liens.

(a) Except as described therein, Schedule 5.15 sets forth a complete and correct list of all outstanding Debt of the Company as of the Closing Date (including a description of the obligors and obligees, principal amount outstanding and collateral therefor, if any, and Guaranty thereof, if any), since which date there has been no Material change in the amounts, interest rates, sinking funds, installment payments or maturities of the Debt of the Company. The Company is not in default and no waiver of default is currently in effect, in the payment of any principal or interest on any Debt of the Company and no event or condition exists with respect to any Debt of the Company that would permit (or that with notice or the lapse of time, or both, would permit) one or more Persons to cause such Debt to become due and payable before its stated maturity or before its regularly scheduled dates of payment.

(b) The Company has not agreed or consented to cause or permit in the future (upon the happening of a contingency or otherwise) any of its property, whether now owned or hereafter acquired, to be subject to a Lien not permitted by Section 10.6.

(c) The Company is not a party to, or otherwise subject to any provision contained in, any instrument evidencing Debt of the Company, any agreement relating thereto or any other agreement (other than its charter or other organizational document and the Credit Documents) which limits the amount of, or otherwise imposes restrictions on the incurring of, Debt of the Company, except as specifically indicated in Schedule 5.15.

Section 5.16 Foreign Assets Control Regulations, Etc..

(a) Neither the Company nor any Controlled Entity is (i) a Person whose name appears on the list of Specially Designated Nationals and Blocked Persons published by the Office of Foreign Assets Control, U.S. Department of the Treasury (“OFAC”) (an “OFAC Listed Person”) or (ii) a department, agency or instrumentality of, or is otherwise Controlled by or acting on behalf of, directly or indirectly, (x) any OFAC Listed Person or (y) any Person, entity, organization, foreign country or regime that is subject to any OFAC Sanctions Program (each OFAC Listed Person and each other Person, entity, organization and government of a country described in clause (ii), a “Blocked Person”).

(b) No part of the proceeds from the sale of the Notes hereunder constitutes or will constitute funds obtained on behalf of any Blocked Person or will otherwise be used, directly by the Company or indirectly through any Controlled Entity, in connection with any investment in, or any transactions or dealings with, any Blocked Person.

(c) To the Company’s actual knowledge after making reasonable inquiry, neither the Company nor any Controlled Entity (i) is under investigation by any Governmental Authority for, or has been charged with, or convicted of, money laundering, drug trafficking, terrorist-related activities or other money laundering predicate crimes under any applicable law (collectively, “Anti-Money Laundering Laws”), (ii) has been assessed civil penalties under any Anti-Money Laundering Laws or (iii) has had any of its funds seized or forfeited in an action under any Anti-Money Laundering Laws. The Company has taken reasonable measures appropriate to the circumstances (in any event as required by applicable law) to ensure that the Company and each Controlled Entity is and will continue to be in compliance with all applicable Anti-Money Laundering Laws.

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(d) No part of the proceeds from the sale of the Notes hereunder will be used, directly or indirectly, for any improper payments to any governmental official or employee, political party, official of a political party, candidate for political office, official of any public international organization or anyone else acting in an official capacity on behalf of a Governmental Authority, in order to obtain, retain or direct business or obtain any improper advantage. The Company has taken reasonable measures appropriate to the circumstances (in any event as required by applicable law) to ensure that the Company and each Controlled Entity is and will continue to be in compliance with all applicable anti-corruption laws and regulations.

Section 5.17 Status under Certain Statutes. The Company is not subject to regulation under the Investment Company Act of 1940, as amended.

Section 5.18 Environmental Matters.

(a) The Company has no Knowledge of any claim, nor has received any notice of any claim, and no proceeding has been instituted in writing raising any claim against the Company or any of its real properties now or formerly owned, leased or operated by it or other assets of the Company, alleging any damage to the environment arising out of or related to the operations of the Company or violation of any Environmental Laws, except, in each case, such as could not reasonably be expected to result in a Material Adverse Effect.

(b) The Company has no Knowledge of any facts which would give rise to any claim, public or private, of violation of Environmental Laws or damage to the environment emanating from, occurring on or in any way related to real properties now or formerly owned, leased or operated by it or to other assets of the Company or their use, except, in each case, such as could not reasonably be expected to result in a Material Adverse Effect.

(c) The Company has not stored any Hazardous Substances on real properties now or formerly owned, leased or operated by it and has not disposed of any Hazardous Substances in a manner contrary to any Environmental Laws in each case in any manner that could reasonably be expected to result in a Material Adverse Effect.

Section 5.19 Permits.

(a) All Applicable Permits and Applicable Third Party Permits that have been issued have been duly obtained or been assigned in the Company’s or the applicable third party’s name, are in full force and effect and not subject to current legal proceedings or to any Unsatisfied Condition that could reasonably be expected to result in material modification or revocation, and all applicable appeal periods with respect thereto have expired, except where such failure, legal proceeding, unsatisfied condition or appeal could not reasonably be expected to result in a Material Adverse Effect. The Company is in compliance in all material respects with each Applicable Permit that has been issued and, to the Company’s Knowledge, no other Person is in material violation of any issued Applicable Third Party Permit under which such Person is the permittee, except where such non-compliance could not reasonably be expected to result in a Material Adverse Effect.

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(b) With respect to any Permits that are not yet Applicable Permits or, to the Knowledge of the Company, Applicable Third Party Permits, no fact or circumstance exists which makes it likely that any such Permit will not be timely obtainable by the Company or the applicable Person (i) prior to the time that it becomes an Applicable Permit or Applicable Third Party Permit, as applicable, (ii) without expense materially in excess of the amounts provided therefor in the then-current Project Budget and (iii) without being inconsistent in any material respect with any of the Operative Documents, except in each case where failure to obtain such Permit could not reasonably be expected to result in a Material Adverse Effect.

(c) Except as disclosed in Schedule 5.19, the Permits which have been obtained by the Company or, to the Company’s Knowledge, any other person identified in Schedule 5.19 are not subject to any restriction, condition, limitation or other provision that could reasonably be expected to have a Material Adverse Effect.

Section 5.20 Solvency. The Company is Solvent both before and after taking into account the transactions contemplated by the Credit Documents.

Section 5.21 Insurance. All insurance policies then required to be maintained by the Company and, to the Company’s Knowledge, each other Credit Party pursuant to the terms of the Operative Documents are in full force and effect, and all premiums then due and payable have been paid.

Section 5.22 Litigation.

(a) As of the Closing Date, (i) there is no pending or, to the Company’s Knowledge, threatened action, litigation, suit, proceeding or investigation before or by any court, arbitrator or other Governmental Authority by or against any Credit Party related to the Project and (ii) to the Company’s Knowledge, there is no pending or threatened action, litigation, suit, proceeding or investigation of any kind, including actions or proceedings of or before any Governmental Authority by or against any Major Project Participant (other than the Credit Parties) related to the Project.

(b) As of the Closing Date, the Company has no Knowledge of any order, judgment or decree having been issued or proposed to be issued by any Governmental Authority that, as a result of the construction, development, ownership or operation of the Project by the Company, the sale of electricity therefrom by the Company or the entering into of any Operative Document or any transaction contemplated hereby or thereby, could reasonably be expected to cause or deem any Secured Party or the Company or any Affiliate of any of them to be subject to, and not benefit from an exemption from or waiver of, regulation by FERC under PUHCA, or be treated as a public utility under the laws of the States of California, New York, New Jersey and Connecticut as presently constituted and as construed by the courts of such States, respecting the rates or the financial or organizational regulation of electric utilities.

(c) After the Closing Date, there is no pending or, to the Company’s Knowledge, threatened action, litigation, suit, proceeding or investigation of any kind, including actions or proceedings of or before any Governmental Authority or arbitrator to which the Company or any other Credit Party is a party, or by which any of them or any of their properties that relate to the Project are bound, which has not been disclosed by the Company to the Purchasers in accordance with, and to the extent required by this Agreement, or which could reasonably be expected to have a Material Adverse Effect.

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Section 5.23 Labor Matters. The Company is not engaged in any unfair labor practice that has had or could (individually or together with other similar unfair labor practices) reasonably expected to have a Material Adverse Effect.

Section 5.24 Governmental Regulation.

(a) As of the Closing Date, (i) the Company sells electricity at each Site only to the applicable Offtaker pursuant to the relevant ESA and will not make any other wholesale or retail sales and (ii) is not subject to or benefits from an exemption from or waiver of regulation (A) by FERC as an “electric utility company”, a “public-utility company” or a “holding company” or a “subsidiary company” of a “holding company” in each case as such term is defined under PUHCA, or (B) as an “electric supplier”, a “retail electricity supplier” or a “public utility” under the laws of the States of California, New York, New Jersey or Connecticut and any other state in which the Company operates facilities that generate electricity. The Company is not a “public utility” under the FPA.

(b) None of the Secured Parties nor any Affiliate of any of them will, solely as a result of the construction, ownership, leasing or operation of the Project, the issuance of the Notes, or the entering into of any Operative Document in respect of the Project or any transaction contemplated hereby or thereby, be subject to, or not and not benefit from an exemption from or waiver of, regulation as a “public utility” under the FPA, under PUHCA or under state laws and regulations respecting the rates or the financial regulation of electric utilities, except that the exercise of remedies, as provided for under the Credit Documents, may cause any such Person to be subject to, and not benefit from an exemption or waiver from, such regulation. The Company will not be subject to regulation as a “retail electricity supplier,” an “electric supplier” or a “public utility” under the laws of the States of California, New York, New Jersey or Connecticut and any other state in which the Company operates facilities that generate electricity then in effect.

Section 5.25 Ranking of Obligations; Perfection and Priority of Liens.

(a) This Agreement and the Notes and the obligations evidenced hereby and thereby are and will at all times (i) be direct and unconditional general obligations of the Company and (ii) rank in right of payment and otherwise at least pari passu with all other senior secured Debt of the Company, whether now existing or hereafter incurred.

(b) The provisions of the Collateral Documents to which the Company is a party are effective to create, in favor of the Collateral Agent for the benefit of the Secured Parties, as security for the obligations purported to be secured thereby, a legal, valid and enforceable Lien on and security interest in all of the Collateral (other than the Collateral in California that is subject to Subdivision Map Act) purported to be covered by such Collateral Documents, and all other necessary and appropriate action has been taken so that each such Collateral Document creates, or upon the filing of any necessary filing statements will create, a perfected Lien on and perfected security interest in all right, title and interest of the Company in the Collateral covered

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thereby in which a first priority security interest can be perfected by possession or by filings under the UCC, prior and superior to the rights of all third persons and subject to no Liens other than Permitted Liens. The Company has good, legal and valid title to all items of Collateral (other than for Leases of property located in California) covered by each Collateral Document to which it is a party, free and clear of all Liens other than Permitted Liens.

Section 5.26 Project Construction. To the best of the Company’s Knowledge, all work done on the Project has been done in a good and workmanlike manner, free of any material defects, and in accordance in all material respects with the Major Project Documents, Prudent Electrical Practices and all Legal Requirements.

Section 5.27 Adverse Change.

(a) As of the Closing Date, there is no fact known to the Company which has had or could reasonably be expected to have a Material Adverse Effect which has not been disclosed to the Purchasers (as of such date) by or on behalf of the Company on or prior to the Closing Date in connection with the transactions contemplated hereby.

(b) Since the Closing Date, no event, circumstance or condition has occurred and is continuing that constitutes or could reasonably be expected to result in a Material Adverse Effect.

Section 5.28 Major Project Documents. True, correct and complete copies of all Major Project Documents together with all amendments, modifications or supplements thereof as currently in effect have been delivered to the Purchasers. Each Major Project Document is in full force and effect and, to the Company’s Knowledge, no material breaches or defaults have occurred and are continuing thereunder.

Section 5.29 Sufficiency of Rights. Other than those that can be reasonably expected to be commercially available when and as required, the services to be performed, the materials to be supplied and the real property interests and other rights granted, or to be granted, pursuant to the Project Documents in effect as of such date:

(a) comprise all of the interests necessary to secure any right material to the acquisition, leasing, development, construction, installation, completion, operation and maintenance of the Project at each Site in accordance with all Legal Requirements, all without reference to any proprietary information not owned by or available to the Company;

(b) are sufficient to enable the Project to be located, constructed, developed, owned, occupied, operated, maintained and used on the applicable Sites; and

(c) provide adequate ingress and egress from the applicable Sites for any reasonable purpose in connection with the construction and operation of the Project.

Section 5.30 Real Estate.

(a) The Company owns and possesses (i) good and valid leasehold interests (other than for Leases of Property located in California) or valid and subsisting easement interests and licenses, if applicable, in and to the Sites, and (ii) interests in any other Real Property, in each case free and clear of all Liens, encumbrances or other exceptions to title, other than Permitted Liens.

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(b) With regard to each of the Real Property Documents (other than those related to property located in California) (a) each such Real Property Document is valid and effective against the Company and, to the Company’s Knowledge, the counterparties thereto, in accordance with the terms thereof, (b) neither the Company, nor to the Company’s Knowledge, any of the counterparties thereto, is in breach or default under such Real Property Document, and (c) to the Company’s Knowledge, no event or circumstance has occurred or currently exists which, with notice or lapse of time or both, would become a default by the Company or the counterparties thereto under such Real Property Document. No notice of default under any Real Property Document has been delivered to the Company or, to the Company’s Knowledge, the counterparties thereto.

(c) The Company has not received written notice from any Governmental Authority of any pending or threatened proceeding to condemn or take by power of eminent domain or otherwise, by any Governmental Authority, all or any material part of the Real Property or any interest therein.

Section 5.31 Investments. Other than Permitted Investments, the Company has not acquired an equity interest in, acquired all or substantially all of the assets of, loaned money, extended credit or made advances to, or made deposits with (other than deposits or advances in relation to the payment for goods and equipment in the ordinary course of business the making of which is expressly contemplated pursuant to the Operative Documents), any Person.

Section 5.32 No Recordation, Etc. Each Operative Document is in proper legal form under the respective governing laws selected in such Operative Document (other than those related to property located in California) (a) for the enforcement thereof in such jurisdictions against the Company and each other party thereto without any further action on the part of the Secured Parties, and (b) to ensure the legality, validity, enforceability, priority or admissibility in evidence of any such document, it is not necessary that such document or any other document be filed, registered or recorded with, or executed or notarized before, any court or other authority in such jurisdiction or that any registration charge or stamp or similar tax be paid on or in respect of any such document, except for the recordation of the Collateral Documents and filing and recordation of such other documents as specifically contemplated pursuant to this Agreement. The Company makes no representation as to whether or not it is a “transmitting utility” as defined in, and for the purposes of, the Uniform Commercial Code of any State or otherwise.

Section 5.33 Organizational ID Number; Location of Tangible Collateral.

(a) The Company’s Delaware organizational identification number is 5430523.

(b) All of the tangible Collateral is, or when installed pursuant to the Project Documents will be, located on one of the Sites or at the Company’s address set forth in Article 18; provided, that equipment may be temporarily removed from the Sites from time to time in the ordinary course of business.

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ARTICLE 6. REPRESENTATIONS OF THE PURCHASERS.

Section 6.1 Purchase for Investment. Each Purchaser severally represents that it is purchasing the Notes for its own account or for one or more separate accounts maintained by such Purchaser or for the account of one or more pension or trust funds and not with a view to the distribution thereof, provided that the disposition of such Purchaser’s or their property shall at all times be within such Purchaser’s or their control. Each Purchaser understands that the Notes have not been registered under the Securities Act and may be resold only if registered pursuant to the provisions of the Securities Act or if an exemption from registration is available, except under circumstances where neither such registration nor such an exemption is required by law, and that the Company is not required to register the Notes.

Section 6.2 Source of Funds. Each Purchaser severally represents that at least one of the following statements is an accurate representation as to each source of funds (a “Source”) to be used by such Purchaser to pay the purchase price of the Notes to be purchased by such Purchaser hereunder:

(a) the Source is an “insurance company general account” (as the term is defined in the United States Department of Labor’s Prohibited Transaction Exemption (“PTE”) 95-60) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the NAIC (the “NAIC Annual Statement”)) for the general account contract(s) held by or on behalf of any employee benefit plan together with the amount of the reserves and liabilities for the general account contract(s) held by or on behalf of any other employee benefit plans maintained by the same employer (or affiliate thereof as defined in PTE 95-60) or by the same employee organization in the general account do not exceed 10% of the total reserves and liabilities of the general account (exclusive of separate account liabilities) plus surplus as set forth in the NAIC Annual Statement filed with such Purchaser’s state of domicile; or

(b) the Source is a separate account that is maintained solely in connection with such Purchaser’s fixed contractual obligations under which the amounts payable, or credited, to any employee benefit plan (or its related trust) that has any interest in such separate account (or to any participant or beneficiary of such plan (including any annuitant)) are not affected in any manner by the investment performance of the separate account; or

(c) the Source is either (i) an insurance company pooled separate account, within the meaning of PTE 90-1 or (ii) a bank collective investment fund, within the meaning of PTE 91-38 and, except as disclosed by such Purchaser to the Company in writing pursuant to this clause (c), no employee benefit plan or group of plans maintained by the same employer or employee organization beneficially owns more than 10% of all assets allocated to such pooled separate account or collective investment fund; or

(d) the Source constitutes assets of an “investment fund” (within the meaning of Part VI of PTE 84-14 (the “QPAM Exemption”)) managed by a “qualified professional asset manager” or “QPAM” (within the meaning of Part VI of the QPAM Exemption), no employee benefit plan’s assets that are managed by the QPAM in such investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same

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employer or by an affiliate (within the meaning of Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, exceed 20% of the total client assets managed by such QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption are satisfied, neither the QPAM nor a person controlling or controlled by the QPAM (applying the definition of “control” in Section VI(e) of the QPAM Exemption) maintains an ownership interest in the Company that would cause the QPAM and the Company to be “related” within the meaning of Part VI(h) of the QPAM Exemption and (i) the identity of such QPAM and (ii) the names of any employee benefit plans whose assets in the investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization, represent 10% or more of the assets of such investment fund, have been disclosed to the Company in writing pursuant to this clause (d);or

(e) the Source constitutes assets of a “plan(s)” (within the meaning of section IV(h) of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled by the INHAM (applying the definition of “control” in section IV(d) of the INHAM Exemption) owns a 10% or more interest in the Company (as determined under Part IV(d) of the INHAM Exemption, as amended effective April 1, 2011) and (i) the identity of such INHAM and (ii) the name(s) of the employee benefit plan(s) whose assets constitute the Source has been disclosed to the Company in writing pursuant to this clause (e); or

(f) the Source is a governmental plan; or

(g) the Source is one or more employee benefit plans, or a separate account or trust fund comprised of one or more employee benefit plans, each of which has been identified to the Company in writing pursuant to this clause (g); or

(h) the Source does not include “plan assets” within the meaning of 29 CFR 2510.3-101, as modified by section 3(42) of ERISA.

As used in this Section 6.2, the terms “employee benefit plan,” “governmental plan,” and “separate account” shall have the respective meanings assigned to such terms in section 3 of ERISA.

Section 6.3 Institutional Accredited Investor. Each Purchaser severally represents that it is an institutional investor that is an “accredited investor” within the meaning of Rule 501 under the Securities Act and that it has such knowledge and experience in financial and business matters that it is capable of evaluating and bearing the economic risk of an investment in the Notes.

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ARTICLE 7. INFORMATION AS TO COMPANY.

Section 7.1 Financial Statements and Rating Letter. The Company shall deliver to each Purchaser and each Holder of a Note that is an Institutional Investor (each an “II Holder”):

(a) Annual Financial Statements. As soon as practicable and in any event within 120 days after the close of each applicable fiscal year, audited financial statements of the Company and Sponsor (it being acknowledged that such requirement may be satisfied by the delivery of the appropriate report on Form 10-K filed with the SEC, if applicable), all prepared in accordance with GAAP consistently applied and setting forth, in each case, in comparative form the figures for the previous fiscal year. Such financial statements shall include a statement of equity, a balance sheet as of the close of such year, an income and expense statement, reconciliation of capital accounts (where applicable), a statement of cash flow and summary results of hedging and trading activities (in the case of the Company only), reported on without a qualification arising out of the scope of the audit, and certified by an independent certified public accountant of nationally recognized standing selected by the Person whose financial statements are being prepared. Such certificates shall not be qualified or limited because of restricted or limited examination by such accountant and shall be accompanied by an opinion thereon (without a “going concern” or similar qualification or exception and without any qualification or exception as to the scope of the audit on which such opinion is based) of independent public accountants of recognized national standing, which opinion shall state that such financial statements present fairly, in all material respects, the financial position of the companies being reported upon and their results of operations and cash flows and have been prepared in conformity with GAAP consistently applied.

(b) Quarterly Statements. As soon as practicable and in any event within 45 days after the end of the first, second and third quarterly accounting periods of its fiscal year (commencing in the case of the Company with the fiscal quarter ending June 30, 2014), unaudited quarterly balance sheet of the Company and Sponsor as of the last day of such quarterly period and the related statements of income, cash flows, and shareholders’ or members’ equity (as applicable) for such quarterly period and (in the case of second and third quarterly periods) for the portion of the fiscal year ending with the last day of such quarterly period, setting forth in each case in comparative form corresponding unaudited figures from the preceding fiscal year (it being acknowledged that such requirement may be satisfied by the delivery of the appropriate report on Form 10-Q filed with the SEC, if applicable) all prepared in accordance with GAAP consistently applied (subject to changes resulting from audit and normal year-end adjustments and the absence of footnote disclosures).

(c) Rating Letter. Promptly after receipt thereof, (i) a copy of any final ratings letter obtained by the Company and (ii) each ratings letter obtained by the Company in accordance with Section 9.20.

Section 7.2 Other Reporting Requirements.

(a) Quarterly Construction Reports — The Company shall deliver to each II Holder as soon as available and in any event within thirty (30) days after the end of each calendar quarter, commencing with the first full quarter following the Closing Date until the Final Completion Date, construction progress reports from the Company for such quarter in the form of Exhibit 7.2(a).

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(b) Operating Report — The Company shall deliver to each II Holder within 45 days after the end of each full quarter occurring after the Closing Date, a summary operating report with respect to the Project, which shall include, with respect to the period most recently [***].

(c) Notice of Default or Event of Default — The Company shall deliver to each II Holder promptly, and in any event within five Business Days after a Responsible Officer of the Company becoming aware of the existence of any Default or Event of Default or that any Person has given any notice or taken any action with respect to a claimed default hereunder or that any Person has given any notice or taken any action with respect to a claimed default of the type referred to in Section 11.4, a written notice specifying the nature and period of existence thereof and what action the Company is taking or proposes to take with respect thereto. The Holders of the Notes shall comply with the requirements of the Interparty Agreement regarding prompt delivery of notices of any Events of Default to the Equity Investor(s).

(d) ERISA Matters — The Company shall deliver to each II Holder promptly, and in any event within five days after a Responsible Officer of the Company becoming aware of any of the following, a written notice setting forth the nature thereof and the action, if any, that the Company or an ERISA Affiliate proposes to take with respect thereto:

(i) with respect to any Plan (other than any Multiemployer Plan) that is subject to Title IV of ERISA, any reportable event, as defined in section 4043(c) of ERISA and the regulations thereunder, for which notice thereof has not been waived pursuant to such regulations as in effect on the date hereof; or

(ii) the taking by the PBGC of steps to institute, or the threatening by the PBGC of the institution of, proceedings under section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan subject to Title IV of ERISA, or the receipt by the Company or any ERISA Affiliate of a notice from a Multiemployer Plan that such action has been taken by the PBGC with respect to such Multiemployer Plan; or

(iii) any event, transaction or condition that could reasonably be expected to result in the incurrence of any liability by the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans which has not been satisfied, or in the imposition of any Lien on any of the rights, properties or assets of the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or such penalty or excise tax provisions, if such liability or Lien, taken together with any other such liabilities or Liens then existing, could reasonably be expected to have a Material Adverse Effect.

[***] Confidential Treatment Requested

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(e) Notices from Governmental Authority — The Company shall deliver to each II Holder promptly, and in any event within 30 days of receipt thereof, copies of any notice to the Company from any federal or state Governmental Authority relating to any order, ruling, statute or other law or regulation that could reasonably be expected to have a Material Adverse Effect, including, without limitation, any notice, to the Knowledge of the Company, threatening to modify or revoke any Applicable Permit or Applicable Third Party Permit that could reasonably be expected to have a Material Adverse Effect.

(f) Requested Information — The Company shall deliver to each II Holder with reasonable promptness, such other data and information relating to the business, operations, affairs, financial condition, assets or properties of the Company (including, but without limitation, actual copies of the Company’s Form 10-Q and Form 10-K, if applicable) or relating to the ability of the Company to perform its obligations under the Credit Documents as from time to time may be reasonably requested by any Holder of a Note. The Company shall deliver to each II Holder with reasonable promptness, such other data and information relating to the business, operations, affairs or financial condition, of the Sponsor that could reasonably be expected to affect its or the Company’s ability to perform with respect to the Project, as from time to time may be reasonably requested by any Holder of a Note.

(g) New Documents — The Company shall deliver to each II Holder promptly, but in no event later than five Business Days after execution and delivery thereof, a copy of each Additional Project Document and each new NDA obtained.

(h) Litigation — The Company shall deliver to each II Holder promptly, any notice with respect to any litigation pending or, to the Company’s Knowledge, threatened in writing against the Company, such notice to include, if requested in writing by any of the Holders, copies of all papers filed in such litigation and to be given monthly if any such papers have been filed since the last notice given.

(i) Policy — The Company shall deliver to each II Holder promptly upon the Company’s receipt of the same, copies of all material notices received or sent by the Company in connection with the Policy.

(j) Other information — The Company shall deliver to each II Holder promptly upon the Company’s receipt of the same, copies of material notices received by the Company under the Major Project Documents.

(k) Resignation or Replacement of Auditors — Within ten (10) days following the date on which the Company’s auditors resign or the Company elects to change auditors, as the case may be, notification thereof, together with such supporting information as the Required Holders may reasonably request.

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Section 7.3 Officer’s Certificate. Each set of financial statements of the Company delivered to a Holder of a Note pursuant to Section 7.1(a) or Section 7.1(b) shall be accompanied by a certificate of a Senior Financial Officer of the Company certifying that such Senior Financial Officer has reviewed the relevant terms hereof and has made, or caused to be made, under his or her supervision, a review of the transactions and conditions of the Company from the beginning of the quarterly or annual period covered by the statements then being furnished to the date of the certificate and that such review shall not have disclosed the existence during such period of any condition or event that constitutes a Default or an Event of Default or, if any such condition or event existed or exists (including, without limitation, any such event or condition resulting from the failure of the Company to comply with any Environmental Law), specifying the nature and period of existence thereof and what action the Company shall have taken or proposes to take with respect thereto.

Section 7.4 Visitation. The Company shall, at the expense of the II Holder requesting the same, subject to requirements of Governmental Rules, safety requirements and existing confidentiality restrictions imposed upon the Company by any other Person, and, if a Default or an Event of Default then exists, at the expense of the Company, permit employees or agents of each II Holder of a Note and the Independent Engineer at any reasonable times and upon reasonable prior notice to the Company and the Operator, (i) to inspect all of the Company’s properties (ii) to examine all of the Company’s books, accounts and records and make copies and memoranda thereof, (iii) to communicate with the Company’s auditors outside the presence of the Company, (iv) to discuss the business, operations, properties and financial and other conditions of the Company with officers of the Company and with its independent certified public accountants, and (v) to witness any Performance Tests.

Section 7.5 Electronic Delivery. Financial statements, opinions of independent certified public accountants, construction reports, operating reports, certain notices, other information and officer’s certificates that are required to be delivered by the Company pursuant to Section 7.1, Section 7.2 and Section 7.3 shall be deemed to have been delivered if the Company satisfies any of the following requirements with respect thereto:

(i) such information is delivered to each Holder of a Note by e-mail; or

(ii) such information is timely posted by or on behalf of the Company on IntraLinks or on any other similar website to which each Holder of a Note has free access;

provided however, that in the case of clause (ii), the Company shall have given each Holder of a Note prior written notice, which may be by e-mail or in accordance with Section 18, of such posting or filing in connection with each delivery, provided further, that upon request of any Holder to receive paper copies of such information or to receive them by e-mail, the Company will promptly e-mail them or deliver such paper copies, as the case may be, to such Holder.

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ARTICLE 8. PAYMENT AND PREPAYMENT OF THE NOTES.

Section 8.1 Required Payments; Mandatory Prepayments; Offer to Repay.

Section 8.1.1 Required Payments. Installment payments of principal due on each Note shall be made in accordance with the Amortization Schedule on each Repayment Date and each Note shall mature and all remaining principal and accrued interest payment, fees and costs (and, if applicable, the Make-Whole Amount) shall be payable on the Maturity Date.

Section 8.1.2 Mandatory Prepayment. The Company shall prepay an applicable amount of the principal of the Notes at 100% of the principal amount thereof, together with accrued and unpaid interest thereon and without payment of the Make-Whole Amount (other than as set forth in Section 9.18 of this Agreement):

(i) with the Net Available Amount of the proceeds of any Loss Event in relation to the Project in which the Company receives more than [***] of insurance or other proceeds, subject to the Company’s right to repair and restore as set forth in Section 3.7.2(b) of the Depositary Agreement, pursuant to Section 3.7.2(c) of the Depositary Agreement; or

(ii) with the proceeds of warranty claims or refund claims received by the Company pursuant to Sections 5.4(c) and 5.7(b) of the PUMA, other than with respect to amounts reserved for payment to the Equity Investors or the Offtakers;

(iii) to the extent required by Section 9.18 (Partial Completion Buydown);

(iv) with the proceeds received by the Company under the Policy pursuant to the “One-Time Payment Option” (as defined in the Policy);

(v) with the proceeds received by the Company as Termination Value of the Systems upon the occurrence of a Customer Default under each ESA (as defined therein); and

(vi) to the extent required by Section 3.8.2(b) of the Depositary Agreement,

provided that, with respect to (i), (ii) and (v) above, such prepayment shall be limited only to the ratable amount of the Notes related to the Systems affected by such mandatory prepayment event (e.g. __% of the payments received).

All mandatory prepayments of Notes shall be made on a pro rata basis and shall be applied [***].

[***] Confidential Treatment Requested

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Section 8.1.3 Offer to Repay.

(a) The Company shall make to each Holder of the Notes an Offer to Repay (as defined in paragraph (b) below) the principal amount of the Notes at 100% of the principal amount thereof, together with accrued and unpaid interest thereon to the Offer Settlement Date (as defined in paragraph (b) below) and without payment of the Make-Whole Amount or any premium as follows upon the occurrence of a Change of Control.

(b) Within ten (10) Business Days after the occurrence of any event described in paragraph (a) above requiring the Company to make an Offer to Repay, the Company shall prepare and provide to each Holder of a Note a notice (each, an “Offer to Repay Notice”), which shall be substantially in the form of Exhibit 8.1.3(b) and shall include an offer (the “Offer to Repay”) pursuant to the covenant in paragraph (a) above to repay, on the date (each, an “Offer Settlement Date”) that is twenty (20) Business Days after the date of the Offer to Repay Notice, all of such Holder’s Notes. Each Holder of a Note (or its appointee) wishing to accept the Offer to Repay shall reply, substantially in the form of Schedule 1 to Exhibit 8.1.3(b), indicating whether such Offer to Repay is accepted by the close of business on the fifth (5th) Business Day immediately preceding the Offer Settlement Date.

(c) Two Business Days prior to any Offer Settlement Date, the Company shall deliver to each Holder that has accepted an Offer to Repay pursuant to Section 8.1.3(b), a certificate of a Senior Financial Officer specifying the principal amount of the Notes of such Holder to be repaid on such Offer Settlement Date and the amount of accrued and unpaid interest thereon to the Offer Settlement Date to be paid on such Offer Settlement Date. On each Offer Settlement Date, the Company shall pay pro rata to those Holders who have accepted the related Offer to Repay the aggregate amount required to be paid pursuant to this Section 8.1.3.

(d) On the Offer Settlement Date, the Company shall deliver to each Holder that has not accepted an Offer to Repay pursuant to Section 8.1.3(b) a revised Amortization Schedule reflecting the amortization of the aggregate principal amount of Notes remaining outstanding through the Maturity Date.

Section 8.2 Optional Prepayments with Make-Whole Amount. The Company may, at its option, upon notice as provided below, prepay at any time all, or from time to time any part of, the Notes, in an amount, in the case of a partial prepayment, not less than the lesser of 5% of the aggregate principal amount of the Notes then outstanding and $2,000,000, at a redemption price equal to (i) 100% of the principal amount so prepaid, plus (ii) accrued and unpaid interest on the Notes being redeemed to the redemption date plus (iii) the Make-Whole Amount determined for the prepayment date with respect to such principal amount. The Company will give each Holder of Notes written notice of each optional prepayment under this Section 8.2 not less than 30 days and not more than 60 days prior to the date fixed for such prepayment. Each such notice shall specify such date (which shall be a Business Day), the aggregate principal amount of the Notes to be prepaid on such date, the principal amount of each Note held by such Holder to be prepaid (determined in accordance with Section 8.3), and the interest to be paid on the prepayment date with respect to such principal amount being prepaid, and shall be accompanied by a certificate of a Senior Financial Officer as to the estimated Make-Whole Amount due in connection with such prepayment (calculated as if the date of such notice were the date of the prepayment), setting forth the details of such computation. Two Business Days prior to such prepayment, the Company shall deliver to each Holder of Notes a certificate of a Senior Financial Officer, specifying the calculation of such Make-Whole Amount as of the specified prepayment date. All optional prepayments of Notes shall be applied in the inverse order of maturity against the remaining scheduled principal repayment amounts of the Notes.

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Section 8.3 Allocation of Partial Prepayments. In the case of each partial prepayment of the Notes pursuant to Sections 8.1.1, 8.1.2 and 8.2, the principal amount of the Notes to be prepaid shall be allocated among all of the Notes at the time outstanding in proportion, as nearly as practicable, to the respective unpaid principal amounts thereof not theretofore called for prepayment.

Section 8.4 Maturity; Surrender, Etc. In the case of each prepayment of Notes pursuant to this Article 8, the principal amount of each Note or portion thereof (in the case of a partial prepayment) to be prepaid shall mature and become due and payable on the date fixed for such prepayment, together with interest on such principal amount accrued to such date and the applicable Make-Whole Amount, if any. From and after such date, unless the Company shall fail to pay such principal amount when so due and payable, together with the interest and Make-Whole Amount, if any, as aforesaid, interest on such principal amount shall cease to accrue. Any Note paid or prepaid in full shall be surrendered to the Company and cancelled and shall not be reissued, and no Note shall be issued in lieu of any prepaid principal amount of any Note.

Section 8.5 Purchase of Notes. The Company will not and, to the extent of its power, will not permit any Affiliate to purchase, redeem, prepay or otherwise acquire, directly or indirectly, any of the outstanding Notes except upon the payment or prepayment of the Notes in accordance with the terms of this Agreement, the other Credit Documents and the Notes. The Company will promptly cancel all Notes acquired by it pursuant to any payment or prepayment of Notes pursuant to any provision of this Agreement and no Notes may be issued in substitution or exchange for any such Notes. In the event that any Affiliate of the Company acquires any of the Notes (pursuant to any payment or prepayment of Notes pursuant to any provision of this Agreement or otherwise), such Notes shall be deemed not to be outstanding for purposes of determining whether the Holders of the requisite percentage of the aggregate principal amount of Notes then outstanding have approved or consented to any amendment, waiver or consent to be given under this Agreement, the other Credit Documents or the Notes, or have directed the taking of any action provided herein or in the Notes to be taken upon the direction of the Holders of a specified percentage of the aggregate principal amount of Notes then outstanding.

Section 8.6 Make-Whole Amount.

“Make-Whole Amount” means, with respect to any Note, an amount equal to the excess, if any, of the Discounted Value of the Remaining Scheduled Payments with respect to the Called Principal of such Note over the amount of such Called Principal, provided that the Make-Whole Amount may in no event be less than zero. For the purposes of determining the Make-Whole Amount, the following terms have the following meanings:

“Called Principal” means, with respect to any Note, the principal of such Note that is to be prepaid pursuant to Section 8.2 or has become or is declared to be immediately due and payable pursuant to Section 12.1, as the context requires.

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“Discounted Value” means, with respect to the Called Principal of any Note, the amount obtained by discounting all Remaining Scheduled Payments with respect to such Called Principal from their respective scheduled due dates to the Settlement Date with respect to such Called Principal, in accordance with accepted financial practice and at a discount factor (applied on the same periodic basis as that on which interest on the Notes is payable) equal to the Reinvestment Yield with respect to such Called Principal.

“Reinvestment Yield” means, with respect to the Called Principal of any Note, the sum of (x) 0.50% and (y) the yield to maturity implied by the yield(s) reported as of 10:00 a.m. (New York City time) on the second Business Day preceding the Settlement Date with respect to such Called Principal, on the display designated as “Page PX1” (or such other display as may replace Page PX1) on Bloomberg Financial Markets for the most recently issued actively traded on-the-run U.S. Treasury securities (“Reported”) having a maturity equal to the Remaining Average Life of such Called Principal as of such Settlement Date. If there are no such U.S. Treasury securities Reported having a maturity equal to such Remaining Average Life, then such implied yield to maturity will be determined by (a) converting U.S. Treasury bill quotations to bond equivalent yields in accordance with accepted financial practice and (b) interpolating linearly between the yields Reported for the applicable most recently issued actively traded on-the-run U.S. Treasury securities with the maturities (1) closest to and greater than such Remaining Average Life and (2) closest to and less than such Remaining Average Life. The Reinvestment Yield shall be rounded to the number of decimal places as appears in the interest rate of the applicable Note.

If such yields are not Reported or the yields Reported as of such time are not ascertainable (including by way of interpolation), then “Reinvestment Yield” means, with respect to the Called Principal of any Note, the sum of (x) 0.50% and (y) the yield to maturity implied by the U.S. Treasury constant maturity yields reported, for the latest day for which such yields have been so reported as of the second Business Day preceding the Settlement Date with respect to such Called Principal, in Federal Reserve Statistical Release H.15 (or any comparable successor publication) for the U.S. Treasury constant maturity having a term equal to the Remaining Average Life of such Called Principal as of such Settlement Date. If there is no such U.S. Treasury constant maturity having a term equal to such Remaining Average Life, such implied yield to maturity will be determined by interpolating linearly between (1) the U.S. Treasury constant maturity so reported with the term closest to and greater than such Remaining Average Life and (2) the U.S. Treasury constant maturity so reported with the term closest to and less than such Remaining Average Life. The Reinvestment Yield shall be rounded to the number of decimal places as appears in the interest rate of the applicable Note.

“Remaining Average Life” means, with respect to any Called Principal, the number of years (calculated to the nearest one-twelfth year) obtained by dividing (i) such Called Principal into (ii) the sum of the products obtained by multiplying (a) the principal component of each Remaining Scheduled Payment with respect to such Called Principal by (b) the number of years (calculated to the nearest one-twelfth year), computed on the basis of a 360-day year composed of twelve 30-day months, that will elapse between the Settlement Date with respect to such Called Principal and the scheduled due date of such Remaining Scheduled Payment.

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“Remaining Scheduled Payments” means, with respect to the Called Principal of any Note, all payments of such Called Principal and interest thereon that would be due after the Settlement Date with respect to such Called Principal if no payment of such Called Principal was made prior to its scheduled due date, provided that if such Settlement Date is not a date on which interest payments are due to be made under the terms of the Notes, then the amount of the next succeeding scheduled interest payment will be reduced by the amount of interest accrued to such Settlement Date and required to be paid on such Settlement Date pursuant to Section 8.4 or Section 12.1.

“Settlement Date” means, with respect to the Called Principal of any Note, the date on which such Called Principal is to be prepaid pursuant to Section 8.2 or has become or is declared to be immediately due and payable pursuant to Section 12.1, as the context requires.

ARTICLE 9. AFFIRMATIVE COVENANTS.

The Company covenants that, so long as any of the Notes are outstanding:

Section 9.1 Compliance with Laws. Without limiting Section 10.5, the Company will comply with all laws, ordinances or governmental rules or regulations to which it is subject, including, without limitation, ERISA, the USA PATRIOT Act and the other laws and regulations that are referred to in Section 5.16, and will obtain and maintain in effect all licenses, certificates, permits, franchises and other governmental authorizations necessary to the ownership of its properties or to the conduct of its businesses, in each case to the extent necessary to ensure that non-compliance with such laws, ordinances or governmental rules or regulations or failures to obtain or maintain in effect such licenses, certificates, permits, franchises and other governmental authorizations could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

Section 9.2 Insurance. Without cost to the Secured Parties, the Company shall maintain or cause to be maintained on its behalf in effect at all times the types of insurance required pursuant to Schedule 9.2, in the amounts and on the terms and conditions specified therein, from insurers of the quality specified in such Schedule or other insurance companies of recognized responsibility reasonably satisfactory to the Required Holders.

Section 9.3 Maintenance of Properties. Other than property disposed of in accordance with Section 10.4, the Company shall maintain (a) all rights necessary to access the Sites as necessary to place the Systems on the Sites, operate and maintain the Systems and the Project and (b) good, legal and valid title to all of its other material properties and assets, in each case free of all Liens other than Permitted Liens. The Company shall generally keep all property useful and necessary in its business in good working order and condition, ordinary wear and tear excepted.

Section 9.4 Payment of Taxes and Claims. The Company will file all tax returns required to be filed in any jurisdiction and to pay and discharge all taxes shown to be due and payable on such returns and all other taxes, assessments, governmental charges, or levies imposed on it or any of its properties, assets, income or franchises, to the extent the same have become due and payable and before they have become delinquent and all claims for which sums

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have become due and payable that have or might become a Lien on properties or assets of the Company, provided that the Company does not need to pay any such tax, assessment, charge, levy or claim if (i) the amount, applicability or validity thereof is contested by the Company on a timely basis in good faith and in appropriate proceedings, and the Company has established adequate reserves therefor in accordance with GAAP on the books of the Company or (ii) the nonpayment of all such taxes, assessments, charges, levies and claims in the aggregate could not reasonably be expected to have a Material Adverse Effect.

Section 9.5 Corporate Existence, Etc.. Subject to Section 10.2, the Company will at all times preserve and keep its limited liability company existence in full force and effect. Subject to Sections 10.2 and 10.4, the Company will at all times preserve and keep in full force and effect all rights and franchises of the Company unless, in the good faith judgment of the Company, the termination of or failure to preserve and keep in full force and effect such right or franchise could not, individually or in the aggregate, have a Material Adverse Effect.

Section 9.6 Books, Records. The Company shall maintain, or cause to be maintained, adequate books, accounts and records with respect to the Company and the Project, in which full and correct entries shall be made of all financial transactions and the assets and business of the Company, and prepare all financial statements required hereunder, in each case in accordance with GAAP (subject, in the case of unaudited financial statements, to changes resulting from audit and normal year-end adjustments and the absence of footnote disclosure) and in compliance with the regulations of any Governmental Authority having jurisdiction thereof.

Section 9.7 Use of Proceeds, Equity Contributions, Project Revenues.

(a) The Company shall use the proceeds of the sale of the Notes only (A) as of the Closing Date, (i) to fund the Debt Service Reserve Account up to the Debt Service Reserve Requirement, (ii) to fund the IDC Reserve Account in an amount equal to [***] and (iii) to pay all fees and costs related to the transactions under this Agreement and the other Credit Documents (including by way of reimbursing Sponsor for transaction expenses related to the Project incurred and paid for by Sponsor or any affiliate of Sponsor on behalf of the Company prior to the Closing Date) and (B) after the Closing Date to pay from the Proceeds Escrow Account Project Costs in respect of tested and commissioned Systems during the Ramp Up Period.

(b) The Company shall apply Project Revenues and equity contributions as required by Sections 3.3.1, 3.5, 3.7 and 3.9 of the Depositary Agreement.

Section 9.8 Payment.

(a) Credit Documents. The Company shall pay all sums due under this Agreement and the other Credit Documents to which it is a party according to the terms hereof and thereof.

(b) Other Obligations. The Company shall pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all of its obligations under the Project Documents and all of its other obligations of whatever nature and howsoever arising, except such as may be contested in good faith or as to which a bona fide dispute may

[***] Confidential Treatment Requested

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exist, provided that adequate cash reserves have been established for the payment thereof in the event such dispute was resolved unfavorably to the Company, or the Holders are satisfied in their reasonable discretion that non-payment of such obligation pending the resolution of such contest or dispute will not in any way endanger the Project or result in a Material Adverse Effect or that provision is made to the satisfaction of the Holders in their reasonable discretion for the posting of security (other than the Collateral) for or the bonding of such obligations or the prompt payment thereof in the event that such obligations are payable.

Section 9.9 Additional Direct Agreements. With respect to any Major Project Document entered into after the Closing Date, the Company shall use commercially reasonable efforts to cause the applicable counterparty to execute and deliver to the Collateral Agent a Direct Agreement in substantially the form of any of Exhibit 4.1.29(a), Exhibit 4.1.29(b) or Exhibit 4.1.29(c), with such changes as are reasonably acceptable to the Required Holders (including dispensing with a Direct Agreement if deemed appropriate by the Required Holders).

Section 9.10 Performance of the Major Project Documents. The Company shall perform (to the extent not excused by force majeure events or the nonperformance of the other party and not subject to a good faith dispute) all of its material contractual obligations under the Major Project Documents.

Section 9.11 Utility Regulation. The Company shall take or cause to be taken all necessary or appropriate actions so that (a) the Company and the Project shall not be subject to, or shall benefit from an exemption from or waiver of, (A) regulation by FERC as a “public– utility company” or “holding company” under PUHCA, or (B) financial, organizational or rate regulation as an “electric utility”, “electric corporation” or any similar Person under the laws of the States of California, New York, New Jersey and Connecticut and any other state in which the Company operates facilities that generate electricity as presently constituted and as construed by the courts of such States, and (b) the Company will sell electricity only to the applicable Offtaker at each Site pursuant to the relevant ESA and will not make any other wholesale or retail sales.

Section 9.12 Construction of the Project. The Company shall cause the Project to be designed, engineered, constructed, developed, installed, equipped, maintained and operated in a good and workmanlike manner and in compliance with all applicable Legal Requirements, Permits and Prudent Electrical Practices (as defined in the PUMA).

Section 9.13 Operation and Maintenance of Project; Operating Budget.

(a) The Company shall keep the Project, or cause the same to be kept, in good operating condition consistent with the standard of care set forth in the PUMA and each applicable ESA, all material Applicable Permits and Applicable Third Party Permits, Legal Requirements and the Operative Documents, and make or cause to be made all repairs (structural and non-structural, extraordinary or ordinary) necessary to keep the Project in such condition.

(b) On or prior to November 1 of each year, the Company shall submit an operating plan and a budget, detailed by month, of anticipated revenues from each ESA and anticipated expenditures, and anticipated expenditures from and deposit of reserves to, the Accounts, such budget to include Debt Service, deposit of reserves to the Debt Service Reserve

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Account, estimated dividend payments or other distributions, reserves, all anticipated O&M Costs to the Project for the ensuing calendar year (or, in the case of the initial Annual Operating Budget, partial calendar year), to the conclusion of the second full calendar year thereafter and the corresponding total operation and maintenance budget amount for the applicable year from the Base Case Projections (each such annual operating plan and budget, including the initial Annual Operating Budget, an “Annual Operating Budget”). The Company shall prepare a final Annual Operating Budget no less than 30 days in advance of January 1 of each calendar year.

(c) The Company shall operate and maintain the Project, or cause the Project to be operated and maintained, within amounts for (a) any Operating Budget Category (other than for revenues) not to exceed [***] (on a year-to-date basis) and (b) for all Operating Budget Categories (other than for revenues) not to exceed [***] (on a year-to-date basis), in each case of the amounts budgeted therefor as set forth in the then-current Annual Operating Budget; provided that subject to Section 10.13, the Company may propose an amendment to the Annual Operating Budget for Required Holders’ approval if at any time the Company cannot comply with this requirement (and the Required Holders shall consider each such amendment in good faith and shall not unreasonably withhold or delay their consent to the approval of any such amendment). Pending approval of any amendment to the Annual Operating Budget (other than for revenues) in accordance with the terms of this Section 9.13, the Company shall use all reasonable efforts to operate and maintain the Project, or cause the Project to be operated and maintained, within the then-current Annual Operating Budget (it being acknowledged that if a particular calendar year’s Annual Operating Budget has not been approved by the time periods provided in Section 9.13(b), then the then-current Annual Operating Budget shall be deemed to be the Annual Operating Budget in effect prior to the delivery of the proposed final Annual Operating Budget pursuant to Section 9.13(b)); provided, that the amounts specified therein shall be increased to the extent specified in the Project Documents.

Section 9.14 Preservation of Rights; Further Assurances.

(a) Major Project Documents. The Company shall maintain in full force and effect, perform (subject to Section 9.8(b)) the obligations of the Company under, preserve, protect and defend the material rights of the Company under and take all reasonable action necessary to prevent termination (except by expiration in accordance with its terms) of each and every Major Project Document (other than early termination or partial termination of any ESA, so long as the Offtaker owes a Termination Value pursuant to such ESA at termination or partial termination), including prosecution of suits to enforce any material right of the Company thereunder and enforcement of any material claims with respect thereto; provided, that upon the occurrence and during the continuance of an Event of Default or, with respect to any Project Document between the Company and any Affiliate, when such Affiliate has acted or failed to act in a manner that with the giving of notice by the Company or the passage of time, an event of default will occur under such Project Document, if the Collateral Agent or the Required Holders request that certain actions be taken and the Company fails to take the requested actions within ten Business Days, the Holders or the Collateral Agent may enforce in its own name or in the Company’s name, such rights of the Company (if and to the extent not prohibited by any Governmental Rule), in addition to such rights as may be more particularly provided in the Security Agreement and the other NPA Documents.

[***] Confidential Treatment Requested

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(b) Preservation of Collateral. From time to time promptly, upon the reasonable request of the Collateral Agent or the Required Holders, the Company shall execute, acknowledge or deliver, or, in the case of Real Property, use commercially reasonable efforts to cause the execution, acknowledgment and delivery of, and thereafter register, file or record, or cause to be registered, filed or recorded in an appropriate governmental office, all such notices, statements, instruments and other documents (including any financing statement, continuation statement, certificate of title or lessee estoppel certificate) supplemental to or confirmatory of the Collateral Documents, and take such other steps as may be deemed by the Collateral Agent necessary or advisable to render fully valid and enforceable under all applicable laws the rights, liens and priorities of the Secured Parties with respect to all Collateral in which a first priority security interest can be perfected by possession, control or by filings under the UCC, and other security from time to time furnished under the Credit Documents or intended to be so furnished, or for the continued validity, perfection and priority of the Liens on the Collateral covered thereby subject to no other Liens except as permitted by the applicable Collateral Document, or in the case of Real Property use commercially reasonable efforts to obtain any consents or waivers as may be necessary or appropriate in connection therewith, in each case in such form and at such times as shall be reasonably requested by the Required Holders or the Collateral Agent, and pay all reasonable fees and expenses (including reasonable attorneys’ fees) incident to compliance with this Section 9.14(b). The Company shall provide to each of the Holders evidence of the filing of a continuation statement within 60 days of the expiration of any financing statement. Upon the exercise by the Required Holders or the Collateral Agent of any power, right, privilege or remedy pursuant to any Credit Document which requires any consent, approval, registration, qualification or authorization of any Governmental Authority, the Company shall execute and deliver all applications, certifications, instruments and other documents and papers that any Holder or the Collateral Agent may reasonably require. If the Required Holders or the Collateral Agent reasonably determine that they are required by law or regulation to have appraisals prepared in respect of the Real Property, the Company shall provide to each Holder appraisals that satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA and are otherwise in form and substance satisfactory to the Required Holders.

(c) Enforcement of Affiliate Agreements. If at any time the Company is entitled to make a claim or pursue any other remedy under the PUMA or any ESA, the Company shall make a claim thereunder for liquidated damages or, as applicable, to have one or more Systems repaired, replaced, or repurchased by the Sponsor, or pursue such other remedy, as applicable. The Company shall otherwise enforce all of its rights under the PUMA and each ESA as diligently as if its counterparty were not an Affiliate.

(d) Further Assurances. The Company shall execute and deliver all documents as shall be reasonably required or that the Collateral Agent or any Holder shall reasonably request in connection with the rights and remedies of the Collateral Agent and the Holders of the Notes under the Operative Documents, and perform, such other reasonable acts as may be necessary to carry out the intent of the Credit Documents.

(e) Applicable Permits. The Company shall obtain and maintain all Applicable Permits unless such failure could not reasonably be expected to have a Material Adverse Effect.

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Section 9.15 Event of Eminent Domain. If an Event of Eminent Domain shall occur with respect to any Collateral, the Company shall (a) diligently pursue all its rights to compensation against the relevant Governmental Authority in respect of such Event of Eminent Domain, (b) not, without the consent of the Required Holders (which consent shall not be unreasonably withheld or delayed), compromise or settle any claim against such Governmental Authority in an amount in excess of $1,000,000 individually and $5,000,000 in the aggregate, and (c) pay or apply all Eminent Domain Proceeds in accordance with Section 3.7 of the Depositary Agreement. The Company consents to, and agrees not to object to or otherwise impede or impair, the participation of the Holders and/or the Collateral Agent in any expropriation proceedings involving an amount in excess of $1,000,000 individually and $5,000,000 in the aggregate, and the Company shall from time to time deliver to the Holders and the Collateral Agent all documents and instruments requested by them or it to permit such participation.

Section 9.16 Environmental Laws.

Except as could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect, the Company shall (a) comply with all applicable Environmental Laws and obtain and comply with, and maintain all Applicable Permits required by Environmental Laws; (b) conduct and complete, or cause to be conducted and completed, all investigations, studies, sampling and testing, and all clean-up, remedial, removal, recovery and other actions required pursuant to Environmental Laws; and (c) promptly comply with all orders and directives of all Governmental Authorities in respect of Environmental Laws, except to the extent that the same are being contested in good faith by appropriate proceedings.

Section 9.17 Independent Consultants. The Company shall (a) cooperate in all reasonable respects with the Independent Consultants and (b) ensure that each Independent Consultant is provided with all information reasonably requested by such consultant with respect to the financing, construction or operation of the Project and will exercise due care to ensure that any factual information which it may supply to such consultant is materially accurate in all respects, and not, by omission of information or otherwise, misleading in any material respect at the time such information is provided, to the extent that such consultant relied on such information in preparing its report.

Section 9.18 Partial Completion Buydown. In the event that less than 20.95 MW of system capacity of Systems have achieved COO on or prior to the Date Certain, then the Company shall within ten Business Days re-calculate the size of the Notes under the Base Case Projections by (a) reducing the Project capacity assumption therein to the actual Project system capacity, (b) maintaining DSCR at a [***] minimum through the Maturity Date under the Downside Case, and (c) otherwise changing no assumptions in the Base Case Projections. The Company’s calculations shall be subject to review and approval by the Required Holders (in consultation with the Independent Engineer). Any amount by which, after such review and approval, the original total principal amount of the Notes exceeds the revised total principal amount of the Notes is the “Buydown Amount.” If less than 20.95 MW but more than [***] MW of system capacity of Systems (the “Minimum Amount”) have achieved COO on or prior to the Date Certain, the Company shall prepay the Notes in the aggregate amount of the Buydown Amount plus accrued and unpaid interest thereon within 30 days of notification from

[***] Confidential Treatment Requested

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the Required Holders (in consultation with the Independent Engineer) that the Company’s re-calculation has been approved by the Required Holders (in consultation with the Independent Engineer). If less than the Minimum Amount of Systems have achieved COO on or prior to the Date Certain, the Company shall prepay, pro rata among the Holders, the Notes in the aggregate amount of the Buydown Amount plus accrued and unpaid interest thereon [***] within 30 days of notification from the Required Holders (in consultation with the Independent Engineer) that the Company’s re-calculation has been approved by the Required Holders (in consultation with the Independent Engineer). No later than 5 days after the prepayment by the Company to the Holders of the Buydown Amount, the Company shall deliver to each Holder a revised Amortization Schedule reflecting the amortization of the aggregate principal amount of Notes remaining outstanding through the Maturity Date.

Section 9.19 Separateness. The Company shall (a) maintain entity records and books of account separate from those of any other entity which is an Affiliate of the Company, (b) not commingle its funds or assets with those of any other entity which is an Affiliate of the Company, (c) provide that its governing body will hold all appropriate meetings to authorize and approve the Company’s actions, which meetings will be separate from those of other entities and (d) comply with the separateness provisions set forth in the Governing Documents of the Company.

Section 9.20 Rating. The Company, no less frequently than once per year (which year shall commence on the Closing Date (in the case of the first year) or the applicable anniversary of the Closing Date (in the case of each subsequent year) and end on the day prior to the immediately following anniversary of the Closing Date), obtain from the Rating Agency a ratings letter assigning a credit rating to the Notes (provided that there will be no minimum level required for such rating).

Section 9.21 Debt Service Coverage Ratio. No later than 10 days after each Repayment Date, the Company shall calculate and deliver to the Holders the DSCR and calculations in reasonable detail thereof for the calculation period for such Repayment Date. The calculations of the DSCR hereunder shall be used in determining the application and distribution of funds pursuant to Section 10.10 hereunder and Section 3.8 of the Depositary Agreement.

Section 9.22 Policy Proceeds, Subrogation and Consent.

(a) Policy Proceeds. The Company shall promptly upon receipt thereof deposit any amount received from the Insurer under the Policy into the Policy Proceeds Account pursuant to Section 3.10.1 of the Depositary Agreement to the extent such amounts are not paid directly to the Holders pursuant to Section 8.1.2.(iv) of this Agreement.

(b) Subrogation. No right of subrogation or assignment of any rights of recovery under the Policy shall be permitted so long as any of the Notes are outstanding.

(c) Consent of Insurer. The Company acknowledges that certain modifications, amendments, amendments and restatements, extensions or waivers under the Credit Documents may require the consent of the Insurer pursuant to Section VIII.11 of the Policy, and the Company shall take all commercially reasonable efforts to obtain any such consent required under the Policy.

[***] Confidential Treatment Requested

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Section 9.23 Tax Status. The Company shall at all times maintain its classification as an entity that is disregarded as separate from its owner for U.S. federal and applicable state and local income tax purposes and shall not elect, or take or fail to take any other action that could cause the Company, to be treated as an association taxable as a corporation for U.S. federal and applicable state and local income tax purposes.

Section 9.24 UCC Filings. The Company shall at all times retain, at its sole cost and expense, CT Corporation, National Corporate Research, Ltd. or another service provider acceptable to the Purchasers for the tracking of all UCC financing statements required to be filed pursuant to the Credit Documents and notification to the Collateral Agent of the upcoming lapse or expiration thereof.

Section 9.25 Post-Closing Deliverables. (a) Prior to the date of the first Drawdown but no later than ten (10) Business Days following the Closing Date, the Company shall have delivered to each of the Purchasers each of the documents described in Sections 4.2.10(a), 4.2.11(a) and 4.2.12.

(b) Prior to the date of the first Drawdown but no later than September 30, 2014, the Company shall have delivered to each of the Purchasers each of the documents described in Sections 4.2.10(b) and 4.2.11(b).

ARTICLE 10. NEGATIVE COVENANTS.

From the date of this Agreement until the Closing and thereafter, so long as any of the Notes are outstanding, the Company covenants that:

Section 10.1 Transactions with Affiliates. The Company shall not directly or indirectly enter into any transaction or series of transactions with or for the benefit of an Affiliate without the prior approval of the Required Holders, except for (a) the limited liability company agreement of the Company and the Operative Documents as in effect on the Closing Date and (b) as otherwise expressly permitted or contemplated by the Credit Documents.

Section 10.2 Dissolution; Merger. The Company shall not (a) wind up, liquidate or dissolve its affairs, (b) combine, merge consolidate with or into or sell all or substantially all its assets (other than as expressly contemplated by the Operative Documents (including, without limitation, in connection with the (i) return and repurchase of any System by Sponsor as provided in the PUMA and (ii) sale of any System to an Offtaker under an ESA)) to any other entity, or (c) purchase or otherwise acquire all or substantially all of the assets of any Person.

Section 10.3 Line of Business; Changes. The Company shall not (a) change the nature of its business or expand its business beyond the business contemplated in the Operative Documents or activities incidental thereto or take any action, whether by acquisition or otherwise, which would constitute or result in any material alteration to the nature of such

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business; (b) establish, create or acquire any Subsidiaries; or (c) directly or indirectly, change its legal form or any of its Governing Documents (including by the filing or modification of any certificate of designation) or any agreement to which it is a party with respect to its limited liability company interest or otherwise terminate, amend or modify any such Governing Document or agreement or any provision thereof, or enter into any new agreement with respect to its limited liability company interest, other than any such amendments, modifications or changes or such new agreements to which the prior consent of the Required Holders and the Collateral Agent (if appropriate) has been obtained or which could not reasonably be expected to have an adverse impact on the interests of the Holders of the Notes.

Section 10.4 Sale or Lease of Assets. The Company shall not sell, lease, assign, transfer or otherwise dispose of assets, whether now owned or hereafter acquired, except (a) in the ordinary course of its business and at fair market value, (b) to the extent that such asset is unnecessary, worn out or no longer useful or usable in connection with the operation or maintenance of the Project, at fair market value, or (c) as expressly contemplated by the Operative Documents (including, without limitation, in connection with the (i) return and repurchase of any System by Sponsor as provided in the PUMA and (ii) sale of any System to an Offtaker under an ESA). Upon any such sale, lease, assignment, transfer or other disposition of any such assets, all Liens in favor of Collateral Agent relating to such asset shall be released. The Company shall not enter into any sale and leaseback transactions.

Section 10.5 Terrorism Sanctions Regulations. The Company will not and will not permit any Controlled Entity to (a) become a Blocked Person or (b) have any investments in or engage in any dealings or transactions with any Blocked Person if such investments, dealings or transactions would cause any Holder of a Note to be in violation of any laws or regulations that are applicable to such Holder.

Section 10.6 Liens. The Company will not create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any property or asset (including without limitation, any document or instrument in respect of goods or accounts receivable) of the Company, whether now owned or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except Permitted Liens.

Section 10.7 Contingent Obligations. Except as provided in the Credit Documents, the Company shall not become liable as a surety, guarantor, accommodation endorser or otherwise, for or upon the obligation of any other Person or incur any Contingent Obligations; provided, that this Section 10.7 shall not be deemed to prohibit or otherwise limit the incurrence of Permitted Debt by the Company.

Section 10.8 Debt. The Company shall not incur, create, assume or permit to exist, directly or indirectly, any Debt except Permitted Debt.

Section 10.9 Investments. The Company shall not (a) make any investments (whether by purchase of stocks, bonds, notes, obligations or other securities, loan, extension of credit, advance or otherwise) other than Permitted Investments or make any capital contribution to any Person; or (b) other than Permitted Investments, own any equity interest in, lend money, extend credit or make advances to, or make any deposits with (other than deposits or advances in relation to the payment for services in the ordinary course of business) any Person other than Depositary.

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Section 10.10 Restricted Payments.

The Company shall not directly or indirectly, make or declare any distribution, including but not limited to any repurchase of any equity interest of the Company (in cash, property or obligation) on, or any payment on account of, any interest in the Company, unless the following conditions have been satisfied (the “Distribution Conditions”):

(a) such distribution will occur no earlier than one Business Day after the Repayment Date and no later than 15 days after a Repayment Date and will be made from amounts on deposit in the Distribution Suspense Account;

(b) no Default or Event of Default has occurred and is continuing as of the date of, or will result from, such distribution;

(c) the amount on deposit in the Debt Service Reserve Account is equal to the Debt Service Reserve Requirement;

(d) in the event that there have been any payments to the Company under the Policy (other than under the “One-Time Payment Option” pursuant to Section 8.1.2(iv)), any amount otherwise distributable to Pledgor has been applied first to reimburse the Insurer for claims paid under the Policy; and

(e) the DSCR for the immediately preceding 12-month period (or, during the initial 12 months following the Final Completion Date, the actual number of complete quarters since the Final Completion Date) and as projected for the immediately succeeding 12-month period is greater than or equal to [***].

Section 10.11 Margin Loan Regulations. The Company shall not directly or indirectly apply any part of the proceeds of the Notes, any cash equity contributions received by the Company or other funds or revenues to the “buying,” “carrying” or “purchasing” of any margin stock within the meaning of Regulations T, U or X of the Federal Reserve Board, or any regulations, interpretations or rulings thereunder.

Section 10.12 Partnership, Separateness Etc. The Company shall not (a) become a general or limited partner in any partnership or a joint venturer in any joint venture, (b) create and hold stock in any Subsidiary, (c) fail to maintain separate bank accounts and separate books of account, (d) fail to cause its liabilities to be readily distinguishable from the liabilities of the Sponsor and the other Affiliates of the Sponsor, (e) fail to conduct its business solely in its own name in a manner not misleading to other Persons as to its identity, or (f) fail to make all oral and written communications, including letters, invoices, purchase orders, contracts, statements, and applications solely in its name.

[***] Confidential Treatment Requested

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Section 10.13 Amendments. Except as otherwise provided herein, the Company shall not materially amend, modify, supplement or waive, accept, or permit or consent to the termination, or material amendment, modification, supplement or waiver (including any waiver (or refund) of damages (liquidated or otherwise) payable by any contractor under any Major Project Document) of, any provision of, or give any material consent (each such termination, or material amendment, modification, supplement, waiver or consent, inclusive of any applicable change orders, being referred to herein as a “Project Document Modification”) under any of the Major Project Documents. Notwithstanding the foregoing, the Company may amend, modify, supplement or waive, or accept, or permit or consent any of the ESAs and Project Documents to allow for the addition, removal or modification of Sites or locations so long as any such amendment could not reasonably be expected to have a Material Adverse Effect on the performance of the Company as contemplated by the Base Case Projections.

Section 10.14 Name and Location; Fiscal Year. The Company shall not change its name, its jurisdiction of organization, its organization identification number, its fiscal year or, except as required by GAAP, its accounting policies or reporting practices. The Company shall not change the location of its principal place of business unless it has given written notice to the Collateral Agent, specifying the location of the new principal place of business, not less than 30 days prior to the date such change in the location of the Company’s principal place of business is to be effective.

Section 10.15 Hazardous Substances. The Company shall not Release or authorize any other Person under its direction or control to Release any Hazardous Substances except (i) in material compliance with applicable Environmental Laws, Legal Requirements or Applicable Permits, or (ii) in a quantity or manner that could not reasonably be expected to have a Material Adverse Effect.

Section 10.16 Use of Sites. Subject to existing third party easements, rights of way, or other third party property rights over the Sites, the Company shall not use, maintain, operate or occupy, or allow the use, maintenance, operation or occupancy of, any portion of the Project or any Site for any purpose (a) which may (i) constitute a public or private nuisance or (ii) make void, voidable, or cancelable, or materially increase the premium of, any insurance policies then in force with respect to all or a portion of the Project, or (b) that could reasonably be expected to have a Material Adverse Effect.

Section 10.17 Project Documents. The Company shall not enter into or become a party to any Additional Project Document without (a) obtaining the consent from the Required Holders (unless the aggregate value thereof shall be less than [***] in which case such consent shall not be required), (b) using commercially reasonable efforts to obtain from its counterparty a Direct Agreement in the form of any of Exhibit 4.1.29(a), Exhibit 4.1.29(b) or Exhibit 4.1.29(c) or as otherwise approved by the Required Holders in advance, and (c) providing an executed copy thereof to each of the Required Holders and the Collateral Agent within five Business Days after execution.

Section 10.18 Assignment by Third Parties. To the extent the Company’s consent is required, without prior consent of the Required Holders, the Company shall not consent to the assignment of any obligations under any Major Project Document by any counterparty thereto.

[***] Confidential Treatment Requested

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Section 10.19 Acquisition of Real Property. The Company shall not acquire or lease any real property or other interest in real property (excluding the acquisition of any easements or the acquisition (but not the exercise) of any options to acquire any such interests in real property the value of which is lower than [***] individually or [***] in the aggregate) other than the Sites and other interests in real property acquired on or prior to the Closing Date.

Section 10.20 ERISA. The Company shall not sponsor any employee benefit plans subject to Title I or Title IV of ERISA.

Section 10.21 Lease Obligations. The Company shall not create, incur, assume or suffer to exist any obligations as lessee for the rent or hire of any property under leases other than the Leases.

Section 10.22 Disputes. The Company shall not agree, authorize or otherwise consent to any proposed settlement, resolution or compromise of any litigation, arbitration or other dispute with any Person without the prior authorization of the Required Holders if such proposed settlement, resolution or compromise could reasonably be expected to result in a Material Adverse Effect.

Section 10.23 Assignment. The Company shall not assign its rights or obligations under any Credit Document or any Major Project Document to any Person, except pursuant to the Collateral Documents.

Section 10.24 Accounts. The Company shall not maintain, establish or use any account (other than the Accounts), other than an operating account with a balance not to exceed [***].

Section 10.25 Capital Expenditures. Subject to Section 9.13(c), the Company shall not make any Capital Expenditures other than Capital Expenditures set forth in the Project Budget or in the then current Annual Operating Budget that are reasonably required in order to operate and maintain the Project in accordance with the Legal Requirements and the Major Project Documents.

Section 10.26 Insurance Policy. The Company shall not knowingly take (or fail to take) any action that could reasonably be expected to cause any breach or termination of the Policy including, without limitation, any action in violation of Section VIII.12.a. of the Policy.

ARTICLE 11. EVENTS OF DEFAULT.

An “Event of Default” shall exist if any of the following conditions or events shall occur and be continuing:

Section 11.1 Failure to Make Payments.

(a) The Company defaults in the payment of any principal or Make-Whole Amount, if any, on any Note (i) when the same becomes due and payable or (ii) if due solely to a technical or administrative error by the transmitting financial institution, for more than one Business Day after the same becomes due and payable, in either case whether at maturity or at a date fixed for prepayment or by declaration or otherwise; or

[***] Confidential Treatment Requested

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(b) The Company defaults in the payment of any interest on any Note for more than five Business Days after the same becomes due and payable.

Section 11.2 Misstatements. Any representation or warranty made in writing by or on behalf of the Company or by any officer of the Company in this Agreement or in any writing furnished in connection with the transactions contemplated hereby proves to have been false or incorrect in any material respect on the date as of which it was made.

Section 11.3 Breach of Terms of Agreement.

(a) the Company defaults in the performance of or compliance with any term contained in Sections 7.2(b), 9.2 (but only if such default is not remedied within 10 Business Days after the earlier of (i) a Responsible Officer of the Company obtaining Knowledge of such default and (ii) the Company receiving written notice of such default from any Holder of a Note), 9.5 (only with respect to maintenance of the Company’s limited liability existence), 9.7, 9.14(e) (but only if such default could reasonably be expected to have a Material Adverse Effect), 9.18, 9.19, 9.21 and 9.22 and Article 10;

(b) the Company defaults in the performance of or compliance with any term contained herein (other than those referred to in Sections 11.1, 11.2 or 11.3(a)) and such default is not remedied within 30 days after the earlier of (i) a Responsible Officer of the Company obtaining Knowledge of such default and (ii) the Company receiving written notice of such default from any Holder of a Note (any such written notice to be identified as a “notice of default” and to refer specifically to this Section 11.3); provided, that, if (A) such failure does not consist principally of the failure to pay money and cannot be cured within such 30-day period, (B) such failure is susceptible of cure within 90 days, (C) the Company is proceeding with diligence and good faith to cure such failure, (D) the existence of such failure has not had and could not, after considering the nature of the cure, be reasonably expected to have a Material Adverse Effect, and (E) the Holders shall have received an officer’s certificate signed by a Responsible Officer of the Company to the effect of clauses (A), (B), (C) and (D) above and stating what action the Company is taking to cure such failure, then such 30-day cure period shall be extended to such date, not to exceed a total of 90 days, as shall be necessary for the Company to diligently cure such failure; or

(c) any Credit Party shall fail to perform or observe any covenant to be performed or observed by it under any NPA Document to which it is a party and not otherwise specifically provided for in this Article 11, and such failure shall continue unremedied for a period of 10 days after such Credit Party becomes aware thereof.

Section 11.4 Defaults Under Other Debt. (i) the Company is in default (as principal or as guarantor or other surety) in the payment of any principal of or premium or Make-Whole Amount or interest on any Debt that is outstanding in an aggregate principal amount of at least $1,500,000 beyond any period of grace provided with respect thereto, or (ii) the Company is in default in the performance of or compliance with any term of any evidence of any Debt in an

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aggregate outstanding principal amount of at least $1,500,000 or of any mortgage, indenture or other agreement relating thereto or any other condition exists, and as a consequence of such default or condition such Debt has become, or has been declared (or one or more Persons are entitled to declare such Debt to be), due and payable before its stated maturity or before its regularly scheduled dates of payment, or (iii) as a consequence of the occurrence or continuation of any event or condition (other than the passage of time or the right of the Holder of Debt to convert such Debt into equity interests), (x) the Company has become obligated to purchase or repay Debt before its regular maturity or before its regularly scheduled dates of payment in an aggregate outstanding principal amount of at least $1,500,000, or (y) one or more Persons have the right to require the Company so to purchase or repay such Debt.

Section 11.5 Bankruptcy; Insolvency. Any Bankruptcy Event shall occur with respect to any Credit Party, Home Depot U.S.A., Inc., AT&T Corp. or Pacific Bell Telephone Company so long as it shall have material outstanding or unperformed obligations under any Operative Document to which it is a party; provided, however that a Bankruptcy Event with respect to any of Home Depot U.S.A., Inc., AT&T Corp. or Pacific Bell Telephone Company shall not constitute an Event of Default if: (i) the Company has obtained a rating reaffirmation of its then current rating from any Rating Agency within 270 days following such applicable Bankruptcy Event; (ii) the Company has entered into a Replacement Major Project Contract with a Replacement Obligor within 270 days following such applicable Bankruptcy Event; (iii) such applicable Major Project Contract is assumed by the estate of the entity subject to the Bankruptcy Event; or (iv) in the case of any ESA, the Termination Value has been paid by the applicable Offtaker to the Company within 270 days following such applicable Bankruptcy Event.

Section 11.6 Judgments. A final judgment or judgments for the payment of money aggregating in excess of $1,500,000 are rendered against the Company and which judgments are not (i) fully covered by insurance and the insurer has been notified of, and has not disputed the claim for the payment of, the amount of the judgment or (ii) within 60 days after entry thereof, bonded, discharged or stayed pending appeal, or are not discharged within 60 days after the expiration of such stay.

Section 11.7 ERISA. If (i) any Plan subject to Title IV of ERISA shall fail to satisfy the minimum funding standards of ERISA or the Code for any plan year or part thereof or a waiver of such standards or extension of any amortization period is sought or granted under section 412 of the Code, (ii) a notice of intent to terminate any Plan shall have been or is reasonably expected to be filed with the PBGC or the PBGC shall have instituted proceedings under ERISA section 4042 to terminate or appoint a trustee to administer any Plan subject to Title IV of ERISA or the PBGC shall have notified the Company or any ERISA Affiliate that a Plan may become a subject of any such proceedings, (iii) the aggregate “amount of unfunded benefit liabilities” (within the meaning of section 4001(a)(18) of ERISA) under all Plans, determined in accordance with Title IV of ERISA, shall exceed the aggregate current value of the assets under all Plans, (iv) the Company or any ERISA Affiliate shall have incurred or is reasonably expected to incur any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, (v) the Company or any ERISA Affiliate withdraws from any Multiemployer Plan, or (vi) the Company establishes or amends any employee welfare benefit plan that provides post-employment welfare benefits in a manner that would increase the liability of the Company thereunder; and any such event or events described in clauses (i) through (vi) above, either individually or together with any other such event or events, could reasonably be expected to have a Material Adverse Effect.

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As used in Section 11.7, the terms “employee benefit plan” and “employee welfare benefit plan” shall have the respective meanings assigned to such terms in Section 3 of ERISA.

Section 11.8 Ownership of the Project. The Company shall cease to be the sole owner of the Project (other than with the (i) repurchase of any System by Sponsor as provided in the PUMA and (ii) sale of any System to an Offtaker under an ESA).

Section 11.9 Loss of Collateral. (a) All or any material portion of the Collateral is damaged, seized or appropriated without appropriate Insurance Proceeds (subject to the underlying deductible) or without fair value being paid therefor so as to allow replacement of such Collateral or prepayment of the Notes and to allow the Company to continue satisfying its obligations hereunder and under the other Operative Documents, or (b) any Person other than Collateral Agent attaches or institutes proceedings to attach all or any material part of the Collateral, and any such proceeding or attachment or any judgment Lien against any such Collateral (other than Permitted Liens) (i) remains unlifted, unstayed or undischarged for a period of 30 days or (ii) is upheld in a final nonappealable judgment of a court of competent jurisdiction.

Section 11.10 Insurance Policy. The Policy ceases to be in full force and effect, or the Insurer has failed to pay any claim that has been properly submitted and is undisputed under the Policy within 180 days of submission.

Section 11.11 Security. Any of the Collateral Documents, once executed and delivered, shall fail to provide to the Collateral Agent the Liens, first priority security interest to the extent required by the NPA Documents (subject to Permitted Liens described in clauses (a) and (e) of the definition thereof and, to the extent required by Governmental Rule, clauses (b) and (c) of the definition thereof), rights, titles, interest, remedies permitted by law, powers or privileges intended to be created thereby (including the priority intended to be created thereby) or, except in accordance with its terms, cease to be in full force and effect, or the first priority or validity thereof or the applicability thereof to the Notes or any other Obligations purported to be secured or guaranteed thereby or any part thereof shall be disaffirmed by or on behalf of the Company.

Section 11.12 Regulatory Status. An Adverse PUHCA Event shall occur that could reasonably be expected to have a Material Adverse Effect and within 60 days thereafter such Adverse PUHCA Event has not been cured.

Section 11.13 Loss of or Failure to Obtain Applicable Permits.

(a) The Company shall fail to obtain any Permit on or before the date that such Permit becomes an Applicable Permit with respect to the Project, and such failure could reasonably be expected to have a Material Adverse Effect.

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(b) Any Applicable Permit shall be materially modified (other than modifications contemplated in a Project Document requested by the Company), revoked, cancelled or not renewed by the issuing agency or other Governmental Authority having jurisdiction (or otherwise ceases to be in full force and effect) and within 45 days thereafter the Company is not able to demonstrate to the reasonable satisfaction of the Required Holders that such modification of, revocation of, cancellation of, failure to renew, or failure to maintain in full force and effect such Permit could not reasonably be expected to have a Material Adverse Effect.

Section 11.14 Credit Document Matters. At any time after the execution and delivery thereof, (a) any NPA Document or any material provision hereof or thereof (i) ceases to be in full force and effect or to be valid and binding on any party thereto other than a Secured Party (other than by reason of the satisfaction in full of the Obligations or any termination of a Credit Document in accordance with the terms hereof or thereof), or is assigned or otherwise transferred (except as otherwise required or expressly permitted hereunder or thereunder) or is prematurely terminated by any party thereto (other than a Secured Party), (ii) is or becomes invalid, illegal or unenforceable, or any party hereto or thereto (other than a Secured Party) repudiates or disavows or takes any action to challenge the validity or enforceability of such agreement, (iii) is declared null and void by a Governmental Authority of competent jurisdiction, or (iv) fails to or ceases to provide the rights, powers and privileges purported to be created thereby or hereby, or (b) any authorization or approval by any Governmental Authority necessary to enable any Credit Party to comply with or perform its Obligations or otherwise perform in accordance with the terms of the NPA Documents shall be revoked, withdrawn or withheld, or shall otherwise fail to be issued or remain in full force and effect, and the failure of such authorization or approval from such Governmental Authority, other than with respect to the Tariff, is reasonably expected to have a Material Adverse Effect.

Section 11.15 Project Document Matters.

(a) Company’s Defaults. The Company shall be in breach of, or in default of, any material obligation under a Major Project Document (other than early termination or partial termination of any ESA, so long as the Offtaker owes a Termination Value pursuant to such ESA at termination or partial termination) and is not otherwise waived by the counterparty of such Major Project Document and such breach or default shall not be remediable or, if remediable, shall continue unremedied for the lesser of (i) a period of 30 days or (ii) such period of time (without giving effect to any extension given to Collateral Agent under any applicable Direct Agreement with respect thereto) under such Major Project Document which the Company has available to it in which to remedy such breach or default.

(b) Third Party Defaults. Any Person other than the Company shall be in breach of, in default under a Major Project Document and such breach or default (i) shall not be remediable or, if remediable, shall continue unremedied for a period beyond the applicable grace period and (ii) has had or could reasonably be expected to have a Material Adverse Effect; provided, however that any such action under this subsection (b) shall not constitute an Event of Default if: (i) the Company has obtained a rating reaffirmation of its then current rating from any Rating Agency; (ii) the Company has entered into a Replacement Major Project Contract with a Replacement Obligor within 270 days thereof; or (iii) in the case of any ESA, the Termination Value has been paid by the applicable Offtaker to the Company within 270 days thereof.

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(c) Third Party Direct Agreements. (i) Any Person other than the Company shall disaffirm or repudiate in writing its material obligations under any Direct Agreement and such disaffirmation or repudiation could reasonably be expected to result in a Material Adverse Effect, (ii) any representation or warranty made by any Person other than the Company in a Direct Agreement shall be untrue or misleading in any material respect as of the time made and such untrue or misleading representation or warranty could reasonably be expected to result in a Material Adverse Effect, or (iii) a Person other than the Company shall breach any material covenant of a Direct Agreement and such breach or default shall not be remediable or, if remediable, shall continue unremedied for a period of 30 days from the time the Company obtains Knowledge of such breach and such breach could reasonably be expected to result in a Material Adverse Effect.

(d) Termination. At any time after the execution and delivery thereof, any Major Project Document or any material provision hereof or thereof (i) ceases to be in full force and effect or to be valid and binding on any party thereto (other than by reason of the satisfaction of performance of such agreement or provision or any other any termination thereof in accordance with the terms thereof), or is assigned or otherwise transferred (except as otherwise required or expressly permitted hereunder or thereunder) or is prematurely terminated by any party thereto, (ii) is or becomes invalid, illegal or unenforceable, or any party hereto or thereto repudiates or disavows or takes any action to challenge the validity or enforceability of such agreement, (iii) is declared null and void by a Governmental Authority of competent jurisdiction or written notice is given by any Governmental Authority or applicable counterparty contesting the validity or enforcement thereof, or (iv) fails to or ceases to provide the rights, powers and privileges purported to be created thereby or hereby; provided, however that any such action under this subsection (d) shall not constitute an Event of Default if: (i) the Company has obtained a rating reaffirmation of its then current rating from any Rating Agency; (ii) the Company has entered into a Replacement Major Project Contract with a Replacement Obligor within 270 days thereof; or (iii) in the case of any ESA, the Termination Value has been paid by the applicable Offtaker to the Company within 270 days thereof.

Section 11.16 Eminent Domain. There shall have occurred any act or series of acts attributable to any Governmental Authority which (a) in the reasonable judgment of the Required Holders has the effect of depriving the Secured Parties of their fundamental rights as creditors in respect of the NPA Documents, (b) confiscates, expropriates, nationalizes or otherwise acquires compulsorily the ownership or control by the Company of all or any material part of the Project, or (c) in the reasonable judgment of the Required Holders has the effect of materially impairing the value of any Major Project Document, and such act or series of acts continues uncured for 90 days or more.

ARTICLE 12. REMEDIES ON DEFAULT, ETC.

Section 12.1 Acceleration. (a) If an Event of Default with respect to the Company described in Section 11.5 has occurred, all the Notes then outstanding shall automatically become immediately due and payable.

(b) Subject to clause (d) below, if any other Event of Default has occurred and is continuing, any Holder or Holders of more than 25% in principal amount of the Notes at the time outstanding may at any time at its or their option, by notice or notices to the Company, declare all the Notes then outstanding to be immediately due and payable.

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(c) If any Event of Default described in Section 11.1 has occurred and is continuing, any Holder or Holders of Notes at the time outstanding affected by such Event of Default may at any time, at its or their option, by notice or notices to the Company, declare all the Notes held by it or them to be immediately due and payable.

(d) (i) If an Event of Default described in Section 11.13(a) (so long as such Event of Default is not caused in whole or in part by any intentional act or omission by any Credit Party) or Section 11.16 (each, an “Unintentional Event of Default”), in each such case, affects only a portion of the Portfolio (the “Affected Portion”) and by removing the Systems part of such Affected Portion such Unintentional Event of Default shall be cured, the Company will have the option to cure such Unintentional Event of Default by severing the Systems in the Affected Portion from the Portfolio. In order to avail itself of the buydown set forth in this Section 12.1(d)(i), the Company shall re-calculate the size of the Notes under the Base Case Projections by (a) reducing the Project capacity assumption therein to the capacity of the Systems not affected by the Unintentional Event of Default, (b) maintaining DSCR at a [***] minimum through the Maturity Date under the Downside Case, and (c) otherwise changing no assumptions in the Base Case Projections. The Company’s calculations shall be subject to review and approval by the Required Holders (in consultation with the Independent Engineer). Any amount by which, after such review and approval, the then outstanding aggregate principal amount of the Notes exceeds the revised total principal amount of the Notes needed to achieve the ratio specified in clause (b) above is the “Unintentional Event of Default Buydown Amount.” The Company shall prepay, pro rata among the Holders, the Notes at par plus accrued and unpaid interest in the aggregate amount of the Unintentional Event of Default Buydown Amount within 30 days of notification from the Required Holders (in consultation with the Independent Engineer) that the Company’s re-calculation has been approved by the Required Holders (in consultation with the Independent Engineer) and, substantially simultaneously with such prepayment, transfer the Affected Portion of the Portfolio to another Person. No later than 5 days after the prepayment by the Company to the Holders of the Unintentional Event of Default Buydown Amount, the Company shall deliver to each Holder a revised Amortization Schedule reflecting the amortization of the aggregate principal amount of Notes remaining outstanding through the Maturity Date.

(ii) If an Event of Default other than an Unintentional Event of Default affects an Affected Portion and by removing the Systems part of such Affected Portion such Event of Default shall be cured, the Company will have the option to cure such Event of Default by severing the Systems in the Affected Portion from the Portfolio. In order to avail itself of the buydown set forth in this Section 12.1(d)(ii), the Company shall re-calculate the size of the Notes under the Base Case Projections by (a) reducing the Project capacity assumption therein to the capacity of the Systems not affected by the Event of Default, (b) maintaining DSCR at a [***] minimum through the Maturity Date under the Downside Case, and (c) otherwise changing no assumptions in the Base Case Projections. The Company’s calculations shall be subject to review and approval by the Required Holders (in consultation with the Independent Engineer). Any amount by which, after such review and approval, the then outstanding aggregate principal amount of the Notes exceeds the revised total principal amount of the Notes needed to achieve the ratio specified in clause (b) above is the “Event of Default Buydown Amount.” The

[***] Confidential Treatment Requested

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Company shall prepay, pro rata among the Holders, the Notes in the aggregate amount of the Event of Default Buydown Amount plus accrued and unpaid interest and the Make-Whole Amount with respect thereto within 30 days of notification from the Required Holders (in consultation with the Independent Engineer) that the Company’s re-calculation has been approved by the Required Holders (in consultation with the Independent Engineer) and, substantially simultaneously with such prepayment, transfer the Affected Portion of the Portfolio to another Person. No later than 5 days after the prepayment by the Company to the Holders of the Event of Default Buydown Amount, the Company shall deliver to each Holder a revised Amortization Schedule reflecting the amortization of the aggregate principal amount of Notes remaining outstanding through the Maturity Date.

Subject to the provisions of Section 12.1(d), upon any Notes becoming due and payable under this Section 12.1, whether automatically or by declaration, such Notes will forthwith mature and the entire unpaid principal amount of such Notes, plus (x) all accrued and unpaid interest thereon (including, but not limited to, interest accrued thereon at the Default Rate) and (y) the Make-Whole Amount determined in respect of such principal amount (to the full extent permitted by applicable law), shall all be immediately due and payable, in each and every case without presentment, demand, protest or further notice, all of which are hereby waived. The Company acknowledges, and the parties hereto agree, that each Holder of a Note has the right to maintain its investment in the Notes free from repayment by the Company (except as herein specifically provided for) and that the provision for payment of a Make-Whole Amount by the Company in the event that the Notes are prepaid or are accelerated as a result of an Event of Default, is intended to provide compensation for the deprivation of such right under such circumstances.

Section 12.2 Other Remedies. If any Default or Event of Default has occurred and is continuing, and irrespective of whether any Notes have become or have been declared immediately due and payable under Section 12.1, the Holder of any Note at the time outstanding may proceed to protect and enforce the rights of such Holder by an action at law, suit in equity or other appropriate proceeding, whether for the specific performance of any agreement contained herein or in any Note, or for an injunction against a violation of any of the terms hereof or thereof, or in aid of the exercise of any power granted hereby or thereby or by law or otherwise.

Section 12.3 Rescission. At any time after any Notes have been declared due and payable pursuant to Section 12.1(b) or (c), the Holders of not less than 76% in principal amount of the Notes then outstanding, by written notice to the Company, may rescind and annul any such declaration and its consequences if (a) the Company has paid all overdue interest on the Notes, all principal of and Make-Whole Amount, if any, on any Notes that are due and payable and are unpaid other than by reason of such declaration, and all interest on such overdue principal and Make-Whole Amount, if any, and (to the extent permitted by applicable law) any overdue interest in respect of the Notes, at the Default Rate, (b) neither the Company nor any other Person shall have paid any amounts which have become due solely by reason of such declaration, (c) all Events of Default and Defaults, other than non-payment of amounts that have become due solely by reason of such declaration, have been cured or have been waived pursuant to Article 17, and (d) no judgment or decree has been entered for the payment of any monies due pursuant hereto or to the Notes. No rescission and annulment under this Section 12.3 will extend to or affect any subsequent Event of Default or Default or impair any right consequent thereon.

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Section 12.4 No Waivers or Election of Remedies, Expenses, Etc. No course of dealing and no delay on the part of any Holder of any Note in exercising any right, power or remedy shall operate as a waiver thereof or otherwise prejudice such Holder’s rights, powers or remedies. No right, power or remedy conferred by this Agreement or by any Note upon any Holder thereof shall be exclusive of any other right, power or remedy referred to herein or therein or now or hereafter available at law, in equity, by statute or otherwise. Without limiting the obligations of the Company under Article 15, the Company will pay to the Holder of each Note on demand such further amount as shall be sufficient to cover all costs and expenses of such Holder incurred in any enforcement or collection under this Article 12, including, without limitation, reasonable attorneys’ fees, expenses and disbursements.

ARTICLE 13. REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.

Section 13.1 Registration of Notes. The Company shall keep at its principal executive office a register for the registration of Notes and registration of transfers of Notes. The name and address of each Holder of one or more Notes, each transfer thereof and the name and address of each transferee of one or more Notes shall be registered in such register. If any Holder of one or more Notes is a nominee, then the name and address of the beneficial owner of such Note or Notes shall also be registered in such register as an owner and Holder thereof. Prior to due presentment for registration of transfer, the Person(s) in whose name any Note(s) shall be registered shall be deemed and treated as the owner and Holder thereof for all purposes hereof, and the Company shall not be affected by any notice or knowledge to the contrary. The Company shall give to any Holder of a Note that is an Institutional Investor promptly upon request therefor, a complete and correct copy of the names and addresses of all registered Holders of Notes.

Section 13.2 Transfer and Exchange of Notes.

(a) Upon surrender of any Note to the Company at the address and to the attention of the designated officer (all as specified in Section 18(iii)), for registration of transfer or exchange (and in the case of a surrender for registration of transfer accompanied by a written instrument of transfer duly executed by the registered Holder of such Note or such Holder’s attorney duly authorized in writing and accompanied by the relevant name, address and other information for notices of each transferee of such Note or part thereof), within ten Business Days thereafter, the Company shall execute and deliver, at the Company’s expense (except as provided below), one or more new Notes (as requested by the Holder thereof) in exchange therefor, in an aggregate principal amount equal to the unpaid principal amount of the surrendered Note. Each such new Note shall be payable to such Person as such Holder may request and shall be substantially in the form of Exhibit 1. Each such new Note shall be dated and bear interest from the date to which interest shall have been paid on the surrendered Note or dated the date of the surrendered Note if no interest shall have been paid thereon. The Company may require payment of a sum sufficient to cover any stamp tax or governmental charge imposed in respect of any such transfer of Notes as a condition of registering the transfer of Notes on its register. Notes shall not be transferred in denominations of less than $500,000, provided, that, if

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necessary to enable the registration of transfer by a Holder of its entire holding of Notes, one Note may be in a denomination of less than $500,000. Any transferee, by its acceptance of a Note registered in its name (or the name of its nominee), shall be deemed to have made the representations set forth in Article 6.

(b) The Purchasers and Holders understand that the Notes are not being registered under the Securities Act or any state securities law and are being sold to the Purchasers in a transaction that is exempt from the registration requirements of the Securities Act. Neither the Company nor any other person or entity is obligated to register the Notes under the Securities Act or any other securities or “Blue Sky” laws.

(c) The Purchasers and Holders understand that each Note will bear a legend to substantially the following effect:

THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). NEITHER THIS NOTE NOR ANY PORTION HEREOF MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE SECURITIES ACT AND ANY APPLICABLE PROVISIONS OF ANY STATE BLUE SKY OR SECURITIES LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION PROVISIONS.

Section 13.3 Replacement of Notes. Upon receipt by the Company at the address and to the attention of the designated officer (all as specified in Section 18(iii)) of evidence reasonably satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of any Note (which evidence shall be, in the case of an Institutional Investor, notice from such Institutional Investor of such ownership and such loss, theft, destruction or mutilation), and

(a) in the case of loss, theft or destruction, of indemnity reasonably satisfactory to it (provided that if the Holder of such Note is, or is a nominee for, an original Purchaser or another Holder of a Note with a minimum net worth of at least [***], or a Qualified Institutional Buyer, such Person’s own unsecured agreement of indemnity shall be deemed to be satisfactory), or

(b) in the case of mutilation, upon surrender and cancellation thereof, within ten Business Days thereafter,

the Company at its own expense shall execute and deliver, in lieu thereof, a new Note, dated and bearing interest from the date to which interest shall have been paid on such lost, stolen, destroyed or mutilated Note or dated the date of such lost, stolen, destroyed or mutilated Note if no interest shall have been paid thereon.

ARTICLE 14. PAYMENTS ON NOTES.

Section 14.1 Place of Payment. Subject to Section 14.2, payments of principal, Make-Whole Amount, if any, and interest becoming due and payable on the Notes shall be made in New York, New York, at the principal office of the Collateral Agent in such jurisdiction. The Company may at any time, by notice to each Holder of a Note, change the place of payment of the Notes so long as such place of payment shall be either the principal office of the Company in such jurisdiction or the principal office of a bank or trust company in such jurisdiction.

[***] Confidential Treatment Requested

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Section 14.2 Home Office Payment. So long as any Purchaser or its nominee shall be the Holder of any Note, and notwithstanding anything contained in Section 14.1 or in such Note to the contrary, the Company will pay all sums becoming due on such Note for principal, Make-Whole Amount, if any, interest and all other amounts becoming due hereunder by the method and at the address specified for such purpose below such Purchaser’s name in Schedule A, or by such other method or at such other address as such Purchaser shall have from time to time specified to the Company in writing for such purpose, without the presentation or surrender of such Note or the making of any notation thereon, except that upon written request of the Company made concurrently with, or reasonably promptly after, payment or prepayment in full of any Note, such Purchaser shall surrender such Note for cancellation, reasonably promptly after any such request, to the Company at its principal executive office or at the place of payment most recently designated by the Company pursuant to Section 14.1. Prior to any sale or other disposition of any Note held by a Purchaser or its nominee, such Purchaser will, at its election, either endorse thereon the amount of principal paid thereon and the last date to which interest has been paid thereon or surrender such Note to the Company in exchange for a new Note or Notes pursuant to Section 13.2. The Company will afford the benefits of this Section 14.2 to any Institutional Investor that is the direct or indirect transferee of any Note purchased by a Purchaser under this Agreement and that has made the same agreement relating to such Note as the Purchasers have made in this Section 14.2.

ARTICLE 15. EXPENSES, ETC.

Section 15.1 Transaction Expenses. Whether or not the transactions contemplated hereby are consummated, the Company will pay all costs and expenses (including reasonable attorneys’ fees of a special counsel and, if reasonably required by the Required Holders, local or other counsel) incurred by the Purchasers and each other Holder of a Note in connection with such transactions and in connection with any amendments, waivers or consents under or in respect of the Credit Documents (whether or not such amendment, waiver or consent becomes effective), including, without limitation: (a) the costs and expenses incurred in enforcing or defending (or determining whether or how to enforce or defend) any rights under the Credit Documents or in responding to any subpoena or other legal process or informal investigative demand issued in connection with the Credit Documents, or by reason of being a Holder of any Note, (b) the costs and expenses, including financial advisors’ fees, incurred in connection with the insolvency or bankruptcy of the Company or in connection with any work-out or restructuring of the transactions contemplated by the Credit Documents and (c) the costs and expenses incurred in connection with the initial filing of this Agreement and all related documents and financial information with the SVO, provided that such costs and expenses under this clause (c) shall not exceed [***]. The Company will pay, and will save each Purchaser and each other Holder of a Note harmless from, all claims in respect of any fees, costs or expenses, if any, of brokers and finders (other than those, if any, retained by a Purchaser or other Holder in connection with its purchase of the Notes).

[***] Confidential Treatment Requested

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Section 15.2 Survival. The obligations of the Company under this Article 15 will survive the payment or transfer of any Note, the enforcement, amendment or waiver of any provision of the Credit Documents, and the termination of the Credit Documents.

ARTICLE 16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.

All representations and warranties contained herein shall survive the execution and delivery of this Agreement and the Notes, the purchase or transfer by any Purchaser of any Note or portion thereof or interest therein and the payment of any Note, and may be relied upon by any subsequent Holder of a Note, regardless of any investigation made at any time by or on behalf of such Purchaser or any other Holder of a Note. All statements contained in any certificate or other instrument delivered by or on behalf of the Company pursuant to this Agreement shall be deemed representations and warranties of the Company made as of the date of delivery of such certificate or other instrument (except as otherwise provided therein) under this Agreement. Subject to the preceding sentence, the Credit Documents embody the entire agreement and understanding between each Purchaser and the Company and supersede all prior agreements and understandings relating to the subject matter hereof.

ARTICLE 17. AMENDMENT AND WAIVER.

Section 17.1 Requirements. This Agreement and the Notes may be amended, and the observance of any term hereof or of the Notes may be waived (either retroactively or prospectively), only with the written consent of the Company and the Required Holders, except that:

(a) no amendment or waiver of any of the provisions of Articles 1, 2, 3, 4, 5, 6 or 21 hereof, or any defined term (as it is used therein), will be effective as to any Purchaser unless consented to by such Purchaser in writing;

(b) no amendment or waiver may, without the written consent of each Purchaser and the Holder of each Note at the time outstanding, (i) subject to the provisions of Article 12 relating to acceleration or rescission, change the amount or time of any prepayment or payment of principal of, or reduce the rate or change the time of payment or method of computation of (x) interest on the Notes or (y) the Make-Whole Amount, (ii) change the percentage of the principal amount of the Notes the Holders of which are required to consent to any amendment or waiver, or (iii) amend any of Article 8 (except as set forth in Section 17.1(c)), Section 11.1(b), or Articles 12, 17 or 20; and

(c) the provisions of Section 8.5 may be amended or waived to permit offers to purchase made by the Company or an Affiliate pro rata to the Holders of all Notes at the time outstanding upon the same terms and conditions only with the written consent of the Company and the Super-Majority Holders.

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Section 17.2 Solicitation of Holders of Notes.

(a) Solicitation. The Company will provide each registered Holder of a Note on the note register maintained by the Company pursuant to Section 13.1 with sufficient information, at least 10 Business Days in advance of the date a decision is required, to enable such Holder to make an informed and considered decision with respect to any proposed amendment, waiver or consent in respect of any of the Credit Documents. The Company will deliver executed or true and correct copies of each amendment, waiver or consent effected pursuant to the provisions of this Article 17 to each registered Holder of a Note on the note register maintained by the Company pursuant to Section 13.1 promptly following the date on which it is executed and delivered by, or receives the consent or approval of, the requisite Holders of Notes.

(b) Payment. The Company will not directly or indirectly pay or cause to be paid any remuneration, whether by way of supplemental or additional interest, fee or otherwise, or grant any security or provide other credit support, to any Holder of a Note as consideration for or as an inducement to the entering into by such Holder of any waiver or amendment of any of the terms and provisions of any Credit Document unless such remuneration is concurrently paid, or security is concurrently granted or other credit support concurrently provided, on the same terms, ratably to each Holder of a Note even if such Holder did not consent to such waiver or amendment.

(c) Consent in Contemplation of Transfer. Any consent made pursuant to this Article 17 by a Holder of Notes that has transferred or has agreed to transfer its Notes to the Company or any Affiliate of the Company pursuant to a waiver under Section 17.1(c) or subsequent to Section 8.5 having been amended pursuant to Section 17.1(c) and has provided or has agreed to provide such written consent as a condition to such transfer shall be void and of no force or effect except solely as to such Holder, and any amendments effected or waivers granted or to be effected or granted that would not have been or would not be so effected or granted but for such consent (and the consents of all other Holders of Notes that were acquired under the same or similar conditions) shall be void and of no force or effect except solely as to such Holder.

Section 17.3 Binding Effect, etc. Any amendment or waiver consented to as provided in this Article 17 applies equally to all Holders of Notes and is binding upon them and upon each future Holder of any Note and upon the Company without regard to whether such Note has been marked to indicate such amendment or waiver. No such amendment or waiver will extend to or affect any obligation, covenant, agreement, Default or Event of Default not expressly amended or waived or impair any right consequent thereon. No course of dealing between the Company and any Holder of a Note nor any delay in exercising any rights under any NPA Document shall operate as a waiver of any rights of any Holder of such Note.

Section 17.4 Notes Held by Company, etc. Solely for the purpose of determining whether the Holders of the requisite percentage of the aggregate principal amount of Notes then outstanding approved or consented to any amendment, waiver or consent to be given under the NPA Documents, or have directed the taking of any action provided in the NPA Documents to be taken upon the direction of the Holders of a specified percentage of the aggregate principal amount of Notes then outstanding, Notes directly or indirectly owned by the Company or any of its Affiliates shall be deemed not to be outstanding.

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ARTICLE 18. NOTICES.

All notices and communications provided for hereunder shall be in writing and sent (a) by facsimile if the sender on the same day sends a confirming copy of such notice by an internationally recognized overnight delivery service (charges prepaid), (b) by registered or certified mail with return receipt requested (postage prepaid), or (c) by an internationally recognized overnight delivery service (with charges prepaid). Any such notice must be sent:

(i) if to any Purchaser or its nominee, to such Purchaser or nominee at the address specified for such communications in Schedule A, or at such other address as such Purchaser or nominee shall have specified to the Company in writing,

(ii) if to any other Holder of any Note, to such Holder at such address as such other Holder shall have specified to the Company in writing, or

(iii) if to the Company, to the Company at the following address: 2014 ESA Project Company, LLC, 1252 Orleans Drive, Sunnyvale, CA 94089, Attn: Bill Brockenborough, E-Mail: bill.brockenborough@bloomenergy.com, or at such other address as the Company shall have specified to the Holder of each Note in writing.

Notices under this Article 18 will be deemed given only when actually received during the normal business hours of the recipient on a Business Day or if received after such normal hours on a Business Day or on a day that is not a Business Day, then on the next succeeding Business Day.

ARTICLE 19. REPRODUCTION OF DOCUMENTS.

This Agreement and all documents relating thereto, including, without limitation, (a) consents, waivers and modifications that may hereafter be executed, (b) documents received by any Purchaser at the Closing (except the Notes themselves), and (c) financial statements, certificates and other information previously or hereafter furnished to any Purchaser, may be reproduced by such Purchaser by any photographic, photostatic, electronic, digital, or other similar process and such Purchaser may destroy any original document so reproduced. The Company agrees and stipulates that, to the extent permitted by applicable law, any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and whether or not such reproduction was made by such Purchaser in the regular course of business) and any enlargement, facsimile or further reproduction of such reproduction shall likewise be admissible in evidence. This Article 19 shall not prohibit the Company or any other Holder of Notes from contesting any such reproduction to the same extent that it could contest the original, or from introducing evidence to demonstrate the inaccuracy of any such reproduction.

ARTICLE 20. CONFIDENTIAL INFORMATION.

For the purposes of this Article 20, “Confidential Information ” means information delivered to any Purchaser by or on behalf of the Company in connection with the transactions contemplated by or otherwise pursuant to this Agreement that is proprietary in nature and that was clearly marked or labeled or otherwise adequately identified when received by such

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Purchaser as being confidential information of the Company, provided that such term does not include information that (a) was publicly known or otherwise known to such Purchaser prior to the time of such disclosure, (b) subsequently becomes publicly known through no act or omission by such Purchaser or any Person acting on such Purchaser’s behalf, (c) otherwise becomes known to such Purchaser other than through disclosure by the Company, provided, that, such Purchaser does not have actual knowledge that such disclosure is proprietary in nature or (d) constitutes financial statements delivered to such Purchaser under Section 7.1 that are otherwise publicly available. Each Purchaser will maintain the confidentiality of such Confidential Information in accordance with procedures adopted by such Purchaser in good faith to protect confidential information of third parties delivered to such Purchaser, provided that such Purchaser may deliver or disclose Confidential Information to (i) its directors, officers, employees, agents, attorneys, trustees and affiliates (to the extent such disclosure reasonably relates to the administration of the investment represented by its Notes), (ii) its auditors, financial advisors and other professional advisors who agree to hold confidential the Confidential Information substantially in accordance with the terms of this Article 20, (iii) any other Holder of any Note, (iv) any Institutional Investor to which it sells or offers to sell such Note or any part thereof or any participation therein (if such Person has agreed in writing prior to its receipt of such Confidential Information to be bound by the provisions of this Article 20), (v) any Person from which it offers to purchase any Security of the Company (if such Person has agreed in writing prior to its receipt of such Confidential Information to be bound by the provisions of this Article 20), (vi) any federal or state regulatory authority having jurisdiction over such Purchaser, (vii) the NAIC or the SVO or, in each case, any similar organization, or any nationally recognized rating agency that requires access to information about such Purchaser’s investment portfolio, or (viii) any other Person to which such delivery or disclosure may be necessary or appropriate (w) to effect compliance with any law, rule, regulation or order applicable to such Purchaser, (x) in response to any subpoena or other legal process, (y) in connection with any litigation to which such Purchaser is a party or (z) if an Event of Default has occurred and is continuing, to the extent such Purchaser may reasonably determine such delivery and disclosure to be necessary or appropriate in the enforcement or for the protection of the rights and remedies under the Credit Documents. Each Holder of a Note, by its acceptance of a Note, will be deemed to have agreed to be bound by and to be entitled to the benefits of this Article 20 as though it were a party to this Agreement. On reasonable request by the Company in connection with the delivery to any Holder of a Note of information required to be delivered to such Holder under this Agreement or requested by such Holder (other than a Holder that is a party to this Agreement or its nominee), such Holder will enter into an agreement with the Company embodying the provisions of this Article 20.

In the event that as a condition to receiving access to information relating to the Company in connection with the transactions contemplated by or otherwise pursuant to this Agreement, any Purchaser is required to agree to a confidentiality undertaking (whether through Intralinks or otherwise) which is different from the terms of this Article 20, the terms of this Article 20 shall, as between such Purchaser and the Company, supersede the terms of any such other confidentiality undertaking.

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ARTICLE 21. SUBSTITUTION OF PURCHASER.

Each Purchaser shall have the right to substitute any one of its Affiliates as the purchaser of the Notes that it has agreed to purchase hereunder, by written notice to the Company, that shall be signed by both such Purchaser and such Affiliate, shall contain such Affiliate’s agreement to be bound by this Agreement and shall contain a confirmation by such Affiliate of the accuracy with respect to it of the representations set forth in Article 6. Upon receipt of such notice, any reference to such Purchaser in this Agreement (other than in this Article 21), shall be deemed to refer to such Affiliate in lieu of such original Purchaser. In the event that such Affiliate is so substituted as a Purchaser hereunder and such Affiliate thereafter transfers to such original Purchaser all of the Notes then held by such Affiliate, upon receipt by the Company of notice of such transfer, any reference to such Affiliate as a “Purchaser” in this Agreement (other than in this Article 21), shall no longer be deemed to refer to such Affiliate, but shall refer to such original Purchaser, and such original Purchaser shall again have all the rights of an original Holder of the Notes under this Agreement.

ARTICLE 22. MISCELLANEOUS.

Section 22.1 Successors and Assigns. All covenants and other agreements contained in this Agreement by or on behalf of any of the parties hereto bind and inure to the benefit of their respective successors and permitted assigns (including, without limitation, any subsequent Holder of a Note) whether so expressed or not.

Section 22.2 Payments Due on Non-Business Days. Anything in this Agreement or the Notes to the contrary notwithstanding, any payment of principal of a Make-Whole Amount or interest on any Note that is due on a date other than a Business Day shall be made on the next succeeding Business Day without including the additional days elapsed in the computation of the interest payable on such next succeeding Business Day; provided that if the maturity date of any Note is a date other than a Business Day, the payment otherwise due on such maturity date shall be made on the next succeeding Business Day and shall include the additional days elapsed in the computation of interest payable on such next succeeding Business Day.

Section 22.3 Accounting Terms. All accounting terms used herein that are not expressly defined in this Agreement have the meanings respectively given to them in accordance with GAAP. Except as otherwise specifically provided herein, (i) all computations made pursuant to this Agreement shall be made in accordance with GAAP, and (ii) all financial statements shall be prepared in accordance with GAAP. For purposes of determining compliance with the financial covenants contained in this Agreement, any election by the Company to measure any financial liability using fair value (as permitted by Accounting Standard Codification Topic No. 825-10-25 – Fair Value Option or any similar accounting standard) shall be disregarded and such determination shall be made as if such election had not been made.

Section 22.4 Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by law) not invalidate or render unenforceable such provision in any other jurisdiction.

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Section 22.5 Construction, etc.. Each covenant contained herein shall be construed (absent express provision to the contrary) as being independent of each other covenant contained herein, so that compliance with any one covenant shall not (absent such an express contrary provision) be deemed to excuse compliance with any other covenant. Where any provision herein refers to action to be taken by any Person, or any action that such Person is prohibited from taking, such provision shall be applicable whether such action is taken directly or indirectly by such Person.

For the avoidance of doubt, all Schedules and Exhibits attached to this Agreement shall be deemed to be a part of this Agreement.

Section 22.6 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original but all of which together shall constitute one instrument. Each counterpart may consist of a number of copies hereof, each signed by less than all, but together signed by all, of the parties hereto.

Section 22.7 Governing Law. This Agreement shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than such State.

Section 22.8 Jurisdiction and Process; Waiver of Jury Trial. (a) The Company irrevocably submits to the non-exclusive jurisdiction of any New York State or federal court sitting in the Borough of Manhattan, The City of New York, over any suit, action or proceeding arising out of or relating to this Agreement or the Notes. To the fullest extent permitted by applicable law, the Company irrevocably waives and agrees not to assert, by way of motion, as a defense or otherwise, any claim that it is not subject to the jurisdiction of any such court, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.

(b) The Company consents to process being served by or on behalf of any Holder of Notes in any suit, action or proceeding of the nature referred to in Section 22.8(a) by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, return receipt requested, to it at its address specified in Article 18 or at such other address of which such Holder shall then have been notified pursuant to said Article. The Company agrees that such service upon receipt (i) shall be deemed in every respect effective service of process upon it in any such suit, action or proceeding and (ii) shall, to the fullest extent permitted by applicable law, be taken and held to be valid personal service upon and personal delivery to it. Notices hereunder shall be conclusively presumed received as evidenced by a delivery receipt furnished by the United States Postal Service or any reputable commercial delivery service.

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(c) Nothing in this Section 22.8 shall affect the right of any Holder of a Note to serve process in any manner permitted by law, or limit any right that the Holders of any of the Notes may have to bring proceedings against the Company in the courts of any appropriate jurisdiction or to enforce in any lawful manner a judgment obtained in one jurisdiction in any other jurisdiction.

(d) The parties hereto hereby waive trial by jury in any action brought on or with respect to this Agreement, the Notes or any other document executed in connection herewith or therewith.

Section 22.9 Scope of Liability.

Except as set forth in this Section 22.9 and Section 8.22 of the Pledge Agreement, notwithstanding anything in any Credit Document to the contrary, the Secured Parties shall have no recourse or claims with respect to the transactions contemplated by the Operative Documents against Pledgor, Sponsor or any of their respective Affiliates (other than the Company), shareholders, officers, directors or employees (collectively, the “Nonrecourse Persons”) and the Secured Parties’ recourse against the Company shall be limited to the Collateral, the Project, all Project Revenues, all proceeds of the Notes, Insurance Proceeds, Eminent Domain Proceeds, and all income or revenues of the foregoing as and to the extent provided herein and in the Collateral Documents (which, for the avoidance of doubt, excludes the payments allowed to any Nonrecourse Person pursuant to the terms of any Credit Documents); provided, that the foregoing provision of this Section 22.9 shall not in any way (a) constitute a waiver, release or discharge of any of the indebtedness, or of any of the terms, covenants, conditions, or provisions of any NPA Document (and the same shall continue, but without personal liability to the Nonrecourse Persons, until fully paid, discharged, observed, or performed) or otherwise relieve any such Person from its obligations under the NPA Documents to which it is a party or shall preclude, restrict, reduce, limit or otherwise affect the rights, powers and remedies of the Secured Parties to enforce (or cause to be enforced) such obligations against such Person or such Person’s properties to the extent permitted by any NPA Document to which it is a party; (b) limit, reduce, restrict or otherwise affect the right of any Secured Party (or any assignee, beneficiary or successor to any of them) to name the Company or any other Person as a defendant in any action or suit for a judicial foreclosure or for the exercise of any other remedy under or with respect to any Credit Document, or for injunction or specific performance, so long as no judgment in the nature of a deficiency judgment shall be enforced against any Nonrecourse Person, except as set forth in this Section 22.9; (c) limit, reduce, restrict or otherwise affect any right or remedy of any Secured Party (or any assignee or beneficiary thereof or successor thereto) with respect to, and each of the Nonrecourse Persons shall remain fully liable to the extent that it would otherwise be liable for its own actions with respect to, any fraud, willful misrepresentation (which shall not include innocent or negligent misrepresentation), or misappropriation of Project Revenues, proceeds of the Notes, Insurance Proceeds, Eminent Domain Proceeds or any other earnings, revenues, rents, issues, profits or proceeds from or of the Collateral, that should or would have been paid as provided herein or paid or delivered to any Secured Party (or any assignee or beneficiary thereof or successor thereto) towards any payment required under any other Credit Document; (d) affect or diminish or constitute a waiver, release or discharge of any specific written obligation, covenant, representation, or agreement in respect of the transactions contemplated by the Operative Documents made by any of the Nonrecourse Persons or any

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security granted by the Nonrecourse Persons in support of the obligations of such Persons under any Collateral Document (or as security for the obligations of the Company), including Pledgor’s obligations, covenants, representations and agreements under the Pledge Agreement; nor (e) limit the liability of (i) any Person who is a party to any Project Document or has issued any certificate or other statement in connection therewith with respect to such liability as may arise solely by reason of the terms and conditions of such Project Document (but subject to any limitation of liability in such Project Document), certificate or statement, or (ii) any Person rendering a legal opinion pursuant to this Agreement, in each case under this clause (e) relating solely to such liability of such Person as may arise under such referenced agreement, instrument or opinion. The limitations on recourse set forth in this Section 22.9 shall survive the termination of this Agreement.

Section 22.10 U.S. Tax Forms.

Each Holder, on or before the date it becomes a party to this Agreement and thereafter at the time or times prescribed by law or reasonably requested by the Company, shall furnish to the Company, to the extent such Holder is legally eligible to do so, such properly completed and executed documentation (including, but not limited to IRS Form W-9 or IRS Form W-8BEN or W-8BEN-E (or other applicable Form W-8, together with applicable attachments, as may be applicable)) as will permit such payments to be made without, or at a reduced rate of, withholding, including any withholding that may be imposed under Sections 1471 or 1472 of the Code. In addition, any Holder, if requested by the Company, shall deliver such other documentation prescribed by law or reasonably requested by the Company as will enable the Company to determine whether or not such Holder is subject to backup withholding or information reporting requirements.

Each Holder agrees that if any forms or other documentation provided to the Company pursuant to the previous paragraph is or becomes materially inaccurate or incomplete, it shall promptly update such forms or documentation or promptly notify the Company in writing of its legal inability to do so. * * * * *

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If you are in agreement with the foregoing, please sign the form of agreement on a counterpart of this Agreement and return it to the Company, whereupon this Agreement shall become a binding agreement between you and the Company.

Very truly yours,
2014 ESA PROJECT COMPANY, LLC
By:	/s/ William E. Brockenborough
	Name: William E. Brockenborough
	Title: Vice President

[Signature Page to the Note Purchase Agreement]

This Agreement is hereby accepted and agreed to as of the date hereof.

THE VARIABLE ANNUITY LIFE INSURANCE COMPANY

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA

UNITED GUARANTY RESIDENTIAL INSURANCE COMPANY

By: AIG Asset Management (U.S.) LLC, Investment Adviser

By:	/s/ John H. Pollock
	John H. Pollock, Managing Director

[Signature Page to the Note Purchase Agreement]

This Agreement is hereby accepted and agreed to as of the date hereof.
THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA
By:	/s/ Barry Scheinholtz
Name: Barry Scheinholtz
Title: Senior Director
THE GUARDIAN INSURANCE & ANNUITY COMPANY, INC.
By:	/s/ Barry Scheinholtz
Name: Barry Scheinholtz
Title: Senior Director

[Signature Page to the Note Purchase Agreement]

This Agreement is hereby accepted and agreed to as of the date hereof.

lNG LIFE INSURANCE AND ANNUITY COMPANY lNG USA ANNUITY AND LIFE INSURANCE COMPANY

RELIASTAR LIFE INSURANCE COMPANY

SECURITY LIFE OF DENVER INSURANCE COMPANY

By: Voya Investment Management LLC, as Agent

By:	/s/ Joshua A. Winchester
Name:	Joshua A. Winchester
Title:	Vice President

[Signature Page to the Note Purchase Agreement]

This Agreement is hereby accepted and agreed to as of the date hereof.

MODERN WOODMEN OF AMERICA
By:	/s/ Michael E. Dau
	Name: Michael E. Dau
	Title: Treasurer & Investment Manager

[Signature Page to the Note Purchase Agreement]

This Agreement is hereby accepted and agreed to as of the date hereof.

PAN-AMERICAN LIFE INSURANCE COMPANY

By:	/s/ Rodolfo J. Revuelta
	Name: Rodolfo J. Revuelta, CFA
	Title: Senior Vice President & Chief Investment Officer

[Signature Page to the Note Purchase Agreement]

SCHEDULE A

INFORMATION RELATING TO PURCHASERS

2014 ESA PROJECT COMPANY, LLC

NAME AND ADDRESS OF PURCHASER	PRINCIPAL AMOUNT OF
	NOTES TO BE PURCHASED
THE VARIABLE ANNUITY LIFE INSURANCE COMPANY	$16,600,000.00

1. All payments by wire transfer of immediately available funds to:

The Bank of New York Mellon

[***]

Account Number: [***]

For Further Credit to: VARIABLE ANNUITY LIFE INSURANCE CO.;

Account No. [***]

[Reference: PPN and Prin.: $    ; Int.: $        ]

2. Payment notices, audit confirmations and related correspondence to:

The Variable Annuity Life Insurance Company (260735)

c/o AIG Asset Management

2929 Allen Parkway, A36-04

Houston, Texas 77019-2155

Attn: Private Placements Portfolio Administration

Email: AIGGIGPVTPLACEMENTOPERATIONS@aig.com

3. All other communications (duplicate payment notices only) to:

The Variable Annuity Life Insurance Company (260735)

c/o The Bank of New York Mellon

Attn: P & I Department

Fax: [***]

4. Note to be issued in the nominee name of: HARE & CO., LLC

[***] Confidential Treatment Requested

SCHEDULE A

INFORMATION RELATING TO PURCHASERS

2014 ESA PROJECT COMPANY, LLC

NAME AND ADDRESS OF PURCHASER	PRINCIPAL AMOUNT OF
	NOTES TO BE PURCHASED
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA	$8,100,000.00

1. All payments by wire transfer of immediately available funds to:

The Bank of New York Mellon

[***]

Account Number: [***]

For Further Credit to: NATIONAL UNION FIRE INSURANCE CO.;

Account No: [***]

[Reference: PPN and Prin.: $    ; Int.: $            ]

2. Payment notices, audit confirmations and related correspondence to:

National Union Fire Insurance Co. of Pittsburgh, PA (554910)

c/o AIG Asset Management

2929 Allen Parkway, A36-04

Houston, Texas 77019-2155

Attn: Private Placements Portfolio Administration

Email: AIGGIGPVTPLACEMENTOPERATIONS@aig.com

3. All other communications (duplicate payment notices only) to:

National Union Fire Insurance Co. of Pittsburgh, PA (554910)

c/o The Bank of New York Mellon

Attn: P & I Department

Fax: [***]

4. Note to be issued in the nominee name of: HARE & CO., LLC

[***] Confidential Treatment Requested

SCHEDULE A

INFORMATION RELATING TO PURCHASERS

2014 ESA PROJECT COMPANY, LLC

	PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER	NOTES TO BE PURCHASED
UNITED GUARANTY RESIDENTIAL INSURANCE COMPANY	$300,000.00

1. All payments by wire transfer of immediately available funds to:

The Bank of New York Mellon

[***]

Account Name: BNYM Income

Account Number: [***]

For Further Credit to: U. S. Bank N.A.; [***]

Reference: United Guaranty Residential Ins. Co.; PPN and Prin.: $    ; Int.: $        ]

2. Payment notices, audit confirmations and related correspondence to:

United Guaranty Residential Insurance Company (1028783566)

c/o AIG Asset Management

2929 Allen Parkway, A36-04

Houston, Texas 77019-2155

Attn: Private Placements Portfolio Administration

Email: AIGGIGPVTPLACEMENTOPERATIONS@aig.com

3. All other communications (duplicate payment notices only) to:

United Guaranty Residential Insurance Company (1028783566)

c/o U.S. Bank N.A.

Fax: [***]

4. Note to be issued in the nominee name of: HARE & CO., LLC

[***] Confidential Treatment Requested

SCHEDULE A

INFORMATION RELATING TO PURCHASERS

2014 ESA PROJECT COMPANY, LLC

NAME AND ADDRESS OF PURCHASER	PRINCIPAL AMOUNT OF
	NOTES TO BE PURCHASED
THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA	$18,000,000.00

1. All payments by wire transfer of immediately available funds to:

JP Morgan Chase

[***]

Chase/NYC/CTR/BNF

[***]

[***], Guardian Life, [***]

2014 ESA Project Company, LLC

2. All other communications:

The Guardian Life Insurance Company of America

7 Hanover Square

New York, NY 10004-2616

Attn: Barry Scheinholtz

Investment Department 9-A

FAX # [***]

Email address: [***]

3. Note Delivery Instructions:

JP Morgan Chase Bank, N.A.

4 Chase Metrotech Center – 3rd Floor

Brooklyn, NY 11245-0001

Reference A/C #G05978, Guardian Life

4. TAX ID NO. [***]

[***] Confidential Treatment Requested

SCHEDULE A

INFORMATION RELATING TO PURCHASERS

2014 ESA PROJECT COMPANY, LLC

NAME AND ADDRESS OF PURCHASER	PRINCIPAL AMOUNT OF
	NOTES TO BE PURCHASED
THE GUARDIAN INSURANCE & ANNUITY COMPANY, INC.	$2,000,000.00

1. All payments by wire transfer of immediately available funds to:

JP Morgan Chase

[***]

Chase/NYC/CTR/BNF

[***]

Reference A/C [***], GIAC Fixed Payout, [***]

2014 ESA Project Company, LLC

2. All other communications:

The Guardian Insurance & Annuity Company, Inc.

c/o The Guardian Life Insurance Company of America

7 Hanover Square

New York, NY 10004-2616

Attn: Barry Scheinholtz

Investment Department 9-A

FAX # [***]

Email address: [***]

3. Note Delivery Instructions:

JP Morgan Chase Bank, N.A.

4 Chase Metrotech Center – 3rd Floor

Brooklyn, NY 11245-0001

Reference A/C [***], GIAC Fixed Payout

4. TAX ID NO. [***]

[***] Confidential Treatment Requested

SCHEDULE A

INFORMATION RELATING TO PURCHASERS

2014 ESA PROJECT COMPANY, LLC

	PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER	NOTES TO BE PURCHASED
ING USA ANNUITY AND LIFE INSURANCE COMPANY	$10,200,000.00

1. All payments by wire transfer of immediately available funds to:

The Bank of New York Mellon

[***]

For scheduled principal and interest payments:

BNF: [***]

Attn: Income Collection Department

For further credit to: ING USA/Acct. [***]

Reference: [***]

For all payments other than scheduled principal and interest:

Account Number: [***]

Account Name: [***]

Reference: [***]

Each such wire transfer should set forth the name of the issuer, the full title (including the coupon rate, issuance date, and final maturity date) of the Notes on account of which such payment is made, and the due date and application (as among principal, premium and interest) of the payment being made.

2. All notices of payments and written confirmations of such wire transfers:

Voya Investment Management LLC

5780 Powers Ferry Road NW, Suite 300

Atlanta, GA 30327-4347

Attn: Operations/Settlements

Fax: [***]

3. All other communications:

Voya Investment Management LLC

5780 Powers Ferry Road NW, Suite 300

Atlanta, GA 30327-4347

Attn: Private Placements

Fax: [***]

[***] Confidential Treatment Requested

SCHEDULE A

INFORMATION RELATING TO PURCHASERS

2014 ESA PROJECT COMPANY, LLC

	PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER	NOTES TO BE PURCHASED
ING USA ANNUITY AND LIFE INSURANCE COMPANY	$5,000,000.00

1. All payments by wire transfer of immediately available funds to:

The Bank of New York Mellon

[***]

For scheduled principal and interest payments:

[***]

Attn: Income Collection Department

For further credit to: ING USA-SLDI/Acct. [***]

Reference: [***]

For all payments other than scheduled principal and interest:

Account Number: [***]

Account Name: [***]

Reference: [***]

Each such wire transfer should set forth the name of the issuer, the full title (including the coupon rate, issuance date, and final maturity date) of the Notes on account of which such payment is made, and the due date and application (as among principal, premium and interest) of the payment being made.

2. All notices of payments and written confirmations of such wire transfers:

Voya Investment Management LLC

5780 Powers Ferry Road NW, Suite 300

Atlanta, GA 30327-4347

Attn: Operations/Settlements

Fax: [***]

with a copy to:

The Bank of New York Mellon

Insurance Trust Department

101 Barclay 8 West

New York, NY 10286

Attn: [***]

[***] Confidential Treatment Requested

3. All other communications:

Voya Investment Management LLC

5780 Powers Ferry Road NW, Suite 300

Atlanta, GA 30327-4347

Attn: Private Placements

Fax: [***]

[***] Confidential Treatment Requested

SCHEDULE A

INFORMATION RELATING TO PURCHASERS

2014 ESA PROJECT COMPANY, LLC

	PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER	NOTES TO BE PURCHASED
RELIASTAR LIFE INSURANCE COMPANY	$1,300,000.00

1. All payments by wire transfer of immediately available funds to:

The Bank of New York Mellon

[***]

For scheduled principal and interest payments:

[***]

Attn: Income Collection Department

For further credit to: [***]

Reference: [***]

For all payments other than scheduled principal and interest:

Account Number: [***]

Account Name: [***]

Reference: [***]

Each such wire transfer should set forth the name of the issuer, the full title (including the coupon rate, issuance date, and final maturity date) of the Notes on account of which such payment is made, and the due date and application (as among principal, premium and interest) of the payment being made.

2. All notices of payments and written confirmations of such wire transfers:

Voya Investment Management LLC

5780 Powers Ferry Road NW, Suite 300

Atlanta, GA 30327-4347

Attn: Operations/Settlements

Fax: [***]

3. All other communications:

Voya Investment Management LLC

5780 Powers Ferry Road NW, Suite 300

Atlanta, GA 30327-4347

Attn: Private Placements

Fax: [***]

[***] Confidential Treatment Requested

SCHEDULE A

INFORMATION RELATING TO PURCHASERS

2014 ESA PROJECT COMPANY, LLC

	PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER	NOTES TO BE PURCHASED
SECURITY LIFE OF DENVER INSURANCE COMPANY	$2,700,000.00

1. All payments by wire transfer of immediately available funds to:

The Bank of New York Mellon

[***]

For scheduled principal and interest payments:

[***]

Attn: Income Collection Department

For further credit to: SLD/Acct. [***]

Reference: [***]

For all payments other than scheduled principal and interest:

Account Number: [***]

Account Name: [***]

Reference: [***]

Each such wire transfer should set forth the name of the issuer, the full title (including the coupon rate, issuance date, and final maturity date) of the Notes on account of which such payment is made, and the due date and application (as among principal, premium and interest) of the payment being made.

2. All notices of payments and written confirmations of such wire transfers:

Voya Investment Management LLC

5780 Powers Ferry Road NW, Suite 300

Atlanta, GA 30327-4347

Attn: Operations/Settlements

Fax: [***]

3. All other communications:

Voya Investment Management LLC

5780 Powers Ferry Road NW, Suite 300

Atlanta, GA 30327-4347

Attn: Private Placements

Fax: [***]

[***] Confidential Treatment Requested

SCHEDULE A

INFORMATION RELATING TO PURCHASERS

2014 ESA PROJECT COMPANY, LLC

	PRINCIPAL AMOUNT OF
NAME AND ADDRESS OF PURCHASER	NOTES TO BE PURCHASED
ING LIFE INSURANCE AND ANNUITY COMPANY	$10,800,000.00

1. All payments by wire transfer of immediately available funds to:

The Bank of New York Mellon

[***]

For scheduled principal and interest payments:

[***]

Attn: Income Collection Department

For further credit to: [***]

Reference: [***]

For all payments other than scheduled principal and interest:

Account Number: [***]

Account Name: [***]

Reference: [***]

Each such wire transfer should set forth the name of the issuer, the full title (including the coupon rate, issuance date, and final maturity date) of the Notes on account of which such payment is made, and the due date and application (as among principal, premium and interest) of the payment being made.

2. All notices of payments and written confirmations of such wire transfers:

Voya Investment Management LLC

5780 Powers Ferry Road NW, Suite 300

Atlanta, GA 30327-4347

Attn: Operations/Settlements

Fax: [***]

3. All other communications:

Voya Investment Management LLC

5780 Powers Ferry Road NW, Suite 300

Atlanta, GA 30327-4347

Attn: Private Placements

Fax: [***]

[***] Confidential Treatment Requested

SCHEDULE A

INFORMATION RELATING TO PURCHASERS

2014 ESA PROJECT COMPANY, LLC

NAME AND ADDRESS OF PURCHASER	PRINCIPAL AMOUNT OF
	NOTES TO BE PURCHASED
MODERN WOODMEN OF AMERICA	$20,000,000.00

1. All payments by wire transfer of immediately available funds to:

The Northern Trust Company

50 South LaSalle Street

Chicago, IL 60675

ABA No. [***]

Account Name: [***]

Account No. [***]

Each such wire transfer shall set forth the name of the Company, the full title (including the applicable coupon rate and final maturity date) of the Notes, a reference to [***] and the due date and application (as among principal, premium and interest) of the payment being made.

2. All notices of payments and written confirmations of such wire transfers:

Modern Woodmen of America

Attn: Investment Accounting Department

1701 First Avenue

Rock Island, IL 61201

Fax: [***]

3. All other communications:

Modern Woodmen of America

Attn: Investment Department

1701 First Avenue

Rock Island, IL 61201

investments@modern-woodmen.org

Fax: [***]

[***] Confidential Treatment Requested

SCHEDULE A

INFORMATION RELATING TO PURCHASERS

2014 ESA PROJECT COMPANY, LLC

NAME AND ADDRESS OF PURCHASER	PRINCIPAL AMOUNT OF
	NOTES TO BE PURCHASED
PAN-AMERICAN LIFE INSURANCE COMPANY	$4,000,000.00

1. All payments by wire transfer of immediately available funds to:

Account #         [***]

JPMorgan Chase

[***]

201 St. Charles Avenue

New Orleans, LA 70170

identifying the issue by Cusip number and description of security and providing complete details including breakdown of principal and interest. Bank Contact: Elsa Sydney [***]

2. All notices of payments and written confirmations of such wire transfers:

PAN-AMERICAN LIFE INSURANCE COMPANY

ATTN: David M. Hnatyshyn, CISA, FLMI

Manager, Investment Administration

601 Poydras St., Investment Dept. - 28th Fl.

New Orleans, LA 70130

Direct Dial     [***]

Fax     [***]

Email [***]

3. All other communications:

PAN-AMERICAN LIFE INSURANCE COMPANY

601 Poydras St., Investment Dept. - 28th Fl.

New Orleans, LA 70130

[***] Confidential Treatment Requested

SCHEDULE B

DEFINED TERMS

As used herein, the following terms have the respective meanings set forth below or set forth in the Section hereof following such term:

“Accounts” means the Proceeds Escrow Account, the Revenue Account, the Operating Account, the Distribution Suspense Account, the IDC Reserve Account, Debt Service Reserve Account, the Loss Proceeds Account, the Policy Proceeds Account and each cash collateral account referred to in the NPA Documents, including any sub-accounts within such accounts.

“Additional Project Documents” means any material contracts or agreements related to the construction, testing, maintenance, repair, operation or use of the Project entered into by the Company and any other Person, or assigned to the Company, subsequent to the Closing Date; provided that any such contracts and agreements providing for the payment by or to the Company of less than [***] or the provision to Company of less than [***] per annum individually in value of goods or services, shall be deemed not to constitute an Additional Project Document.

“Administrative Services Agreement” or “ASA” means the Administrative Services Agreement, dated as of the Closing Date, among the Company, the Pledgor and the Administrative Services Provider.

“Administrative Services Provider” means the Sponsor.

“Adverse PUHCA Event” means the Company becoming subject to, and no longer benefitting from an exemption from or waiver of, regulation by FERC under PUHCA.

“Affected Portion” is defined in Section 12.1(d)(i).

“Affiliate” of a specified Person means any other Person that (a) directly, or indirectly through one or more intermediaries, Controls, is Controlled by or is under common Control with such Person, or (b) only with respect to matters relating to PUHCA, (i) is an “affiliate” as defined in Section 1262(1) of PUHCA or (ii) directly or indirectly owns, Controls or holds with power to vote, 5% or more of the outstanding voting securities of such Person. When used with respect to the Company, “Affiliate” shall include Pledgor and any Affiliate thereof (other than the Company).

“Agreement” means this Agreement as it may be amended, amended and restated, supplemented, or otherwise modified from time to time.

“Amortization Schedule” means the schedule showing the amortization of the Notes from the Closing Date to the Maturity Date, attached hereto as Schedule 8.1.

“Annual Operating Budget” is defined in Section 9.13(b).

“Anti-Money Laundering Laws” is defined in Section 5.16(c).

[***] Confidential Treatment Requested

SCHEDULE B-1

(to Note Purchase Agreement)

“Applicable Permit” means, at any time, any Permit (a) that is necessary under applicable Legal Requirements or any of the Operative Documents to have been obtained by or on behalf of the Company at such time in light of the stage of development, construction or operation of the Project at each Site to construct, test, operate, maintain, repair, lease, own or use the Project as contemplated by the Operative Documents, to sell electricity from the Project or deliver fuel to the Project, or for the Company to enter into any Operative Document or to consummate any transaction contemplated thereby, in each case in accordance with all applicable Legal Requirements, or (b) that is necessary so that none of the Company or any Secured Party nor any Affiliate of any of them may be deemed by any Governmental Authority to be (A) subject to regulation as a public utility under the FPA and not to benefit from an exemption from or waiver of regulation by FERC under PUHCA (except as provided in Section 5.24) or (B) treated as a public utility under the Constitution and the laws of the States of California, New York, Connecticut and New Jersey and any other state in which the Company operates facilities that generate electricity as presently constituted and as construed by the courts of such States with respect to the regulation of the rates of, or the financial or organizational regulation of, electric utilities as a result of the development and construction or operation of the Project or the sale of electricity therefrom.

“Applicable Third Party Permit” means, at any time, any Permit that is necessary to have been obtained by such time in light of the stage of development, construction or operation of the Project by any Person (other than the Company) that is a party to a Major Project Document or a Credit Document in order to perform such Person’s obligations thereunder (other than Permits necessary to conduct its business generally and maintain its existence and good standing), or in order to consummate any transaction contemplated thereby, in each case in accordance with all applicable Legal Requirements.

“AT&T ESA” means, collectively, (i) AT&T ESA #1 (as defined in Schedule C), (ii) AT&T ESA #2 (as defined in Schedule C), (iii) AT&T ESA #3 (as defined in Schedule C), (iv) AT&T ESA #4 (as defined in Schedule C) and (v) AT&T ESA #5 (as defined in Schedule C).

“Available Funds” means, at any time and without duplication, the aggregate committed amount of all sources of capital available to the Company by way of (a) amounts in the Proceeds Escrow Account, (b) undisbursed Insurance Proceeds or Eminent Domain Proceeds which are available for payment of Project Costs, (c) any Project Revenues which are available for payment of Project Costs and (d) to the extent not all committed equity has been invested in the Project and there are equity investment undertakings in place and the Holders reasonably have no reason to believe that the amounts committed to be invested thereunder will not be invested, the remainder of the commitments thereunder.

“Bankruptcy Event” shall be deemed to occur, with respect to any Person, if (a) that Person shall commence any case, proceeding or other voluntary action seeking to have an order for relief entered with respect to it, or seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, arrangement, adjustment, winding-up, reorganization, dissolution, composition under any applicable Debtor Relief Law or other relief with respect to it or its debts; (b) such Person shall apply for, or consent or acquiesce to, the appointment of, a receiver, administrator, administrative receiver, liquidator, sequestrator, trustee or other official with similar powers for itself or any substantial part of its assets; (c) such Person shall make a general assignment for the

SCHEDULE B-2

(to Note Purchase Agreement)

benefit of its creditors; (d) an involuntary case shall be commenced seeking liquidation or reorganization of such Person under any applicable Debtor Relief Law, or seeking issuance of a warrant of attachment, execution or distraint, or any similar proceedings shall be commenced against such Person under any other applicable law and (i) such Person consents to the institution of the involuntary case against it, (ii) the petition commencing the involuntary case is not timely controverted, (iii) the petition commencing the involuntary case is not dismissed within 60 days of its filing, (iv) an interim trustee is appointed to take possession of all or a portion of the property, and/or to operate all or any part of the business of such Person and such appointment is not vacated within 60 days, or (v) an order for relief shall have been issued or entered therein; or (e) a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, administrator, administrative receiver, liquidator, sequestrator, trustee or other official having similar powers, over such Person or all or a part of its property shall have been entered; or (f) any other similar relief shall be granted against such Person under any applicable Debtor Relief Law, or such Person shall file a petition or consent or shall otherwise institute any similar proceeding under any other applicable law, or shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in any of the acts set forth above in this definition; or (g) such Person shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due.

“Base Case Projections” means a projection of operating results showing at a minimum Company’s good faith estimates, as of the Closing Date, of revenues, operating expenses and sources and uses over the forecast period, in substantially the form of Schedule 4.1.26(a), which shall be of a nature and in an amount satisfactory to the Purchasers in consultation with the Independent Engineer.

“Blocked Person” is defined in Section 5.16(a).

“BOF” has the meaning assigned to such term in the PUMA.

“Business Day” means any day other than a Saturday, a Sunday or a day on which commercial banks in New York City or the State of California are required or authorized to be closed.

“Buydown Amount” is defined in Section 9.18.

“Capital Expenditures” mean expenditures made by the Company (but only to the extent any such expenditures are not reimbursed to the Company within 90 days) to acquire or construct fixed assets, plant and equipment which, in accordance with GAAP, are or should be included in “purchase of property and equipment” or similar items reflected in the statement of cash flows of the Company (including renewals, improvements and replacements thereto, but, notwithstanding the foregoing, excluding any such expenditures that are paid out of Loss Proceeds).

“Capital Lease” means, at any time, a lease with respect to which the lessee is required concurrently to recognize the acquisition of an asset and the incurrence of a liability in accordance with GAAP.

“Change of Control” means (a) before the earlier of (i) the Date Certain and (ii) the Final Completion Date, the Sponsor ceases to indirectly own and control 100% of the economic and voting interest in the Company (excluding any interests held by the Equity Investors) or (b) after

SCHEDULE B-3

(to Note Purchase Agreement)

the earlier of (i) the Date Certain and (ii) the Final Completion Date, the Sponsor ceases to indirectly own and control 50.1% of the economic and voting interest in the Company (excluding any interests held by the Equity Investors), provided that at all times the Sponsor continues to be the Operator under the PUMA. A failure to own and control 50.1% of the economic and voting interest in the Company shall not constitute a Change of Control if the Company has obtained a rating reaffirmation of its then current rating (immediately prior to such failure to own such 50.1% and after giving effect to such sale) by any Rating Agency.

“Closing” is defined in Article 3.

“Closing Date” is defined in Section 4.1.

“Code” means the Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations promulgated thereunder from time to time.

“Collateral” means all property which is subject to or is intended to become subject to the security interests or liens granted by any of the Collateral Documents.

“Collateral Agency Agreement” means the Collateral Agency Agreement, dated as of the Closing Date, in form and substance satisfactory to the Purchasers, between the Purchasers and the Collateral Agent.

“Collateral Agent” means Deutsche Bank Trust Company Americas, acting in its capacity as collateral agent for the Secured Parties under the Credit Documents.

“Collateral Documents” means the Pledge Agreement, the Security Agreement, the Collateral Agency Agreement, each Direct Agreement, the Interparty Agreement and any fixture filings, financing statements, or other similar documents filed, recorded or delivered in connection with the foregoing.

“Company’s COO Certificate” means a certificate delivered to the Holders, substantially in the form of Exhibit 4.2.1(c).

“Company” means 2014 ESA Project Company, LLC, a Delaware limited liability company.

“Confidential Information” is defined in Article 20.

“Contingent Obligation” means, as to any Person, any obligation, agreement, understanding or arrangement (including purchase or repurchase agreements, reimbursement agreements with respect to letters of credit or acceptances, indemnity arrangements, grants of collateral to support the obligations of another Person, keep-well agreements and take-or-pay or through-put arrangements) of such Person guaranteeing or intended to guarantee any indebtedness, leases, dividends or other obligations of any other Person in any manner, whether directly or indirectly; provided, that the term “Contingent Obligation” shall not include endorsements of instruments for deposit or collection in the ordinary course of business.

“Control” means the possession, directly or indirectly (either alone or pursuant to an arrangement or understanding with one or more other Persons), of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and the terms “Controlling” and “Controlled” shall have meanings correlative thereto.

SCHEDULE B-4

(to Note Purchase Agreement)

“Controlled Entity” means any of the Subsidiaries of the Company and any Affiliate of the Company or Subsidiary of the Company that in each case is Controlled by the Company or a Subsidiary of the Company.

“COO” for a System means “Commencement of Operations” of such System, as such term is defined in the PUMA.

“Credit Documents” means, collectively, the NPA Documents and the Policy.

“Credit Event” means each of the Closing Date and each Drawdown.

“Credit Parties” means the Company, Pledgor, Managing Member and Sponsor.

“Date Certain” means September 30, 2015.

“Debt” of any Person means, without duplication, (a) all obligations (including contingent obligations) of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (c) all obligations of such Person to pay the deferred purchase price of property or services, except trade accounts payable and other accrued expenses arising in the ordinary course of business which in accordance with GAAP would not be shown on the liability side of the balance sheet of such Person, (d) all obligations of such Person under leases which are or should be, in accordance with GAAP, recorded as capital leases in respect of which such Person is liable, (e) all obligations of such Person to purchase securities (or other property) which arise out of or in connection with the sale of the same or substantially similar securities (or property), (f) all deferred obligations of such Person to reimburse any bank or other Person in respect of amounts paid or advanced under a letter of credit or other instrument, (g) all obligations, contingent or otherwise, of such Person in respect of acceptances, letters of credit or similar extensions of credit, (h) all Debt (as described in the preceding clauses) of others secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) any Lien on any asset of such Person, whether or not such Debt is assumed by such Person and (i) all Debt (as described in the preceding clauses) of others guaranteed directly or indirectly by such Person or as to which such Person has an obligation which is substantially the economic equivalent of a guaranty.

“Debt Service” means, for the Company and for any period, all obligations for principal and interest payments and any fees, expenses and other charges, including fees and agent fees, due and payable in respect of all Debt for borrowed money in such period.

“Debt Service Reserve Account” is defined in Section 2.1 of the Depositary Agreement.

“Debt Service Reserve Requirement” means, with respect to any date and the Notes, an amount equal to the Debt Service under the Notes that is projected to be payable during the twelve (12) months following such date, provided that the Debt Service Reserve Requirement shall never exceed the outstanding principal and interest to maturity of the Notes.

SCHEDULE B-5

(to Note Purchase Agreement)

“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.

“Default” means an event or condition the occurrence or existence of which would, with the lapse of time or the giving of notice or both, become an Event of Default.

“Default Rate” means, with respect to any obligation payable under the NPA Documents, for any applicable period of time, the interest rate per annum equal to 2.00% above the interest rate otherwise applicable to such obligation for such period.

“Depositary” means Deutsche Bank Trust Company Americas, not in its individual capacity but solely as depositary agent, bank and securities intermediary under the Depositary Agreement.

“Depositary Agreement” means the Depositary Agreement, dated as of the Closing Date, among the Company, Collateral Agent and Depositary.

“Direct Agreements” means the consents specified on Schedule 4.1.29 and any other third party consents to the assignments contemplated by the NPA Documents, in the form set forth in any of Exhibit 4.1.29(a), Exhibit 4.1.29(b) or Exhibit 4.1.29(c).

“Disclosure Documents” is defined in Section 5.3.

“Distribution Conditions” is defined in Section 10.10.

“Distribution Suspense Account” is defined in Section 2.1 of the Depositary Agreement.

“Dollars” and “$” means United States dollars or such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts in the United States of America.

“Downside Case” means a projection of operating results of the Company which assumes that the Systems are operating at the Insured Production Level, as set forth in Schedule 4.1.26(b).

“Drawdown” means a disbursement of funds from the Proceeds Escrow Account in accordance with the terms of Section 3.2.2 of the Depositary Agreement.

“Drawdown Certificate” means a certificate delivered to the Holders substantially in the form of Exhibit 4.2.1(a).

“DSCR” means, for any period, the ratio of (a) Operating Cash Available for Debt Service for such period to (b) Debt Service for such period.

“Eminent Domain Proceeds” is defined in Section 1.1 of the Depositary Agreement.

SCHEDULE B-6

(to Note Purchase Agreement)

“Environmental Laws” means any and all Governmental Rules relating to or imposing liability or standards of conduct governing pollution, the preservation or protection of the environment or natural resources and the protection of human health (with respect to exposure to Hazardous Substances), including but not limited to the National Environmental Policy Act, 42 U.S.C. Section 4321 et seq.; Federal Endangered Species Act, 16 U.S.C. Section 1551 et seq.; the Migratory Bird Treaty Act of 1918, 16 U.S.C. Section 703 et seq.; Bald and Golden Eagle Protection Act, 16 U.S.C. Section 668; Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et seq.); Federal Water Pollution Control Act (33 U.S.C. Section 1251 et seq.); Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.); Clean Air Act (42 U.S.C. Section 7401 et seq.); Emergency Planning and Community Right to Know Act (42 U.S.C. Section 11001 et seq.); Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Section 136 et seq.); Oil Pollution Act of 1990 (P.L. 101-380, 104 Stat. 486); the Safe Drinking Water Act (42 U.S.C. Section 300f et seq.); Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.); and Hazardous Materials Transportation Act (49 U.S.C. Section 1801 et seq.) and all similar state and local counterparts thereto or any amendments thereof.

“Equity Capital Contribution Agreement” means the Equity Capital Contribution Agreement, dated as of the Closing Date, between the Managing Member and the Equity Investors.

“Equity Investors” means Exelon Generation Company, LLC, a Pennsylvania limited liability company and any other one or more investors in “Class A” membership interests in Pledgor (as contemplated by the Pledgor Operating Agreement); provided that no Managing Member (as defined in the Pledgor Operating Agreement in the form attached as Annex 6 to the Equity Capital Contribution Agreement in effect on the Closing Date or similar term as defined in the Pledgor Operating Agreement) shall qualify as an “Equity Investor” for purposes of the definition of “Change of Control” herein.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.

“ERISA Affiliate” means any Person (whether or not incorporated) which is under common control with the Company within the meaning of section 4001(a) of ERISA or that is treated as a single employer together with the Company under section 414 of the Code.

“ESA” means each Energy Server Use Agreement, listed in Schedule C, between the Company and each Offtaker.

“Event of Default” is defined in Article 11.

“Event of Default Buydown Amount” is defined in Section 12.1(d)(ii).

“Event of Eminent Domain” means any compulsory transfer or taking by condemnation, eminent domain or exercise of a similar power, or transfer under threat of such compulsory transfer or taking, of any part of the Collateral, by any agency, department, authority, commission, board, instrumentality or political subdivision of the States of California, New York, New Jersey or Connecticut and any other state in which the Company operates facilities that generate electricity, the United States or another Governmental Authority having jurisdiction.

SCHEDULE B-7

(to Note Purchase Agreement)

“Federal Reserve Board” means the Board of Governors of the Federal Reserve System.

“FERC” means the Federal Energy Regulatory Commission and its successors.

“Final Completion” means the date upon which conditions set forth in Sections 4.3 with respect to the final Drawdown for the final System or Systems to be funded from the Proceeds Escrow Account under the final Drawdown have been satisfied or waived in writing by the Required Holders, or upon the payment of the Buydown Amount in accordance with Section 9.18.

“Final Completion Date” means the date upon which Final Completion is achieved.

“FIRREA” means the Federal Institutions Reform, Recovery and Enforcement Act of 1989.

“FPA” means the Federal Power Act, as amended, and FERC’s implementing regulations related thereto.

“GAAP” means generally accepted accounting principles as in effect from time to time in the United States of America.

“Governing Documents” means, with respect to any Person, the certificate or articles of incorporation, bylaws, operating agreement or other organizational or governing documents of such Person, and, in particular, (a) in the case of any corporation, the certificate of incorporation and by-laws (or similar documents) of such Person, (b) in the case of any limited liability company, the certificate of formation and operating agreement (or similar documents) of such Person, (c) in the case of any limited partnership, the certificate of formation and limited partnership agreement (or similar documents) of such Person, (d) in the case of any general partnership, the partnership agreement (or similar document) of such Person and (e) in any other case, the functional equivalent of the foregoing.

“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

“Governmental Rule” means any constitution, code, statute, law (including common law), regulation, ordinance, rule, judgment, order, decree, binding directive, treaty or other governmental restriction or any similar form of decision of or determination by, any Governmental Authority.

“Guaranty” means, with respect to any Person, any obligation (except the endorsement in the ordinary course of business of negotiable instruments for deposit or collection) of such Person guaranteeing any indebtedness, dividend or other obligation of any other Person in any manner, whether directly or indirectly, including (without limitation) obligations incurred through an agreement, contingent or otherwise, by such Person:

SCHEDULE B-8

(to Note Purchase Agreement)

(a) to purchase such indebtedness or obligation or any property constituting security therefor;

(b) to advance or supply funds (i) for the purchase or payment of such indebtedness or obligation, or (ii) to maintain any working capital or other balance sheet condition or any income statement condition of any other Person or otherwise to advance or make available funds for the purchase or payment of such indebtedness or obligation;

(c) to lease properties or to purchase properties or services primarily for the purpose of assuring the owner of such indebtedness or obligation of the ability of any other Person to make payment of the indebtedness or obligation; or

(d) otherwise to assure the owner of such indebtedness or obligation against loss in respect thereof.

In any computation of the indebtedness or other liabilities of the obligor under any Guaranty, the indebtedness or other obligations that are the subject of such Guaranty shall be assumed to be direct obligations of such obligor.

“Hazardous Substances” means any and all substances or materials defined, listed or regulated as “hazardous substances,” “pollutants,” “contaminants,” “hazardous waste,” “hazardous materials,” “regulated substances,” “hazardous chemical substance or mixture,” “imminently hazardous chemical substance or mixture,” “toxic substances,” or similar terms, as such terms are defined under or with respect to which any liability may be imposed pursuant to any Environmental Law, including without limitation any petroleum product (including byproducts or breakdown products of petroleum products), asbestos-containing material, polychlorinated biphenyls or urea formaldehyde foam insulation.

“Holder” means, with respect to any Note, the Person in whose name such Note is registered in the register maintained by the Company pursuant to Section 13.1, provided, however, that if such Person is a nominee, then for the purposes of Articles 7 and 12, Section 17.2 and Article 18 and any related definitions in this Schedule B, “Holder” shall mean the beneficial owner of such Note whose name and address appears in such register.

“Home Depot ESA” is defined in Schedule C.

“Home Depot Parent” means The Home Depot, Inc., a Delaware corporation.

“Home Depot Parent Guaranty” means that certain Parent Guaranty, to be made by the Home Depot Parent in favor of the Company in respect of the Home Depot ESA.

“IDC Reserve Account” is defined in Section 2.1 of the Depositary Agreement.

“II Holder” is defined in Section 7.1.

“Independent Consultants” means, collectively, the Insurance Consultant and the Independent Engineer.

SCHEDULE B-9

(to Note Purchase Agreement)

“Independent Engineer” means Leidos, Inc., or its successor appointed by the Required Holders, and for so long as no Event of Default or Default has occurred and is continuing, the Company.

“Independent Engineer’s COO Certificate” means a certificate delivered to the Holders, substantially in the form of Exhibit 4.2.1(d).

“Independent Engineer’s Drawdown Certificate” means a certificate delivered to the Holders, substantially in the form of Exhibit 4.2.1(b).

“INHAM Exemption” is defined in Section 6.2(e).

“Institutional Investor” means (a) any Purchaser of a Note, (b) any Holder of a Note holding (together with one or more of its affiliates) more than 5% of the aggregate principal amount of the Notes then outstanding, (c) any bank, trust company, savings and loan association or other financial institution, any pension plan, any investment company, any insurance company, any broker or dealer, or any other similar financial institution or entity, regardless of legal form, and (d) any Related Fund of any Holder of any Note.

“Insurance Consultant” means Moore-McNeil LLC or its successor appointed by the Required Holders, and for so long as no Event of Default or Default has occurred and is continuing, the Company.

“Insurance Proceeds” is defined in Section 1.1 of the Depositary Agreement.

“Insured Production Level” means the level of output of the Portfolio at which all Quarterly Capacity Warranty Payments (as defined in the PUMA) due are equal to all Service Fees (as defined in the PUMA) due under the PUMA.

“Insurer” means Indian Harbor Insurance Co.

“Interparty Agreement” means the Interparty Agreement, dated as of the Closing Date, among Company, Pledgor, Managing Member, Equity Investors and the Collateral Agent.

“Knowledge” means, with respect to the Company, the actual knowledge of the senior managers of the Company who are charged with direct or indirect responsibility (including environmental responsibility) for the Project.

“Leases” means each Site Lease Agreement related to each AT&T ESA between the Company and each Offtaker thereto.

“Legal Requirements” means, as to any Person, the Governing Documents of such Person, any requirement under a Permit, and any Governmental Rule in each case applicable to or binding upon such Person or any of its properties or to which such Person or any of its property is subject.

SCHEDULE B-10

(to Note Purchase Agreement)

“Lien” means, with respect to any Person, any mortgage, lien, pledge, charge, security interest or other encumbrance, or any interest or title of any vendor, lessor, lender or other secured party to or of such Person under any conditional sale or other title retention agreement or Capital Lease, upon or with respect to any property or asset of such Person (including in the case of stock, stockholder agreements, voting trust agreements and all similar arrangements).

“Loss Event” is defined in Section 1.1 of the Depositary Agreement.

“Loss Proceeds” is defined in Section 1.1 of the Depositary Agreement.

“Loss Proceeds Account” is defined in Section 2.1 of the Depositary Agreement.

“Major Project Documents” means the PUMA, each ESA, the Administrative Services Agreement, each Lease, any guaranty agreements related to the foregoing executed by Persons in favor of Company and, unless otherwise agreed by the Required Holders prior to its execution and delivery, any Additional Project Document.

“Major Project Participants” means, without duplication, the Company, Managing Member, Sponsor, Operator, Pledgor, each Offtaker, the Equity Investors party to the Interparty Agreement, and to the extent not already included in this list, any counterparty to a Major Project Document.

“Make-Whole Amount” is defined in Section 8.6.

“Managing Member” means Clean Technologies 2014, LLC, a Delaware limited liability company.

“Material Adverse Effect” means an event, circumstance, condition or occurrence of whatever nature that materially and adversely affects (a) the business, assets (including the Project), property, results of operation or financial condition of the Company or the counterparty to the PUMA, (b) the Company’s rights to the Project and the Project assets, (c) any Major Project Participant’s ability to perform its obligations under the Operative Documents, (d) the validity or priority of the Secured Parties’ security interests in the Collateral, or (e) the validity or enforceability of any Operative Document (including the ability of the Secured Parties to enforce any of their remedies thereunder).

“Material” means material in relation to the business, operations, affairs, financial condition, assets or properties of the Company taken as a whole.

“Maturity Date” means March 30, 2030.

“Memorandum” is defined in Section 5.3.

“Moody’s” means Moody’s Investors Service, Inc.

“Multiemployer Plan” means any Plan that is a “multiemployer plan” (as such term is defined in section 4001(a)(3) of ERISA).

“NAIC” means the National Association of Insurance Commissioners or any successor thereto.

SCHEDULE B-11

(to Note Purchase Agreement)

“NAIC Annual Statement” is defined in Section 6.2(a).

“NDA” means each non-disturbance agreement obtained pursuant to the Home Depot ESA.

“Net Available Amount” is defined in Section 1.1 of the Depositary Agreement.

“Nonrecourse Persons” is defined in Section 22.9.

“Note Redemption Account” is defined in Section 2.1 of the Depositary Agreement.

“Notes” is defined in Article 1.

“NPA Documents” means this Agreement, any Notes, the Depositary Agreement, the Collateral Documents, and any other security agreements or letter agreement or similar document, and any amendment to the foregoing or consent or waiver given under the foregoing, entered into by any Secured Party, on the one hand, and the Company or one or more Affiliates of the Company, on the other hand, in connection with the transactions contemplated by the Credit Documents.

“O&M Costs” means, for any period, cash amounts incurred and paid by the Company for the operation and maintenance of the Project or any portion thereof and for the purchase of goods and services in connection therewith, including (a) premiums for insurance policies, (b) costs of fuel and other consumables to the extent paid for by the Company, (c) costs of obtaining any other materials, supplies, utilities or services for the Project, (d) costs of maintaining, renewing and amending Permits, (e) franchise, licensing, property, real estate, sales and excise Taxes, (f) general and administrative expenses, (g) employee salaries, wages and other employment-related costs, (h) business management and administrative service fees, (i) costs required to be paid by the Project under any Project Document or Credit Document (other than scheduled Debt Service and Project Costs but including scheduled interest or lease payments in respect of other Permitted Debt) or to satisfy any Legal Requirement or obtain or maintain any Permit, (j) legal, accounting and consulting fees and other transaction costs and all other fees payable to the Holders (other than amounts constituting scheduled Debt Service), (k) necessary Capital Expenditures (other than capital expenditures made in connection with the repair or restoration of any casualty suffered by the Project to the extent funded with insurance or similar proceeds applied pursuant to Section 3.7 of the Depositary Agreement or infusions of equity pursuant to the Credit Documents), and (l) all other fees and expenses necessary for the continued operation and maintenance of the Project and the conduct of the business of the Project, but exclusive in all cases of non-cash charges and also exclusive of all interest charges and charges for the payment or amortization of principal of the Notes. O&M Costs shall not include payments for restoration or repair of the Project from the Loss Proceeds Account or income Taxes.

“Obligations” means and includes all loans, advances, debts, liabilities, and obligations, howsoever arising, owed by the Company or the Pledgor (or, if such term is used by reference to any specific Person, by such Person) to any of the Secured Parties of every kind and description (whether or not evidenced by any note or instrument and whether or not for the payment of money), direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, pursuant to the terms of the NPA Documents, including (a) all principal, interest, Make-Whole Amount, fees, charges, expenses, attorneys’ fees and accountants fees, repayment obligations, prepayment obligations, and reimbursement obligations payable by the

SCHEDULE B-12

(to Note Purchase Agreement)

Company or the Pledgor thereunder, (b) the due and punctual performance of all covenants, agreements, obligations and liabilities of the Company or the Pledgor to the Secured Parties under or pursuant to the NPA Documents, (c) any and all sums advanced by any of the Secured Parties to preserve the Collateral or preserve or perfect Liens in the Collateral, and (d) in the event of any proceeding for the collection or enforcement described herein, after an Event of Default has occurred and is continuing and unwaived in accordance with the provisions hereof, the expenses of retaking, holding, preparing for sale or lease, selling or otherwise disposing of or realizing on the Collateral, or of any exercise by Collateral Agent, on behalf of the Secured Parties, of its rights under the Collateral Documents, together with reasonable attorney’s fees and court costs.

“OFAC” is defined in Section 5.16(a).

“OFAC Listed Person” is defined in Section 5.16(a).

“OFAC Sanctions Program” means any economic or trade sanction that OFAC is responsible for administering and enforcing. A list of OFAC Sanctions Programs may be found at http://www.ustreas.gov/offices/enforcement/ofac/programs/.

“Offer Settlement Date” is defined in Section 8.1.3(b).

“Offer to Repay” is defined in Section 8.1.3(b).

“Offer to Repay Notice” is defined in Section 8.1.3(b).

“Offtaker” means each counterparty under each ESA.

“Operating Account” is defined in Section 2.1 of the Depositary Agreement.

“Operating Budget Category” means (a) individually, any line item category set forth in that portion of the then-current Annual Operating Budget showing sources and uses of Project funds, and (b) collectively, all line item categories set forth in that portion of the then-current Annual Operating Budget showing sources and uses of Project funds.

“Operating Cash Available for Debt Service” means, for any period, Project Revenues during such period minus O&M Costs during such period.

“Operative Documents” means, collectively, the Credit Documents and the Project Documents.

“Operator” means Bloom Energy Corporation, a Delaware corporation.

“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA or any successor thereto.

“Performance Tests” means any acceptance tests under the PUMA to demonstrate COO.

“Permit” means any approval, consent, waiver, exemption, variance, franchise, order, permit, authorization, right or license of or from a Governmental Authority.

SCHEDULE B-13

(to Note Purchase Agreement)

“Permitted Debt” means (a) Debt incurred under the Credit Documents, (b) Debt pursuant to the terms of a Project Document (but not for borrowed money), either not more than 90 days past due or being contested in good faith, (c) trade or other similar Debt incurred in the ordinary course of business (but not for borrowed money), either not more than 90 days past due or being contested in good faith, (d) the following contingent liabilities, to the extent otherwise constituting Debt: (i) the acquisition of goods, supplies or merchandise in the normal course of business or normal trade credit, (ii) the endorsement of negotiable instruments received in the normal course of its business, and (iii) contingent liabilities incurred with respect to any Applicable Permit or Operative Document, (e) purchase money obligations incurred to finance the purchase price of discrete items of equipment not comprising an integral part of the Project that extend only to the equipment being financed in an aggregate amount of secured principal and capital lease obligations not exceeding $100,000 at any one time outstanding, and (f) obligations in respect of surety bonds or similar instruments in an aggregate amount not exceeding $100,000 at any one time outstanding.

“Permitted Investments” is defined in the Depositary Agreement.

“Permitted Liens” means (a) the rights and interests of any Secured Party as provided in the Credit Documents; (b) statutory Liens for any current Tax, assessment or other governmental charge not yet due and payable, and Liens for Taxes, assessments or governmental charges being contested in accordance with the requirements of Section 9.4; (c) materialmen’s, mechanics’, workers’, repairmen’s, employees’ or other like Liens, arising in the ordinary course of business or in connection with the construction, operation or maintenance of the Project, either for amounts not yet due or for amounts being contested in good faith and by appropriate proceedings, so long as (i) such proceedings shall not involve any substantial danger of the sale, forfeiture or loss of the Project or any Site, as the case may be, title thereto or any interest therein and shall not interfere in any material respect with the use or disposition of the Project or any Site, (ii) a bond or other security reasonably acceptable to the Holders has been posted or provided in such manner and amount as to assure the Holders that any amounts determined to be due will be promptly paid in full when such contest is determined, or (iii) adequate cash reserves have been provided therefor; (d) Liens arising out of judgments or awards so long as an appeal or proceeding for review is being prosecuted in good faith and for the payment of which adequate reserves, bonds or other security reasonably acceptable to the Holders have been provided or are fully covered by insurance; (e) Liens, deposits or pledges to secure statutory obligations or performance of bids, tenders, contracts (other than for the repayment of borrowed money) or leases, or for purposes of like general nature in the ordinary course of its business, not to exceed $500,000 in the aggregate at any time, and with any such Lien to be released as promptly as practicable; (f) other Liens incident to the ordinary course of business that are not incurred in connection with the obtaining of any loan, advance or credit and that do not in the aggregate materially impair the use of the property or assets of Company or the value of such property or assets for the purposes of such business; (g) involuntary Liens as contemplated by the Operative Documents (including a Lien of an attachment, judgment or execution) securing a charge or obligation, on any of Company’s property, either real or personal, whether now or hereafter owned in the aggregate sum of less than $100,000; and (h) easements, restrictions, encumbrances and other exceptions to title which could not reasonably be expected to (i) impair the relevant System’s ability to perform materially in accordance with the Base Case Projections or (ii) cause or result in a material breach of, or event of default under, any Major Project Document.

SCHEDULE B-14

(to Note Purchase Agreement)

“Person” means an individual, partnership, corporation, limited liability company, association, trust, unincorporated organization, business entity or Governmental Authority.

“Plan” means an “employee benefit plan” (as defined in section 3(3) of ERISA) subject to Title I of ERISA that is or, within the preceding six years, has been established or maintained, or to which contributions are or, within the preceding six years, have been made or required to be made, by the Company or any ERISA Affiliate or with respect to which the Company or any ERISA Affiliate may have any liability.

“Pledge Agreement” means, the Pledge and Security Agreement, dated as of the Closing Date, in form and substance satisfactory to the Purchasers, among Pledgor, the Company and Collateral Agent.

“Pledgor” means 2014 ESA HoldCo, LLC, a Delaware limited liability company.

“Pledgor Operating Agreement” means the amended and restated limited liability company agreement of Pledgor to be executed pursuant to the Equity Capital Contribution Agreement, as may be further amended, amended and restated, supplemented or otherwise modified from time to time.

“Policy” means the fuel cell energy production insurance policy issued by the Insurer, dated as of the Closing Date, in form and substance satisfactory to the Holders.

“Policy Proceeds Account” is defined in Section 2.1 of the Depositary Agreement.

“Portfolio” means, on an aggregate basis, all Systems owned by Company at any time that were purchased pursuant to the PUMA and that have achieved COO, other than Systems that have been repurchased by Sponsor pursuant to the terms of the PUMA.

“Proceeds Escrow Account” is defined in Section 2.1 of the Depositary Agreement.

“Project” means a portfolio of Bloom fuel cell electricity generators with an aggregate capacity of approximately 20.95 MW, to be located at the Sites and owned by the Company, which will sell power to the Offtakers under the ESAs.

“Project Budget” means the budget for anticipated costs to be incurred in connection with the development, construction, installation, timing and start-up of the Project as set forth in Schedule 4.1.25, as may be amended from time to time.

“Project Costs” means: (a) the Purchase Price (as defined in the PUMA) of the Systems; (b) all other Project-related costs and other development costs (including BOF costs and all Site related costs payable to any Person, including landowners or any Governmental Authority), installation, insurance costs, management services fees and expenses and expenses to complete the development, design, construction and financing of the Project; (c) contingency funds, start-up costs and initial working capital costs; (d) O&M Costs due and payable prior to the earlier of (i) the Date Certain and (ii) the Final Completion; and (e) interest and fees pursuant to this Agreement prior to Final Completion.

SCHEDULE B-15

(to Note Purchase Agreement)

“Project Documents” means, without duplication, the Major Project Documents and any other agreement or document relating to the development, construction or operation of the Project to which the Company is a party.

“Project Document Modification” is defined in Section 10.13.

“Project Revenues” means, without duplication, all income and cash receipts of the Company derived from the ownership or operation of the Project), including payments received by the Company from the Offtakers, from Sponsor under the PUMA, proceeds of any delay in start up or business interruption or liability insurance (to the extent such liability insurance proceeds represent reimbursement of third party claims previously paid by the Company), proceeds from sale of assets, investment income on amounts in the Accounts (solely to the extent deposited in the applicable Account), but excluding solely for purposes of calculating Operating Cash Available for Debt Service, (a) any receipts derived from the sale of any property pertaining to the Project or incidental to the operation of the Project, as determined in conformity with cash accounting principles, (b) proceeds of casualty insurance, (c) payments received pursuant to Section 5.8 of the PUMA, (d) payments received upon termination of the ESAs following a Customer Default (as defined in each ESA), (e) the proceeds of any condemnation awards relating to the Project and (f) proceeds from the Collateral Documents. For the avoidance of doubt, Project Revenues does not and will not include (i) environmental attributes produced by the Project (including, without limitation, low emission renewable energy credits and any other renewable energy credits and any state or local environmental incentives (including the California Self Generation Incentive Program)) or (ii) any indemnity payments made by the Sponsor to the Company or any direct or indirect member thereof pursuant to the PUMA for any losses arising as a result of the loss or recapture of any investment tax credit under Section 48 of the Code, and all such credits and funds referred to in clauses (i) and (ii) of this sentence, if they are deposited in any of the Accounts, shall be sent to any Persons or other account directed by the Company or such direct or indirect member of the Company, as the case may be, free of the Liens of the Collateral Documents.

“Project Schedule” means the schedule for construction and completion of the Project as set forth in Schedule 4.1.27, as may be amended from time to time.

“property” or “properties” means, unless otherwise specifically limited, real or personal property of any kind, tangible or intangible, choate or inchoate.

“Prudent Electrical Practices” has the meaning assigned to such term in the PUMA.

“PTE” is defined in Section 6.2(a).

“PUHCA” means the Public Utility Holding Company Act of 2005 (42 U.S.C. §§ 16451-16463), and FERC’s implementing regulations related thereto (18 C.F.R. Part 366).

“PUMA ” means the Amended and Restated Purchase, Use and Maintenance Agreement, dated as of the Closing Date, between the Company and the Sponsor.

SCHEDULE B-16

(to Note Purchase Agreement)

“Purchaser” or “Purchasers” means each of the purchasers whose signatures appear at the end of this Agreement and such Purchaser’s successors and assigns (so long as any such assignment complies with Section 13.2), provided, however, that any Purchaser of a Note that ceases to be the registered holder or a beneficial owner (through a nominee) of such Note as the result of a transfer thereof pursuant to Section 13.2 shall cease to be included within the meaning of “Purchaser” of such Note for the purposes of this Agreement upon such transfer.

“QPAM Exemption” is defined in Section 6.2(d).

“Qualified Institutional Buyer” means any Person who is a “qualified institutional buyer” within the meaning of such term as set forth in Rule 144A(a)(1) under the Securities Act.

“Ramp Up Period” means the period from the Closing Date through the later of (i) the Date Certain and (ii) the Final Completion Date.

“Rating Agency” means Fitch Ratings Inc. to the extent that at each relevant time of determination, it has an active and current rating in effect on the Notes, or if Fitch Ratings Inc. shall cease to rate debt instruments of the type similar to the Notes, another nationally recognized rating agency or agencies then rating debt instruments of a type similar to the Notes as shall be selected by the Required Holders, in consultation with the Company, as a substitute therefor.

“Real Property” means the real property interests of the Company, including the Sites.

“Real Property Documents” means any documents, agreements or instruments pursuant to which Company has rights in Real Property, including all easements, sub-easements, leases, subleases, licenses and other agreements with landowners, any non-disturbance agreements and any deeds pursuant to which Company owns a fee interest in Real Property.

“Related Fund” means, with respect to any Holder of any Note, any fund or entity that (i) invests in Securities or bank loans, and (ii) is advised or managed by such Holder, the same investment advisor as such Holder or by an affiliate of such Holder or such investment advisor.

“Release” means disposing, discharging, injecting, spilling, leaking, leaching, dumping, pumping, pouring, emitting, escaping, migrating or emptying into, upon or through the indoor or outdoor environment.

“Repayment Date” means each of March 30, June 30, September 30 and December 30 of each year.

“Replacement Major Project Contract” means any Major Project Contract entered into by the Company with a Replacement Obligor in replacement of a Major Project Contract which either (a) has economic and other terms which are no less favorable to the Company than those in the Major Project Contract being replaced and a duration at least equal to that of the Major Project Contract being replaced or (b) is in form and substance and on terms reasonably satisfactory to the Holders.

“Replacement Obligor” means a Person (or any guarantor of such Person’s obligations) (a) having, on the date of such replacement, a credit rating of BBB or better from S&P or Baa2 or better from Moody’s or (b) otherwise acceptable to all of the Holders.

SCHEDULE B-17

(to Note Purchase Agreement)

“Reportable Event” means any of the events set forth in section 4043(b) or (c) of ERISA for which notice to the PBGC has not been waived.

“Required Holders” means at any time on or after the Closing, the Holders of at least 50.1% in principal amount of the Notes at the time outstanding (exclusive of Notes then owned by the Company or any of its Affiliates).

“Responsible Officer” means, as to any Person, its president, chief executive officer, any vice president, treasurer, secretary, or assistant secretary, or any natural Person who is a managing general partner or manager or managing member of a limited liability company (or any of the preceding with regard to any such managing general partner, manager or managing member).

“Revenue Account” is defined in Section 2.1 of the Depositary Agreement.

“S&P” means Standard & Poor’s, a division of The McGraw-Hill Companies, Inc.

“SEC” means the Securities and Exchange Commission of the United States, or any successor thereto.

“Secured Parties” means Collateral Agent and the Holders of the Notes, and each of their respective successors, transferees and assigns and shall include, without limitation, all former Collateral Agents and Holders of Notes to the extent that the Obligations owing to such Persons were incurred while such Persons were in such capacities and such Obligations have not been paid or satisfied in full; provided, that Sponsor and no Affiliate of Sponsor shall be a “Secured Party.”

“Securities” or “Security” shall have the meaning specified in section 2(1) of the Securities Act.

“Securities Act” means the Securities Act of 1933, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.

“Security Agreement” means the Security Agreement, dated as of the Closing Date, in form and substance satisfactory to the Purchasers, between the Company and Collateral Agent.

“Senior Financial Officer” means the chief financial officer, principal accounting officer, treasurer or comptroller of the Company.

“Site” as defined in each ESA.

“Solvent” means, with respect to any Person, that as of the date of determination, (a) the aggregate value of all properties of such Person at their present saleable value (i.e., the amount that may be realized within a reasonable time, considered to be six months to one year, either through collection or sale at the regular market value, conceiving the latter as the amount that could be obtained for the property in question within such period by a capable and diligent businessperson from an interested buyer who is willing to purchase under ordinary selling conditions), exceed the amount of all the debts and liabilities (including contingent, subordinated, unmatured and unliquidated liabilities) of such Person, (b) such Person will not, on a consolidated basis, have an unreasonably small capital with which to conduct its business operations heretofore conducted and (c) such Person will have, on a consolidated basis, sufficient cashflow to enable it to pay its debts as they mature.

SCHEDULE B-18

(to Note Purchase Agreement)

“Source” is defined in Section 6.2.

“Sponsor” means Bloom Energy Corporation, a Delaware corporation.

“Subdivision Map Act” means the California Subdivision Map Act (California Government Code §66410 et seq .).

“Subsidiary” means, as to any Person, a corporation, partnership, limited liability company, limited liability partnership or other entity of which such Person: (a) owns 10% or more of the shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity and/or (b) controls the management, directly or indirectly through one or more intermediaries.

“Super-Majority Holders” means at any time on or after the Closing Date, the Holders of at least 80% in principal amount of the Notes at the time outstanding (exclusive of Notes then owned by the Company or any of its Affiliates).

“SVO” means the Securities Valuation Office of the NAIC or any successor to such Office.

“System” means each proprietary solid oxide fuel cell power generating unit to be purchased from Sponsor by the Company under the PUMA.

“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

“Termination Value” has the meaning assigned to such term in each applicable ESA.

“UCC” means the Uniform Commercial Code as the same may, from time to time, be in effect in the State of New York; provided, in the event that, by reason of mandatory provisions of law, any or all of the perfection or priority of the security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York the term “UCC” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions of the NPA Documents relating to such perfection or priority and for purposes of definitions related to such provisions.

“Underfunded Plan” is defined in Section 5.12(b).

“Unintentional Event of Default” is defined in Section 12.1(d)(i).

“Unintentional Event of Default Buydown Amount” is defined in Section 12.1(d)(i).

SCHEDULE B-19

(to Note Purchase Agreement)

“Unsatisfied Condition” means a condition in a Permit that has not been satisfied and that either (a) must be satisfied before such Permit can become effective, (b) must be satisfied as of the date on which a representation is made or a condition precedent must be satisfied under this Agreement, or (c) must be satisfied as of a future date but with respect to which facts or circumstances exist which, to the Company’s Knowledge, could reasonably be expected to result in a failure to satisfy such Permit condition, and which failure could reasonably result in a Material Adverse Effect.

“USA PATRIOT Act” means United States Public Law 107-56, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.

SCHEDULE B-20

(to Note Purchase Agreement)

RULES OF INTERPRETATION

1. The singular includes the plural and the plural includes the singular.

2. The word “or” is not exclusive. Thus, if a party “may do (a) or (b)”, then the party may do either or both. The party is not limited to a mutually exclusive choice between the two alternatives.

3. A reference to a Governmental Rule includes any amendment or modification to such Governmental Rule, and all regulations, rulings and other Governmental Rules promulgated under such Governmental Rule.

4. A reference to a Person includes its successors and permitted assigns to the extent permitted and in accordance with the terms of the Credit Documents.

5. Accounting terms have the meanings assigned to them by GAAP, as applied by the accounting entity to which they refer.

6. The words “include,” “includes” and “including” are not limiting.

7. A reference in a document to an Article, Section, Exhibit, Schedule, Annex or Appendix is to the Article, Section, Exhibit, Schedule, Annex or Appendix of such document unless otherwise indicated. Exhibits, Schedules, Annexes or Appendices to any document shall be deemed incorporated by reference in such document.

8. References to any document, instrument or agreement (a) shall include all exhibits, schedules and other attachments thereto, (b) shall include all documents, instruments or agreements issued or executed in replacement thereof, and (c) means such document, instrument or agreement, or replacement or predecessor thereto, as amended, waived, supplemented, restructured, repaid, refunded, refinanced or otherwise modified (in each case, to the extent applicable) from time to time (to the extent permitted and in accordance with the terms of the Credit Documents) and in effect at any given time.

9. The words “hereof,” “herein” and “hereunder” and words of similar import when used in any document shall refer to such document as a whole and not to any particular provision of such document.

10. References to “days” means calendar days, unless the term “Business Days” shall be used. References to a time of day means such time in New York, New York, unless otherwise specified. If the Company or any Affiliate of the Company is required to perform an action, deliver a document or take such other action by a calendar day and such day is not a Business Day, then the Company or such Affiliate shall take such action by the next succeeding “Business Day.”

11. The Credit Documents are the result of negotiations among, and have been reviewed by the Company, the Pledgor, the Purchasers, the Collateral Agent, the Depositary and their respective counsel. Accordingly, the Credit Documents shall be deemed to be the product of all parties thereto, and no ambiguity shall be construed in favor of or against the Company, the Pledgor, the Purchasers, the Collateral Agent and the Depositary.

SCHEDULE B-21

(to Note Purchase Agreement)

12. The words “will” and “shall” shall be construed to have the same meaning and effect.

13. Capitalized terms in any Credit Document have the meanings set forth therein and any capitalized term used in a Credit Document and not defined therein or in this Schedule B but in another Credit Document has the meaning in such other Credit Document.

14. Any term defined in this Schedule B by reference to another document, instrument or agreement shall continue to have the meaning ascribed thereto, as in full force and effect as of the date of this Agreement (without giving effect to any amendment to such terms unless expressly consented to by the Collateral Agent and the Holders of the Notes), whether or not such other document, instrument or agreement remains in effect.

SCHEDULE B-22

(to Note Purchase Agreement)

SCHEDULE C

ENERGY SERVER USE AGREEMENTS

1. That certain Energy System Use Agreement, dated as of December 31, 2013, by and between Home Depot U.S.A., Inc. and the Company, as may be amended, amended and restated, supplemented or otherwise modified from time to time (“Home Depot ESA”).

2. That certain Energy System Use Agreement No. 20131206.035.C, dated as of March 31, 2014, by and between AT&T Corp. and the Company, as may be amended, amended and restated, supplemented or otherwise modified from time to time (“AT&T ESA-1”).

3. That certain Energy System Use Agreement No. 20131206.036.C, dated as of March 31, 2014, by and between AT&T Corp. and the Company, as may be amended, amended and restated, supplemented or otherwise modified from time to time (“AT&T ESA-2”).

4. That certain Energy System Use Agreement No. 20131206.037.C, dated as of March 31, 2014, by and between Pacific Bell Telephone Company and the Company, as amended by Amendment No. 1 to Energy System Use Agreement No. 20131206.037.C, effective as of May 15, 2014, by and between Pacific Bell Telephone Company and the Company, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time (“AT&T ESA-3”).

5. That certain Energy System Use Agreement No. 20131206.039.C, dated as of February 21, 2014, by and between Pacific Bell Telephone Company and the Company, as may be amended, amended and restated, supplemented or otherwise modified from time to time (“AT&T ESA-4”).

6. That certain Energy System Use Agreement No. 20140225.013.C, dated as of March 21, 2014], by and between AT&T Corp. and the Company, as may be amended, amended and restated, supplemented or otherwise modified from time to time (“AT&T ESA-5”).

SCHEDULE C

(to Note Purchase Agreement)

SCHEDULE 4.1.25

PROJECT BUDGET

Project Budget
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[***] Confidential Treatment Requested

SCHEDULE 4.1.25 TO NOTE PURCHASE AGREEMENT

SCHEDULE 4.1.26(a)

BASE CASE PROJECTIONS

[See Attached]

SCHEDULE 4.1.26(a) TO NOTE PURCHASE AGREEMENT

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[***[

[***]

[***] Confidential Treatment Requested

SCHEDULE 4.1.26(b)

DOWNSIDE CASE

[See Attached]

SCHEDULE 4.1.26(b) TO NOTE PURCHASE AGREEMENT

[***]

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[***[

[***]

[***] Confidential Treatment Requested

SCHEDULE 4.1.27

PROJECT SCHEDULE

[See Attached]

SCHEDULE 4.1.27 TO NOTE PURCHASE AGREEMENT

Schedule 4.1.27

Project Schedule

Site Address

Site ID

Customer

Named Offtaker (ESA Reference)

Customer Reference

Street

City

State

System Capacity (kW)

Initial Tolling Rate ($/kWh)

Projected COO

1

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

2

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

3

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

4

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

5

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

6

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

7

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

8

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

9

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

10

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

11

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

12

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

13

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

14

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

15

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

16

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

17

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

18

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

19

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

20

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

21

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

22

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

23

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

24

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

25

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

26

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

27

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

28

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

29

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

30

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

31

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

32

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

33

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

34

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

35

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

36

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

37

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

38

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

39

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

40

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

41

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

42

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

43

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

44

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

45

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

46

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

47

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

48

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

49

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

50

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

51

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

52

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

53

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

54

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

55

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

56

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

57

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

58

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

59

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

60

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

61

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

62

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

63

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

64

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

65

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

66

Home Depot

Home Depot U.S.A., Inc.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

67

AT&T

Pacific Bell Telephone Company

[***]

[***]

[***]

[***]

[***]

[***]

[***]

68

AT&T

Pacific Bell Telephone Company

[***]

[***]

[***]

[***]

[***]

[***]

[***]

69

AT&T

AT&T Corp.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

70

AT&T

Pacific Bell Telephone Company

[***]

[***]

[***]

[***]

[***]

[***]

[***]

71

AT&T

Pacific Bell Telephone Company

[***]

[***]

[***]

[***]

[***]

[***]

[***]

72

AT&T

AT&T Corp.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

73

AT&T

AT&T Corp.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

74

AT&T

AT&T Corp.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

75

AT&T

AT&T Corp.

[***]

[***]

[***]

[***]

[***]

[***]

[***]

Project Final Completion Date

9/30/2015

[***] Confidential Treatment Requested

SCHEDULE 4.1.29

LIST OF DIRECT AGREEMENTS

1. Direct Agreement with respect to the PUMA and ASA.

2. Direct Agreement with respect to the Home Depot ESA.

3. Direct Agreement with respect to the AT&T ESA-1.

4. Direct Agreement with respect to the AT&T ESA-2.

5. Direct Agreement with respect to the AT&T ESA-3.

6. Direct Agreement with respect to the AT&T ESA-4.

7. Direct Agreement with respect to the AT&T ESA-5.

SCHEDULE 4.1.29 TO NOTE PURCHASE AGREEMENT

SCHEDULE 5.3

DISCLOSURE MATERIALS

1. Private Placement Memorandum of May 2014 posted to the datasite established by J.P. Morgan Securities LLC with respect to Note Purchase Agreement.

2. Bloom Energy Overview investor presentation dated May 2014 posted to the datasite established by J.P. Morgan Securities LLC with respect to Note Purchase Agreement.

SCHEDULE 5.3 TO NOTE PURCHASE AGREEMENT

SCHEDULE 5.5

FINANCIAL STATEMENTS

1. Audited annual financial statements of Bloom Energy Corporation for the year ended December 31, 2013.

SCHEDULE 5.5 TO NOTE PURCHASE AGREEMENT

SCHEDULE 5.15

EXISTING DEBT

None.

SCHEDULE 5.15 TO NOTE PURCHASE AGREEMENT

SCHEDULE 5.19

PERMITS

None.

SCHEDULE 5.19 TO NOTE PURCHASE AGREEMENT

SCHEDULE 8.1

AMORTIZATION SCHEDULE

Date	Amortization Amount
12/30/2015	$	221,416
3/30/2016	$	210,672
6/30/2016	$	251,214
9/30/2016	$	210,992
12/30/2016	$	314,052
3/30/2017	$	356,831
6/30/2017	$	401,455
9/30/2017	$	365,589
12/30/2017	$	471,556
3/30/2018	$	516,389
6/30/2018	$	563,848
9/30/2018	$	530,216
12/30/2018	$	639,259
3/30/2019	$	689,071
6/30/2019	$	741,093
9/30/2019	$	712,285
12/30/2019	$	824,983
3/30/2020	$	878,720
6/30/2020	$	934,859
9/30/2020	$	909,988
12/30/2020	$	1,026,016
3/30/2021	$	1,082,584
6/30/2021	$	1,142,354
9/30/2021	$	1,120,493
12/30/2021	$	1,240,357
3/30/2022	$	1,302,733
6/30/2022	$	1,367,915
9/30/2022	$	1,351,704
12/30/2022	$	1,475,745
3/30/2023	$	1,541,556
6/30/2023	$	1,610,990
9/30/2023	$	1,598,395
12/30/2023	$	1,726,869
3/30/2024	$	1,799,134
6/30/2024	$	1,874,641
9/30/2024	$	1,868,341
12/30/2024	$	2,001,629
3/30/2025	$	2,075,960
6/30/2025	$	2,140,030
9/30/2025	$	2,137,927

SCHEDULE 8.1 TO NOTE PURCHASE AGREEMENT

Date	Amortization Amount
12/30/2025	$	2,275,231
3/30/2026	$	2,338,969
6/30/2026	$	2,423,324
9/30/2026	$	2,426,879
12/30/2026	$	2,568,810
3/30/2027	$	2,637,376
6/30/2027	$	2,727,496
9/30/2027	$	2,737,050
12/30/2027	$	2,883,668
3/30/2028	$	2,973,155
6/30/2028	$	3,051,831
9/30/2028	$	3,066,571
12/30/2028	$	3,218,197
3/30/2029	$	3,313,875
6/30/2029	$	3,416,377
9/30/2029	$	3,427,203
12/30/2029	$	3,403,877
3/30/2030	$	7,880,248
Total	$	99,000,000

SCHEDULE 8.1 TO NOTE PURCHASE AGREEMENT

SCHEDULE 9.2

REQUIRED INSURANCE

The Company shall, without cost to the Secured Parties, obtain and maintain or cause to be obtained and maintained in full force and effect the insurance policies as required in this Schedule.

In each case the policies must be with insurance carriers with a rating of at least A- and a financial size category of at least X by A.M. Best or A by S&P or otherwise reasonably acceptable to the Required Holders.

The policies specified in Appendix 1 of this Schedule shall be in full force and effect at all times on and after the Closing Date or at such later inception date as is permitted by Appendix 1 to this Schedule until termination of the Credit Documents subject to renewal no more frequently than annually.

At no time shall there be any gap in cover.

The policy limits and cover of the insurances required in this schedule shall be sufficient to satisfy the requirements set forth in the Project Documents, but in no event less than the limits and coverage provisions set forth in Appendix 1 herein. The obligation to verify that the insurances carried by the Company meet the requirements of the Project Documents shall rest solely with the Company.

The Company shall not violate or permit to be violated any condition, provision or requirement of any insurance policy required by this Schedule, and the Company shall perform, satisfy and comply with all conditions, provisions and requirements of all insurance policies.

The Company hereby waives any and every claim for recovery against the Purchasers or their directors, officers and employees and agents for any and all loss or damage covered by any insurance policies to be maintained under this Schedule to the extent such loss or damage is recovered under any such policy.

All policies of insurance required to be maintained pursuant to this Schedule, other than cover required by law, shall be endorsed such that if at any time they are cancelled, lapsed, terminated or suspended (by any party including the insuring parties), such cancellation, lapse, termination or suspension shall not become effective until at least 30 days after receipt by the Collateral Agent from such insurer of such cancellation, lapse, termination or suspension, except for non-payment of premium for which the required written notice shall be 10 days. In addition to this requirement, the Company shall inform each of the Purchasers as soon a reasonably possible if it becomes aware of and such cancellation, lapse, termination or suspension or of any reasonable prospect of such and shall further requite its broker to do the same.

All policies of insurance required to be maintained pursuant to this Schedule except workers compensation and employers liability shall provide:

SCHEDULE 9.2 TO NOTE PURCHASE AGREEMENT

• Additional Insured status for the Collateral Agent and each of the Purchasers, the Equity Investors, the Sponsor and in the case of liability policies only also their respective affiliates, directors, officers, employees and agents (collectively, the “Additional Insureds”). This requirement shall not apply to any professional indemnity policy.

• Waivers of subrogation from the insurers in favor of the Additional Insureds.

• Policies shall either (a) be non-cancellable except for non-payment of premium with at least 10 days written notice of such to each of the Purchasers; or (b) have cancellation/non-payment provisions in accordance with the provisions of this Schedule.

• Each Purchaser or the Collateral Agent, on behalf of the Purchasers, will have the right but not the obligation to pay premiums on behalf of the Company in case of non-payment.

• Policies shall be unaffected by any bankruptcy or foreclosure relating to the Company or the Project.

• Insurance shall be primary and not excess to or contributing with any other insurance or self-insurance maintained by the Company or the Additional Insureds. However, policies can act in excess of underlying policies and any policies provided by contractors in accordance with the requirements of this Schedule.

• The Company shall ensure that no Insurer of a policy required in accordance with the terms of this Schedule shall permit the first named insured under such policy to reduce limits or cover or degrade terms and conditions without the prior written approval of the Required Holders.

• The Additional Insureds shall have no obligations whatsoever including but not limited to no obligation to pay premium and no obligation to pay deductibles.

• Policy limits shall act in excess of deductibles including the indemnity period for time element insurance which shall act in excess of the delay deductible for such insurance.

• Insurer costs and expenses including any associated with claims including claims adjustment are for the account of the relevant insurer and further will not be deducted from policy limits or sublimits.

In addition, all property policies including marine cargo (if applicable) and further including any time element insurance shall provide:

• That the Collateral Agent for the benefit of the holders of the Notes shall be sole loss payee of any amounts payable under the policies in relation to the Company and the Project.

• A non-vitiation clause the form of a multiple insured clause or equivalent protection acceptable to the Required Holders acting reasonably.

• Cover for accidental errors and omissions with, to the extent available on commercially reasonable terms, with no sublimit applied or otherwise a sublimit acceptable to the Collateral Agent acting reasonably.

• Replacement cost, new for old, with no deduction of any kind including no coinsurance provision or a waiver thereof and no allowance for depreciation (accounting or otherwise), obsolescence or loss of value over time other than in a total constructive loss or other scenario where repair/replacement does not follow loss.

• An advance or partial payment endorsement.

SCHEDULE 9.2 TO NOTE PURCHASE AGREEMENT

• A clause requiring the insurer to make final payment on any claim within thirty days after the submission of proof of loss and its acceptance by the insurer.

• Except for marine transit policies, a LEG2 exclusion or similar endorsement with no sublimit applied.

In addition, all liability policies except workers compensation and employers liability shall provide:

• Severability.

• Cross liability with no insured or additional insured excluded.

The above requirements shall be referred to as the “Required Holder Provisions”. The Required Holder Provisions can be provided either as endorsements to or in the main body of the relevant policy. All policies that replace or renew policies shall contain provisions, including limits, sublimits, deductibles, exclusions and the Required Holder Provisions, that are, mutatis mutandis, in all material regards at least the same as those in place at the Closing Date or, if later, the date of first inception of such policy cover, except in relation to risks where exposure no longer exists or where a better level of cover is provided or which would be required in accordance with the provisions of this Schedule.

The Company shall provide each of the Purchasers as soon as reasonably possible prior to financial close, and at least 10 days prior to any subsequent policy inception or renewal, a certificate of pre-agreed format from:

• Each placing broker confirming:

• Summary policy terms in the pre-agreed format.

• That all policies required by this schedule are in full force and effect.

• All insurance premiums that are due and payable have been paid in full with no premium overdue.

There shall be appended to such certificate or letter of undertaking insurance certificates for each policy required by this Schedule listing the major sublimits (to be agreed) and confirming that all required endorsements that apply to such policy are in place.

• The Insurance Consultant confirming that:

• The insurance provided complies with the requirements of this Agreement including this Schedule and further complies with the requirements of the Company in the Project Documents.

• That the undertakings made by each placing broker conform to the requirements of prudent industry practice.

The Collateral Agent may, at its sole discretion, waive the requirement for a certificate from the Insurance Consultant at policy replacement/renewal without requiring the approval of the Holders or the Required Holders.

SCHEDULE 9.2 TO NOTE PURCHASE AGREEMENT

The insurance provided by the Company shall be at least that evidenced in any certificates or other evidence provided by or on behalf of the Company.

Any of the requirements of this Schedule can be satisfied by single or by combined policies. However, as would be deemed necessary in accordance with prudent industry practice, a joint loss agreement will be required and included as part of the respective policies (for example, if there were separate marine transit and builders all-risk policies, then a 50:50 clause would be required).

If in the opinion of the Company, acting reasonably, any insurance, including the terms and conditions, required endorsements and limits or deductibles thereof, hereby required by this Schedule to be maintained, other than insurance required to be maintained by law which shall be maintained at all times, shall not be available on commercially reasonable terms in the commercial insurance market, the Company shall promptly inform the Collateral Agent and each of the Purchasers of such purported unavailability and the Company shall seek a waiver from the Required Holders in relation to such purported unavailability in which case the Required Holders, acting after consultation with the Insurance Consultant, shall not unreasonably withhold agreement to waive such requirement to the extent the maintenance thereof is not so available. The granting by the Required Holders of any such waiver is conditional on: (i) the Company first requesting such waiver in writing, which request shall be accompanied by written reports prepared by the Company and its placing broker certifying that such insurance is not available on commercially reasonable terms in the commercial insurance market for projects of similar type and capacity and, in any case where the required amount is not so available, certifying as to the maximum amount which is so available, and explaining in detail the basis for such conclusions and the form and substance of such reports to be reasonably acceptable to the Required Holders after consultation with the Insurance Consultant; (ii) at any time after the granting of any such waiver, any Secured Party may request, and the Company shall furnish to each Secured Party within fifteen (15) days after such request, supplemental reports reasonably acceptable to the Required Holders updating the prior reports and reaffirming such conclusion; (iii) any such waiver granted by the Required Holders can amend, to the extent reasonably required to mitigate any increased risks created by the absence of insurance cover that is the subject of the waiver, any of the terms of this Schedule and this Agreement; (iv) any Purchaser may require the Company to obtain the best available insurance comparable to the requirements of this Schedule on commercially reasonable terms then available in the commercial insurance market (as determined by the Insurance Consultant); and (v) such waiver shall be effective only so long as such insurance shall not be available on commercially reasonable terms in the commercial insurance market (as determined by the Insurance Consultant) it being understood that the failure of the Company to furnish any supplemental reports shall be deemed to be conclusive evidence that such waiver is no longer effective because such condition no longer exists, but that such failure is not the only way to establish such non-existence.

Any failure on the part of any Secured Party to pursue or obtain the evidence of insurance required by this Schedule from the Company and/or failure to point out any non-compliance of such evidence of insurance shall not constitute a waiver of any of the insurance requirements in this Schedule.

SCHEDULE 9.2 TO NOTE PURCHASE AGREEMENT

Each liability insurance policy required pursuant to this Schedule that is permitted to be written on a “claims made” basis shall provide (a) a retroactive date (as such term is specified in each of such policies) that is no later than the Closing Date and (b) each time any policy written on a “claims made” basis is not renewed or the retroactive date of such policy is to be changed, the Company shall obtain and maintain, or cause to be obtained or maintained, for each such policy or policies the broadest extended reporting period coverage, or “tail”, reasonably available in the commercial insurance market for each such policy or policies but in no case less than three (3) years. The Company may satisfy the requirements of this Section by obtaining “prior acts” coverage from a subsequent insurance carrier on terms acceptable to the Collateral Agent, acting reasonably.

All property insurance including marine cargo and any time element insurance shall not include any annual or term aggregate limits or sublimits except for the perils of windstorm, flood, earth movement, unintentional errors & omissions in reporting and land and water decontamination but only to the extent permitted in Appendix 1 to this Schedule. Liability policies may have general aggregate limits in accordance with prudent insurance market practice.

All insurance policies required to be maintained pursuant to this Schedule shall contain terms and conditions reasonably acceptable to the Required Holders following consultation with the Insurance Consultant.

In the event that at any time the insurance as herein provided or as evidenced shall be reduced or cease to be maintained, then (without limiting the rights of any Secured Party hereunder in respect of the Event of Default which arises as a result of such failure) any Secured Party, upon ten (10) Business Days’ prior written notice (unless such insurance coverage would lapse within such period, in which event notice should be given as soon as reasonably possible) to the Company of any such failure, may (but shall not be obligated to) take out the required policies of insurance and pay the premiums on the same. All amounts so advanced for such purpose shall become an additional obligation of the Company to the Secured Parties that provided such funding, and the Company shall forthwith pay such amounts, together with interest on such amounts at the applicable Default Rate from the date so advanced.

The Required Holders can, acting reasonably, require such additional cover to be provided as is required to conform to prudent industry practice.

The Required Holders shall have the option to be present and/or to send representatives during meetings and/or negotiations with insurers of any loss settlement in relation to the Company or the Project regarding (a) total constructive loss or any scenario in which repair/replacement will not follow loss, (b) any circumstance involving a claim in relation to an event or series of events which has or could be reasonably expected to lead to a Default. Neither the Company nor any of its Affiliates shall be permitted to settle any such claim with an insurer without the approval of the Required Holders to the agreed settlement.

Each Purchaser may, pursuant to its rights and obligations under this Agreement and this Schedule and the provisions therein, consult with the Insurance Consultant and require reports, compliance certificates and other work product from the Insurance Consultant.

SCHEDULE 9.2 TO NOTE PURCHASE AGREEMENT

Terms used in this Schedule, unless otherwise specifically defined, shall have the meaning normally ascribed to them in accordance with prudent industry practice in relation to a project similar in type and jurisdiction as the Project.

SCHEDULE 9.2 TO NOTE PURCHASE AGREEMENT

APPENDIX 1

All-Risk” property form, as such term is used in the insurance industry, including coverage for the perils of flood, earthquake, hail, lightning, strike, riot and civil commotion, vandalism and malicious mischief. Such policy shall insure all real and personal property of the Company whether at a fixed (including non-owned location for off-Site repair or refurbishment), off-Site storage or a warehouse location or while in the course of inland or ocean transit (as the case may be), for an amount of not less than the greater of (a) $27,500,000 and (b) 10% of the current aggregate replacement cost of the Project.

The policy shall provide cover in accordance with this Schedule 9.2 for each System from the time no later than the time of delivery to the Company in accordance with the terms of the PUMA or such earlier time that the Company has risk of loss. This cover shall include cover for installation, testing including hot testing and commissioning sufficient to cover planned testing and commissioning activities and any likely over-run of such activities.

Sub-limits are permitted with respect to the following perils:

• For earthquake and flood a combined aggregate limit as commercially available but in no event less than $12,500,000;

• Unintentional Errors & Omissions, aggregated limit as commercially available but in no event less than $7,000,000

• such other coverages customarily sub-limited and/or aggregated or restricted in reasonable amounts consistent with current industry practice, including without limitation, extra expense, debris removal, on site pollutant cleanup (resulting from a covered peril) and other perils normally sub-limited.

Such policy shall include: (a) an automatic reinstatement of limits following each loss except for those perils normally aggregated (including the perils of earthquake, named windstorm, pollution cleanup and flood), (b) replacement cost valuation with no deduction for depreciation and no coinsurance clauses (or a waiver thereof).

Business Interruption insurance triggered by any and all losses covered for property damage subject to such additional exclusions as are customary for time element insurance shall be provided for not less than 12 months projected covered revenue loss less non-recurrent costs, minimum $5,000,000, and for an indemnity period of not less than 12 months for example:

a) if the main policy limit for property damage is 10% of the total portfolio replacement cost; then

b) the limit for business interruption shall be at least 10% of annual revenues for the portfolio over a 12 month indemnity period, minimum $5,000,000.

Contingent business interruption shall be provided in accordance with prudent industry practice, minimum $5,000,000.

Such policy may have per occurrence deductibles of not greater than One Hundred Thousand Dollars ($100,000) for all perils except (a) five percent (5%) of the value of property damaged by either earthquake or flood subject to a minimum of up to two hundred and fifty thousand dollars ($250,000); and (b) fourteen (14) days for Business Interruption.

SCHEDULE 9.2 TO NOTE PURCHASE AGREEMENT

(a) Marine Cargo and Marine Business Interruption Insurance

To the extent a material exposure exists, transit coverage, either included in a property policy or under a separate policy (including air, land and ocean cargo, as applicable) on an “all-risk” basis and a “warehouse to warehouse” basis with a per occurrence limit equal to not less than 110% of the value including transit and insurance of such shipment involving Project or any other Collateral assets to or from any storage site or the Project site at all times for which the Company has accepted risk of loss or has responsibility for providing insurance. Coverage shall include loading and unloading, temporary storage (as applicable). Coverage shall be maintained in accordance with prudent industry practice in all regards with per occurrence deductibles of not more than $100,000 for physical damage and other terms and conditions acceptable to the Required Holders and the Equity Investors in consultation with the Insurance Consultant.

Marine Business Interruption insurance shall be attached to the Marine Cargo policy providing equivalent cover, mutatis mutandis, to the Business Interruption cover attached to the All Risk Property policy in accordance with the terms of this Schedule.

(b) General Liability

A limit of $1,000,000 per occurrence and in the aggregate shall be provided for:

• Property damage, death and injury (including mental injury).

• Broad form property damage.

• Blanket contractual.

• Products/completed operations

• Advertising injury

• XCU

Deductibles shall be the best commercially available in accordance with prudent industry practice.

(c) Automobile Liability

Automobile liability insurance, to the extent exposure exists, including coverage for owned, non-owned and hired automobiles for both bodily injury and property damage and containing appropriate no-fault insurance provisions or other endorsements in accordance with state legal requirements, with a combined single limit of no less than $1,000,000 per accident with respect to bodily injury, property damage or death. Deductibles shall be the best commercially available in accordance with prudent industry practice.

(d) Workers’ Compensation and Employer’s Liability

SCHEDULE 9.2 TO NOTE PURCHASE AGREEMENT

If the Company has employees, workers’ compensation insurance in compliance with statutory requirements and employer’s liability insurance, to the extent exposure exists, with a limit of not less than $1,000,000 per accident, per employee and per disease including such other forms of insurance that the Company is required by law to provide for the Project, all other states’ endorsement and, to the extent any exposure exists, coverage with respect to the USL&H Act and Jones Act, covering loss resulting from bodily injury, sickness, disability or death of the employees of the Company. Deductibles shall be the best commercially available in accordance with prudent industry practice.

(e) Pollution Liability

Pollution liability insurance for liability arising out of property damage or bodily injury to third parties as a result of sudden and accidental pollution including the cost of on-site and off-site clean up in an amount not less than $1,000,000 per occurrence and in the aggregate. Deductibles shall be the best commercially available in accordance with prudent industry practice.

(f) Umbrella Liability Insurance

An aggregate limit of $15,000,000 (or $20,000,000, if so required by any Project Document) shall be attached and in excess of the underlying general liability, automobile liability, employers’ liability policies on a following form basis with drop down provisions.

(g) Errors and Omissions Liability

Errors and omissions insurance for liability arising out of property damage or bodily injury to third parties as a result of prototype manufacturing errors and omissions liability $1,000,000 per glitch and in the aggregate. Deductibles shall be the best commercially available in accordance with prudent industry practice.

(h) Directors & Officers Insurance

Directors & Officers insurance, including Employment Practices (if employees) in an amount not less than $10,000,000 on industry standard policy forms subject to a retention not to exceed $50,000. This requirement may be satisfied by a corporate policy.

SCHEDULE 9.2 TO NOTE PURCHASE AGREEMENT

EXHIBIT 1

FORM OF 6.07% SENIOR SECURED NOTE DUE MARCH 30, 2030

[FORM OF NOTE]

THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). NEITHER THIS NOTE NOR ANY PORTION HEREOF MAY BE OFFERED, SOLD OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE REGISTRATION PROVISIONS OF THE SECURITIES ACT AND ANY APPLICABLE PROVISIONS OF ANY STATE BLUE SKY OR SECURITIES LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM SUCH REGISTRATION PROVISIONS.

THE HOLDER OF THIS NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH HOLDER OF A BENEFICIAL INTEREST THEREIN, AGREE TO TREAT THE NOTE AS INDEBTEDNESS OF THE COMPANY FOR APPLICABLE FEDERAL, STATE, AND LOCAL INCOME AND FRANCHISE TAX LAW AND FOR PURPOSES OF ANY OTHER TAX IMPOSED ON, OR MEASURED BY, INCOME.

EXHIBIT 1 TO NOTE PURCHASE AGREEMENT

2014 ESA PROJECT COMPANY, LLC

6.07% SENIOR SECURED NOTE DUE MARCH 30, 2030

No. [        ]	July [ 🌑 ], 2014
$[            ]	PPN 90214G AA5

FOR VALUE RECEIVED, the undersigned, 2014 ESA PROJECT COMPANY, LLC (herein called the “Company”), a limited liability company formed and existing under the laws of the State of Delaware, hereby promises to pay to [            ], or registered assigns, the principal sum of [                    ] DOLLARS (or so much thereof as shall not have been prepaid) on March 30, 2030 (the “Maturity Date”), with interest (computed on the basis of a 360-day year of twelve 30-day months) (a) on the unpaid balance hereof at the rate of 6.07% per annum from the date hereof, payable quarterly, on the 30^th day of March, June, September and December in each year, commencing with the September 30 next succeeding the date hereof, and on the Maturity Date, until the principal hereof shall have become due and payable, and (b) to the extent permitted by law, on any overdue payment of interest and, during the continuance of an Event of Default, on such unpaid balance and on any overdue payment of any Make-Whole Amount, at the Default Rate, payable quarterly as aforesaid (or, at the option of the registered holder hereof, on demand).

Payments of principal of, interest on and any Make-Whole Amount with respect to this Note are to be made in lawful money of the United States of America at the principal office of the Collateral Agent in New York, New York or at such other place as the Company shall have designated by written notice to the holder of this Note as provided in the Note Purchase Agreement referred to below.

This Note is one of a series of Senior Secured Notes (herein called the “Notes”) issued pursuant to the Note Purchase Agreement, dated as of July 18, 2014 (as from time to time amended, the “Note Purchase Agreement”), between the Company and the respective Purchasers named therein and is entitled to the benefits thereof. Each holder of this Note will be deemed, by its acceptance hereof, to have (i) agreed to the confidentiality provisions set forth in Article 20 of the Note Purchase Agreement and (ii) made the representations set forth in Article 6 of the Note Purchase Agreement. Unless otherwise indicated, capitalized terms used in this Note shall have the respective meanings ascribed to such terms in the Note Purchase Agreement.

This Note is registered in the register of Notes maintained by the Company and, as provided in the Note Purchase Agreement, upon surrender of this Note for registration of transfer accompanied by a written instrument of transfer duly executed, by the registered holder hereof or such holder’s attorney duly authorized in writing, a new Note for a like principal amount will be issued to, and registered in the name of, the transferee. Prior to due presentment for registration of transfer, the Company may treat the person in whose name this Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, and the Company will not be affected by any notice to the contrary.

EXHIBIT 1 TO NOTE PURCHASE AGREEMENT

The Company will make required prepayments of principal on the dates and in the amounts specified in the Note Purchase Agreement. This Note is also subject to optional prepayment, in whole or from time to time in part, at the times and on the terms specified in the Note Purchase Agreement, but not otherwise.

If an Event of Default occurs and is continuing, the principal of this Note may be declared or otherwise become due and payable in the manner, at the price (including any applicable Make-Whole Amount) and with the effect provided in the Note Purchase Agreement.

This Note shall be construed and enforced in accordance with, and the rights of the Company and the holder of this Note shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than such State.

2014 ESA PROJECT COMPANY, LLC
By
	[Title]

EXHIBIT 1 TO NOTE PURCHASE AGREEMENT

EXHIBIT 4.1.13(a)

FORM OF OPINION OF SPECIAL COUNSEL TO THE COMPANY

[See Execution Version]

EXHIBIT 4.1.13(a) TO NOTE PURCHASE AGREEMENT

BEIJING	Times Square Tower	SAN FRANCISCO
BRUSSELS	7 Times Square	SEOUL
CENTURY CITY	New York, New York 10036-6524	SHANGHAI
HONG KONG	TELEPHONE (212) 326-2000	SILICON VALLEY
JAKARTA†	FACSIMILE (212) 326-20fo	SINGAPORE
LONDON	www.omm.com	TOKYO
LOS ANGELES		WASHINGTON, D.C.
NEWPORT BEACH

July 18, 2014

To the Addressees listed on Schedule 1

Re: 2014 ESA Project Company, LLC

Ladies and Gentlemen:

We have acted as counsel to (i) 2014 ESA Project Company, LLC, a Delaware limited liability company (the “Company”), (ii) 2014 ESA HoldCo, LLC, a Delaware limited liability company (the “Pledgor”), (iii) Clean Technologies 2014, LLC, a Delaware limited liability company (the “Member”) and (iv) Bloom Energy Corporation, a Delaware corporation (“Parent” and, together with the Company, the Pledgor and the Member, the “Opinion Parties”), in connection with the preparation, execution and delivery of (A) the Note Purchase Agreement, dated as of July 18, 2014 (the “Note Purchase Agreement”), among the Company and the Purchasers party thereto, and (B) the other Transaction Documents (as defined below). We are providing this opinion to you pursuant to Section 4.1.13(a) of the Note Purchase Agreement. Unless otherwise indicated, capitalized terms used but not defined herein shall have the respective meanings set forth in the Note Purchase Agreement.

In our capacity as such counsel, we have examined originals or copies of those corporate and other records and documents we considered appropriate, including the following:

(i) the Note Purchase Agreement;

(ii) the Equity Capital Contribution Agreement;

(iii) the Depositary Agreement;

(iv) the Pledge Agreement;

(v) the Security Agreement;

(vi) the Collateral Agency Agreement;

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(vii) the Notes;

(viii) the Interparty Agreement;

(ix) the PUMA;

(x) Consent and Agreement, dated as of July 18, 2014, by and among Parent, Collateral Agent, and the Company relating to the PUMA and Administrative Services Agreement;

(xi) AT&T ESA-2;

(xii) Site Lease(s) related to AT&T ESA-2;

(xiii) the Administrative Services Agreement;

(xiv) AT&T ESA-3;

(xv) Site Lease(s) related to AT&T ESA-3;

(xvi) AT&T ESA-4;

(xvii) Site Lease(s) related to AT&T ESA-4;

(xviii) AT&T ESA-5;

(xix) Site Lease(s) related to AT&T ESA-5;

(xx) Home Depot ESA;

(xxi) AT&T ESA-1;

(xxii) Site Lease(s) related to AT&T ESA-1;

(xxiii) unfiled copies of (a) a financing statement naming the Company as debtor and the Collateral Agent as secured party and (b) a financing statement naming the Pledgor as debtor and the Collateral Agent as secured party (collectively, the “Financing Statements”), which we understand will be filed in the Office of the Secretary of State of the State of Delaware; and

(xxiv) unfiled copies of (a) a financing statement naming the Company as debtor and the Collateral Agent as secured party (the “California Transmitting Utility Financing Statement”), which we understand will be filed in the Office of the Secretary of State of the State of California, (b) a financing statement naming the Company as debtor and the Collateral Agent as secured party (the “New York Transmitting Utility Financing Statement”), which we understand will be filed in the Office of the Secretary of State of the State of New York and (c) a financing statement naming the Company as debtor and the Collateral Agent as secured party (the “Delaware Transmitting Utility Financing Statement”), which we understand will be filed in the Office of the Secretary of State of the State of Delaware.

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The documents described in the foregoing clauses (i) through (xxix) are collectively referred to herein as the “Transaction Documents”. The documents described in the foregoing clauses (i) through (xii) are collectively referred to herein as the “New York Transaction Documents”. The documents described in the foregoing clauses (xiii) through (xix) are collectively referred to herein as the “California Transaction Documents”.

In our capacity as such counsel, we have examined executed counterparts of each of the Transaction Documents. We have also examined and relied upon the accuracy of the originals or certified, conformed, photocopied or telecopied copies of such corporate and limited liability company records and resolutions, certificates (including (i) officer’s certificates, dated the date hereof, delivered by the Opinion Parties relating to certain corporate and factual matters of the Opinion Parties (copies of which are attached hereto as Exhibit A), and (ii) incumbency certificates, dated the date hereof, delivered by the Opinion Parties), instruments and other documents as we have deemed necessary or appropriate to enable us to render the opinions expressed herein.

In our review of the Transaction Documents and other documents, we have assumed the genuineness of signatures on original documents and the conformity to such original documents of all copies submitted to us as certified, conformed, photocopied or telecopied copies, and as to certificates and telegraphic and telephonic confirmations given by public officials, we have assumed the same to have been properly given and to be accurate. As to all matters of fact material to our opinions, we have relied, without investigation, upon corporate and limited liability company resolutions of the Opinion Parties, upon representations and warranties of the parties contained in the Transaction Documents and upon the statements and certificates furnished thereunder or by public officials, and upon the representations and warranties contained in the letter, dated as of July 18, 2014, furnished to, among others, us by J.P. Morgan Securities LLC, as placement agent of the Company with respect to the Notes.

On the basis of such examination, our reliance upon the assumptions in this opinion and our consideration of those questions of law we considered relevant, and subject to the limitations and qualifications in this opinion, we are of the opinion that:

1. Based solely on the certificates of good standing issued by the Secretary of State of the State of Delaware attached hereto as Exhibit B (which we have assumed remain accurate on the date of this opinion letter), the Company, the Member and the Pledgor are limited liability companies existing under the laws of the State of Delaware and Parent is a corporation existing under the laws of the State of Delaware.

2. Each of the Opinion Parties has the power under the current Delaware Limited Liability Company Act (the “Delaware LLC Act”) and the General Corporation Law of the State of Delaware (the “DGCL”), as applicable, and its certificate of formation and limited liability company agreement or its articles of incorporation and bylaws, as applicable (together, its “Organizational Documents”), to enter into and perform its obligations under each Transaction Document to which it is a party. The Company has the requisite limited liability company power and authority to issue and sell the Notes pursuant to the Note Purchase Agreement.

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3. The execution and delivery by each Opinion Party of each Transaction Document to which such Opinion Party is a party, and the issuance and sale by the Company of the Notes under the Note Purchase Agreement, have been duly authorized by all necessary action on the part of such Opinion Party under the Delaware LLC Act and the DGCL, as applicable, and such Opinion Party’s Organizational Documents, and each such Transaction Document has been duly executed and delivered by such Opinion Party.

4. The execution and delivery by each Opinion Party of each Transaction Document to which such Opinion Party is a party do not, and such Opinion Party’s performance of its respective obligations thereunder will not, violate the Organizational Documents of such Opinion Party.

5. The execution and delivery by each Opinion Party of each Transaction Document to which such Opinion Party is a party do not, and such Opinion Party’s performance of its respective obligations thereunder will not, violate the Delaware LLC Act or the DGCL, as applicable, or any current California (with respect to the California Transaction Documents), New York (with respect to the New York Transaction Documents) or federal statute, rule or regulation that we have, in the exercise of customary professional diligence, recognized as applicable to such Opinion Party or to transactions of the type contemplated by the Transaction Document(s) to which such Opinion Party is a party.

6. No order, consent, permit or approval of any California (with respect to the California Transaction Documents), New York (with respect to the New York Transaction Documents) or federal governmental authority that we have, in the exercise of customary professional diligence, recognized as applicable to any of the Opinion Parties or to transactions of the type contemplated by the Transaction Documents, is required on the part of any Opinion Party for (a) the execution and delivery of the Transaction Document(s) to which such Opinion Party is a party and (b) the issuance and sale by the Company of the Notes pursuant to the Note Purchase Agreement, except for such as have been obtained.

7. Each of the California Transaction Documents and New York Transaction Documents to which an Opinion Party is a party constitutes a legally valid and binding obligation of such Opinion Party, enforceable against such Opinion Party in accordance with its respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors’ rights generally (including, without limitation, fraudulent conveyance laws) and by general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law.

8. (a) The Security Agreement is effective to create in favor of the Collateral Agent a security interest in that Collateral (as defined in the Security Agreement) of the Company in which a security interest may be created under Article 9 of the Uniform Commercial Code as in effect in the State of New York (the “Code”), and (b) the Pledge Agreement is effective to create in favor of the Collateral Agent a security interest in that Collateral (as defined in the Pledge Agreement) of the Pledgor in which a security interest may be created under Article 9 of the Code.

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9. Upon the filing of the Financing Statements with the Secretary of State of the State of Delaware, the Collateral Agent will have a perfected security interest in (a) the Company’s interest in the Collateral (as defined in the Security Agreement) and (b) the Pledgor’s interest in the Collateral (as defined in the Pledge Agreement), in which a security interest may be perfected under the Uniform Commercial Code as in effect in the State of Delaware by the filing of a financing statement in the State of Delaware.

10. The security interest described in paragraph 8(a) in such of the Collateral (as defined in the Security Agreement) as consists of the Accounts (as defined in the Depositary Agreement) and the security entitlements carried therein will be perfected upon the execution and delivery of the Security Agreement and the Depositary Agreement.

11. The Pledge Agreement is effective to create in favor of the Collateral Agent a security interest in the certificated securities identified in Section 2.1 of the Pledge Agreement under the Code (the “Certificated Securities”). Upon delivery of the Certificated Securities to the Collateral Agent in the State of New York, effectively endorsed in blank, the Collateral Agent will acquire a perfected security interest in such Certificated Securities.

12. Under existing law, no registration of the Notes under the Securities Act of 1933, as amended, or the qualification of the Note Purchase Agreement under the Trust Indenture Act of 1939, as amended, is required for the issuance, and the initial sale and delivery, of the Notes under the circumstances contemplated by, and pursuant to, the Note Purchase Agreement. We express no opinion, however, as to when or under what circumstances the Notes may be reoffered or resold.

13. The Company is not an “investment company” that is required to register as an “investment company” as such terms are defined in the Investment Company Act of 1940, as amended.

14. Neither the issuance and sale of the Notes nor the use of proceeds provided in the Agreement will violate Regulation T, U or X of the Board of Governors of the Federal Reserve System. For purposes of this opinion, we have assumed that none of the Purchasers is a “creditor” as defined in Regulation T.

15. None of the Opinion Parties is or will, by virtue of entering into and performing its obligations under the Transaction Documents to which it is a party, become subject to the regulatory jurisdiction of the California Public Utilities Commission as a “public utility” or an “electrical corporation,” as defined in Sections 216 or 218, respectively, of the California Public Utilities Code.

16. Each of Pledgor, Member and Parent (collectively, the “HoldCo Parties”) is, or will be as a consequence of the transactions contemplated under the Transaction Documents, a “holding company” as defined in the Public Utility Holding Company Act of 2005 (“PUHCA”). In its capacity as a holding company, each of the HoldCo Parties qualifies for a waiver or an exemption under the Federal Energy Regulatory Commission’s (“FERC”) regulations under PUHCA at 18 C.F.R. Section 366.3 from FERC’s accounting, record-retention and reporting requirements of 18 C.F.R. Sections 366.21, 366.22, and 366.23.

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17. The execution and delivery by each Opinion Party of the Transaction Documents to which such Opinion Party is a party, and the performance of its obligations thereunder, do not require any consent, approval or authorization from, or any other action of, notice to, qualification or filing with, FERC other than notifications or other filings with respect to the Opinion Parties’ holding company status and qualification for waiver of or exemption under FERC’s regulations under PUHCA at 18 C.F.R. Section 366.3 from FERC’s accounting, record-retention and reporting requirements of 18 C.F.R. Sections 366.21, 366.22, and 366.23.

18. (a) If the Company is a “transmitting utility” as defined in Section 9-102(a)(80) of the Uniform Commercial Code as in effect in the State of California (a matter as to which we express no opinion), then upon the effective filing of the California Transmitting Utility Financing Statement with the California Secretary of State, the security interest described in paragraph 8(a) will be perfected in such of the Collateral (as defined in the Security Agreement) in which a security interest can be perfected by the filing of a financing statement under the Uniform Commercial Code as in effect in the State of California, (b) if the Company is a “transmitting utility” as defined in Section 9-102(a)(80) of the Code (a matter as to which we express no opinion), then upon the effective filing of the New York Transmitting Utility Financing Statement with the New York Secretary of State, the security interest described in paragraph 8(a) will be perfected in such of the Collateral (as defined in the Security Agreement) in which a security interest can be perfected by the filing of a financing statement under the Code and (c) if the Company is a “transmitting utility” as defined in Section 9-102(a)(80) of the Uniform Commercial Code as in effect in the State of Delaware (a matter as to which we express no opinion), then upon the effective filing of the Delaware Transmitting Utility Financing Statement with the Delaware Secretary of State, the security interest described in paragraph 8(a) will be perfected in such of the Collateral (as defined in the Security Agreement) in which a security interest can be perfected by the filing of a financing statement under the Uniform Commercial Code as in effect in the State of Delaware.

In rendering the opinions expressed herein, we have assumed that as of the date hereof and at all other times relevant for this opinion (i) each of the parties to each of the Transaction Documents (other than, to the extent of our opinions set forth above, each of the Opinion Parties) is duly incorporated, organized or formed, validly existing and in good standing under the laws of all jurisdictions where they are conducting their businesses (including their jurisdiction of incorporation, organization or formation), (ii) each of the parties to each of the Transaction Documents (other than, to the extent of our opinions set forth above, each of the Opinion Parties) has the requisite power, authority and legal right to enter into, and perform its respective obligations under the Transaction Documents to which it is a party, (iii) each of the Transaction Documents has been duly authorized, executed and delivered by each respective party thereto (other than, to the extent of our opinions set forth above, each of the Opinion Parties), (iv) each Transaction Document constitutes a legally valid and binding obligation of each party thereto (other than, to the extent of our opinions set forth above, each of the Opinion Parties), enforceable against each of such parties in accordance with the terms thereof, (v) the transactions provided for in the Transaction Documents are exempt from, or will not involve any transaction

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which is subject to, the prohibitions of Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) or Section 4975 of the Internal Revenue Code of 1986, as amended (the “IRS Code”), and will not involve any transaction in connection with which a penalty could be imposed under Section 502(1) of ERISA or a tax could be imposed under Section 4975 of the IRS Code, (vi) that the Notes conform to the specimens thereof examined by us, (vii) that each of the Purchasers is an institutional investor that is an “accredited investor”, as such term is defined in Rule 501 of the Securities Act of 1933 (an “ Institutional Accredited Investor”), (viii) that all offers and sales of the Notes have been made in accordance with the private placement procedures for offerings of this type and which include, among other things, procedures reasonably designed to ensure that such offers and sales are made only to Institutional Accredited Investors, and (ix) the absence of any general solicitation or general advertising in the United States of America in connection with the offering of the Notes.

For purposes of the opinions expressed in paragraphs 4 and 5, we have assumed that the Opinion Parties will not in the future take any discretionary action (including a decision not to act) permitted by the Transaction Documents that would cause the performance of any Transaction Document to (i) violate the Delaware LLC Act, the DGCL or any current California (with respect to the California Transaction Documents), New York (with respect to the New York Transaction Documents) or federal statute, rule or regulation or (ii) violate the Organizational Documents of any Opinion Party.

Our opinions in paragraphs 8, 9 and 10 are limited to Article 9 of the Code and do not address (A) laws of jurisdictions other than New York (and as to our opinions in paragraph 9 only, Delaware), (B) collateral not subject to Article 9 of the Code (including by reason of Section 9-109(c) or (d) thereof), or (C) under Sections 9-301 through 9-306 of the Uniform Commercial Code as in effect in any jurisdiction, or otherwise, what law governs the perfection of the security interests granted in the collateral covered by those opinion paragraphs.

We express no opinion with respect to (i) the priority of any security interest; or (ii) Collateral consisting of real property, copyrights, farm products, fixtures (other than with respect to our opinions in paragraph 18, to the extent any such Collateral may constitute fixtures for which we express no opinion), consumer goods, as- extracted collateral, commercial tort claims (as such terms are defined in the Code) and timber to be cut.

In rendering the opinions in paragraphs 8, 9, 10, and 11 we have assumed that:

(i) the Opinion Parties have, or will have at the relevant time, rights in the Collateral in which such Opinion Parties have granted a security interest to the Collateral Agent within the meaning of Section 9-203(b)(2) of the Code at all times relevant to this opinion;

(ii) the Collateral is reasonably identified in the description of collateral set forth in the Security Agreement and Pledge Agreement in accordance with Section 9-108 of the Code and in the Financing Statement in accordance with Section 9-504 of the Code;

(iii) at all times relevant to this opinion, value has been given within the meaning of Section 9-203(b)(I) of the Code;

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(iv) the Collateral Agent has no notice of any adverse claims to the Certificated Securities referred to in paragraph 11;

(v) each Account is a securities account maintained with the Depositary (as defined in the Depositary Agreement); and

(vi) the Depositary is a securities intermediary and is acting in that capacity, and the Company does not control the Depositary, is not controlled by the Depositary, is not under common control with the Depositary, and is not an insider or affiliate of the Depositary, and the Depositary does not lease any collateral from the Company.

We advise you that we have not made or undertaken to make any investigation as to the existence of or state of title to the Collateral and we express no opinion as to the existence, condition, or location of the Collateral.

We have no obligation to perfect or to maintain the perfection or the priority of any security interest described in this opinion letter or to advise anyone after the date hereof as to actions necessary or advisable to do so.

Our opinion in paragraphs 7 and 11 above as to the enforceability of the Transaction Documents is subject to: (i) public policy considerations, statutes or court decisions that may limit the rights of a party to obtain indemnification against its own negligence, willful misconduct or unlawful conduct; (ii) the unenforceability under certain circumstances of broadly or vaguely stated waivers or waivers of rights granted by law where the waivers are against public policy or prohibited by law; (iii) the unenforceability under certain circumstances of provisions imposing penalties, liquidated damages or other economic remedies; (iv) the unenforceability under certain circumstances of provisions appointing one party as trustee for an adverse party or provisions for the appointment of a receiver; (v) the unenforceability of covenants not-to- compete; (vi) the unenforceability under certain circumstances of choice of law provisions; (vii) the unenforceability of confession of judgment provisions; and (viii) the unenforceability of provisions waiving a right to a jury trial.

Our opinion in paragraph 18 above does not cover perfection of any real property security interests.

For purposes of paragraph 16 above we also have relied on the Form FERC-65, Revised Notification of Holding Company Status, filed by Parent and certain of its subsidiaries with FERC in Docket No. HC14-1-000 on April 22, 2014, the Form FERC-65B, Notification of Waiver of Bloom Energy Companies, filed by Parent and certain of its subsidiaries with FERC in Docket No. PH14-9-000 on April 22, 2014, the Notice of Self Certification of Exempt Wholesale Generator Status filed by Diamond State Generation Partners with FERC in Docket No. EG12-44-000 on March 15, 2012, the Notice of Effectiveness of Exempt Wholesale Generator Status issued by FERC in Docket Nos. EG12-36-000, et al. on June 12, 2012, the Notice of Self Certification of Exempt Wholesale Generator Status filed by Yellow Jacket Energy, LLC, with FERC in Docket No. EG14-8-000 on October 18, 2013, and the Notice of Effectiveness of Exempt Wholesale Generator or Foreign Utility Company Status issued by FERC in Docket Nos.

EG14-1-000, et al. on January 9, 2014.

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We express no opinion with respect to your ability to collect attorneys’ fees and costs in an action involving the California Transaction Documents if you are not the prevailing party in that action (we call your attention to the effect of Section 1717 of the California Civil Code, which provides that where a contract permits one party thereto to recover attorneys’ fees, the prevailing party in any action to enforce any provision of the contract shall be entitled to recover its reasonable attorneys’ fees).

We express no opinion as to any provision of any of the Transaction Documents requiring written amendments or waivers of the Transaction Documents insofar as it suggests that oral or other modifications, amendments or waivers could not be effectively agreed upon by the parties or that the doctrine of promissory estoppel might not apply.

We express no opinion as to the effect of non compliance by you with any state or federal laws or regulations applicable to the transactions contemplated by the Transaction Documents because of the nature of your business.

We express no opinion as to any provision of the Transaction Documents insofar as they purport to grant a right of setoff in respect of any Opinion Party’s assets to any person other than a creditor of such Opinion Party.

We advise you that any provisions of the California Transaction Documents providing for exclusive or non- exclusive jurisdiction of the courts of the State of California and federal courts sitting in the State of California, may not be binding on the courts in the forum(s) selected or excluded.

We express no opinion as to (i) provisions that attempt to change or waive rules of evidence or fix the method or quantum of proof to be applied in litigation or similar proceedings or (ii) arbitration provisions that provide for judicial review of arbitration awards

Our opinion is subject to the following additional limitations and qualifications:

A. Enforceability of indemnity provisions, rights of contribution, exculpatory provisions and waivers in each New York Transaction Document and California Transaction Document, as applicable, may be limited on public policy or other grounds.

B. We express no opinion with respect to the effect of any provision of the Note Purchase Agreement imposing penalties or forfeitures.

We express no opinion regarding any provision of the Security Agreement or Pledge Agreement that purports to permit the Collateral Agent or any other person to sell or otherwise dispose of any Collateral subject thereto except in compliance with the Code, any other applicable federal and state laws and any agreement governing such Collateral, or to impose on the Collateral Agent standards of care of Collateral in the Collateral Agent’s possession other than as provided in Section 9-207 of the Uniform Commercial Code. We advise you that federal and state securities laws may limit the right to transfer or dispose of Collateral that may constitute securities under such laws.

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O’MELVENY & MYERS LLP

The law covered by this opinion is limited to the present federal law of the United States, the present law of the State of California, the State of New York and the Delaware LLC Act, DGCL and Article 9 of the Delaware Uniform Commercial Code (as in effect as set forth in the following paragraph). We express no opinion as to the laws of any other jurisdiction and no opinion regarding the statutes, administrative decisions, rules, regulations or requirements of any county, municipality, subdivision or local authority of any jurisdiction. We express no opinion concerning, or with respect to the effect of, (i) federal or state securities laws or regulations, except to the extent set forth in paragraphs 12 and 13, (ii) federal or state antitrust, unfair competition or trade practice laws or regulations, (iii) pension and employee benefit laws and regulations, (iv) compliance with fiduciary requirements, (v) federal or state environmental laws and regulations, (vi) federal, state or local land use, zoning or subdivision laws or regulations, (vii) federal or state laws with respect to public utilities, except, with respect to the opinions in paragraph 15, the California Public Utilities Code, and with respect to the opinions in paragraphs 16 and 17, the Federal Power Act and PUHCA, (viii) the Trading with the Enemy Act, as amended, the foreign assets control regulations of the United States Treasury Department, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) Act of 2001, as amended, Executive Order No. 13,224 of September 24, 2001, Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support Terrorism, as amended, and any enabling legislation, rules, regulations or executive orders relating thereto, (ix) insurance laws and regulations, (x) banking laws or regulations, except to the extent set forth in paragraph 14 or (xi) tax laws or regulations.

As you know, we are not admitted to practice law in the State of Delaware, and our opinions regarding the Delaware LLC Act, DGCL and Article 9 of the Delaware Uniform Commercial Code based solely on our review of the text of those statutes as set forth in the Delaware Laws Governing Business Entities Annotated Statutes and Rules, 2014 Spring Edition, published by LexisNexis, without regard to other State of Delaware statutory or judicial decisional law. As a result, we have not conducted the same degree of review (such as reviewing case law) that attorneys who regularly render opinions on Delaware law would conduct, and, accordingly, the opinions set forth herein as to the Delaware LLC Act, DGCL and Article 9 of the Delaware Uniform Commercial Code are not equivalent to opinions of Delaware counsel.

This opinion is furnished by us to you as counsel for the Opinion Parties and may not be relied upon by any other person without our express written permission, except that (i) your successors and each future holder of any Note under (and as permitted by) the Note Purchase Agreement may rely on this opinion as of the original date of this opinion subject to the limitations, qualifications, exceptions and assumptions set forth herein and (ii) a copy of this letter may be furnished by you to, but not relied upon by, (a) the National Association of Insurance Commissioners and any state, federal or provincial authority or independent banking or insurance board or body having regulatory jurisdiction over the Purchasers in the exercise of their regulatory due diligence, (b) your independent auditors and (c) any Institutional Investor (and its legal advisers) that is considering becoming an assignee of your interest in the Notes for information (but not reliance) purposes, provided that prior to such disclosure it is understood

10

O’MELVENY & MYERS LLP

and acknowledged by each such recipient that (x) it may not rely upon this letter by virtue of such disclosure, and (y) it is not permitted to disclose or quote this letter to any other person (except where required by law or regulation). This opinion is expressly limited to the matters set forth above, and we render no opinion, whether by implication or otherwise, as to any other matters. This letter speaks only as of the date hereof and we assume no obligation to update or supplement this opinion to reflect any facts or circumstances that arise after the date of this opinion and come to our attention, or any future changes in laws.

Very truly yours,

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O’MELVENY & MYERS LLP

SCHEDULE 1

OPINION ADDRESSEES

ING LIFE INSURANCE AND ANNUITY COMPANY

ING USA ANNUITY AND LIFE INSURANCE COMPANY

RELIASTAR LIFE INSURANCE COMPANY

SECURITY LIFE OF DENVER INSURANCE COMPANY

THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA THE GUARDIAN INSURANCE & ANNUITY COMPANY, INC. PAN-AMERICAN LIFE INSURANCE COMPANY MODERN WOODMEN OF AMERICA

THE VARIABLE ANNUITY LIFE INSURANCE COMPANY

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA UNITED GUARANTY RESIDENTIAL INSURANCE COMPANY

DEUTSCHE BANK TRUST COMPANY AMERICAS, as Collateral Agent under the Note Purchase

Agreement

BLOOM ENERGY CORPORATION

2014 ESA PROJECT COMPANY, LLC

2014 ESA HOLDCO, LLC

CLEAN TECHNOLOGIES 2014,

Exhibit 4.1.13(b)

FORM OF OPINION OF LOCAL COUNSEL

TO THE COMPANY

[See Execution Version]

EXHIBIT 4.1.13(b) TO NOTE PURCHASE AGREEMENT

	185 Asylum
	Street
	Hartford
	Connecticut
	06103
	tel 860.509.6500
PHILIP M. SMALL	fax 860.509.6501
direct dial: (860) 509-6575 fax: (860) 509-6675 psmall@brownrudnick.com

July 18, 2014

OPINION LETTER

To the Addressees Listed on Schedule E Attached Hereto

Re: Note Purchase Agreement Dated as of July 18, 2014, by and between 2014 ESA Project Company, LLC and the Addressees listed in Items 1-16 in Schedule E (the “Note Purchasers”) (the “Note Purchase Agreement”)

Ladies and Gentlemen:

We have acted as special Connecticut counsel to 2014 ESA Project Company, LLC, a Delaware limited liability company (the “2014 Project Company”) (the “Opinion Party”) in connection with the Note Purchase Agreement. This opinion letter, including the schedules hereto (the “Opinion Letter”), is being furnished to you pursuant to Section 4.1.13(b) of the Note Purchase Agreement.

We note that our representation of the Opinion Party has been limited to the Note Purchase Agreement and other discrete matters for which we have been engaged.

In connection with this Opinion Letter, we have examined the documents listed as Items 1 through 3 in Schedule A attached hereto (collectively, the “Documents”). The documents listed as Items 1 through 2 in Schedule A are referred to herein as the “Transaction Documents.” We have also reviewed the laws of the State of Connecticut listed in Schedule B (the “Covered Laws”); such list includes the Connecticut energy and utility laws that are customarily of concern to this and other law firms in Connecticut that render and review energy and utility law opinions for projects of this type. We have, without independent investigation, relied upon the representations and warranties of the various parties as to matters of objective fact contained in the Documents.

Except as specifically noted herein, we have not made any independent review or investigation of orders, judgments, rules and regulations (except the rules and regulations promulgated pursuant to the Covered Laws) decrees, contracts, or agreements by which the Opinion Party or its respective property may be bound, nor have we made any independent investigation as to the existence of actions, suits, investigations, or proceedings, if any, pending or threatened against the Opinion Party.

Brown Rudnick LLP     Boston  |   Dublin   |   Hartford   |   London   |   New York   |   Orange County   |   Providence   |   Washington DC

Letter to The Addressees Listed in Schedule E July 18, 2014 Page 2 of 4

With your concurrence, the opinions hereinafter expressed, whether or not qualified by language such as “to our knowledge,” are based solely upon (1) our review of the Documents; (2) such review of published sources of law as we have deemed necessary in our professional judgment; and (3) the conscious knowledge of those attorneys with the firm who have given substantive legal representation to the Opinion Party.

This firm, in rendering legal opinions, customarily makes certain assumptions which are described in Schedule D attached hereto. In the course of our representation of the Opinion Party, nothing has come to our attention which causes us to believe that reliance upon any of those assumptions is inappropriate, and thus with your concurrence, the opinions hereinafter expressed are based upon those assumptions.

Our opinion in numbered paragraph 1 is limited to the laws of the State of Connecticut included in the Covered Laws.

Our opinions hereafter expressed are further limited to transactions that occur in the State of Connecticut pursuant to the Transaction Documents, or that result from the construction, operation, maintenance and use of the Systems in the State of Connecticut pursuant to the Transaction Documents.

We express no legal opinion upon any matter other than that explicitly addressed in numbered paragraph 1 below, and our express opinions therein contained shall not be interpreted to be implied opinions upon any other matter. For example, without limiting the generality of the foregoing, unless expressly stated herein, we are rendering no opinion upon the following legal issues, laws or provisions of the Transaction Documents: (a) Federal securities laws and regulations administered by the Securities and Exchange Commission, state “Blue Sky” laws and regulations, and laws and regulations relating to commodity (and other) futures and indices and other similar instruments; (b) Federal Reserve Board margin regulations; (c) pension, labor and employee benefit laws and regulations (e.g., ERISA and the Fair Labor Standards Act); (d) Federal and state antitrust and unfair competition laws and regulations; (e) Federal and state laws and regulations concerning filing and notice requirements (e.g., Hart-Scott-Rodino and Exon-Florio); (f) the Equal Credit Opportunity Act; (g) compliance with fiduciary duty requirements; (h) the ordinances, bylaws, administrative decisions, rules and regulations of municipalities, counties and special political subdivisions (e.g., water agencies, port and transportation authorities, joint power districts and turnpike authorities); (i) the creation, attachment, perfection or priority of any lien on any real or personal property; (j) fraudulent transfer and fraudulent conveyance laws; (k) Federal, state and local environmental laws, land use and subdivision laws and regulations; (1) Federal and state tax laws and regulations (including FIRPTA); (m) Federal patent, copyright and trademark, state trademark, and other Federal and state intellectual property laws and regulations; (n) Federal and state racketeering laws and regulations (e.g., RICO); (o) Federal and state health and safety laws and regulations (e.g., OSHA); (p) Federal and state laws, regulations and policies concerning (i) national and local emergency; (ii) homeland security or terrorism; (iii) judicial deference to acts of sovereign states; and (iv) criminal and civil forfeiture laws; (q) other Federal and state statutes of general application to the extent they provide for criminal prosecution (e.g., mail fraud and wire fraud statutes); (r) the

Letter to The Addressees Listed in Schedule E July 18, 2014 Page 3 of 4

validity or enforceability under certain circumstances of any provisions which waive statutory rights to receive notice or to be allowed to cure, reinstate or redeem in the event of default; (s) state, county and local road use, building, or construction matters; and (t) permits issued by municipalities under state law.

In rendering this Opinion Letter, we are not passing or opining upon and do not assume any responsibility for the accuracy, sufficiency, completeness or fairness of any statements, representations, warranties, descriptions, information or financial data supplied to the parties with respect to the Documents and we advise you that we have not independently verified the accuracy, sufficiency, completeness or fairness of any of the foregoing.

For purposes of this Opinion Letter, we have assumed, without any investigation or inquiry, that (a) each party to the Documents is validly existing and in good standing in the state of its creation and is authorized to do business in and is in good standing in the State of Connecticut; (b) each party to the Documents has full power and authority to execute, deliver and perform its obligations under the Documents; (c) each party to the Documents has been duly authorized to execute and deliver the Documents and all actions or approvals necessary to bind each such party under the Documents have been taken or obtained; (d) the Documents have been duly executed and delivered by all parties thereto; (e) each of the Documents is valid, binding and enforceable in accordance with its terms; (f) the Opinion Party does not own, lease, maintain, operate, manage or control poles, wires, conduits or other fixtures in, along, over or crossing any public highway, public street or public right-of-way for the transmission or distribution of electricity, for the sale of electricity or for electric distribution-related services; and (g) the Opinion Party does not own, lease, maintain, operate, manage or control mains, pipes or other fixtures, in public highways or streets, for the transmission or distribution of gas for sale for heat or power within this state and is not engaged in the manufacture of gas to be so transmitted or distributed for such purpose.

Based upon and subject to the foregoing, we are of the opinion that:

1. The Opinion Party is not, solely by virtue of entering into and performing its obligations under the Transaction Documents to which it is a party, subject to or not exempt from regulation as a “public service company”, an “electric distribution company” or an “electric company” as such terms are defined, respectively, in Section 16-1 of the Connecticut General Statutes as amended by Connecticut Public Act 13-298, or a “utility” as defined in Section 16-234 of the Connecticut General Statutes, as amended by Connecticut Public Act 13-298.

This Opinion Letter is rendered to you for your benefit in connection with the Note Purchase Agreement described in the first paragraph of this Opinion Letter and may not be delivered to, or relied upon by any other party without our prior written consent, except that copies of this Opinion Letter may be furnished to independent auditors and legal counsel in connection with their providing advice regarding such Note Purchase Agreement and to appropriate regulatory authorities or pursuant to an order or legal process of any relevant governmental authority (including, without limitation, the National Association of Insurance

Letter to The Addressees Listed in Schedule E July 18, 2014 Page 4 of 4

Commissioners) and to your permitted successors and assigns and prospective successors and assigns. We disclaim any obligation to update this Opinion Letter for events occurring or coming to our attention after the date hereof. We hereby consent to reliance hereon by your successors or assigns pursuant to the Transaction Documents, on the condition and understanding that (i) this letter speaks only as of the date hereof, (ii) we have no responsibility or obligation to consider the applicability or correctness of this letter to anyone other than its addressees, or to take into account changes in law, facts or any other developments of which we may later become aware, and (iii) any such reliance by a successor or assign must be actual and reasonable under the circumstances existing at the time of assignment, including any changes in law, facts or any other developments known to or reasonably knowable by the successor or assign at such time.

Very truly yours,

BROWN RUDNICK LLP

PMS/TJR/APS    

SCHEDULE A

LIST OF DOCUMENTS

1) Energy Server Use and License Agreement, dated as of December 31, 2013, by and between Home Depot U.S.A., Inc. and 2014 Project Company (the “Energy Server Use Agreement”);

2) Note Purchase Agreement, dated as of July 18, 2014, by and between 2014 Project Company and the Note Purchasers (the “Note Purchase Agreement”);

3) Certificate of 2014 Project Company, attached hereto as Schedule C.

A-1

SCHEDULE B

COVERED LAWS

(1) Public Service Companies, Connecticut General Statutes, Title 16.

B-1

SCHEDULE C

COMPANY CERTIFICATE

WHEREAS, Brown Rudnick LLP has been asked to render a legal opinion regarding certain Connecticut law issues (the “Opinion”) in relation to a Note Purchase Agreement dated as of July 18, 2014, by and between 2014 ESA Project Company, LLC (the “Company”) and the Note Purchasers listed in Schedule A to the Note Purchase Agreement (“Note Purchasers”) (the “Note Purchase Agreement”) associated with the financing of certain Connecticut fuel cell systems (“Systems”). The Systems are listed in Exhibit A to the Energy Server Use and License Agreement (“ESUA”) dated as of December 31, 2013 by and between the Company and Home Depot U.S.A. Such Systems may be constructed and owned by the Company. Applying the meanings to capitalized terms used herein and as are set forth in the Opinion, I, W.E. Brockenborough, President of the Company, hereby certify on behalf of the Company, that:

(1) The Company does not own, lease, maintain, operate, manage or control electric poles, wires, conduits or other fixtures in, along, over or crossing any public highway, public street or public right-of-way in Connecticut;

(2) The Company does not provide electric energy, electric capacity or electric generation-related services to end-use customers in Connecticut using the transmission or distribution facilities of an electric distribution company and does not gather together electric customers for the purpose of negotiating the purchase of electric generation services from an electric supplier;

(3) The Company does not own, lease, maintain, operate, manage or control any gas mains, pipes or other fixtures in public highways or streets in Connecticut, and is not engaged in the manufacture of gas;

(4) The Company does not own, lease, maintain, operate, manage or control any equipment or facilities in Connecticut for the provision of telecommunications services, community antenna cable services, noncable communications services or video programming services.

(5) The Company does not own, lease, maintain, operate, manage or control any equipment or facilities for the provision of water to consumers and does not own, lease, maintain, operate, manage or control any sewage disposal facilities for general use in any Connecticut municipality that discharge treated effluent to the waters of Connecticut;

(6) The Company does not own, lease, maintain, operate, manage or control any equipment or facilities in Connecticut for transportation, transmission or distribution of thermal energy or petroleum products.

This Certificate is being provided to Brown Rudnick LLP in connection with the financing of the Systems, and may be relied upon as to factual matters by all parties to the Note Purchase Agreement for that purpose.

C-1

2014 ESA PROJECT COMPANY, LLC
By:	/s/ W.E. Brockenborough
	Name: W.E. Brockenborough
	Its: Vice President
	Date: 7/18/2014

[Signature Page to Brown Rudnick Opinion Officer’s Certificate]

C-2

SCHEDULE D

BROWN RUDNICK LLP STANDARD ASSUMPTIONS

In rendering legal opinions in third party transactions, Brown Rudnick LLP makes certain customary assumptions described below:

1. Each natural person executing the Documents has sufficient legal capacity to enter into such Documents.

2. The Opinion Party and each other person that is a party to the Documents holds requisite title and rights to any property involved in the Documents and purported to be owned by such person or party.

3. Except for legal requirements relating to status which we, in the exercise of customary professional diligence, would reasonably recognize as being generally and customarily applicable directly to loan transactions, each party to the Documents has complied with all legal requirements pertaining to its status as such status relates to its rights to enforce the Documents and has satisfied all legal requirements necessary to make the Documents enforceable against such party.

4. Each Document is accurate, complete and authentic, each original is authentic, each copy conforms to an authentic original and all signatures are genuine.

5. All official public records are accurate, complete and properly indexed and filed and all statutes, judicial and administrative decisions and agency regulations are available in a format that makes legal research reasonably feasible.

6. There has not been any mutual mistake of fact or misunderstanding, fraud, duress, or undue influence by or among any of the parties to the Documents.

7. The conduct of the parties to the Documents has complied in the past and will comply in the future with any requirement of good faith, fair dealing and conscionability.

8. The Opinion Party and each other person that is party to the Documents have acted in good faith and without notice of any defense against the enforcement of any rights created by, or adverse claim to any property or security interest transferred or created as part of the Documents.

9. There are no agreements or understandings among the parties to or bound by the Documents, written or oral, and there is no usage of trade or course of prior dealing among such parties, that would define, modify, waive, or qualify the terms of the Documents.

10. All parties to or bound by the Documents will refrain from taking any action that is forbidden by the terms and conditions of the Documents.

D-1

11. No agreement, franchise, or governmental permit, license, or approval which has been collaterally assigned to the Opinion Party in the Documents, is subject to any restriction upon assignment or transfer which has not been satisfied.

12. Each party to the Documents has received the consideration recited in the Documents and that such consideration is adequate in each instance.

D-2

SCHEDULE E

OPINION ADDRESSEES: NOTE PURCHASERS AND COLLATERAL AGENT(S)

1. ING LIFE INSURANCE AND ANNUITY COMPANY

2. ING USA ANNUITY AND LIFE INSURANCE COMPANY

3. RELIASTAR LIFE INSURANCE COMPANY

4. SECURITY LIFE OF DENVER INSURANCE COMPANY

5. THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA

6. THE GUARDIAN INSURANCE & ANNUITY COMPANY, INC.

7. PAN-AMERICAN LIFE INSURANCE COMPANY

8. MODERN WOODMEN OF AMERICA

9. THE VARIABLE ANNUITY LIFE INSURANCE COMPANY

10. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA

11. UNITED GUARANTY RESIDENTIAL INSURANCE COMPANY

12. DEUTSCHE BANK TRUST COMPANY AMERICAS, as Collateral Agent under the Note Purchase Agreement

13. BLOOM ENERGY CORPORATION

14. 2014 ESA PROJECT COMPANY, LLC

15. 2014 ESA HOLDCO, LLC

16. CLEAN TECHNOLOGIES 2014, LLC.

E-1

Exhibit 4.1.13(c)

FORM OF OPINION OF DELAWARE COUNSEL

TO THE COMPANY

[See Execution Version]

EXHIBIT 4.1.13(c) TO NOTE PURCHASE AGREEMENT

July 18,2014

To Each of the Persons

Listed on Schedule A

Attached Hereto

Re:     2014 ESA Project Company, LLC

Ladies and Gentlemen:

We have acted as special Delaware counsel to 2014 ESA Project Company, LLC, a Delaware limited liability company (the “Company”). This opinion letter is being furnished to you at the request of the Company. Capitalized terms used herein and not otherwise defined are used as defined in the LLC Agreement (as defined below), except that reference herein to any instrument shall mean such instrument as in effect on the date hereof.

For purposes of giving the opinions set forth below, our examination of documents has been limited to the examination of originals, forms or copies furnished to us of the following documents:

(a) the Limited Liability Company Agreement of 2014 ESA Project Company, LLC, dated as of November 12, 2013, entered into by 2014 ESA Holdco, LLC, as the sole Member;

(b) the Amended and Restated Limited Liability Company Agreement of 2014 ESA Project Company, LLC dated as of the date hereof (the “LLC Agreement”) entered into by 2014 ESA Holdco, LLC (the “Member”);

(c) a Certificate of Good Standing for the Company, dated a recent date, issued by the Secretary of State of the State of Delaware (the “Secretary of State”);

(d) a copy, certified by the Secretary of State, of the Certificate of Formation of 2014 ESA Project Company, LLC filed with the Secretary of State on November 12, 2013 (the “LLC Certificate”);

(e) the Certificate of the Managing Member, dated the date hereof (the “Certificate”), stating, among other things, that the LLC Agreement and the LLC Certificate are in effect and that the LLC Agreement constitutes the entire “limited liability company agreement” (as defined in Section 18-101(7) of the Delaware Limited Liability Company Act, 6 Del. C. Section 18-101, et seq. ( the “LLC Act”)) as to the affairs of the Company and the conduct of its business; and

To Each of the Persons Listed in Schedule A Hereto July 18, 2014 Page 2

(f) the Energy Server Use and License Agreement, dated as of December 31, 2013 (the “Home Depot PPA”), by and between the Company, as Supplier, and Home Depot U.S.A., Inc., as Customer.

For purposes of this opinion, we have not reviewed any documents other than the documents listed in paragraphs (a) through (f) above (collectively, the “Documents”). In particular, we have not reviewed any document (other than the Documents) that is referred to in or incorporated by reference into any Document. We have assumed that there exists no provision in any document that we have not reviewed that is inconsistent with (i) the opinions stated herein, or (ii) with any provision of the Documents. We have conducted no independent factual investigation of our own but rather have relied solely upon the Documents, the statements and information set forth therein and the additional matters recited or assumed herein, all of which we have assumed to be true, complete and accurate in all material respects and none of which we have independently investigated or verified.

Based upon the foregoing, and upon our examination of such questions of law and statutes of the State of Delaware as we have considered necessary or appropriate, and subject to the assumptions, qualifications, limitations and exceptions set forth herein, we are of the opinion that:

1. The Company has been duly formed and is validly existing and in good standing as a limited liability company under the LLC Act.

2. The LLC Agreement constitutes legal, valid and binding obligations of the Members and the Company, enforceable against the Members and the Company in accordance with the terms thereof.

3. The Company has all necessary limited liability company power and authority under the laws of the State of Delaware to own its properties and conduct its business as set forth in the LLC Agreement.

4. Neither the execution, delivery and performance by the Company of the Home Depot PPA, nor the consummation by the Company of the transactions contemplated thereby, nor the compliance by the Company with the terms thereof, will conflict with or result in a breach of, or constitute a default under the provisions of the LLC Certificate or the LLC Agreement, or violate any applicable law, rule or regulation of the State of Delaware applicable to the Company.

To Each of the Persons Listed in Schedule A Hereto July 18, 2014 Page 3

5. No authorization, consent or approval of, notice to or filing with, or the taking of any other action in respect of, any governmental authority or agency of the State of Delaware is required for the execution and delivery of and the performance of the Company’s obligations under the Home Depot PPA, other than the filing of the LLC Certificate with the Secretary of State (which has been duly filed).

6. The Home Depot PPA constitutes the legal, valid and binding obligation of the Company enforceable against the Company in accordance with its terms.

The foregoing opinions are subject to the following additional assumptions, exceptions and qualifications:

A. The opinions in this letter are limited to the laws of the State of Delaware as in effect on the date hereof (other than tax laws, securities laws, utility laws and rules, regulations, orders, and decisions relating thereto), and we have not considered and express no opinion on the effect of, concerning matters involving, or otherwise with respect to any other laws of any jurisdiction (including, without limitation, federal laws of the United States of America including bankruptcy laws), or rules, regulations, orders, or decisions relating thereto.

B. We have assumed: (i) the due incorporation or due formation, as the case may be, due organization, and valid existence in good standing under the laws of all relevant jurisdictions of each of the parties (other than the Company) and each of the signatories (other than natural persons) to the documents reviewed by us, (ii) the due authorization, execution, and delivery (and, as applicable, filing) of each of such documents by each of the parties thereto (other than the Company) and each of the signatories thereto, (iii) that each of such parties (other than the Company) and signatories had and has the power and authority to execute, deliver, and perform (and, as applicable, file) each of such documents, (iv) that none of such parties and signatories (other than natural persons) has dissolved and (v) the legal capacity of all relevant natural persons.

C. We have assumed that: (i) all signatures on all documents reviewed by us are genuine, (ii) all documents furnished to us as originals are authentic, (iii) all documents furnished to us as copies or specimens conform to the originals thereof, (iv) all documents furnished to us in final draft or final or execution form have not been and will not be terminated, rescinded, altered, or amended, are in full force and effect, and conform to the final, executed originals of such documents, and (v) each document reviewed by us constitutes the entire agreement among the parties thereto with respect to the subject matter thereof.

D. The foregoing opinions are subject to the effect upon the Documents of (i) bankruptcy, insolvency, moratorium, reorganization, receivership, fraudulent conveyance, preferential transfer, liquidation, and similar laws relating to or affecting rights and remedies of creditors generally, (ii) principles of equity, including, without limitation, applicable law relating to fiduciary duties (regardless of whether considered and applied in a proceeding in equity or at law), (iii) standards of good faith, fair dealing, course of dealing, course of performance, materiality, and reasonableness that may be applied by a court, considerations of public policy, and the exercise of judicial discretion, and (iv) federal or state securities law and public policy considerations relating to indemnification or contribution.

To Each of the Persons Listed in Schedule A Hereto July 18, 2014 Page 4

This opinion letter may be relied upon by you and your respective successors and permitted assigns in connection with the matters set forth herein, subject to the understanding that (i) the opinions rendered herein are given on the date hereof and such opinions are rendered only with respect to laws, rules and regulations in effect as of such date and (ii) we assume no obligation to advise you or any other Person of any changes to the foregoing subsequent to the delivery of this opinion letter. Without our prior written consent, this opinion letter may not be relied upon by or furnished to any other person or entity (other than your respective successors and permitted assigns) for any purpose; provided, that this opinion may be furnished to your accountants, attorneys, and to any governmental or regulatory body (including, without limitation, the National Association of Insurance Commissioners) to the extent required by applicable law or regulation.

Very truly yours,

LCL/pab

SCHEDULE A

ING LIFE INSURANCE AND ANNUITY COMPANY

ING USA ANNUITY AND LIFE INSURANCE COMPANY

RELIASTAR LIFE INSURANCE COMPANY

SECURITY LIFE OF DENVER INSURANCE COMPANY

THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA

THE GUARDIAN INSURANCE & ANNUITY COMPANY, INC.

PAN-AMERICAN LIFE INSURANCE COMPANY

MODERN WOODMEN OF AMERICA

THE VARIABLE ANNUITY LIFE INSURANCE COMPANY

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA

UNITED GUARANTY RESIDENTIAL INSURANCE COMPANY

DEUTSCHE BANK TRUST COMPANY AMERICAS, as Collateral Agent under the Note Purchase Agreement

BLOOM ENERGY CORPORATION

2014 ESA PROJECT COMPANY, LLC

2014 ESA HOLDCO, LLC

CLEAN TECHNOLOGIES 2014, LLC

Exhibit 4.1.13(d)

FORM OF OPINION OF SPECIAL COUNSEL

TO THE PURCHASERS

[See Execution Version]

EXHIBIT 4.1.13(d) TO NOTE PURCHASE AGREEMENT

EXHIBIT 4.1.14

FORM OF INSURANCE CONSULTANT CERTIFICATE

Date: July [ 🌑 ], 2014

[Purchasers]

Re: 2014 ESA Project Company, LLC – Insurance Consultant’s Certificate

Ladies and Gentlemen:

The undersigned, a duly authorized representative of Moore-McNeil, LLC, a Tennessee limited liability company (the “Insurance Consultant”), hereby delivers this Insurance Consultant’s Certificate to you in accordance with Section 4.1.14 of that certain Note Purchase Agreement, dated as of July 18, 2014 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Note Purchase Agreement”), among 2014 ESA Project Company, LLC, a Delaware limited liability company (the “Company”) and the Purchasers party thereto. Capitalized terms used herein and not otherwise defined have the meanings provided in the Note Purchase Agreement.

The Insurance Consultant hereby makes the following statements in favor of the Secured Parties with respect to the Company and the Project as of the date hereof:

1. The Insurance Consultant acknowledges that pursuant to the Note Purchase Agreement, the Company is issuing Notes in connection with, among other things, the construction, operation and development of the Project and the Holders are relying on this Insurance Consultant’s Certificate and the Insurance Consultant’s report dated [ 🌑 ], 2014 (the “Insurance Consultant’s Report”), with respect to the Project.

2. Attached hereto as Annex I is an accurate and complete copy of the Insurance Consultant’s Report.

3. The Insurance Consultant’s Report was prepared in good faith by the Insurance Consultant pursuant to the scope of services in accordance with generally accepted consulting practices.

4. Nothing has come to the attention of the Insurance Consultant that causes the Insurance Consultant to believe that the Insurance Consultant’s Report, as of the date hereof, contains any untrue statement of material fact or omits to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading.

5. The Insurance Consultant hereby confirms, as of the date hereof, that the evaluations, conclusions and recommendations contained in the Insurance Consultant’s Report are accurate and complete in all material respects.

EXHIBIT 4.1.14 TO NOTE PURCHASE AGREEMENT

6. In connection with the preparation of the Insurance Consultant’s Report, personnel of the Insurance Consultant have participated in meetings or telephonic discussions with representatives of the Company and its Affiliates, the Company’s insurance broker, Collateral Agent, the Purchasers, counsel to the Company, counsel to Collateral Agent, and counsel to the Purchasers in respect of the Project.

7. Upon delivery of the certificate from the Company’s insurance broker and the original certificates of insurance, copies of which are attached hereto as Annex II, the Company will have provided satisfactory evidence of compliance with the terms and conditions of Sections 4.1.14, 4.1.15, 5.21 and 9.2 and Schedule 9.2 of the Note Purchase Agreement.

The undersigned, on behalf of the Insurance Consultant, hereby confirms that the Secured Parties shall be permitted to rely on the Insurance Consultant’s Report as if the Insurance Consultant’s Report was specifically addressed to each of them.

[Signature page follows]

EXHIBIT 4.1.14 TO NOTE PURCHASE AGREEMENT

IN WITNESS WHEREOF, the Insurance Consultant has caused this Insurance Consultant’s Certificate to be duly executed and delivered by an authorized officer of the Insurance Consultant as of the date first above written.

MOORE-MCNEIL, LLC,

a Tennessee limited liability company

By:

Name:

Title:

EXHIBIT 4.1.14 TO NOTE PURCHASE AGREEMENT

Annex I

to Insurance Consultant’s Certificate

Insurance Consultant’s Report

[See attached]

EXHIBIT 4.1.14 TO NOTE PURCHASE AGREEMENT

EXHIBIT 4.1.16

FORM OF INDEPENDENT ENGINEER CERTIFICATE

[LETTERHEAD OF INDEPENDENT ENGINEER]

[Date]

2014 ESA PROJECT COMPANY, LLC

1252 Orleans Drive

Sunnyvale, CA 94089

Attention: Bill Brockenborough

Telephone: (408) 543-1772

Fax: (408) 543-1501

Subject:         Independent Engineer’s Report

2014 ESA Project Company, LLC

Ladies and Gentlemen:

This letter is provided in accordance with Section 4.1.16 of that certain Note Purchase Agreement, dated as of July 18, 2014 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Note Purchase Agreement”), between 2014 ESA Project Company, LLC, a Delaware limited liability company (the “Company”) and the Secured Parties party thereto (the “Secured Parties”).

Leidos Engineering, LLC (“Leidos”) has been retained by Bloom Energy Corporation (“Bloom”) to act as the Independent Engineer under the Note Purchase Agreement and has prepared an Independent Engineer’s Report dated [ 🌑 ], 2014 (the “Report”), a copy of which is attached hereto.

The Report was prepared pursuant to the scope of services under our Professional Services Agreement, dated as of October 17, 2013 (the “Services Agreement”) with Bloom and those services were provided in accordance with generally accepted engineering practices. On or about July         , 2014, the Collateral Agent, on behalf of the Secured Parties, entered into Use of Work Products Agreement with Leidos outlining the terms and conditions of their use of the Report.

In connection with the preparation of the Report, personnel of Leidos have participated in meetings or telephone discussions with representatives of the Company and its affiliates, the Collateral Agent, counsel to the Company, and counsel to the Secured Parties in respect of the Project (as defined in the Report).

This letter and attached Report are solely for the information of, and assistance to, the Collateral Agent and Secured Parties in conducting and documenting their investigation of the matters covered by the Report in connection with the Project, and they are not to be used, circulated, quoted, or otherwise referred to for any purpose, nor are they to be referred to in whole or in part in any other document, except that reference may be made to them in the above- mentioned Note Purchase Agreement and in any list of closing documents pertaining to the Project.

EXHIBIT 4.1.16 TO NOTE PURCHASE AGREEMENT

Leidos disclaims any obligation to update this letter and the attached Report. This letter and the attached Report are not intended to, and may not, be construed to benefit any party other than the Collateral Agent and the Secured Parties.

Very truly yours,

LEIDOS ENGINEERING, LLC

Signature

Title

EXHIBIT 4.1.16 TO NOTE PURCHASE AGREEMENT

EXHIBIT B

REPORT

EXHIBIT 4.1.16 TO NOTE PURCHASE AGREEMENT

EXHIBIT 4.1.29(a)

FORM OF NO.1 DIRECT AGREEMENT

FORM OF CONSENT AND AGREEMENT

This CONSENT AND AGREEMENT, dated as of [    ] (this “Consent”), is by and among [            ], a [            ] (“Consenting Party”), 2014 ESA PROJECT COMPANY, LLC, a Delaware limited liability company (“Assignor”) and Deutsche Bank Trust Company Americas (as collateral agent for the Purchasers (as defined below), the “Collateral Agent ” and together with the Purchasers, the “Secured Parties”). Capitalized terms used and not otherwise defined herein have the meanings given such terms in the applicable Assigned Agreement (as defined below).

RECITALS

WHEREAS, Consenting Party, 2014 ESA Holdco, LLC, a Delaware limited liability company, and Assignor have entered into that certain [                ], dated as of [    ] (as amended, amended and restated, modified or otherwise supplemented from time to time in accordance with the terms thereof, the “Assigned Agreement”);

WHEREAS, Assignor has entered into that certain Note Purchase Agreement with the note purchasers that are parties thereto (the “Purchasers”), dated as of July 18, 2014 (as amended, amended and restated, modified or otherwise supplemented from time to time, the “Note Purchase Agreement”), pursuant to which Assignor issued Notes (as defined in the Note Purchase Agreement) to the Purchasers, the proceeds of which have been and will be used, among other things, to finance a portion of the cost of fuel cell equipment to be purchased from Consenting Party and for certain other related purposes;

WHEREAS, as security for all of its obligations under the Note Purchase Agreement and related documents, Assignor has assigned all of its right, title and interest in, to and under, and granted a first-priority security interest in, the Assigned Agreement to the Collateral Agent for the benefit of the Secured Parties (the “Assigned Interest”) pursuant to that certain Security Agreement, dated as of the date of the Note Purchase Agreement, between Assignor and the Collateral Agent (as amended, amended and restated, modified or otherwise supplemented from time to time, the “Security Agreement”); and

WHEREAS, it is a requirement under the Note Purchase Agreement that Consenting Party and the other parties hereto shall have executed this Consent;

NOW, THEREFORE, in consideration of the foregoing and the mutual agreements contained herein, and for other good and valuable consideration, the receipt of which is hereby acknowledged, and intending to be legally bound, Consenting Party hereby agrees as follows:

EXHIBIT 4.1.29(a) TO NOTE PURCHASE AGREEMENT

Section 1. Consent to Assignment, Etc.

(a) Consent to Assignment. Consenting Party (i) consents in all respects to the pledge and assignment to the Collateral Agent of all of Assignor’s right, title and interest in, to and under the Assigned Agreement pursuant to the Security Agreement and (ii) acknowledges the right, but not the obligation, of the Collateral Agent or Collateral Agent’s designee, in the exercise of Collateral Agent’s rights and remedies under the Security Agreement, to make all demands, give all notices, take all actions and exercise all rights of Assignor in accordance with the Assigned Agreement, and agrees that in such event Consenting Party will continue to perform its obligations under the Assigned Agreement.

(b) Substitute Owner. Consenting Party agrees that, if the Collateral Agent notifies Consenting Party that an event of default under the Note Purchase Agreement has occurred and is continuing and that the Purchasers have exercised their rights to (i) have themselves or their designee (including the Collateral Agent) substituted for Assignor under the Assigned Agreement or (ii) sell, assign, transfer or otherwise dispose of the Assigned Agreement or Assigned Interest to a third person, then the Purchasers, the Collateral Agent, Collateral Agent’s designee or such third person (in any case, “Substitute Owner”) will be substituted for Assignor under such Assigned Agreement and that, in such event, Consenting Party will recognize Substitute Owner as its counterparty under such Assigned Agreement and will continue to perform its obligations under such Assigned Agreement in favor of Substitute Owner; provided, that the Substitute Owner shall be required to cure any then-existing payment or performance defaults by Assignor under such Assigned Agreement (other than (x) any then-existing performance defaults which by their nature are not reasonably capable of being cured by the Substitute Owner and (y) such defaults arising from the act or omission of the Consenting Party). If Collateral Agent or an entity controlled by Collateral Agent or one or more of the Secured Parties is the initial Substitute Owner, such initial Substitute Owner shall have the right to assign all of its interest in such Assigned Agreement to any subsequent Substitute Owner, provided such subsequent Substitute Owner has assumed in writing all of the initial Substitute Owner’s obligations under such Assigned Agreement. Upon such assignment, the initial Substitute Owner shall be released from any further liability under the Assigned Agreement.

(c) Right to Cure. Consenting Party agrees that in the event of a default by Assignor in the performance of its obligations under the Assigned Agreement, or upon the occurrence or non-occurrence of any event or condition under the Assigned Agreement that would immediately or with the passage of any applicable grace period or the giving of notice, or both, enable Consenting Party to terminate or suspend its obligations or exercise any other right or remedy under such Assigned Agreement or under applicable law (hereinafter a “Default”), Consenting Party will continue to perform its obligations under such Assigned Agreement and will not exercise any such right or remedy until it first gives prompt written notice of such Default to the Collateral Agent and affords the Collateral Agent or Collateral Agent’s designee (a) a period of at least forty-five (45) days from receipt of such notice to cure such Default if such Default is the failure to pay amounts to Consenting Party which are due and payable under such

EXHIBIT 4.1.29(a) TO NOTE PURCHASE AGREEMENT

Assigned Agreement or (b) with respect to any other Default, a reasonable opportunity, but no more than ninety (90) days from receipt of such notice, to cure such Default (provided that during such cure period Collateral Agent or Assignor continues to diligently attempt to cure such Default), such cure periods commencing from the later to occur of (A) Collateral Agent’s receipt of such notice and (B) the expiration of any notice periods or cure periods provided for in such Assigned Agreement; provided, that if any such party is prohibited from curing any such Default by any process, stay or injunction issued by any governmental authority or pursuant to any bankruptcy or insolvency proceeding involving Assignor, then the time periods specified in this Section 1(c) for curing a Default will be extended until the earlier of (i) the end of such prohibition and (ii) the period mutually agreed in a Replacement Agreement entered into pursuant to Section 1(e).

(d) No Termination, Assignment or Material Amendments. Consenting Party will not (i) cancel or terminate the Assigned Agreement or suspend performance of its services thereunder, except as provided in such Assigned Agreement or by operation of law and, in any event, except as in accordance with Section 1(c) of this Consent, (ii) without the prior written consent of the Collateral Agent, enter into any consensual cancellation or termination of the Assigned Agreement or resign, assign or otherwise transfer any of its right, title and interest thereunder or consent to any such assignment or transfer by Assignor, except as provided in such Assigned Agreement or by operation of law and, in any event, except as in accordance with Section 1(c) of this Consent or (iii) amend, supplement or modify the Assigned Agreement in any material respect without the prior written consent of Collateral Agent (such consent not to be unreasonably withheld or delayed), except as provided in such Assigned Agreement and the Note Purchase Agreement.

(e) Replacement Agreement. In the event that the Assigned Agreement is rejected or terminated as a result of any bankruptcy or insolvency proceeding affecting Assignor, Consenting Party will, at the option of the Collateral Agent, enter into a new agreement with the Collateral Agent or a designated entity controlled by Collateral Agent or one or more of the Secured Parties, having identical terms as such Assigned Agreement (subject to any conforming changes necessitated by the substitution of parties and other changes as the parties may mutually agree, including, for the avoidance of doubt, the Collateral Agent’s (or such designee’s) obligation to cure then-existing defaults and pay any then-existing amounts owed to the Consenting Party in conformance with Section 1(c), a “Replacement Agreement”). Collateral Agent (or such designee, as the case may be) shall have the right to assign all of its interest in any Replacement Agreement to any person, provided such assignee has assumed in writing all of Collateral Agent’s or such designee’s obligations under the Assigned Agreement. Upon an assignment as discussed in the immediately preceding sentence, Collateral Agent or such designee shall be released from any further liability under the Assigned Agreement.

(f) No Liability. Consenting Party acknowledges and agrees that none of the Purchasers, the Collateral Agent or Collateral Agent’s designee will have any liability or obligation under the Assigned Agreement as a result of this Consent, the Security Agreement or otherwise, nor will the Purchasers, the Collateral Agent or Collateral

EXHIBIT 4.1.29(a) TO NOTE PURCHASE AGREEMENT

Agent’s designee be obligated or required to (i) perform any of Assignor’s obligations under the Assigned Agreement, except, in the case of the Purchasers, the Collateral Agent or Collateral Agent’s designee, during any period in which the Purchasers, the Collateral Agent or Collateral Agent’s designee is Substitute Owner pursuant to Section 1(b), in which case (A) the obligations of such Substitute Owner will be no more than that of Assignor under such Assigned Agreement, (B) such Substitute Owner will have no personal liability to Consenting Party for the performance of such obligations and (C) the sole recourse of Consenting Party will be to such Substitute Owner’s right, title and interest in the Project, or (ii) take any action to collect or enforce any claim for payment assigned under the Security Agreement.

(g) Performance under Assigned Agreements. Consenting Party agrees to perform and comply with all material terms and provisions of the Assigned Agreement to be performed or complied with by it and maintain the Assigned Agreement in full force and effect in accordance with its terms.

(h) Delivery of Notices. Consenting Party agrees to deliver to the Collateral Agent, concurrently with the delivery thereof to Assignor, a copy of each notice, request or demand given by Consenting Party pursuant to the Assigned Agreement.

Section 2. Payments under the Assigned Agreements. Consenting Party will pay all amounts payable by it under the Assigned Agreement, if any, in the manner required by, and subject to the terms and conditions of, such Assigned Agreement directly into the account specified on Exhibit A hereto, or to such other person or account as is specified from time to time by the Collateral Agent to Consenting Party in writing and upon five business days’ prior notice.

Section 3. Representations and Warranties of Consenting Party. Consenting Party makes the following representations and warranties as of the date of this Consent, which will survive the execution and delivery of this Consent and the Assigned Agreement and the consummation of the transactions contemplated hereby and thereby:

(a) Organization; Power and Authority. Consenting Party is a [            ] duly organized, validly existing and in good standing under the laws of [            ], and is duly qualified, authorized to do business and in good standing in every jurisdiction in which it owns or leases real property or in which the nature of its business requires it to be so qualified, and has all requisite power and authority, corporate and otherwise, to enter into and to perform its obligations hereunder and under the Assigned Agreement, and to carry out the terms hereof and thereof and the transactions contemplated hereby and thereby.

(b) Authorization. The execution, delivery and performance by Consenting Party of this Consent and the Assigned Agreement have been duly authorized by all necessary [            ] action on the part of Consenting Party and do not require any approval or consent of any holder (or any trustee for any holder) of any indebtedness or other obligation of (i) Consenting Party or (ii) any other person or entity, except approvals or consents that have previously been obtained.

EXHIBIT 4.1.29(a) TO NOTE PURCHASE AGREEMENT

(c) Execution and Delivery; Binding Agreements. Each of this Consent and the Assigned Agreement is in full force and effect, has been duly executed and delivered on behalf of Consenting Party by the appropriate officers of Consenting Party, and constitutes the legal, valid and binding obligation of Consenting Party, enforceable against Consenting Party in accordance with its terms, except as the enforceability thereof may be limited by (i) bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement of creditors’ rights generally and (ii) general equitable principles (whether considered in a proceeding in equity or at law).

(d) Litigation. There is no legislation, litigation, action, suit, proceeding or investigation pending or (to the best of Consenting Party’s Knowledge (the term “Knowledge” as used in this Consent has the meaning assigned to it in the Note Purchase Agreement, substituting Consenting Party for Assignor in such definition)) threatened against Consenting Party before or by any court, administrative agency, arbitrator or governmental authority, body or agency which, if adversely determined, individually or in the aggregate, (i) could adversely affect the performance by Consenting Party of its obligations hereunder or under the Assigned Agreement, or (ii) questions the validity, binding effect or enforceability hereof or of the Assigned Agreement, any action taken or to be taken pursuant hereto or thereto, or any of the transactions contemplated hereby or thereby.

(e) Government Consent. No consent, order, authorization, waiver, approval or any other action, or registration, declaration or filing with, any person, board or body, public or private (collectively, the “Approvals”), is required to be obtained, or was required to have been obtained and was not obtained, by Consenting Party in connection with the execution, delivery or performance of the Assigned Agreement or the consummation of the transactions contemplated thereunder.

(f) No Default or Amendment. Neither Consenting Party nor, to Consenting Party’s Knowledge, any other party to the Assigned Agreement (including Assignor) is in default of any of its obligations thereunder and no party thereto has claimed force majeure as an excuse for performance or experienced circumstances that could form the basis for a claim of force majeure. Consenting Party has no existing counterclaims, offsets or defenses against Assignor. Consenting Party and, to Consenting Party’s Knowledge, each other party to the Assigned Agreement (including Assignor) have complied with all conditions precedent to the respective obligations of such party to perform under such Assigned Agreement. To Consenting Party’s Knowledge, no event or condition exists that would, either immediately or with the passage of any applicable grace period or giving of notice, or both, enable either Consenting Party or Assignor to terminate or suspend its obligations under the Assigned Agreement. The Assigned Agreement has not been amended, modified or supplemented in any manner.

EXHIBIT 4.1.29(a) TO NOTE PURCHASE AGREEMENT

(g) Only Agreements. The Assigned Agreement and this Consent are the only agreements between Assignor and Consenting Party with respect to the Project, and all conditions precedent to effectiveness under the Assigned Agreement have been satisfied or waived in accordance with the terms thereof.¹

(h) Representations and Warranties. All representations, warranties and other statements made by Consenting Party in the Assigned Agreement were true and correct in all material respects as of the date when made and are true and correct in all material respects as of the date of this Consent.

Section 4. Consenting Party’s Acknowledgement. Assignor acknowledges and agrees that Consenting Party is permitted to perform its obligations under the Assigned Agreement upon Collateral Agent’s exercise of Assignor’s rights in accordance with this Consent, and that Consenting Party shall bear no liability to Assignor solely as a result of performing its obligations under such Assigned Agreement upon such exercise by Collateral Agent.

Section 5. Refinancing. In the event that the Note Purchase Agreement is amended and restated, refinanced or replaced by other credit facilities (including without limitation a note offering, debt securities, bank facility or other type of financing, whether incurred by the Assignor or an affiliate thereof), this Consent shall continue in full force and effect for the benefit of the Assignor and the provider of such new credit facilities or their collateral agent(s) (the “New Collateral Agent”), provided that (i) within ten (10) days following delivery by the Collateral Agent to Consenting Party of the notice that the Assignor’s obligations under the Note Purchase Agreement have been satisfied in full, the New Collateral Agent shall have notified the Consenting Party that it assumes the rights and the prospective obligations of the Collateral Agent under this Consent, and shall have supplied substitute notice address information and (ii) thereafter, (A) the term “Collateral Agent” and “Secured Parties” shall be deemed to refer to the New Collateral Agent, or the lenders and other secured parties under such new credit facilities, as appropriate, (B) the term “Note Purchase Agreement” shall be deemed to refer to the credit agreement, indenture or other instrument providing for the new credit facilities, and (C) the term “Security Agreement” shall be deemed to refer to the security agreement under which the Assigned Interest is assigned as collateral to secure performance of the obligations of the Assignor or an affiliate thereof under the new credit facilities. In connection with any transaction described in this Section 5, upon the request of the Assignor, the Consenting Party shall execute and deliver to the agent or other representative of the New Collateral Agent a reasonable estoppel certificate confirming, if it can do so accurately, among other things, that as of the date of such certificate each of the Consenting Party and, to the best knowledge of the Consenting Party, the Assignor is in compliance with all of their respective material obligations under the Assigned Agreement.

¹ To be removed for Consents with Bloom Energy.

EXHIBIT 4.1.29(a) TO NOTE PURCHASE AGREEMENT

Section 6. Additional Provisions. [To insert specific provisions as may be relevant to the Assigned Agreement. Such provisions, if any, are to be identified after due diligence and review of the Assigned Agreement is complete.]

Section 7. Miscellaneous.

(a) Notices. All notices and other communications hereunder shall be in writing, shall be deemed given upon receipt thereof by the party or parties to whom such notice is addressed, shall refer on their face to the Assigned Agreement (although failure to so refer shall not render any such notice of communication ineffective), shall be sent by first class mail, by personal delivery, by a nationally recognized courier service or by facsimile (subject to electronic confirmation), and shall be directed as follows:

If to Consenting Party:	[                ]
	[                ]
	[                ]
	Attn: [                ]
	Email: [                ]
	Fax: [                ]
If to Assignor:	2014 ESA Project Company, LLC
	1252 Orleans Drive
	Sunnyvale, California 94089
	Attn: Bill Brockenborough
	Email: Bill.Brockenborough@bloomenergy.com
	Fax: (408) 543-1501
If to Collateral Agent:	Deutsche Bank Trust Company Americas
	60 Wall Street
	MSNYC 60-1630
	New York, NY 10005
	Attention: Trust and Agency Services
	Facsimile: (732) 578-4593

A party may, by notice given hereunder, designate any further or different addresses to which subsequent notices or other communications shall be sent.

(b) Governing Law. This Consent shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than such State. Consenting Party, Assignor and Collateral Agent irrevocably submit to the non-exclusive jurisdiction of any New York State or federal court sitting in the Borough of Manhattan, the City of New York, over any suit, action or proceeding arising out of or relating to this Consent.

EXHIBIT 4.1.29(a) TO NOTE PURCHASE AGREEMENT

(c) Counterparts. This Consent may be executed in any number of counterparts, each of which shall be an original but all of which together shall constitute one instrument. Each counterpart may consist of a number of copies hereof, each signed by less than all, but together signed by all, of the parties hereto.

(d) Headings Descriptive. The headings of the several sections and subsections of this Consent are inserted for convenience only and will not in any way affect the meaning or construction of any provision of this Consent.

(e) Severability. Any provision of this Consent that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by law) not invalidate or render unenforceable such provision in any other jurisdiction.

(f) Amendment, Waiver. No amendment or waiver of any provision of this Consent, or consent to any departure by Consenting Party or Assignor therefrom, will be effective unless it is in writing and signed by the Collateral Agent and Consenting Party. A waiver or consent granted pursuant to this Section 7(f) will be effective only in the specific instance and for the specific purpose for which it is given.

(g) Termination. Consenting Party’s obligations hereunder are absolute and unconditional, and Consenting Party has no right to terminate this Consent or to be released, relieved or discharged from any obligation or liability hereunder until all of the Notes issued under the Note Purchase Agreement have been paid in full, notice of which will be provided by the Collateral Agent when all such payment obligations have been satisfied (the “Termination Notice”).

(h) Successors and Assigns. This Consent will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns (including without limitation, any entity that refinances all or any portion of Assignor’s obligations under the Note Purchase Agreement). Each of Consenting Party and Assignor has no right to assign its rights or interests, or delegate its duties or obligations, under this Consent without the prior written consent of the Collateral Agent.

(i) Further Assurances. At any time and from time to time upon the request of the Collateral Agent, Consenting Party and Assignor will execute and deliver such further documents and instruments and do such other acts as the Collateral Agent may reasonably request in order to effect fully the purposes of this Consent.

(j) Waiver of Trial by Jury. THE PARTIES HERETO HEREBY WAIVE TRIAL BY JURY IN ANY ACTION BROUGHT ON OR WITH RESPECT TO THIS CONSENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

(k) Judicial Reference. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE CONSENTING PARTY, ASSIGNOR AND COLLATERAL AGENT IRREVOCABLY WAIVES AND AGREES NOT TO ASSERT, BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE, ANY CLAIM THAT IT IS NOT SUBJECT TO THE JURISDICTION OF ANY COURT REFERRED

EXHIBIT 4.1.29(a) TO NOTE PURCHASE AGREEMENT

TO IN SECTION 7(b), ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

(l) Survival. All agreements, statements, representations and warranties made by Consenting Party herein will be considered to have been relied upon by the Collateral Agent, will survive the execution and delivery of this Consent and will terminate upon the expiration of this Consent in accordance with Section 7(g).

(m) No Waiver; Remedies Cumulative. The waiver of any right, breach or default under this Consent by the Collateral Agent must be made specifically and in writing. No failure on the part of the Collateral Agent to exercise, and no forbearance or delay in exercising, any right under this Consent will operate as a waiver thereof, no single or partial exercise of any right under this Consent will preclude any other or further exercise thereof or the exercise of any other right, and no waiver of any breach of or default under any provision of this Consent will constitute or be construed as a waiver of any subsequent breach of or default under that or any other provision of this Consent. No notice to or demand upon Consenting Party or Assignor will entitle such party to any further, subsequent or other notice or demand in similar or any other circumstances. Each of the rights and remedies of the Collateral Agent under this Consent is cumulative and not exclusive of any other right or remedy provided or existing by agreement or under law.

[the remainder of this page intentionally left blank]

EXHIBIT 4.1.29(a) TO NOTE PURCHASE AGREEMENT

IN WITNESS WHEREOF, Consenting Party, Assignor and the Collateral Agent have caused this Consent and Agreement to be duly executed and delivered by their respective officers thereunto duly authorized as of the date first above written.

CONSENTING PARTY:

[                ]

By:

Name:

Title:

ASSIGNOR:

2014 ESA PROJECT COMPANY, LLC

By:

Name:

Title:

COLLATERAL AGENT:

DEUTSCHE BANK TRUST COMPANY AMERICAS

By: DEUTSCHE BANK NATIONAL TRUST COMPANY

By:

Name:

Title:

By:

Name:

Title:

EXHIBIT 4.1.29(a) TO NOTE PURCHASE AGREEMENT

EXHIBIT A

Payment Instructions

Bank: Deutsche Bank Trust Company Americas

ABA Routing Number: [                ]

Credit Account: [                ]

Account Name: [                ]

Reference: [                ]

EXHIBIT 4.1.29(a) TO NOTE PURCHASE AGREEMENT

EXHIBIT 4.1.29(b)

FORM OF NO.2 DIRECT AGREEMENT

LENDER AGREEMENT

This Lender Agreement, dated as of                              , 20     (this “ Lender Agreement”), is by and among by Home Depot U.S.A, Inc., a Delaware corporation (“Customer”), 2014 ESA Project Company, LLC, a Delaware limited liability company (“Supplier”), and Deutsche Bank Trust Company Americas, a New York Banking Corporation, in its capacity as collateral agent for the Secured Parties (as defined below) (“Collateral Agent”).

WHEREAS, Supplier and Customer are parties to that certain Energy Server Use and License Agreement dated as of December 31, 2013 (the “Agreement”), the defined terms of which are used herein unless otherwise defined herein;

WHEREAS, in order to finance the development, construction, installation, operation and use of the Project, Supplier has entered into that certain Note Purchase Agreement, dated as of July 18, 2014 (as the same may be amended, modified or supplemented, amended or restated, in whole or part from time to time (the “Note Purchase Agreement”)), between Supplier and the Purchasers (as defined in the Note Purchase Agreement) of the Notes (as defined in the Note Purchase Agreement) who are party thereto (together with the Collateral Agent, the “Secured Parties”), pursuant to which, among other things, Supplier issued Notes (as defined in the Note Purchase Agreement) to Purchasers;

WHEREAS, for purposes of the Agreement and this Lender Agreement, Collateral Agent, on behalf of Secured Parties, will be deemed to be the “Lender”; and

WHEREAS, as collateral security for all obligations of Supplier to Secured Parties under the Note Purchase Agreement, Supplier has granted to Collateral Agent a first-priority security interest in all of its rights, title and interest in, to and under the Agreement and in the Systems, pursuant to that certain Security Agreement by and among the Company, the Purchasers and the Collateral Agent, dated as of July 18, 2014 (as amended, modified or supplemented from time to time, the “Security Agreement”);

NOW THEREFORE, for and in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Supplier, Customer and Lender hereby agree as follows:

1) Lender’s Rights. Supplier and Customer hereby agree in favor of Lender that Lender, is, and shall be, entitled to the right of, and the benefits accruing to, the “Lender” under (a) the Agreement, including, but not limited to, Lender’s rights under Section 14.3 of the Agreement, and (b) this Lender Agreement.

a) Lender, as collateral assignee, shall be entitled to exercise, in the place and stead of Supplier, any and all rights and remedies of Supplier under the Agreement in accordance with the terms of the Agreement. Lender shall also be entitled to exercise all rights and remedies of Secured Parties, or the owner of the Systems, generally with respect to the Agreement and the Systems.

EXHIBIT 4.1.29(b) TO NOTE PURCHASE AGREEMENT

b) Lender shall have the right, but not the obligation, to pay all sums due under the Agreement and to perform any other act, duty or obligation required of Supplier thereunder or cause to be cured any default of Supplier thereunder in the time and manner provided by the terms of the Agreement. Nothing herein requires Lender to cure any default of Supplier under the Agreement or (unless Lender has succeeded to Supplier’s interests under the Agreement) to perform any act, duty or obligation of Supplier under the Agreement, but Customer hereby gives Lender the option to elect to do so; provided that if Lender directly or indirectly takes, or causes the transfer of, ownership or control of the Systems or the Agreement, whether by or through an assignment, receiver, foreclosure, conveyance in lieu thereof, or any other proceeding, action or method, then Lender will (a) cure any Supplier defaults under the Agreement to the extent that such defaults are capable of being cured by Lender (but not to include payment of any monetary damages or offsets for failure to provide Customer with the usage of the System during the default period before such taking of title or possession or any consequential damages claimed as a result of such failure during such default period, as no such damages may be claimed by Customer pursuant to the Agreement), as a condition to such taking of possession or title and (b) fully assume all of Supplier’s obligations under the Agreement arising on and after the date of such taking of possession or title.

c) Customer will not exercise any right to terminate or suspend the Agreement unless it shall have given Lender prior written notice of its intent to terminate or suspend the Agreement, specifying the condition giving rise to such right, and Lender shall not have caused to be cured the condition giving rise to the right of termination or suspension within ninety (90) days after such notice or (if longer) the period provided for in the Agreement; provided that if any Supplier default giving rise to such right reasonably cannot be cured by Lender within such period and Lender commences and diligently pursues cure of such default within such period, such period for cure will be extended for a reasonable period of time under the circumstances, such period not to exceed an additional one hundred twenty (120) days. The Parties’ respective obligations will otherwise remain in effect during any cure period.

d) Upon notice by Supplier or Lender that Lender is exercising Supplier’s rights, Customer shall send copies of all notices specified by Lender in writing to Lender and, upon request by Lender in writing, Customer shall make all payments under the Agreement to an account specified by Lender in writing. Payments made to Lender shall satisfy Customer’s payment obligations to Supplier. Customer shall send a copy of all of the foregoing notices to Supplier as well.

e) Upon any rejection or other termination of the Agreement pursuant to any process undertaken with respect to Supplier under the United States Bankruptcy Code, (i) at the request of Lender made within ninety (90) days of such termination or rejection, Customer shall enter into a new agreement with Lender having the same terms and conditions as the Agreement, and (ii) Lender shall enter into a new agreement with Customer having the same terms and conditions as the Agreement if Customer so requests within ninety (90) days after such termination.

EXHIBIT 4.1.29(b) TO NOTE PURCHASE AGREEMENT

f) Customer agrees that, if Lender notifies Customer that an event of default under the Note Purchase Agreement has occurred and is continuing and that Lender has exercised its rights to (i) have itself or its designee substituted for Supplier under the Agreement or (ii) sell, assign, transfer or otherwise dispose of the Agreement to a third person, then Lender, Lender’s designee or such third person (in any case, “Substitute Owner”) will be substituted for Supplier under the Agreement and that, in such event, (x) Customer will continue to perform its obligations under the Agreement in favor of Substitute Owner, (y) references to “Lender” in this Lender Agreement shall be deemed to refer to such Substitute Owner, and (z) Substitute Owner will have each of the rights afforded to Lender hereunder.

2) Confidentiality. Lender, on its own behalf and as agent for the Secured Parties, agrees with Customer and Supplier to comply with the confidentiality and related provisions in the Agreement as if it were a Party thereto.

3) Amendment. Customer and Supplier agree with Lender that neither Customer nor Supplier shall materially amend, supplement or otherwise modify the Agreement or sell, assign or other dispose of (by operation of law or otherwise) any interest in the Agreement, without the prior written consent of Lender.

4) Notices. Customer agrees to provide a copy to Lender of all notices of default or other breach under the Agreement given by Customer concurrently with delivery thereof to Supplier. All notices and communications required to be delivered to Lender with respect to the Agreement shall be in writing and addressed to the Lender as follows:

Deutsche Bank Trust Company Americas

60 Wall Street

MSNYC 60-1630

New York, NY 10005

Attn: Escrow Team – ESA Project

Facsimile: (732) 578-4593

5) Representations and Warranties. Customer represents and warrants that (i) Customer has full power and authority to execute, deliver and perform its obligations hereunder and under the Agreement, (ii) the Agreement is in full force and effect with no defaults thereunder (iii) there have been no breaches or defaults (cured or uncured) under the Agreement prior to the date of this Lender Agreement, (iv) the Agreement together with this Lender Agreement represents the entire agreement between Customer and Supplier and there are no other documents, agreements or understandings written or oral between Customer and Supplier with respect to the matters covered in the Agreement, (v) each of this Lender Agreement and the Agreement constitutes valid, legal and binding obligations of Customer, (vi) this Lender Agreement and the Agreement do not require the consent of any government or authorizing authority and do not violate any law, rule or regulations applicable to Customer, (vii) this Lender Agreement and the Agreement does not violate or constitute a material breach under

EXHIBIT 4.1.29(b) TO NOTE PURCHASE AGREEMENT

any loan, lease or other agreement to which Customer is bound or otherwise affecting Customer’s assets, and (viii) the System is, and will be, located entirely on real property that is owned or leased by Customer and, to the extent required, the consent of any third party for placement or operation of such System thereon has been or will be obtained prior to the commencement of operations of such System.

6) Lender’s Interest. Customer agrees that it will not remove the System, except as specifically permitted under the Agreement, or allow any lien for an obligation for which Customer is responsible to be placed thereon. Customer agrees to cooperate and provide such information as reasonably may be requested to allow Lender to perfect its lien on the System and the Agreement. Customer agrees that no part of the System is or will be a fixture.

7) Access. Customer agrees that Lender shall have access to the System at all reasonable times, in accordance with the Agreement, for purposes of performing or monitoring the performance of any of Supplier’s obligations under the Agreement or in connection with the administration, or enforcement of Lender’s rights.

8) Governing Law. This Lender Agreement has been delivered in, and shall in all respects be governed by, and construed in accordance with, the laws of the State of Delaware applicable to agreements made and to be performed entirely within such State. The provisions of the Agreement relating to dispute resolution shall apply to this Lender Agreement, mutatis mutandis.

9) No Waiver/Remedies Cumulative. No failure or delay in exercising any rights under this Lender Agreement, the Agreement, or otherwise in connection with the loan, shall in any way be a waiver of any such rights. The remedies provided herein are cumulative and not exclusive of any remedies provided by law.

10) Miscellaneous. This Lender Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns. This Lender Agreement may be executed and delivered in counterparts (including by electronic transmission). This Lender Agreement may only be amended, supplemented or otherwise modified by an instrument in writing executed by duly authorized representatives of the party to be bound thereby.

(Signatures follow)

EXHIBIT 4.1.29(b) TO NOTE PURCHASE AGREEMENT

Executed as of the date first written above:

CUSTOMER:	SUPPLIER:
HOME DEPOT U.S.A., INC.	2014 ESA PROJECT COMPANY, LLC
By:	By:
Name:	Name:
Title:	Title:

LENDER:

DEUTSCHE BANK TRUST COMPANY AMERICAS,

as Collateral Agent

By: DEUTSCHE BANK NATIONAL TRUST COMPANY

Its: Authorized Representative

By:

Name:

Title:

By:

Name:

Title:

EXHIBIT 4.1.29(b) TO NOTE PURCHASE AGREEMENT

EXHIBIT 4.1.29(c)

FORM OF NO.3 DIRECT AGREEMENT

LENDER AGREEMENT

This Lender Agreement, dated as of                         , 20         (this “Lender Agreement”), is by and among [                    ], a [                    ] (“Customer”), 2014 ESA Project Company, LLC a Delaware limited liability company (“Supplier”), and Deutsche Bank Trust Company Americas in its capacity as the collateral agent (“Collateral Agent”) for the purchasers (together with the Collateral Agent, the “Secured Parties”) of Notes (as defined in the Note Purchase Agreement) pursuant to that certain Note Purchase Agreement dated as of July 18, 2014 (as the same may be amended, modified or supplemented, amended or restated, in whole or part from time to time the (“Note Purchase Agreement”)) between the Supplier and the Secured Parties. Collateral Agent, on behalf of the Secured Parties, is the “Lender” for purposes of the Agreement No. [                    ] and this Lender Agreement.

WHEREAS, Supplier and Customer are parties to an [                    ], dated [                    ] (the “Agreement No. [                    ]”), the defined terms of which are used herein unless otherwise defined herein;

WHEREAS, the Secured Parties have made a loan to Supplier to finance all or part of the costs of the Systems and in connection therewith the Collateral Agent, on behalf of the Secured Parties, will take a security interest in the Systems and the Agreement No. [                    ], to avail itself of the rights provided for the “Lender” in the Agreement No. [                    ] and this Lender Agreement; and

WHEREAS, to avail itself of such rights, Lender must agree to comply with certain terms and conditions in the Agreement No. [                    ] applicable to the Lender;

NOW THEREFORE, for and in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Supplier, Customer and Lender hereby agree as follows:

1. Lender’s Rights. Supplier and Customer hereby agree in favor of Lender that Lender is, and shall be, entitled to exercise any and all remedies afforded to Supplier, and to cure any defaults of Supplier, subject to the terms and conditions of this Lender Agreement.

a. The Lender, as collateral assignee, shall be entitled to exercise, in the place and stead of Supplier, any and all rights and remedies of Supplier under the Agreement No. [                    ] in accordance with the terms of this Lender Agreement. Lender shall also be entitled to exercise all rights and remedies of secured parties, or the owner of the Systems, generally with respect to the Agreement No. [                    ] and the Systems. Customer agrees that, if Lender notifies Customer that an event of default under the Note Purchase Agreement has occurred and is continuing and that Lender has exercised its

EXHIBIT 4.1.29(c) TO NOTE PURCHASE AGREEMENT

rights to (i) have itself or its designee substituted for Supplier under the Agreement No. [                    ] or (ii) sell, assign, transfer or otherwise dispose of the Agreement No. [                    ] to a third person, then Lender, Lender’s designee or such third person (in any case, “Substitute Owner”) will be substituted for Supplier under the Agreement No. [                    ] and that, in such event, (x) Customer will continue to perform its obligations under the Agreement No. [                    ] in favor of Substitute Owner, (y) references to “Lender” in this Agreement shall be deemed to refer to such Substitute Owner, and (z) Substitute Owner will have each of the rights afforded to the Lender hereunder.

b. The Lender shall have the right, but not the obligation, to pay all sums due under the Agreement No. [                    ] and to perform any other act, duty or obligation required of Supplier thereunder or cause to be cured any default of Supplier thereunder in the time and manner provided by the terms of the Agreement No. [                    ]. Nothing herein requires the Lender to cure any default of Supplier under the Agreement No. [                    ] or (unless the Lender has succeeded to Supplier’s interests under the Agreement No. [                    ] ) to perform any act, duty or obligation of Supplier under the Agreement No. [                     ], but Customer hereby gives Lender the option, to elect to do so; provided that if the Lender directly or indirectly, takes or causes the transfer of ownership or control of the Systems or the Agreement No. [                    ], whether by or through an assignment, receiver, foreclosure, conveyance in lieu thereof, or any other proceeding, action or method, then the Lender will (a) cure any Supplier defaults within the time frame specified for the Supplier to cure the default following notice from Customer to the Supplier and the Lender under the Agreement No. [                    ] (which time period shall, for the sake of clarity, commence with respect to Lender on the date that Lender receives notice from Customer as provided therein) to the extent that such defaults are capable of being cured by Lender (but not to include payment of any monetary damages or offsets for failure to provide Customer with the usage of the System during the default period before such taking of title or possession or any consequential damages claimed as a result of such failure to during such default period, as no such damages may be claimed by Customer pursuant to this Lender Agreement), as a condition to such taking of possession or title and (b) fully assume all of Supplier’s obligations under the Agreement No. [                    ] arising on and after the date of such taking of possession or title.

c. Customer will not exercise any right to terminate or suspend the Agreement No. [                    ] unless it shall have given both the Supplier and the Lender written notice of the applicable Supplier default and neither Supplier or Lender has cured such default within the time periods afforded pursuant to Section [    ] of the Agreement No. [                    ]. The Parties’ respective obligations will otherwise remain in effect during any cure period.

EXHIBIT 4.1.29(c) TO NOTE PURCHASE AGREEMENT

d. Upon notice by Supplier that Lender is exercising Supplier’s rights, Customer shall send copies of all notices specified by Lender in writing to Lender and, upon request by Lender, Customer shall make all payments under the Agreement No. [                    ] to an account specified by the Lender. Payments made to Lender shall satisfy Customer’s payment obligations to Supplier. Customer shall send a copy of all of the foregoing notices to Supplier as well.

e. Upon any rejection or other termination of the Agreement No. [                    ] pursuant to any process undertaken with respect to Supplier under the United States Bankruptcy Code, and provided that Lender directly or indirectly has taken ownership and control of the System and the Agreement No. [                    ] and complied with its obligations under Section 1(b) above, (i) at the request of Lender made within ninety (90) days of such rejection or termination, Customer shall enter into a new or amended agreement with Lender to reflect the change in counterparty but otherwise having the same terms and conditions as the Agreement No. [                    ], and (ii) Lender shall enter into a new or amended agreement with Customer to reflect the change in counterparty but otherwise having the same terms and conditions as the Agreement No. [                    ] if Customer so requests within ninety (90) days after such rejection or termination.

2. Confidentiality. Lender agrees with Customer and Supplier to comply with the confidentiality and related provisions in the Agreement No. [                    ] as if it were a Party thereto.

3. Amendment. Customer and Supplier agree with Lender that no amendment, supplement or other modification of the Agreement No. [                    ] shall be effective unless prior advance written consent thereof has been provided by Lender.

4. Notices. Customer agrees that it shall provide Lender with notice of all Supplier defaults at the same time that it provides notice of such defaults to Supplier. All notices and communications required to be delivered to Lender with respect to the Agreement No. [                    ] shall be in writing and addressed to the Lender as follows:

Deutsche Bank Trust Company Americas

60 Wall Street

MSNYC 60-1630

New York, NY 10005

Attn: Escrow Team – ESA Project

Facsimile: (732) 578-4593

5. Governing Law. This Lender Agreement has been delivered in, and shall in all respects be governed by, and construed in accordance with, the laws of the State of New York applicable to agreements made and to be performed entirely within such State. The provisions of the Agreement No. [                    ] relating to dispute resolution shall apply to this Lender Agreement, mutatis mutandis.

EXHIBIT 4.1.29(c) TO NOTE PURCHASE AGREEMENT

6. Miscellaneous. This Lender Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns. This Lender Agreement may be executed and delivered in counterparts (including by electronic transmission). This Lender Agreement may only be amended, supplemented or otherwise modified by an instrument in writing executed by duly authorized representatives of the party to be bound thereby.

(Signatures follow)

EXHIBIT 4.1.29(c) TO NOTE PURCHASE AGREEMENT

Executed as of the date first written above:

CUSTOMER:	SUPPLIER:
[            ] By: [                ], its authorized representative	2014 ESA Project Company, LLC
By:	By:
Name:	Name:
Title:	Title:

LENDER:

DEUTSCHE BANK TRUST COMPANY AMERICAS,

as Collateral Agent

By: DEUTSCHE BANK NATIONAL TRUST COMPANY

By:

Name:

Title:

By:

Name:

Title:

EXHIBIT 4.1.29(c) TO NOTE PURCHASE AGREEMENT

EXHIBIT 4.2.1(a)

FORM OF DRAWDOWN CERTIFICATE

[LETTERHEAD OF COMPANY]

Date:                      ,         ¹

Drawdown Date:                     ,             

[                    ]

Leidos Engineering, LLC, as Independent Engineer

Meditech Corporate Center, West Wing

550 Cochituate Road

Framingham, MA 01701

Re: 2014 ESA Project Company, LLC – Drawdown Certificate

Ladies and Gentlemen:

This Drawdown Certificate is delivered to you pursuant to Section 4.2.1(a) of the Note Purchase Agreement, dated as of July 18, 2014 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Note Purchase Agreement”), among 2014 ESA Project Company, LLC, a Delaware limited liability company (the “Company”), and the Purchasers party thereto. Capitalized terms used herein and not otherwise defined have the meanings provided in the Note Purchase Agreement.

I, [                    ], am a Responsible Officer of the Company. I have reviewed the provisions of the Credit Documents which are relevant to the furnishing of this Drawdown Certificate. To the extent that this Drawdown Certificate evidences, attests or confirms compliance with any covenants, representations, warranties or conditions precedent provided for in the Credit Documents, I have made such examination or investigation as was, in my opinion, reasonably necessary to enable me to express an informed opinion as to whether such covenants, representations, warranties or conditions have been complied with. This Drawdown Certificate relates to a Credit Event to take place on the date specified above as the “Drawdown Date” (the “Drawdown Date”).

¹  Certificate must be submitted to each of the Purchaser and Independent Engineer at least 7 Business Days prior to the date of each Drawdown.

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

I, on behalf of the Company, solely in my capacity as a Responsible Officer of the Company and not in my personal capacity, and without personal liability therefor, do hereby certify to the Secured Parties that the following statements are accurate, true and complete on the date hereof (except for those statements that solely relate to a later date), and will be accurate, true and complete on and as of the Drawdown Date:

1) The aggregate Project Costs incurred, but not yet paid, through the date of the requested Credit Event are anticipated to be $                    .

2) The Project Costs to be paid with the funds requested in connection with this Drawdown Certificate are to be paid with proceeds of the Notes deposited in the Proceeds Escrow Account in the amounts shown on Appendix I hereto.

3) The currently estimated aggregate Project Costs necessary to achieve Final Completion are as described and segregated in Appendix I hereto. Such amount is consistent with the current Project Budget (as amended, allocated, re-allocated or modified from time to time in accordance with Section 9.13 of the Note Purchase Agreement) or has otherwise been approved or permitted pursuant to the Note Purchase Agreement.

4) The variances in estimated Project Costs (from the Closing Date to the proposed Drawdown Date) are summarized in Appendix I hereto and such variances are described in the current or past quarterly construction progress reports delivered pursuant to Section 7.2(a) of the Note Purchase Agreement.

5) Attached in Appendix II hereto are the previously paid or due and payable invoices, purchase orders or other documents evidencing the Project Costs that are to be reimbursed or paid with the funds requested in connection with this Drawdown Certificate.

6) After taking into consideration the making of the Credit Event hereby requested, Available Funds are not less than the aggregate unpaid amount required to cause Final Completion to occur in accordance with all Legal Requirements, the PUMA, each other Project Document pursuant to which construction work with respect to the Project is being performed and the Credit Documents on or before the Date Certain. After taking into consideration the making of the Credit Event hereby requested, the sources and uses of such Available Funds to achieve Final Completion are as follows:

Sources		Uses
Total:	$	Total:	$

7) The estimated dates for achieving the (a) Commencement of Operations (under and as defined in the PUMA) with respect to the Systems being funded under this requested Credit Event and (b) Final Completion Date are each set forth on Appendix III hereto.

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

8) Each representation and warranty of each Credit Party in any of the NPA Documents to which it is a party is true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” is true and correct in all respects) on and as of the date of the Drawdown Date, before and after giving effect to the Credit Event requested hereby, with the same effect as though made on and as of such date, unless such representation or warranty expressly relates solely to an earlier date.

9) Each representation and warranty of each Major Project Participant contained in the Operative Documents (other than the Note Purchase Agreement or the Policy) is true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” or the like is true and correct in all respects) on and as of the Drawdown Date, before and after giving effect to the Credit Event requested hereby, with the same effect as though made on and as of such date, unless such representation and warranty expressly relates solely to an earlier date.

10) No Default or Event of Default has occurred and is continuing or will result from the funding of the Credit Event hereby requested.

11) The Company has delivered to each of the Purchasers copies of all Additional Project Documents entered into or obtained, transferred or required (whether because of the status of the development, construction or operation of the Project or otherwise) since the date of the most recent Credit Event.

12) The Company has delivered to each of the Purchasers copies of all NDAs entered into or obtained since the date of the most recent Credit Event.

13) All work that has been done on the Project to date has been done in accordance with the PUMA and there has not been filed against any of the Collateral or otherwise filed with or served upon the Company with respect to the Project or any part thereof, notice of any Lien, claim of Lien or attachment upon or claim affecting the right to receive payment of any of the moneys payable to any of the Persons named on such request which has not been released by payment or bonding or otherwise or which will not be released with the payment of such obligation out of the proceeds of the Notes, other than Permitted Liens.

14) Except for any such Liens being contested by the Company as permitted under the definition of “Permitted Liens”, attached in Appendix IV are duly executed Lien waivers required to be delivered to each Holder pursuant to Section 4.2.4 of the Note Purchase Agreement relating to mechanics’ and materialmen’s Liens from each Person performing work at the applicable Site or having a statutory right to file a mechanics’ and/or materialmen’s Lien, as the case may be, for all work, services and materials (including equipment and fixtures of all kinds, done, previously performed or furnished for the construction of the Project), for which the related Project Costs have been or will, from the proceeds of the requested Drawdown, be paid.

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

15) Each Applicable Permit and Applicable Third Party Permit with respect to the System or Systems being funded under this Drawdown has been duly obtained or been assigned in the Company’s or the applicable third party’s name, is in full force and effect, is not subject to any current legal proceeding, and is not subject to any Unsatisfied Condition that could reasonably be expected to result in material modification or revocation of such Applicable Permit and Applicable Third Party Permit, and all applicable appeal periods with respect to such Applicable Permit and Applicable Third Party Permit have expired, except in each case where such failure, legal proceeding or unsatisfied condition could not reasonably be expected to result in a Material Adverse Effect. The Permits which have been obtained by the Company with respect to the System or Systems being funded under this Drawdown are not subject to any restriction, condition, limitation or other provision that could reasonably be expected to have a Material Adverse Effect.

16) Each System being financed has achieved COO or will achieve COO prior to the Drawdown Date.

17) The Pledgor has contributed to the Company [***] of the aggregate purchase price of the Systems to be financed with the proceeds of the requested Credit Event, consistent with the Base Case Projections.

18) Concurrently with this Drawdown, the Pledgor has contributed to the Company [***] of the aggregate purchase price of the Systems to be placed in service with respect to the requested Credit Event to which this Drawdown Certificate related, consistent with the Base Case Projections. After giving effect to this Drawdown, the ratio of (x) the proceeds of the Notes drawn from the Proceeds Escrow Account to (y) the total Notes (adjusted for proceeds from Notes used to fund the Debt Service Reserve Account, the IDC Reserve Account, and to the payment of transaction expenses) have not exceeded the ratio of the aggregate system capacity of commissioned Systems to 20.95 MW.

19) The Equity Capital Contribution Agreement is in full force and effect and, to the Company’s Knowledge, no material breaches or defaults have occurred and are continuing thereunder.

20) The Policy is in full force and effect and all premiums due and owing thereunder have been paid, including any premium due with respect to any Systems that are to be placed in service prior to the fifteenth day of any calendar quarter.

21) All process water, sewer, telephone, waste disposal, electric and all other utility services necessary for the development, construction, ownership and operation of the Project are either contracted for, or are readily available on commercially reasonable terms, with respect to the System or Systems being funded under this Drawdown.

[***] Confidential Treatment Requested

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

22) At any time following the Closing Date, no event, circumstance or condition has occurred and is continuing that has, or could reasonably be expected to have, a Material Adverse Effect.

[Signature page follows]

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

IN WITNESS WHEREOF, the undersigned has caused this Drawdown Certificate to be duly executed and delivered on behalf of the Company as of the date first above written.

2014 ESA PROJECT COMPANY, LLC, a

Delaware limited liability company

By:

Name:

Title:

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

APPENDIX I

to Drawdown Certificate

Currently Estimated Aggregate Project Costs

Project Cost	Amount
	$
	$
	$
	$
	$
Total:	$

Summary of Variances in Estimated Project Costs (from Closing Date to Proposed

Drawdown Date)

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

APPENDIX II

to Drawdown Certificate

Invoices

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

APPENDIX III

to Drawdown Certificate

Estimated Dates

Expected Final Completion Date:             , 20        

Expected Commencement of Operations Date: [Indicate Commencement of Operations Date for each individual system, by Serial Number or other distinct means]

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

APPENDIX IV

to Drawdown Certificate

Lien Waivers

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

EXHIBIT 4.2.1(b)

FORM OF INDEPENDENT ENGINEER’S DRAWDOWN CERTIFICATE

[Letterhead of Independent Engineer]

(Delivered pursuant to Section 4.2.1(b)

of the Note Purchase Agreement)

Date: [                    ]³

  Drawdown Date: [                    ]

2014 ESA PROJECT COMPANY, LLC

1252 Orleans Drive

Sunnyvale, CA 94089

Attention: Bill Brockenborough

Subject:        Independent Engineer’s Drawdown Certificate

Ladies and Gentlemen:

This Drawdown Certificate (this “Certificate”) is delivered to you by Leidos Engineering, LLC (“Leidos”) as “ Independent Engineer” pursuant to Section 4.2.1(b) of the Note Purchase Agreement, dated as of July 18, 2014 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Note Purchase Agreement”), among 2014 ESA Project Company, LLC, a Delaware limited liability company (the “Company”), and the Secured Parties party thereto.

We have reviewed the provisions of Section 4.2.1 of the Note Purchase Agreement as they identify the responsibilities of the Independent Engineer related to providing this Certificate as required by Section 4.2.1(b).

All defined terms set forth in this Certificate shall have the respective meanings specified in the Note Purchase Agreement unless the context otherwise requires or unless otherwise defined. We have reviewed the Note Purchase Agreement as to the meaning of defined terms used herein.

We have reviewed the Company’s [Drawdown Certificate] No. [    ] and the attachments thereto, dated as of [                    ] (the “Current Drawdown Certificate”), requesting that a Drawdown from the Proceeds Escrow Account in the aggregate amount of [$                    ] (the “Drawdown”) be disbursed on [                    ] (the “Drawdown Date”).

³  Certificate must be submitted to the Company (and to each Holder by the Company) at least 4 Business Days prior to the date of each Drawdown.

EXHIBIT 4.2.1(b) TO NOTE PURCHASE AGREEMENT

In connection herewith, we have reviewed: (a) the Company’s, contractors’ and subcontractors’ quarterly construction progress reports dated [                    ] for progress through [                        ]; (b) we have also reviewed the material and data made available to us by Bloom Energy Corporation as the “Seller” under the PUMA; and (c) we have reviewed other material, such as invoices, applications for payment, payment receipts and lien waivers or releases, relating to the development of the Project as we believed was necessary to establish the accuracy of the technical aspects of the Current Drawdown Certificate.

Due to the similarity of the sites and to the wide locational distribution of sites, we have visited a representative sample of sites. We last visited the             Site on [                    ] and observed progress at the Project. Our site observations of progress did not include investigation of buried items or other unobservable items or hidden conditions. We have reviewed documentation and held discussions with the Company regarding the progress of construction activities at the Project since that time.

This Certificate was prepared pursuant to the scope of services under our Professional Services Agreement, dated as of October 17, 2013 (the “Services Agreement”) with Bloom Energy Corporation. On or about July [        ], 2014, the Collateral Agent, on behalf of the Secured Parties, entered into Use of Work Products Agreement with Leidos outlining the terms and conditions of their use of this Certificate. This Certificate was prepared with the degree of skill and diligence normally practiced by professional engineers or consultants performing the same or similar services on like projects.

Based upon the foregoing review and review procedures and on the understanding and assumption that we have been provided true and complete information from other parties as to the matters covered by the Current Drawdown Certificate, as of the date of this Certificate, except as set forth in Attachment A to this Certificate, we are of the opinion that:

1. Based on our review of the Company’s previous expenditures compared to the Project Budget and our review of the progress of engineering, procurement and construction, we concur with the Company’s estimate of the Project Costs to Final Completion as set forth in the Current Drawdown Certificate[[ If not, continue as follows: ], except as noted in Attachment A [state reasons and approximate amount of variance, if known in Attachment A]];

2. Each of the (a) Commencement of Operations Dates and (b) Final Completion Date are expected to be achieved by the dates indicated in Appendix III of the Current Drawdown Certificate[[ If not, continue as follows: ], except as noted in Attachment A. [state reasons scheduled dates will vary from the estimates set forth in the Current Drawdown Certificate in Attachment A];

3. Our scope of review, which, to the extent practical and consistent with our scope of work under our Services Agreement, includes periodically reviewing the progress of engineering, procurement and construction for the Project, has not brought to our attention, any errors in the information contained in the Current Drawdown Certificate; [If any paragraphs in the Current Drawdown Certificate are incorrect, list and specify reasons for each paragraph in Attachment A.]

EXHIBIT 4.2.1(b) TO NOTE PURCHASE AGREEMENT

4. To the best of our knowledge [and the extent of our Site observations, if any], the quality of construction performed during the period covered by this Certificate was performed materially in conformance with the applicable construction Project Documents; [If unsatisfactory, specify reasons in Attachment A.]

5. The work accomplished during the period covered by this Certificate is in accordance with the Project Schedule; [If unsatisfactory, specify reasons in Attachment A.]

6. The request for funds in the Current Drawdown Certificate is in conformance, on a cumulative basis, with the drawdown schedule included with the Project Budget; and [If not, state reasons in Attachment A.]

7. To the best of our knowledge, there are no approved, pending or proposed change orders that are not listed in Appendix V to the Current Drawdown Certificate [except as noted in Attachment A [list change orders in Attachment A]].

This Certificate is solely for the information of, and assistance to, the Collateral Agent and Secured Parties in conducting and documenting their investigation of the matters in connection with the Project and is not to be used, circulated, quoted, or otherwise referred to for any other purpose. Leidos disclaims any obligation to update this Certificate. This Certificate is not intended to, and may not, be construed to benefit any party other than the Collateral Agent and Secured Parties.

Very truly yours,

LEIDOS ENGINEERING, LLC

[Name goes here]

[Title goes here]

[Name goes here]

[Title goes here]

EXHIBIT 4.2.1(b) TO NOTE PURCHASE AGREEMENT

SCHEDULE I – PURCHASERS

EXHIBIT 4.2.1(b) TO NOTE PURCHASE AGREEMENT

ATTACHMENT A

EXCEPTIONS AND CLARIFICATIONS

[List any exceptions or clarifications. If there are none indicate “NONE”.]

EXHIBIT 4.2.1(b) TO NOTE PURCHASE AGREEMENT

EXHIBIT 4.2.1(c)

FORM OF COMPANY’S COO CERTIFICATE⁴

[LETTERHEAD OF COMPANY]

Date:                  ,        ⁵

Drawdown Date:                  ,        

[                                         ]

Leidos Engineering, LLC,

as Independent Engineer

Meditech Corporate Center, West Wing

550 Cochituate Road

Framingham, MA 01701

Re: 2014 ESA Project Company, LLC – Drawdown Certificate Confirmation of COO

Ladies and Gentlemen:

This Drawdown Certificate Confirmation of Commencement of Operations (“Certificate of COO”) is delivered to you pursuant to Section 4.2.1(c) of the Note Purchase Agreement, dated as of July 18, 2014 (as amended, supplemented or otherwise modified from time to time, the “Note Purchase Agreement”), among 2014 ESA Project Company, LLC, a Delaware limited liability company (the “Company”), and the Purchasers party thereto. Capitalized terms used herein and not otherwise defined have the meanings provided in the Note Purchase Agreement.

I, [                 ], am a Responsible Officer of the Company. I have reviewed the provisions of the Credit Documents which are relevant to the furnishing of this Drawdown Certificate of COO for the Systems listed in Appendix 1 to this Certificate of COO. To the extent that this Certificate of COO evidences, attests or confirms compliance with any covenants, representations, warranties or conditions precedent provided for in the Credit Documents, I have made such examination or investigation as was, in my opinion, reasonably necessary to enable me to express an informed opinion as to whether such covenants, representations, warranties or conditions have been complied with. This Certificate of COO relates to a Credit Event to take place on the date specified above as the “Drawdown Date” (the “Drawdown Date”).

⁴ [To be confirmed by IE.]

⁵  Certificate must be submitted to each Holder and Independent Engineer at least 2 Business Days prior to the date of each Drawdown.

EXHIBIT 4.2.1(c) TO NOTE PURCHASE AGREEMENT

I, on behalf of the Company, solely in my capacity as a Responsible Officer of the Company and not in my personal capacity, and without personal liability therefor, do hereby certify to the Secured Parties that the following statement is accurate, true and complete on the date hereof, and will be accurate, true and complete on and as of the Drawdown Date:

1) COO has occurred with respect to the Systems listed in Appendix 1 being funded under this requested Credit Event.

IN WITNESS WHEREOF, the undersigned has caused this Drawdown Certificate Confirmation of COO to be duly executed and delivered on behalf of the Company as of the date first above written.

2014 ESA PROJECT COMPANY, LLC, a

Delaware limited liability company

By:

Name:

Title:

Appendix

EXHIBIT 4.2.1(c) TO NOTE PURCHASE AGREEMENT

APPENDIX 1

Systems Commencement of Operations

Date:                  ,         ⁶

Drawdown Date:                  ,         

System Number    System Description

⁶  Certificate must be submitted to each Holder and Independent Engineer at least 2 Business Days prior to the submission of each Drawdown.

EXHIBIT 4.2.1(c) TO NOTE PURCHASE AGREEMENT

EXHIBIT 4.2.1(d)

FORM OF INDEPENDENT ENGINEER’S COO CERTIFICATE

[Letterhead of Independent Engineer]

(Delivered pursuant to Section 4.2.1(d)

of the Note Purchase Agreement)

Date: [                ]⁷

Drawdown Date: [                ]

2014 ESA PROJECT COMPANY, LLC

1252 Orleans Drive

Sunnyvale, CA 94089

Attention: Bill Brockenborough

Telephone: (408) 543-1772

Fax: (408) 543-1501

Subject:    Independent Engineer’s Drawdown Certificate Confirmation of COO

Ladies and Gentlemen:

This Independent Engineer’s Drawdown Certificate Confirmation of [            ] (“COO”) (this “Certificate”) is delivered to you by Leidos Engineering, LLC (“Leidos”) as “Independent Engineer” pursuant to Section 4.2.1(d) of the Note Purchase Agreement, dated as of July 18, 2014 (as amended, supplemented or otherwise modified from time to time, the “Note Purchase Agreement”), among 2014 ESA Project Company, LLC, a Delaware limited liability company (the “Company”) and the Secured Parties party thereto.

We have reviewed the provisions of Section 4.2.1 of the Note Purchase Agreement as they identify the responsibilities of the Independent Engineer related to providing this Certificate as required by Section 4.2.1(d).

All defined terms set forth in this Certificate shall have the respective meanings specified in the Note Purchase Agreement unless the context otherwise requires or unless otherwise defined. We have reviewed the Note Purchase Agreement as to the meaning of defined terms used herein.

We have reviewed the Company’s [Drawdown Certificate] No. [    ] and the attachments thereto, dated as of [                    ] (the “Current Drawdown Certificate”), requesting that a Drawdown from the Proceeds Escrow Account be disbursed on [                    ] (the “Drawdown Date”). We have also reviewed the Company’s COO Certificate dated as of [                    ].

⁷  Certificate must be submitted to the Company (and to each Holder by the Company) at least 1 Business Day prior to the date of each Drawdown.

EXHIBIT 4.2.1(d) TO NOTE PURCHASE AGREEMENT

Due to the similarity of the sites and to the wide locational distribution of sites, we have visited a representative sample of sites. We last visited the              Site on [                                 ] and observed progress at the Project. Our site observations of progress did not include investigation of buried items or other unobservable items or hidden conditions.]⁸ We have reviewed documentation and held discussions with the Company regarding the progress of construction activities at the Project since that time.

This Certificate was prepared pursuant to the scope of services under our Professional Services Agreement, dated as of October 17, 2013 (the “Services Agreement”) with Bloom Energy Corporation. On or about July [        ], 2014, the Collateral Agent, on behalf of the Secured Parties, entered into Use of Work Products Agreement with Leidos outlining the terms and conditions of their use of this Certificate. This Certificate was prepared with the degree of skill and diligence normally practiced by professional engineers or consultants performing the same or similar services on like projects.

Based upon the foregoing review and review procedures and on the understanding and assumption that we have been provided true and complete information from other parties as to the matters covered by the Current Drawdown Certificate, as of the date of this Certificate, except as set forth in this Certificate, we are of the opinion that:

A. COO [choose one: has/has not] occurred with respect to the Systems being funded under this requested Credit Event.

This Certificate is solely for the information of, and assistance to, the Collateral Agent and Secured Parties in conducting and documenting their investigation of the matters in connection with the Project and is not to be used, circulated, quoted, or otherwise referred to for any other purpose. Leidos disclaims any obligation to update this Certificate. This Certificate is not intended to, and may not, be construed to benefit any party other than the Collateral Agent and Secured Parties.

Very truly yours, LEIDOS ENGINEERING, LLC

[Name goes here]

[Title goes here]

[Name goes here]

[Title goes here]

EXHIBIT 4.2.1(d) TO NOTE PURCHASE AGREEMENT

EXHIBIT 4.2.11

FORM OF OPINION OF SPECIAL COUNSEL TO THE COMPANY

[●], 2014

To the Addressees listed on Schedule 1

Re: 2014 ESA Project Company, LLC

Ladies and Gentlemen:

We have acted as counsel to 2014 ESA Project Company, LLC, a Delaware limited liability company (the “Company”), in connection with the preparation, execution and delivery of Transaction Documents (as defined below). We are providing this opinion to you pursuant to Section 4.2.11 of the Note Purchase Agreement, dated as of July 18, 2014 (the “Note Purchase Agreement”), among the Company and the Purchasers party thereto. Unless otherwise indicated, capitalized terms used but not defined herein shall have the respective meanings set forth in the Note Purchase Agreement.

In our capacity as such counsel, we have examined originals or copies of those corporate and other records and documents we considered appropriate, including the following:

(i) Lender Agreement dated [●], 2014, by and among AT&T Corp., Collateral Agent and the Company relating to AT&T ESA-1;

(ii) Lender Agreement dated [●], 2014, by and among AT&T Corp., Collateral Agent and the Company relating to AT&T ESA-2;

(iii) Lender Agreement dated [●], 2014, by and among Pacific Bell Telephone Company, Collateral Agent and the Company relating to AT&T ESA-3;

(iv) Lender Agreement dated [●], 2014, by and among Pacific Bell Telephone Company, Collateral Agent and the Company relating to AT&T ESA-4;

(v) Lender Agreement dated [●], 2014, by and among AT&T Corp., Collateral Agent and the Company relating to AT&T ESA-5; and

(vi) Lender Agreement dated [●], 2014, by and among Home Depot U.S.A, Inc., Collateral Agent and the Company relating to Home Depot ESA.

The documents described in the foregoing clauses (i) through (vi) are collectively referred to herein as the “Transaction Documents”. The documents described in the foregoing clauses (i) through (v) are collectively referred to herein as the “New York Transaction Documents”.

EXHIBIT 4.2.11 TO NOTE PURCHASE AGREEMENT

In our capacity as such counsel, we have examined executed counterparts of each of the Transaction Documents. We have also examined and relied upon the accuracy of the originals or certified, conformed, photocopied or telecopied copies of such corporate and limited liability company records and resolutions, certificates, instruments and other documents as we have deemed necessary or appropriate to enable us to render the opinions expressed herein.

In our review of the Transaction Documents and other documents, we have assumed the genuineness of signatures on original documents and the conformity to such original documents of all copies submitted to us as certified, conformed, photocopied or telecopied copies, and as to certificates and telegraphic and telephonic confirmations given by public officials, we have assumed the same to have been properly given and to be accurate. As to all matters of fact material to our opinions, we have relied, without investigation, upon corporate and limited liability company resolutions of the Company, upon representations and warranties of the parties contained in the Transaction Documents and upon the statements and certificates furnished thereunder or by public officials.

On the basis of such examination, our reliance upon the assumptions in this opinion and our consideration of those questions of law we considered relevant, and subject to the limitations and qualifications in this opinion, we are of the opinion that:

1. Based solely on the certificate of good standing issued by the Secretary of State of the State of Delaware attached hereto as Exhibit A (which we have assumed remain accurate on the date of this opinion letter), the Company is a limited liability company existing under the laws of the State of Delaware.

2. The Company has the power under the current Delaware Limited Liability Company Act (the “Delaware LLC Act”) and its certificate of formation and limited liability company agreement (together, its “Organizational Documents”), to enter into and perform its obligations under each Transaction Document.

3. The execution and delivery by the Company of each Transaction Document have been duly authorized by all necessary action on the part of the Company under the Delaware LLC Act and the Organizational Documents, and each such Transaction Document has been duly executed and delivered by the Company.

4. The execution and delivery by the Company of each Transaction Document does not, and the Company’s performance of its respective obligations thereunder will not, violate the Organizational Documents.

5. The execution and delivery by the Company of each Transaction Document does not, and the Company’s performance of its respective obligations thereunder will not, violate the Delaware LLC Act, or any current New York (with respect to the New York Transaction Documents) or federal statute, rule or regulation that we have, in the exercise of customary professional diligence, recognized as applicable to the Company or to transactions of the type contemplated by the Transaction Documents.

EXHIBIT 4.2.11 TO NOTE PURCHASE AGREEMENT

6. No order, consent, permit or approval of any New York (with respect to the New York Transaction Documents) or federal governmental authority that we have, in the exercise of customary professional diligence, recognized as applicable to the Company or to transactions of the type contemplated by the Transaction Documents, is required on the part of the Company for the execution and delivery of the Transaction Documents, except for such as have been obtained.

7. Each of the New York Transaction Documents is a legally valid and binding obligation of the Company, enforceable against the Company in accordance with its respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors’ rights generally (including, without limitation, fraudulent conveyance laws) and by general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law.

In rendering the opinions expressed herein, we have assumed that as of the date hereof and at all other times relevant for this opinion (i) each of the parties to each of the Transaction Documents (other than, to the extent of our opinions set forth above, the Company) is duly incorporated, organized or formed, validly existing and in good standing under the laws of all jurisdictions where they are conducting their businesses (including their jurisdiction of incorporation, organization or formation), (ii) each of the parties to each of the Transaction Documents (other than, to the extent of our opinions set forth above, the Company) has the requisite power, authority and legal right to enter into, and perform its respective obligations under the Transaction Documents to which it is a party, (iii) each of the Transaction Documents has been duly authorized, executed and delivered by each respective party thereto (other than, to the extent of our opinions set forth above, the Company), (iv) each Transaction Document constitutes a legally valid and binding obligation of each party thereto (other than, to the extent of our opinions set forth above, the Company), enforceable against each of such parties in accordance with the terms thereof, and (v) the transactions provided for in the Transaction Documents are exempt from, or will not involve any transaction which is subject to, the prohibitions of Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) or Section 4975 of the Internal Revenue Code of 1986, as amended (the “IRS Code”), and will not involve any transaction in connection with which a penalty could be imposed under Section 502(I) of ERISA or a tax could be imposed under Section 4975 of the IRS Code.

For purposes of the opinions expressed in paragraphs 4 and 5, we have assumed that the Company will not in the future take any discretionary action (including a decision not to act) permitted by the Transaction Documents that would cause the performance of any Transaction Document to (i) violate the Delaware LLC Act, or any current New York (with respect to the New York Transaction Documents), or federal statute, rule or regulation or (ii) violate the Organizational Documents of the Company.

Our opinion in paragraph 7 above as to the enforceability of the Transaction Documents is subject to: (i) public policy considerations, statutes or court decisions that may limit the rights of a party to obtain indemnification against its own negligence, willful misconduct or unlawful conduct; (ii) the unenforceability under certain circumstances of broadly or vaguely stated waivers or waivers of rights granted by law where the waivers are against public policy or prohibited by law; (iii) the unenforceability under certain circumstances of provisions imposing

EXHIBIT 4.2.11 TO NOTE PURCHASE AGREEMENT

penalties, liquidated damages or other economic remedies; (iv) the unenforceability under certain circumstances of provisions appointing one party as trustee for an adverse party or provisions for the appointment of a receiver; (v) the unenforceability of covenants not-to-compete; (vi) the unenforceability under certain circumstances of choice of law provisions; (vii) the unenforceability of confession of judgment provisions; and (viii) the unenforceability of provisions waiving a right to a jury trial.

We express no opinion as to any provision of any of the Transaction Documents requiring written amendments or waivers of the Transaction Documents insofar as it suggests that oral or other modifications, amendments or waivers could not be effectively agreed upon by the parties or that the doctrine of promissory estoppel might not apply.

We express no opinion as to the effect of non-compliance by you with any state or federal laws or regulations applicable to the transactions contemplated by the Transaction Documents because of the nature of your business.

We express no opinion as to any provision of the Transaction Documents insofar as they purport to grant a right of setoff in respect of the Company’s assets to any person other than a creditor of the Company.

We express no opinion as to (i) provisions that attempt to change or waive rules of evidence or fix the method or quantum of proof to be applied in litigation or similar proceedings or (ii) arbitration provisions that provide for judicial review of arbitration awards

The law covered by this opinion is limited to the present federal law of the United States, the present law of the State of New York and the Delaware LLC Act. We express no opinion as to the laws of any other jurisdiction and no opinion regarding the statutes, administrative decisions, rules, regulations or requirements of any county, municipality, subdivision or local authority of any jurisdiction. We express no opinion concerning, or with respect to the effect of, (i) federal or state antitrust, unfair competition or trade practice laws or regulations, (ii) pension and employee benefit laws and regulations, (iii) compliance with fiduciary requirements, (iv) federal or state environmental laws and regulations, (v) federal, state or local land use, zoning or subdivision laws or regulations, (vi) the Trading with the Enemy Act, as amended, the foreign assets control regulations of the United States Treasury Department, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) Act of 2001, as amended, Executive Order No. 13,224 of September 24, 2001, Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support Terrorism, as amended, and any enabling legislation, rules, regulations or executive orders relating thereto, (vii) insurance laws and regulations, or (viii) tax laws or regulations.

As you know, we are not admitted to practice law in the State of Delaware, and our opinions regarding the Delaware LLC Act based solely on our review of the text of those statutes as set forth in the Delaware Laws Governing Business Entities Annotated Statutes and Rules, 2014 Spring Edition, published by LexisNexis, without regard to other State of Delaware statutory or judicial decisional law. As a result, we have not conducted the same degree of review (such as reviewing case law) that attorneys who regularly render opinions on Delaware law would conduct, and, accordingly, the opinions set forth herein as to the Delaware LLC Act are not equivalent to opinions of Delaware counsel.

EXHIBIT 4.2.11 TO NOTE PURCHASE AGREEMENT

This opinion is furnished by us to you as counsel for the Company and may not be relied upon by any other person without our express written permission, except that (i) your successors and each future holder of any Note under (and as permitted by) the Note Purchase Agreement may rely on this opinion as of the original date of this opinion subject to the limitations, qualifications, exceptions and assumptions set forth herein and (ii) a copy of this letter may be furnished by you to, but not relied upon by, (a) the National Association of Insurance Commissioners and any state, federal or provincial authority or independent banking or insurance board or body having regulatory jurisdiction over the Purchasers in the exercise of their regulatory due diligence, (b) your independent auditors and (c) any Institutional Investor (and its legal advisers) that is considering becoming an assignee of your interest in the Notes for information (but not reliance) purposes, provided that prior to such disclosure it is understood and acknowledged by each such recipient that (x) it may not rely upon this letter by virtue of such disclosure, and (y) it is not permitted to disclose or quote this letter to any other person (except where required by law or regulation). This opinion is expressly limited to the matters set forth above, and we render no opinion, whether by implication or otherwise, as to any other matters. This letter speaks only as of the date hereof and we assume no obligation to update or supplement this opinion to reflect any facts or circumstances that arise after the date of this opinion and come to our attention, or any future changes in laws.

Very truly yours,

EXHIBIT 4.2.11 TO NOTE PURCHASE AGREEMENT

SCHEDULE 1

OPINION ADDRESSEES

ING LIFE INSURANCE AND ANNUITY COMPANY

ING USA ANNUITY AND LIFE INSURANCE COMPANY

RELIASTAR LIFE INSURANCE COMPANY

SECURITY LIFE OF DENVER INSURANCE COMPANY

THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA

THE GUARDIAN INSURANCE & ANNUITY COMPANY, INC.

PAN-AMERICAN LIFE INSURANCE COMPANY

MODERN WOODMEN OF AMERICA

THE VARIABLE ANNUITY LIFE INSURANCE COMPANY

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA

UNITED GUARANTY RESIDENTIAL INSURANCE COMPANY

DEUTSCHE BANK TRUST COMPANY AMERICAS, as Collateral Agent under the Note Purchase Agreement

BLOOM ENERGY CORPORATION

2014 ESA PROJECT COMPANY, LLC

2014 ESA HOLDCO, LLC

CLEAN TECHNOLOGIES 2014, LLC

EXHIBIT 4.2.11 TO NOTE PURCHASE AGREEMENT

EXHIBIT A

Good Standing

EXHIBIT 4.2.11 TO NOTE PURCHASE AGREEMENT

EXHIBIT 4.2.12

FORM OF HOME DEPOT PARENT GUARANTY

PARENT GUARANTY

[Date]

2014 ESA Project Company, LLC

c/o Bloom Energy Corporation

1252 Orleans Drive

Sunnyvale, CA 94089-1137

Attention: Bill Brockenborough

Ladies and Gentlemen:

For value received, The Home Depot, Inc. (the “Guarantor”), a Delaware corporation, hereby unconditionally guarantees to 2014 ESA Project Company, LLC (together with its successors and permitted assigns under the Agreement (as defined below), the “Beneficiary Counterparty”) the prompt and complete payment when due, whether by acceleration or otherwise, of all payment obligations (the “Guaranteed Obligations”), whether now in existence or hereafter arising, of Home Depot U.S.A., Inc., a Delaware Corporation (together with its successors, the “Guarantee Counterparty”), to the Beneficiary Counterparty pursuant to that certain Energy Server Use and License Agreement dated as of December 31, 2013, by and between the Beneficiary Counterparty and the Guarantee Counterparty (as may be amended, supplemented or otherwise modified from time to time, the “Agreement”). The Guarantor’s obligations and liabilities under this Guaranty shall be limited to payment obligations only, and the Guarantor shall have no obligation to perform (other than with respect to payment) under the Agreement. Each capitalized term used but not defined herein shall have the corresponding meaning given to it in the Agreement.

This Guaranty is one of payment and not of collection. This Guaranty is a primary obligation of the Guarantor and not merely a contract of surety. The Guarantor hereby waives notice of acceptance of this Guaranty and notice of any obligation or liability to which it may apply, and waives presentment, demand for payment, protest, notice of dishonor or non-payment of any such obligation or liability, suit or the taking of other action by the Beneficiary Counterparty against, and any other notice to, the Guarantee Counterparty, the Guarantor or others.

The Beneficiary Counterparty may at any time and from time to time without notice to or consent of the Guarantor and without impairing or releasing the obligations of the Guarantor hereunder: (1) agree with the Guarantee Counterparty to make any change in the terms of any obligation or liability of the Guarantee Counterparty to the Beneficiary Counterparty, (2) take or fail to take any action of any kind in respect of any security for any obligation or liability of the Guarantee Counterparty to the Beneficiary Counterparty, (3) exercise or refrain from exercising any rights against the Guarantee Counterparty or others, (4) compromise or subordinate any obligation or liability of the Guarantee Counterparty to the Beneficiary Counterparty including any security therefor, or (5) collaterally assign any of its interest in the Agreement or this Guaranty, in which case any such collateral assignee(s) shall be a third party beneficiary of this Guaranty and shall have all the rights and benefits of a third party beneficiary. Any other suretyship defenses are hereby waived by the Guarantor.

EXHIBIT 4.2.12 TO NOTE PURCHASE AGREEMENT

This Guaranty shall continue in full force and effect until the earliest to occur of: (i) the discharge of all of the Guaranteed Obligations; (ii) three (3) months after the termination or expiration of the Agreement; and (iii) the replacement of this Guaranty by other performance assurance acceptable to the Beneficiary Counterparty, such acceptance not to be unreasonably withheld, conditioned or delayed. After such earliest date, other than as set forth in the immediately following paragraph, no claim may be made against the Guarantor hereunder and the Guarantor shall be deemed released from all obligations under this Guaranty (and the Beneficiary Counterparty shall execute any documents reasonably requested by the Guarantee Counterparty or the Guarantor to confirm such release), except that (A) in the case of a termination under clause (ii) above, the termination shall be without prejudice to any outstanding claim validly made against the Guarantor hereunder prior to such termination, and (B) in the case of a termination under clause (ii) or clause (iii) above, if, on such earliest date, there are outstanding any claims that (1) were validly made prior to such date against the Guarantor hereunder and (2) in the case of a termination under clause (iii) above, are not fully secured by the replacement performance assurance, then, on such earliest date, (y) this Guaranty shall be deemed automatically extended until the final resolution and (if applicable) full payment of such outstanding claims and (z) the Guaranteed Obligations shall be deemed automatically reduced to the payment of such outstanding claims.

This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Guaranteed Obligations are annulled, set aside, invalidated, declared to be fraudulent or preferential, rescinded or must otherwise be returned, refunded or repaid by the Beneficiary Counterparty upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the Guarantee Counterparty or any other guarantor, or upon or as a result of the appointment of a receiver or conservator of, or trustee for the Guarantee Counterparty or any other guarantor or any substantial part of its property or otherwise, all as though such payment or payments had not been made; provided that this Guaranty shall not be reinstated for any reason after its termination under clause (iii) of the immediately preceding paragraph.

The Guarantor may not assign its rights or delegate its obligations under this Guaranty, in whole or in part, without prior written consent of the Beneficiary Counterparty, such consent not to be unreasonably withheld, conditioned or delayed, and any purported assignment or delegation absent such consent is void, except for an assignment and delegation of all of the Guarantor’s rights and obligations hereunder in whatever form the Guarantor determines may be appropriate to a partnership, corporation, trust or other organization in whatever form that succeeds to all or substantially all of the Guarantor’s assets and business and that assumes such obligations by contract, operation of law or otherwise. Upon any such delegation and assumption of obligations, the Guarantor shall be relieved of and fully discharged from all obligations hereunder, whether such obligations arose before or after such delegation and assumption.

The Guarantor represents to the Beneficiary Counterparty, as of the date hereof, that:

1. it is duly organized and validly existing under the laws of the jurisdiction of its incorporation and has full power and legal right to execute and deliver this Guaranty and to perform the provisions of this Guaranty on its part to be performed;

2. its execution, delivery and performance of this Guaranty have been and remain duly authorized by all necessary corporate action and do not contravene any provision of its certificate of incorporation or by-laws or any law, regulation or contractual restriction binding on it or its assets; and

3. this Guaranty is its legal, valid and binding obligation enforceable against it in accordance with its terms except as enforcement hereof may be limited by applicable bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors’ rights or by general equity principles.

EXHIBIT 4.2.12 TO NOTE PURCHASE AGREEMENT

THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW THAT WOULD RESULT IN APPLICATION OF THE LAWS OF A DIFFERENT JURISDICTION.

Very truly yours,
The Home Depot, Inc.
By:
	Authorized Officer

EXHIBIT 4.2.12 TO NOTE PURCHASE AGREEMENT

EXHIBIT 7.2(a)

FORM OF QUARTERLY CONSTRUCTION REPORT

Site Address

COO

Named Offtaker (ESA

Customer

System

Projected @

Current

Site ID Customer

Street 1

Street 2

City

State Zip

Tolling Rate

Financial

Prior Report

Report

Comments

Reference)

Reference

Capacity

Close

Projection

Projection

Sites Added

Sites Removed

Project Final Completion Date
Projected @ Financial Close	[    ]
Prior Report Projection	[    ]
Current Report Projection	[    ]

EXHIBIT 7.2(a) TO NOTE PURCHASE AGREEMENT

EXHIBIT 8.1.3(b)

FORM OF OFFER TO REPAY NOTICE

[Insert name of holder of the Note]

[Insert address of holder of the Note]

[Insert date]

Reference is made to the Note Purchase Agreement dated as of July 18, 2014 (as amended, amended and restated, modified or supplemented and in effect from time to time, the “Note Purchase Agreement”), among 2014 ESA Project Company, LLC, a Delaware limited liability company (the “Company”) and the Purchasers party thereto. Terms used herein and not otherwise defined herein have the meanings assigned to such terms in the Note Purchase Agreement.

Pursuant to Section 8.1.3(b) of the Note Purchase Agreement, the Company hereby notifies you that it is making the following Offer to Repay:

1. The Offer Settlement Date shall be [            ]⁹.

2. The aggregate principal amount of all Notes to be repaid on the Offer Settlement Date shall be $[            ]¹⁰.

Please indicate your acceptance in whole or in part of the Offer to Repay by executing and delivering the notice in the form attached as Schedule 1 hereto on or prior to the fifth (5^th) Business Day prior to the Offer Settlement Date. If you do not accept the Offer to Repay in whole on or prior to [            ]¹¹, you shall be deemed to have rejected the Offer to Repay, and, accordingly, your Notes will not be repaid on the Offer Settlement Date.

Sincerely,

2014 ESA PROJECT COMPANY, LLC
By:
	Name:
	Title:

⁹ Insert date twenty (20) Business Days after the date hereof.

¹⁰ Insert aggregate amount of all Notes to be repaid pursuant to this Offer to Repay Notice, which shall be the principal amount of the Notes at 100% of the principal amount thereof, together with accrued and unpaid interest thereon to the Offer Settlement Date and without payment of the Make-Whole Amount or any premium.

¹¹ Insert the date that is five (5) Business Days prior to the Offer Settlement Date.

EXHIBIT 8.1.3(b) TO NOTE PURCHASE AGREEMENT

Schedule 1

TO OFFER TO REPAY NOTICE

FORM OF OFFER ACCEPTANCE NOTICE

OFFER ACCEPTANCE NOTICE

2014 ESA Project Company, LLC

1252 Orleans Drive

Sunnyvale, CA 94089

Attention: [                            ]

[Insert Date]

Reference is made to the Note Purchase Agreement dated as of July 18, 2014 (as amended, modified or supplemented and in effect from time to time, the “Note Purchase Agreement”) among 2014 ESA Project Company, LLC, a Delaware limited liability company (the “Company”) and the Purchasers party thereto. Terms used herein and not otherwise defined herein have the meanings assigned to such terms in the Note Purchase Agreement. Reference is also made to the Offer to Repay Notice dated as of [Insert Date].

Pursuant to Section 8.1.3(b) of the Note Purchase Agreement, we hereby notify the Company that we accept the Offer to Repay in full as set forth in the Offer to Repay Notice.

Sincerely,

[Insert name of holder of the Notes]

By:
	Name:
	Title:

EXHIBIT 8.1.3(B) TO NOTE PURCHASE AGREEMENT

EX-10

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Exhibit 10.26

Execution Version

AMENDMENT NO. 1

NOTE PURCHASE AGREEMENT

This AMENDMENT NO. 1 TO NOTE PURCHASE AGREEMENT (this “Amendment”), is entered into effective as of March 16, 2015 by and among 2014 ESA Project Company, LLC, a Delaware limited liability company (the “Company”), and each of the undersigned Holders of Notes. Capitalized terms used and not otherwise defined herein have the meanings given to them in the Note Purchase Agreement (as defined below). All Section references, unless otherwise indicated, shall be references to Sections of the Note Purchase Agreement and the rules of interpretation set forth in the Note Purchase Agreement apply as if set forth herein.

RECITALS

WHEREAS, reference is hereby made to that certain Note Purchase Agreement, dated as of July 18, 2014, by and among the Company and the Purchasers party thereto (the “Note Purchase Agreement”); and

WHEREAS, the Company wishes to hereby amend the Note Purchase Agreement, in accordance with Article 17 of the Note Purchase Agreement, by amending Sections 4.2.7, 4.2.11, 5.24(a) and 9.11 of, and Schedule B and Exhibit 4.2.1(a) to, the Note Purchase Agreement;

NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, and for other consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto hereby agree as follows:

AGREEMENT

Section 1. Amendments to the Note Purchase Agreement.

i. Section 4.2.7 is hereby amended and restated in its entirety to read as follows:

Section 4.2.7 Equity Funding; Proportional Funding.

(a) Prior to, or concurrently with, any Drawdown, the Pledgor shall have contributed to the Company an amount equal to [***] of system capacity of the System(s) being financed with such Drawdown, plus all taxes applicable to the purchase of such System(s) payable by the Company.

(b) After giving effect to any Drawdown, (i) the proceeds of the Notes drawn from the Proceeds Escrow Account shall not exceed [***] of system capacity of the System(s) being financed with such Drawdown and (ii) aggregate funds contributed by the Pledgor and proceeds of the Notes on such Drawdown shall be sufficient to pay the aggregate purchase price of applicable System(s) being financed with such Drawdown, including all taxes payable by the Company with respect thereto.

[***] Confidential Treatment Requested

(c) After giving effect to any Drawdown, the ratio of (x) the proceeds of the Notes drawn from the Proceeds Escrow Account to (y) the total Notes (adjusted for proceeds from the Notes used to fund the Debt Service Reserve Account, the IDC Reserve Account, and to the payment of transaction expenses) shall not exceed the ratio of [***] to [***].

(d) The Equity Capital Contribution Agreement shall continue to be in full force and effect and, to the Company’s Knowledge, no material breaches or defaults have occurred and are continuing thereunder.

ii. A new Section 4.2.11(c) is hereby added to the Note Purchase Agreement as follows:

(c) Prior to the date of the first Drawdown following the date that the Company obtains MBR Authority, or, if no further Drawdowns are available or contemplated, promptly following receipt of MBR Authority, the Company shall have delivered to each Purchaser an opinion addressed to each such Purchaser, dated on or before the date of such Drawdown from O’Melveny & Myers LLP, as special regulatory counsel for the Company, covering the Company’s MBR Authority, in form and substance reasonably satisfactory to such Purchaser.

iii. Section 5.24(a) is hereby amended and restated in its entirety to read as follows:

Section 5.24 Governmental Regulation.

(a) As of the Closing Date, (i) the Company sells electricity at each Site only to the applicable Offtaker pursuant to the relevant ESA and will not make any other wholesale or retail sales and (ii) is not subject to or benefits from an exemption from or waiver of regulation (A) by FERC as an “electric utility company”, a “public-utility company” or a “holding company” or a “subsidiary company” of a “holding company” in each case as such term is defined under PUHCA, or (B) as an “electric supplier”, a “retail electricity supplier” or a “public utility” under the laws of the States of California, New York, New Jersey or Connecticut and any other state in which the Company operates facilities that generate electricity. The Company is not a “public utility” under the FPA as of the Closing Date, provided, however, that it shall not constitute a Default or an Event of Default of any kind for the Company to (1) obtain an order from FERC (X) authorizing the Company to sell electric energy, capacity or ancillary services from its facilities that generate electricity at market-based rates pursuant to Section 205 of the FPA, (Y) accepting for filing the Company’s tariff pertaining to such sales, and (Z) granting the Company waivers of regulations and blanket authorizations customarily granted by FERC to an entity that sells electric energy, capacity and ancillary services at wholesale at market-based rates, including blanket authorization for the issuance of securities and assumption of liabilities under Section 204 of the FPA and Part 34 of FERC’s regulations (together, “MBR Authority”), and (2) make sales at wholesale of electric energy, capacity

[***] Confidential Treatment Requested

2

and ancillary services from its facilities that generate electricity pursuant to such MBR Authority. Such MBR Authority, once obtained and accepted as effective by FERC, will be in full force and effect and at such time the Company will become a “public utility” under the FPA.

iv. Section 9.11 is hereby amended and restated in its entirety to read as follows:

Section 9.11 Utility Regulation. The Company shall take or cause to be taken all necessary or appropriate actions so that (a) the Company and the Project shall not be subject to, or shall benefit from an exemption from or waiver of, (A) regulation by FERC as a “public–utility company” or “holding company” under PUHCA, or (B) financial, organizational or rate regulation as an “electric utility”, “electric corporation” or any similar Person under the laws of the States of California, New York, New Jersey and Connecticut and any other state in which the Company operates facilities that generate electricity as presently constituted and as construed by the courts of such States, (b) the Company will sell electricity only to the applicable Offtaker at each Site pursuant to the relevant ESA and will not make any other wholesale or retail sales, and (c) no later than the Company’s initial sale at wholesale of any electric energy, capacity or ancillary services from its facilities that generate electricity the Company shall have obtained MBR Authority. For so long as the Company is a “public utility” under the FPA it shall maintain its MBR Authority and shall comply in all material respects with the requirements of FERC applicable to its MBR Authority, including timely reporting and filings under the FPA.

v. The following definition of the capitalized term “MBR Authority” is inserted into Schedule B in the appropriate alphabetical location:

“MBR Authority” is defined in Section 5.24(a).

vi. Exhibit 4.2.1(a) to the Note Purchase Agreement is hereby amended and restated in its entirety to read as Exhibit 4.2.1(a) attached hereto.

Section 2. Effective Date. This Amendment has been duly executed by the Company. This Amendment shall be effective (the “Effective Date”) upon the receipt by, or on behalf of, the Company of duly executed counterparts of this Amendment signed by each of the Holders of Notes whose name appears on the signature pages hereto and who constitute all of the Holders of the Notes as of the date hereof.

Section 3. No Other Changes or Waivers. Except as expressly provided or contemplated by this Amendment, all of the terms, conditions and provisions of the Note Purchase Agreement remain unaltered and in full force and effect. Except as specifically provided herein, the execution, delivery and performance of this Amendment shall not be deemed as a waiver of any other matters or any future matters. The Note Purchase Agreement and this Amendment shall be read and construed as one instrument. This Amendment constitutes a Credit Document for all purposes.

3

Section 4. Representations and Warranties. The Company hereby represents and warrants that, as of the Effective Date (both immediately before and immediately after giving effect to the occurrence of the Effective Date and any transactions to occur thereon):

i. It has all requisite power and authority to enter into this Amendment and to carry out the transactions contemplated by, and perform its obligations under, the Note Purchase Agreement as amended by this Amendment.

ii. The execution and delivery of this Amendment and the performance of the Note Purchase Agreement as amended by this Amendment have been duly authorized by all necessary action on the part of the Company.

iii. The execution and delivery by the Company of this Amendment and the performance by it of the Note Purchase Agreement as amended by this Amendment do not and will not violate any Legal Requirement or any Obligation and will not result in, or require, the creation or imposition of any Lien on any of its properties or revenues pursuant to any Legal Requirement or any such Obligation (other than the Liens created by the Collateral Documents on the Closing Date and from time to time thereafter).

iv. This Amendment has been duly executed and delivered by the Company and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting creditors’ rights generally and except as enforceability may be limited by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

v. No consent or authorization of, filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person which has not been received, filed, given or done is required in connection with the transactions contemplated herein or the execution, delivery, performance, validity or enforceability of this Amendment.

vi. No event has occurred and is continuing or will result from the consummation of the transactions contemplated by this Amendment that would constitute a Default or an Event of Default.

vii. The representations and warranties set forth in Article 5 of the Note Purchase Agreement are true and correct in all material respects (except for any such representation or warranty that relates solely to a specific date, in which case, such representation or warranty was true and correct in all material respects as of such date); provided that, to the extent any such representation and warranty itself is qualified by “materiality”, “Material Adverse Effect” or similar qualifier, it is true and correct in all respects.

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Section 5. Headings. The Section titles contained in this Amendment are and shall be without substantive meaning or content of any kind whatsoever and are not a part of the agreement between the parties hereto.

Section 6. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD PERMIT THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.

Section 7. Severability. Any provision of this Amendment that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by law) not invalidate or render unenforceable such provision in any other jurisdiction.

Section 8. Counterparts. This Amendment and any amendments, waivers, consents or supplements hereto or in connection herewith may be executed in one or more duplicate counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document. Signatures of the parties hereto transmitted by facsimile or portable document format (PDF) shall be deemed to be their original signatures for all purposes.

[The remainder of this page intentionally left blank]

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If you are in agreement with the foregoing, please sign the form of agreement on a counterpart of this Amendment and return it to the Company, whereupon this Amendment shall become a binding agreement between you and the Company.

Very truly yours, 2014 ESA PROJECT COMPANY, LLC
By	/s/ William E. Brockenborough
Name:	William E. Brockenborough
Title:	Vice President

Signature Page to Amendment No. 1 to Note Purchase Agreement

6

This Amendment is hereby accepted and agreed to as of the date hereof.

THE VARIABLE ANNUITY LIFE INSURANCE
COMPANY
NATIONAL UNION FIRE INSURANCE
COMPANY OF PITTSBURGH, PA
UNITED GUARANTY RESIDENTIAL
INSURANCE COMPANY
By: AIG Asset Management (U.S.) L.L.C., Investment Adviser
By:	/s/ Andrew M. Bouffard
	Name: Andrew M. Bouffard
	Title:   Vice President

Signature Page to Amendment No. 1 to Note Purchase Agreement

7

This Amendment is hereby accepted and agreed to as of the date hereof.

THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA
By:	/s/ Barry Scheinholtz
	Name: Barry Scheinholtz
	Title: Senior Director
THE GUARDIAN INSURANCE & ANNUJITY COMPANY, INC.
By:	/s/ Barry Scheinholtz
	Name: Barry Scheinholtz
	Title: Senior Director

Signature Page to Amendment No. 1 to Note Purchase Agreement

8

This Amendment is hereby accepted and agreed to as of the date hereof.

VOYA RETIREMENT INSURANCE AND
ANNUITY COMPANY (F/K/A ING LIFE
INSURANCE AND ANNUITY COMPANY)
VOYA INSURANCE AND ANNUITY COMPANY
(F/K/A ING USA ANNUITY AND LIFE
INSURANCE COMPANY)
RELIASTAR LIFE INSURANCE COMPANY
SECURITY LIFE OF DENVER INSURANCE
COMPANY
By: Voya Investment Management LLC, as Agent
By:	/s/ Paul Aronson
	Name: Paul Aronson
	Title: Senior Vice President

Signature Page to Amendment No. 1 to Note Purchase Agreement

9

This Amendment is hereby accepted and agreed to as of the date hereof.

MODERN WOODMEN OF AMERICA
By:	/s/ Douglas A. Pannier
	Name: Douglas A. Pannier
	Title: Group Head, Private Placements

Signature Page to Amendment No. 1 to Note Purchase Agreement

10

This Amendment is hereby accepted and agreed to as of the date hereof.

PAN-AMERICAN LIFE INSURANCE COMPANY
By:	/s/ Lisa Baudot
	Name: Lisa Baudot
	Title: Vice President, Securities

Signature Page to Amendment No. 1 to Note Purchase Agreement

11

EXHIBIT 4.2.1(a)

FORM OF DRAWDOWN CERTIFICATE

[LETTERHEAD OF COMPANY]

Date:             ,    ¹

Drawdown Date:             ,

[            ]

Leidos Engineering, LLC, as Independent Engineer

Meditech Corporate Center, West Wing

550 Cochituate Road

Framingham, MA 01701

Re: 2014 ESA Project Company, LLC – Drawdown Certificate

Ladies and Gentlemen:

This Drawdown Certificate is delivered to you pursuant to Section 4.2.1(a) of the Note Purchase Agreement, dated as of July 18, 2014 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Note Purchase Agreement”), among 2014 ESA Project Company, LLC, a Delaware limited liability company (the “Company”), and the Purchasers party thereto. Capitalized terms used herein and not otherwise defined have the meanings provided in the Note Purchase Agreement.

I, [            ], am a Responsible Officer of the Company. I have reviewed the provisions of the Credit Documents which are relevant to the furnishing of this Drawdown Certificate. To the extent that this Drawdown Certificate evidences, attests or confirms compliance with any covenants, representations, warranties or conditions precedent provided for in the Credit Documents, I have made such examination or investigation as was, in my opinion, reasonably necessary to enable me to express an informed opinion as to whether such covenants, representations, warranties or conditions have been complied with. This Drawdown Certificate relates to a Credit Event to take place on the date specified above as the “Drawdown Date” (the “Drawdown Date”).

I, on behalf of the Company, solely in my capacity as a Responsible Officer of the Company and not in my personal capacity, and without personal liability therefor, do hereby certify to the Secured Parties that the following statements are accurate, true and complete on the date hereof (except for those statements that solely relate to a later date), and will be accurate, true and complete on and as of the Drawdown Date:

1) The aggregate Project Costs incurred, but not yet paid, through the date of the requested Credit Event are anticipated to be $            .

2) The Project Costs to be paid with the funds requested in connection with this Drawdown Certificate are to be paid with proceeds of the Notes deposited in the Proceeds Escrow Account in the amounts shown on Appendix I hereto.

¹  Certificate must be submitted to each of the Purchaser and Independent Engineer at least 7 Business Days prior to the date of each Drawdown.

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

12

3) The currently estimated aggregate Project Costs necessary to achieve Final Completion are as described and segregated in Appendix I hereto. Such amount is consistent with the current Project Budget (as amended, allocated, re-allocated or modified from time to time in accordance with Section 9.13 of the Note Purchase Agreement) or has otherwise been approved or permitted pursuant to the Note Purchase Agreement.

4) The variances in estimated Project Costs (from the Closing Date to the proposed Drawdown Date) are summarized in Appendix I hereto and such variances are described in the current or past quarterly construction progress reports delivered pursuant to Section 7.2(a) of the Note Purchase Agreement.

5) Attached in Appendix II hereto are the previously paid or due and payable invoices, purchase orders or other documents evidencing the Project Costs that are to be reimbursed or paid with the funds requested in connection with this Drawdown Certificate.

6) After taking into consideration the making of the Credit Event hereby requested, Available Funds are not less than the aggregate unpaid amount required to cause Final Completion to occur in accordance with all Legal Requirements, the PUMA, each other Project Document pursuant to which construction work with respect to the Project is being performed and the Credit Documents on or before the Date Certain. After taking into consideration the making of the Credit Event hereby requested, the sources and uses of such Available Funds to achieve Final Completion are as follows:

Sources		Uses
Total:	$		Total:	$

7) The estimated dates for achieving the (a) Commencement of Operations (under and as defined in the PUMA) with respect to the Systems being funded under this requested Credit Event and (b) Final Completion Date are each set forth on Appendix III hereto.

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

13

8) Each representation and warranty of each Credit Party in any of the NPA Documents to which it is a party is true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” is true and correct in all respects) on and as of the date of the Drawdown Date, before and after giving effect to the Credit Event requested hereby, with the same effect as though made on and as of such date, unless such representation or warranty expressly relates solely to an earlier date.

9) To the Company’s Knowledge, each representation and warranty of each Major Project Participant contained in the Operative Documents (other than the Note Purchase Agreement or the Policy) is true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” or the like is true and correct in all respects) on and as of the Drawdown Date, before and after giving effect to the Credit Event requested hereby, with the same effect as though made on and as of such date, unless such representation and warranty expressly relates solely to an earlier date.

10) No Default or Event of Default has occurred and is continuing or will result from the funding of the Credit Event hereby requested.

11) The Company has delivered to each of the Purchasers copies of all Additional Project Documents entered into or obtained, transferred or required (whether because of the status of the development, construction or operation of the Project or otherwise) since the date of the most recent Credit Event.

12) The Company has delivered to each of the Purchasers copies of all NDAs entered into or obtained since the date of the most recent Credit Event.

13) All work that has been done on the Project to date has been done in accordance with the PUMA and there has not been filed against any of the Collateral or otherwise filed with or served upon the Company with respect to the Project or any part thereof, notice of any Lien, claim of Lien or attachment upon or claim affecting the right to receive payment of any of the moneys payable to any of the Persons named on such request which has not been released by payment or bonding or otherwise or which will not be released with the payment of such obligation out of the proceeds of the Notes, other than Permitted Liens.

14) Except for any such Liens being contested by the Company as permitted under the definition of “Permitted Liens”, attached in Appendix IV are duly executed Lien waivers required to be delivered to each Holder pursuant to Section 4.2.4 of the Note Purchase Agreement relating to mechanics’ and materialmen’s Liens from each Person performing work at the applicable Site or having a statutory right to file a mechanics’ and/or materialmen’s Lien, as the case may be, for all work, services and materials (including equipment and fixtures of all kinds, done, previously performed or furnished for the construction of the Project), for which the related Project Costs have been or will, from the proceeds of the requested Drawdown, be paid.

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

14

15) Each Applicable Permit and Applicable Third Party Permit with respect to the System or Systems being funded under this Drawdown has been duly obtained or been assigned in the Company’s or the applicable third party’s name, is in full force and effect, is not subject to any current legal proceeding, and is not subject to any Unsatisfied Condition that could reasonably be expected to result in material modification or revocation of such Applicable Permit and Applicable Third Party Permit, and all applicable appeal periods with respect to such Applicable Permit and Applicable Third Party Permit have expired, except in each case where such failure, legal proceeding or unsatisfied condition could not reasonably be expected to result in a Material Adverse Effect. The Permits which have been obtained by the Company with respect to the System or Systems being funded under this Drawdown are not subject to any restriction, condition, limitation or other provision that could reasonably be expected to have a Material Adverse Effect.

16) Each System being financed has achieved COO or will achieve COO prior to the Drawdown Date.

17) Prior to, or concurrently with, the Drawdown to be made on Drawdown Date, the Pledgor has contributed or will contribute to the Company an amount equal to [***] per kilowatt of system capacity of the System(s) to be placed in service with respect to the requested Credit Event to which this Drawdown Certificate related plus all taxes applicable to the purchase of such System(s) payable by the Company.

18) After giving effect to this Drawdown, (i) the proceeds of the Notes drawn from the Proceeds Escrow Account have not exceeded [***] per kilowatt of system capacity of the System(s) being financed with such Drawdown and (ii) aggregate funds contributed by the Pledgor and proceeds of the Notes on such Drawdown are sufficient to pay the aggregate purchase price of applicable System(s) being financed with such Drawdown, including all taxes payable by the Company with respect thereto.

19) After giving effect to this Drawdown, the ratio of (x) the proceeds of the Notes drawn from the Proceeds Escrow Account to (y) the total Notes (adjusted for proceeds from Notes used to fund the Debt Service Reserve Account, the IDC Reserve Account, and to the payment of transaction expenses) have not exceeded the ratio of [***] to [***].

20) The Equity Capital Contribution Agreement is in full force and effect and, to the Company’s Knowledge, no material breaches or defaults have occurred and are continuing thereunder.

21) The Policy is in full force and effect and all premiums due and owing thereunder have been paid, including any premium due with respect to any Systems that are to be placed in service prior to the fifteenth day of any calendar quarter.

22) All process water, sewer, telephone, waste disposal, electric and all other utility services necessary for the development, construction, ownership and operation of the Project are either contracted for, or are readily available on commercially reasonable terms, with respect to the System or Systems being funded under this Drawdown.

[***] Confidential Treatment Requested

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

15

23) At any time following the Closing Date, no event, circumstance or condition has occurred and is continuing that has, or could reasonably be expected to have, a Material Adverse Effect.

[Signature page follows]

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

16

IN WITNESS WHEREOF, the undersigned has caused this Drawdown Certificate to be duly executed and delivered on behalf of the Company as of the date first above written.

2014 ESA PROJECT COMPANY, LLC, a

Delaware limited liability company

By:

Name:

Title:

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

17

EX-10

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Exhibit 10.27

AMENDMENT NO. 2

NOTE PURCHASE AGREEMENT

This AMENDMENT NO. 2 TO NOTE PURCHASE AGREEMENT (this “Amendment”), is entered into effective as of September 25, 2015 by and among 2014 ESA Project Company, LLC, a Delaware limited liability company (the “Company”), and each of the undersigned Holders of Notes. Capitalized terms used and not otherwise defined herein have the meanings given to them in the Note Purchase Agreement (as defined below). All Section references, unless otherwise indicated, shall be references to Sections of the Note Purchase Agreement and the rules of interpretation set forth in the Note Purchase Agreement apply as if set forth herein.

RECITALS

WHEREAS, reference is hereby made to that certain Note Purchase Agreement, dated as of July 18, 2014, by and among the Company and the Purchasers party thereto, as amended by that certain Amendment No. 1 to Note Purchase Agreement, dated as of March 16, 2015, by and among the Company and the Holders of Notes party thereto (as amended, the “Note Purchase Agreement”); and

WHEREAS, the Company wishes to hereby amend the Note Purchase Agreement, in accordance with Article 17 of the Note Purchase Agreement, by amending Schedule B and Schedule 8.1 to the Note Purchase Agreement.

NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, and for other consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto hereby agree as follows:

AGREEMENT

Section 1. Amendments to the Note Purchase Agreement.

i. The following definition of the capitalized term “Date Certain” in Schedule B to the Note Purchase Agreement is hereby amended and restated in its entirety to read as follows:

“Date Certain” means March 31, 2016.

ii. Schedule 8.1 to the Note Purchase Agreement is hereby amended and restated in its entirety to read as Schedule 8.1 attached hereto.

Section 2. Effective Date. This Amendment has been duly executed by the Company. This Amendment shall be effective (the “Effective Date”) upon the receipt by, or on behalf of, the Company of duly executed counterparts of this Amendment signed by each of the Holders of Notes whose name appears on the signature pages hereto and who constitute all of the Holders of the Notes as of the date hereof.

1

Section 3. Partial Completion Buydown. As of the Effective Date, Systems with aggregate system capacity of 14.15 MW have achieved COO. The Company hereby informs the Holders that, as of the Effective Date, the Company anticipates that 20.35 MW of system capacity of Systems will achieve COO on or prior to the Date Certain, as such term is amended pursuant to this Amendment, and agrees that, pursuant to Section 9.18 of the Note Purchase Agreement, the Company shall prepay the Notes in the amount calculated pursuant to such Section 9.18 based on the actual aggregate system capacity of Systems that have achieved COO as of the Date Certain. For example, the Company would prepay the Notes in the aggregate amount of [***] on March 31, 2016 if 20.35 MW of system capacity of Systems have achieved COO on or prior to the Date Certain, plus accrued and unpaid interest thereon. The Company and each Holder of Notes whose name appears on the signature pages hereto and who constitute all of the Holders of the Notes as of the date hereof agree that each Holder of Notes shall have received, no later than 10 Business Days prior to the Date Certain, verification from the Independent Engineer that the re-calculation of the size of the Notes under the Base Case Projections complies with the requirements set forth in clauses (a), (b) and (c) of Section 9.18 of the Note Purchase Agreement.

Section 4. No Other Changes or Waivers. Except as expressly provided or contemplated by this Amendment, all of the terms, conditions and provisions of the Note Purchase Agreement remain unaltered and in full force and effect. Except as specifically provided herein, the execution, delivery and performance of this Amendment shall not be deemed as a waiver of any other matters or any future matters. The Note Purchase Agreement and this Amendment shall be read and construed as one instrument. This Amendment constitutes a Credit Document for all purposes.

Section 5. Representations and Warranties. The Company hereby represents and warrants that, as of the Effective Date (both immediately before and immediately after giving effect to the occurrence of the Effective Date and any transactions to occur thereon):

i. It has all requisite power and authority to enter into this Amendment and to carry out the transactions contemplated by, and perform its obligations under, the Note Purchase Agreement as amended by this Amendment.

ii. The execution and delivery of this Amendment and the performance of the Note Purchase Agreement as amended by this Amendment have been duly authorized by all necessary action on the part of the Company.

iii. The execution and delivery by the Company of this Amendment and the performance by it of the Note Purchase Agreement as amended by this Amendment do not and will not violate any Legal Requirement or any Obligation and will not result in, or require, the creation or imposition of any Lien on any of its properties or revenues pursuant to any Legal Requirement or any such Obligation (other than the Liens created by the Collateral Documents on the Closing Date and from time to time thereafter).

[***] Confidential Treatment Requested

2

iv. This Amendment has been duly executed and delivered by the Company and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting creditors’ rights generally and except as enforceability may be limited by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

v. No consent or authorization of, filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person which has not been received, filed, given or done is required in connection with the transactions contemplated herein or the execution, delivery, performance, validity or enforceability of this Amendment.

vi. No event has occurred and is continuing or will result from the consummation of the transactions contemplated by this Amendment that would constitute a Default or an Event of Default.

vii. The representations and warranties set forth in Article 5 of the Note Purchase Agreement are true and correct in all material respects (except for any such representation or warranty that relates solely to a specific date, in which case, such representation or warranty was true and correct in all material respects as of such date); provided that, to the extent any such representation and warranty itself is qualified by “materiality”, “Material Adverse Effect” or similar qualifier, it is true and correct in all respects.

viii. In accordance with Section 9.18 of the Note Purchase Agreement, it has delivered to each of the Holders of Notes whose name appears on the signature pages hereto and who constitute all of the Holders of the Notes as of the date hereof a true, accurate and complete re-calculation of the size of the Notes under the Base Case Projections which re-calculation (x) (i) reduces the Project capacity assumption therein to the actual Project system capacity, and (ii) updates the COO dates to reflect the actual COO dates for those Systems which have achieved such milestone as of the Effective Date, and the projected COO date for those Systems which are to achieve such milestone subsequent to the Effective Date, (y) maintains DSCR at [***] minimum through the Maturity Date under the Downside Case, and (z) otherwise changes no assumptions in the Base Case Projections.

Section 6. Headings. The Section titles contained in this Amendment are and shall be without substantive meaning or content of any kind whatsoever and are not a part of the agreement between the parties hereto.

Section 7. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK EXCLUDING CHOICE-OF- LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD PERMIT THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.

[***] Confidential Treatment Requested

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Section 8. Severability. Any provision of this Amendment that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by law) not invalidate or render unenforceable such provision in any other jurisdiction.

Section 9. Counterparts. This Amendment and any amendments, waivers, consents or supplements hereto or in connection herewith may be executed in one or more duplicate counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document. Signatures of the parties hereto transmitted by facsimile or portable document format (PDF) shall be deemed to be their original signatures for all purposes.

[The remainder of this page intentionally left blank]

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If you are in agreement with the foregoing, please sign the form of agreement on a counterpart of this Amendment and return it to the Company, whereupon this Amendment shall become a binding agreement between you and the Company.

Very truly yours, 2014 ESA PROJECT COMPANY, LLC
By	/s/ Timothy E. Gray Jr.
Name:	Timothy E. Gray Jr.
Title:	Vice President

Signature Page to Amendment No. 2 to Note Purchase Agreement

This Amendment is hereby accepted and agreed to as of the date hereof.

THE VARIABLE ANNUITY LIFE INSURANCE COMPANY
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA
UNITED GUARANTY RESIDENTIAL INSURANCE COMPANY
By:	AIG Asset Management (U.S.) L.L.C., Investment Adviser
By:	/s/ Andrew M. Bouffard
	Name: Andrew M. Bouffard
	Title:   Vice President

Signature Page to Amendment No. 2 to Note Purchase Agreement

This Amendment is hereby accepted and agreed to as of the date hereof.

THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA
By:	/s/ Barry Scheinholtz
	Name: Barry Scheinholtz
	Title:   Senior Director
THE GUARDIAN INSURANCE & ANNUJITY COMPANY, INC.
By:	/s/ Barry Scheinholtz
	Name: Barry Scheinholtz
	Title:   Senior Director

Signature Page to Amendment No. 2 to Note Purchase Agreement

This Amendment is hereby accepted and agreed to as of the date hereof.

VOYA RETIREMENT INSURANCE AND ANNUITY COMPANY (F/K/A ING LIFE INSURANCE AND ANNUITY COMPANY)
VOYA INSURANCE AND ANNUITY COMPANY (F/K/A ING USA ANNUITY AND LIFE INSURANCE COMPANY)
RELIASTAR LIFE INSURANCE COMPANY
SECURITY LIFE OF DENVER INSURANCE COMPANY
By:	Voya lnvestment Management LLC, as Agent
By:	/s/ Paul Aronson
	Name: Paul Aronson
	Title:   Senior vice President

Signature Page to Amendment No. 2 to Note Purchase Agreement

This Amendment is hereby accepted and agreed to as of the date hereof.

MODERN WOODMEN OF AMERICA
By:	/s/ Douglas A. Pannier
	Name: Douglas A. Pannier
	Title:   Group Head - Private Placements

Signature Page to Amendment No. 2 to Note Purchase Agreement

This Amendment is hereby accepted and agreed to as of the date hereof.

PAN-AMERICAN LIFE INSURANCE COMPANY
By:	/s/ Lisa Baudot
	Name: Lisa Baudot
	Title:   Vice President, Securities

Signature Page to Amendment No. 2 to Note Purchase Agreement

SCHEDULE 8.1

AMORTIZATION SCHEDULE

Date	Amortization Amount
12/30/2015	$	122,436
3/30/2016	$	128,209
6/30/2016	$	128,074
9/30/2016	$	175,570
12/30/2016	$	283,778
3/30/2017	$	322,238
6/30/2017	$	362,358
9/30/2017	$	317,260
12/30/2017	$	428,879
3/30/2018	$	470,338
6/30/2018	$	512,590
9/30/2018	$	469,323
12/30/2018	$	583,514
3/30/2019	$	628,497
6/30/2019	$	675,158
9/30/2019	$	636,143
12/30/2019	$	754,178
3/30/2020	$	803,139
6/30/2020	$	853,445
9/30/2020	$	817,834
12/30/2020	$	939,455
3/30/2021	$	991,776
6/30/2021	$	1,044,925
9/30/2021	$	1,011,834
12/30/2021	$	1,136,745
3/30/2022	$	1,193,344
6/30/2022	$	1,251,661
9/30/2022	$	1,223,555
12/30/2022	$	1,353,076
3/30/2023	$	1,413,931
6/30/2023	$	1,475,647
9/30/2023	$	1,450,598
12/30/2023	$	1,583,969
3/30/2024	$	1,649,689
6/30/2024	$	1,717,163

SCHEDULE 8.1 TO NOTE PURCHASE AGREEMENT

Date	Amortization Amount
9/30/2024	$	1,697,674
12/30/2024	$	1,836,252
3/30/2025	$	1,906,855
6/30/2025	$	1,978,103
9/30/2025	$	1,962,152
12/30/2025	$	2,105,212
3/30/2026	$	2,180,815
6/30/2026	$	2,256,278
9/30/2026	$	2,244,806
12/30/2026	$	2,362,529
3/30/2027	$	2,442,904
6/30/2027	$	2,523,071
9/30/2027	$	2,516,907
12/30/2027	$	2,669,304
3/30/2028	$	2,755,161
6/30/2028	$	2,840,213
9/30/2028	$	2,838,596
12/30/2028	$	2,996,442
3/30/2029	$	3,074,790
6/30/2029	$	3,165,739
9/30/2029	$	3,170,090
12/30/2029	$	3,333,618
3/30/2030	$	9,533,546
Total	$	93,301,386

SCHEDULE 8.1 TO NOTE PURCHASE AGREEMENT

EX-10

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Exhibit 10.28

Execution Version

AMENDMENT NO. 3

NOTE PURCHASE AGREEMENT

AND CONSENT

This AMENDMENT NO. 3 TO NOTE PURCHASE AGREEMENT AND CONSENT (this “Amendment”), is entered into effective as of March 14, 2016 by and among 2014 ESA Project Company, LLC, a Delaware limited liability company (the “Company”), Deutsche Bank Trust Company Americas, acting in its capacity as the collateral agent (together with its successors and permitted assigns in such capacity, the “Collateral Agent”) for the benefit of the Secured Parties, and each of the undersigned Holders of Notes. Capitalized terms used and not otherwise defined herein have the meanings given to them in the Note Purchase Agreement (as defined below). All Section references, unless otherwise indicated, shall be references to Sections of the Note Purchase Agreement and the rules of interpretation set forth in the Note Purchase Agreement apply as if set forth herein.

RECITALS

WHEREAS, reference is hereby made to that certain Note Purchase Agreement, dated as of July 18, 2014, by and among the Company and the Purchasers party thereto, as amended by (i) that certain Amendment No. 1 to Note Purchase Agreement (“Amendment 1”), dated as of March 16, 2015, by and among the Company and the Holders of Notes party thereto and (ii) that certain Amendment No. 2 to Note Purchase Agreement (“Amendment 2”), dated as of September 25, 2015, by and among the Company and the Holders of Notes party thereto (as amended, the “Note Purchase Agreement”);

WHEREAS, the Company wishes to enter into (i) a new ESA (the “[***] ESA”) with the [***] and (ii) an associated Direct Agreement with respect to the [***] ESA (the “[***] Direct Agreement”);

WHEREAS, the Company wishes to amend the PUMA to incorporate the [***] ESA (the “PUMA Amendment”);

WHEREAS, as contemplated by Section 9.22(c) of the Note Purchase Agreement and the Policy, the Company wishes to update the Policy to reflect the [***] ESA, the PUMA Amendment, Amendment 1, Amendment 2 and the updated list of Sites (the “Policy Update” and together with this Amendment, the [***] ESA, the [***] Direct Agreement and the PUMA Amendment, the “Amendment Documents”);

WHEREAS, in furtherance of entering into the [***] ESA, the Company wishes to hereby amend the Note Purchase Agreement, in accordance with Article 17 of the Note Purchase Agreement, by amending Section 11.5, Schedule B, Schedule C, Schedule 4.1.27, Schedule 4.1.29 and Schedule 8.1 to the Note Purchase Agreement;

WHEREAS, in accordance with Sections 10.1 and 10.17 of the Note Purchase Agreement, the Company hereby requests consent of the Required Holders to the PUMA Amendment;

[***] Confidential Treatment Requested

WHEREAS, in accordance with Section VIII.6. of the Policy, the Company hereby requests consent of the Collateral Agent (as Loss Payee thereunder) to the Policy Update to the extent that any portion of the Policy Update constitutes an “amendment” of the Policy; and

WHEREAS, the Company wishes to hereby modify the calculation and payment mechanics of the Buydown Amount, including recalculation of the Amortization Schedule (Schedule 8.1), and, in accordance with Article 17 of the Note Purchase Agreement, the Company hereby requests the consent of each of the Holders of the Notes to the calculation and payment of the Buydown Amount and an amended Amortization Schedule as set forth herein;

NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, and for other consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto hereby agree as follows:

AGREEMENT

Section 1. Amendments to the Note Purchase Agreement.

(a) Section 11.5. Section 11.5 of the Note Purchase Agreement is hereby amended by adding “, [***]” immediately after “AT&T Corp.” in each of the second and fifth lines therein.

(b) Schedule B. The following definition is added to Schedule B of the Note Purchase Agreement in its proper alphabetical order:

“[***] ESA” is defined in Schedule C.

(c) Schedule C. Schedule C to the Note Purchase Agreement is hereby amended and restated in its entirety to read as Schedule C attached hereto.

(d) Schedule 4.1.27. Schedule 4.1.27 to the Note Purchase Agreement is hereby amended and restated in its entirety to read as Schedule 4.1.27 attached hereto.

(e) Schedule 4.1.29. Schedule 4.1.29 to the Note Purchase Agreement is hereby amended and restated in its entirety to read as Schedule 4.1.29 attached hereto.

(f) Schedule 8.1. Schedule 8.1 to the Note Purchase Agreement is hereby amended and restated in its entirety to read as Schedule 8.1 attached hereto.

Section 2. Consent. Each of the Holders of the Notes party hereto hereby consents, on the terms and subject to the conditions hereof, to the [***] ESA and [***] Direct Agreement, the PUMA Amendment and the Policy Update. To the extent that any portion of the Policy Update constitutes an “amendment” of the Policy, Collateral Agent (as Loss Payee thereunder) hereby consents, on the terms and subject to the conditions hereof, to the Policy Update pursuant to Section VIII.6. of the Policy.

Section 3. Calculation of Buydown Amount. Notwithstanding anything to the contrary set forth in Section 9.18 of the Note Purchase Agreement or Section 3 of Amendment 2, the Company and each Holder of Notes party hereto and who constitute all of the Holders of the Notes as of the date hereof agree that the Buydown Amount shall be calculated and paid in accordance with the terms of this Section 3 of this Amendment.

[***] Confidential Treatment Requested

2

(a) Calculation of Buydown Amount. The Company and the Holders of the Notes agree that the Buydown Amount shall be calculated by re-calculating the size of the Notes under the Base Case Projections (i) to reflect the actual Project system capacity, tolling rates, dates on which the Systems achieved COO, and actual results up to the Date Certain; and (ii) maintaining a DSCR at a [***] minimum from the Date Certain through the Maturity Date under the Downside Case (as re-calculated to reflect the actual Project system capacity, tolling rates, dates on which the Systems achieved COO, and actual results up to the Date Certain).

(b) Estimated Buydown Amount. In accordance with Section 3 of Amendment 2, the Company will provide an estimate of the Buydown Amount to each Holder of Notes no later than 10 days prior to the Date Certain, which estimate (i) shall reflect actual results of operations through the date of such estimate, and projections of operations from such date through the Date Certain, and (ii) shall be subject to verification by the Independent Engineer as to its compliance with the requirements set forth in Section 3(a) of this Amendment and the verification required by the last sentence of Section 3 of Amendment No. 2.

(c) Final Buydown Amount. Within ten Business Days after the Date Certain, the Company shall update the calculations of the estimated Buydown Amount to reflect actual results of operations through the Date Certain and deliver such revised calculation to each Holder of Notes. The Company shall prepay, pro rata among the Holders, the Notes in the aggregate amount of the Buydown Amount plus accrued and unpaid interest thereon within 30 days of notification from the Required Holders (in consultation with the Independent Engineer) that the Company’s re-calculation has been approved by the Required Holders.

(d) Revised Amortization Schedule. No later than 5 days after the prepayment by the Company to the Holders of the Buydown Amount, the Company shall deliver to each Holder a revised Amortization Schedule reflecting the amortization of the aggregate principal amount of Notes remaining outstanding through the Maturity Date.

Section 4. Rating Assessment Service. Each of the Holders of the Notes party hereto acknowledges receipt of a Ratings Assessment Service confirmation from the Rating Agency, attached hereto as Exhibit A to this Amendment.

Section 5. Work Fee. The Company hereby agrees to pay to the Holders of the Notes a “Work Fee” in consideration of such Holders’ efforts and expenses in connection with this Amendment, in the aggregate amount of [***]. The Work Fee will be paid on a pro rata basis to each Holder in accordance with the principal amount of Notes held by such Holder, and shall be paid on the same date as the Company’s payment of the Buydown Amount in accordance with Section 3(c) of this Amendment.

[***] Confidential Treatment Requested

3

Section 6. Effective Date. This Amendment has been duly executed by the Company. This Amendment shall be effective (the “Effective Date”) upon satisfaction of each of the following conditions precedent:

(a) Receipt by, or on behalf of, the Company of duly executed counterparts of this Amendment signed by the Collateral Agent and each of the Holders of Notes whose name appears on the signature pages hereto and who constitute all of the Holders of the Notes as of the date hereof.

(b) Receipt by each of the Holders of the Notes of true, correct and complete copies of, each Amendment Document, each in form and substance satisfactory to the Holders of the Notes party to this Amendment, (i) all of which shall have been duly authorized, executed and delivered by the parties thereto, and be in full force and effect on the Execution Date and (ii) with respect to which no breaches or defaults have occurred and are continuing thereunder, and accompanied by a certificate of the Company certifying to the foregoing.

(c) If any Governing Document of the Company or Sponsor have been amended, supplemented or otherwise modified since the Closing Date, receipt by each of the Holders of the Notes, in each case certified by a Responsible Officer of such Credit Party, of copies of such amendments, supplements or other modifications.

(d) Receipt by each of the Holders of the Notes of a copy of one or more resolutions or other authorizations, in form and substance reasonably satisfactory to the Holders of the Notes party to this Amendment, of each of the Company and Sponsor certified by a Responsible Officer of each such Credit Party as being true, complete and in full force and effect on the Effective Date and not amended, modified, revoked or rescinded, authorizing, as applicable and among other things, the Amendment Documents and the transactions contemplated by this Amendment, as applicable to such Credit Party.

(e) Receipt by each of the Holders of the Notes of a certificate, in form and substance reasonably satisfactory to the Holders of the Notes party to this Amendment, from each of the Company and Sponsor signed by the appropriate authorized officer or manager of such Credit Party and dated as of the Effective Date, as to the incumbency and specimen signature of each natural Person authorized to execute and deliver this Amendment, the other Amendment Documents and any instruments or agreements required hereunder or thereunder to which such Credit Party is a party, including various certificates to be delivered by such Credit Party pursuant to this Amendment.

(f) Receipt by each of the Holders of the Notes of certificates (in so-called “long-form” if available) issued by the secretary of state of the state in which each of the Company and Sponsor is formed or incorporated, as applicable, in each case (i) dated a date reasonably close to the Effective Date and (ii) certifying that such Credit Party is in good standing and is qualified to do business in, and has paid all franchise Taxes or similar Taxes due to, such states.

4

(g) Receipt by each of the Holders of the Notes party to this Amendment of an opinion in form and substance satisfactory to such Holder and addressed to each such Holder, dated as of the Execution Date from O’Melveny & Myers LLP, as counsel for the Company in form and substance satisfactory to each such Holder of the Notes.

(h) Receipt by each of the Holders of the Notes of an endorsement to the Policy addressing the Policy Update.

(i) Receipt by each of the Holders of the Notes of an update to the Base Case Projections revised as of the Effective Date, in form and substance satisfactory to the Holders of the Notes party to this Amendment.

Section 7. No Other Changes or Waivers. Except as expressly provided or contemplated by this Amendment, all of the terms, conditions and provisions of the Note Purchase Agreement remain unaltered and in full force and effect. Except as specifically provided herein, the execution, delivery and performance of this Amendment shall not be deemed as a waiver of any other matters or any future matters. The Note Purchase Agreement and this Amendment shall be read and construed as one instrument. This Amendment constitutes a Credit Document for all purposes.

Section 8. Representations and Warranties. The Company hereby represents and warrants that, as of the Effective Date (both immediately before and immediately after giving effect to the occurrence of the Effective Date and any transactions to occur thereon):

(a) It has all requisite power and authority to enter into each Amendment Document and to carry out the transactions contemplated by, and perform its obligations under, the Operative Documents as amended by the Amendment Documents.

(b) The execution and delivery of each Amendment Document and the performance of the Operative Documents as amended by the Amendment Documents have been duly authorized by all necessary action on the part of the Company.

(c) The execution and delivery by the Company of each Amendment Document and the performance by it of the Operative Documents as amended by the Amendment Documents do not and will not violate any Legal Requirement or any Obligation and will not result in, or require, the creation or imposition of any Lien on any of its properties or revenues pursuant to any Legal Requirement or any such Obligation (other than the Liens created by the Collateral Documents on the Closing Date and from time to time thereafter).

5

(d) Each Amendment Document has been duly executed and delivered by the Company and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting creditors’ rights generally and except as enforceability may be limited by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

(e) No consent or authorization of, filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person which has not been received, filed, given or done is required in connection with the transactions contemplated herein or the execution, delivery, performance, validity or enforceability of any Amendment Document.

(f) No event has occurred and is continuing or will result from the consummation of the transactions contemplated by the Amendment Documents that would constitute a Default or an Event of Default.

(g) The representations and warranties set forth in Article 5 of the Note Purchase Agreement are true and correct in all material respects (except for any such representation or warranty that relates solely to a specific date, in which case, such representation or warranty was true and correct in all material respects as of such date); provided that, to the extent any such representation and warranty itself is qualified by “materiality”, “Material Adverse Effect” or similar qualifier, it is true and correct in all respects.

Section 9. Headings. The Section titles contained in this Amendment are and shall be without substantive meaning or content of any kind whatsoever and are not a part of the agreement between the parties hereto.

Section 10. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK EXCLUDING CHOICE-OFLAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD PERMIT THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.

Section 11. Severability. Any provision of this Amendment that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by law) not invalidate or render unenforceable such provision in any other jurisdiction.

Section 12. Counterparts. This Amendment and any amendments, waivers, consents or supplements hereto or in connection herewith may be executed in one or more duplicate counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document. Signatures of the parties hereto transmitted by facsimile or portable document format (PDF) shall be deemed to be their original signatures for all purposes.

6

[The remainder of this page intentionally left blank]

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If you are in agreement with the foregoing, please sign the form of agreement on a counterpart of this Amendment and return it to the Company, whereupon this Amendment shall become a binding agreement between you and the Company.

Very truly yours, 2014 ESA PROJECT OMPANY, LLC
By	/s/ William E. Brockenborough
Name: William E. Brockenborough
Title:   Vice President

SIGNATURE PAGE TO AMENDMENT NO. 3 TO NOTE PURCHASE AGREEMENT

This Amendment is hereby accepted and agreed to as of the date hereof.

DEUTSCHE BANK TRUST COMPANY AMERICAS, as Collateral Agent
By:	DEUTSCHE BANK NATIONAL TRUST COMPANY
By:	/s/ David McGuire
	Name: David McGuire
	Title:   Assistant Vice President
By:	/s/ Andrew Ball
	Name: Andrew Ball
	Title:   Vice President

SIGNATURE PAGE TO AMENDMENT NO. 3 TO NOTE PURCHASE AGREEMENT

This Amendment is hereby accepted and agreed to as of the date hereof.

THE VARIABLE ANNUITY LIFE INSURANCE COMPANY

NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA

UNITED GUARANTY RESIDENTIAL INSURANCE COMPANY

AIG Asset Management (U.S.) LLC, Investment Adviser

By:	/s/ Andrew M. Bouffard
	Name: Andrew M. Bouffard
	Title:   Vice President

SIGNATURE PAGE TO AMENDMENT NO. 3 TO NOTE PURCHASE AGREEMENT

This Amendment is hereby accepted and agreed to as of the date hereof.

THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA

By: /s/ Barry Scheinholz

Name: Barry Scheinholz

Title:   Senior Director

THE GUARDIAN INSURANCE & ANNUITY COMPANY, INC.

By: /s/ Barry Scheinholz

Name: Barry Scheinholz

Title:   Senior Director

SIGNATURE PAGE TO AMENDMENT NO. 3 TO NOTE PURCHASE AGREEMENT

This Amendment is hereby accepted and agreed to as of the date hereof.

VOYA RETIREMENTT INSURANCE AND ANNUITY COMPANY (F/K/A ING LIFE INSURANCE AND ANNUITY COMPANY

VOYA INSURANCE AND ANNUITY COMPANY (F/K/A ING USA ANNUITY AND LIFE INSURANCE COMPANY)

RELIASTAR LIFE INSURANCE COMPANY

SECURITY LIFE OF DENVER INSURANCE COMPANY

By: Voya Investment Management LLC, as Agent

By:	/s/ Christopher P. Lyons
	Name: Christopher P. Lyons
	Title: Managing Director

SIGNATURE PAGE TO AMENDMENT NO. 3 TO NOTE PURCHASE AGREEMENT

This Amendment is hereby accepted and agreed to as of the date hereof.

MODERN WOODMEN OF AMERICA
By:	/s/ Douglas Pannier
	Name: Douglas A. Pannier
	Title: Group Head – Private Placements

SIGNATURE PAGE TO AMENDMENT NO. 3 TO NOTE PURCHASE AGREEMENT

This Amendment is hereby accepted and agreed to as of the date hereof.

PAN-AMERICAN LIFE INSURANCE COMPANY

By:	/s/ Lisa Baudot
	Name: Lisa Baudot
	Title: Vice President, Securities

SIGNATURE PAGE TO AMENDMENT NO. 3 TO NOTE PURCHASE AGREEMENT

SCHEDULE C

ENERGY SERVER USE AGREEMENTS

1. That certain Energy System Use Agreement, dated as of December 31, 2013, by and between Home Depot U.S.A., Inc. and the Company, as may be amended, amended and restated, supplemented or otherwise modified from time to time (“Home Depot ESA”).

2. That certain Energy System Use Agreement No. 20131206.035.C, dated as of March 31, 2014, by and between AT&T Corp. and the Company, as may be amended, amended and restated, supplemented or otherwise modified from time to time (“AT&T ESA-1”).

3. That certain Energy System Use Agreement No. 20131206.036.C, dated as of March 31, 2014, by and between AT&T Corp. and the Company, as may be amended, amended and restated, supplemented or otherwise modified from time to time (“AT&T ESA-2”).

4. That certain Energy System Use Agreement No. 20131206.037.C, dated as of March 31, 2014, by and between Pacific Bell Telephone Company and the Company, as amended by Amendment No. 1 to Energy System Use Agreement No. 20131206.037.C, effective as of May 15, 2014, by and between Pacific Bell Telephone Company and the Company, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time (“AT&T ESA-3”).

5. That certain Energy System Use Agreement No. 20131206.039.C, dated as of February 21, 2014, by and between Pacific Bell Telephone Company and the Company, as may be amended, amended and restated, supplemented or otherwise modified from time to time (“AT&T ESA-4”).

6. That certain Energy System Use Agreement No. 20140225.013.C, dated as of March 21, 2014, by and between AT&T Corp. and the Company, as may be amended, amended and restated, supplemented or otherwise modified from time to time (“AT&T ESA-5”).

7. That certain Energy Services and License Agreement, dated as of March 14, 2016, by and between [***] and the Company, as may be amended, amended and restated, supplemented or otherwise modified from time to time (“[***] ESA”).

[***] Confidential Treatment Requested

SCHEDULE C TO NOTE PURCHASE AGREEMENT

SCHEDULE 4.1.27

PROJECT SCHEDULE

[See Attached]

SCHEDULE 4.1.27 TO NOTE PURCHASE AGREEMENT

Schedule 4.1.27    

Project Schedule Updated    

				Site Address
Site ID	Customer	Named Offtaker (ESA Reference)	Customer Reference	Street	City	State	System Capacity (kW)	Initial Tolling Rate ($/kWh)	Expected COO
1	AT&T	Pacific Bell Telephone Company	[***]	[***]	San Diego	CA	[***]	[***]	[***]
2	AT&T	AT&T Corp.	[***]	[***]	Rego Park	NY	[***]	[***]	[***]
3	AT&T	AT&T Corp.	[***]	[***]	San Diego	CA	[***]	[***]	[***]
4	AT&T	AT&T Corp.	[***]	[***]	Freehold	NJ	[***]	[***]	[***]
5	AT&T	AT&T Corp.	[***]	[***]	Middletown	NJ	[***]	[***]	[***]
6	AT&T	Pacific Bell Telephone Company	[***]	[***]	Los Angeles	CA	[***]	[***]	[***]
7	AT&T	AT&T Corp.	[***]	[***]	Middletown	NJ	[***]	[***]	[***]
8	AT&T	Pacific Bell Telephone Company	[***]	[***]	Torrance	CA	[***]	[***]	[***]
9	AT&T	AT&T Corp.	[***]	[***]	Middletown	NJ	[***]	[***]	[***]
10	[***]	[***]	[***]	[***]	Pasadena	CA	[***]	[***]	[***]
11	[***]	[***]	[***]	[***]	Pasadena	CA	[***]	[***]	[***]
12	[***]	[***]	[***]	[***]	Pasadena	CA	[***]	[***]	[***]
13	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	San Diego	CA	[***]	[***]	[***]
14	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Chula Vista	CA	[***]	[***]	[***]
15	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	El Cajon	CA	[***]	[***]	[***]
16	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	San Diego	CA	[***]	[***]	[***]
17	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Anaheim	CA	[***]	[***]	[***]
18	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Brentwood	CA	[***]	[***]	[***]
19	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Palm Springs	CA	[***]	[***]	[***]
20	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Bakersfield	CA	[***]	[***]	[***]
21	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Windsor	CA	[***]	[***]	[***]
22	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Bakersfield	CA	[***]	[***]	[***]
23	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Seaside	CA	[***]	[***]	[***]
24	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Madera	CA	[***]	[***]	[***]
25	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Porterville	CA	[***]	[***]	[***]
26	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Stockton	CA	[***]	[***]	[***]
27	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Stockton	CA	[***]	[***]	[***]
28	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Los Banos	CA	[***]	[***]	[***]
29	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Salinas	CA	[***]	[***]	[***]
30	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Hanford	CA	[***]	[***]	[***]
31	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Covina	CA	[***]	[***]	[***]
32	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	El Monte	CA	[***]	[***]	[***]
33	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Red Bluff	CA	[***]	[***]	[***]
34	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Oakland	CA	[***]	[***]	[***]
35	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Oroville	CA	[***]	[***]	[***]
36	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	San Jose	CA	[***]	[***]	[***]
37	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Perris	CA	[***]	[***]	[***]
38	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Selma	CA	[***]	[***]	[***]
39	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Pomona	CA	[***]	[***]	[***]
40	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Chino	CA	[***]	[***]	[***]
41	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Fresno	CA	[***]	[***]	[***]
42	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Morgan Hill	CA	[***]	[***]	[***]
43	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Santa Rosa	CA	[***]	[***]	[***]
44	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Auburn	CA	[***]	[***]	[***]
45	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Yuba City	CA	[***]	[***]	[***]
46	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	San Luis Obispo	CA	[***]	[***]	[***]
47	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Lompoc	CA	[***]	[***]	[***]
48	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Rialto	CA	[***]	[***]	[***]
49	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Fresno	CA	[***]	[***]	[***]
50	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Inglewood	CA	[***]	[***]	[***]
51	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Compton	CA	[***]	[***]	[***]
52	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Vacaville	CA	[***]	[***]	[***]
53	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Poway	CA	[***]	[***]	[***]
54	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Santa Ana	CA	[***]	[***]	[***]
55	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Whittier	CA	[***]	[***]	[***]
56	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Waterford	CT	[***]	[***]	[***]
57	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Westbury	NY	[***]	[***]	[***]
58	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Elmont	NY	[***]	[***]	[***]
59	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Uncasville	CT	[***]	[***]	[***]
60	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Commack	NY	[***]	[***]	[***]
61	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Huntington	NY	[***]	[***]	[***]
62	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	East Palo Alto	CA	[***]	[***]	[***]
63	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Hayward	CA	[***]	[***]	[***]
64	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Deer Park	NY	[***]	[***]	[***]
65	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	New Milford	CT	[***]	[***]	[***]
66	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Glendale	CA	[***]	[***]	[***]
67	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	New Hartford	CT	[***]	[***]	[***]
68	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Escondido	CA	[***]	[***]	[***]
69	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Alhambra	CA	[***]	[***]	[***]
70	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Central Islip	NY	[***]	[***]	[***]
71	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Riverhead	NY	[***]	[***]	[***]
72	Home Depot	Home Depot U.S.A., Inc.	[***]	[***]	Norwalk	CT	[***]	[***]	[***]

Expected Final Completion Date 4/30/2016

[***] Confidential Treatment Requested    

SCHEDULE 4.1.29

LIST OF DIRECT AGREEMENTS

1. Direct Agreement with respect to the PUMA and ASA.

2. Direct Agreement with respect to the Home Depot ESA.

3. Direct Agreement with respect to the AT&T ESA-1.

4. Direct Agreement with respect to the AT&T ESA-2.

5. Direct Agreement with respect to the AT&T ESA-3.

6. Direct Agreement with respect to the AT&T ESA-4.

7. Direct Agreement with respect to the AT&T ESA-5.

8. Direct Agreement with respect to the [***] ESA.

[***] Confidential Treatment Requested

SCHEDULE 4.1.29 TO NOTE PURCHASE AGREEMENT

SCHEDULE 8.1

AMORTIZATION SCHEDULE

Date	Amortization Amount
12/30/2015	$	122,436
3/30/2016	$	36,659
6/30/2016	$	17,943
9/30/2016	$	96,199
12/30/2016	$	249,745
3/30/2017	$	276,362
6/30/2017	$	320,760
9/30/2017	$	277,073
12/30/2017	$	386,055
3/30/2018	$	414,965
6/30/2018	$	462,107
9/30/2018	$	420,160
12/30/2018	$	531,587
3/30/2019	$	563,763
6/30/2019	$	614,348
9/30/2019	$	576,540
12/30/2019	$	691,542
3/30/2020	$	726,936
6/30/2020	$	781,743
9/30/2020	$	747,218
12/30/2020	$	865,587
3/30/2021	$	903,795
6/30/2021	$	961,224
9/30/2021	$	929,081
12/30/2021	$	1,050,560
3/30/2022	$	1,092,702
6/30/2022	$	1,154,271
9/30/2022	$	1,126,952
12/30/2022	$	1,252,715
3/30/2023	$	1,298,263
6/30/2023	$	1,363,744
9/30/2023	$	1,339,307
12/30/2023	$	1,468,699
3/30/2024	$	1,518,702
6/30/2024	$	1,588,866
9/30/2024	$	1,569,786

SCHEDULE 8.1 TO NOTE PURCHASE AGREEMENT

Date	Amortization Amount
12/30/2024	$	1,704,016
3/30/2025	$	1,757,727
6/30/2025	$	1,832,249
9/30/2025	$	1,816,616
12/30/2025	$	1,955,057
3/30/2026	$	2,013,268
6/30/2026	$	2,092,020
9/30/2026	$	2,053,823
12/30/2026	$	2,195,707
3/30/2027	$	2,258,114
6/30/2027	$	2,341,269
9/30/2027	$	2,335,567
12/30/2027	$	2,482,699
3/30/2028	$	2,549,797
6/30/2028	$	2,637,544
9/30/2028	$	2,606,415
12/30/2028	$	2,757,114
3/30/2029	$	2,828,849
6/30/2029	$	2,920,803
9/30/2029	$	2,962,653
12/30/2029	$	3,236,909
3/30/2030	$	8,980,679

SCHEDULE 8.1 TO NOTE PURCHASE AGREEMENT

EXHIBIT A TO AMENDMENT NO. 3 TO NOTE PURCHASE AGREEMENT

EXHIBIT A TO AMENDMENT NO. 3 TO NOTE PURCHASE AGREEMENT

33 Whitehall Street New York, NY 10004 T 212 908 0500 /800 75 FITCH www.fitchratings.com

Mr. Puneet Verma

1299 Orleans Drive

Sunnyvale, CA 94089

(408) 543-1790

March 7, 2016

Dear Mr. Verma,

Re: Rating Assessment Service in respect of 2014 ESA Project Company, LLC

You have requested the rating assessment service described above from Fitch (see definition below). This rating assessment service is a point-in-time assessment and does not constitute a credit rating by Fitch of 2014 ESA Project Company, LLC. A point-in-time assessment will not be monitored by Fitch and therefore will not be updated to reflect changed circumstances or information that may affect the rating assessment service referred to in this letter.

This letter notifies you that based upon our analysis, which included a review of the following financing and project documents, among other information:

• Q1-Q4 2015 Operating Report

• Draft Amend#1 to the PUMA (dated 02/11/2016)

• Draft Amend#3 to the NPA (dated 02/10/2016)

• Draft Revised Amortization Schedule (dated 02/09/2016)

• Updated Model (dated 02/09/2016)

• Note Buydown Analysis (dated 02/09/2016)

• Draft ESA with [***] (dated 02/09/2016)

• Draft Endorsement #1 of the Insurance Policy (dated 02/11/2016)

• Completed Project List (as of 02/19/2016)

Fitch’s assessment of the creditworthiness of 2014 ESA Project Company, LLC’s $99,000,000 Senior Secured Notes due 2030 is ‘BBB’.

Criteria: “Rating Criteria for Infrastructure and Project Finance” dated 28 September 2015 and “Rating Criteria for Thermal Power Projects” dated 23 June 2015. All applicable criteria can be found at www.fitchratings.com.

[***] Confidential Treatment Requested

Page 1 of 6

For purposes of the rating assessment service, you have further asked us to assume, and we have assumed:

• The executed Note Purchase Agreement Amendment #3, [***] ESA, PUMA Amendment #1, Insurance Endorsement #1, note buy down amount, will match the terms of the drafts provided for the rating assessment service

Rating Rationale

Under the revised senior note structure, the reduced note commensurate with the portfolio downsizing and inclusion of [***] preserves the financial profile consistent with the rating. The project portfolio rating is constrained at ‘BBB’ due to minimum rating requirements allowed for potential replacement offtakers. The production insurance policy backstopping the performance of Bloom under the purchase use and maintenance agreement (PUMA) substantially decreases the risk of default over the course of the life of the debt. The Fitch rating case DSCR profile is adequate at the rating level given the limited potential for cash flow shortfalls. The [***] basis point cushion above [***] coverage helps provide margin for increases to costs not covered under the operating agreements and any delays in receipt of insurance proceeds, especially when combined with a 12-month debt service reserve.

Key Rating Drivers

Completion Risk Mitigation [Completion Risk: Stronger]: Completion relies on the sub-investment grade manufacturer funding construction with equity, with the total [***] of generation technology to be delivered and installed from the Sponsor’s manufacturing facility. Construction risk is mitigated by the construction agreement and draw schedule which only funds debt amounts based on actual units placed in service.

Stable and Diversified Revenue Generation [Revenue Risk: Midrange]: The project operates under several tolling-style offtake agreements with investment grade counterparties (Home Depot ‘A’/Stable Outlook, AT&T ‘A-’/Stable Outlook, and [***]). The offtakers are obligated to purchase all power produced by the units under a fixed-price schedule, escalating annually. The distributed generation nature of the project helps to ensure that underproduction at any given site would not have a significant impact on overall cash flows. The offtakers can elect to replace themselves under the contracts with counterparties of at least ‘BBB’ credit quality over the life of the agreement, capping the rating of the project at ‘BBB’.

Limited Commodity Risk [Supply Risk: Stronger]: Under the revenue agreements, the offtakers are responsible for procuring all natural gas utilized by the project with Bloom providing all infrastructure necessary to connect each system to the gas tap. The project must maintain an average efficiency over the term of the agreement, typical of a tolling agreement, with a shared cost of increased gas consumption between Bloom and the offtaker in the event of severe or sustained efficiency underperformance.

Experienced Operator [Operation Risk: Midrange]: The project is subject to reduced cash flows due to system underperformance over the life of the debt. The performance of the operator

[***] Confidential Treatment Requested

Page 2 of 6

(Bloom) under the contract is backed by a production insurance policy that effectively establishes the insurer, Indian Harbor Insurance Company (rated ‘A+P’/ Stable Outlook) as the primary obligor of the debt. This policy helps to mitigate operating risk of the relatively nascent technology given Bloom’s assumed sub-investment grade rating.

Typical Debt Structure with Insurance Backstopped Performance [Debt Structure: Stronger]: The structure of the project’s fixed-rate fully amortizing debt set to mature in 2030 is typical of project financings. The project benefits from a 12-month cash funded debt service reserve to meet quarterly debt payments under a scenario where cash flow is insufficient and the project is reliant on insurance payments. Indian Harbor will cover any shortfalls in debt service on an ongoing basis due to portfolio underperformance or buy down the debt in the event of a Bloom bankruptcy, subject to several exceptions.

Adequate Cash Flow Cushion: Under Fitch’s rating case, which incorporates a haircut to output consistent with the limited operating history of the existing Bloom fleet and a [***] increase to non-fixed operating expenses, DSCRs average [***] times (x) with a minimum of [***]. Fitch views the cushion above [***] coverage as sufficient, when combined with the 12-month debt service reserve, to face any operational challenges over the life of the debt.

Peer Comparison Limited: Fitch does not have the benefit of multiple comparable peer projects within the rated portfolio. Although debt service coverage is lower than similarly rated thermal power projects, the transaction benefits from increased complexity in terms of repayment due to the lack of a tariff structure and reliance on the production insurance policy.

Rating Sensitives

Negative: Persistent and significant increases to variable operating expenses combined with reductions to output to near 80% capacity which could push DSCRs below 1.0x coverage; Negative: Sustained delays in receipt of business interruption insurance as a result of a large scale outage across multiple sites which could impact short term liquidity; Negative: A change in credit quality of the offtakers, any replacement offtakers or the production insurer to below the project rating; Positive: A rating upgrade is unlikely due to minimum rating requirement of replacement offtakers.

Security

The note is secured by a first priority continuing security interest in all tangible and intangible assets of the project.

Credit Update

The portfolio is 85% complete under the revised capacity with 16.2MW installed as of 02/19/2016. The remaining sites, including [***], are permitted and in process of installation. Actual onsite installation involves delivery and positioning of the fuel cell stacks on the cement slabs constructed for the site and, according to the Sponsor, will require less than half of a day in labor.

[***] Confidential Treatment Requested

Page 3 of 6

Construction risk is somewhat mitigated by the modular construction and favourable debt drawdown/termination provisions in the PUMA contract. The insolvency insurance additionally mitigates default risk of Bloom Energy whereby Indian Harbor becomes the primary obligor and covers full repayment of the debt either by one-time or continued quarterly payments.

Transaction Summary

The proposed transaction consists of [***] of distributed fuel cell generating technology across 72 sites in California, New York, New Jersey and Connecticut under 15-year “take-or-pay” tolling style offtake agreements with [***]. The host sites for the fuel cell stacks will be various retail locations and corporate offices for the two entities and will require all energy produced by the cells to be purchased over the life of the energy server use and license and energy system use agreements (collectively, the ESAs).

The project’s ownership is split 90%/10% between the tax equity investor, a wholly-owned subsidiary of Exelon Corporation (rated ‘BBB+’ with a Negative Watch) and Clean Technologies 2014, LLC (a Bloom Energy subsidiary). Equity contributions from the Exelon investing entity will carry a parent guarantee from Exelon Corporation. Under the ESAs with [***] as well as the PUMA, the project will be constructed and operated by Bloom, creating a large reliance on Bloom as a key counterparty. Bloom is a private US technology company headquartered in California with substantial experience in the manufacturing, installation and operation of solid oxide fuel cells using its own proprietary technologies.

Financial Analysis

Fitch’s base case expectation for operational performance reflects capacity factors of 95% consistent with the warranty under the PUMA. The base case scenario results in an average DSCR of [***] with a minimum of [***] in 2025. The Fitch rating case reflects further sensitivities with a 85% capacity factor and 10% increase to non-fixed O&M costs such as property taxes, insurance, and other fees. The rating case resulted in an average DSCR of [***] with a minimum of [***] in 2025.

Counterparty Risk

The project is exposed to Bloom Energy as the contractor, operator and partial owner under the various project agreements. Bloom is unrated and is considered to be sub-investment grade. The production insurance policy protects the project from a Bloom insolvency scenario. The production policy insurer Indian Harbor is rated `A+’/Stable Outlook and is not considered an active constraint for the project rating. Currently all offtakers ratings are above the minimum ‘BBB’ rating for replacements.

[***] Confidential Treatment Requested

Page 4 of 6

Disclosures

This rating assessment service is based on the information and documents provided to us by you and other parties. Fitch relies on all these parties for the accuracy of such information and documents. Fitch did not audit or verify the truth or accuracy of such information and does not take responsibility for the appropriateness of the information provided and used in the analysis. Fitch provides this rating assessment service “as is” and does not represent, warrant or guarantee (i) the accuracy, correctness, integrity, completeness or timeliness of any part of this rating assessment service, or (ii) that this rating assessment service (or any credit rating) and the information and analyses contained in, and constituting a part of, this rating assessment service will fulfill any of your or any third party’s particular purposes or needs.

Since this is not an actual credit rating, there can be no assurance that should the scenario described above occur, an actual credit rating for 2014 ESA Project Company, LLC, if issued by Fitch, would be the same as this rating assessment service.

This rating assessment is based on established criteria and methodologies that Fitch is continuously evaluating and updating. Therefore, rating assessments are the collective work product of Fitch and no individual, or group of individuals, is solely responsible for a rating assessment. All Fitch reports have shared authorship. Individuals identified in a Fitch report were involved in, but are not solely responsible for, the opinions stated therein. The individuals are named for contact purposes only.

Fitch is not your advisor, nor is Fitch providing to you or any other party any financial advice, or any legal, auditing, accounting, appraisal, valuation or actuarial services. This rating assessment service should not be viewed as a replacement for such advice or services. Nothing in this letter is intended to or should be construed as creating a fiduciary relationship between you and Fitch or between Fitch and any user of the rating assessment service.

This rating assessment service is not a credit rating and is not intended for publication or distribution by you. You have agreed to take reasonable steps to ensure that this rating assessment service is kept private and confidential between Fitch, you and your agents, advisors and consultants.

Fitch is not responsible for any underwriting, credit, loan, purchase, strategic or investment decision, or damages or other losses resulting from use of this rating assessment service. In providing this rating assessment service, Fitch is not making any recommendation or suggestion, directly or indirectly, to you or any other person, to buy, sell, make or hold any investment, loan or security or to undertake any investment strategy with respect to any investment, loan, or security of any issuer.

This rating assessment service does not comment on the adequacy of market price, the suitability of any investment, loan or security for a particular investor (including without limitation, any accounting and/or regulatory treatment), or the tax-exempt nature or taxability of payments made in respect of any investment, loan or security.

Page 5 of 6

This rating assessment service does not constitute consent by Fitch to the use of its name as an expert in connection with any registration statement or other filings under US, UK or any other relevant securities laws. Fitch does not consent to the inclusion of its ratings nor its rating assessments in any offering document in any instance in which US, UK or any other relevant securities laws requires such consent. You understand that Fitch has not consented to, and will not consent to, being named as an “expert” in connection with any registration statement or other filings under US, UK or any other relevant securities laws, including but not limited to Section 7 of the U.S. Securities Act of 1933. Fitch is not an “underwriter” or “seller” as those terms are defined under applicable securities laws or other regulatory guidance, rules or recommendations, including without limitation Sections 11 and 12(a) (2) of the U.S. Securities Act of 1933, nor has Fitch performed the roles or tasks associated with an “underwriter” or “seller” under this engagement.

In this letter, “Fitch” means Fitch Ratings, Inc. together with any successor in interest.

We are pleased to have had the opportunity to provide this rating assessment service to you. If we can be of further assistance, please contact Justin Wu at 415-732-5612 or Patricia McGuigan 212-908-0675

Sincerely,

Cherian George

Managing Director

Global Infrastructure and Project Finance

Page 6 of 6

EX-10

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Exhibit 10.29

Execution

2015 ESA HOLDCO, LLC

a Delaware Limited Liability Company

AMENDED AND RESTATED OPERATING AGREEMENT

Dated as of June 25, 2015

THE SECURITIES (MEMBERSHIP INTERESTS) REPRESENTED BY THIS AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR REGISTERED OR QUALIFIED UNDER ANY SECURITIES OR BLUE SKY LAWS OF ANY STATE OR JURISDICTION. THEREFORE, THE SECURITIES MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED UNTIL A REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR THE APPLICABLE STATE SECURITIES OR BLUE SKY LAWS SHALL HAVE BECOME EFFECTIVE WITH REGARD TO THE PROPOSED TRANSFER OR, IN THE OPINION OF LEGAL COUNSEL ACCEPTABLE TO THE COMPANY, REGISTRATION OR QUALIFICATION UNDER THE SECURITIES ACT OR BLUE SKY LAWS IS NOT REQUIRED IN CONNECTION WITH THE PROPOSED TRANSFER.

2015 ESA HOLDCO, LLC

AMENDED AND RESTATED OPERATING AGREEMENT

TABLE OF CONTENTS

		Page
ARTICLE I DEFINITIONS			1
1.1	Certain Definitions		1
1.2	Other Definitional Provisions		13
ARTICLE II THE COMPANY			14
2.1	Continuation of Limited Liability Company		14
2.2	Name		14
2.3	Principal Office		14
2.4	Registered Office; Registered Agent		14
2.5	Purposes		15
2.6	Term		15
2.7	Title to Property		15
2.8	Units; Certificates of Membership Interest; Applicability of Article 8 of UCC		15
ARTICLE III CAPITAL CONTRIBUTIONS AND PAYMENTS			15
3.1	Class A Interests; Capital Contributions of the Class A Member		15
3.2	Class B Interests; Capital Contributions of the Class B Member		16
3.3	No Other Required Capital Contributions		16
3.4	No Right to Return of Capital Contributions		16
ARTICLE IV CAPITAL ACCOUNTS; ALLOCATIONS			16
4.1	Capital Accounts		16
4.2	Profits and Losses		17
4.3	Special Allocations		18
4.4	Curative Allocations		20
4.5	Income Tax Allocations		20
4.6	Other Allocation Rules		21
ARTICLE V DISTRIBUTIONS			21
5.1	Distributions of Available Cash Flow		21
5.2	Limitation		21
5.3	Withholding		22
5.4	Satisfaction of Certain Obligations Under Article XI		22
5.5	Other Distributions		25

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ARTICLE VI MANAGEMENT		25
6.1	Managing Member	25
6.2	Standard of Care; Required Consents	26
6.3	Removal of Managing Member	29
6.4	Indemnification and Exculpation	30
6.5	Company Reimbursement	30
6.6	Additional Covenants	30
ARTICLE VII RIGHTS AND RESPONSIBILITIES OF MEMBERS		31
7.1	General	31
7.2	Member Voting Rights	31
7.3	MemberLiability	31
7.4	Withdrawal	31
7.5	Member Compensation	32
7.6	Other Ventures	32
7.7	Confidential Information	32
7.8	ERISA Matters	34
ARTICLE VIII ADMINISTRATIVE AND TAX MATTERS		35
8.1	Intent for Income Tax Purposes	35
8.2	Books and Records	36
8.3	Information; Access and Audit Rights	36
8.4	Reports	36
8.5	Permitted Investments	37
8.6	Tax Elections	38
8.7	Tax Matters Member and Company Tax Filings	39
8.8	Financial Accounting	41
8.9	Legend	41
8.10	Representations, Warranties and Covenants of the Class B Member	42
8.11	Representations, Warranties and Covenants of the Class A Member	43
8.12	Survival	44
8.13	No Breach of Obligations	44
ARTICLE IX TRANSFERS OF INTERESTS; PURCHASE OPTION		44
9.1	Transfer and Encumbrances of Membership Interests	44
9.2	Buyout Option	49
ARTICLE X DISSOLUTION, LIQUIDATION AND TERMINATION		50
10.1	Dissolution	50
10.2	Liquidation and Termination	51
10.3	Deficit Capital Accounts	52
10.4	Termination	53

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ARTICLE XI INDEMNIFICATION		53
11.1	Indemnification of Class A Investor Group by the Class B Member	53
11.2	Indemnification of Class B Investor Group by the Class A Member	54
11.3	Brokers	54
11.4	Limitation on Liability	54
11.5	Procedure for Indemnification	55
11.6	Exclusivity	56
11.7	No Right of Contribution	56
11.8	Entire Agreement	56
ARTICLE XII GENERAL PROVISIONS		56
12.1	Offset	56
12.2	Notices	57
12.3	Counterparts	58
12.4	Governing Law and Severability	58
12.5	Entire Agreement	58
12.6	Effect of Waiver or Consent	58
12.7	Amendment or Modification	58
12.8	Binding Effect	59
12.9	Further Assurances	59
12.10	Jurisdiction; Service of Process	59
12.11	Limitation on Liability	59
EXHIBITS
Exhibit A	Capital Contributions Made
Exhibit B	Form of Membership Interest Certificate

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2015 ESA HOLDCO, LLC

AMENDED AND RESTATED OPERATING AGREEMENT

THIS AMENDED AND RESTATED OPERATING AGREEMENT, dated as of June 25, 2015, is made and entered into by and among 2015 ESA Investco, LLC, a Delaware limited liability company (together with its permitted successors and assigns, the “Class A Equity Investor”), as the Class A Member, and CLEAN TECHNOLOGIES 2015, LLC, a Delaware limited liability company (the “Class B Equity Investor”), as the Class B Member.

RECITALS

A. 2015 ESA HoldCo, LLC, a Delaware limited liability company (the “Company”), was formed pursuant to the Act on September 11, 2014.

B. Prior to the Effective Date of this Agreement, the Class B Equity Investor owned 100% of the membership interests in the Company.

C. Concurrently herewith, pursuant to that certain Equity Capital Contribution Agreement, dated as of June 25, 2015 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Equity Capital Contribution Agreement”), between the Class A Equity Investor and the Class B Equity Investor, (i) the Class A Equity Investor has made an equity capital contribution to the Company and in consideration therefor has acquired a membership interest specified as a Class A Interest in the Company and is admitted as a Class A Member of the Company pursuant hereto, and (ii) the Class B Equity Investor has made an equity contribution to the Company and in consideration therefor the membership interest in the Company owned by the Class B Equity Investor has been converted into the membership interest specified as the Class B Interest in, and the Class B Equity Investor is hereby designated as the Class B Member of, the Company.

NOW, THEREFORE, in consideration of the premises and the mutual undertakings contained herein, the parties hereto hereby agree, and amend and restate the existing Limited Liability Company Agreement of the Company, dated as of September 11, 2014 (the “Prior LLC Agreement”) in its entirety as follows:

ARTICLE I

DEFINITIONS

1.1 Certain Definitions. Initially capitalized terms not defined in this Agreement shall have the meanings assigned such terms in the Equity Capital Contribution Agreement. The following initially capitalized terms, as and when used in this Agreement, shall have the following meanings:

“Act” means the Delaware Limited Liability Company Act, 6 Del. Code §§ 18 101 et seq., as amended from time to time, and any successor to such Act.

“Active Person” has the meaning set forth in the definition of “Disqualified Transferee” herein.

“Adjusted Capital Account Deficit” means, with respect to any Member, the deficit balance, if any, in the Capital Account established and maintained for such Member, as the same is specially computed as of the end of each Taxable Year after giving effect to the following adjustments:

(i) Credit to such Member’s Capital Account any amounts which such Member elects to restore pursuant to Section 10.3 or is deemed obligated to restore pursuant to the penultimate sentences in Treasury Regulation Section 1.704- 2(g)(1) and 1.704-2(i)(5); and

(ii) Debit to such Member’s Capital Account any items described in Treasury Regulation Sections 1.704-1(b)(2)(ii) (d)(4), (5) and (6).

The foregoing definition of Adjusted Capital Account Deficit is intended to comply with the provisions of Treasury Regulation Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently with such Regulation.

“Advisors” has the meaning set forth in Section 7.7(a).

“Affected Member” has the meaning set forth in Section 9.2(b).

“Agreement” means this Amended and Restated Operating Agreement, as amended, supplemented or restated from time to time pursuant to the provisions hereof

“Annual Report” means the report delivered pursuant to Section 8.4(a).

“Appraisal Procedure” means, within fifteen (15) days of a party invoking the procedure described in this definition, the Class A Members and Class B Members shall engage a Qualified Appraiser, mutually acceptable to the Members, to determine the Fair Market Value of the Class A Interests.

“ASA” means either of the Company ASA or the Facility Company ASA.

“Available Cash Flow” means, with respect to any date of determination, the gross cash receipts from Company and Facility Company operations (including sales and dispositions of Company and Facility Company Assets), insurance payments, warranty payments, cash previously reserved and all Capital Contributions received from Members, in each case during the period beginning on the date the last cash distribution was made to Members and ending on such date of determination, less the portion thereof used to pay, or establish reserves for, all Company and Facility Company expenses (including amounts due and payable to the Class B Member or any Affiliate under the ASAs and debt service obligations under the Financing Documents), and Company Reimbursable Expenses.

“Bid” has the meaning set forth in Section 9.1(d).

“Bloom Energy” means Bloom Energy Corporation, a Delaware corporation.

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“Bloom Guarantee” means the limited guaranty made by Bloom Energy in favor of the Class A Equity Investor.

“Buyout Event” has the meaning set forth in Section 9.2(a).

“Buyout Exercise Notice” has the meaning set forth in Section 9.2(c).

“Buyout Price” has the meaning set forth in Section 9.2(d).

“Capital Account” means the capital account established and maintained for a Member pursuant to Section 4.1.

“Capital Contribution” means any cash or the Value of any other property (net of liabilities secured by such property that the Company is considered to assume or take subject to under Code Section 752) that a Member directly or indirectly contributes to the Company pursuant to Article III or has previously contributed to the Company.

“Cash Equivalents” means any of the following having a maturity of not greater than one year from the date of issuance thereof: (a) readily marketable direct obligations of the government of the United States of America or any agency or instrumentality thereof or obligations unconditionally guaranteed by the full faith and credit of the government of the United States of America, (b) insured certificates of deposit of or time deposits with any commercial bank that is a member of the Federal Reserve System, which issues (or the parent of which issues) commercial paper rated as described in clause (c) below, which is organized under the laws of the United States or any State thereof and which has combined capital and surplus of at least $1,000,000,000 or (c) commercial paper issued by any corporation, other than an Affiliate of the Managing Member, organized under the laws of any State of the United States and rated at least “Prime-1” (or the then equivalent grade) by Moody’s Investor Service, Inc. (or any successor thereto) or “A-1” (or the then equivalent grade) by Standard & Poor’s Rating Group, a division of Standard & Poor’s Corporation (or any successor thereto).

“Certified Public Accountant” means a firm of independent public accountants selected from time to time by the Managing Member and approved with the Consent of the Members. The initial Certified Public Accountant is PricewaterhouseCoopers LLP.

“Change of Member Control” means with respect to the Class B Member, an event (such as a Transfer of voting securities) that causes the Class B Member to cease to be Controlled by the Class B Member’s Member Parent; provided, however, that an event that causes such Class B Member’s Member Parent to be Controlled by another Person shall not constitute a Change of Member Control.

“Claims” means all claims, suits, demands, injunctions, actions, causes of action, assessments, cleanup and remedial obligations, judgments, awards, liabilities, losses (including amounts paid in settlement of claims), damages (including any loss of profits, consequential, punitive, incidental or special damages recovered by any Third Party, but excluding any loss of profits, consequential, punitive, incidental or special damages asserted by any Member or an Affiliate), fines, fees, taxes, penalties, costs and expenses of every kind and character (including litigation costs and reasonable attorneys’ and experts’ fees and expenses, including such fees and expenses at trial and on any appeal).

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“Class A Equity Investor” has the meaning set forth in the preamble.

“Class A Interest” means a Membership Interest issued pursuant to Section 3.1, which entitles the Holder thereof to receive the distributions of cash and property, allocations of profits and losses and other rights that are accorded Holders of a Class A Interest under this Agreement.

“Class A Investor Claim” has the meaning set forth in Section 11.1. “Class A Investor Group” has the meaning set forth in Section 11.1.

“Class A Member(s)” means each Person holding a Class A Interest. As of the Effective Date, the Class A Member means the Class A Equity Investor.

“Class A Unit” means a unit representing a Class A Interest having the rights, preferences and designations provided for such class in this Agreement.

“Class B Equity Investor” has the meaning set forth in the preamble.

“Class B Interest” means the Membership Interest issued pursuant to Section 3.2, which entitles the Holder thereof to receive distributions of cash and property, allocations of profits and losses and other rights that are accorded Holders of a Class B Interest under this Agreement.

“Class B Investor Claim” has the meaning set forth in Section 11.2. “Class B Investor Group” has the meaning set forth in Section 11.2.

“Class B Member” means the Person(s) holding a Class B Interest. Initially, and as of the Effective Date, the Class B Member means the Class B Equity Investor.

“Class B Unit” means a unit representing a Class B Interest having the rights, preferences and designations provided for such class in this Agreement.

“Company” has the meaning set forth in the recitals.

“Company Minimum Gain” has the meaning given the term “partnership minimum gain” set forth in Treasury Regulation Section 1.704-2(b)(2) and will be determined as provided in Treasury Regulation Section 1.704-2(d).

“Company Reimbursable Expenses” means all reasonable Third Party costs and expenses (including legal, accounting and auditing fees) incurred either by the Managing Member on behalf of the Company or the Company on behalf of the Facility Company, in the performance of duties relating to the Company’s or the Facility Company’s activities or business, in accordance with this Agreement.

“Confidential Information” has the meaning set forth in Section 7.7(a).

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“Consent of the Class A Members” means, at any time, the consent or approval of Class A Members who own in the aggregate more than fifty percent (50%) of the Class A Units outstanding at such time.

“Consent of the Class B Members” means, at any time, the consent or approval of Class B Members who own in the aggregate more than fifty percent (50%) of the Class B Units outstanding at such time.

“Consent of the Members” means each of (i) the Consent of the Class A Members and (ii) the Consent of the Class B Members.

“Consistent Return” has the meaning set forth in Section 8.7(a).

“Control”, “Controlled”, and “Controlling” means the possession, directly or indirectly, of any of the following: (i) in the case of a corporation, more than fifty percent (50%) of the outstanding voting securities thereof; (ii) in the case of a limited liability company, partnership, limited partnership or joint venture, the right to more than fifty percent (50%) of the distributions (including liquidating distributions) therefrom; (iii) in the case of a trust or estate, including a business trust, more than fifty percent (50%) of the beneficial interest therein; (iv) in the case of any other entity, more than fifty percent (50%) of the economic or beneficial interest therein; or (v) in the case of any entity, the power or authority, through ownership of voting securities, by contract or otherwise, to exercise a controlling influence over the management of the entity.

“Credit Agreement” means that certain Credit Agreement, dated as of June 25, 2015, by and among the Facility Company and each Facility Lender party thereto.

“Damages” all claims, actions, causes of action, demands, assessments, losses, damages, liabilities, judgments, settlements, taxes, penalties, costs, and expenses (including reasonable attorneys’ fees and expenses, including without limitation, such fees and expenses at trial and on any appeal), of any nature whatsoever.

“Delaware Certificate” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware on September 11, 2014, as amended or restated from time to time.

“Depreciation” means, for each Taxable Year or other period, an amount equal to the depreciation, amortization or other cost recovery deduction allowable with respect to an Asset for such period, except that if the Value of any Asset differs from its adjusted basis for federal income tax purposes at the beginning of such period, Depreciation shall be an amount which bears the same ratio to such beginning Value as the federal income tax depreciation, amortization or other cost recovery deduction for such year or other period bears to such beginning adjusted tax basis; provided, however, that if the federal income tax depreciation, amortization or other cost recovery deduction for such year is zero, Depreciation shall be determined with reference to such beginning Value using any method selected by the Managing Member and reasonably acceptable to the Members.

5

“Disqualified Transferee” means any Person which is, or whose Affiliate is, then (A) a party adverse in any pending or threatened action, suit or proceeding to the Company or the Class B Member or an Affiliate thereof, if the Company or such Member shall not have consented (in its sole and absolute discretion) to the Transfer to such Person, (B) with respect to any Transfer of a Class A Interest, directly or indirectly engaged in owning, managing, operating, maintaining or developing facilities utilizing fuel cells for the production of electricity for sale to others (an “Active Person”) except for an Affiliate of an Active Person where such Affiliate of an Active Person is an entity regularly involved in making passive investments in such facilities (a “Passive Investor”) if such Passive Investor has certified in a manner reasonably acceptable to the Class B Member that it has in place procedures to prevent its Affiliates which are Active Persons from acquiring confidential information relating to such passive investments; provided, however, that, for the avoidance of doubt, a Person will not be deemed to be an Active Person solely by virtue of owning an interest in a facility similar to the ownership interest of the Class A Member or (C) a Person to whom a Transfer of Membership Interests would cause a recapture of any ITC claimed by the Company with respect to a Facility pursuant to Section 50(a) of the Code.

“Effective Date” means the date of this Agreement.

“Emergency” means an event has occurred which the Managing Member reasonably believes requires imminent action to address and which, if not taken, could materially and adversely affect the Company or Facility Company including, but not limited to, acts of God, floods, earthquakes, lightning, ice and ice storms, hurricanes, tornadoes, other natural disasters or environmental catastrophes, fires, explosions, accidents, wars, riots, civil disturbances, blockades or acts of a public enemy.

“Equity Capital Contribution Agreement” has the meaning set forth in the recitals.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.

“ERISA Affiliate” means any Person (whether or not incorporated) which is under common control with the Company within the meaning of section 4001(a) of ERISA or that is treated as a single employer together with the Company under section 414 of the Code.

“Escrow” has the meaning set forth in Section 5.4(e).

“Escrow Agent” has the meaning set forth in Section 5.4(e).

“Escrowed Funds” has the meaning set forth in Section 5.4(e)(i).

“Executive Steering Committee” means an executive steering committee comprised of one (1) primary representative and one (1) alternate representative from each of Exelon and Bloom Energy, each of whom is an executive with reasonable decision making power to resolve disputes and the authority to enter into binding agreements for such party.

6

“Exelon” means Exelon Generation Company, LLC, a Pennsylvania limited liability company.

“Exelon Guarantee” means that certain limited guaranty issued by Exelon in favor of the Class B Equity Investor.

“Facility Company” means 2015 ESA Project Company, LLC, a Delaware limited liability company.

“Facility Debt” means non-recourse senior debt of the Facility Company from a lender or group of lenders reasonably satisfactory to Investor.

“Facility Documents” means, collectively, (i) the Principal Facility Documents or any agreement entered into in replacement or substitution of any such agreement and (ii) any other agreement (including, without limitation, any agreement to sell electricity or renewable energy credits) entered into by the Company or the Facility Company after the Effective Date having a term in excess of one (1) year and providing for payments by or to the Company or the Facility Company in excess of $100,000 per year.

“Facility Lenders” means the lender parties to the Credit Agreement and any trustee or agent acting on behalf of such lender parties.

“Fair Market Value” means, with respect to any Asset, the price at which such Asset would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell, and both having reasonable knowledge of the relevant facts, and specifically with respect to the Facilities or any Membership Interest in the Company, as determined consistently with Section 4.05 of Revenue Procedure 2007-65.

“Financing Documents” means the Credit Agreement, depositary agreement, security agreement, pledge agreement, interparty agreement, and any promissory note or interest rate hedge agreement, and any other material agreement entered into in connection therewith, including without limitation any “Financing Document” as defined in the Credit Agreement.

“Fiscal Year” means the calendar year, except that the initial Fiscal Year of the Company commenced on Effective Date and the final Fiscal Year of the Company shall end on the date on which the Company is terminated under Article X.

“GAAP” means United States generally accepted accounting principles consistently applied.

“Holder” means any Member.

“Indebtedness” means indebtedness for borrowed money and any capital lease of any property as lessee, but expressly does not include short-term (i.e., less than one year in maturity) trade payables or operating leases incurred in the ordinary course of business.

7

“IRS” means the Internal Revenue Service and any successor Governmental Authority.

“ITC” means the investment tax credit under Section 48 of the Code.

“Licenses and Permits” means any filings with, and licenses, permits, approvals and authorizations from, any Governmental Authority, including Environmental Permits.

“Liquidating Events” has the meaning set forth in Section 10.1(a).

“Managing Member” means a Member appointed by the Members pursuant to Article VI to manage the affairs of the Company on their behalf and any other Person hereafter appointed as a successor Managing Member of the Company as provided in Article VI. Pursuant to its appointment by the Members in Section 6.1, the Class B Equity Investor shall be the initial Managing Member of the Company.

“Member ERISA Affiliate” means, with respect to each Member, any Person (whether or not incorporated) which is under common control with such Member within the meaning of section 4001(a) of ERISA or that is treated as a single employer together with such Member under section 414 of the Code (excluding the Company or any of its other ERISA Affiliates).

“Member Nonrecourse Debt Minimum Gain” has the meaning given the term “partner nonrecourse debt minimum gain” set forth in Treasury Regulation Section 1.704-2(i)(2), and will be computed as provided in Treasury Regulation Section 1.7042 (i)(3).

“Member Nonrecourse Debt” has the meaning given the term “partner nonrecourse debt” in Treasury Regulation Section 1.704-2(b)(4).

“Member Nonrecourse Deductions” an amount, with respect to each Member Nonrecourse Debt, equal to the Company Minimum Gain that would result if such Member Nonrecourse Debt were treated as a Nonrecourse Liability, determined in accordance with Treasury Regulation Section 1.704-2(i)(3).

“Member Parent” means, with respect to a Member, the first company in the chain of ownership that directly or indirectly owns and Control such Member on the Effective Date or, if applicable, from and after the date of a Change of Member Control in accordance with Section 9.1(b)(iv), and that is itself not a special purpose entity (i.e., it owns meaningful (as measured by dollar value) assets in addition to its direct or indirect ownership interests in such Member.)

“Member” means those Persons who execute the signature page of this Agreement or otherwise agree to be bound hereby and are admitted to the Company as Members pursuant to this Agreement, excluding any Person (i) having solely the status of an assignee or (ii) that has ceased to be a Member.

8

“Membership Interest” as to any Member means the entire limited liability company interest and rights of that Member in the Company, including, without limitation, its right to a share of the profits, losses, deductions and credits of the Company and its right to a distributive share of the Assets of the Company in accordance with the provisions hereof. Membership Interests shall consist of Class A Interests and Class B Interests, each of which shall constitute a separate class of limited liability company interests, but shall not constitute a “series” for purposes of Section 18-215 of the Act.

“Moody’s” means Moody’s Investor Service, or any successor entity.

“Multiemployer Plan” means, with respect to each Member, a “multiemployer plan” (as such term is defined in section 4001(a)(3) of ERISA), which is, or within the immediately preceding six years was, contributed to by such Member or any of its Member ERISA Affiliates.

“Nonrecourse Deductions” has the meaning given such term in Treasury Regulation Sections 1.704-2(b)(1) and 1.704-2 (c).

“Nonrecourse Liability” has the meaning given such term in Treasury Regulation Section 1.704-2(b)(3).

“Obligations” has the meaning given to such term in the Loan Agreement. “Offtaker” means each counterparty under each Power Purchase Agreement.

“Passive Investor” has the meaning set forth in the definition of “Disqualified Transferee” herein.

“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA or any successor thereto.

“Permitted Investment” has the meaning given to such term in Section 8.5.

“Plan” means, with respect to each Member, an “employee benefit plan” (as defined in section 3(3) of ERISA) subject to Title I of ERISA (other than a Multiemployer Plan) that is or, within the immediately preceding six years, has been established or maintained, or to which contributions are or, within the immediately preceding six years, have been made or required to be made, by such Member or any of its Member ERISA Affiliates or with respect to which such Member or any of its Member ERISA Affiliates may have any liability.

“Prior LLC Agreement” has the meaning set forth in the recitals.

“Profits” and “Losses” means, for each Taxable Year or other period, an amount equal to the Company’s taxable income or loss for such Taxable Year or period, determined in accordance with Code Section 703(a) (for this purpose, all items of income, gain, loss, or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss), with the following adjustments:

(i) Any income of the Company that is exempt from federal income tax and not otherwise taken into account in computing Profits and Losses pursuant to this definition shall be added to such taxable income or loss;

9

(ii) Any expenditures of the Company described in Code Section 705(a)(2)(B) or treated as Code Section 705(a)(2) (B) expenditures pursuant to Treasury Regulation Section 1.704 1(b)(2)(iv)(i), and not otherwise taken into account in computing Profits and Losses pursuant to this definition, shall be subtracted from such taxable income or loss;

(iii) In the event the Value of any Company Asset is adjusted pursuant to subsections (ii) or (iii) in the definition of “Value”, the amount of such adjustment shall be taken into account as gain or loss from the disposition of such Asset for purposes of computing Profits or Losses;

(iv) Gain or loss resulting from any disposition of Company property with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the Value of the property disposed of, notwithstanding that the adjusted tax basis of such property differs from its Value;

(v) In lieu of the depreciation, amortization, and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for such Taxable Year or other period as determined in accordance with the definition of Depreciation;

(vi) To the extent an adjustment to the adjusted tax basis of any Company Asset pursuant to Code Section 734(b) is required, pursuant to Treasury Regulation Section 1.704-(b)(2)(iv)(m)(4), to be taken into account in determining Capital Accounts as a result of a distribution other than in liquidation of a Member’s interest in the Company, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the Asset) or loss (if the adjustment decreases such basis) from the disposition of such Asset and shall be taken into account for purposes of computing Profits or Losses; and

(vii) Notwithstanding any other provision of this definition, any items that are specially allocated pursuant to Sections 4.3, 4A, 4.5 and 4.6 shall not be taken into account in computing Profits or Losses (i.e., such items of income and gain will otherwise be subtracted from, and such items of loss and deduction will otherwise be added back to, “Profits” or “Losses”).

“Purchasing Member” has the meaning set forth in Section 9.2(c).

“Qualified Appraiser” means a nationally recognized third-party appraiser which shall (i) be qualified to appraise independent fuel cell electric generating businesses and/or experienced in such businesses in the general geographic region of the Facilities, (ii) have been engaged in the appraisal or business valuation and consulting business for a period of not less than five years, and (iii) not be associated with any Member or any Affiliate thereof.

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“Quarterly Period” means the three-month periods ending each April 1, July 1, October 1 and January 1; provided that the first Quarterly Period shall commence on the Effective Date and end on the last day of the calendar quarter in which the Effective Date occurs.

“Recapture Period” means the five year period beginning on the date that the last Facility is placed into service for federal income tax purposes.

“Regulatory Allocations” has the meaning set forth in Section 4.4. “Representatives” has the meaning set forth in Section 7.7 (a).

“S&P” means Standard & Poors Ratings Group, a division of McGraw Hill, Inc., or any successor entity.

“Securities” with respect to any Person, such Person’s capital stock or limited liability company interests or any options, warrants or other Securities which are directly or indirectly convertible into, or exercisable or exchangeable for, such Person’s capital stock or limited liability company interests (whether or not such derivative Securities are issued by the Company). Whenever a reference herein to Securities refers to any derivative Securities, the rights of an Equity Investor shall apply to such derivative Securities and all underlying Securities directly or indirectly issuable upon conversion, exchange or exercise of such derivative Securities.

“Securities Act” means the Securities Act of 1933 or any successor statute, as amended from time to time.

“Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, joint venture or other entity of which such Person (either alone or through or together with any other Person pursuant to any agreement, arrangement, contract or other commitment) owns, directly or indirectly, 50% or more of the stock or other equity interests the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such corporation or other legal entity.

“Tax Information” has the meaning set forth in Section 7.7(b).

“Tax Matters Member” has the meaning set forth in Section 8.7(a).

“Tax Return” has the meaning set forth in Section 8.7(a).

“Taxable Year” means the taxable year of the Company for federal income tax purposes.

“Terminated Member” has the meaning set forth in Section 9.2(f).

“Termination Value” has the meaning assigned to such term in each applicable Power Purchase Agreement.

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“Third Party” means a Person other than a Member or an Affiliate of a Member.

“Third Party Payment” has the meaning set forth in Section 5.4(c).

“Title IV Plan” means, with respect to each Member, a Plan subject to Title IV of ERISA to which such Member or any of its Member ERISA Affiliates is, or within the immediately preceding six years was, an “employer” as defined in section 3(35) of ERISA.

“Transaction Documents” means this Agreement, the Equity Capital Contribution Agreement, the PUMA and the ASAs.

“Transfer” means, as to any Asset (including, without limitation, the Units), a sale, assignment, conveyance, gift, exchange, lease or other disposition or transfer of such Asset by a Member, whether effected voluntarily, involuntarily or by operation of Applicable Law (including, a merger, conversion or consolidation in which the Person owning such Asset is not the surviving entity).

“Transfer Notice” has the meaning set forth in Section 9.1(d).

“Transferee” means a Person to which a Transfer is made.

“Transferring Member” means a Person making a Transfer.

“Treasury Regulations” means the regulations promulgated under the Code by the United States Department of Treasury, as such regulations may be amended from time to time. All references herein to specific sections of the regulations shall be deemed also to refer to any corresponding provisions of succeeding regulations, and any reference to temporary regulations shall be deemed also to refer to any corresponding provisions of final regulations.

“Underfunded Title IV Plan” means a Title IV Plan for which the aggregate benefit liabilities determined as of the end of such Title IV Plan’s most recently ended plan year on the basis of actuarial assumptions specified for funding purposes for such Title IV Plan in such Title IV Plan’s most recent actuarial statement exceeded the aggregate current value of the assets of such Title IV Plan.

“Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to time in the States of Delaware and New York.

“Units” means each of the Class A Units and Class B Units. Upon a Transfer by any Member in accordance with the provisions of this Agreement of any portion of such Member’s Membership Interest, the assignee shall receive from the Transferring Member a number of Units of the relevant class equal to the percentage of the Membership Interest so Transferred multiplied by the total number of Units owned by the Transferring Member immediately prior to the Transfer.

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“Value” means, with respect to any Asset of the Company, such Asset’s adjusted basis for federal income tax purposes, except as follows:

(i) The initial Value of any Asset contributed by a Member to the Company shall be the gross Fair Market Value of such Assets, as reasonably determined by the Managing Member with the Consent of the Members; provided, that the initial Value of the Assets contributed to the Company pursuant to Section 3.2 shall be the Appraised Value of Assets;

(ii) The Value of all Assets of the Company shall be adjusted to equal their respective gross Fair Market Values, as reasonably determined by the Managing Member with the Consent of the Members, as provided within Treasury Regulation Section 1.704-1(b)(2)(iv)(f); provided, however, that any such adjustments (other than pursuant to the liquidation (as defined for purposes therein) of the Company) shall be made only if the Managing Member reasonably determines, with the Consent of the Members, that such adjustments are necessary or appropriate to reflect the relative economic interests of the Members in the Company;

(iii) The Value of any Asset distributed to any Member shall be the gross Fair Market Value of such Asset on the date of distribution (taking Code Section 7701(g) into account), as the Managing Member shall reasonably determine, with the Consent of the Members;

(iv) The Value of Company Assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such Assets pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m) (consistent with subparagraph (vi) of the definition of “Profits” and “Losses” and Section 4.3(f)); provided, however, that the Value shall not be adjusted pursuant to this clause (iv) to the extent the Members determine that an adjustment pursuant to clause (ii) of this definition is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this clause (iv); and

(v) If the Value of an Asset has been determined or adjusted pursuant to clause (i), (ii) or (iv) of this definition, such Value shall thereafter be adjusted by the Depreciation taken into account with respect to such Asset for purposes of computing Profits and Losses.

“Wal-Mart ESA” means that certain Master Fuel Cell Power & Services Agreement, dated as of December 19, 2014, by and between Wal-Mart Stores, Inc., a Delaware corporation, and the Facility Company, as may be amended, amended and restated, supplemented or otherwise modified from time to time

1.2 Other Definitional Provisions

(a) Construction. As used herein, singular shall include the plural, the masculine gender shall include the feminine and neuter, feminine gender shall include the masculine and neuter and the neuter gender shall include the masculine and feminine unless the content otherwise indicates.

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(b) References. References to Articles and Sections are intended to refer to Articles and Sections of this Agreement, and all references to Exhibits and Schedules are intended to refer to Exhibits and Schedules attached to this Agreement, each of which is made a part of this Agreement for all purposes. Information contained in any Schedule shall be deemed contained in each and every other schedule without requiring repetition thereof. The term “including” means “including, without limitation.” Any date specified for action that is not a Business Day shall mean the first Business Day after such date. Any reference to a Person shall be deemed to include such Person’s permitted successors and assigns. Any reference to any document or documents shall be deemed to refer to such document or documents as amended, modified, supplemented or replaced from time to time. Whenever a Person is to determine that something is “satisfactory to,” “acceptable to,” or “to the satisfaction of such Person, the determination may not be made in bad faith.

ARTICLE II

THE COMPANY

2.1 Continuation of Limited Liability Company. The parties hereto hereby continue the Company formed on September 11, 2014, as a limited liability company pursuant to the Act. The rights and obligations of the Members shall be as provided in the Act, except as otherwise expressly provided herein. The Managing Member shall from time to time execute or cause to be executed all such certificates, instruments and other documents, or cause to be done all such filings, as the Managing Member may deem necessary or appropriate to operate, continue or terminate the Company as a limited liability company under the laws of the State of Delaware and to qualify the Company to do business in such states where such qualification is necessary or desirable.

2.2 Name. The name of the Company is, and the business of the Company shall continue to be conducted under the name of 2015 ESA HoldCo, LLC or such other name or names as the Managing Member may designate from time to time, with the Consent of the Members. The Managing Member shall take any action that it determines is required to comply with the Act, assumed name act, fictitious name act, or similar statute in effect in each jurisdiction or political subdivision in which the Company proposes to do business and the Members agree to execute any documents requested by the Managing Member in connection with any such action.

2.3 Principal Office. The Company shall maintain a principal office which shall initially be located at the Class B Equity Investor’s principal place of business, located at 1252 Orleans Drive, Sunnyvale, CA 94089. The Managing Member may change the principal office of the Company from time to time upon written notice to the Members.

2.4 Registered Office; Registered Agent. The name of the registered agent of the Company in the State of Delaware at such address is Corporation Trust Center, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware 19801. The address of the Company’s registered office in the State of Delaware is c/o Corporation Trust Company, 1209 Orange Street, City of Wilmington, County of New Castle, Delaware 19801.

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2.5 Purposes. The purpose of the Company is to own the Facility Company, which will develop, own, operate, maintain and repair the Facilities, for the purpose of producing electricity; to cause the Facility Company to sell electricity and renewable energy credits produced by the Facilities; to enter into, comply with, perform its obligations and enforce its rights, and cause the Facility Company to enter into, comply with, perform their obligations and enforce their rights, under this Agreement and the Facility Documents; and to engage in and perform any and all activities necessary, incidental, related or desirable to allow the Facility Company, to produce and sell electricity and renewable energy credits from the Facilities. The Company shall not engage in any activity or own any Assets that are not directly related to the Company’s purpose as set forth in this Section 2.5. The Company shall not allow the Facility Company to engage in any activity or own any Assets other than as required in connection with the Facility Company’s ownership and operation of the Facilities.

2.6 Term. The Company’s existence shall be perpetual, unless earlier dissolved and terminated in accordance with this Agreement.

2.7 Title to Property. Title to Company or Facility Company Assets, as applicable, whether tangible or intangible, shall be held in the name of the Company or the Facility Company, as applicable, and no Member, individually, shall have title to or any interest in such property by reason of being a Member. Membership Interests of each Member shall be personal property for all purposes.

2.8 Units; Certificates of Membership Interest; Applicability of Article 8 of UCC. Membership Interests shall be represented by Units, divided into Class A Units (in the case of Class A Interests) and Class B Units (in the case of Class B Interests). The Membership Interests represented by Class A Units and Class B Units shall have the respective rights, preferences and designations ascribed to such Units in this Agreement. The Members hereby specify, acknowledge and agree that all Units (and the Membership Interests represented thereby) are securities governed by Article 8 and all other provisions of the Uniform Commercial Code, and pursuant to the terms of Section 8-103(c) of the Uniform Commercial Code, such interests shall be “securities” for all purposes under such Article 8 and under all other provisions of the Uniform Commercial Code. All Units (and the Membership Interests represented thereby) shall be represented by certificates substantially in the form attached hereto as Exhibit B, shall be recorded in a register thereof maintained by the Company, and shall be subject to such rules for the issuance thereof in compliance with this Agreement, as the Managing Member may from time to time determine.

ARTICLE III

CAPITAL CONTRIBUTIONS AND PAYMENTS

3.1 Class A Interests; Capital Contributions of the Class A Member. On the Effective Date, and each Funding Date thereafter, the Class A Member shall make the Capital Contribution to be made by it with respect to the applicable Tranche pursuant to the terms and conditions set forth in the Equity Capital Contribution Agreement. In consideration of such

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Capital Contributions, on the Effective Date, the Class A Member shall be issued Class A Units in the amount set forth opposite its name in Exhibit A and be admitted to the Company as a Class A Member. The Class A Member shall be entitled to the allocations, distributions and other rights as are prescribed for the Class A Member in this Agreement. The Class A Member’s Capital Account balance as of the Effective Date and each Funding Date thereafter with respect to its Membership Interest shall be as indicated on Exhibit A hereto.

3.2 Class B Interests; Capital Contributions of the Class B Member. On the Effective Date, and each Funding Date thereafter, the Class B Member shall make the Capital Contribution to be made by it with respect to the applicable Tranche pursuant to the terms and conditions set forth in the Equity Capital Contribution Agreement. In addition, the Class B Member shall hold Class B Units in the amount set forth opposite its name in Exhibit A. The Class B Member shall be entitled to the allocations, distributions and other rights as are prescribed for the Class B Member in this Agreement. The Class B Member’s additions to its Capital Account as of the Effective Date and each Funding Date thereafter (and the Class B Member’s Capital Account as of the Effective Date and each Funding Date thereafter) are shown on Exhibit A hereto, which amounts include the Value of property contributed by the Class B Member to the Company prior to and on such dates.

3.3 No Other Required Capital Contributions. Except as provided in Sections 3.2 and 5.4(c), no Member shall be obligated to make Capital Contributions in excess of the amount of such Member’s required Capital Contribution made on the Effective Date or any additional Funding Date thereafter.

3.4 No Right to Return of Capital Contributions. Except as otherwise provided in this Agreement, no Member may require a return of its Capital Contributions or the payment of interest thereon from the Company or from another Member.

ARTICLE IV

CAPITAL ACCOUNTS; ALLOCATIONS

4.1 Capital Accounts. The Company shall maintain for each Member a separate Capital Account in accordance with the rules of Treasury Regulation Section 1.704-1(b)(2)(iv). Each Member’s Capital Account shall be maintained in accordance with the following provisions:

(a) To each Member’s Capital Account there shall be credited the Member’s Capital Contributions, such Member’s distributive share of Profits and items of income and gain under Section 4.2 and any items in the nature of income or gain which are specially allocated to the Member pursuant to Section 4.3, Section 4.4 and Section 10.2(a) and the amount of any Company liabilities assumed by the Member or which are secured by any Company Asset distributed to such Member.

(b) To each Member’s Capital Account there shall be debited the amount of cash and the Value of any Company Asset distributed to such Member pursuant to any provision of this Agreement or the Equity Capital Contribution Agreement, such Member’s distributive share of Losses and items or loss and deduction under Section 4.2 and any items of loss and

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deduction which are specially allocated to the Member pursuant to Section 4.3, Section 4.4 and Section 10.2(a) and the amount of any liabilities of such Member assumed by the Company or which are secured by any property contributed by such Member to the Company.

(c) In determining the amount of any liability for purposes of the foregoing subsections (a) or (b), there shall be taken into account Code Section 752(c) and any other applicable provisions of the Code and the Treasury Regulations.

(d) In the event any Membership Interest in the Company is transferred in accordance with the terms of this Agreement, the Transferee shall succeed to the Capital Account of the transferor to the extent it relates to the transferred Membership Interest.

This Section 4.1 and the other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Treasury Regulation Section 1.704-1(b) and 1.704-2, and will be interpreted and applied in a manner consistent with such Treasury Regulations. The Managing Member also shall make any adjustments that are necessary or appropriate to maintain equality between the Capital Accounts of the Members and the amount of capital reflected on the Company’s balance sheet, as computed for book purposes, in accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(q).

4.2 Profits and Losses. For purposes of maintaining Capital Accounts, after making the allocations provided under Section 4.3, all items of Company income, loss, gain, deduction and credit for any Fiscal Year will be allocated among the Members as follows:

(a) General Allocations. Except as provided in the following subsection (b) of this Section 4.2, Profits and Losses and constituent items of Company income, gain, loss, and deduction thereof shall be allocated for each Fiscal Year or part of a Fiscal Year, 99% to the Class A Members pro rata according to their respective Class A Units and 1% to the Class B Members pro rata according to their respective Class B Units.

(b) Items in Connection with Liquidation. Except as provided in the following subsection (c) of this Section 4.2, Profits and Losses and any other items of income, gain, loss or deduction, credits (including any ITCs) and any credit recapture (including any ITC recapture) for the Taxable Year in which there is a disposition of all or substantially all of the Assets of the Company pursuant to Section 10.2(a)(iii) shall be specially allocated pursuant to Section 10.2(a)(iv) and Section 10.2(a)(v).

(c) Allocation of ITC. It is the intention of the Members that both (i) the allocations provided in Section 4.2(a) constitute, for purposes of Treasury Regulations Section 1.46-3(f)(2)(i), the ratio in which the Members divide the general profits of the Company (that is, the taxable income of the partnership as described in Code Section 702(a)(9)) regardless of whether the Company has a profit or a loss for its Taxable year during which the Facility with respect to which the ITC is claimed is placed in service for federal income tax purposes, and (ii) the allocations provided in Section 4.2(a), constitute, for purposes of Treasury Regulations Section 1.46-3(f)(2)(ii), the allocation of all related items of income, gain, loss and deduction with respect to each item in respect of the Facility with respect to which the ITC is claimed. Accordingly, the Members’ shares of the basis of the Facility with respect to which the ITC is

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claimed shall be determined by reference to such general profits ratio under Treasury Regulations Section 1.46-3(f)(2)(i), and under the special allocation under Treasury Regulations Section 1.46-3(f)(2)(ii), as 99% to the Class A Members, pro rata according to their respective Class A Units and 1% to the Class B Members pro rata according to their respective Class B Units.

4.3 Special Allocations. The following special allocations shall be made in the following order:

(a) Company Minimum Gain Chargeback. Notwithstanding the other provisions of this Article IV, except as provided in Treasury Regulation Section 1.704-2(f), if there is a net decrease in Company Minimum Gain during any Taxable Year, each Member shall be specially allocated items of Company income and gain for such Taxable Year (and, if necessary, subsequent Taxable Years) in an amount equal to such Member’s share of the net decrease in Company Minimum Gain, determined in accordance with Treasury Regulation Section 1.704-2(g). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Treasury Regulation Sections 1.704-2(f)(6) and 1.704-2(j)(2). This Section 4.3(a) is intended to comply with the minimum gain chargeback requirement in Treasury Regulation Section 1.704-2(f) and shall be interpreted consistently therewith.

(b) Chargeback of Minimum Gain Attributable to Member Nonrecourse Debt. Notwithstanding the other provisions of this Article IV, except as provided in Treasury Regulation Section 1.704-2(i)(4), if there is a net decrease in Member Nonrecourse Debt Minimum Gain attributable to a Member Nonrecourse Debt during any Taxable Year, each Member who has a share of the Member Nonrecourse Debt Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Treasury Regulation Section 1.704-2(i)(5), shall be specially allocated items of Company income and gain for such Taxable Year (and, if necessary, subsequent Taxable Years) in an amount equal to such Member’s share of the net decrease in Member Nonrecourse Debt, determined in accordance with Treasury Regulation Section 1.704-2(i)(4). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Treasury Regulation Sections 1.704-2(i)(4) and 1.704-2(j)(2). This Section 4.3(b) is intended to comply with the partner nonrecourse debt minimum gain chargeback requirement in Treasury Regulation Section 1.704-2(i)(4) and shall be interpreted consistently therewith.

(c) Qualified Income Offset. In the event any Member unexpectedly receives any adjustments, allocations or distributions described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of Company income and gain shall be specially allocated to such Member in an amount and manner sufficient to eliminate, to the extent required by Treasury Regulations, the Adjusted Capital Account Deficit of the Member as quickly as possible; provided, that an allocation pursuant to this Section 4.3(c) shall be made only if and to the extent that such Member would have an Adjusted Capital Account Deficit after all other special allocations provided for in this Section 4.3 have been tentatively made as if this Section 4.3(c) were not in this Agreement.

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(d) Loss Limitations. Losses allocated pursuant to Section 4.2 and Section 10.2(a)(v) shall not exceed the maximum amount of Losses and other items of loss or deduction that can be allocated without causing any Member to have an Adjusted Capital Account Deficit at the end of any Taxable Year. In the event some but not all of the Members would have Adjusted Capital Account Deficits as a consequence of an allocation of Losses pursuant to Section 4.2 or Section 10.2(a)(v), the limitation set forth in this Section 4.3(d) shall be applied on a Member by Member basis and Losses and items of loss or deduction not allocable to any Member as a result of such limitation shall be allocated to the other Members in the manner otherwise required pursuant to Section 4.2 and Section 10.2(a) to the extent such other Members have positive balances in their Capital Accounts so as to allocate the maximum permissible Losses to each Member under Treasury Regulation Section 1.704-1(b)(2)(ii)(d).

(e) Gross Income Allocation. In the event any Member has a deficit Capital Account at the end of any Taxable Year that is in excess of the sum of (i) the amount such Member is obligated to restore pursuant to Section 10.3 of this Agreement and (ii) the amount such Member is deemed obligated to restore pursuant to the penultimate sentences of Treasury Regulation Sections 1.704-2 (g)(1) and 1.704-2(i)(5), each such Member shall be specially allocated items of Company income and gain in the amount of such excess as quickly as possible; provided, that an allocation pursuant to this Section 4.3(e) shall be made only if and to the extent that such Member would have a deficit Capital Account in excess of such sum after all other special allocations provided for in this Section 4.3 have been made as if Section 4.3(c) and this Section 4.3(e) were not in this Agreement.

(f) Nonrecourse Deductions. Nonrecourse Deductions for any Taxable Year shall be specially allocated to the Members 99% to the Class A Members, pro rata according to their respective Class A Units and 1% to the Class B Members pro rata according to their respective Class B Units.

(g) Member Nonrecourse Deductions. Any Member Nonrecourse Deductions for any Taxable Year shall be specially allocated to the Member who bears the economic risk of loss with respect to the Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable in accordance with Treasury Regulation Section 1.704-2(i)(1).

(h) Section 754 Adjustments. If the Company distributes property to a Member in liquidation of the Membership Interest of the Member and there is an adjustment in the adjusted tax basis of Company property under Section 734(b) of the Code, such that the first sentence of Treasury Regulation Section 1.704-1(b)(2)(iv)(m)(4) applies, there will be a corresponding adjustment to the Capital Account of the Member receiving the distribution. If the Company distributes cash to a Member in excess of its outside basis in its Membership Interest, leading to an adjustment in the inside basis of the Company property under Section 734(b) of the Code pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m)(2), then solely for purposes of adjusting Capital Accounts of the Members, the adjustment in the inside basis will be treated as gain or loss and be allocated among the Members in accordance with Section 4.2, as in effect at the time of the adjustment. This provision is intended to comply with Treasury Regulation Sections 1.704-1 (b)(2)(iv)(m)(2) and (4).

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4.4 Curative Allocations. The allocations required under Section 4.3(a) through (c), (e) and (f) (the “Regulatory Allocations”) are intended to comply with certain requirements of the Treasury Regulations. It is the intent of the Members that, to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or with special allocations of other items of Company income, gain, loss or deduction pursuant to this Section 4.4. Therefore, notwithstanding any other provisions of this Article IV, the Regulatory Allocations shall be taken into account in allocating items of income, gain, loss, deduction and credit among the Members such that, to the extent possible, the net amount of allocations of such items and the Regulatory Allocations to each Member shall be equal to the net amount that would have been allocated to each Member if the Regulatory Allocations had not occurred and all Company items were allocated pursuant to Section 4.2, Section 10.2(a)(iv) and Section 10.2(a)(v).

4.5 Income Tax Allocations.

(a) Except as otherwise provided in this Section 4.5, for federal, state and local income tax purposes each item of income, gain, loss and deduction of the Company shall be allocated to the Members in the same manner as such items are allocated pursuant to this Article IV.

(b) In accordance with Code Section 704(c) and the Treasury Regulations thereunder, income, gain, loss, and deduction with respect to any property contributed to the capital of the Company shall, solely for tax purposes, be allocated among the Members so as to take account of any variation between the adjusted basis of such property to the Company for federal income tax purposes and its initial Value (computed in accordance with the definition of Value) using the remedial allocation method permitted by Treasury Regulation Section 1.7043(d).

(c) In the event the Value of any Company Asset is adjusted pursuant to subparagraph (ii) of the definition of Value, subsequent allocations of income, gain, loss, and deduction with respect to such Asset shall take account of any variation between the adjusted basis of such Asset for federal income tax purposes and its Value in the same manner as under Code Section 704(c) and the Treasury Regulations thereunder.

(d) Any items of loss or deduction attributable to property contributed by a Member shall to the extent of an amount equal to the excess of (A) the federal income tax basis of such property at the time of its contribution over (B) the Value of such property at such time, be allocated in its entirety to such contributing Member and the tax basis of such property for purposes of computing the amounts of all items allocated to any other Member (including a transferee of the contributing Member) shall be equal to its Value.

(e) Allocations pursuant to this Section 4.5 are solely for federal, state, and local income taxes and shall not affect, or in any way be taken into account in computing, any Member’s Capital Account or share of Profits, Losses, other items, or distributions pursuant to any provision of this Agreement.

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4.6 Other Allocation Rules.

(a) For purposes of determining the Profits, Losses, or any other items allocable to any period, Profits, Losses, and any such other items shall be determined on a daily, monthly, or other basis, as determined by the Managing Member using any permissible method under Code Section 706 and the Treasury Regulations thereunder.

(b) The Members are aware of the income tax consequences of the allocations made by this Article IV and Section 10.2(a) and hereby agree to be bound by the provisions of this Article IV and Section 10.2(a) in reporting their shares of Company income and loss for income tax purposes, unless otherwise required by law or the IRS.

(c) The Company shall not report any portion of the Facility Debt as “recourse” debt for purposes of Code Section 752 or as Member Nonrecourse Debt. The Company shall allocate 100% of the “excess” Nonrecourse Liabilities of the Company for purposes of Treasury Regulation Section 1.752-3(a)(3) in accordance with how the Base Case Model sets forth that the deductions attributable to such remaining Nonrecourse Liabilities will be allocated among the Members, taking into account the allocations required under Section 4.5 above.

(d) To the extent permitted by Treasury Regulation Section 1.704-2(h)(3), the Managing Member shall endeavor to treat distributions of Available Cash Flow as having been made from the proceeds of a Nonrecourse Liability or a Member Nonrecourse Debt only to the extent that such distributions would cause or increase an Adjusted Capital Account Deficit for any Member.

ARTICLE V

DISTRIBUTIONS

5.1 Distributions of Available Cash Flow.

(a) Subject to Article Two of the Equity Capital Contribution Agreement and Sections 6.6(a) and 10.2(a)(vi), Available Cash Flow shall be distributed for each Quarterly Period to the Members, in the following percentages:

(i) 90% of Available Cash Flow shall be distributed to the Class A Members pro rata in accordance with their respective Class A Units; and

(ii) 10% of Available Cash Flow shall be distributed to the Class B Members pro rata in accordance with their respective Class B Units.

(b) Notwithstanding Section 5.1(a), all Available Cash Flow attributable to a payment by Seller to the Facility Company pursuant to Section 3.2(c) or 5.11 of the PUMA shall be distributed one hundred percent (100%) to the Class A Members, pro rata in accordance with their respective Class A Units.

5.2 Limitation. The distributions described in this Article V shall be made only from Available Cash Flows and only to the extent that there shall be sufficient Available Cash Flows to enable the Managing Member to make payments in accordance with the terms hereof. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to a Member on account of Membership Interest if such distribution (including a return of Capital Contributions) would violate the Act or any other Applicable Law.

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5.3 Withholding. Notwithstanding any other provision of this Agreement, the Company shall be entitled to comply with any withholding requirements under any Applicable Law and shall be entitled to remit amounts withheld to, and file required forms with, applicable taxing authorities. To the extent that the Company is required to withhold and pay over any amounts to any taxing authority with respect to distributions or allocations to any Member, the amount withheld shall be treated as a distribution of cash to such Member in the amount of such withholding. In the event of any claimed over withholding, Members shall be limited to an action against the applicable taxing authority. If an amount required to be withheld was not withheld from an actual distribution, the Company may reduce subsequent distributions by the amount of such required withholding and any penalties or interest thereon. Each Member agrees to furnish to the Company such forms or other documentation as is reasonably necessary to assist the Company in determining the extent of, and in fulfilling, its withholding obligations.

5.4 Satisfaction of Certain Obligations Under Article XI.

(a) Upon receipt of a notice of a Class A Investor Claim pursuant to Section 11.1, Section 11.3 or Section 11.4, any Class B Member or its Affiliates shall have the right to cure such asserted breach and no such cure shall be an acknowledgement or agreement as to the existence or amount of such Class A Investor Claim. Within 30 days following receipt of such notice, the Class B Members shall notify the relevant indemnified parties, all other Members and the Company in writing whether the Class B Members agree with or dispute all or a portion of such Class A Investor Claim, specifying the amount, if any, so agreed to. If the Class B Members do not deliver such notice within the time specified, the Class B Members shall be deemed to have delivered a notice on the 30th day from its receipt of notice of the Class A Investor Claims disputing the entire amount of such Class A Investor Claim.

(b) Upon receipt of a notice of a Class B Investor Claim pursuant to Section 11.2, any Class A Member or its Affiliates shall have the right to cure such asserted breach and no such cure shall be an acknowledgement or agreement as to the existence or amount of such Class B Investor Claim. Within 30 days following receipt of such notice, the Class A Members shall notify the relevant indemnified parties, all other Members and the Company in writing whether the Class A Members agree with or dispute all or a portion of such Class B Investor Claim, specifying the amount, if any, so agreed to. If the Class A Members do not deliver such notice within the time specified, the Class A Members shall be deemed to have delivered a notice on the 30th day from its receipt of notice of the Class B Investor Claims disputing the entire amount of such Class B Investor Claim.

(c) To the extent that any Damages result from the Facility Company or the Company being held liable to a Third Party for the payment of any amounts and it is finally determined by a court of competent jurisdiction, after exhaustion of all time periods for appeal, that such Damages resulted from a breach by the Class B Equity Investor (whether in its capacity as the Class B Member, the Managing Member, the Tax Matters Member or otherwise), the Class A Equity Investor, the Company, the Facility Company or their respective Affiliates of their respective representations or warranties or covenants or obligations contained in this

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Agreement or any Transaction Documents (each such payment a “Third Party Payment”), and such Third Party Payment creates an item of deduction or loss or amortizable or depreciable basis for the Company for Capital Account purposes, then, on or before the first cash distribution under Section 5.1 made by the Company after the date on which the Class B Members or Class A Members, as applicable, deliver or are deemed to have delivered their notice under Section 5.4(a) and Section 5.4(b), as applicable, the Class B Members or the Class A Members, as applicable, shall make a Capital Contribution to the Company in an amount equal to the full amount of the Third Party Payment (or, if applicable, such lesser amount as shall have been agreed between the Class B Members or the Class A Members, as applicable, and the applicable indemnified persons or such amount as shall have been finally determined by a court of competent jurisdiction).

(d) Notwithstanding the provisions of Section 5.1, with respect to any Damages relating to a Class A Investor Claim or a Class B Investor Claim (other than as to which Section 5.4(c) applies and as to which the Capital Contribution required by Section 5.4 (c) has been made or paid into the Escrow), commencing with the first cash distribution under Section 5.1 made by the Company following the date that is thirty (30) days following the date that the indemnifying Members agree with the asserted claim, and in each case until the date on which payment in full of the relevant Damages (or, if applicable, such lesser amount as shall have been agreed between the indemnifying Members and the applicable indemnified Persons or such amount as shall have been finally determined by a court of competent jurisdiction) has been made as hereafter provided in this Section 5.4(d) or as otherwise paid by the indemnifying Members or any of their Affiliates, (1) any distributions as to which the indemnifying Members and any of their respective Affiliates would otherwise be entitled hereunder shall not be paid to such indemnifying Member or such Affiliates until the applicable indemnified Persons shall have received payment in full of such Damages (or, if applicable, such lesser amount as shall have been agreed between the indemnifying Members and the applicable indemnified Persons or such amount as shall have been finally determined by a court of competent jurisdiction), and (2) all Available Cash Flow otherwise payable to the indemnifying Members and their respective Affiliates shall be paid over to the applicable indemnified Persons to the extent necessary to pay in full such Damages (or, if applicable, such lesser amount as shall have been agreed between the indemnifying Members and the applicable indemnified Person or such amount as shall have been finally determined by a court of competent jurisdiction). In the event that (A) the distributions payable to the indemnifying Members and their respective Affiliates or the Available Cash Flow otherwise payable to the indemnifying Members and their respective Affiliates, in each case, for a Quarterly Period are not sufficient to pay the Damages relating to a Class A Investor Claim or a Class B Investor Claim (other than as to which Section 5.4(c) applies and as to which the Capital Contribution required by Section 5.4(c) has been made or paid into the Escrow), as applicable, or (B) such Damages have not otherwise been paid to the relevant indemnified parties within forty-five (45) days of the end of a Quarterly Period, then the indemnifying Members shall pay such Damages to the relevant indemnified parties within sixty (60) days of the end of such Quarterly Period. Upon receipt by the applicable indemnified Persons of the payment in full of such Damages (or, if applicable, such lesser amount as shall have been agreed between the indemnifying Members and the applicable indemnified Person or such amount as shall have been finally determined by a court of competent jurisdiction), the distributions and Available Cash Flow shall resume being distributed as required by the provisions of Section 5.1, subject to the application of this Section 5.4 to other Class A Investor Claims or Class B Investor Claims for Damages and the application of Section 5.5.

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(e) If the indemnifying Members or their respective Affiliates dispute all or a portion of any Damages in excess of [***], then any Capital Contributions that the indemnifying Members or their Affiliates would have to make with respect to any Third Party Payment or for other Damages, and any distributions as to which the indemnifying Members or their respective Affiliates would otherwise be entitled hereunder, as applicable, in each case up to the amount of such disputed Damages, shall be paid into an escrow (the “Escrow”) maintained at a commercial bank that is a member of the Federal Reserve System organized under the laws of the United States or any state thereof and has a combined capital and surplus of at least $1,000,000 (the “Escrow Agent”) pursuant to an escrow agreement in such Escrow Agent’s customary form and providing as follows:

(i) funds paid into such Escrow shall be invested in Cash Equivalents (such escrowed funds together with the earnings thereon being referred to herein as the “Escrowed Funds”);

(ii) Escrowed Funds shall be disbursed by the Escrow Agent as follows:

(A) Upon the Escrow Agent’s receipt of a written notice from the indemnifying Members or their Affiliates, as applicable, and the applicable indemnified Persons, the Escrow Agent shall disburse Escrowed Funds to the party or parties, and in the amount or amounts, specified in such joint written notice; and

(B) Upon receipt by the Escrow Agent of a judgment or order of a court of competent jurisdiction regarding all matters relating to such Class A Investor Claims or Class B Investor Claims, as applicable, and, if there exists a right of appeal therefrom, the expiration of the time for appealing such judgment or order without appeal of such judgment or order by any party, the Escrow Agent shall disburse the Escrowed Funds as specified in or consistent with such judgment or order.

(iii) The indemnifying Members or their Affiliates shall pay the Escrow Agent’s fees and charges related to the Escrow unless the amount finally determined to be payable to the indemnified Persons pursuant to subclauses (A) or (B) above is less than 75% of the amount claimed by the indemnified Persons, in which case, the indemnified Persons making the Class A Investor Claims or Class B Investor Claims, as applicable, shall bear all of the Escrow Agent’s fees and charges.

(f) Amounts paid or distributed to the indemnified Persons pursuant to this Section 5.4 shall be deemed distributed to the indemnifying Members and immediately paid by the indemnifying Members to the applicable indemnified Person. Such amount shall be grossed up and paid on an after-tax basis (assuming the highest marginal federal income tax rates then applicable to corporations and an assumed combined state and local income tax rate of [***] for purposes of a gross up).

[***] Confidential Treatment Requested

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(g) The Members, for themselves, their Affiliates, successors and permitted assigns, agree that, notwithstanding anything to the contrary herein or in any other agreement, (i) except as hereinafter provided, the provisions of this Section 5.4 and Article XI shall be the indemnified Persons’ sole and exclusive means of recovery in respect of this Agreement, the Equity Capital Contribution Agreement and the ASAs for such Damages, and (ii) the indemnified Persons will not bring any action or proceeding, or take any other action, to recover any such Damages except as provided by this Section 5.4 and Article XI.

5.5 Other Distributions. In the event that the Facility Company distributes to the Company a System that was previously deployed pursuant to the Wal-Mart ESA, and with respect to which the applicable Termination Value has been paid pursuant to the terms of the Wal-Mart ESA, the Company shall distribute the applicable System(s) to the Class B Member.

ARTICLE VI

MANAGEMENT

6.1 Managing Member.

(a) The Class B Equity Investor is hereby appointed by the Members as the initial Managing Member of the Company. Except as provided in Section 6.2 or as otherwise expressly provided herein, the Managing Member shall conduct, direct and exercise control over all activities of the Company, and shall have full power and authority on behalf of the Company to manage and administer the business and affairs of the Company and to do or cause to be done any and all acts considered by the Managing Member to be necessary or appropriate to conduct the business of the Company (including, without limitation, taking all necessary actions to cause the Company to, and to cause the Company to cause the Facility Company to, perform their respective obligations and enforce their respective rights under the Facility Documents to which it is a party and to otherwise carry out their respective purposes) without the need for approval by or any other consent from any Member, including, but not limited to, the authority to bind the Company in making contracts and incurring obligations in the Company’s name in the course of the Company’s business. Except to the extent that a Member is also the Managing Member or authority is delegated from the Managing Member, no Member shall have any authority to bind the Company.

(b) Notwithstanding any other provision of this Article VI, in the event of the occurrence of an Emergency, the Managing Member will be entitled, without having to obtain the consent of any other Member, to cause the Company to take any action that the Managing Member deems appropriate, consistent with prudent operating practices, in order to protect the interests of the Company or the Facility Company, or as required by Applicable Law (including causing the Facility Company to take any action that the Managing Member deems appropriate, consistent with prudent operating practices).

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6.2 Standard of Care; Required Consents.

(a) In carrying out its duties hereunder, the Managing Member (i) shall cause the Company to cause the Facility Company to operate the Facilities and cause the Administrator to operate and manage the Facilities, in accordance with the Facility Documents; provided, that, in performing such obligations, the Managing Member shall (A) exercise such care, skill and diligence as a reasonably prudent business company of established reputation engaged in the business of generating electricity from fuel cells would exercise in the conduct of its business and for the advancement or protection of its own interests and (B) perform such duties in accordance with applicable fuel cell industry standards and (ii) in instances not involving the operation or management of the Facilities, shall act in good faith and in a manner reasonably believed to be in the best interests of the Company. Upon the occurrence of an “Event of Default” (as defined in the ASAs) by the Administrator under either of the ASAs that remains uncured for a period of thirty (30) days, the Class A Members may cause the Company or the Facility Company, as applicable, to enforce their respective rights under the applicable ASA.

(b) Notwithstanding any other provision of this Agreement to the contrary, the Managing Member may not take any of the following actions without having first obtained the Consent of the Class A Members (such consent not to be unreasonably withheld or delayed):

(i) Do any act in contravention of this Agreement or of the organizational documents of the Facility Company;

(ii) Cause the Company to engage in any business or activity that is not within the purpose of the Company or to change such purpose, or cause the Facility Company to engage in any business or activity that is not within the purpose of the organizational documents of the Facility Company or cause the Facility Company to change such purpose;

(iii) Cause the Company to be treated other than as a partnership for United States federal income tax purposes (including by electing under Treasury Regulation Section 301.7701-3 to be classified as an association) or cause the Facility Company to be treated as anything other than a disregarded entity for United States federal income tax purposes (including by electing under Treasury Regulation Section 301.7701-3 to be classified as an association taxable as a corporation);

(iv) Make any tax election, or cause either the Company or the Facility Company to make any tax election, other than as provided in this Agreement;

(v) Admit any additional Member to the Company except as permitted under this Agreement, or cause any additional member to be admitted to the Facility Company except upon the exercise by the lenders of their rights under the Financing Documents to foreclose on the Facility Company’s membership interests;

(vi) Any sale, lease or other voluntary disposition of any membership interest in the Facility Company;

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(vii) Cause the Company or the Facility Company to permit (A) possession of property of the Company or the Facility Company, as applicable, by any Member (unless such action is taken pursuant to the express terms of the Facility Documents), (B) the assignment, transfer or pledge of rights of the Company or the Facility Company in specific property of the Company or the Facility Company, as applicable, for other than a Company or Facility Company purpose or other than for the benefit of the Company or the Facility Company, or (C) any commingling of the funds of the Company or the Facility Company with the funds of any other Person;

(viii) Causing or permitting the Company or the Facility Company to take or file any action or institute any proceedings in bankruptcy, or consent to any such filing or proceeding;

(ix) (i) Any issuance or redemption by the Company of any membership units or other equity interests of any kind in the Company; (ii) any issuance or redemption by the Facility Company of any membership interests or other equity interests of any kind in the Facility Company; or (iii) any sale or issuance of any option, warrant or similar right to acquire any interest of any kind in either the Company or the Facility Company, in each case except as expressly provided for in this Agreement;

(x) (i) Any merger, conversion or consolidation of either the Company or the Facility Company, or any sale of all or substantially all of the assets of either the Company or the Facility Company; (ii) either the Company or the Facility Company acquiring all or substantially all of the assets or stock of any person; (iii) changing either the Company’s or the Facility Company’s legal form; (iv) recapitalizing either the Company or the Facility Company; or (v) liquidating, winding-up or dissolving either the Company or the Facility Company, in each case except as expressly permitted under this Agreement;

(xi) Causing or permitting either the Company or the Facility Company to take any of the following actions;

(A) amend, modify or waive in any material respect, cancel or terminate any Facility Documents (for the avoidance of doubt, the Managing Member may, without the Consent of the Class A Members, cause or permit either the Company or the Facility Company to amend any of the Facility Documents to allow for the addition, removal or modification of sites so long as such amendment could not reasonably be expected to have a material adverse effect on the performance of the Company as contemplated by the Base Case Model);

(B) assign, release, relinquish, consent to any departure from, or waive the rights or obligations of any party to any Facility Documents, except for any such actions which are not material or which are taken in the ordinary course of business;

(C) consenting to the assignment of operations and maintenance obligations pursuant to Section 4.6 of the PUMA;

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(xii) (i) terminating an ASA, or entering into a new or replacement agreement in place of such ASA, except, in each case, to the extent expressly set forth in the terms of this Agreement; (ii) terminating the PUMA, or entering into a new or replacement agreement in place of the PUMA, except, in each case, to the extent expressly set forth in this Agreement; or (iii) providing any consent, approval or waiver that would allow the waiver of any material rights of either the Company or the Facility Company;

(xiii) Allowing or granting any lien on the assets or rights of either the Company or the Facility Company, other than Permitted Encumbrances;

(xiv) Causing or permitting either the Company or the Facility Company to (i) make loans to third parties or (ii) repay (other than repayments in accordance with scheduled maturity or which are otherwise mandatory pursuant to the terms of any Financing Documents), voluntarily prepay or redeem, or refinance or modify any of the terms of, any indebtedness of either the Company or the Facility Company;

(xv) Except as provided in the Financing Documents and the Facility Documents, borrow, or cause the Company or the Facility Company to borrow, any money in the name or on behalf of the Company or the Facility Company, as applicable, or execute and issue promissory notes and other negotiable or nonnegotiable instruments and evidences of indebtedness, except the Managing Member may borrow, or cause the Company or the Facility Company to borrow money in the name and on behalf of the Company or the Facility Company, as applicable, in such amounts as the Managing Member shall reasonably determine are necessary to comply with all applicable environmental laws, ordinances, rules and regulations;

(xvi) Except as provided in the Financing Documents and the Facility Documents and except for Permitted Encumbrances, mortgage, pledge, assign in trust or otherwise encumber, or cause the Company or the Facility Company to mortgage, pledge, assign in trust or otherwise encumber, any Company or Facility Company property, or to assign, or cause the Company the Facility Company to assign any monies owing or to be owing to the Company or the Facility Company except to secure the payment of any borrowing permitted hereunder and except for customary liens contained in or arising under any operating agreements, construction contracts and similar agreements executed by or binding on the Company or the Facility Company with respect to amounts not yet due or not yet delinquent (or, if delinquent, that are being contested by the Managing Member, the Company or the Facility Company in good faith and for which adequate reserves have been set aside in accordance with GAAP) or except for statutory liens for amounts not yet due or not yet delinquent (or, if delinquent, that are being contested by the Managing Member, the Company or the Facility Company in good faith and for which adequate reserves have been set aside in accordance with GAAP), provided that in no event shall the Managing Member mortgage, pledge, assign in trust or otherwise encumber the Company’s right to receive Capital Contributions from the Members;

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(xvii) Sell, lease, transfer, assign or distribute any interest in the Facility Company or cause the Company or the Facility Company to sell, lease, transfer, assign or distribute (A) any Facility or (B) any Asset or related group of Assets with a Fair Market Value in excess of [***] in one or a related series of transactions, except, in the case of each of clauses (A) and (B), pursuant to the Power Purchase Agreements or pursuant to the PUMA;

(xviii) Enter into, or cause the Company or the Facility Company to enter into: (A) any material amendment, modification, waiver or termination of any agreement with an Affiliate of the Managing Member; (B) any substitution or replacement of any Facility Document or any agreement with an Affiliate, (C) any additional Facility Document or agreement with an Affiliate (it being understood that the Class A Member shall have the opportunity to review and make reasonable comments with respect to any subsequent Power Purchase Agreements, if any, that are proposed to be entered into); or

(xix) Take, or cause the Company or the Facility Company to take, any System(s) out of service, except as permitted pursuant to the terms of the PUMA or the Power Purchase Agreements.

Notwithstanding anything contained herein to the contrary, for so long as any indebtedness or obligations remain outstanding under the Financing Documents, each Member hereby acknowledges that the consent of certain parties to the Financing Documents, such as the Facility Lenders, may be required in connection with the Facility Company taking certain actions.

(c) Prior to the dissolution of the Company under the terms of this Agreement, the Managing Member shall devote such time and effort to the Company’s business as may be necessary to adequately promote the interests of the Company and the mutual interests of the Members.

(d) Notwithstanding any other provision of this Agreement to the contrary, at the written direction of the Class A Member, the Managing Member shall require the repurchase or reacquisition of all or part of a Facility or the cancellation of a purchase if so allowed or required pursuant to the terms of Section 2.4(a), 2.4(b), 3.2(d), 3.2(e), 5.7(b), 12.3 or 12.7(b) of the PUMA.

6.3 Removal of Managing Member.

(a) The Managing Member will be subject to removal as Managing Member upon thirty (30) days’ notice by the Consent of the Class A Members if the Managing Member (x) has engaged in gross negligence, willful misconduct or fraud, (y) has breached any material duty, obligation or covenant of this Agreement or caused the Company or the Facility Company to breach any material duty, obligation or covenant of any Facility Document, or (z) is declared

[***] Confidential Treatment Requested

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Bankrupt; provided, however, that in the case of clause (y), the Managing Member shall have the opportunity to cure such breach or violation within thirty (30) days of receiving notice of such breach (which thirty (30)) day period shall run concurrently with the required notice period); provided, further, that if such breach or violation cannot be cured within such period, and so long as the Managing Member is proceeding with diligence to cure such breach, the thirty (30) day cure period shall be extended by an additional thirty (30) days, for a total cure period of sixty (60) days.

(b) If the Managing Member is so removed, the Consent of the Members shall be required to elect a successor Managing Member to succeed to all the rights, and to perform all of the obligations, set forth for the Managing Member hereunder.

6.4 Indemnification and Exculpation.

(a) To the fullest extent permitted by Applicable Law, the Managing Member and its respective officers, directors, employees and agents shall be exculpated from, and the Company shall indemnify such Persons from and against, all Claims any of them incur by reason of any act or omission performed or omitted by such Person in a manner that is consistent with its rights and obligations under Applicable Law and this Agreement; provided, however, that this indemnity does not apply to Claims that are attributable to the gross negligence, willful misconduct or fraud of such Person or a breach by the Managing Member or the Class B Member or any Affiliate thereof of its covenants or representations set forth in any Investment Document or any Facility Document.

(b) To the fullest extent permitted by Applicable Law, expenses to be incurred by an indemnified Person under this Section 6.4 shall, from time to time, be advanced by or on behalf of the Company prior to the final disposition of any matter upon receipt by the Company of an undertaking from a Person with sufficient credit capacity to repay such amount if it shall be determined that the indemnified Person is not entitled to be indemnified under this Agreement.

6.5 Company Reimbursement. The Company shall directly pay and reimburse the Managing Member for all Company Reimbursable Expenses incurred from time to time.

6.6 Additional Covenants. The Managing Member shall cause the Facility Company to distribute to the Company any System in respect of which an Offtaker has made a payment of Termination Value pursuant to the relevant Power Purchase Agreement; provided that the Facility Lenders shall have first released their lien on such System. Following any such distribution of a System to the Company, (a) with respect to any System previously deployed under the Wal-Mart ESA, the Company shall distribute such System to the Class B Member in accordance with Section 5.5, or (b) with respect to all Systems previously deployed by a Power Purchase Agreement other than the Wal-Mart ESA, the Company shall cause such System to be remarketed by the Administrator pursuant to the Company ASA. If a Company-held System is sold or redeployed following such remarketing, the proceeds of such sale or redeployment shall first be paid to such Offtaker to the extent required pursuant to the relevant terms of the applicable Power Purchase Agreement. Any remaining sale or redeployment proceeds shall be considered “Available Cash Flow” and shall be distributed to the Members in accordance with Section 5.1.

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ARTICLE VII

RIGHTS AND RESPONSIBILITIES OF MEMBERS

7.1 General. The rights and responsibilities of the Members shall be as provided in the Delaware Certificate, this Agreement and the Act.

7.2 Member Voting Rights. Except as provided in Sections 6.2(b), and as otherwise expressly provided in this Agreement or as required by the Act, the consent of the Members shall not be required and the Managing Member (and not the other Members) shall have all right, power and authority to do for, on behalf of, and in the name of the Company, all things that the Managing Member deems necessary, proper or desirable to carry out its duties and responsibilities. Without limitation of the foregoing, to the extent that the consent of the Members is express required by this Agreement or the Act, except as provided in Sections 6.2(b), or as otherwise expressly provided in this Agreement, the Consent of the Members shall constitute approval by, or the authorization of, any action by or on behalf of the Company that expressly requires a vote, consent, approval or action of or an election by the Members; provided, that, without the prior written approval of each Member adversely affected thereby, no such consent shall (i) modify the limited liability of a Member; (ii) require a Member to provide funds to the Company, by loan, contribution or otherwise (or amend any of the conditions to making any loan or contribution); (iii) alter the interest of any Member in Capital Accounts, Profits, Losses, distributions or Available Cash Flow; or (iv) amend, supplement or otherwise modify Sections 6.2(b) or this Section 7.2, or, in each case, any of the definitions of capitalized terms used therein.

7.3 Member Liability.

(a) To the fullest extent permitted under the Act and under Applicable Law as currently or hereafter in effect, no Member shall have any personal liability whatsoever, whether to the Company or to its creditors for the debts, obligations, expenses or liabilities of the Company, whether arising in contract, tort or otherwise, which shall be solely the debts, obligations or liabilities of the Company, or for any of its losses, in excess of the value of such Member’s Capital Account, except as expressly provided herein.

(b) A Member shall be liable only to make its Capital Contributions as provided herein and in the Equity Capital Contribution Agreement and shall not be required to restore a deficit balance in its Capital Account, except as provided in Section 10.3. The failure of the Company to observe any formalities or requirements relating to the exercise of its powers or management of its business or affairs under this Agreement or the Act shall not be grounds for imposing personal liability on the Members or the Managing Member for liabilities of the Company.

7.4 Withdrawal. Except as otherwise provided in this Agreement, no Member shall be entitled to: (i) voluntarily withdraw from the Company; (ii) withdraw any part of such Member’s Capital Contributions from the Company; (iii) demand the return of such Member’s Capital Contributions; or (iv) receive property other than cash in return for such Member’s Capital Contribution.

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7.5 Member Compensation. No Member shall receive any interest, compensation or drawing with respect to its Capital Contributions or its Capital Account or for services rendered on behalf of the Company or otherwise, in its capacity as a Member, except as otherwise provided in this Agreement or the ASAs.

7.6 Other Ventures. Notwithstanding any other provision of this Agreement or any duty existing at law or in equity, the Members (including the Managing Member) and their respective Affiliates at any time and from time to time may engage in and possess interests in other business ventures of any and every type and description, including other business ventures competitive with, or of the same type and description as, the Company and the Facility Company, independently or with others.

7.7 Confidential Information.

(a) With respect to each of the Company and the Members, except to the extent necessary for the exercise of its rights and remedies and the performance of its obligations under this Agreement or otherwise with respect to the Facility Company or the Facilities, such Member will not itself use or intentionally disclose (and will not permit the use or disclosure by any of its Affiliates, any of the officers, directors or employees of it or its Affiliates (collectively, “Representatives”), or any of its advisors, counsel and public accountants (collectively, “Advisors”)), directly or indirectly, any of the Facility Documents, this Agreement or other confidential information in respect of the transactions contemplated hereby (“Confidential Information”); provided, that (i) any such Member and its Affiliates, Representatives and Advisors may use and disclose Confidential Information to such Member’s Affiliates, Representatives and Advisors and to any other Member and its Affiliates, Representatives and Advisors, (ii) any such Member and its Affiliates, Representatives and Advisors may use and disclose Confidential Information that (A) has been publicly disclosed or is publicly known (other than by such Member or any of its Affiliates, Representatives or Advisors in breach of this Section 7.7), (B) has come into the possession of such Member or any of its Affiliates, Representatives or Advisors other than in connection with the transactions contemplated by this Agreement, or (C) has been independently developed by such Member or any of its Affiliates, Representatives or Advisors without use of information obtained under this Agreement, (iii) to the extent that that such disclosure is required by law, a subpoena or any other applicable legal process or by a Governmental Authority having jurisdiction over such Member or its Affiliates, such Member may disclose Confidential Information provided that in such case such Member shall, unless otherwise prohibited by law, (1) give prompt notice to the other Members that such disclosure is or may be required and (2) cooperate in protecting such confidential or proprietary nature of the Confidential Information which must so be disclosed; provided, that no such notification shall be required in respect of any disclosure to bank, insurance or financial industry regulatory authorities having jurisdiction over such Member or its Affiliates, (iv) disclosures to lenders, potential lenders or other Persons providing financing to the Company or to the Facility Company or to their respective representatives and advisors, any Member or any Affiliate of any Member and potential purchasers of equity interests in the Company, any Member or any Affiliate of any Member are permitted if such Persons have agreed to abide by the terms of this Section 7.7 or have otherwise entered into an agreement with restrictions on disclosure substantially similar to the terms of this Section 7.7 (or in the case of advisors, are otherwise bound by professional or legal obligations of confidentiality), (v) any such Member and its

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Affiliates, Representatives and Advisors may disclose Confidential Information, and make such filings, as may be required by this Agreement or the Facility Documents, (vi) any Member which is an insurance company or an Affiliate thereof may disclose such information to the National Association of Insurance Commissioners and any rating agency requiring access to its portfolio, (vii) the Class B Equity Investor and its Affiliates, Representatives and Advisors may disclose Confidential Information relating to the Facilities (but not Confidential Information relating to any Member) to lenders, potential lenders or other Persons providing financing to any Person developing or proposing to develop the remaining phases of the Facilities and potential purchasers of equity interests in such Person or potential power or renewable energy credits purchasers from such Persons, or to any Person in connection with the operation of the Facilities, and (viii) any such Member may disclose Confidential Information to the United States Department of Treasury, the IRS or any state taxing authority in connection with any communication regarding the tax consequences of the Facilities, Facility Company’s ownership and operation of the Facilities, Company’s ownership of an interest in the Facility Company or such Member’s ownership of an interest in the Company; provided, that such Member shall, as soon as practicable, notify the Class B Equity Investor of such disclosure, furnish a copy of any written material provided to the IRS or any state taxing authority to the Class B Equity Investor and, if practicable, afford the Class B Equity Investor reasonable opportunity to comment on the proposed disclosure (but for the avoidance of doubt the Class B Equity Investor will not have the right to consent to such proposed disclosure). A Member’s obligations pursuant to this Article VII shall survive the Transfer of its Units. Notwithstanding anything herein to the contrary, the Class B Equity Investor and any of its Affiliates (including Affiliates formed subsequent to the date hereof) may use any operational data with respect to the Facilities for the purpose of researching, analyzing, designing, improving, developing, manufacturing, installing, modifying or operating other fuel cell-powered electric generating facilities, whether similar to or different from the Facilities.

(b) The foregoing obligations shall not apply to the tax treatment or tax structure of the transactions contemplated hereby and each Member (and any employee, representative, or agent of any Member) may disclose to any and all Persons, without limitation of any kind, the tax treatment and tax structure of the transactions contemplated hereby and all other materials of any kind (including opinions or other tax analysis) that are provided to any Member relating to such tax treatment and tax structure (all such information that may be disclosed being the “Tax Information”). However, any such Tax Information is required to be kept confidential to the extent necessary to comply with any applicable securities laws. The preceding sentences are intended to cause the transactions contemplated hereby not to be treated as having been offered under conditions of confidentiality for purposes of Sections 1.6011-4(b)(3) and 301.6111-2(a)(2)(ii) (or any successor provision) of the Treasury Regulations issued under the Code and shall be construed in a manner consistent with such purpose. For purposes of this provision, the Tax Information includes only those facts that may be relevant to understanding the purported or claimed U.S. federal income tax treatment or tax structure of the transactions contemplated hereby and, to eliminate any doubt, therefore specifically does not include information that either reveals or standing alone or in the aggregate with other information so disclosed tends of itself to reveal or allow the recipient of the information to ascertain the identity of any Company, any Member or the Class B Equity Investor (or potential member), or any other third parties involved in any of the transactions contemplated hereby or any other potential transactions with any of the foregoing.

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(c) Except as otherwise permitted by this Section 7.7, no Member shall include in a press release or otherwise disclose (other than as required to be included in a filing to any bank, insurance or financial industry regulatory authority having jurisdiction over such Member, its affiliates, permitted transferees, any security exchange or the Securities Exchange Commission or as required by Applicable Law) the name of any Member as an equity investor or potential equity investor without the prior written consent of such Member which consent shall not be unreasonably withheld.

(d) If the Company or any subsidiary thereof is required at any time to make any regulatory filing that identifies by name, or otherwise relates specifically to, any Member or any of its Affiliates or permitted transferees, then the Company shall submit (or the Company shall cause its subsidiary to submit) an advance draft of such regulatory filing to such Member or its Affiliate or permitted transferee, as applicable, and each such Member shall cooperate and shall provide such information as is necessary to complete such filing. Such Member (or its Affiliate or permitted transferee, as applicable) shall have the right to provide comments to such regulatory filing as it relates to such Member (or its Affiliate or permitted transferee), and the Company or its subsidiary shall incorporate or accommodate, prior to submitting such filing, such comments.

(e) If any Member is required at any time to make any regulatory filing (other than a filing to any bank, insurance or financial industry regulatory authority having jurisdiction over such Member or its affiliates) that identifies by name, or otherwise relates specifically to, any other Member, then such Member shall submit an advance draft of the relevant portions of such regulatory filing to such other Member. Such other Member shall have the right to provide comments to such regulatory filing as it relates to such other Member, and the Member making such filing shall incorporate or accommodate, prior to submitting such filing, such comments.

7.8 ERISA Matters. The covenants set forth this Section 7.8 apply only to a Class A Member during the time that such Class A Member is an ERISA Affiliate.

(a) Each Class A Member shall deliver to the Company promptly, and in any event within ten Business Days after the Class A Member becoming aware of any of the following, a written notice setting forth the nature thereof and the action, if any, that the Class A Member or its Member ERISA Affiliate proposes to take with respect thereto:

(i) with respect to any Plan (other than any Multiemployer Plan) that is subject to Title IV of ERISA, any reportable event, as defined in section 4043(c) of ERISA and the regulations thereunder, for which notice thereof has not been waived pursuant to such regulations as in effect on the date hereof; provided, however, that the notice to the Company under this Section 7.8(a)(i) with respect to such reportable event shall be timely if it is provided within ten Business Days after the earlier of the filing of the notice with the Pension Benefit Guaranty Corporation with respect to such event or the due date for the filing of such notice with the Pension Benefit Guaranty Corporation; or

(ii) the taking by the PBGC of steps to institute, or the threatening by the PBGC in writing of the institution of, proceedings under section 4042 of

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ERISA for the termination of, or the appointment of a trustee to administer, any Title IV Plan, or the receipt by any Member ERISA Affiliate of a notice from a Multiemployer Plan that such action has been taken by the PBGC with respect to such Multiemployer Plan; or

(iii) any event, transaction or condition that could reasonably be expected to result in the incurrence of any liability by any Member ERISA Affiliate pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans which has not been satisfied, or in the imposition of any lien on any of the rights, properties or assets of any Member ERISA Affiliate pursuant to Title I or IV of ERISA or such penalty or excise tax provisions, if such liability or lien, taken together with any other such liabilities or liens then existing, could reasonably be expected to have a Material Adverse Effect.

(b) No Class A Member or any of its Member ERISA Affiliates shall (i) permit any Title IV Plan to fail to satisfy the minimum funding standards of ERISA or section 412 of the Code, (ii) seek a waiver of the minimum funding standards of ERISA or an extension of any amortization period under section 412 of the Code, (iii) file with the PBGC a notice of intent to terminate any Title IV Plan in a distress termination described in section 4041(c) of ERISA, (iv) permit a Title IV Plan funding to have an “at risk” status within the meaning of section 430(i) of the Code, (v) incur any material liability pursuant to Title IV of ERISA (other than for PBGC premiums due but not delinquent) or the penalty or excise tax provisions of the Code relating to employee benefit plans (or take or fail to take any action that is reasonably expected to result in the incurrence of any such liability), or (vi) withdraw from any Multiemployer Plan; unless any such event or events described in clauses (i) through (vi) above, either individually or together with any other such event or events, would not reasonably be expected to have a Material Adverse Effect. In addition, no Class A Member or any of its Member ERISA Affiliates shall permit the aggregate “amount of unfunded benefit liabilities” (within the meaning of section 4001(a)(18) of ERISA) under all Underfunded Title IV Plans, determined in accordance with Title IV of ERISA, to exceed the aggregate current value of the assets under all Underfunded Title IV Plans by an amount that, if required to be paid in an immediate lump-sum payment, could reasonably be expected to result in a Material Adverse Effect.

ARTICLE VIII

ADMINISTRATIVE AND TAX MATTERS

8.1 Intent for Income Tax Purposes. The Members intend that the Company be treated as a partnership for federal, state and local income tax purposes and that it be operated in a manner consistent with such treatment, but that the Company not be operated or treated as a “partnership” for any other purpose, including, but not limited to, Section 303 of the Federal Bankruptcy Code, and the provisions of this Agreement may not be construed to suggest otherwise. The Members intend that the Facility Company be treated as a disregarded entity for federal, state and local tax purposes.

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8.2 Books and Records. The Company’s books of account shall be prepared and maintained in accordance with generally accepted accounting principles for the type of business of the Company. The Managing Member shall cause to be kept, at the principal place of business of the Company, full and proper ledgers and other books of account of all receipts and disbursements and other financial activities of the Company, including the following documents:

(a) A copy of the certificate of formation of the Company and the Facility Company and all certificates of amendment thereto, together with executed copies of any powers of attorney pursuant to which any certificate has been executed;

(b) Copies of the Company’s and the Facility Company’s federal, state and local income tax or information returns and reports (including any information or reports pertaining to any tax elections made by the Company or the Facility Company), if any, for the three (3) most recent Taxable Years of the Company;

(c) Copies of the Prior LLC Agreement, this Agreement and all amendments thereto;

(d) Copies of the constituent documents in respect of the Facility Company;

(e) Financial statements, including a consolidated balance sheet and consolidated statements of income (or loss), of the Company and its consolidated subsidiaries for, to the extent applicable, each of the three (3) most recent Fiscal Years, including quarterly and monthly internal consolidated financial statements of the Company; and The Company’s books and records for at least the current and, to the extent applicable, the past three (3) Fiscal Years.

8.3 Information; Access and Audit Rights. The Members and their respective agents will have the right, at their sole risk and expense and upon reasonable prior notice to the Managing Member, to (i) inspect the Facilities and all relevant books and records relating thereto and make copies thereof, and (ii) audit the Company’s and/or the Project Company’s books and records. Any such inspection will be conducted during normal business hours and so as not to unreasonably interfere with the business of the Managing Member, provided that Company shall provide reasonable access to their or, if applicable, the Project Company’s employees, managers officers, and agents for the purposes of answering reasonable inquiries or providing reasonably required information. The foregoing rights may be exercised through any agent or employee of such Member designated in writing by it or by an independent public accountant, engineer, attorney or other consultant so designated.

8.4 Reports. The Managing Member shall, at the Company’s expense, deliver, or caused to be delivered to each Member, the following reports, information and financial statements at the times indicated below:

(a) Annually, within 120 days after the end of each calendar year (as such dates may be extended or waived by the applicable Members), audited consolidated financial statements and report for the Company and its consolidated subsidiaries, prepared by the Certified Public Accountant, prepared on a GAAP basis effective as of the end of the immediately-preceding year, including a consolidated balance sheet and consolidated statements

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of income, members’ equity and changes in cash flows (the “Annual Report”) and accompanied by a report of such accounting firm stating that their examination was made in accordance with generally accepted auditing standards and that in their opinion such financial statements and Annual Report of the Company and its consolidated subsidiaries fairly present the Company’s and its consolidated subsidiaries’ cash flows, results of operations and changes in financial position on a GAAP basis;

(b) Monthly, within 20 days of the end of each calendar month, (1) unaudited monthly financial statements of the Company and its consolidated subsidiaries for the calendar month then ended, all in reasonable detail and fairly presenting the financial position of the Company and its consolidated subsidiaries, as of the end of such month, on a GAAP basis, subject to lack of footnotes and normal year-end adjustments, and (2) a schedule of aged accounts receivable and aged accounts payable as of the last day of such calendar month;

(c) Quarterly, within 45 days after the end of each calendar quarter, a report setting forth (1) the kilowatt hours of electricity produced and sold during such quarter from each Facility, (2) the aggregate revenues and expenses of the Facilities for the most recent available quarter, (3) in the case of the calendar quarters ending after January 31st, the same information set forth in (1) through (2) on a cumulative basis since the beginning of the Fiscal Year, and (4) a quarter and year to date performance versus budget, variance analysis and a short narrative regarding key operating events and issues;

(d) Annually, within 45 days prior to the start of each calendar year, the annual capital and operating budgets for the Company and the Facility Company;

(e) Quarterly, within 30 days prior to the start of each calendar quarter, the forecasted funding requests for the Company and the deployment schedule for the remainder of the Systems to be installed pursuant to the Power Purchase Agreements;

(f) Promptly upon becoming aware of any such event or circumstance, notice of (i) any material litigation pending or, to the knowledge of the Managing Member, threatened against the Facility Company or the Company and (ii) any material event of default under the Facility Documents;

(g) Within 30 days after renewal, copies of policies of insurance maintained by or on behalf of the Company or any of its subsidiaries, including current certificates of insurance; and

(h) Promptly following any request therefor, such other reports and information in the possession of the Managing Member as reasonably requested by the Members and such other reports reasonably requested by and paid for by the requesting Member to the extent external costs are incurred with respect to the preparation of such reports.

8.5 Permitted Investments. All cash of the Company may only be invested and reinvested in one of the following investment alternatives (“Permitted Investments”) (but not directly or indirectly in any “public utility” or “holding company” as defined in the FPA unless any applicable FERC approval has been obtained):

(a) Direct obligations of the United States of America (including obligations issued or held in book-entry form on the books of the Department of the Treasury of the United States of America) or obligations the timely payment of the principal of and interest on which are fully guaranteed by the United States of America;

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(b) Obligations, debentures, notes or other evidence of Indebtedness issued or guaranteed by any of the following: Export- Import Bank of the United States, Federal Housing Administration or other agency or instrumentality of the United States;

(c) Interest-bearing demand or time deposits (including certificates of deposit) which are either:

(i) insured by the Federal Deposit Insurance Corporation, or

(ii) held in banks and savings and loan associations, having general obligations rated at least “AA” or equivalent by S&P or Moody’s, or if not so rated, secured at all times, in the manner and to the extent provided by law, by collateral security described in clauses (a) or (b) of this definition, of a market value of no less than the amount of moneys so invested;

(d) Obligations of any state of the United States or any agency or instrumentality of any of the foregoing which are rated at least “AA” by S&P or at least “Aa” by Moody’s;

(e) Commercial paper rated (on the date of acquisition thereof) at least A-1 or P-1 or equivalent by S&P or Moody’s, respectively (or an equivalent rating by another nationally recognized credit rating agency of similar standing if neither of such corporations is then in the business of rating commercial paper), maturing not more than 90 days from the date of creation thereof but excluding any such commercial paper issued by any Member or any Affiliate of the Managing Member; or

(f) Any other investments agreed to by the Members and the Managing Member.

8.6 Tax Elections. The Managing Member shall make the following federal income tax elections on the appropriate Company tax returns:

(a) To the extent permitted under Code Section 706, to elect the calendar year as the Company’s Taxable Year;

(b) To elect the accrual method of accounting;

(c) To elect to amortize any organizational and start-up expenses of the Company ratably over a period of 180 months as permitted by Code Sections 709(b);

(d) To make any election the Managing Member reasonably determines is necessary to claim the ITC with respect to a Facility;

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(e) If a distribution of the Company’s property as described in Section 734 of the Code occurs or a transfer of Membership Interest as described in Section 743 of the Code occurs to elect pursuant to Section 754 of the Code to adjust the basis of the Company’s properties.

(f) To elect under Section 6231(a)(1)(B)(ii) of the Code and the Treasury Regulation thereunder to treat the Company as a partnership to which the provisions of Sections 6221 through 6234 of the Code, inclusive, apply; and

(g) To elect out of additional first year depreciation pursuant to Section 168(k)(2)(D)(iii) of the Code, unless, after consultation with the Class A Equity Investor, the Class A Equity Investor requests in writing that this election not be made.

The Managing Member shall make no other tax elections for the Company, except as otherwise provided herein, without the written Consent of the Members, such consent not to be unreasonably withheld; provided, however, that the Managing Member may, subject to the limitation that the Tax Return shall be filed no later than August 1st of the year following the Company’s Taxable Year, elect to extend the time for filing any Company tax return as provided for under the Code and applicable State statutes. Neither the Company nor any Member may make an election for the Company to be excluded from the application of the provisions of subchapter K of chapter 1 of subtitle A of the Code or any similar provisions of any state Applicable Law. No Member, Managing Member, officer or agent of the Company is authorized to, or may, file IRS Form 8832 (or such alternative or successor form) to elect to have the Company or the Facility Company classified as a corporation for federal income tax purposes under Regulation Section 301.7701-3.

8.7 Tax Matters Member and Company Tax Filings.

(a) The Class B Equity Investor shall be, and so long as it continues to be the Managing Member, shall continue to be, the “tax matters partner” of the Company pursuant to Section 6231(a)(7) of the Code (the “Tax Matters Member”); provided, that if the Class B Equity Investor is no longer the Managing Member, the Person selected as the successor Managing Member pursuant to Section 6.3(b) shall appoint a new Tax Matters Member. The Tax Matters Member shall prepare, or cause to be prepared, and timely file (on behalf of the Company) all federal, state and local tax returns required to be filed by the Company. Each Member shall furnish to the Tax Matters Member all pertinent information in its possession relating to the Company’s operations that is reasonably necessary to enable the Company’s tax returns to be timely prepared and filed. The Tax Matters Member shall prepare, or cause to be prepared, the Company’s federal income tax return (including K-1s) (the “Tax Return”) on a basis consistent with this Agreement and the assumptions contained in the Base Case Model (a “Consistent Return”), except as otherwise required by Applicable Law. The Tax Matters Member shall use commercially reasonable efforts to furnish to the Members, by no later than the 90 days following each Taxable Year, the Tax Return proposed to be filed by the Tax Matters Member, but in any event, shall furnish such Tax Return on or before June 15 of the year following the Company’s Taxable Year, and, with respect to any Tax Return for any tax year relating to any portion of the Recapture Period, shall incorporate any reasonable comments of the Class A Members to such Tax Returns prior to filing, and, with respect to any other Tax Return,

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shall use good faith efforts to incorporate any reasonable comments of the Class A Members to such Tax Returns prior to filing. The Tax Matters Member shall furnish to the Members reasonable estimates (broken down by item and character of income, loss, deduction or credit) prior to the date 60 days after the end of the Taxable Year and shall furnish to the Members copies of each Tax Return as filed. In the event that the Tax Matters Member anticipates furnishing to the Members a Tax Return that is not a Consistent Return, the Tax Matters Member shall notify the Members in writing no less than 30 days prior to the date on which it intends to furnish such Tax Return that such Tax Return will not be a Consistent Return, other than inconsistencies solely relating to variances in the anticipated operating results of the Facilities. If a Tax Return is timely objected to by the Class A Members, the Tax Matters Member shall submit such Tax Return, together with copies of all relevant workpapers used in preparation thereof, to a nationally recognized firm (other than the Certified Public Accountant) of independent public accountants or, if related to a legal matter, a law firm, in each case, selected by the Class A Members. The determination of such independent expert, and the Tax Return as completed by such expert, shall be final and binding on the Members, and the Tax Matters Member shall cause such final Tax Return to be filed; provided, that, if the Tax Return is required under Applicable Law to be filed prior to the date on which such independent expert makes its determination, the Tax Return shall be filed consistent with the positions set forth by the Tax Matters Member and will be amended by the Tax Matters Member to reflect the determination of such independent expert, as applicable. The Company shall bear the costs of the preparation and filing of its returns, including the fees of the independent expert.

(b) The Tax Matters Member, in consultation with the other Members, shall direct the defense of any claims made by the IRS to the extent that such claims relate to the adjustment of Company items at the Company level, provided that the Tax Matters Member shall consider in good faith any reasonable requests made by the Class A Members in respect of the strategy to be taken in connection with any such defense; and further provided, that, if the Tax Matters Member and the Class A Members are unable to agree on any strategy to be taken with respect to the defense of any such claims, such strategy shall be determined by tax counsel selected by the Tax Matters Member and approved by the Class A Members to make such determination. The Tax Matters Member shall select nationally recognized tax counsel to represent the Company in any such defense. The Tax Matters Member shall cause the Company to retain and to pay the fees and expenses of counsel approved as described in the preceding sentence and to pay the fees and expenses of other advisors chosen by the Tax Matters Member in consultation with the other Members. The Tax Matters Member shall promptly deliver to each Member a copy of all notices, communications, reports and writings received from the IRS by the Company relating to or potentially resulting in an adjustment of Company items, shall promptly advise each Member of the substance of any conversations with the IRS in connection therewith and shall keep the Members advised of all developments with respect to any proposed adjustments that come to its attention. In addition, the Tax Matters Member shall (A) provide each Member with a draft copy of any correspondence or filing to be submitted by the Company in connection with any administrative or judicial proceedings relating to the determination of Company items at the Company level reasonably in advance of such submission, (B) incorporate all reasonable changes or comments to such correspondence or filing that are approved or recommended by the Class A Members and (C) provide each Member with a final copy of correspondence or filing. The Tax Matters Member will provide each Member with written notice reasonably in advance of any meetings or conferences with respect to any administrative or judicial proceedings relating to the determination of Company items at the Company level (including any meetings or conferences with counsel or advisors to the Company with respect to such proceedings) and each Member shall have the right to participate, at its sole cost and expense, in any such meetings or conferences.

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(c) Without the consent of the Class A Members, the Tax Matters Member shall not (A) commence a judicial action (including filing a petition as contemplated in Section 6226(a) or Section 6228 of the Code) with respect to a federal income tax matter or appeal any adverse determination of a judicial tribunal; (B) enter into a settlement agreement with the IRS which purports to bind the Members; (C) intervene in any action as contemplated by Section 6226(b) of the Code; (D) file any request contemplated in Section 6227(b) of the Code; or (E) enter into an agreement extending the period of limitations as contemplated in Section 6229(b)(l) (B) of the Code.

(d) The provisions of this Article VIII will survive the termination of the Company or the termination of any Member’s interest in the Company and will remain binding on the Member for the period of time necessary to resolve with the IRS or other federal tax agency any and all federal income tax matters relating to the Company that are subject to Code Sections 6221 through 6233.

(e) The Tax Matters Member and the Members will treat the Company as the owner of the Facilities for federal income and other applicable tax purposes in all tax filings.

(f) Each Member shall provide the other Members with such assistance as may reasonably be requested by such other Members in connection with the preparation of any Tax Return, any audit or other examination by any taxing authority, or any judicial or administrative proceedings relating to the liability for any taxes with respect to the operations of the Company and the Project Company or the ITC or depreciation deductions with respect to any Facility.

8.8 Financial Accounting. Each Member may report the transactions contemplated hereby for financial accounting purposes in such manner as the Member and its accountants may determine appropriate.

8.9 Legend. Until (a) the securities representing ownership of membership interests in the Company are effectively registered under the Securities Act of 1993, as amended, or (b) the holder of such securities delivers to the Company a written opinion of counsel of such holder to the effect that such legend is no longer necessary under the Securities Act of 1933, as amended, the Company will cause each certificate representing its securities to be stamped or otherwise imprinted with the following legend: THE MEMBERSHIP INTEREST REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE

SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAW OF ANY STATE. SUCH MEMBERSHIP INTEREST MAY NOT BE SOLD OR TRANSFERRED UNLESS SUBSEQUENTLY REGISTERED OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE. THIS CERTIFICATE EVIDENCES

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AN INTEREST IN 2015 ESA HOLDCO, LLC AND SHALL BE A SECURITY GOVERNED BY ARTICLE 8 OF THE UNIFORM COMMERCIAL CODE AS IN EFFECT FROM TIME TO TIME IN THE STATES OF DELAWARE AND NEW YORK AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OTHER APPLICABLE JURISDICTION.

8.10 Representations, Warranties and Covenants of the Class B Member. The Class B Member represents and warrants on the Effective Date and covenants as follows:

(a) The Class B Member is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware.

(b) The Class B Member has the full limited liability company right, power and authority to perform its obligations hereunder.

(c) This Agreement is a legal valid and binding obligation of the Class B Member enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and by general equitable principles.

(d) Such Member (or if it is a disregarded entity, or if it and its owner are disregarded entities, its owner or its owner’s owner) is and will remain a United States person within the meaning of Section 7701(a)(30) of the Code and is not, and will not become, subject to withholding under Section 1446 of the Code.

(e) That no part of the aggregate Capital Contributions made by such Member and used by such Member to acquire any Units, constitutes “plan assets” within the meaning of Department of Labor Reg. §2510.3-101, as modified by Section 3(42) of ERISA, of any “employee benefit plan” within the meaning of section 3(3) of ERISA that is subject to Part 4 of Subtitle B of Title I of ERISA, or other “benefit plan investor” (as defined in section 3(42) of ERISA) or assets allocated to any insurance company separate account or general account in which any such employee benefit plan or benefit plan investor (or related trust) has any interest.

(f) The Class B Member is and will remain for federal income tax purposes a corporation (and not an S corporation) that is neither a Disqualified Person nor a disregarded entity; provided, however, if, for federal income tax purposes, a Class B Member is a disregarded entity, then each beneficial owner of such Class B Member (or if such beneficial owner is a partnership or disregarded entity, then each beneficial owner of such partnership or disregarded entity) is and will remain an individual or corporation (and not an S corporation or disregarded entity) that is neither a Disqualified Person nor a disregarded entity for federal income tax purposes.

(g) The Class B Member will not take any action that would cause (or fail to take any action within its reasonable control, and not prohibited under any Financing Document or Principal Facility Document to prevent) (i) the Assets of the Company to become subject to the alternative depreciation system within the meaning of Section 168(g) of the Code or (B) “tax-exempt use property” within the meaning of Section 168(h) of the Code, or (ii) any portion of the basis of any Facility to be attributable to “qualified rehabilitation expenditures” within the meaning of Section 47(c)(2)(A) of the Code.

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(h) The Class B Member shall not become a “related person” with respect to any lender under the Financing Documents for purposes of Treasury Regulation Section 1.7524(b).

(i) Based upon its Knowledge of the facts pertaining to the transaction as of the date hereof, the Class B Member will not report the transaction to the IRS as a “reportable transaction” pursuant to Code Section 6111, the relevant Treasury Regulations and any other administrative authorities or pronouncements, in each case as they exist on the date hereof; provided, however, that if such facts or law change in a manner affecting the reportability of the transaction, this covenant shall not be applicable.

(j) Except to the extent the Company is or becomes a “related person” to any purchaser under any power purchase agreement for power delivered from a Facility for purposes of Sections 267 or 707 of the Code on account of a relationship with any Class A Member or any Affiliate thereof, the Company shall not become a “related person” to any purchaser under any power purchase agreement for power delivered from a Facility for purposes of Sections 267 or 707 of the Code.

8.11 Representations, Warranties and Covenants of the Class A Member. The Class A Member represents and warrants on the Effective Date and covenants to the Class B Member as follows:

(a) It is an entity duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.

(b) It has the full right, power and authority to perform its obligations hereunder.

(c) This Agreement is a legal valid and binding obligation of such Member enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and by general equitable principles.

(d) Such Member (or if it is a disregarded entity, or if it and its owner are disregarded entities, its owner or its owner’s owner) is and will remain a United States person within the meaning of Section 7701(a)(30) of the Code and is not, and will not become, subject to withholding under Section 1446 of the Code.

(e) The Class A Member will not take any action that would cause (or fail to take any action within its reasonable control, and not prohibited under any Financing Document or Principal Facility Document to prevent) (i) the Assets of the Company to become subject to the alternative depreciation system within the meaning of Section 168(g) of the Code or (B) “tax-exempt use property” within the meaning of Section 168(h) of the Code, or (ii) any portion of the basis of any Facility to be attributable to “qualified rehabilitation expenditures” within the meaning of Section 47(c)(2)(A) of the Code.

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(f) The Class A Member is and will remain for federal income tax purposes a corporation (and not an S corporation) that is neither a Disqualified Person nor a disregarded entity; provided, however, if, for federal income tax purposes, a Class A Member is a disregarded entity, then each beneficial owner of such Class A Member (or if such beneficial owner is a partnership or disregarded entity, then each beneficial owner of such partnership or disregarded entity) is and will remain an individual or corporation (and not an S corporation or disregarded entity) that is neither a Disqualified Person nor a disregarded entity for federal income tax purposes.

(g) The Class A Member shall not become a “related person” with respect to any lender under the Financing Documents for purposes of Treasury Regulation Section 1.7524(b).

(h) Based upon its Knowledge of the facts pertaining to the transaction as of the date hereof, it will not report the transaction to the IRS as a “reportable transaction” pursuant to Code Section 6111, the relevant Treasury Regulations and any other administrative authorities or pronouncements, in each case as they exist on the date hereof; provided, however, that if such facts or law change in a manner affecting the reportability of the transaction, this covenant shall not be applicable.

(i) That no part of the aggregate Capital Contributions made by such Member and used by such Member to acquire any Units, constitutes “plan assets” within the meaning of Department of Labor Reg. §2510.3-101, as modified by section 3(42) of ERISA, of any “employee benefit plan” within the meaning of section 3(3) of ERISA that is subject to Part 4 of Subtitle B of Title I of ERISA, or other “benefit plan investor” (as defined in section 3(42) of ERISA) or assets allocated to any insurance company separate account or general account in which any such employee benefit plan or benefit plan investor (or related trust) has any interest.

8.12 Survival. The representations, warranties and covenants herein shall be continuing agreements of the Members that made them and shall continue until the termination of this Agreement.

8.13 No Breach of Obligations. Notwithstanding anything to the contrary contained herein, in no event shall it be a breach of the Managing Member’s obligations pursuant to this Article VIII to deliver any report, financial statement or Tax Return within the specified timeframes to the extent any failure to comply with such obligations is attributable to either the failure of any Member to grant or object to any consent required pursuant to the terms hereof necessary to enable the Managing Member to comply with such obligations.

ARTICLE IX

TRANSFERS OF INTERESTS; PURCHASE OPTION

9.1 Transfer and Encumbrances of Membership Interests.

(a) General Restriction. A Member may not Transfer or create or allow an Encumbrance (other than a Permitted Encumbrance of the type described in clause (n) of such term’s definition) on all or any portion of its Membership Interest, except in strict accordance with this Section 9.1. References in this Agreement to Transfers or Encumbrances of a

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“Membership Interest” shall also refer to Transfers or Encumbrances of a portion of a Membership Interest. Any attempted Transfer or Encumbrance of any Membership Interest, other than in strict accordance with this Section 9.1, shall be, and is hereby declared, null and void ab initio. The Members agree that a breach of the provisions of this Section 9.1 may cause irreparable injury to the Company and to the other Members for which monetary damages (or other remedy at law) are inadequate in view of (i) the complexities and uncertainties in measuring the actual damages that would be sustained by reason of the failure of a Member to comply with such provision and (ii) the uniqueness of the Company’s business and the relationship among the Members. Accordingly, the Members agree that the provisions of this Section 9.1 may be enforced by specific performance.

(b) Transfers of Membership Interests.

(i) General Provision. A Member may not Transfer all or any portion of its Membership Interest except by complying with the following requirements:

(A) No Transfer by the Class B Member may be made without the prior written consent of the Class A Member (such consent not to be unreasonably withheld). Any Transfer by the Class B Member shall be subject to the right of first Bid provisions of Section 9.1(d), and may not be made to any Disqualified Transferee.

(B) No Transfer by the Class A Member may be made without the prior written consent of the Class B Member (such consent not to be unreasonably withheld), provided that the Class A Member may make such a Transfer to any Affiliate of the Class A Member without the consent of the Class B Member.

(C) Any such Transfer must comply with the requirements of Section 9.1(b)(iii) and, if the Transferee is to be admitted as a Member, Section 9.1(b)(ii).

(ii) Admission of Transferee as a Member. A Transferee has the right to be admitted to the Company as a Member, with the Membership Interest so transferred to such Transferee, only if (A) the Transferring Member making the Transfer has granted the Transferee the Transferring Member’s entire Membership Interest, or, in the case of Transfer of a part of such Member’s Membership Interest, the express right to be so admitted; and (B) such Transfer is effected in strict compliance with this Section 9.1.

(iii) Requirements Applicable to All Transfer and Admissions. In addition to the requirements set forth in Sections 9.1(b)(i) and 9.1(b)(ii), any Transfer of a Membership Interest and any admission of a Transferee as a Member shall also be subject to the following requirements, and such Transfer (and admission, if applicable) shall not be effective unless such requirements are complied with:

(A) Transfer Documents. The following documents must be delivered to the Managing Member and each other Member:

(1) Notice. Written notice not less than ten (10) Business Days prior to the effective date of such Transfer.

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(2) Transfer Instrument. An instrument implementing the Transfer.

(3) Ratification of this Agreement. An instrument, executed by the Transferring Member and its Transferee, containing the following information and agreements, to the extent they are not contained in the instrument described in Section 9.1(b)(iii)(A)(2): (1) the notice address of the Transferee; (2) if applicable, the Member Parent of the Transferee; (3) the allocations percentages as to each class of Membership Interest of the Transferring Member after the Transfer by such Transferring Member, and its Transferee (which must total the allocations percentages as to each class of Membership Interest of the Transferring Member before the Transfer); (4) the Transferee’s ratification of this Agreement and its confirmation that the representations and warranties in Article VIII applicable to it are true and correct with respect to it; (5) the Transferee’s ratification of the Facility Documents to which the Transferring Member is a party and agreement to be bound by them to the same extent that the Transferring Member was bound by them prior to the Transfer; (6) in the case of any Transfer of Class B Interests, the Transferee assumes the indemnity obligation set forth in Article XI; and (7) representations and warranties by the Transferring Member and its Transferee (aa) that the Transfer and admission is being made in accordance with Applicable Law, and (bb) that the conditions set forth in Sections 9.1(b)(iii)(B) and (C) have been satisfied.

(B) Applicable Laws; Securities Laws. Such Transfer does not violate any provision of Applicable Law, including, without limitation, applicable securities laws.

(C) Tax Consequences.

(1) Entity Classification. Such Transfer will not cause the Company to be classified as an entity other than a partnership (or cause the Company to be treated as a publicly traded partnership) for purposes of the Code.

(2) Tax-Exempt Use Property. Such Transfer will not cause the Assets of the Company to become (in whole or in part) “tax-exempt use property” within the meaning of Section 168(h) of the Code.

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(3) Tax Disqualified Person. Such Transfer will not cause the recapture of any ITC with respect to any Member other than the transferring Member.

(4) Related Person. Such Transfer will not result in either (1) a Member being a “related person” with respect to any lender under the Financing Documents for purposes of Treasury Regulation Section 1.752-4(b), or (2) the Company being a “related person” to any purchaser under any power purchase agreement for power delivered from a Facility for purposes of Sections 267 or 707 of the Code.

(5) Opinion Requirement. The Transferring Member or the Transferee delivers to the Company not later than eight (8) Business Days prior to the effective date of the Transfer, a written opinion of nationally recognized tax counsel reasonably acceptable to the other Members that such Transfer will not cause any of (1) the recapture of any ITC claimed by the Company with respect to a Facility for any Member other than the transferring Member, (2) the Company to be classified as an entity other than a partnership (or cause the Company to be treated as a publicly traded partnership) for purposes of the Code or (3) the Company being a “related person” to any purchaser under any power purchase agreement for power delivered from a Facility for purposes of Sections 267 or 707 of the Code.

Solely for purposes of this Section 9.1(b)(iii)(C), any direct or indirect Transfer of an interest in a Member which would cause any event described in Section 9.1(b)(iii)(C) to occur with respect to a Membership Interest of that Member shall be treated as a Transfer by that Member of its Membership Interest.

(D) Payment of Expenses. The Transferring Member and its Transferee shall pay, or reimburse the Company and each other Member for, all reasonable costs and expenses incurred by the Company and such other Members in connection with the Transfer and admission, on or before the tenth day after the receipt by that Person of the Company’s or such other Member’s invoice for the amount due.

(E) No Release. No Transfer of a Membership Interest shall effect a release of the Transferring Member from any liabilities to the Company or the other Members arising from events occurring prior to or in connection with the Transfer.

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(F) Consents and Permits. All permits, consents, approvals and licenses with respect to such Transfer shall have been obtained (including any approval by FERC that the Company, the Facility Company or any party to a Transfer requires).

(G) Investment Company Act. Such Transfer does not require the Company to register as an “investment company” under the Investment Company Act of 1940, as amended.

(iv) Change of Member Control. A Change of Member Control of the Class B Member must also comply with the requirements of this Section 9.1 (other than Section 9.1(b)(iii)(A)(2), Section 9.1(b)(iii)(A)(3)), for a Transfer of the Class B Member’s interest at such time.

(c) Encumbrances of Membership Interest. A Member may encumber its Membership Interest if the instrument creating such Encumbrance provides that any Transfer upon foreclosure of such Encumbrance (or Transfer in lieu of such foreclosure) must comply with the requirements of Sections 9.1(b)(i) and 9.1(b)(iii). Any such Encumbrance, and any Transfer upon foreclosure of such Encumbrance (or Transfer in lieu of such foreclosure) that complies with such requirements shall be a Permitted Encumbrance and a permitted transfer pursuant to this Section 9.1.

(d) Right of First Bid. This Section 9.1(d) shall apply to any proposed voluntary Transfer of Membership Interests for cash or other tangible consideration under the conditions specified in Section 9.1(b)(i)(A). The Member proposing to make such a Transfer shall provide written notice of its intention to make a Transfer (a “Transfer Notice”) to all remaining Members. Upon receipt of a Transfer Notice, the Members entitled to receive the Transfer Notice shall have the right for a period of thirty (30) days to submit to the Transferring Member an unconditional offer to purchase, at the price and on the terms set forth in the notice of such offer (a “Bid”), all, but not less than all, of such Membership Interests in such proportions as the offering Members may agree, or, if they cannot agree, on a pro rata basis. Upon receipt of a proper Bid, the Member intending to Transfer its Membership Interests may, in its sole discretion, accept such Bid by notice to the offering Members within thirty (30) days of receipt of such Bid, whereupon the offering Members shall purchase such Membership Interests within five (5) Business Days following receipt of the acceptance of the Bid (or, in any event if later, the fifth Business Day after the receipt of all applicable regulatory and governmental approvals of the purchase). If the Member intending to Transfer its Membership Interests does not accept the Bid, such Member shall (i) so notify each Member who has submitted a Bid, and (ii) have the right for a period of one hundred and eighty (180) days thereafter (or, in any event, if later, the fifth (5th) Business Day after the receipt of all applicable regulatory and governmental approvals of the purchase) to Transfer such Membership Interests at a price which is higher than the price set forth in the Bid and upon terms no less favorable in any material respect to such Member than the terms contained in the Bid; provided, that such Transfer shall be subject to any other applicable provisions of this Section 9.1.

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(e) Tax Equity Transaction. The Members acknowledge and agree that Person(s) owning membership interests in the Investor may enter into transactions after the Effective Date, pursuant to which membership interests of the Investor may be acquired by one or more other Persons, including tax equity investors. The Class B Member shall, and will in its capacity as Managing Member cause the Company to, cooperate in any such transaction, including complying with the reasonable requests of the Persons acquiring the membership interests of the Investor.

9.2 Buyout Option.

(a) This Section 9.2 shall apply to any of the following events (each a “Buyout Event”):

(i) a Member becomes Bankrupt;

(ii) a Member dissolves and commences liquidation or winding up;

(iii) there occurs an event that makes it unlawful for the Member to continue to be a Member.

(b) In each case, the Member with respect to whom a Buyout Event has occurred is referred to herein as the “Affected Member”.

(c) If a Buyout Event occurs, then each of the other Members shall have the option to acquire the Membership Interest of the Affected Member (or to cause it to be acquired by a third party designated by the other Members) on an “as is, where is” basis without representations or warranties (other than ownership of the Membership Interests by the Affected Member, that no Encumbrance exists against the Membership Interests of the Affected Member other than those created pursuant to this Agreement and that the sale of such Membership Interests do not require any governmental approvals that have not been obtained or create any conflict with the Affected Member’s organizational documents), expressed or implied (and with the Members exercising such preferential right also being referred to herein as “Purchasing Members”) upon giving the Company and all other Members 60 days’ written notice of an election to exercise its buyout rights pursuant to this Section 9.2 (a “Buyout Exercise Notice”) during such period.

(d) The purchase price (the “Buyout Price”) for a Membership Interest being purchased pursuant to this Section 9.2 shall be the Fair Market Value of such Membership Interest as to which a Buyout Event has occurred, as determined under the Appraisal Procedure.

(e) If an option to purchase is exercised in accordance with the other provisions of this Section 9.2, the closing of such purchase shall occur on the 60th day after the delivery of the Buyout Exercise Notice (or in any event, if later, the 30th day after the determination of the Fair Market Value pursuant to Section 9.2(d), or the fifth Business Day after the receipt of all applicable regulatory and governmental approvals to the purchase) and shall comply in all material respects with the requirements set forth in Section 9.1(b)(iii). Unless otherwise agreed among the Members, the Buyout Price shall be paid in cash at such closing.

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(f) Upon the occurrence of a closing under Section 9.2(e), the following provisions shall apply to the Affected Member (at, and following, such time, a “Terminated Member”):

(i) The Terminated Member shall cease to be a Member immediately upon the occurrence of the closing.

(ii) The Terminated Member shall no longer be entitled to receive any distributions (including liquidating distributions) or allocations from the Company, and it shall not be entitled to exercise any voting or consent rights or to receive any further information (or access to information) from the Company (other than any required tax information).

(iii) The Terminated Member must pay to the Company, immediately upon the occurrence of the closing, all amounts owed to the Company by such Terminated Member.

(iv) The Terminated Member shall remain obligated for all liabilities it may have under this Agreement or otherwise with respect to the Company that accrue prior to the closing.

(v) The Membership Interest, including the Capital Account balance attributable thereto, of the Terminated Member shall be allocated among the Purchasing Members in the proportion of the total Buyout Price paid by each Purchasing Member.

ARTICLE X

DISSOLUTION, LIQUIDATION AND TERMINATION

10.1 Dissolution.

(a) The Company will dissolve and its business and affairs will be wound up on the first to occur of the following (the “Liquidating Events”):

(i) The unanimous written consent of the Members;

(ii) Any other event upon the occurrence of which dissolution is required by the Act (which the Act does not allow to be waived by agreement of the Members), unless, to the extent permitted by the Act, Members (other than the Member with respect to which such event occurs) unanimously elect in writing, within 90 days of the date such event described in this Section 10.1(a)(ii) occurs, to continue the business of the Company, in which case the Company will not dissolve; or

(iii) The Transfer by the Company of all or substantially all of its Assets.

(b) Each Member agrees that, to the fullest extent permitted by Applicable Law, it will not dissolve itself or the Company or withdraw from the Company except as set forth in Section 10.1(a).

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10.2 Liquidation and Termination.

(a) On dissolution of the Company, the Managing Member shall act as liquidator or may appoint one or more other Persons as liquidator. The liquidator shall proceed diligently to wind up the affairs of the Company and make final distributions as provided in this Agreement. The costs of liquidation will be borne as a Company expense. Until final distribution, the liquidator shall continue to operate the Company with all of the power and authority of the Managing Member. The steps to be accomplished by the liquidator are as follows:

(i) As promptly as reasonably practicable after dissolution and again after final liquidation, the liquidator shall cause a proper accounting to be made by the Certified Public Accountants of the Company’s and the Facility Company’s Assets, liabilities, and operations through the last day of the calendar month in which the dissolution occurs or the final liquidation is completed, as applicable;

(ii) The liquidator shall pay from Company funds all of the debts and liabilities of the Company and the Facility Company or otherwise make adequate provision for them (including the establishment of a cash escrow fund for contingent, conditional or unmatured liabilities in such amount and for such term as the liquidator may reasonably determine);

(iii) with respect to the remaining Assets of the Company:

(A) the liquidator shall use all commercially reasonable efforts to obtain the best possible price and may sell any or all of the Company’s, and the Facility Company’s Assets (subject to any and all restrictions to which the Company or the Facility Company is subject, including restrictions under Applicable Laws or any Permitted Encumbrances), including to the Members at such price, but in no event lower than the Fair Market Value thereof; and

(B) with respect to all of the Company’s or the Facility Company’s Assets that have not been sold, the Values of such Assets shall be determined pursuant to subparagraph (ii) of the definition of Value;

(iv) items of income, gain, loss and deduction (including any such items attributable to the disposition of Assets pursuant to Section 10.2(a)(iii)) for the Taxable Year during which the distribution of liquidation proceeds occurs shall be allocated as follows:

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(A) first, after giving effect to the special allocations in Section 4.3, items of gross income, gain and credit arising in connection with the liquidation shall first be allocated to each Member having a negative balance in its Capital Account, in the proportion that such negative balance bears to the total negative balances in the Capital Accounts of all Members, until each Member has been allocated items of gross income and gain equal to any such negative balance in its Capital Account and such deficit balance has thereby been eliminated;

(B) then, any remaining items of income or gain shall be allocated among the Members so as to cause, as quickly as possible, the aggregate positive Capital Account balances of the Class B Members and the aggregate positive Capital Account balances of the Class A Members to be in proportion to the percentages set forth in Section 10.2(a)(iv)(C); and;

(C) finally, any remaining items of income or gain shall be allocated among the Members, 90% to the Class A Members pro rata according to their respective Class A Units and 10% to the Class B Members pro rata according to their respective Class B Units;

(v) After giving effect to all allocations (including those under Section 4.2 and Sections 10.2(a)(iv)), all distributions (including those under Section 5.1) and all Capital Contributions (including those under Section 3.1 and Section 3.2) for all periods, all remaining cash and property (including any Available Cash Flow and liquidation proceeds) shall be distributed to the Members in accordance with the positive balances in their Capital Accounts; and

(vi) Any distribution to the Members in respect of their Capital Accounts pursuant to this Section 10.2 shall be made by the end of the Company taxable year in which a Liquidating Event occurs (or if later, within 90 days after the date of such Liquidating Event).

(b) The distribution of cash or property to a Member in accordance with the provisions of this Section 10.2 constitutes a complete return to the Member of its Capital Contributions and a complete distribution to the Member on account of its Membership Interest and all the Company’s property and constitutes a compromise to which all Members have consented pursuant to Section 18-502(b) of the Act.

10.3 Deficit Capital Accounts. Except as provided in this Section 10.3, no Member shall be obligated to contribute cash to restore a deficit in its Capital Account. Notwithstanding the foregoing, each Member shall have the right by written notice signed by such Member to the Company (with a copy to all other Members) (the “DRO Notice”), at any time and in its sole discretion, to elect to undertake or increase the amount of, a limited deficit restoration obligation, the amount of which shall be specified in such DRO Notice (which amount is the “DRO Limit”). Nothing contained in this Agreement shall obligate any Member to issue a DRO Notice. A DRO Notice given by a Member pursuant hereto shall be deemed to constitute a duly adopted amendment to this Agreement without any further action by any party, and the corresponding limited deficit restoration obligation for such Member shall be considered part of

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a Consistent Return for purposes this Agreement. Further, upon the earlier of (a) the point in time at which the absolute value of the deficit balance in a Member’s Capital Account equals or exceeds its DRO Limit and (b) the end of the first Taxable Year during which the absolute value of the deficit balance in a Member’s Capital Account as of the end of such Taxable Year is less than the absolute value of the deficit balance in such Member’s Capital Account as of the end of the immediately preceding Taxable Year, such Member’s DRO Limit shall be automatically decreased (but not increased) at the end of such Taxable Year and each subsequent Taxable Year to an amount equal to the excess, if any, of (1) the absolute value of the deficit balance (if any) in such Member’s Capital Account at the end of such Taxable Year (prior to taking into account such reduction) over (2) the amount that such Member is deemed to be obligated to restore pursuant to the penultimate sentences in Treasury Regulation Sections 1.704-2(g)(1) and 1.7042 (i)(5) as of the time of such reduction. In the event there is a “liquidation” of a Member’s interest in the Facility Company within the meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(g), after giving effect to all allocations (including, for the avoidance of doubt, such Member’s share of any Facility Company Minimum Gain and Member Nonrecourse Debt Minimum Gain and the allocations pursuant to Section 10.2), all distributions and all Capital Contributions for all periods, if that Member has a deficit balance in its Capital Account, calculated in accordance with this Agreement and without regard to such Members’ obligation pursuant to this Section 10.3 (except to the extent disregarding such obligation in calculating such amount is inconsistent with law, in which case such Member’s obligation pursuant to this Section 10.3 shall be taken into account in such calculation), then such Member shall be obligated to pay to the Company cash in an amount equal to such deficit balance by the end of the Taxable Year of the Company during which the liquidation of the Facility Company occurs, or if later, within ninety (90) days after the date of such liquidation; provided, however, that the restoration obligation of a Member shall not exceed such Member’s then DRO Limit.

10.4 Termination. On completion of the satisfaction of liabilities and distribution of Assets as provided in this Agreement, the Managing Member (or such other Person or Persons as the Act may require or permit) shall cause the cancellation of the Delaware Certificate and any filings made as provided in Section 2.1 and shall take such other actions as may be necessary to terminate the Company.

ARTICLE XI

INDEMNIFICATION

11.1 Indemnification of Class A Investor Group by the Class B Member. Without in any way limiting any rights the Class A Equity Investor has under the Bloom Guarantee, and subject to the terms and conditions of this Article XI, the Class B Member hereby indemnifies, defends, reimburses and holds harmless the Class A Equity Investor and its parent or subsidiary companies, partners and other Affiliates, and their respective officers, directors, employees, attorneys, contractors and agents (collectively, the “Class A Investor Group”), from and against any and all Damages asserted against, resulting to, imposed upon, or incurred by the Class A Investor Group, directly or indirectly, by reason of or resulting from any breach by the Class B Member (whether in its capacity as the Class B Member, the Managing Member, the Tax Matters Member or otherwise), the Company or the Administrator or their Affiliates of their respective representations and warranties or covenants contained in this Agreement or any other Transaction Document (collectively, “Class A Investor Claims”). To the extent that any such

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Damages relating to a Class A Investor Claim remain unpaid after such claim has been made therefor pursuant to this Article XI, any distributions otherwise payable to the Class B Member under this Agreement shall be used to satisfy the obligations of the Class B Member, the Company or their Affiliates, as applicable, hereunder in accordance with Section 5.4.

11.2 Indemnification of Class B Investor Group by the Class A Member. Without in any way limiting any rights the Class B Equity Investor has under the Exelon Guarantee, and subject to the terms and conditions of this Article XI, the Class A Member hereby indemnifies, defends, reimburses and holds harmless the Class B Equity Investor and its parent or subsidiary companies, partners and other Affiliates, and their respective officers, directors, employees, attorneys, contractors and agents (collectively, the “Class B Investor Group”), from and against any and all Damages asserted against, resulting to, imposed upon, or incurred by the Class B Investor Group, directly or indirectly, by reason of or resulting from (a) any breach by the Class A Investor Group of their respective representations and warranties or covenants contained in this Agreement, any other relevant Transaction Document (collectively, “Class B Investor Claims”). To the extent that any such Damages relating to a Class B Investor Claim remain unpaid after such claim has been made therefor pursuant to this Article XI, any distributions otherwise payable to a Class A Member under this Agreement shall be used to satisfy the obligations of such Class A Member, the Company or their Affiliates, as applicable, hereunder in accordance with Section 5.4.

11.3 Brokers. Each Member agrees to indemnify and hold harmless the other Member from and against any and all claims, obligations, actions, liabilities, losses, damages, costs or expenses (including court costs and attorneys’ fees) of any kind or character arising out of or resulting from any agreement, arrangement or understanding alleged to have been made by, or on behalf of, the Company or the Administrator or their Affiliates with any broker or finder in connection with this Agreement or the transaction contemplated hereby.

11.4 Limitation on Liability. The indemnification obligations of the parties hereto pursuant to this Article XI shall be subject to the following limitations:

(a) The amount of Damages required to be paid by any party to indemnify any other party pursuant to this Article XI as a result of any Class A Investor Claim or Class B Investor Claim shall be reduced to the extent of any amounts actually received by such other party after the Effective Date pursuant to (i) the Equity Capital Contribution Agreement, (ii) the Bloom Guarantee, (iii) the Exelon Guarantee and (iv) the terms of the insurance policies (if any) obtained and maintained by the Company, the Facility Company, the Class A Equity Investor or the Class B Equity Investor or any Affiliate thereof covering such claim. In the event an indemnified party or any of its Affiliates receives proceeds from indemnification under the Equity Capital Contribution Agreement, the Bloom Guarantee, the Exelon Guarantee or any insurance policy with respect to a Class A Investor Claim or Class B Investor Claim for which it previously received indemnification payments, such indemnified party shall promptly pay to the indemnifying party such proceeds to the extent such proceeds and the previously paid indemnification payments, in the aggregate, exceed the amount of the applicable Class A Investor Claim or Class B Investor Claim.

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(b) Damages paid pursuant to this Article XI shall, to the maximum extent permitted under Applicable Law, be treated as an adjustment to the capital contributions of the Members (or otherwise as a non-taxable reimbursement, contribution, or return of capital, as the case may be). To the extent any Damages paid pursuant to this Article XI are includible in the recipient’s gross income, as determined by agreement of the parties hereto, or if there is no agreement, by an opinion of a nationally-recognized tax counsel selected jointly by the parties hereto at a “should” level of comfort that such amount is includable as income of the recipient, solely to the extent the tax liability with respect to the inclusion of such payment of Damages in the income of the recipient is greater than the tax liability of the recipient would have been if there had been no breach giving rise to the payment of Damages, such payment will be grossed-up and paid on an after-tax basis (assuming the then-highest highest marginal federal income tax rate then applicable to corporations). In the event an indemnified party is entitled to claim an item of loss or deduction, credit or other tax benefit with respect to an item that gives rise to the receipt of an indemnity payment, such tax benefit shall be taken into account for purposes of determining the amount of the indemnification payment and, to the extent payment has been made to an indemnified party prior to the period in which such tax benefit was claimed, the indemnified party shall promptly repay the indemnifying party an amount equal to the present value of such loss or deduction, credit or other tax benefit (in each case, assuming then-highest marginal federal income tax rate then applicable to corporations).

(c) The indemnification obligations of the Members pursuant to this Agreement shall be limited to actual Damages and shall not include special, incidental, consequential, indirect, punitive, or exemplary Damages (including lost profits and damages for a lost opportunity); provided, that any incidental, consequential, indirect, punitive, or exemplary Damages recovered by a third party (including Governmental Entities) against a Person entitled to indemnity pursuant to this Article XI shall be included in the Damages recoverable under such indemnity; and provided, further, that the loss of the ITC shall not be considered as special, incidental, consequential, indirect, punitive or exemplary damages and shall be included in the Damages recoverable under this indemnity.

(d) No member of the Class A Investor Group or the Class B Investor Group may receive compensation for Damages suffered by such Person to the extent that such Damages are attributable to (a) the gross negligence or willful misconduct of such Person or (b) the breach of any representation or warranty by such Person in this Agreement or any other Investment Document to the extent such representation or warranty was false when made.

11.5 Procedure for Indemnification. After receipt by an indemnified party under Section 11.1, Section 11.2, Section 11.3 or Section 11.4 of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party under such Section, give written notice to the indemnifying party of the commencement thereof. The failure to promptly notify the indemnifying party shall not relieve it of any liability that it may have to any indemnified party with respect to such action; provided that, to the extent that any such failure to provide prompt notice is responsible for an increase in the indemnity obligations of the indemnifying party, the indemnifying party shall not be responsible for any such increase. In case any such action shall be brought against an indemnified party and it shall give written notice to the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the

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extent that it may wish, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party. If the indemnifying party elects to assume the defense of such action, the indemnified party shall have the right to employ separate counsel at its own expense and to participate in the defense thereof. If the indemnifying party elects not to assume (or fails to assume) the defense of such action, the indemnified party shall be entitled to assume the defense of such action with counsel of its own choice, at the expense of the indemnifying party. If the action is asserted against both the indemnifying party and the indemnified party and (i) there is a conflict of interests which renders it inappropriate for the same counsel to represent both the indemnifying party and the indemnified party or (ii) such action could reasonably be expected to result in the imposition of criminal liability, the indemnifying party shall be responsible for paying for separate counsel for the indemnified party; provided, however, that if there is more than one indemnified party and it is practical for all such parties to be represented by common counsel, the indemnifying party shall not be responsible for paying for more than one separate firm of attorneys to represent the indemnified parties, regardless of the number of indemnified parties. If the indemnifying party elects to assume the defense of such action, (a) no compromise or settlement thereof may be effected by the indemnifying party without the indemnified party’s written consent (which shall not be unreasonably withheld) unless the sole relief provided is monetary damages that are paid in full by the indemnifying party and (b) the indemnifying party shall have no liability with respect to any compromise or settlement thereof effected without its written consent (which shall not be unreasonably withheld) unless the indemnifying party has failed to defend such indemnified party against such action. If this Section 11.5 conflicts with the contest provisions in Section 8.7 with respect to any contest or claim relating to taxes, Section 8.7 shall govern.

11.6 Exclusivity. Subject to Section 5.4, the parties hereto agree that, in relation to any breach, default, or nonperformance of any representation, warranty, covenant, or agreement made or entered into by the Class B Member (whether in its capacity as the Class B Member, the Managing Member, the Tax Matters Member or otherwise) pursuant to this Agreement, any other Investment Document, the ASAs or any certificate, instrument, or document delivered pursuant hereto or thereto or arising out of the transactions contemplated herein or therein, the only relief and remedy available to the other parties hereto in respect of said breach, default, or nonperformance shall be recovery of Damages, but only to the extent properly claimable hereunder and as limited pursuant to this Article XI or otherwise hereunder.

11.7 No Right of Contribution. After the Effective Date, the Company shall have no liability to indemnify the Class B Equity Investor on account of the breach of any representation or warranty or the nonfulfillment of any covenant or agreement of the Company; and the Class B Equity Investor shall not have any right of contribution against the Company.

11.8 Entire Agreement. Article XI of this Agreement constitutes the entire agreement and understanding of the parties hereto with respect to indemnification hereunder.

ARTICLE XII

GENERAL PROVISIONS

12.1 Offset. Whenever the Company (or another Person on behalf of the Company) is to pay or distribute any sum to any Member, any amounts then owed by such Member or its Affiliate to the Company (as determined in writing to the satisfaction of the other Members) shall be deducted from such sum before payment.

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12.2 Notices. Any notice or other communication to be given hereunder shall be in writing and shall be delivered by hand (including, without limitation, by express courier against written receipt) or sent by registered prepaid first class mail, facsimile copy or by email transmission to the persons or addresses specified below (or such other Person or address as a Member may previously have notified all other parties hereto in writing for that purpose). A notice or other communication shall be deemed to have been served when delivered by hand at that address or received by email or facsimile copy (provided the sender can and does provide evidence of successful transmission), or, if sent by registered prepaid first class mail as aforesaid, on the date delivered. Any notice or other communication received on a day that is not a Business Day or later than 5:00 p.m. on a Business Day shall be deemed to be received on the next Business Day. The names and addresses for the service of notices referred to in this Section 12.2 are:

If to the Class B Member, to:

Clean Technologies 2015, LLC

c/o Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, CA 94089-1137

Attention: [***]

Telephone: [***]

Facsimile: [***]

Email: [***]

If to the Class A Member, to:

2015 ESA Project Company, LLC

c/o Constellation NewEnergy, Inc.

100 Constellation Way

Suite 1000

Baltimore, MD 21202

Attention: [***]

with a copy to:

Constellation NewEnergy, Inc.

4 Houston Center

1331 Lamar Street

Houston, TX 77010

Attn: [***]

with a copy to:

Exelon Business Services Company, LLC

10 South Dearborn St., 49th Floor

Chicago, IL 60603

Attn: [***]

[***] Confidential Treatment Requested

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Any Party may change the address or number to which notices to such Party are to be delivered by providing notice of such change to each other Party in the manner set forth above. Any notice to be provided to the Company shall be provided to the Managing Member at the address set forth in this Section.

12.3 Counterparts. This Agreement may be executed in one or more counterparts, each bearing the signatures of one or more Members. Each such counterpart shall be considered an original and all of such counterparts shall constitute a single agreement binding all the parties as if all had signed a single document. Signatures of the parties hereto transmitted by facsimile or portable document format (PDF) shall be deemed to be their original signatures for all purposes.

12.4 Governing Law and Severability. This Agreement shall be deemed made and prepared and shall be construed and interpreted in accordance with the internal laws of the State of Delaware, without regard to the principles of conflicts of laws thereof which may require the application of the law of another jurisdiction. If any provision of this Agreement shall be contrary to any other Applicable Law, at the present time or in the future, such provision shall be deemed null and void, but this shall not affect the legality of the remaining provisions of this Agreement. This Agreement shall be deemed to be modified and amended so as to be in compliance with Applicable Law and this Agreement shall then be construed in such a way as will best serve the intention of the parties hereto at the time of the execution of this Agreement.

12.5 Entire Agreement. This Agreement, including any Schedules and Exhibits, together with the other Investment Documents, constitutes the entire agreement among the Members regarding the terms and operations of the Company, except as amended in writing pursuant to the requirements of this Agreement, and supersedes all prior and contemporaneous agreements, statements, understandings and representations of the parties hereto.

12.6 Effect of Waiver or Consent. A waiver or consent, express or implied, to or of any breach or default by any Person in the performance by that Person of its obligations under this Agreement, or any Investment Document is not a consent or waiver to or of any other breach or default in the performance by that Person of the same or any other obligations of that Person under this Agreement, or any Investment Document. Failure on the part of a Person to complain of any act of any Person or to declare any Person in default with respect to its obligations under this Agreement, or any Investment Document, irrespective of how long that failure continues, does not constitute a waiver by that Person of its rights with respect to that default until the applicable statute of limitations period has run.

12.7 Amendment or Modification. Except as otherwise provided herein, this Agreement may be amended or modified from time to time only by a written instrument executed by all Members. Notwithstanding anything contained herein to the contrary, for so long as any indebtedness or Obligations remain outstanding under the Financing Documents, each Member hereby acknowledges that the consent of certain parties to the Financing Documents, such as the Facility Lenders, may be required in connection with the Facility Company taking certain actions. Any such consent shall be obtained in writing from the Facility Lenders and any other required parties to the Financing Documents as and when required pursuant to the terms of the Financing Documents.

58

12.8 Binding Effect. Subject to the restrictions on Transfers set forth in this Agreement, this Agreement is binding on and inures to the benefit of the Members and their respective legal representatives, permitted successors and permitted assigns.

12.9 Further Assurances. In connection with this Agreement and the transactions contemplated hereby, each Member shall execute and deliver any additional documents and instruments and perform any additional acts that may be necessary or appropriate to effectuate and perform the provisions of this Agreement and those transactions contemplated here, including all filing, recording, publishing and other acts appropriate to comply with all requirements for the operation of a limited liability company under the laws of all jurisdictions where the Company shall conduct business.

12.10 Jurisdiction; Service of Process. Each of the parties hereto hereby irrevocably consents to the non-exclusive jurisdiction of the courts of the State of New York and of any federal court located in the Southern District of New York in connection with any suit, action or other proceeding arising out of or relating to this Agreement or the transactions contemplated hereby; agrees to waive any objection to venue in the State and County of New York; and agrees that, to the extent permitted by law, service of process in connection with any such proceeding may be effected by mailing in the same manner provided in Section 11.3 hereof.

12.11 Limitation on Liability. NO CLAIMS SHALL BE MADE BY ANY PARTY HERETO OR ANY OF ITS

AFFILIATES, DIRECTORS, EMPLOYEES, ATTORNEYS OR AGENTS AGAINST ANY OTHER PARTY HERETO OR ANY OF ITS AFFILIATES, DIRECTORS, EMPLOYEES, ATTORNEYS OR AGENTS FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (WHETHER OR NOT THE CLAIM THEREFORE IS BASED ON CONTRACT, TORT, DUTY IMPOSED BY LAW OR OTHERWISE), IN CONNECTION WITH, ARISING OUT OF OR IN ANY WAY RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR THE OTHER INVESTMENT DOCUMENTS OR ANY ACT OR OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH; AND EACH PARTY HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE UPON ANY SUCH CLAIM FOR ANY SUCH SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR, PROVIDED, HOWEVER, THAT AT ANY TIME (a) IF AN ITC IS RECAPTURED FROM THE FACILITY COMPANY BECAUSE THE CLASS B MEMBER OR ITS AFFILIATE, OR ANY FACILITY ENTITY BREACHES ANY REPRESENTATION, WARRANTY OR COVENANT, THE VALUE OF THE ITC THAT IS RECAPTURED SHALL NOT CONSTITUTE CONSEQUENTIAL DAMAGES AND (b) IF AN ITC IS RECAPTURED FROM THE FACILITY COMPANY BECAUSE THE CLASS A MEMBER OR ITS AFFILIATE BREACHES ANY REPRESENTATION, WARRANTY OR COVENANT, THE VALUE OF THE ITC THAT IS RECAPTURED SHALL NOT CONSTITUTE CONSEQUENTIAL DAMAGES.

59

THE OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT ARE OBLIGATIONS OF SUCH PARTIES ONLY AND NO RECOURSE SHALL BE AVAILABLE UNDER THIS AGREEMENT AGAINST ANY OFFICER, DIRECTOR, MANAGER, MEMBER, PARTNER, OR AFFILIATE OF ANY SUCH PARTY.

[SIGNATURE PAGE FOLLOWS]

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.

2015 ESA INVESTCO, LLC
By:	/s/ Gary Fromer
Name:	Gary Fromer
Title:	Senior Vice President
CLEAN TECHNOLOGIES 2015, LLC
By:
Name:
Title:

[Signature Page to Amended & Restated Operating Agreement of 2015 ESA Holden, LLC]

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.

2015 ESA INVESTCO, LLC
By:
Name:
Title:
CLEAN TECHNOLOGIES 2015, LLC
By:	/s/ William E. Brockenborough
Name:	William E. Brockenborough
Title:	Vice President

EXHIBIT A

EXECUTION DATE CONTRIBUTIONS MADE

	Class A Equity Investor	Amount	Capital Account Balance	Units	Percentage of Class A Interest Owned
Effective Date	2015 ESA Investco, LLC	[***]	[***]	100 Class A Units		100	%
	Class B Equity Investor	Amount	Capital Account Balance	Units	Percentage of Class A Interest Owned
Effective Date	Clean Technologies 2015, LLC	[***]	[***]	100 Class B Units		100	%

[***] Confidential Treatment Requested

Exhibit A – Page 1

EXHIBIT B

FORM OF MEMBERSHIP CERTIFICATE

THE MEMBERSHIP INTEREST REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAW OF ANY STATE. SUCH MEMBERSHIP INTEREST MAY NOT BE SOLD OR TRANSFERRED UNLESS SUBSEQUENTLY REGISTERED OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE. THIS CERTIFICATE EVIDENCES AN INTEREST IN 2015 ESA HOLDCO, LLC AND SHALL BE A SECURITY GOVERNED BY ARTICLE 8 OF THE UNIFORM COMMERCIAL CODE AS IN EFFECT FROM TIME TO TIME IN THE STATES OF DELAWARE AND NEW YORK AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OTHER APPLICABLE JURISDICTION.

CERTIFICATE FOR MEMBERSHIP INTEREST

IN

2015 ESA HOLDCO, LLC

Certificate No. [A] [B] — [ ]

The undersigned, as the Managing Member of 2015 ESA HOLDCO, LLC, a Delaware limited liability company (the “Company”), hereby certifies that [        , a        ], is the holder of a Class [    ] Interest in the Company to the extent and as described in Exhibit A to the Amended and Restated Operating Agreement of the Company, effective as of June 25, 2015, as amended and restated from time to time (the “Agreement”) (a copy of which is on file at the principal office of the Company). All capitalized terms not otherwise defined herein have the meanings ascribed to them in the Agreement.

This Certificate is not negotiable or transferable except by operation of law, or as otherwise provided in the Agreement, and any such transfer will be valid only upon delivery of this Certificate, together with an assignment in a form sufficient to convey an interest in a limited liability company pursuant to the Delaware Limited Liability Company Act, as it may be amended and in effect from time to time, or any successor statute thereto, duly executed, to the Transferee Member of the Company.

Dated: [                    ]

CLEAN TECHNOLOGIES 2015, LLC

By:

Name:

Title:

Exhibit B – Page 1

EX-10

[***] Certain confidential information contained in this document, market by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Exhibit 10.31

Execution Version

AMENDED AND RESTATED PURCHASE, USE AND MAINTENANCE AGREEMENT

between

BLOOM ENERGY CORPORATION

as Seller

and

2015 ESA PROJECT COMPANY, LLC

as Buyer

dated as of June 25, 2015

TABLE OF CONTENTS

		Page
ARTICLE I. DEFINITIONS			1
Section 1.1.	Definitions		1
Section 1.2.	Other Definitional Provisions		15
ARTICLE II. PURCHASE AND SALE			15
Section 2.1.	Purchase Orders; Change Orders in Advance of Shipment		15
Section 2.2.	Payment of Purchase Price		16
Section 2.3.	Purchase and Sale of Facilities		19
Section 2.4.	PPA Termination and Re-Purchase of Facilities		19
ARTICLE III. DELIVERY AND INSTALLATION OF BLOOM SYSTEMS AND BALANCE OF FACILITIES			20
Section 3.1.	Access to Site		20
Section 3.2.	Delivery of Bloom Systems		20
Section 3.3.	Delivery of Balance of Facility; Installation of Bloom Systems		21
Section 3.4.	Commissioning; Commencement of Operations		23
Section 3.5.	Insurance		24
Section 3.6.	Disposal; Right of First Refusal		24
Section 3.7.	Buyer’s Lenders		24
Section 3.8.	Access; Cooperation		25
Section 3.9.	Performance Standards		25
Section 3.10.	Appointment of Independent Engineer		25
ARTICLE IV. FACILITY SERVICES			25
Section 4.1.	In General		25
Section 4.2.	Operation and Maintenance Services		26
Section 4.3.	Service Fees		27
Section 4.4.	Remote Monitoring		28
Section 4.5.	Permits		28
Section 4.6.	Service Providers		28
Section 4.7.	Rights to Deliverables		28
ARTICLE V. WARRANTIES			29
Section 5.1.	Facility Services Warranty		29
Section 5.2.	Annual Capacity Warranty		29
Section 5.3.	Efficiency Warranty		29
Section 5.4.	Quarterly Capacity Warranty		29
Section 5.5.	Portfolio Warranty		30
Section 5.6.	Exclusions		31

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Section 5.7.	Portfolio Warranty Claims	31
Section 5.8.	Indemnification Regarding Performance Under PPAs	33
Section 5.9.	Disclaimers	34
Section 5.10.	Title	34
Section 5.11.	Covenants Relating to Refund Value	34
Section 5.12.	Covenants Relating to the Policy	34
ARTICLE VI. RECORDS		35
Section 6.1.	Record-Keeping Documentation	35
Section 6.2.	Reports; Other Information	36
ARTICLE VII. DATA ACCESS		36
Section 7.1.	Access to Data and Meters	36
ARTICLE VIII. REPRESENTATIONS AND WARRANTIES OF SELLER		36
Section 8.1.	Representations and Warranties as to Seller	36
Section 8.2.	Representations and Warranties as to Bloom Systems	37
ARTICLE IX. REPRESENTATIONS AND WARRANTIES OF BUYER		38
Section 9.1.	Organization	38
Section 9.2.	Authority	38
Section 9.3.	Consents and Approvals; No Violation	38
Section 9.4.	Legal Proceedings	39
ARTICLE X. CONFIDENTIALITY		39
Section 10.1.	Confidential Information	39
Section 10.2.	Restricted Access	39
Section 10.3.	Permitted Disclosures	40
Section 10.4.	Publicity	41
ARTICLE XI. LICENSE AND OWNERSHIP; SOFTWARE		41
Section 11.1.	IP License To Use	41
Section 11.2.	Grant of Third Party Software License	42
Section 11.3.	No Software Warranty	43
Section 11.4.	Covenant	43
Section 11.5.	Representations and Warranties	43
ARTICLE XII. EVENTS OF DEFAULT AND TERMINATION		43
Section 12.1.	Seller Default	43
Section 12.2.	Buyer Default	44
Section 12.3.	Buyer’s Remedies Upon Occurrence of a Seller Default	45

ii

Section 12.4.	Seller’s Remedies Upon Occurrence of a Buyer Default	45
Section 12.5.	Preservation of Rights	45
Section 12.6.	Force Majeure	45
Section 12.7.	Termination of PPAs	46
ARTICLE XIII. INDEMNIFICATION		46
Section 13.1.	IP Indemnity	46
Section 13.2.	Indemnification of Seller by Buyer	47
Section 13.3.	Indemnification of Buyer by Seller	48
Section 13.4.	Indemnity Claims Procedure	49
Section 13.5.	Limitation of Liability	49
Section 13.6.	Liquidated Damages; Estoppel	50
Section 13.7.	Survival	50
ARTICLE XIV. MISCELLANEOUS PROVISIONS		50
Section 14.1.	Amendment and Modification	50
Section 14.2.	Waiver of Compliance; Consents	50
Section 14.3.	Notices	51
Section 14.4.	Assignment; Subcontractors	51
Section 14.5.	Dispute Resolution; Governing Law	52
Section 14.6.	Governing Law, Jurisdiction, Venue	52
Section 14.7.	Counterparts	53
Section 14.8.	Interpretation	53
Section 14.9.	Entire Agreement	53
Section 14.10.	Construction of Agreement	53
Section 14.11.	Severability	53
Section 14.12.	Further Assurances	53
Section 14.13.	Independent Contractors	54
Section 14.14.	Limitation on Export	54
Section 14.15.	Time of Essence	54
Section 14.16.	No Rights in Third Parties	54

iii

ANNEXES
Annex A	Minimum Power Product Example Calculation
Annex B	Insurance
Annex C	Capacity Warranty Claim Example Calculation and Amounts Payable
Annex D	List of PPAs
EXHIBITS
Exhibit A	Form of Purchase Order
Exhibit B	Form of Bill of Sale
Exhibit C	Facilities
Exhibit D	Service Fees
Exhibit E	Form of Independent Engineer’s Deposit Milestone Certificate
Exhibit F	Form of Seller’s Certificate of Installation
Exhibit G	Form of Independent Engineer’s Commencement of Operations Certificate
Exhibit H	Form of Independent Engineer’s Change Order Certificate
Exhibit I	Form of Seller’s Deposit Milestone Certificate

iv

AMENDED AND RESTATED PURCHASE, USE AND MAINTENANCE AGREEMENT

This AMENDED AND RESTATED PURCHASE, USE AND MAINTENANCE AGREEMENT (this “Agreement”), dated as of June 25, 2015 (the “Agreement Date”), is entered into by and between BLOOM ENERGY CORPORATION, a Delaware corporation (“Seller”), and 2015 ESA PROJECT COMPANY, LLC, a Delaware limited liability company (“Buyer”). Seller and Buyer are referred to in this Agreement individually, as a “Party” and, collectively, as the “Parties”.

RECITALS

WHEREAS, Seller is in the business of designing, constructing and installing on-site solid oxide fuel cell power generating systems;

WHEREAS, Buyer is a company formed at the direction of Seller for the purpose of purchasing and owning Bloom Systems for the generation of electricity and sale of electricity generated by the Bloom Systems;

WHEREAS, Buyer desires to purchase, and Seller desires to sell, Bloom Systems which will have an aggregate System Capacity of up to 45 MW, and which Bloom Systems will be installed in certain Facilities in connection with PPAs entered into by Buyer when and as the conditions to such installation are met as provided in this Agreement;

WHEREAS, Seller has agreed to provide certain operation and maintenance services to Buyer subject to the conditions of this Agreement; and

WHEREAS, Seller and Buyer previously entered into that certain Purchase, Use and Maintenance Agreement dated as of May 15, 2015 (“Original PUMA”), and now wish to amend and restate the Original PUMA in its entirety.

NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements hereinafter set forth, and intending to be legally bound hereby, the Parties agree as follows:

AGREEMENT

ARTICLE I.

DEFINITIONS

Section 1.1. Definitions. As used in this Agreement, capitalized terms not otherwise defined shall have the meanings set forth below:

“Actual kWh” means the actual energy output in kWh produced by a Facility and measured by the Facility Meter, and, where appropriate in the context of this Agreement, aggregated together.

“Administrative Services Agreement” means the Administrative Services Agreement dated as of June 25, 2015, among Seller and Buyer.

“Affiliate” of any Person means a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person specified, provided that neither Buyer’s Lenders nor the Investor shall be considered an Affiliate of either Party.

“Agreement” is defined in the preamble.

“Agreement Date” is defined in the preamble.

“Annual Capacity Warranty” is defined in Section 5.2.

“Annual Capacity Warranty Period” means, with respect to a Facility, each calendar year following the Commencement of Operations of such Facility (or, in the case of the calendar year in Commencement of Operations of such Facility has occurred, the portion of such calendar year commencing on the date such Facility achieved Commencement of Operations).

“Appraisal Procedure” means within fifteen (15) days of a Party invoking the procedure described in this definition the Buyer and the Seller shall engage a Qualified Appraiser, mutually acceptable to them, to determine the Fair Market Value of a Bloom System or Facility, as applicable.

“Approved LDC” means, with respect to each Site, the local natural gas distribution company serving the PPA Customer at such Site. For the avoidance of doubt, natural gas supplied by any Approved LDC shall be deemed to satisfy Seller’s requirements regarding the quality and composition of natural gas supplied to the Bloom Systems sold to Buyer hereunder.

“Available Annual Capacity Warranty Amount” means the amount determined by subtracting the sum of (x) the aggregate amount of Annual Capacity Warranty payments previously paid and (y) the aggregate amount of Refund Adder payments previously paid from (z) the Max Annual Capacity Warranty Amount.

“Base Case Model” means that certain base case financial model for the projected Portfolio, as finalized by the Investor and Bloom Member as of the date hereof and as the same may be amended by the mutual written agreement of the Investor and the Bloom Member.

“Bill of Sale” means a bill of sale in substantially the form attached hereto as Exhibit B.

“Bloom Member” means Clean Technologies 2015, LLC.

“Bloom Systems” means all on-site solid oxide fuel cell power generating systems capable of being powered by natural gas designed, constructed and installed by Seller, including, where applicable, any UPMs installed in connection therewith, which will be installed in the Facilities, and “Bloom System” means each such system.

2

“BOF” means, for each Site, the Electrical Interconnection Facilities, the natural gas supply facilities, the water supply facilities, the data communications facilities, the foundations for the Bloom Systems and any other ancillary facilities and equipment installed in connection with the Facility at each Site and all other things ancillary to the Facility and required on or in the vicinity of the Site which are necessary to achieve Commencement of Operations at each such Site.

“BOF Work” is defined in Section 3.3(a).

“Business Day” means a day other than a Saturday, Sunday or other day on which banks in New York, New York, or San Francisco, California, are authorized or required to close.

“Buyer” is defined in the preamble.

“Buyer Default” is defined in Section 12.2.

“Buyer Indemnitee” is defined in Section 13.3(a).

“Buyer’s Lenders” means the lender parties from time to time party to the Credit Agreement and any trustee or agent acting on behalf of such lender parties.

“Calendar Quarter” means each period of three months ending on March 31, June 30, September 30 and December 31.

“Capacity Warranty” means the Quarterly Capacity Warranty or the Annual Capacity Warranty, as applicable.

“Capacity Warranty Period” means the Quarterly Capacity Warranty Period or the Annual Capacity Warranty Period, as applicable.

“Change Order” is defined in Section 2.1(c).

“Claiming Party” is defined in Section 12.6.

“Code” means the Internal Revenue Code of 1986, as amended.

“Commencement of Operations” means, with respect to any Facility, the completion and the performance of all of the following activities:

(a) each Bloom System comprising such Facility has been Delivered;

(b) such Facility has been Placed in Service;

(c) such Facility (i) has been attached to the load at the applicable Site and (ii) is providing the Minimum Power Product;

(d) Seller has performed and successfully completed all necessary acts under the applicable Interconnection Agreement (including performance testing) and has obtained permission from the applicable Person granting Buyer permission to interconnect such Facility with the distribution or transmission facilities of the Transmitting Utility;

3

(e) Seller shall have delivered the Seller’s Certificate of Installation to Buyer with a copy to the Independent Engineer;

(f) Seller shall have provided to the Independent Engineer, on behalf of Buyer, all Documentation reasonably required by the Independent Engineer for the Facility to achieve commercial operation; and

(g) Seller shall have caused the Independent Engineer to have delivered (i) to Buyer the Independent Engineer’s Commencement of Operations Certificate and (ii) to Lenders the “Commencement of Operations Certificate” required to be delivered pursuant to the Credit Agreement.

“Confidential Information” is defined in Section 10.1.

“Credit Agreement” means that certain Credit Agreement dated as of June 25, 2015, by and among the Buyer and each Buyer’s Lender party thereto.

“DDP (Incoterms 2010)” means Delivered Duty Paid (DDP) as such term is used in the International Rules for the Interpretation of Trade Terms (identified as “INCOTERMS^® 2010”) as prepared by the International Chamber of Commerce.

“Delay LDs” is defined in Section 3.2(c).

“Delivery” means for each Bloom System, the physical delivery of such Bloom System to its Site.

“Delivery Date” means for each Bloom System, the date of Delivery.

“Deposit Milestone Requirements” means, for a Facility, that:

(a) [***];

(b) [***];

(c) [***]

(d) [***].

[***] Confidential Treatment Requested

4

“Documentation” means all documentation, including testing, engineering, specification and operation and maintenance manuals, Training Materials, drawings, reports, standards, schematics, directions, samples and patterns in computer and readable form, which is necessary to meet the requirements of Section 3.4.

“Efficiency” means the quotient of E/F, where E = the electricity produced by the applicable Fleet, Facility or Bloom System, measured in BTUs (British Thermal Units) at a conversion rate of 3,412 BTUs per kWh, and F = the fuel consumed by such Fleet, Facility or Bloom System, as applicable, measured in BTUs on a lower heating value basis.

“Efficiency Warranty” is defined in Section 5.3.

“Efficiency Warranty Period” means each calendar month following the Commencement of Operations of a Facility (or, in the case of the calendar month in which Commencement of Operations occurred, the portion of such calendar month commencing on the date such Facility achieved Commencement of Operations), but excluding with respect to each relevant Bloom System any period when such Bloom System was (i) was subject to a Force Majeure Event, (ii) was not delivering Energy because of a failure to perform by the applicable PPA Customer, except to the extent caused or contributed to by Seller or its employees, agents, subcontractors or representatives, or (iii) was required by a Legal Requirement (which for this purpose shall include any utility requirement) to be disconnected from the distribution or transmission facilities of the Transmitting Utility or otherwise required not to deliver Energy as the result of a Legal Requirement or action by or a directive from the applicable Transmitting Utility with respect to such Facility (e.g., due to a grid event), except to the extent caused or contributed to by Seller or its employees, agents, subcontractors and representatives.

“Electrical Interconnection Facilities” means the equipment and facilities required to safely and reliably interconnect a Facility to the transmission system of the Transmitting Utility, including the collection system between each Bloom System, transformers and all switching, metering, communications, control and safety equipment, including the facilities described in any applicable Interconnection Agreement.

“Energy” means three-phase, 60-cycle alternating current electric energy constituting the Actual kWh.

“Facility” means the Bloom Systems and the BOF at a Site.

“Facility Meter” means the revenue quality electricity generation meter to be located at the metering point (the proposed location of which is to be identified in the applicable Interconnection Agreement), which shall register all Energy produced by a Facility and delivered to the Interconnection Point.

5

“Fair Market Value” means, with respect to any Facility, Bloom System or part thereof, the price at which such asset would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell, and both having reasonable knowledge of the relevant facts, and specifically with respect to the Facility or any portion thereof, as determined consistently with Section 4.05 of Revenue Procedure 2007-65.

“Facility Purchase Conditions” means for a relevant Facility that the Facility has not been Placed in Service (including specifically because the events described in clauses (2), (3) and (4) of the definition of Placed in Service have not occurred), but that (a) the events described in clause (1) of the definition of Placed in Service have occurred, (b) all of Seller’s obligations under Section 3.3(a)(ii) of this Agreement have been performed, (c) a single line diagram of the Facility installation has been finalized and delivered to Buyer, and (d) Commencement of Operations is reasonably expected to occur within thirty (30) days following Purchase.

“FERC” means the Federal Energy Regulatory Commission and any successor.

“Financing Documents” means the Credit Agreement, depositary agreement, security agreement, pledge agreement, interparty agreement, and any promissory note or interest rate hedge agreement, and any other material agreement entered into in connection therewith, including without limitation any “Financing Document” as defined in the Credit Agreement.

“Fleet” means on an aggregate basis, all Bloom Systems owned by Buyer that (i) are purchased pursuant to this Agreement, (ii) have been incorporated into Facilities which have been Placed in Service, and (iii) are installed pursuant to a given PPA.

“Force Majeure Event” means any event or circumstance that (a) prevents a Party from performing its obligations under this Agreement; (b) was not reasonably foreseeable by such Party; (c) was not within the reasonable control of, or the result of the negligence of such Party or a breach of this Agreement by such Party; and (d) such Party is unable to reasonably mitigate, avoid or cause to be avoided with the exercise of due diligence. “Force Majeure Events” shall include failure or interruption of performance due to: an act of God, civil or military authority, war, civil disturbances, terrorist activities, fire, explosions, the external power delivery system (a/k/a the grid) being out of the required specifications or totally failing (a/k/a brownout or blackout), or electric grid curtailment. Force Majeure Event does not include the lack of economic resources of a Party, Seller’s failure to design and construct the Facilities so as to meet the respective warranties hereunder, or the supply of natural gas from any source other than an Approved LDC. If an event or circumstance gives rise to a Force Majeure Event as defined herein under this Agreement, but such event or circumstance does not also constitute a ‘Force Majeure Event’ as defined under the applicable PPA (depending on which Facilities are affected), then for the purposes of any rights and obligations of the parties under this Agreement that relate to corresponding rights or obligations under such PPA such event or circumstance will not constitute a Force Majeure Event under this Agreement.

6

“Funding Date Deadline” means December 31, 2016.

“GAAP” means United States generally accepted accounting principles consistently applied.

“Governmental Approvals” means (a) any authorizations, consents, approvals, licenses, rulings, permits, tariffs, rates, certifications, variances, orders, judgments, decrees by or with a relevant Governmental Authority and (b) any required notice to, any declaration of, or with, or any registration or filing by, or with, any relevant Governmental Authority.

“Governmental Authority” means any foreign, federal, state, local or other governmental, regulatory or administrative agency, court, commission, department, board, or other governmental subdivision, legislature, rulemaking board, court, tribunal, arbitrating body or other governmental authority.

“Holdco” means 2015 ESA HoldCo, LLC, a Delaware limited liability company.

“Holdco LLC Agreement” means that certain Amended and Restated Operating Agreement of Holdco, to be entered into by the Investor and the Bloom Member prior to the first payment made hereunder.

“Independent Engineer’s Change Order Certificate” means a certificate, in the form attached hereto as Exhibit H, issued by the Independent Engineer to Buyer and Buyer’s Lenders pursuant to Section 2.1(c) hereof.

“Independent Engineer’s Commencement of Operations Certificate” means a certificate, in the form attached hereto as Exhibit G, issued by the Independent Engineer to Buyer to satisfy the requirements of paragraph (g)(i) of the definition of Commencement of Operations.

“Independent Engineer’s Deposit Milestone Certificate” means a certificate, in the form attached hereto as Exhibit E, issued by the Independent Engineer to Buyer to satisfy the requirements of paragraph (d)(i) of the definition of Deposit Milestone Requirements.

“Indemnifiable Loss” means any claim, demand, suit, loss, liability, damage (including any losses arising as a result of the loss or recapture of any ITC), obligation, payment, cost or expense (including the cost and expense of any action, suit, proceeding, assessment, judgment, settlement or compromise relating thereto and reasonable attorneys’ fees and reasonable disbursements in connection therewith).

“Indemnified Party” is defined in Section 13.4.

“Indemnifying Party” is defined in Section 13.4.

“Independent Engineer” means the Person appointed pursuant to Section 3.10.

“Intellectual Property” shall mean any or all of the following and all rights therein, whether arising under the laws of the United States or any other jurisdiction (i) all patents

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and patent applications (and all reissues, divisions, re-examinations, renewals, extensions, provisionals, continuations and continuations-in-part thereof), patent disclosures and inventions (whether patentable or not); (ii) all trade secrets, know-how and confidential and proprietary information; (iii) all copyrights and copyrightable works (including computer programs) and registrations and applications therefor and any renewals, modifications and extensions thereof; (iv) all moral and economic rights of authors and inventors, however denominated, throughout the world; (v) unregistered and registered design rights and any registrations and applications for registration thereof; (vi) trademarks, service marks, trade names, service names, brand names, trade dress, logos, slogans, corporate names, trade styles, domain names and other source or business identifiers, whether registered or not, together with all applications therefor and all extensions and renewals thereof and all goodwill associated therewith; (vii) semiconductor chip “mask” works, and registrations and applications for registration thereof, (viii) database rights; (ix) all other forms of intellectual property, including waivable or assignable rights of publicity or moral rights; and (x) any similar, corresponding or equivalent rights to any of the foregoing anywhere in the world.

“Interconnection Agreement” means an agreement between the PPA Customer (or the Buyer (as required)) and the applicable Transmitting Utility regarding interconnection of a Facility to the transmission or distribution system of such Transmitting Utility.

“Interconnection Point” means, with respect to each Facility, the point at which title and risk of loss with respect to the electricity produced by such Facility passes to the applicable PPA Customer.

“Investor” means 2015 ESA Investco, LLC.

“IRS” means the Internal Revenue Service.

“ITC” means the investment tax credit under Section 48 of the Code.

“kW” means kilowatt.

“kWh” means kilowatt-hour.

“Legal Requirement” means any law, statute, act, decree, ordinance, rule, directive (to the extent having the force of law), tariff, order, treaty, code or regulation or any interpretation of any of the foregoing, as enacted, issued or promulgated by any Governmental Authority, NERC, any Person that NERC has delegated its authority to under the Federal Power Act or any Person that operates an interstate electric transmission system, including all amendments, modifications, extensions, replacements or re-enactments thereof, in each case applicable to or binding upon such Person or any of its properties or to which such Person or any of its property is subject.

“Liens” means any lien, security interest, mortgage, hypothecation, encumbrance or other restriction on title or property interest.

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“Max Annual Capacity Warranty Amount” means the product of (x) ([***]) ([***]) multiplied by (y) the System Capacity of all Bloom Systems in the Portfolio in kW on the Funding Date Deadline.

“Maximum Liability” means, with respect to Seller, the greater of (i) the aggregate Residual Value of the Portfolio as of such date, and (ii) the Performance LD Cap plus any Delay LDs paid to Buyer plus any liability for any PPA Warranties that Seller has incurred pursuant to Section 5.8 plus any Indemnifiable Losses arising from the loss or recapture of any ITC, and with respect to Buyer, One Million Dollars ($1,000,000); provided that a reduction in the Maximum Liability of Seller shall never result in a requirement for Buyer or any Buyer Indemnitee to return any money to Seller.

“Minimum Efficiency Level” means an Efficiency quotient of 45% measured over the Efficiency Warranty Period.

“Minimum kWh” means the product of (x) the number of hours in the applicable Capacity Warranty Period minus the number of hours for each Bloom System at the applicable Site or in the Portfolio, as applicable, as of the last day of the applicable Capacity Warranty Period following Commencement of Operations with respect to the applicable Facility when each such Bloom System (i) was subject to a Force Majeure Event, (ii) was not delivering Energy, or was delivering Energy at a reduced level, because of a failure to perform by the applicable PPA Customer, except to the extent caused or contributed to by Seller or its employees, agents, subcontractors or representatives, or (iii) was required by a Legal Requirement (which for this purpose shall include any utility requirement) to be disconnected from the distribution or transmission facilities of the Transmitting Utility or otherwise required not to deliver Energy as the result of a Legal Requirement or action by or a directive from the applicable Transmitting Utility with respect to the applicable Facility (e.g., due to a grid event), except to the extent caused or contributed to by Seller or its employees, agents, subcontractors and representatives, and (y) the Minimum Power Product for the applicable Capacity Warranty Period.

“Minimum Power Product” means (1) when this term is used for the Quarterly Capacity Warranty, the aggregate System Capacity of the Bloom Systems in the Portfolio in kW for the applicable Quarterly Capacity Warranty Period multiplied by 80%, (2) when this term is used for the Annual Capacity Warranty, the aggregate System Capacity of the Bloom Systems in the Portfolio in kW for the applicable Annual Capacity Warranty Period multiplied 94.85% and (3) when this term is used for the determination of Commencement of Operations, the aggregate System Capacity of the Bloom Systems in the applicable Facility in kW for a 24 hour period multiplied by 100%. An example of a calculation of the Minimum Power Product is set forth in Annex A.

“MW” means megawatt.

“NERC” means the North American Electric Reliability Corporation or any successor.

“Party” and “Parties” have the meanings set forth in the preamble.

[***] Confidential Treatment Requested

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“Performance LD Cap” has the meaning provided in Section 5.7(c).

“Performance Standards” has the meaning provided in Section 3.9.

“Permits” means all Governmental Approvals that are necessary under applicable Legal Requirements or this Agreement to have been obtained at such time in light of the stage of development of the Portfolio to site, construct, test, operate, maintain, repair, lease, own or use each Facility as contemplated in this Agreement to sell electricity from the Portfolio or for a Party to enter into this Agreement or to consummate any transaction contemplated hereby, in each case in accordance with all applicable Legal Requirements.

“Permitted Liens” means any (a) Liens that are released or otherwise terminated at or prior to the Delivery Date of the encumbered assets; (b) obligations or duties to any Governmental Authority arising in the ordinary course of business (including under licenses and Permits held by Buyer and under all applicable laws, rules, regulations and orders of any Governmental Authority); (c) obligations or duties under easements, leases or other property rights; (d) Liens in favor of Buyer’s Lenders; and (e) any other Liens agreed to in writing by Seller and Buyer.

“Person” means any individual, partnership, limited liability company, joint venture, corporation, trust, unincorporated organization, or governmental entity or any department or agency thereof.

“Placed in Service” means, with respect to any Facility, the completion and performance of all of the following activities: (1) obtaining the necessary licenses and Permits for the operation of such Facility and the sale of power generated by the Facility in accordance with clause (4) of this definition, (2) completion of critical tests necessary for the proper operation of such Facility in accordance with clause (4) of this definition, (3) synchronization of such Facility onto the electric distribution and transmission system of the applicable Transmitting Utility, and (4) the commencement of regular, continuous, daily operation of such Facility.

“Policy” means the credit protection insurance policy issued by Indian Harbor Insurance Company in favor of Buyer, dated as of June 25, 2015.

“Portfolio” means, on an aggregate basis, all Bloom Systems owned by Buyer that are purchased pursuant to this Agreement and that have been incorporated into Facilities which have been Placed in Service.

“Portfolio Warranty” is defined in Section 5.5(a).

“PPA” means each power purchase, energy server use, or similar agreement entered into between Buyer and a PPA Customer listed on Annex D hereto, as the same may be updated from time to time by the mutual agreement of the Parties.

“PPA Customer” means each non-Buyer counter-party to a PPA.

“PPA Warranties” has the meaning provided in Section 5.8.

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“PPA Warranty Reimbursement Payment” has the meaning provided in Section 5.8(a).

“Prudent Electrical Practices” means those practices, methods, equipment, specifications and standards of safety and performance, as the same may change from time to time, as are commonly used by a significant portion of the grid-tied fuel cell electrical generation industry operating in the United States and/or the NERC as good, safe and prudent engineering practices in connection with the design, construction, operation, maintenance, repair and use of electrical and other equipment, facilities and improvements of such electrical generating facility, including any applicable practices, methods, acts, guidelines, standards and criteria of FERC and all applicable Legal Requirements.

“Purchase” is defined in Section 2.3.

“Purchase Date” is defined in Section 2.3.

“Purchase Order” means a purchase order for a Facility or Facilities to be purchased by Buyer in substantially the form of Exhibit A.

“Purchase Price” means a purchase price for each Facility, based on the aggregate System Capacity of the Bloom Systems comprising such Facility, calculated at [***], plus any (i) with respect to any Bloom System that includes UPM(s), [***] for each UPM and (ii) Taxes for the account of Buyer under Section 2.2(c) in respect of such Facility; provided, however, that any such Taxes shall not be included in the calculation of the Purchase Price for invoices issued pursuant to Section 2.2(a)(i) or 2.2 (a)(iii).

“Qualified Appraiser” means a nationally recognized third-party appraiser reasonably acceptable to Buyer and Seller which shall (i) be qualified to appraise power systems similar to the Bloom Systems, and/or experienced in such businesses in the general geographic region of the relevant Facility, and (ii) not be associated with either Buyer or Seller or any Affiliate thereof.

“Quarterly Capacity Warranty Payment” has the meaning provided in Section 5.4(a) .

“Quarterly Capacity Warranty” has the meaning provided in Section 5.4(a).

“Quarterly Capacity Warranty Period” means, with respect to a Facility, each Calendar Quarter following the Commencement of Operations of such Facility (or, in the case of the Calendar Quarter in which Commencement of Operations of such Facility, the portion of such Calendar Quarter commencing on the date such Facility achieved Commencement of Operations).

“Quarterly Report” is defined in Section 6.1(a)(iii).

“Refund Adder” means, with respect to any Bloom System in respect of which Refund Value is being paid, an amount determined by multiplying the System Capacity of such Bloom System by a fraction, the numerator of which is the then Available Annual Capacity Warranty Amount and the denominator of which is the aggregate number of kWs in the Portfolio at the time such Refund Value is to be paid.

[***] Confidential Treatment Requested

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“Refund Value” means, with respect to any Bloom System (including any Underperforming System) or Facility, the Residual Value of such Bloom System or Facility, as calculated as of the date that Seller becomes obligated to refund such amount to Buyer.

“Representatives” of a Party means such Party’s authorized representatives, including its professional and financial advisors.

“Residual Value” means, for any Bloom System or Facility, the greater of (a) the Fair Market Value of such Facility or Bloom System (and a pro rata portion of the BOF allocable to such Bloom System) (as determined under the Appraisal Procedure if the Buyer and Seller cannot agree as to that Fair Market Value within ten (10) days), and (b) 100% of the Purchase Price for such Bloom System or Facility until the first anniversary of Commencement of Operations of the applicable Facility, declining by 7.14% (i.e. 1/14th) on each anniversary of such date thereafter (for example, on the fifth anniversary of Commencement of Operations, the Residual Value will be 71.43% of the Purchase Price).

“SCADA” means the supervisory control and data acquisition systems.

“Seller” is defined in the preamble.

“Seller Default” is defined in Section 12.1.

“Seller Indemnitee” is defined in Section 13.2.

“Seller’s Certificate of Installation” means a certificate, in the form attached hereto as Exhibit F, issued by Seller to Buyer with a copy to the Independent Engineer pursuant to paragraph (e) of the definition of Commencement of Operations.

“Seller’s Deposit Milestone Certificate” means a certificate, in the form attached hereto as Exhibit I, issued by Seller to Buyer with a copy to the Independent Engineer pursuant to paragraph (c) of the definition of Deposit Milestone Requirements.

“Service Fees” is defined in Section 4.3(a).

“Service Provider” means an operation and maintenance contractor appointed by the Seller and approved by the Buyer pursuant to Section 4.6.

“Service Technicians” is defined in Section 4.2(d).

“Shipment” means for each Bloom System, shipment of such Bloom System from Bloom’s manufacturing facility to the Site.

“Shipment Date” means for each Bloom System, the date of Shipment.

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“Site” means the parcel of land leased or licensed from a PPA Customer to Buyer under a Site Lease and all easements appurtenant, easements in gross, license agreements and other rights running in favor of Buyer which provide access to the applicable Facility.

“Site Lease” means each agreement between Buyer and a PPA Customer regarding the lease, license, or similar contractual arrangement providing Buyer with the right of access to a Site for the purposes of performing Buyer’s obligations pursuant to the applicable PPA.

“Site Preparation Services” means preparing each Site for installation of a Facility, obtaining the required Permits to construct, operate and maintain the Facility, and providing for natural gas interconnection facilities, the Electrical Interconnection Facilities and any other ancillary facilities and equipment between the Bloom Systems and the applicable Transmitting Utility and otherwise performing the tasks required to prepare each Site for the Facility at the Site to attain Commencement of Operations.

“Software” shall mean all computer software that is necessary for Buyer to own and operate the Facilities in compliance with the terms of this Agreement and the PPAs.

“Software License” is defined in Section 11.2(a).

“Standard Payment Conditions” means, with respect to a Facility, (a) all equity contributions to be made by the Bloom Member and/or the Investor with respect to such Facility in connection with the applicable invoice have been made, and (b) all loans to be made by the Buyer’s Lenders with respect to such Facility in connection with the applicable invoice have been advanced.

“System Capacity” means, with respect to a Bloom System, the “System Capacity” set forth on the applicable specification sheet provided by the manufacturer of such Bloom System.

“Tax” (and, with correlative meaning, “Taxes” and “Taxable”) means:

(i) any taxes, customs, duties, charges, fees, levies, penalties or other assessments imposed by any federal, state, local or foreign taxing authority, including, but not limited to, income, gross receipts, windfall profit, severance, property, production, sales, use, license, excise, franchise, net worth, employment, occupation, payroll, withholding, social security, alternative or add-on minimum, ad valorem, transfer, stamp, or environmental tax, or any other tax, custom, duty, fee, levy or other like assessment or charge of any kind whatsoever, together with any interest, penalty, addition to tax, or additional amount attributable thereto; and

(ii) any liability for the payment of amounts with respect to payment of a type described in clause (i), including as a result of being a member of an affiliated, consolidated, combined or unitary group, as a result of succeeding to such liability as a result of merger, conversion or asset transfer or as a result of any obligation under any tax sharing arrangement or tax indemnity agreement.

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“Term” means the period which (a) shall commence on the first day of the Warranty Period for the first Facility to achieve Commencement of Operation and (b) shall, unless terminated earlier under ARTICLE XII of this Agreement or unless extended by mutual agreement of the Parties, terminate on the date that is the last day of the Warranty Period for the last Facility to achieve Commencement of Operations.

“Third Party Claim” means any claim, action, or proceeding made or brought by any Person who is not (a) a Party to this Agreement, or (b) an Affiliate of a Party to this Agreement (and that is not a claim based on breach by the Indemnified Party of its obligations under this Agreement).

“Training Materials” is defined in Section 4.7.

“Transaction Documents” means this Agreement and the Administrative Services Agreement.

“Transmitting Utility” means, with respect to a Facility, the local electric utility company in whose territory the Facility is located.

“Underperforming Systems” means any Bloom System that fails to deliver, in any Calendar Quarter during which the Portfolio fails to satisfy Quarterly Capacity Warranty, a number of kWh greater than or equal to the product of (x) such Bloom System’s System Capacity multiplied by 80%, and (y) the number of hours in such quarter minus the number of hours as of the last day of such quarter when such Bloom System (i) was subject to a Force Majeure Event, (ii) was not delivering Energy because of a failure to perform by the applicable PPA Customer, except to the extent caused or contributed to by Seller or its employees, agents, subcontractors or representatives, or (iii) was required by a Legal Requirement (which for this purpose shall include any utility requirement) to be disconnected from the distribution or transmission facilities of the Transmitting Utility or otherwise required not to deliver Energy as the result of a Legal Requirement or action by or a directive from the applicable Transmitting Utility with respect to the applicable Facility (e.g., due to a grid event), except to the extent caused or contributed to by Seller or its employees, agents, subcontractors and representatives.

“UPM” means an uninterruptible power module designed, constructed and installed by Seller, which will be installed in connection with certain Facilities.

“Warranty Period” means, for each Bloom System, the period beginning on the date the applicable Facility achieves the requirements of subsections (a), (c) and (d) of the definition of “Commencement of Operations” and ending on the later of (i) fifteenth (15th) anniversary of the date of Commencement of Operations of such Facility and (ii) if the applicable PPA has been renewed or extended, the date on which such PPA expires or terminates.

“Warranty Specifications” means the Annual Capacity Warranty, the Quarterly Capacity Warranty and the Efficiency Warranty.

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Section 1.2. Other Definitional Provisions.

(a) As used in this Agreement and in any certificate or other documents made or delivered pursuant hereto or thereto, financial and accounting terms not defined in this Agreement or in any such certificate or other document, and financial and accounting terms partly defined in this Agreement or in any such certificate or other document to the extent not defined, will have the respective meanings given to them under GAAP. To the extent that the definitions of financial and accounting terms in this Agreement or in any such certificate or other document are inconsistent with the meanings of such terms under GAAP, the definitions contained in this Agreement or in any such certificate or other document will control.

(b) The words “hereof”, “herein”, “hereunder”, and words of similar import when used in this Agreement will refer to this Agreement as a whole and not to any particular provision of this Agreement. Section references contained in this Agreement are references to Sections in this Agreement unless otherwise specified. The term “including” will mean “including without limitation”.

(c) The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms.

(d) Any agreement, instrument or statute defined or referred to herein or in any instrument or certificate delivered in connection herewith means (unless otherwise indicated herein) such agreement, instrument or statute as from time to time amended, amended and restated, modified or supplemented and includes (in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein.

(e) Any references to a Person are also to its permitted successors and assigns.

ARTICLE II.

PURCHASE AND SALE

Section 2.1. Purchase Orders; Change Orders in Advance of Shipment.

(a) In accordance with the terms hereof, Buyer may, from time to time, submit Purchase Orders to Seller for the purchase of Facilities (not to exceed, in the aggregate, 45 MW in System Capacity) in accordance with the terms hereof. So long as no Buyer Default has occurred and is continuing hereunder, Seller shall promptly accept each such Purchase Order by countersigning and returning it to Buyer; provided that the failure of Seller to countersign or return to Buyer a Purchase Order shall not invalidate such Purchase Order and Seller shall be obligated to deliver the Bloom Systems comprising such Facility under such Purchase Order as contemplated by this Agreement.

(b) Each Purchase Order shall specify, among other details required by the terms thereof, (i) the aggregate System Capacity of Bloom Systems ordered, (ii) the Sites to which such Facility(ies) shall be delivered, (iii) the aggregate System Capacity to be delivered to each Site, (iv) the requested Delivery Date for the Bloom Systems, and (v) the number of UPMs to be installed with such Bloom Systems, if any.

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(c) Seller may, by written notice to Buyer delivered following Buyer’s payment of the portion of the Purchase Price set forth in Section 2.3(a)(i) with respect to one or more Facilities subject to any Purchase Order(s), propose a change (“Change Order”) to any such Purchase Order(s) at any time prior to the Shipment Date of the Bloom Systems subject to such Purchase Order(s) in order to update, with respect to one or more Facilities, the applicable PPA Customer, the address at which such Bloom Systems shall be installed, or otherwise modify the Site details; provided, however, that no such Change Order may alter (i) the aggregate System Capacity of the Facilities to be installed pursuant to such Purchase Order(s) following the application of such Change Order or (ii) the Deposit Milestone Date applicable to all Facilities to be install pursuant to such Purchase Order (s) following the application of such Change Order. A Change Order meeting the requirements of this Section 2.1(c) shall become binding on both Parties on the latter of (i) five (5) Business Days after Buyer’s receipt thereof, and (ii) the date on which Buyer has received an Independent Engineer Change Order Certificate with respect to such Change Order.

Section 2.2. Payment of Purchase Price. For each Facility for which Buyer has submitted a Purchase Order:

(a) Seller shall invoice Buyer for payment of the Purchase Price for such Facility as follows:

(i) on the date that Seller has satisfied the Deposit Milestone Requirements for such Facility, [***] ([***]) of the Purchase Price for such Facility;

(ii) on the [***] for the last Bloom System(s) in such Facility, [***] percent ([***]) of the Purchase Price for such Facility plus [***] percent ([***]) of the Taxes to be paid by Buyer pursuant to Section 2.2(c) for such Facility; and

(iii) upon Commencement of Operations for such Facility, [***] percent ([***]) of the Purchase Price for such Facility.

(b) Each invoice shall include the following information for each applicable Facility:

(i) the Site on which such Facility is installed or will be installed;

(ii) the serial number and System Capacity of each Bloom System comprising such Facility, and purchase order number;

(iii) the Purchase Price, including details of (x) all amounts previously paid towards or credited against the Purchase Price, and (y) all amounts remaining due and payable on the Purchase Price;

[***] Confidential Treatment Requested

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(iv) the Shipment Date or expected Shipment Date, as applicable;

(v) the Purchase Date or expected Purchase Date, as applicable; and

(vi) such other information as Buyer may reasonably request.

(c) Buyer shall pay all state and local sales, use or other transfer Taxes required to be paid by Buyer and attributable to the transfer of the Facility to Buyer, except that Seller shall be responsible for and pay any Taxes arising as a result of any components of such Facility or any Facility being acquired from a source outside of the United States.

(d) Payments of the portion of the Purchase Price set forth in Section 2.2(a)(i) for a Facility shall be paid within forty-five (45) days of the later of (i) the date of receipt by Buyer of such invoice, and (ii) the date on which (A) Buyer has received the Independent Engineer’s Deposit Milestone Certificate, (B) Buyer has received the Seller certificate referred to in clause (c) of the definition of “Deposit Milestone Requirements”, and (C) the Standard Payment Conditions are and continue to be satisfied for such Facility.

(e) Payments of the portion of the Purchase Price set forth in Section 2.2(a)(ii) for a Facility shall be paid within forty-five (45) days of the later of (i) the date of receipt by Buyer of such invoice, and (ii) the date on which (A) Buyer has received (1) a bill of lading, or (2) similar evidence of receipt of such Bloom System by the applicable carrier in a form reasonably acceptable to Buyer, in either case demonstrating that the Shipment Date has occurred for all Bloom Systems in such Facility, (B) the Facility Purchase Conditions are and continue to be satisfied for such Facility, and (C) the Standard Payment Conditions are and continue to be satisfied for such Facility.

(f) Final payments of the Purchase Price set forth in Section 2.2(a)(iii) for a Facility shall be paid within forty-five(45) days of the later of (i) the date of receipt by Buyer of such invoice, and (ii) the date on which (A) Buyer has received the Independent Engineer’s Commencement of Operations Certificate, (B) Buyer has received the Seller’s Certificate of Installation, and (C) the Standard Payment Conditions are and continue to be satisfied for such Facility.

(g) If Buyer defaults in any payment when due for any Facility (other than with respect to amounts being disputed in good faith), Seller may, on not less than five (5) Business Days prior notice to Buyer, at its option and without prejudice to its other remedies, (i) suspend performance of its obligations hereunder for such Facility, or defer delivery of such Facility to Buyer and (ii) require that (until all such outstanding payment defaults have been cured) the payment of the portion of the Purchase Price for future Facilities required under Section 2.2(a)(ii) and Section 2.2(a)(iii) above be made immediately prior to the Shipment of the applicable Bloom Systems, but Seller shall not be able to otherwise suspend performance of its obligations hereunder for other Facilities for which no such default exists.

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(h) Seller shall promptly pay all subcontractors working on the Facilities delivered and installed under this Agreement (including, for clarification, subcontractors working off-Site), and shall, at the time of each payment made to any such subcontractor, obtain a partial or final lien waiver, as applicable, in a form approved by Buyer, and promptly provide Buyer with a copy of each such lien waiver. Seller shall discharge any Liens by such subcontractors within thirty (30) days of receiving notice thereof. Seller shall release all Liens in favor of Seller on each Facility upon final payment of the Purchase Price for such Facility. Upon the failure of Seller to discharge a Lien required to be discharged under this Section 2.2, or else promptly to provide a bond in an amount and from a surety acceptable to Buyer to protect against such Lien, in each case, within thirty (30) days after Seller is aware of the existence thereof, Buyer may, but shall not be obligated to, pay, discharge or obtain a bond or security for such Lien and, upon such payment, discharge or posting of security therefor, shall be entitled immediately to recover from Seller the amount thereof, together with all reasonable and necessary expenses actually incurred by Buyer in connection with such payment or discharge, or to set off all such amounts against any amounts owed by Buyer to Seller hereunder. After receipt of the portions of the Purchase Price for each Facility as provided in Section 2.2(a)(i) and Section 2.2(a) (ii), Seller will issue a statement of the balance of the Purchase Price for such Facility, being the amount which, once paid to Seller, will cause Seller to release its lien on the Facility. Seller hereby agrees that third parties, such as, without limitation, Buyer’s Lenders, may rely on each such statement.

(i) Notwithstanding the foregoing in this Section 2.2 or any other provision of this Agreement to the contrary, if Buyer (a) admits in writing its inability to pay its debts generally as they become due; (b) files a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other applicable law or statute of the United States of America or any State, district or territory thereof; (c) makes an assignment for the benefit of creditors; (d) consents to the appointment of a receiver of the whole or any substantial part of its assets; (e) has a petition in bankruptcy filed against it, and such petition is not dismissed within ninety (90) days after the filing thereof; or if (f) a court of competent jurisdiction enters an order, judgment, or decree appointing a receiver of the whole or any substantial part of Buyer’s assets, and such order, judgment or decree is not vacated or set aside or stayed within ninety (90) days from the date of entry thereof; or (g) under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the whole or any substantial part of Buyer’s assets and such custody or control is not terminated or stayed within ninety (90) days from the date of assumption of such custody or control, then Seller shall have no obligation to deliver any Facility hereunder, or if Shipment for the Bloom Systems comprising a Facility has already occurred, Seller shall have the right to require immediate payment of any amount due under Section 2.2(a)(ii) and the right to require that the final payment of the Purchase Price for such Facility be made promptly (but no earlier than Commencement of Operations of such Facility).

(i) With respect to any payment due from one party to the other pursuant to this Agreement, unless being contested in good faith, interest shall accrue daily at the lesser of a monthly rate of [***] percent ([***]) or the highest rate permissible by law on the unpaid balance.

[***] Confidential Treatment Requested

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Section 2.3. Purchase and Sale of Facilities. Upon the “Purchase Date” for a Facility, which date shall be the date on which Delivery of all Bloom Systems comprising such Facility occurs and the Facility Purchase Conditions for the Facility are and remain true and correct, (i) Seller shall have sold, assigned, conveyed, transferred and delivered to Buyer, and Buyer shall have purchased, assumed and acquired from Seller, all of Seller’s right, title and interest in and to such Facility, (ii) the sale of such Facility shall occur, and (iii) Seller shall provide Buyer with (a) a Bill of Sale evidencing the same, and (b) lien waivers from each subcontractor performing BOF Work at the applicable Site, stating that such subcontractor has been paid all amounts owed to it as of the date of the lien waiver (the foregoing being “Purchase”).

Section 2.4. PPA Termination and Re-Purchase of Facilities.

(a) If a PPA is terminated by a PPA Customer with respect to one or more Facilities prior to the date such Facilities have achieved Commencement of Operations, then (i) Seller shall repurchase the Facilities from the Buyer on an AS IS basis by refunding to Buyer all payments of the Purchase Price paid as of such date, (ii) title to such Facilities, if held by Buyer, shall pass back to Seller upon payment of such refund amount, and (iii) the applicable Bloom Systems shall no longer constitute a portion of the Portfolio. If a Facility is repurchased by Seller pursuant to this Section 2.4(a) and any portion of such Facility is located at the Site, Seller shall at its sole cost and expense remove the applicable Bloom Systems and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable PPA or Site Lease) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections, in the manner required by all Legal Requirements and the applicable PPA and/or Site Lease.

(b) If, pursuant to any provision of a PPA granting the Buyer the unilateral right to terminate such PPA upon the occurrence or satisfaction of enumerated events or conditions, a PPA is terminated by the Buyer with respect to one or more Facilities prior to the date such facilities have achieved Commencement of Operations, then (i) Seller shall repurchase the Facilities from the Buyer on an AS IS basis by refunding to Buyer all payments of the Purchase Price paid as of such date, (ii) title to such Facilities, if held by Buyer, shall pass back to Seller upon payment of such refund amount, and (iii) the applicable Bloom Systems shall no longer constitute a portion of the Portfolio. If a Facility is repurchased by Seller pursuant to this Section 2.4(b) and any portion of such Facility is located at the Site or installation work for such Facility has been initiated at such Site, Seller shall at its sole cost and expense remove the applicable Bloom Systems and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable PPA or Site Lease) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections, in the manner required by all Legal Requirements and the applicable PPA and/or Site Lease.

(c) Subject to Section 12.7(b), in the event that (i) a PPA Customer terminates a PPA with respect to a Facility prior to its expiration, (ii) the applicable PPA Customer pays Buyer the termination value due under the applicable PPA, and (iii) Buyer has paid all amounts owed by it to Buyer’s Lenders under the Financing Documents in respect of the applicable PPA termination and Buyer’s Lenders have released the applicable collateral, then Buyer shall reimburse Seller for any costs or expenses incurred in connection with the removal of such Facility.

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ARTICLE III.

DELIVERY AND INSTALLATION OF BLOOM SYSTEMS

AND BALANCE OF FACILITIES

Section 3.1. Access to Site. Seller shall be responsible for ascertainment of the suitability of the Sites, the environment around the Sites, the Sites’ soil condition and other ground conditions for construction of the Facilities. As between Seller and Buyer, Seller shall be solely responsible for all Site Preparation Services at Seller’s cost. Seller, as administrator for Buyer pursuant to the Administrative Services Agreement, shall provide access to the Sites to permit Seller to deliver and install each Bloom System and the BOF to the Sites and to connect the applicable Facility to the distribution and transmission facilities of the Transmitting Utility, as applicable. If a PPA Customer requires a change in the location of a Site from that specified in a Purchase Order, (a) Buyer shall submit a written notice to Seller setting forth the details of such location change, (b) the Seller shall administer and perform the Site Preparation Services as required for that changed location to the extent required and in accordance with the relevant PPA and (c) to the extent that such PPA Customer pays to Buyer an amount under the applicable PPA in connection with such required change in the installation or installation location of a Site, Buyer shall pay the same to Seller promptly upon receipt from such PPA Customer, except that Buyer shall retain the portion of such amount equaling any applicable Relocation Revenue Loss (as defined in the applicable PPA).

Section 3.2. Delivery of Bloom Systems.

(a) Delivery of each Bloom System shall occur no more than ninety (90) days after the requested Delivery Date specified in the applicable Purchase Order.

(b) Delivery of each Bloom System shall be DDP (Incoterms 2010) to its Site, in accordance with the California Uniform Commercial Code then in effect. Title to each Bloom System shall pass to Buyer upon Buyer’s Purchase of such Bloom System, and such title shall be good and marketable and free of all Liens, except for Permitted Liens. From and after Buyer’s Purchase of each Bloom System all risk of loss or damage to such Bloom System shall be borne by Buyer.

(c) [***].

[***] Confidential Treatment Requested

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(d) To the extent that the Shipment Date for any Facility has not occurred within ninety (90) days of the payment of the portion of the Purchase Price set forth in Section 2.2(a)(i) for such Facility, then Buyer shall have the ongoing right for the period from the end of such ninety (90) day period until the Shipment Date for such Facility to cancel its purchase of such Facility, in which case Seller shall, within five (5) Business Days, refund to Buyer all payments made for such Facility and the applicable Bloom Systems shall no longer constitute a portion of the Portfolio.

(e) To the extent any Facility has not achieved Commencement of Operations within the earlier of (i) one hundred eighty (180) days of the payment of the portion of Purchase Price set forth in Section 2.2(a)(ii) for such Facility and (ii) the Funding Date Deadline, then Buyer shall have the ongoing right for the period from the end of that one hundred eighty (180) day period until the earlier of the date that such Facility has achieved Commencement of Operations and ninety (90) days after the end of that six-month period, to elect that Seller repurchase and remove such Facility from the applicable Site, in which case (A) Seller shall repurchase the Facilities from the Buyer on an AS IS basis by refunding to Buyer all payments of the Purchase Price paid as of such date, (B) title to such Facilities shall pass back to Seller upon payment of such refund amount, and (C) the applicable Bloom Systems shall no longer constitute a portion of the Portfolio. If a Facility is repurchased by Seller pursuant to this Section 3.2(e), Seller shall at its sole cost and expense remove the applicable Bloom Systems and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable Site Lease) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections, in the manner required by all Legal Requirements and the applicable PPA and/or Site Lease.

Section 3.3. Delivery of Balance of Facility; Installation of Bloom Systems.

(a) Seller shall be responsible for engineering, procuring, constructing, installing and commissioning the BOF, and Seller shall cause each Facility to achieve Commencement of Operations without any compensation or reimbursement by Buyer, other than the Purchase Price under this Agreement, in accordance with the following (collectively, the “BOF Work”):

(i) Seller shall perform and complete all BOF Work in accordance and consistent with the Performance Standards;

(ii) Seller shall cause to be performed any and all studies, reports and applications (in the name of Buyer, if Seller is an Affiliate of Buyer) that are necessary for interconnection to the distribution and transmission facilities of the Transmitting Utility;

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(iii) Seller shall perform the BOF Work and act at all times as an independent contractor. Seller shall at all times maintain such supervision, direction and control over its employees, agents, subcontractors and representatives as is consistent with and necessary to preserve its independent contractor status. Seller is permitted to enter into contracts or otherwise hire one or more subcontractors to perform the Seller’s work on its behalf. Each subcontractor must be a reputable, qualified firm with an established record of successful performance in its trade, and shall obtain and maintain such insurance coverages having such terms as set forth in Annex B. Seller shall not be relieved from its obligation to provide the BOF Work if a subcontractor agrees to provide any or all of such BOF Work. No subcontractor is intended to be or will be deemed a third-party beneficiary of this Agreement. Nothing contained herein shall create any contractual relationship between any subcontractor and Buyer or obligate Buyer to pay or cause the payment of any amounts to any subcontractor, including any payment due to any third party. Seller shall not permit any subcontractor to assert any Lien against any Facility or Bloom System, or attach any Lien other than a Permitted Lien. None of Seller’s employees, subcontractors or any such subcontractor’s employees will be or will be considered to be employees of Buyer. Seller shall be fully responsible to Buyer for the acts and omissions of each such employee or subcontractor. Seller will be fully responsible for the payment of all wages, salaries, benefits and other compensation to its employees and for payment of any Taxes due because of the BOF Work;

(iv) Seller shall, and shall cause each of its subcontractors to, install the Bloom Systems and the BOF at each Site using items that are new, and undamaged at the time of such use or installation;

(v) Seller shall install, test, and cause the Commencement of Operations with respect to each Facility as provided in Section 3.4;

(vi) Seller shall pay all amounts owed to its subcontractors and vendors in connection with the performance of the BOF Work on a timely basis and shall hold Buyer harmless against any claims asserted by such subcontractors and vendors;

(vii) Seller shall obtain and maintain, or cause to be obtained and maintained (where required, in the name of the Buyer or each PPA Customer, as the case may be), all Permits necessary to design, install, commission, construct, occupy, and operate each Facility at each Site; and

(viii) Seller shall cause BOF Work to be completed in a good and workmanlike manner and in accordance with the Performance Standards, free and clear of all Liens other than Permitted Liens. The BOF Work shall not be considered complete until Seller shall have procured the issuance of the Independent Engineer’s Commencement of Operations Certificate and the “Commencement of Operations Certificate” required under the Credit Agreement.

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(b) Title and risk of loss to each component of such BOF Work for the Site which is not performed and provided on assets owned by a relevant PPA Customer or relevant Transmitting Utility shall pass to Buyer upon the later of the Delivery Date of the first Bloom System at the Site and the date such component is installed as part of the Facility at the Site. For the avoidance of doubt, the passage of title and risk of loss with respect to each Facility shall have passed to Buyer prior to such Facility being placed in Service. From and after the Commencement of Operations of the Facility of which particular BOF Work is a part, all risk of loss or damage to such BOF Work which is owned by Buyer shall be borne by Buyer.

Section 3.4. Commissioning; Commencement of Operations.

(a) Upon the occurrence of the Delivery for a Bloom System, Seller shall promptly perform the following, at Seller’s sole cost:

(i) Seller shall provide installation, inspection, commissioning and start-up for each Bloom System and the BOF at the applicable Site in accordance with the installation manuals provided for such Bloom System and the applicable Site Lease, and in conformance with Prudent Electrical Practices. Without limitation of the foregoing, each Facility will be connected by the Seller to the natural gas source, water source and SCADA at the applicable Site and to the applicable Facility’s Electrical Interconnection Facilities;

(ii) Prior to Commencement of Operations of each Facility, Seller shall, upon reasonable notice to the Independent Engineer and the Buyer, perform an acceptance test as is required and approved by the Independent Engineer (but not less stringent than the testing applied to its fuel cell power generating systems for any other major customer of Seller) of each Bloom System incorporated into such Facility and the applicable BOF in the presence of the Independent Engineer (if so required by the Independent Engineer) and the Buyer (if Buyer elects to attend), and such Bloom Systems and applicable BOF shall have passed such test as witnessed by the Independent Engineer (if so required by the Independent Engineer);

(iii) Seller shall cause Commencement of Operations for such Facility to occur. Seller shall promptly certify in writing to Buyer when each Facility achieves Commencement of Operations;

(iv) Seller will provide to Buyer, prior to the Commencement of Operations, a single line diagram of the Facility installation, electronic system manuals, copies of all relevant design documents, and printed system manuals, in each case relating to such Facility (in paper copy and electronic format). Seller shall deliver to Buyer any other documentation necessary to establish placement in service for purposes of section 48 of the Code;

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(v) Until Commencement of Operations of the Facility, Seller shall be responsible for providing physical security of such Facility; and

(vi) If requested by Buyer, Seller shall provide operator training and associated training materials to personnel of Buyer sufficient to instruct Buyer on operation of such Facility in conformance with Prudent Electrical Practices.

(b) Seller’s services under this Section 3.4 shall be fully comprehensive of all services, labor, and equipment necessary to complete installation of a fully commissioned and operating Facility in accordance with this Agreement, the applicable PPA, the applicable Interconnection Agreement, and the applicable Site Lease.

(c) Seller shall be responsible, at its sole cost and expense, for maintaining and complying with all Permits required to perform its services under this Agreement and Buyer agrees to cooperate with and assist Seller in obtaining such Permits.

Section 3.5. Insurance. Seller shall maintain, on Buyer’s behalf, the insurance described in Annex B with respect to each Facility until the end of the Warranty Period with respect to such Facility.

Section 3.6. Disposal; Right of First Refusal.

(a) In the event that Buyer decides to scrap, abandon or otherwise dispose of any Bloom System, Buyer shall notify Seller and Seller shall have the right but not the obligation to obtain title to the Bloom System and remove the Bloom System at Seller’s cost; provided, however, that Seller will not be responsible for remediation of the Site in which the Bloom System was located.

(b) Except as set forth in Section 2.4, in the event that Buyer desires to sell or otherwise transfer title to any Bloom System to a transferee other than a PPA Customer pursuant to a PPA or to Buyer’s Lenders or their designee (or any assignee of (or purchaser in foreclosure from) Buyer’s Lenders) in connection with Buyer’s Lenders’ exercise of their security interest in such Bloom System, Buyer shall notify Seller and Seller shall have the right of first refusal to purchase or acquire the Bloom System on the same terms and conditions of such sale. In the event that Seller exercises such right of first refusal, Seller shall, promptly following payment of the purchase price of such Bloom System, remove the Bloom System at Seller’s cost, including the remediation of the Site in which the Bloom System was located in accordance with the terms of the applicable PPA and/or Site Lease.

Section 3.7. Buyer’s Lenders. Seller shall furnish Buyer’s Lenders such certifications regarding its actions under this ARTICLE III as Buyer’s Lenders shall reasonably request and shall otherwise cooperate with Buyer’s Lenders.

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Section 3.8. Access; Cooperation. Seller shall provide to Buyer such other information that is in the possession of Seller or its Affiliates or is reasonably available to Seller regarding the permitting, engineering, construction, or operations of Seller, its subcontractors or the Facilities, and other data concerning Seller, its subcontractors or the Facilities that Buyer may, from time to time, reasonably request in writing, subject to Seller’s obligations of confidentiality to third parties with respect to such information.

Section 3.9. Performance Standards. For the purpose of this Agreement, Seller shall perform under this Agreement in accordance and consistent with each of the following (unless the context requires otherwise): (A) plans and specifications subject to Permits under applicable law and applicable to each Facility; (B) the manufacturer’s recommendations with respect to all equipment and all maintenance and operating manuals or service agreements, whenever furnished or entered into, including any subsequent amendments or replacements thereof, issued by the manufacturer, provided they are consistent with generally accepted practices in the fuel cell industry; (C) the requirements of all applicable insurance policies; (D) preserving all rights to any incentive payments, warranties, indemnities or other rights or remedies, and enforcing or assisting with the enforcement of the applicable warranties, making or assisting in making all claims with respect to all insurance policies; (E) all Legal Requirements and Permits/Governmental Approvals; (F) any applicable provisions of the Site Leases, including any landlord rules and regulations; (G) Prudent Electrical Practices; and (H) the relevant provisions of each Interconnection Agreement, and each PPA (collectively, the “Performance Standards”); provided, however, that meeting the Performance Standards shall not relieve Seller of its other obligations under this Agreement.

Section 3.10. Appointment of Independent Engineer. For the purposes of this ARTICLE III, Seller and the Buyer will appoint the Independent Engineer effective as from the Agreement Date. The Independent Engineer may be replaced upon the mutual agreement of Seller and Buyer at any time. The Independent Engineer shall act as independent engineer, reviewer, and certifier as contemplated in this Agreement. The Independent Engineer’s duties will include a duty of care to the Buyer’s Lenders. The Independent Engineer will, among other things, witness the commissioning and testing of each Bloom System and the BOF Work pursuant to this ARTICLE III (the “Independent Engineer”). All fees and costs payable in respect of the Independent Engineer (including those incurred in making such appointment) shall be borne by Seller.

ARTICLE IV.

FACILITY SERVICES

Section 4.1. In General. During the Warranty Period, Seller shall service each Facility so that the Portfolio meets the Warranty Specifications and so that the BOF will not cause the Portfolio to fail to perform in accordance with the Warranty Specifications, as more fully set forth in ARTICLE V (such services, collectively, the “Facility Services”). The Facilities covered under this Agreement are set forth in Exhibit C hereto. As each Facility installed pursuant to this Agreement achieves Commencement of Operations Seller shall update Exhibit C to include such Facility; provided, that the Parties rights and obligations under this Agreement shall be deemed to apply to each such Facility irrespective of Seller’s failure to update such Exhibit C.

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Section 4.2. Operation and Maintenance Services. Seller is hereby granted the right and authority (and, to the extent necessary to carry out its functions hereunder, a limited power of attorney) and agrees, for the benefit of Buyer, to operate safely and reliably each Facility and to maintain during the Warranty Period in accordance with the terms of this Agreement each such Facility in good condition and repair in accordance with the Warranty Specifications, Performance Standards and Prudent Electrical Practices. During the Warranty Period, the specific responsibilities of Seller under this Agreement shall include the following:

(a) Facility Operations. Seller shall ensure that all Facility components are operated and maintained safely and in a manner designed to meet the Warranty Specifications and Performance Standards and as otherwise required under this Agreement.

(b) Facility Maintenance. Seller shall perform, or cause to be performed, all scheduled and unscheduled maintenance required on the Facilities in order to meet the Warranty Specifications and Performance Standards. In that regard, Seller’s responsibilities hereunder shall include, without limitation, promptly correcting any Bloom System or BOF malfunctions, either by (i) recalibrating or resetting the malfunctioning Bloom System or BOF, or (ii) subject to Section 5.7(b), repairing or replacing Bloom System or BOF components which are defective, damaged, worn or otherwise in need of repair or replacement.

(c) Repair and Replacement of Power Modules. Seller shall repair or replace the power modules included in each Facility as necessary to ensure that such Facility satisfies the Capacity Warranty and the Efficiency Warranty as set forth herein. Buyer agrees that Seller may replace such power modules with power modules of a different model provided that such replacement model has been subjected to inspections and tests performed by Seller in coordination with the Independent Engineer (or another independent engineer mutually selected by Seller and Buyer, who both Buyer and Seller have reasonably determined to be capable of performing such inspections and testing) which indicate that such replacement power module model is reasonably expected to perform at least as well as the model it replaces, as confirmed in writing by the Independent Engineer to Buyer. Notwithstanding the foregoing, Seller represents to Buyer that it reasonably expects that any repair or replacement of power modules to be made within five (5) years of the date the applicable Facility was Placed in Service will have an aggregate value of replaced parts that is less than eighty percent (80%) of the Facility’s total value (the cost of the new parts plus the value of the remaining Facility originally Placed in Service).

(d) Personnel. Seller shall ensure that all operations and maintenance functions contemplated by this Section are performed by technically competent and qualified personnel (the “Service Technicians”). Seller shall ensure that all Service Technicians: (i) participate in a maintenance training program and receive confirmation of having achieved the requisite level of proficiency for the tasks they are assigned to perform, and (ii) attend periodic “refresher” training programs to the extent Seller deems necessary, in its reasonable judgment. The Seller shall at all times retain an operations manager who shall be dedicated to the overall supervision and management of performance of the Seller’s obligations under this Agreement.

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(e) Spare Parts. Seller shall establish and maintain an adequate spare parts inventory.

(f) Programs and Procedures. Prior to the date of the Commencement of Operations of the first Facility, Seller shall have adopted and implemented programs and procedures, consistent with Prudent Electrical Practices, intended to ensure safe and reliable operation of the Facilities. Seller may update such programs and procedures from time-to-time during the Term of this Agreement as it may determine appropriate, in its reasonable judgment and in accordance with Prudent Electrical Practices. Buyer shall be entitled to request, not more than once per calendar year and at Buyer’s sole cost and expense, that the Independent Engineer review such programs and procedures from time to time to confirm compliance with Prudent Electrical Practices.

Section 4.3. Service Fees.

(a) Buyer shall compensate Seller for the Facility Services, on a Calendar Quarter basis, by paying Seller the “Service Fees” equal, for each Facility, to (A) the rate (in $/kW) specified in Exhibit D hereto for such Facility for the applicable Calendar Quarter since the applicable Facility achieved Commencement of Operations, multiplied by (B) the aggregate System Capacity (in kW) of the Bloom Systems comprising the applicable Facility, for the applicable Calendar Quarter.

(b) Commencing on the date each Facility achieves Commencement of Operations, with respect to each Calendar Quarter of such Facility’s Warranty Period, the Service Fees shall be invoiced not later than fifteen (15) Business Days prior to the first day of such Calendar Quarter, and, subject to Section 4.3(d) and Section 5.4, shall be payable no later than the second (2nd) Business Day of such Calendar Quarter; provided, that the pro rata Services Fees for the Calendar Quarter in which a Facility achieves Commencement of Operations shall be invoiced and paid with the Services Fees for the subsequent Calendar Quarter. Interest shall accrue daily on the Service Fees not paid when due, at the lesser of the monthly rate of (i) [***] percent ([***]) and (ii) the highest rate permissible by law on such unpaid balance. Seller shall be under no obligation to provide or perform services hereunder for any Facility whose Service Fee, other than a Service Fee disputed in good faith, has not been paid (or offset pursuant to Section 5.4 or Section 5.8) in full within thirty (30) days of invoice until such date upon which the Service Fee has been paid.

(c) If Seller is required to offset any Services Fees pursuant to Section 5.4(b) and/or Section 5.8(a), Seller shall, promptly following the end of the applicable Calendar Quarter, submit to Buyer a revised invoice reflecting the offset provided for in Section 5.4(b) and/or Section 5.8(a), as applicable.

[***] Confidential Treatment Requested

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(d) If Buyer disputes any amount shown in an invoice issued by Seller in accordance with Section 4.3(a): (i) Buyer must pay the undisputed portion of the invoice amount within the time prescribed by Section 4.3(a), and (ii) liability for the disputed portion of that invoice will be determined in accordance with the dispute resolution procedure set out in Section 14.5.

(e) Any disputed portion of an invoiced amount which was not paid under Section 4.3(d) and is determined as being due to Seller in accordance with the dispute resolution procedure set out in Section 14.5 must be paid by Buyer within ten (10) days of the determination of the dispute in accordance with the procedure set out in Section 14.5 plus, if it is determined in accordance with the dispute resolution procedures that the disputed portion was not disputed in good faith, interest calculated in accordance with Section 4.3(b).

Section 4.4. Remote Monitoring. For purposes of determining when repair services are necessary, Seller shall monitor and evaluate the information gathered through remote monitoring of each Facility as well as the maintenance and inspection Site visits.

Section 4.5. Permits.

(a) Seller shall be responsible, at its sole cost and expense, for maintaining and complying with all Permits required to perform the Facility Services under this Agreement, and shall promptly notify Buyer of any material challenges to the status of a Permit for a Facility, or any other material issues or anticipated material issues relating to obtaining or maintaining a Permit for a Facility.

(b) Buyer agrees to cooperate with and assist Seller in obtaining all Permits.

Section 4.6. Service Providers. Seller may appoint an unrelated third party, who is appropriately qualified, licensed, and financially responsible, to operate and maintain the Facilities throughout the Term (a “Service Provider”). Seller shall submit such appointment of any Service Provider to Buyer for its prior written approval, which approval shall not be unreasonably withheld or delayed. No such appointment nor the approval thereof by Buyer, however, shall relieve Seller of any liability, obligation, or responsibility resulting from a breach of this Agreement.

Section 4.7. Rights to Deliverables. Buyer agrees that Seller shall, except as expressly set forth herein, retain all rights, title and interest, including Intellectual Property rights, in any Training Materials provided to Buyer in connection with the services performed hereunder. “Training Materials” means any and all materials, documentation, notebooks, forms, diagrams, manuals and other written materials and tangible objects, describing how to operate and maintain the Facilities, including any corrections, improvements and enhancements which are delivered by Seller to Buyer, but excluding any data and reports delivered to Buyer.

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ARTICLE V.

WARRANTIES

Section 5.1. Facility Services Warranty. During the Warranty Period, Seller shall perform the services to the Bloom Systems and the BOF necessary for the Portfolio to perform to the Warranty Specifications (the “Facility Services Warranty”).

Section 5.2. Annual Capacity Warranty. During the Warranty Period, Seller shall determine within ten (10) Business Days after the end of each calendar year, whether the Portfolio has delivered to the applicable Interconnection Points the Minimum kWh during such Capacity Warranty Period (“Annual Capacity Warranty”). If such calculation indicates that the Actual kWh delivered by the Portfolio was less than the Minimum kWh during such calendar year, then Seller shall so notify Buyer in writing of the basis of its determination and Buyer may make a claim under Section 5.7 based on the average tolling rate of the applicable Fleet during the Capacity Warranty Period in order to compensate for the Buyer’s loss of revenue resulting from the failure of the Portfolio to deliver the Minimum kWh. For the purposes of avoiding double counting of any kWh shortfalls in calculating Capacity Warranty payments, a claim made in respect of the Annual Capacity Warranty for a calendar year will be reduced by the total amount paid by the Seller in respect of claims under the Quarterly Capacity Warranty for the Calendar Quarters in that calendar year. If the Seller fails to perform any Capacity Warranty calculation within the periods required by this Section 5.2, the Buyer may perform its own calculations and may make a claim under Section 5.7. An example of an Annual Capacity Warranty calculation for purposes of a Section 5.7 claim is attached as Annex C.

Section 5.3. Efficiency Warranty. During the Warranty Period, Seller shall determine for each full calendar month within five (5) Business Days after the end of such month whether each Facility that has achieved Commencement of Operations has performed at the Minimum Efficiency Level (the “Efficiency Warranty”). If the Minimum Efficiency Level has not been met during such month, then Seller shall so notify Buyer in writing of the basis of its determination and Buyer may make a claim under Section 5.7. If the Seller fails to perform any Efficiency Warranty calculation within the periods required by this Section 5.3, the Buyer may perform its own calculations and may make a claim under Section 5.7.

Section 5.4. Quarterly Capacity Warranty.

(a) During the Warranty Period, Seller shall determine, on the first Business Day following the end of each Calendar Quarter, whether the Portfolio has delivered to the applicable Interconnection Points the Minimum kWh during the immediately preceding Capacity Warranty Period (the “Quarterly Capacity Warranty”). If such calculation indicates that the Actual kWh of the Portfolio was less than the Minimum kWh during such Calendar Quarter, then Seller shall (i) so notify Buyer in writing of the basis of its determination, (ii) submit a revised invoice for the subsequent quarter pursuant to Section 4.3(c) and (iii) if applicable, make a payment to Buyer (as set forth in Section 5.4(b)) in an amount calculated as set forth on Annex C based on the average tolling rate of the applicable Fleet during the Capacity Warranty Period in order to compensate for the Buyer’s loss of revenue resulting from the failure of the Portfolio to deliver the Minimum kWh (such payment, a “Quarterly Capacity Warranty Payment”),

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which Quarterly Capacity Warranty Payment shall be understood to constitute liquidated damages pursuant to Section 13.6. If the Seller fails to perform any Capacity Warranty calculation within the periods required by this Section 5.4, the Buyer may perform its own calculations and may make a claim under this Section 5.4.

(b) Quarterly Capacity Warranty Payments owed pursuant to this Section 5.4 shall be paid as follows: first, the Service Fees owed by Buyer for a Calendar Quarter shall be offset to the extent of any Quarterly Capacity Warranty Payment arising out of the prior Calendar Quarter, and second, any remaining amount owed by Seller to Buyer after such offset shall be due and payable in cash, such payment to be paid no later than the fifth Business Day of the Calendar Quarter immediately following the Calendar Quarter with respect to which such Quarterly Capacity Warranty Payment arose. In the event that Buyer owes Seller any Services Fees after the offset of Quarterly Capacity Warranty Payments, payment of such Services Fees shall be paid within fifteen (15) days of Buyer’s receipt of the revised invoice required pursuant to Section 5.4(a)(ii).

(c) In the event that Seller is liable to Buyer for any cash payment of a Quarterly Capacity Warranty Payment following the offset provided in Section 5.4(b) and has failed to make such cash payment within thirty (30) days of the final day of the Calendar Quarter in which the Portfolio fails to satisfy the Quarterly Capacity Warranty, Buyer may return a sufficient number of Underperforming Systems such that the remainder of the Portfolio would have satisfied such Quarterly Capacity Warranty had such returned Underperforming Systems been excluded from the calculation for such Calendar Quarter. With respect to each such returned Underperforming System, Seller shall immediately refund to Buyer the Refund Value of such Underperforming System as liquidated damages pursuant to Section 13.6, and shall promptly remove such returned Underperforming System from the applicable Site and be deemed to have taken title to such Underperforming System, and such Underperforming System shall be deemed to no longer constitute a portion of the Portfolio. If a Bloom System will be removed pursuant to this Section 5.4(c), Seller shall at its sole cost and expense remove the Bloom System and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable Site Lease) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections in the manner required by all Legal Requirements and the applicable Site Lease. For the avoidance of doubt, Buyer’s return of Underperforming Systems pursuant to this Section 5.4(c) shall not relieve Seller of its obligation to pay to Buyer, or decrease the amount of, the Quarterly Capacity Warranty Payment set forth in Section 5.4(a).

Section 5.5. Portfolio Warranty.

(a) Subject to Section 13.5(a), Seller warrants to Buyer that (i) each Bloom System (other than any Software) and the BOF related to each Bloom System will be free from defects in materials and workmanship at the beginning of the Warranty Period for such Bloom System and (ii) the Portfolio, including the BOF related to the Bloom System, will comply with the Warranty Specifications during the Warranty Period, and the BOF will not cause the Portfolio to fail to perform in accordance with the Warranty Specifications (collectively, the “Portfolio Warranty”).

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(b) The Portfolio Warranty is not transferable to any third person, including any person who buys a Bloom System from Buyer, without Seller’s prior written consent (which shall not unreasonably be withheld) other than to Buyer’s Lenders or their designee (or any assignee of (or purchaser in foreclosure from) Buyer’s Lenders) upon transfer of the Portfolio and underlying agreements to such party due to a foreclosure proceeding on account of Buyer’s Lenders’ security interest herein and, if transferred to Buyer’s Lenders or their designee (or any assignee of (or purchaser in foreclosure from) Buyer’s Lenders), such party may freely transfer the Portfolio Warranty.

(c) Any period of time in which the Warranty Specifications are not met shall not extend the Warranty Period.

Section 5.6. Exclusions. The Portfolio Warranty shall not cover any obligations on the part of Seller to the extent caused by or arising from (a) the Bloom Systems or BOF being affected by vandalism or other third-party’s actions or omissions occurring after Commencement of Operations (other than to the extent that Seller, Seller’s Affiliate, or a Seller subcontractor fails to properly protect the Bloom Systems and was required to do so under the Transaction Documents); (b) any failure relating to a PPA Customer’s failure to supply natural gas as required under the applicable PPA; (c) Buyer’s (as opposed to Seller, Seller’s Affiliate, the Service Provider or a subcontractor thereof) or a PPA Customer’s removal of any safety devices, (d) any conditions caused by unforeseeable movement in the environment in which the Bloom Systems are installed (provided that normal soil settlement, shifting, subsidence or cracking will not constitute ‘unforeseeable movement’), (e) accidents, abuse, neglect, improper third party testing (unless caused by Seller, Seller’s Affiliate, the Service Provider or a subcontractor thereof) or Force Majeure Events, or (f) installation, operation, repair or modification of the Bloom Systems or BOF by anyone other than Seller or Seller’s authorized agents. SELLER SHALL HAVE NO OBLIGATION UNDER THE PORTFOLIO WARRANTY AND MAKES NO REPRESENTATION AS TO BLOOM SYSTEMS OR BOF WHICH HAVE BEEN OPENED OR MODIFIED BY BUYER OR ANYONE OTHER THAN SELLER, SELLER’S AFFILIATE, THE SERVICE PROVIDER OR SUBCONTRACTOR, OR ANY OF SUCH PERSON’S REPRESENTATIVES, IN EACH CASE TO THE EXTENT OF ANY DAMAGE OR OTHER NEGATIVE CONSEQUENCE OF SUCH OPENING OR MODIFICATION.

Section 5.7. Portfolio Warranty Claims.

(a) Subject to the provisions of Section 13.5(a), if Buyer desires to make a Portfolio Warranty claim during the Warranty Period, Buyer must notify Seller of the defect or other basis for the claim in writing.

(b) In the case of a claim relating to the Efficiency Warranty, upon receipt of such notice and verification by Seller that such Efficiency Warranty is applicable, Seller or its designated subcontractor will promptly, and in all cases within ninety (90) days, repair or replace, at Seller’s sole option and discretion, any Bloom System(s) or any portion of the BOF whose repair or replacement is required in order for the applicable

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Facility to perform consistent with the Efficiency Warranty. Buyer is hereby notified that refurbished parts may be used in repair or replacement activities, provided that (i) any such refurbished parts will have passed the same inspections and tests performed by Seller on its new parts of the same type before such refurbished parts are used in any repair or replacement, and (ii) Seller shall within thirty (30) days of a written request therefor by Buyer, provide a report for any or all Bloom Systems purchased hereunder that lists all components that have been replaced in any individual Bloom System. If such repair or replacement of one or more Bloom Systems is not feasible (as determined at Seller’s sole option and discretion) and Seller notifies Buyer to such effect, Seller will refund to Buyer the Refund Value of such Bloom Systems (calculated as of the date of such refund), in which case Seller shall be deemed to have taken title to such Bloom System, and such Bloom System shall be deemed to no longer constitute a portion of the Portfolio. Seller shall make such determination as to the feasibility of repair or replacement as promptly as practicable, but in any event within ninety (90) days after Seller’s receipt of notice of the claim unless the specific nature of the problem requires a longer period in which to make such determination (in which case Seller must make a determination within a reasonable time) provided such longer period for a determination does not cause any breach of a PPA or Financing Document. In the event that Seller has not completed the repair or replacement of the Bloom System within ninety (90) days of the end of the calendar month in which Seller received notice of a claim (or within one hundred twenty (120) days if the specific nature of the problem required a period longer than ninety (90) days in which to determine the feasibility of repair or replacement), or repurchased the Bloom System as contemplated in this Section 5.7(b) in the time period in this Section 5.7(b) then Buyer has the right to require Seller (in which case Seller agrees) to procure return of the Bloom System(s) in question to Seller (at Seller’s cost) and Seller will refund to Buyer the Refund Value of such Bloom System, in which case Seller shall be deemed to have taken title to such Bloom Systems upon payment of the Refund Value, and such Bloom Systems shall be deemed to no longer constitute a portion of the Portfolio and shall be removed as described in the previous sentence. If it is determined that a Bloom System will be removed pursuant to this Section 5.7, Seller shall at its sole cost and expense remove the Bloom System and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable Site Lease) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections in the manner required by all Legal Requirements and the applicable Site Lease. The rights and obligations of the Parties under this Section 5.7(b) are in addition to and separate from any other rights of Buyer under this Article 5.

(c) In the case of a claim relating to the Annual Capacity Warranty, upon receipt of such notice and verification that such Annual Capacity Warranty is applicable, Seller shall make a payment to Buyer in an amount to be calculated pursuant to Section 5.2; provided that the cumulative aggregate amount of Seller’s liability for all claims under this Section 5.7(c) shall not exceed $375/kW of aggregate System Capacity of all Bloom Systems in the Portfolio (the “Performance LD Cap”). For the avoidance of doubt, the cap set forth in this Section 5.7(c) does not apply where the Seller is required to repair or replace the Bloom Systems or pay the Refund Value and other amounts incurred to remove the Bloom Systems and ancillary equipment as set out in Section 5.4(c) or Section 5.7(b).

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Section 5.8. Indemnification Regarding Performance Under PPAs.

(a) Without in anyway limiting and in addition to Buyer’s remedies pursuant to Section 5.2 to Section 5.7, inclusive, in the event that Buyer incurs any liability to a PPA Customer with respect to any performance guarantee, any power performance shortfall, any efficiency warranty or any cost excess, including payments made or to be made by Buyer to a PPA Customer to reimburse such PPA Customer for any deficiency in the benefits received by such PPA Customer under the applicable state incentive programs for any PPA (collectively the “PPA Warranties”), Seller shall indemnify and hold Buyer harmless for any such liability, costs and expenses incurred by Buyer pursuant to such PPA Warranties (“PPA Warranty Reimbursement Payment”). Without in anyway limiting and in addition to the foregoing, in the event that the failure of any Bloom System(s) to comply with any PPA Warranty causes the termination of a PPA (in whole or in part), then (i) Buyer may return the applicable Bloom System(s) to Seller and Seller will refund to Buyer the Refund Value of such Bloom Systems, in which case Seller shall be deemed to have taken title to such Bloom Systems, and such Bloom System shall be deemed to no longer constitute a portion of the Portfolio, and (ii) Seller shall indemnify and hold Buyer harmless for any amount the Buyer is liable to a PPA Customer in connection with such termination. If it is determined that a Bloom System will be removed pursuant to this Section 5.8(a), Seller shall at its sole cost and expense remove the Bloom System and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable Site Lease) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections in the manner required by all Legal Requirements and the applicable Site Lease. For the avoidance of doubt, claims, credits, reimbursements and any other payments made under this Section 5.8(a) are not subject to the cap set forth in Section 5.7(c) with respect to claims relating to the Annual Capacity Warranty and shall not count against such cap.

(b) PPA Warranty Reimbursement Payments owed pursuant to Section 5.8(a) shall be calculated by Seller on the first Business Day following the end of each Calendar Quarter and paid as follows: first, the Service Fees owed by Buyer for a Calendar Quarter shall be offset to the extent of any PPA Warranty Reimbursement Payment arising out of the prior Calendar Quarter, and second, any remaining amount owed by Seller to Buyer after such offset shall be due and payable in cash, such payment to be paid no later than the fifth Business Day of the Calendar Quarter immediately following the Calendar Quarter with respect to which such PPA Warranty Reimbursement Payment arose. In the event that Buyer owes Seller any Services Fees after the offset of PPA Warranty Reimbursement Payments, payment of such Services Fees shall be paid within fifteen (15) days of Buyer’s receipt of a revised invoice reflecting such offset submitted by Seller pursuant to Section 4.3(c).

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Section 5.9. Disclaimers. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN ARTICLE VIII, THIS ARTICLE V AND THE OTHER TRANSACTION DOCUMENTS, THE FACILITIES ARE TRANSFERRED “AS IS, WHERE IS”, AND SELLER EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO LIABILITIES, OPERATIONS OF THE FACILITIES, VALUE OR QUALITY OF THE FACILITIES OR THE PROSPECTS (FINANCIAL AND OTHERWISE), RISKS AND OTHER INCIDENTS OF THE FACILITIES. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN ARTICLE VIII, THIS ARTICLE V AND THE OTHER TRANSACTION DOCUMENTS, SELLER SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, USAGE, SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE FACILITIES, OR ANY PART THEREOF. NO PERSON IS AUTHORIZED TO MAKE ANY OTHER WARRANTY OR REPRESENTATION CONCERNING THE PERFORMANCE OF THE FACILITIES.

Section 5.10. Title. Title to all replacement items, parts, materials and equipment supplied under or pursuant to this Agreement to Buyer shall transfer to Buyer upon installation or inclusion in a Facility. Upon replacement of an item or part as part of the Facility Services provided hereunder, Seller shall be obligated to remove such item or part and shall have the right to dispose of such replaced property in any manner that it chooses in its sole discretion.

Section 5.11. Covenants Relating to Refund Value.

(a) If the Refund Value in respect of a Facility is payable pursuant to this Agreement, then, in addition to paying the Refund Value in respect of such Facility, Seller shall also pay to Buyer the then-applicable Refund Adder in respect of such Facility.

(b) If the Refund Value in respect of a Facility is payable pursuant to this Agreement at any time during the initial term of the PPA applicable to such Facility, then for a period of ten (10) years following the date that such Refund Value is paid, neither Seller nor any of its Affiliates may install a Facility at the same PPA Customer location, unless (a) the Investor is an investor in the entity that owns such newly installed Facility, (b) Seller obtains the prior consent of the Investor, or (c) Seller provided the Investor with the opportunity to participate as an investor in the entity that owns such newly installed Facility and the Investor declined to participate in such investment; provided that, with respect to clause (c), the terms that were offered to the Investor were not materially different than those ultimately agreed to with the investor in the entity that owns such newly installed Facility.

Section 5.12. Covenants Relating to the Policy. Seller shall not knowingly take (or fail to take) any action that could reasonably be expected to cause any breach or termination of the Policy.

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ARTICLE VI.

RECORDS

Section 6.1. Record-Keeping Documentation.

(a) Seller shall ensure that operation, service and maintenance records concerning Seller’s activities hereunder are properly created and maintained at all times. Such records shall include, but not be limited to, the following:

(i) a separate “Maintenance Specification Log” for each Facility in a paper or electronic format (with entries made for each inspection, including any discrepancies found during such inspection), a copy of which shall be submitted, in paper or electronic format, to Buyer along with the corresponding Quarterly Reports;

(ii) a Site service report completed in respect of each inspection, repair, replacement, service or other activity or observation made by Seller in connection with its responsibilities hereunder, detailing the nature of the problems with a Facility detected and the specifics of the problem resolution and submitted to Buyer within ten (10) Business Days of the date when such problem is resolved or within ten (10) Business Days of a routine inspection or service;

(iii) a quarterly report submitted to Buyer within forty-five (45) days after the end of each Calendar Quarter (“Quarterly Report”) detailing and documenting, on a monthly basis, the Efficiency and total output (in kWh), of (A) each Facility comprising the Portfolio, and (B) the Portfolio, in each case for the preceding Calendar Quarter; and

(iv) any other records, reports, or other documentation (A) required to be delivered by Buyer to Buyer’s Lenders pursuant to the Financing Documents or any other agreement to which both such entities are a party or (B) that are reasonably requested by Buyer. Seller agrees to use commercially reasonable efforts to promptly provide such documentation to Buyer, and shall provide a reasonable explanation for any inability to provide such documentation.

(b) All such records required to be created and maintained pursuant to Section 6.1(a) shall be kept available at the Seller’s office and made available for the Buyer’s inspection upon request at all reasonable times. Any documentation prepared by Seller during the Term for the purposes of this Agreement shall be directly prepared for Buyer’s benefit and immediately become Buyer’s property. Any such documentation shall be stored by Seller on behalf of Buyer until its final delivery to Buyer. Seller may retain a copy of all records related to each Facility for future analysis.

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Section 6.2. Reports; Other Information. Without in any way limiting Seller’s other reporting, notification, and other similar obligations under this Agreement, during the Warranty Period, Seller shall furnish to Buyer the following reports, notices, and other information regarding the Bloom Systems:

(a) Promptly upon Seller’s knowledge of the occurrence of any damage to any Facility or Site, notice of such damage in reasonable detail; and

(b) Any information Buyer may reasonably request in connection with any claim filed by Buyer under any insurance maintained with respect to the Facilities, and any information such insurance providers may reasonably request in connection with such claim.

ARTICLE VII.

DATA ACCESS

Section 7.1. Access to Data and Meters. Throughout the Term, and thereafter to the extent relevant to calculations necessary for periods prior to the end of the Term and subject to any confidentiality obligation owed to any third party and/or any restrictions on the disclosure of information which may be subject to intellectual property rights restricting disclosure:

(a) Buyer shall grant Seller access to all data relating to the electricity production of each Facility, it being understood that it is Seller’s responsibility to determine the performance of the Facility, and any other calculations as required under this Agreement, and that it is Buyer’s responsibility to handle all accounting and invoicing activities;

(b) Buyer shall allow Seller access to all data from all Facility Meters; and

(c) Seller shall be entitled to use the foregoing data for its internal purposes and make such data available to third parties for analysis.

ARTICLE VIII.

REPRESENTATIONS AND WARRANTIES OF SELLER

Section 8.1. Representations and Warranties as to Seller. Seller represents and warrants to Buyer as of the Agreement Date and as of each Purchase Date as follows:

(a) Incorporation; Qualification. Seller is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own, lease, and operate its business as currently conducted. Seller is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction that its business, as currently being conducted, shall require it to be so qualified, except where the failure to be so qualified would not have a material adverse effect on the Bloom Systems being sold under this Agreement.

(b) Authority. Seller has full corporate power and authority to execute and deliver the Transaction Documents to which it is a party and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Seller of the Transaction Documents to which it is a party and the consummation by Seller of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action required on the part of Seller and the Transaction

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Documents to which Seller is a party have been duly and validly executed and delivered by Seller. Each of the Transaction Documents to which Seller is a party constitutes the legal, valid and binding agreement of Seller, enforceable against Seller in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).

(c) Consents and Approvals; No Violation. Neither the execution, delivery and performance of the Transaction Documents to which Seller is a party nor the consummation by Seller of the transactions contemplated hereby and thereby will (i) conflict with or result in any breach of any provision of the certificate of incorporation or bylaws of Seller, (ii) with or without the giving of notice or lapse of time or both, conflict with, result in any violation or breach of, constitute a default under, result in any right to accelerate, result in the creation of any Lien on Seller’s assets, or create any right of termination under the conditions or provisions of any note, bond, mortgage, indenture, material agreement or other instrument or obligation to which Seller is a party or by which it, or any material part of its assets may be bound, in each case that would individually or in the aggregate result in a material adverse effect on the Seller or its ability to perform its obligations hereunder or (iii) constitute violations of any law, regulation, order, judgment or decree applicable to Seller, which violations, individually or in the aggregate, would result in a material adverse effect on the Seller or its ability to perform its obligations hereunder.

(d) Legal Proceedings. There are no pending or, to Seller’s knowledge, threatened claims, disputes, governmental investigations, suits, actions (including non-judicial real or personal property foreclosure actions), arbitrations, legal, administrative or other proceedings of any nature, domestic or foreign, criminal or civil, at law or in equity, by or against Seller that challenge the enforceability of the Transaction Documents to which Seller is a party or the ability of Seller to consummate the transactions contemplated hereby or thereby, in each case, that could reasonably be expected to result in a material adverse effect on Seller or its ability to perform its obligations hereunder.

(e) U.S. Person. Seller is not a “foreign person” within the meaning of Section 1445(b)(2) of the Code and has provided a Certificate of Non-Foreign Status in the form and substance required by Section 1445 of the Code and the regulations thereunder.

(f) Purchase Price of Facility. The Purchase Price paid for each Facility in accordance with Section 2.2 is an amount that is equal to the Fair Market Value of each Facility, as determined on an arms-length basis.

Section 8.2. Representations and Warranties as to Bloom Systems. Seller represents and warrants to Buyer as of the Delivery Date for each Bloom System solely with respect to such Bloom System, as follows: Seller has good title to each Bloom System and each such Bloom System is free and clear of all Liens other than Permitted Liens. Neither Seller nor any of its

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subcontractors have placed any Liens on the Sites or the Facilities other than Permitted Liens. To the extent that Seller has actual knowledge that any of its subcontractors has placed any Lien on a Bloom System, Facility, or Site, then Seller shall cause such Liens to be discharged, or shall provide a bond in an amount and from a surety acceptable to Buyer to protect against such Lien, in each case, within thirty (30) days after Seller is aware of the existence thereof. Seller shall indemnify Buyer and Buyer’s Lenders against any such lien claim, provided that if the applicable Site Lease requires additional or more stringent action, Seller shall also indemnify Buyer and Buyer’s Lenders for the costs and expenses of such actions.

ARTICLE IX.

REPRESENTATIONS AND WARRANTIES OF BUYER

Buyer represents and warrants to Seller as of the Agreement Date and as of each Purchase Date, as follows with respect to Buyer:

Section 9.1. Organization. Buyer is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware and has all requisite limited liability company power and authority to own, lease, and operate its business as currently conducted.

Section 9.2. Authority. Buyer has full limited liability company power and authority to execute and deliver the Transaction Documents to which Buyer is a party and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Buyer of the Transaction Documents to which Buyer is a party and the consummation by Buyer of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary limited liability company action required on the part of Buyer and the Transaction Documents to which Buyer is a party have been duly and validly executed and delivered by Buyer. Each of the Transaction Documents to which Buyer is a party constitutes the legal, valid and binding agreement of Buyer, enforceable against Buyer in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).

Section 9.3. Consents and Approvals; No Violation. Neither the execution, delivery and performance by Buyer of the Transaction Documents to which Buyer is a party nor the consummation by Buyer of the transactions contemplated thereby will (a) conflict with or result in any breach of any provision of the Certificate of Formation or the limited liability company agreement of Buyer, or (b) result in a default (or give rise to any right of termination, cancellation or acceleration) under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, material agreement or other instrument or obligation to which Buyer is a party or by which any of its assets are bound, except for such defaults (or rights of termination, cancellation or acceleration) as to which requisite waivers or consents have been obtained or (c) constitute violations of any law, regulation, order, judgment or decree applicable to Buyer, which violations, individually or in the aggregate, would result in a material adverse effect on Buyer or its ability to perform its obligations hereunder.

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Section 9.4. Legal Proceedings. There are no pending or, to Buyer’s knowledge, threatened claims, disputes, governmental investigations, suits, actions (including non-judicial real or personal property foreclosure actions), arbitrations, legal, administrative or other proceedings of any nature, domestic or foreign, criminal or civil, at law or in equity, by or against Buyer that challenges the enforceability the Transaction Documents to which Buyer is a party or the ability of Buyer to consummate the transactions contemplated thereby, in each case, that could reasonably be expected to result in a material adverse effect on Buyer or its ability to perform its obligations hereunder.

ARTICLE X.

CONFIDENTIALITY

Section 10.1. Confidential Information. Subject to the other terms of this ARTICLE X the Parties shall, and shall cause their Affiliates and their respective stockholders, members, subsidiaries and Representatives to, hold confidential all information they may have or obtain concerning the Seller and the Buyer and their respective assets, business, operations or prospects or this Agreement (the “Confidential Information”), including all materials and information furnished by Seller in performance of this Agreement, regardless of form conveyed or whether financial or technical in nature, including any trade secrets and proprietary know how and Software whether such information bears a marking indicating that they are proprietary or confidential or not; provided, however, that Confidential Information shall not include information that (x) is or becomes generally available to the public other than as a result of an unauthorized disclosure by a Party or any of its Representatives, (y) is or becomes available to a Party or any of its Representatives on a nonconfidential basis from a source other than the other Party or its Representatives, provided that such source was not and is not bound by any contractual, legal or fiduciary obligation of confidentiality with respect to such information or (z) was or is independently developed or conceived by a Party or its Representatives without reference to the Confidential Information of the other Party.

Section 10.2. Restricted Access.

(a) Buyer agrees that the Facilities themselves contain Seller’s valuable trade secrets. Buyer agrees (i) to restrict the use of such information to matters relating to the Facilities, and (ii) to restrict access to such information as provided in Section 10.3(b).

(b) Seller’s Confidential Information will not be reproduced without Seller’s prior written consent, and following termination of this Agreement all copies of such written information will be returned to Seller upon written request (not to be made while materials are still of use to the operation of a Facility and no Buyer Default has occurred and is continuing), unless otherwise agreed by the Parties. Buyer’s Confidential Information will not be reproduced by Seller without Buyer’s prior written consent, and following termination of this Agreement all copies of such written information will be returned to Buyer upon written request or shall be certified by Seller as having been destroyed.

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(c) Subject to ARTICLE XI and Section 10.2(a) and (b) hereof, the Facilities are offered for sale and are sold by Seller subject to the condition that such sale does not convey any license, expressly or by implication, to manufacture, reverse engineer, duplicate or otherwise copy or reproduce any part of the Facilities, documentation or Software without Seller’s express advance written permission. Subject to ARTICLE XI hereof, Buyer agrees not to remove the covering, not to access the interior or to reverse engineer, or cause or knowingly allow any third party to open, access the interior or reverse engineer any Facility or Software provided by Seller. Subject to ARTICLE XI hereof, and anything contemplated pursuant to this Agreement, only Seller or its authorized representatives may open or access the interior of a Facility. Notwithstanding the foregoing or anything else herein to the contrary, and without limitation of the rights set forth in ARTICLE XI hereof, if any Facility is no longer covered by this Agreement or another agreement between Buyer and Seller (or any Affiliate of Seller) regarding the operation and maintenance of such Facility, Buyer shall be entitled to maintain, or cause a third party to maintain, such Facility, including replacing parts or components as needed or desired; provided that Buyer shall use commercially reasonable efforts to engage a third party to provide such maintenance that is not a competitor of Seller or its Affiliates and is not in litigation or other material dispute with Seller.

Section 10.3. Permitted Disclosures.

(a) Legally Compelled Disclosure. Confidential Information may be disclosed (i) as required or requested to be disclosed by a Party or any of its Affiliates or their respective stockholders, members, subsidiaries or Representatives as a result of any applicable Legal Requirement or rule or regulation of any stock exchange, the Financial Industry Regulatory Authority, Inc. or other regulatory authority or self-regulatory authority having jurisdiction over such Party, (ii) as required or requested by the IRS, the Department of Justice or the Office of the Inspector General in connection with a Facility, cash grant, or tax credits relating thereto, including in connection with a request for any private letter ruling, any determination letter or any audit or (iii) as required under any Interconnection Agreement. If a Party becomes compelled by legal or administrative process to disclose any Confidential Information, such Party shall, to the extent permitted by Legal Requirements, provide the other Parties with prompt notice so that the other Parties may seek a protective order or other appropriate remedy or waive compliance with the non-disclosure provisions of this Section 10.3 with respect to the information required to be disclosed. If such protective order or other remedy is not obtained, or such other Parties waive compliance with the non-disclosure provisions of this Section 10.3 with respect to the information required to be disclosed, the first Party shall furnish only that portion of such information that it is advised, by opinion of counsel, is legally required to be furnished and shall exercise reasonable efforts, at the expense of the Party whose Confidential Information is being disclosed, to obtain reliable assurance that confidential treatment will be accorded such information, including, in the case of disclosures to the IRS described in clause (ii) above, to obtain reliable assurance that, to the maximum extent permitted by applicable Legal Requirements, such information will not be made available for public inspection pursuant to Section 6110 of the Code.

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(b) Disclosure to Representatives. Notwithstanding the foregoing, and subject always to the restrictions in Section 10.2, a Party may disclose Confidential Information received by it to its and its Affiliates’ actual or potential investors or financing parties (including, for the avoidance of doubt, disclosure by Buyer to Buyer’s Lenders and the Investor and Bloom Member) and its and their employees, consultants, legal counsel or agents who have a need to know such information; provided that such Party informs each such Person who has access to the Confidential Information of the confidential nature of such Confidential Information, the terms of this Agreement, and that such terms apply to them. The Parties shall use commercially reasonable efforts to ensure that each such Person complies with the terms of this Agreement and that any Confidential Information received by such Person is kept confidential.

(c) Other Permitted Disclosures. Nothing herein shall be construed as prohibiting a Party hereunder from using such Confidential Information in connection with (i) any claim against another Party hereunder, (ii) any exercise by a Party hereunder of any of its rights hereunder, (iii) a financing or proposed financing by Seller or Buyer or their respective Affiliates; (iv) a disposition or proposed disposition by Seller or any Affiliate of Seller of all or a portion of such Person’s direct or indirect equity interest in the Buyer, (v) a disposition or proposed disposition by any direct or indirect Affiliate of Buyer of all or a portion of such Person’s equity interests in the Buyer, (vi) a disposition or proposed disposition by Buyer of any Bloom System; or (vii) any disclosure required to be made to a PPA Customer (or otherwise) under a PPA, provided that, in the case of items (iii), (iv), (v) and (vi), the potential financing party or purchaser has entered into a confidentiality agreement with respect to Confidential Information on customary terms used in confidentiality agreements in connection with corporate financings or acquisitions before any such information may be disclosed and a copy of such confidentiality agreement has been provided to the non-disclosing party for informational purposes, which copy of such confidentiality agreement may contain redactions of confidential information relating to the potential financing or purchaser except as otherwise required to be disclosed by Seller or its Affiliates to Investor pursuant to the Holdco LLC Agreement. No disclosures of Confidential Information shall be made by Buyer in exercise of its rights under this Section 10.3(c) until Seller has first had the opportunity to exercise its right to take or purchase the Bloom System in question, if applicable.

Section 10.4. Publicity. Notwithstanding the provisions of this ARTICLE X, the Parties shall consult with each other and agree in advance in connection with making public announcements regarding the transactions contemplated by the Transaction Documents.

ARTICLE XI.

LICENSE AND OWNERSHIP; SOFTWARE

Section 11.1. IP License To Use. Subject to Section 11.2, Seller grants to Buyer a limited (as described herein), non-exclusive, royalty-free, irrevocable (except as described in Article XII hereof), non-transferable (except as described herein) license to use the Intellectual Property contained in the Documentation and the Facilities purchased hereunder (collectively, “Seller’s Intellectual Property”) in conjunction with the purchase and use of each Facility in accordance with the terms hereof and each PPA and Interconnection Agreement (the “IP License”); provided, that (a) such license may be transferred to Buyer’s Lenders or their designee upon transfer of the Portfolio and underlying agreements to such party due to a foreclosure proceeding, deed-in-lieu-of-foreclosure or other similar remedy on account of

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Buyer’s Lenders’ security interest herein and, if transferred to Buyer’s Lenders or their designee, such license may be further transferred by such party to any other Person who acquires the Portfolio from Buyer’s Lenders or their designee, (b) such license may be transferred by Buyer to any third party Buyer is entitled to engage to maintain any Facility pursuant to Section 10.2(c), (c) such license may be transferred by Buyer to any successor or assign of Buyer permitted pursuant to Section 14.4, and (d) in the event of an voluntary or involuntary bankruptcy of Buyer, Seller hereby expressly consents to the assumption and assignment of the IP License by Buyer as necessary to allow Buyer’s continued use of each Facility in accordance with the terms hereof and each PPA and Interconnection Agreement. Seller shall retain all right, title and ownership of any and all Intellectual Property licensed by Seller hereunder. No right, title or interest in any such Intellectual Property is granted, transferred or otherwise conveyed to Buyer under this Agreement except as otherwise expressly set forth herein. Buyer shall not, except as otherwise provided herein, modify, network, rent, lease, loan, sell, distribute or create derivative works based upon the Seller’s Intellectual Property in whole or part, or cause or knowingly allow any third party to do so.

Section 11.2. Grant of Third Party Software License.

(a) Seller grants to Buyer a limited (as described herein), non-exclusive, royalty-free, irrevocable (except as described in ARTICLE XII hereof), non-transferable (except as described herein) license to use the Software (the “Software License”); provided, that (i) such license may be transferred to Buyer’s Lenders or their designee upon transfer of the Portfolio and underlying agreements to such party due to a foreclosure proceeding, deed-in-lieu-of-foreclosure or other similar remedy on account of Buyer’s Lenders’ security interest herein and, if transferred to Buyer’s Lenders or their designee, such license may be further transferred by such party to any other Person who acquires the Portfolio from Buyer’s Lenders or their designee, (ii) such license may be transferred by Buyer to any third party Buyer is entitled to engage to maintain any Facility pursuant to Section 10.2(c), and (iii) such license may be transferred by Buyer to any successor or assign of Buyer permitted pursuant to Section 14.4. No right, title or interest in any Software provided to Buyer (including all copyrights, patents, trade secrets or other intellectual or intangible property rights of any kind contained therein) is granted, transferred, or otherwise conveyed to Buyer under this Agreement except as expressly set forth herein. Buyer agrees not to reverse engineer or decompile the Software or otherwise use the Software for any purpose other than in connection with the use of the Facilities. Further, Buyer shall not modify, network, rent, lease, loan, sell, distribute or create derivative works based upon the Software in whole or part, or cause or knowingly allow any third party to do so.

(b) All data collected on the Facilities by Seller using the Software and data collected on the Facilities using Seller’s internal proprietary software are the sole property of Seller to be used by Seller in accordance with applicable law, and Seller hereby grants to Buyer a limited, non-exclusive, irrevocable (except as set forth in ARTICLE XII hereof), royalty-free license to use the data collected on the Facilities using such Software or the Seller’s internal proprietary software only for purposes of using such Facilities and administering the Transaction Documents or as required pursuant to the terms of any PPA or Interconnection Agreement, provided the provisions of ARTICLE X on confidentiality are maintained.

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Section 11.3. No Software Warranty. Buyer acknowledges and agrees that the use of the Software is at Buyer’s sole risk. The Software and related documentation are provided “AS IS” and without any warranty of any kind and Seller EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

Section 11.4. Covenant. If Seller grants, bargains, sells, conveys, mortgages, assigns, pledges, warrants or transfers any Intellectual Property or Software that is required (a) for Seller or its Affiliates to perform their respective obligations under the Transaction Documents or (b) for the continued maintenance and operation of the Facilities without a material decrease in performance of the Facilities, Seller shall cause such act or transaction to be subject to the grant of the IP License and Software License under this Agreement.

Section 11.5. Representations and Warranties. Seller represents and warrants to Buyer as of the Agreement Date and as of each Purchase Date as follows with respect to all Intellectual Property that is required (i) for Seller or its Affiliates to perform their respective obligations under the Transaction Documents, and (ii) for the continued operation of the Facilities in accordance with the Transaction Documents, the PPAs and the Interconnection Agreements without a material decrease in performance of the Facilities:

(a) Seller owns or has the right to use and to authorize Buyer to use all such Intellectual Property and Software; and

(b) Seller and its Affiliates are not infringing on any Intellectual Property of any third party with respect to the actions described in subsection (i) and (ii) of Section 11.5 and the Facilities do not infringe on any Intellectual Property of any third party.

ARTICLE XII.

EVENTS OF DEFAULT AND TERMINATION

Section 12.1. Seller Default. The occurrence at any time of any of the following events shall constitute a “Seller Default”:

(a) Failure to Pay. The failure of Seller to pay any undisputed amounts owing to Buyer on or before the day following the date on which such amounts are due and payable under the terms of this Agreement and Seller’s failure to cure each such failure within five (5) Business Days after Seller receives written notice from Buyer of each such failure;

(b) Failure to Perform Other Obligations. Unless due to a Force Majeure Event, the failure of Seller to perform or cause to be performed any other material obligation required to be performed by Seller under this Agreement, or the failure of any representation and warranty set forth herein to be true and correct as and when made; provided, however, that if such failure by its nature can be cured, then Seller shall have a

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period of thirty (30) days after receipt of written notice of such failure to cure the same and a Seller Default shall not be deemed to exist during such period; provided, further, that if Seller commences to cure such failure during such period and is diligently and in good faith attempting to effect such cure, said period shall be extended for sixty (60) additional days;

(c) Failure to Remedy Injunction. The failure of Seller to remedy any injunction that prohibits Buyer’s use of any Facility as contemplated by Section 13.1 within sixty (60) days of Seller’s receipt of written notice of Buyer being enjoined therefrom; or

(d) Bankruptcy. If Seller (i) admits in writing its inability to pay its debts generally as they become due; (ii) files a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other applicable law or statute of the United States of America or any State, district or territory thereof; (iii) makes an assignment for the benefit of creditors; (iv) consents to the appointment of a receiver of the whole or any substantial part of its assets; (v) has a petition in bankruptcy filed against it, and such petition is not dismissed within sixty (60) days after the filing thereof; or if (vi) a court of competent jurisdiction enters an order, judgment, or decree appointing a receiver of the whole or any substantial part of Seller’s assets, and such order, judgment or decree is not vacated or set aside or stayed within sixty (60) days from the date of entry thereof; or (vii) under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the whole or any substantial part of Seller’s assets and such custody or control is not terminated or stayed within sixty (60) days from the date of assumption of such custody or control.

Section 12.2. Buyer Default. The occurrence at any time of the following events with respect to Buyer shall constitute a “Buyer Default”:

(a) Failure to Pay. The failure of Buyer to pay any undisputed amounts owing to Seller on or before the day following the date on which such amounts are due and payable under the terms of this Agreement and Buyer’s failure to cure each such failure within five (5) Business Days after Buyer receives written notice of each such failure; or

(b) Failure to Perform Other Obligations. Unless due to a Force Majeure Event, the failure of Buyer to perform or cause to be performed any material obligation required to be performed by Buyer under this Agreement or the failure of any representation and warranty set forth herein to be true and correct as and when made; provided, however, that if such failure by its nature can be cured, then Buyer shall have a period of thirty (30) days after receipt of written notice of such failure to cure the same and a Buyer Default shall not be deemed to exist during such period; provided, further, that if Buyer commences to cure such failure during such period and is diligently and in good faith attempting to effect such cure, said period shall be extended for sixty (60) additional days.

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Section 12.3. Buyer’s Remedies Upon Occurrence of a Seller Default. If a Seller Default has occurred under Section 12.1(d), Buyer may terminate this Agreement by written notice, and assert all rights and remedies available to Buyer under Legal Requirements subject to the limitations of liability set forth in Section 13.5. If a Seller Default has occurred under Section 12.1(a), Section 12.1(b) or Section 12.1(c), Buyer may terminate this Agreement only with respect to those Facilities for which such Seller Default has occurred by written notice, and (i) assert all rights and remedies available to Buyer under Legal Requirements subject to the limitations of liability set forth in Section 13.5, or (ii) require the Seller and, if so required, Seller shall repurchase the relevant Facility in respect of which this Agreement is being terminated from the Buyer on an AS IS basis by paying the Refund Value of any such Facility, calculated as of the date of such refund, in which case Seller shall take title to such Facility upon paying the Refund Value, and such Facility shall no longer constitute a portion of the Portfolio; provided, however, that if a Seller Default has occurred under Section 12.1(a) or Section 12.1(b) and remains uncured with respect to ten (10) or more Facilities, then Buyer may terminate this Agreement by written notice with respect to all Facilities. If a Facility will be removed pursuant to this Section 12.3, Seller shall at its sole cost and expense remove the Facility and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable Site Lease) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections in the manner required by all Legal Requirements and the applicable Site Lease.

Section 12.4. Seller’s Remedies Upon Occurrence of a Buyer Default. If a Buyer Default has occurred Seller may terminate this Agreement only with respect to those Facilities for which a Buyer Default has occurred and remains uncured; provided that if such Buyer Default is a Buyer Default under Section 12.2(a) and has occurred and remains uncured with respect to ten (10) or more Facilities, then Seller may terminate this Agreement with respect to all Facilities not yet paid in full by Buyer by written notice, and assert all rights and remedies available to Seller under Legal Requirements with respect to those Facilities for which a Buyer Default has occurred, subject to the limitations of liability set forth in Section 13.5, including without limitation retaining any prior payments with respect to such Facilities and selling such Facilities to another buyer.

Section 12.5. Preservation of Rights. Termination of this Agreement shall not affect any rights or obligations as between the Parties which may have accrued prior to such termination or which expressly or by implication are intended to survive termination whether resulting from the event giving rise to termination or otherwise, including, without limitation, ARTICLE XI.

Section 12.6. Force Majeure. If either Party is rendered wholly or partially unable to perform any of its obligations under this Agreement by reason of a Force Majeure Event, that Party (the “Claiming Party”) will be excused from whatever performance is affected by the Force Majeure Event to the extent so affected; provided, however, that (a) the Claiming Party, within a reasonable time after the occurrence of such Force Majeure Event gives the other Party notice describing the particulars of the occurrence; (b) the suspension of performance shall be of no greater scope and of no longer duration than is reasonably required by the Force Majeure Event; (c) no liability of either Party for an event that arose before the occurrence of the Force Majeure Event shall be excused as a result of the Force Majeure Event; (d) the Claiming Party shall exercise commercially reasonable efforts to correct or cure the event or condition excusing performance and resume performance of all its obligations; and (e) when the Claiming Party is able to resume performance of its obligations under this Agreement, the Claiming Party shall promptly give the other Party notice to that effect and shall promptly resume performance.

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Section 12.7. Termination of PPAs.

(a) In the event that a PPA is terminated with respect to a Facility, this Agreement shall be deemed terminated with respect to that Facility and any amounts payable to the Seller in respect of such Facility after the date of termination shall cease to be payable; provided, however, that any amounts payable to Seller with respect to Seller’s services performed prior to such PPA termination shall remain payable in accordance with the terms of this Agreement.

(b) In the event that the termination of this Agreement under Section 12.7(a) results from the default of Seller under this Agreement or the Administrative Services Agreement, Seller shall repurchase the relevant Facilities in respect of which this Agreement is being terminated from the Buyer on an AS IS basis by paying the Refund Value of any such Facilities, calculated as of the date of such refund, in which case Seller shall take title to such Facilities upon paying the Refund Value, and the applicable Bloom Systems shall no longer constitute a portion of the Portfolio. If a Facility will be removed pursuant to this Section 12.7, Seller shall at its sole cost and expense remove (or cause the removal of) the Facility and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable Site Lease) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections in the manner required by all Legal Requirements and the applicable Site Lease.

ARTICLE XIII.

INDEMNIFICATION

Section 13.1. IP Indemnity.

(a) Except as expressly limited below, Seller agrees to indemnify, defend and hold Buyer, its members, and their Affiliates and their respective managers, officers, directors, employees and agents harmless from and against any and all Third Party Claims and Indemnifiable Losses (including in connection with obtaining any Intellectual Property necessary for continuation of completion, operation and maintenance of Bloom Systems purchased by Buyer from Seller), arising from or in connection with any alleged infringement, conflict, violation or misuse of any patents, copyrights, trade secrets or other third party Intellectual Property rights by Bloom Systems purchased by Buyer from Seller (or the (b) use, operation or maintenance thereof) or the exercise of the IP License or the Software License granted pursuant to Section 11.1 and Section 11.2 hereunder. Buyer shall give Seller prompt notice of any such claims. Seller shall be entitled to participate in, and, unless in the opinion of counsel for Seller a conflict of interest between the Parties may exist with respect to such claim, assume control of the defense of such claim with counsel reasonably acceptable to the Buyer. Buyer authorizes Seller to settle or defend such claims in its sole discretion on Buyer’s behalf, without imposing any monetary or other obligation or liability on the Buyer and subject to Buyer’s

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participation rights set forth in this Section 13.1. Buyer shall assist Seller upon reasonable request by Seller and, at Seller’s reasonable expense, in defending any such claim. If Seller does not assume the defense of such claim, or if a conflict precludes Seller from assuming the defense, then Seller shall reimburse Buyer on a monthly basis for Buyer’s reasonable defense expenses of such claim through separate counsel of Buyer’s choice reasonably acceptable to Seller. Even if Seller assumes the defense of such claim, Buyer may, at its sole option, participate in the defense, at Buyer’s expense, without relieving Seller of any of its obligations hereunder. Should Buyer be enjoined from selling or using any Bloom System as a result of such claim, Seller will, at its sole option and discretion, either (i) procure or otherwise obtain for Buyer the right to use or sell the Bloom System; (ii) modify the Bloom System so that it becomes non-infringing but still substantially meets the original functional specifications of the Bloom System (in which event, for the avoidance of doubt, all warranties hereunder shall continue to apply unmodified); (iii) upon return of the Bloom System to Seller, as directed by Seller, provide to Buyer a non-infringing Bloom System meeting the functional specifications of the Bloom System, or (iv) when and if none of the first three options is reasonably available to Seller, authorize the return of the Bloom System to Seller and, upon receipt thereof, return to Buyer all monies paid by Buyer to Seller for the cost of the Bloom Systems and BOF, net of any monies paid by Seller to Buyer for any performance guaranties or other warranty claims; provided that Seller shall not elect the option in the preceding clause (i) without the Buyer’s written consent if such election could reasonably be expected to materially decrease Buyer’s revenues or materially increase Buyer’s operating expenses.

(b) THIS INDEMNITY SHALL NOT COVER ANY CLAIM:

(i) for Intellectual Property infringement, conflict, violation or misuse arising from or in connection with any combination made by Buyer of any Bloom System with any other product or products or modifications made by or on behalf of Buyer to any part of the Bloom System, unless such combination or modification is (A) in accordance with Seller’s specifications for the Bloom System, or (B) made by or on behalf of or at the written request of Seller where Seller has requested the specific combination or modification giving rise to the claim by Seller; or

(ii) for infringement of any Intellectual Property rights arising in whole or in part from any aspect of the Bloom System which was designed by or requested by the Buyer on a custom basis.

Section 13.2. Indemnification of Seller by Buyer. Buyer shall indemnify, defend and hold harmless Seller, its officers, directors, employees, shareholders, Affiliates and agents (each, a “Seller Indemnitee”) from and against any and all Indemnifiable Losses asserted against or suffered by any Seller Indemnitee arising out of a claim by a third party (other than a claim for Seller Indemnitee’s breach of contract) and in any way relating to, resulting from or arising out of or in connection with any Third Party Claims against a Seller Indemnitee to the extent arising out of or in connection with (a) the negligent or intentional acts or omissions of Buyer or its subcontractors, agents or employees or others under Buyer’s control (excluding any Seller

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Affiliate) or breach by Buyer of its obligations under the Agreement, or (b) operation of Bloom Systems by any party other than Seller or an Affiliate or subcontractor of Seller after such Bloom Systems have been purchased by Buyer pursuant to this Agreement (but subject to Seller’s warranties, covenants and indemnities under this Agreement and any other Transaction Document to which Seller is a party); provided that Buyer shall have no obligation to indemnify Seller to the extent caused by or arising out of (i) any negligence, fraud or willful misconduct of any Seller Indemnitee or the breach by Seller or any Seller Indemnitee of its covenants and warranties under this Agreement or any other Transaction Document, (ii) any operation of Bloom Systems by a party outside of Buyer’s control or direction or by a party taking such action despite Buyer’s reasonable efforts to prevent the same or (iii) any breach by Seller or its Affiliate in its capacity as the administrator under the Administrative Services Agreement or as “Managing Member” under the Holdco LLC Agreement.

Section 13.3. Indemnification of Buyer by Seller.

(a) Seller shall indemnify, defend and hold harmless Buyer, its members, managers, officers, directors, employees, Affiliates and agents (each, a “Buyer Indemnitee”) from and against any and all Indemnifiable Losses asserted against or suffered by any Buyer Indemnitee arising out of (1) a claim by a third party (other than a claim for Buyer Indemnitee’s breach of contract) and in any way relating to, resulting from or arising out of or in connection with any Third Party Claims against a Buyer Indemnitee to the extent arising out of or in connection with the negligent or intentional acts or omissions of Seller or its subcontractors, agents or employees or others under Seller’s control (other than matters addressed separately in Section 13.1, which shall be governed by the terms thereof) or (2) a breach by Seller of its obligations under the Agreement; provided that, Seller shall have no obligation to indemnify Buyer to the extent caused by or arising out of any negligence, fraud or willful misconduct of a Buyer Indemnitee, the breach by Buyer or any Buyer Indemnitee of its covenants and warranties under this Agreement or the inability to utilize any tax benefits.

(b) Except as otherwise set forth in this Agreement, in the event that Buyer incurs any liability, cost, loss or expense to a PPA Customer (including relating to a breach of a PPA) in relation to the repurchase by or return to Seller of any Bloom System under this Agreement, Seller shall indemnify and hold Buyer harmless for any such liability, cost, loss or expense incurred by Buyer.

(c) Seller acknowledges and agrees that each PPA Customer is an intended third party beneficiary of Seller’s indemnification obligations in favor of the Buyer Indemnitees and that Buyer may, at its sole option, elect to assign to a PPA Customer the right to seek indemnification directly from Seller in the event that Buyer owes to such PPA Customer any indemnification obligations arising out of any actions or inactions of Seller under this Agreement that give rise to an indemnification obligation of Seller in favor of any Buyer Indemnitee.

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Section 13.4. Indemnity Claims Procedure. Except as otherwise provided in Section 13.1, if any indemnifiable claim is brought against a Party (the “Indemnified Party”), then the other Party (the “Indemnifying Party”) shall be entitled to participate in, and, unless in the reasonable opinion of counsel for the Indemnifying Party a conflict of interest between the Parties may exist with respect to such claim, assume the defense of such claim, with counsel reasonably acceptable to the Indemnifying Party. If the Indemnifying Party does not assume the defense of the Indemnified Party, or if a conflict precludes the Indemnifying Party from assuming the defense, then the Indemnifying Party shall reimburse the Indemnified Party on a monthly basis for the Indemnified Party’s reasonable defense expenses through separate counsel of the Indemnified Party’s choice. Even if the Indemnifying Party assumes the defense of the Indemnified Party with acceptable counsel, the Indemnifying Party, at its sole option, may participate in the defense, at its own expense, with counsel of its own choice without relieving the Indemnifying Party of any of its obligations hereunder.

Section 13.5. Limitation of Liability.

(a) Notwithstanding anything to the contrary in this Agreement, in no event shall a Party be liable to the other Party for an amount in excess of the Maximum Liability unless and to the extent such liability is the result of (A) fraud, willful default, willful misconduct, or gross negligence of a Party or that Party’s employees, agents, subcontractors (except that for the purposes of this provision, the Seller and its employees, agents and subcontractors will not be deemed to be employees, agents or subcontractors of the Buyer), (B) a Third Party Claim, (C) a claim of Seller against Buyer for the Buyer’s failure to pay the Service Fees or Purchase Price for any Facility (which amounts shall not be included in calculating Buyer’s Maximum Liability), (D) a claim with respect to injury to or death of any person, (E) the Seller’s abandonment to the extent constituting a repudiation of this Agreement in respect of all or any part of the Facilities, or (F) events or circumstances in respect of which insurance proceeds are available or that would have been available but for a failure by the Seller to maintain, or comply with the terms of, insurance that it is required to obtain and maintain under this Agreement, and any amounts so received will not be included when calculating the Seller’s Maximum Liability. Subject always to the Maximum Liability limitations set forth in the preceding sentence, except for damages or amounts specifically provided for in this Agreement or in connection with the indemnification for damages awarded to a third party under a Third Party Claim, damages hereunder are limited to direct damages, and in no event shall a Party be liable to the other Party, and the Parties hereby waive claims, for (x) indirect, punitive, special or consequential damages or loss of profits; provided, however, that the loss of profits language set forth in this Section 13.5(a) shall not be interpreted to exclude from Indemnifiable Losses any (i) losses arising as a result of the loss or recapture of any ITC or (ii) claim, demand, suit, loss, liability, damage, obligation, payment, cost or expense (including the cost and expense of any action, suit, proceeding, assessment, judgment, settlement or compromise relating thereto and reasonable attorneys’ fees and reasonable disbursements in connection therewith) that would otherwise be included in the definition of Indemnifiable Losses because they result from a reduction in the profits of Buyer or interest, costs or expenses payable by Buyer to the Buyer’s Lenders, and (y) losses or liabilities incurred by the officers, directors, members, managers, partners, shareholders or Affiliates of such Party (unless on behalf of Buyer).

(b) Each Party hereby waives any claim under this ARTICLE XIII irrespective of the legal theory under which it is brought to the extent such claim is covered by the insurance of the claiming Party.

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Section 13.6. Liquidated Damages; Estoppel. The Parties acknowledge and agree that it would be impracticable or impossible to determine with precision the amount of damages that would or may be incurred by Buyer as a result of the Portfolio’s failure to satisfy the Quarterly Capacity Warranty. It is therefore understood and agreed by the Parties that: (a) Buyer may be damaged by Seller’s failure to satisfy Quarterly Capacity Warranty; (b) it would be impractical or impossible to fix the actual damages to Buyer resulting therefrom; and (c) any cash payments of a Quarterly Capacity Warranty Payment and any Refund Values payable to Buyer under Section 5.4(c) this Agreement for failure to meet such obligations are in the nature of liquidated damages, and not a penalty, and are fair and reasonable estimate of compensation for the losses that Buyer may reasonably be anticipated to incur by such failure. Seller hereby (i) waives any argument that its failure to comply with its obligations set forth in Section 5.4 would not cause Buyer irreparable harm, (ii) agrees that it shall be estopped from arguing the invalidity, or otherwise questioning the reasonableness, of the liquidated damages provided for herein, and (iii) agrees that it will consent to the entry of judgment ordering payment of such liquidated damages in any court of competent jurisdiction. Seller and Buyer each agree that Buyer shall be under no obligation to submit any dispute regarding the payment of any Refund Value when due to the dispute resolution mechanism set forth in Section 14.5, but may rather immediately pursue whatever rights it has available under this Agreement, at law or in equity in accordance with Section 14.6 herein.

Section 13.7. Survival. The Parties’ respective rights and obligations under this ARTICLE XIII shall survive any total or partial termination of this Agreement.

ARTICLE XIV.

MISCELLANEOUS PROVISIONS

Section 14.1. Amendment and Modification. This Agreement may be amended, modified or supplemented only by written agreement of Buyer and Seller.

Section 14.2. Waiver of Compliance; Consents. Except as otherwise provided in this Agreement, any failure of any of the Parties to comply with any obligation, covenant, agreement or condition herein may be waived by the Party entitled to the benefits thereof only by a written instrument signed by the Party granting such waiver, but any such waiver of such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent failure to comply therewith.

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Section 14.3. Notices. All notices, provisions of Documentation, reports, certifications, or other documentation, and other communications hereunder shall be in writing and shall be deemed given when received if delivered personally or by facsimile transmission with completed transmission acknowledgment or by electronic mail, or when delivered if mailed by overnight delivery via a nationally recognized courier or registered or certified first class mail (return receipt requested), postage prepaid, to the recipient Party at its below address (or at such other address or facsimile number for a Party as shall be specified by like notice; provided, however, that notices of a change of address shall be effective only upon receipt thereof):

To Seller:	Bloom Energy Corporation
	1299 Orleans Drive
	Sunnyvale, CA 94089-1137
	Attention: [***]
	Telephone: [***]
	Fax: [***]
	Email: [***]
To Buyer:	2015 ESA Project Company, LLC
	1252 Orleans Drive
	Sunnyvale, CA 94089-1137
	Attention: [***]
	Telephone: [***]
	Fax: [***]
	Email: [***]
	With a copy to:
	2015 ESA Project Company, LLC
	c/o Constellation NewEnergy, Inc.
	100 Constellation Way
	Suite 1000
	Baltimore, MD 21202
	Attention: [***]
	with a copy to:
	Constellation NewEnergy, Inc.
	4 Houston Center
	1331 Lamar Street
	Houston, TX 77010
	Attn: [***]
	with a copy to:
	Exelon Business Services Company, LLC
	10 South Dearborn St., 49th
	Floor Chicago, IL 60603
	Attn: [***]

Section 14.4. Assignment; Subcontractors. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns (including by operation of law), but neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any Party, whether by operation of law or otherwise, without the prior written consent of the other Party, provided that

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Buyer may (a) collaterally assign its rights under this Agreement to Buyer’s Lenders or any other party providing debt or equity financing to it, and (b) assign its indemnification rights to PPA Customers as set forth in Section 13.3(c), in each case without the consent of Seller. Notwithstanding the foregoing sentence, (x) Seller shall be entitled to assign its right, title and interest in and to this Agreement to an Affiliate under common ownership with Seller with the prior consent of Buyer, and (y) Seller shall be entitled to subcontract any of its obligations under this Agreement without consent, provided that such assignment or subcontracting shall not excuse Seller from the obligation to competently perform any subcontracted obligations or any of its other obligations under the Agreement.

Section 14.5. Dispute Resolution; Governing Law.

(a) Except as provided in Section 13.6, in the event a dispute, controversy or claim arises hereunder, including any claim whether in contract, tort (including negligence), strict product liability or otherwise, the aggrieved Party will promptly provide written notification of the dispute to the other Party within ten (10) days after such dispute arises. Thereafter, a meeting shall be held promptly between the Parties, attended by representatives of the Parties with decision-making authority regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute. If the Parties are not successful in resolving a dispute within twenty-one (21) days of such meeting, then, subject to the limitations on remedies set forth in Section 12.3 and Section 12.4 and ARTICLE XIII, either Party may pursue whatever rights it has available under this Agreement, at law or in equity in accordance with Section 14.6 herein.

(b) In the event of any dispute arising out of or relating to this Agreement, each Party hereby consents to service of process made to the addressees set forth in Section 14.3 herein either by overnight delivery by a nationally recognized courier or by certified first class mail, return receipt requested, and hereby acknowledges that service by such means shall constitute valid and lawful service of process against the Party being served.

(c) Each Party hereby agrees that, in the event of any dispute arising out of or relating to this Agreement, it will not oppose the joinder of operator to such action or proceeding.

Section 14.6. Governing Law, Jurisdiction, Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW OR OTHER PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING TO ANY SUCH DISPUTE AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO.

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Section 14.7. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signatures delivered by facsimile (or portable document format) will be considered original signatures, and each Party shall thereafter promptly deliver original signatures to the other Party.

Section 14.8. Interpretation. The article, section and schedule headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the Parties and shall not in any way affect the meaning or interpretation of this Agreement.

Section 14.9. Entire Agreement. The Transaction Documents and the exhibits, schedules, documents, certificates and instruments referred to therein, embody the entire agreement and understanding of the Parties in respect of the transactions contemplated by this Agreement.

(a) Each Party acknowledges that, in agreeing to enter into this Agreement, it has not relied on any representation, warranty, collateral contract or other assurance (except those repeated in this Agreement and any other agreement entered into on the date of this Agreement between the Parties) made by or on behalf of any other Party at any time before the signature of this Agreement. Each Party waives all rights and remedies which, but for this clause (a), might otherwise be available to it in respect of any such representation, warranty, collateral contract or other assurance.

Section 14.10. Construction of Agreement. The terms and provisions of this Agreement represent the results of negotiations between Buyer and Seller, each of which has been represented by counsel of its own choosing, and neither of which has acted under duress or compulsion, whether legal, economic or otherwise. Accordingly, the terms and provisions of this Agreement shall be interpreted and construed in accordance with their usual and customary meanings, and Buyer and Seller hereby waive the application in connection with the interpretation and construction of this Agreement of any rule of law to the effect that ambiguous or conflicting terms or provisions contained in this Agreement shall be interpreted or construed against the Party whose attorney prepared the executed draft or any earlier draft of this Agreement.

Section 14.11. Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party.

Section 14.12. Further Assurances. Each Party agrees to execute and deliver such additional documents and instruments and to perform such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions, and conditions of this Agreement and the transactions contemplated by this Agreement.

53

Section 14.13. Independent Contractors. The Parties acknowledge that, save as expressly set out in this Agreement to the contrary, each Party is entering into this Agreement as an independent contractor and nothing in this Agreement shall be interpreted or applied so as to make the relationship of any of the Parties that of partners, joint ventures or anything other than independent contractors.

Section 14.14. Limitation on Export. Buyer agrees that it will not export, re-export, resell, ship or divert directly or indirectly any Facility or any part thereof in any form or technical data or Software furnished hereunder to any country prohibited by the United States Government or any other Governmental Authority, or for which an export license or other Governmental Approval is required, without first obtaining such license or approval.

Section 14.15. Time of Essence. Time is of the essence with respect to all matters contained in this Agreement.

Section 14.16. No Rights in Third Parties. Except as otherwise specified herein, (a) nothing in this Agreement nor any action taken hereunder shall be construed to create any duty, liability or standard of care to any Person that is not a Party, (b) no person that is not a Party shall have any rights or interest, direct or indirect, in this Agreement or the services to be provided hereunder and (c) this Agreement is intended solely for the benefit of the Parties, and the Parties expressly disclaim any intent to create any rights in any third party as a third-party beneficiary to this Agreement or the services to be provided hereunder.

[Remainder of page intentionally left blank]

54

IN WITNESS WHEREOF, Buyer and Seller have caused this Amended and Restated Purchase, Use and Maintenance Agreement to be signed by their respective duly authorized officers as of the Agreement Date.

BUYER:		SELLER:
2015 ESA PROJECT COMPANY, LLC,		BLOOM ENERGY CORPORATION,
a Delaware limited liability company		a Delaware corporation
By:	/s/ William Brockenborough	By:	/s/ Randy Furr
Name:	William Brockenborough	Name:	Randy Furr
Title:	Vice President	Title:	Chief Financial Officer

[Signature Page to Amended and Restated Purchase, Use and Maintenance Agreement]

Annex A

Minimum Power Product Example Calculation

Sample Quarterly Minimum Power Example

Calculation

Assumptions
Number of active Systems	46
Nameplate capacity	200		kW
Quarterly Capacity Warranty	80	%
Quarterly Minimum Power Product Analysis
Minimum Power Product	7,360		kW

Sample Annual Minimum Power Product Example Calculation

Assumptions
Number of active Systems	46
Nameplate capacity	200		kW
Quarterly Capacity Warranty	95	%
Quarterly Minimum Power Product Analysis
Minimum Power Product	8,740		kW

Annex B

Insurance

Insurance. At all times during the Term, without cost to Buyer, Seller shall maintain in force and effect the following insurance, which insurance shall not be subject to cancellation, termination or other material adverse changes unless the insurer delivers to Buyer written notice of the cancellation, termination or change at least thirty (30) days in advance of the effective date of the cancellation, termination or material adverse change or if notice from the insurer to the Buyer of material adverse change is not available on commercially reasonable terms then the Seller shall provide the Buyer with such notice as soon as reasonably possible after becoming aware of such change:

(a) Worker’s Compensation Insurance as required by the laws of the state in which Buyer’s facilities are located;

(b) Employer’s liability insurance with limits at policy inception not less than One Million Dollars ($1,000,000);

(c) Commercial General Liability Insurance, including bodily injury and property damage liability (arising from premises, operations, contractual liability endorsements, products liability, or completed operations) with limits not less than Two Million Dollars ($2,000,000) at policy inception;

(d) If there is exposure, automobile liability insurance in accordance with prudent industry practice with a limit of not less than $1,000,000 per claim; and

(e) Umbrella liability insurance acting in excess of underlying employer’s liability, commercial general liability and automobile liability policies with limits not less than Fifteen Million Dollars ($15,000,000), except that any subcontractors shall be required to maintain such insurance with limits of not less than Three Million Dollars ($3,000,000).

Seller shall cause Buyer to be included as additional insured to all insurance policies required in accordance with the provisions of this Agreement except for worker’s compensation. The required insurance must be written as a primary policy not contributing to or in excess of any policies carried by the Seller, and each must contain a waiver of subrogation, in form and substance reasonably satisfactory to the Buyer, in favor of the Buyer.

The insurances contemplated in this clause are primary. The Parties acknowledge that, if a claim is made under any of the insurances contemplated in this Agreement, it is their intention that the insurer cannot require the Party first to exhaust indemnities referred to in this Agreement before the insurer’s obligation to perform is mature, subject to the insurer’s later pursuing subrogation, in which event any recovery will be credited by such insurer pro tanto in favor of the policyholder. The general liability and umbrella liability insurances required by this agreement shall provide blanket contractual coverage to the full policy limit. Where applicable, each of these insurances will:

(a) be effected with an insurer reasonably acceptable to the Buyer;

(b) not contain any exclusion, endorsement, amendment or alteration, unless first approved by the Buyer (such approval not to be unreasonably withheld or delayed);

(c) contain a waiver of subrogation in favor of the Buyer;

(d) contain deductibles in accordance with prudent industry practice and approved by Buyer acting reasonably; and

(e) include a provision that such insurance is primary insurance with respect to the interests of the Buyer and Seller and that any other insurance maintained by the Buyer is excess and not contributory insurance with the insurances required under this Agreement.

Seller shall provide Buyer with evidence of compliance with these insurance requirements when requested by Buyer from time to time on a reasonable basis.

2

Annex C

Capacity Warranty Claim Example Calculation and Amounts Payable

Sample Quarterly Capacity Warranty Claim Example Calculation

Assumptions
Number of Systems	46
System Capacity	200		kW
Hours/Day	24		Hours
Measurement Period	90		Days
Force Majeure Outage in Period(1)			Hours
PPA Customer Outage in Period(1)			Hours
Legal/Grid Outage in Period(1)			Hours
Average Tolling Rate(3)	$[***]		/kWh
Quarterly Capacity Warranty analysis
Minimum kWh = ((Measurement Period Days * 24 Hours/Day)			kWh
- Force Majeure Hours
- PPA Customer Outage Hours
- Legal/Grid Outage Hours)
* Minimum Power Product (2)
Actual kWh = Actual generation in Period			kWh
Actual Capacity Factor = Actual
kWh/(Minimum kWh/Quarterly Capacity
Warranty Factor) * 100	%
Quarterly Capacity Warranty
Factor	80	%
Actual Capacity Factor			78	%
Minimum kWh	15,897,600				kWh
Actual kWh	15,500,160				kWh
Underperformance (kWh)	397,440				kWh
Quarterly Capacity Warranty Payment	$[***]

(1) As described in the “Minimum kWh” definition above.

(2) As calculated per Annex A herein.

(3) Calculated as set forth in the Average Tolling Rate Example Calculation, below.

[***] Confidential Treatment Requested

Sample One-Year Capacity Warranty Claim Example Calculation

Assumptions
Number of Systems	46
System Capacity	200		kW
Hours/Day	24		Hours
Measurement Period	365		Days
Force Majeure Outage in Period(1)			Hours
PPA Customer Outage in Period(1)			Hours
Legal/Grid Outage in Period(1)			Hours
Average Tolling Rate A(3)	[***]		/kWh
Average Tolling Rate B(4)	[***]		/kWh
One-Year Capacity Warranty analysis
Minimum kWh = ((Measurement Period Days * 24 Hours/Day)			kWh
- Force Majeure Hours
- PPA Customer Outage Hours
- Legal/Grid Outage Hours)
* Minimum Power Product (2)
Actual kWh = Actual generation in Period			kWh
Actual Capacity Factor = Actual             kWh/(Minimum             kWh/One-Year
Capacity
Warranty Factor)
* 100     %
One-Year Capacity Warranty	95	%
Actual Output	90%
Minimum kWh	76,562,400
Actual kWh	72,532,800
Underperformance (kWh)	4,029,600
One-Year Capacity Warranty Payment	[***]

Notes:

(1) As described in the “Minimum kWh” definition above. (2) As calculated per Annex A herein

(3) Average Tolling Rate A, calculated as set forth in the Average Tolling Rate Example Calculation, below, shall be used until Capacity Warranty Claim reaches [***].

(4) Average Tolling Rate B shall at all times equal [***] and shall be used after Capacity Warranty Claim reaches [***].

[***] Confidential Treatment Requested

Average Tolling Rate Example Calculation

Assumptions
Installed Capacity	Tolling Rate
2000kW	[***]
1000kW	[***]
Calculation
Tolling Rate	= ((2000kW)*([***]/kWh) + (1000kW)*($[***]/kWh)) / (2000kW+1000kW) =
	[***]/kWh

* Tolling Rate to reflect (x) the applicable tolling rate in each PPA for the period in which the shortfall in the Quarterly Capacity Warranty occurred, and (y) any state incentive program payments calculated on a dollar-per-kWh ($/kWh) basis accruing to the benefit of the Buyer during such period.

[***]  Confidential Treatment Requested

Annex D

List of PPAs

1. That certain Energy Server Use and License Agreement, dated as of December 19, 2014, by and between Home Depot U.S.A., Inc. and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

2. That certain Master Fuel Cell Power & Services Agreement, dated as of December 19, 2014, by and between Wal-Mart and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

3. That certain Energy System Use Agreement, dated as of February 13, 2015, by and between AT&T Corp. and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

4. That certain Energy Server Use and License Agreement, dated as of March 31, 2015, by and between [***] and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

5. That certain Energy Server Use and License Agreement, dated as of June 24, 2015, by and between [***] and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

[***] Confidential Treatment Requested

Exhibit A

Form of Purchase Order

                

2015 ESA Project Company, LLC		Page 1 of 1
PO Number:	Supplier Details:
Revision:	Bloom Energy
PO Type:	1299 Orleans Drive
PO Status:	Sunnyvale, CA 94089
	United States
Ship-To Address:	Bill-To Address
	1299 Orleans Drive
	Sunnyvale, CA 94089
	United States

Payment Terms		Shipping Terms	Freight terms
Net 30
Creation Date	Buyer	Requestor	Vendor Contact
- -13

					Unit Price	Taxable	Total
Line	Deliver Date		Part Number/Part Description	Quantity	(USD)	(Y/N)	(USD)
1		Ship-To:

	Total PO Amount (Exclusive of Tax)
Note to Supplier:
Bloom Energy Standard Terms and Conditions apply.

Exhibit B

Form of Bill of Sale

BILL OF SALE

This BILL OF SALE, dated as of [             ] [    ], 201            is made by BLOOM ENERGY CORPORATION, a Delaware corporation (“Seller”), to 2015 ESA PROJECT COMPANY, LLC, a Delaware limited liability company (“Buyer”), and is delivered pursuant to the Amended and Restated Purchase, Use and Maintenance Agreement, dated as of June 25, 2015 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “PUMA”), between Seller and Buyer, in connection with the transfer of the assets described on Exhibit A attached hereto (the “Purchased System”).

Seller hereby assigns, conveys, sells, delivers, sets over and transfers to Buyer, for the consideration, and on the terms and conditions, set forth in the PUMA, all of Seller’s rights, title and interest in, under and to the Purchased System, and Buyer hereby accepts such assignment.

This Bill of Sale shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.

This Bill of Sale shall be governed by, and construed in accordance with, the laws of the State of California.

[Signature Page Follows]

IN WITNESS WHEREOF, the parties hereto have caused this Bill of Sale to be signed by their respective duly authorized officers as of the date first written above.

SELLER:

BLOOM ENERGY CORPORATION

By:

Name:

Title:

BUYER:

2015 ESA PROJECT COMPANY, LLC

By:

Name:

Title:

EXHIBIT A to Bill of Sale

Purchased System

Exhibit C

Facilities

Site No.	PPA Customer	Address	City	State	Size (kW)	Price ($/kWh)
1
2
3
4
5
6
7
8
9
Total:

Exhibit D

Service Fees

Calendar Quarters since Commencement of Operations for the applicable Facility	Rate ($/kW)
1 through 4	[***]
5 through 8	[***]
9 through 12	[***]
13 through 16	[***]
17 through 20	[***]
21 through 24	[***]
25 through 28	[***]
29 through 32	[***]
33 through 36	[***]
37 through 40	[***]
41 through 44	[***]
45 through 48	[***]
49 through 52	[***]
53 through 56	[***]
57 through 60	[***]
For Calendar Quarters occurring during a PPA renewal or extension period	[***]

In addition, for each Facility that includes a UPM, Services Fees for such Facility shall be increased by an amount equal to [***] per Calendar Quarter for each such UPM.

[***] Confidential Treatment Requested

Exhibit E

Form of Independent Engineer’s Deposit Milestone Certificate

[Date of Certificate]

To:

1. BLOOM ENERGY CORPORATION

2. 2015 ESA PROJECT COMPANY, LLC

Subject: Independent Engineer’s Deposit Milestone Certificate PPA V Project

Ladies and Gentlemen:

This certificate (“Certificate”) is being delivered to 2015 ESA Project Company, LLC, a Delaware limited liability company (“Buyer”), on behalf of Leidos Engineering, LLC (the “Independent Engineer”) pursuant to Section 2.2(a)(i) of the Amended and Restated Purchase, Use and Maintenance Agreement (as amended, amended and restated, supplemented or otherwise modified from time to time, the “PUMA”), dated as of June 25, 2015, between Buyer and Bloom Energy Corporation, a Delaware corporation (“Seller”). Capitalized terms used, but not defined herein, shall have the meanings ascribed to them in the PUMA.

As of the date of this Certificate:

1) [***];

2) [***]

3) [***].

This Certificate was prepared with the understanding and assumption that the information provided to us in relation to this certificate is true, correct and complete. Our review and observations were performed pursuant to the scope of services under our Amended and Restated Professional Services Agreement, dated as of June 9, 2015 (the “Professional Services Agreement”) with Seller and Credit Agricole Corporate and Investment Bank, and with the degree of skill and diligence normally practiced by professional engineers or consultants performing the same or similar services on like projects.

This Certificate is solely for the information of and assistance to the Buyer and the Buyer’s Lender in conducting and documenting their investigation of the matters in connection with the applicable Bloom System and is not to be used, circulated, quoted, or otherwise referred to within or without the lending group for any other purpose. The Independent Engineer disclaims any obligation to update this Certificate. This Certificate is not intended to, and may not, be relied upon by any party other than the Buyer and Buyer’s Lender.

LEIDOS ENGINEERING, LLC

By:

Name:

Title:

[***] Confidential Treatment Requested

ATTACHMENT A

BLOOM SYSTEMS

Table 1

Facility List

		Unit	Net Capacity
Serial No.	Location of Facility	Model	(kW-AC)

Exhibit F

Form of Seller’s Certificate of Installation

To:

1. 2015 ESA PROJECT COMPANY, LLC (Buyer); and

2. [Buyer’s Lenders].

Copy: Leidos Engineering, LLC (Independent Engineer)

This Certificate is given pursuant to paragraph (e) of the definition of Commencement of Operations in the Amended and Restated Purchase, Use and Maintenance Agreement between the BLOOM ENERGY CORPORATION (Seller) and the Buyer dated June 25, 2015 (as amended, amended and restated, supplemented or otherwise modified from time to time, the PUMA).

Terms defined in the PUMA have the same meaning where used in this Certificate.

This certificate is provided in respect of the Site known as [insert Site where Facility is located] (Site).

The Seller hereby certifies that in respect of the Site:

1. Each Bloom System comprising the Facility has been installed, commissioned and tested in accordance with the Performance Standards and all other requirements of the PUMA; and

2. All BOF and BOF Work necessary for the operation of the Facility has been installed, commissioned and tested in accordance with the Performance Standards and all other requirements of the PUMA.

This Certificate may be relied upon by the Buyer and the Buyer’s Lenders.

Signed for and on behalf of BLOOM ENERGY CORPORATION

By:

Name:

Title:

Exhibit G

Form of Independent Engineer Certification of Commencement of Operations

[Date of Certificate]

To:

1. BLOOM ENERGY CORPORATION

2. 2015 ESA PROJECT COMPANY, LLC

Subject: Independent Engineer’s Commencement of Operations Certificate PPA V Project

Ladies and Gentlemen:

This certificate (“Certificate”) is being delivered to 2015 ESA Project Company, LLC, a Delaware limited liability company (“Buyer”), on behalf of Leidos Engineering, LLC (the “Independent Engineer”) as required by clause (g) of the definition of “Commencement of Operations” in the Amended and Restated Purchase, Use and Maintenance Agreement (as amended, amended and restated, supplemented or otherwise modified from time to time, the “PUMA”), dated as of June 25, 2015, between Buyer and Bloom Energy Corporation, a Delaware corporation (“Seller”). Capitalized terms used, but not defined herein, shall have the meanings ascribed to them in the PUMA.

As of the date of this Certificate, the Independent Engineer is of the opinion that:

1. [***];

2. [***];

3. [***]

4. [***].

This Certificate was prepared with the understanding and assumption that the information provided to us in relation to this certificate is true, correct and complete. Our review and observations were performed pursuant to the scope of services under our Amended and Restated Professional Services Agreement, dated as of June 9, 2015 (the “Professional Services Agreement”) with Seller and Credit Agricole Corporate and Investment Bank, and with the degree of skill and diligence normally practiced by professional engineers or consultants performing the same or similar services on like projects.

This Certificate is solely for the information of and assistance to the Buyer and Buyer’s Lender in conducting and documenting their investigation of the matters in connection with the applicable Bloom System and is not to be used, circulated, quoted, or otherwise referred to within or without the lending group for any other purpose. The Independent Engineer disclaims any obligation to update this Certificate. This Certificate is not intended to, and may not, be relied upon by any party other than the Buyer and Buyer’s Lender.

LEIDOS ENGINEERING, LLC

By:

Name:

Title:

[***] Confidential Treatment Requested

ATTACHMENT A

COMPLETED BLOOM SYSTEMS

Table 1

Facility List and Commencement of Operation (“CO”) Date

		Unit	Net Capacity	Placed In
Serial No.	Location of Facility	Model	(kW-AC)	Service Date

Exhibit H

Form of Independent Engineer’s Change Order Certificate

[Date of Certificate]

To:

1. BLOOM ENERGY CORPORATION

2. 2015 ESA PROJECT COMPANY, LLC

Subject: Independent Engineer’s Change Order Certificate PPA V Project

Ladies and Gentlemen:

This certificate (“Certificate”) is being delivered to 2015 ESA Project Company, LLC, a Delaware limited liability company (“Buyer”), on behalf of Leidos Engineering, LLC (the “Independent Engineer”) pursuant to Section 2.1(c) of the Amended and Restated Purchase, Use and Maintenance Agreement (as amended, amended and restated, supplemented or otherwise modified from time to time, the “PUMA”), dated as of June 25, 2015, between Buyer and Bloom Energy Corporation, a Delaware corporation (“Seller”). Capitalized terms used, but not defined herein, shall have the meanings ascribed to them in the PUMA.

The Independent Engineer previously delivered that certain Independent Engineer’s Deposit Milestone Certificate dated as of , 201 (“Previous Independent Engineer’s Deposit Milestone Certificate”), certifying the satisfaction of the items (a)-(c) of the Deposit Milestone Requirements with respect to each of the Facilities set forth on Table 1 of Attachment A to this Certificate.

Subsequent to the delivery of Previous Independent Engineer’s Deposit Milestone Certificate, Seller has submitted a Change Order to the Buyer, updating the terms of the Purchase Orders regarding certain of the Facilities to which the Previous Independent Engineer’s Deposit Milestone Certificate relates.

As of the date of this Certificate, we are of the opinion and certify that:

1) The Change Order does not alter the aggregate System Capacity of the Facilities to be installed pursuant to the Previous Independent Engineer’s Deposit Milestone Certificate;

2) the Seller has generated a site plan and single-line for the installation of each Facility set forth on Table 2 of Attachment A to this Certificate (each a “Replacement Facility”), which have been accepted by the PPA Customer;

3) the Seller has received at its premises for fabrication all materials required to commence fabrication of all Replacement Facilities to allow for completion of such fabrication in order to achieve Commencement of Operations of each Replacement Facility within ninety (90) days of the date of the Previous Independent Engineer’s Deposit Milestone Certificate, and the Independent Engineer has reviewed and confirmed evidence of such receipt; and

4) all Bloom Systems to be incorporated into such Replacement Facilities are reasonably expected to achieve Commencement of Operations within ninety (90) days of the date of the Previous Independent Engineer’s Milestone Certificate.

This Certificate was prepared with the understanding and assumption that the information provided to us in relation to this certificate is true, correct and complete. Our review and observations were performed pursuant to the scope of services under our Amended and Restated Professional Services Agreement, dated as of June 9, 2015 (the “Professional Services Agreement”) with Seller and Credit Agricole Corporate and Investment Bank, and with the degree of skill and diligence normally practiced by professional engineers or consultants performing the same or similar services on like projects.

This Certificate is solely for the information of and assistance to the Buyer and the Buyer’s Lender in conducting and documenting their investigation of the matters in connection with the applicable Bloom System and is not to be used, circulated, quoted, or otherwise referred to within or without the lending group for any other purpose. The Independent Engineer disclaims any obligation to update this Certificate. This Certificate is not intended to, and may not, be relied upon by any party other than the Buyer and Buyer’s Lender.

LEIDOS ENGINEERING, LLC

By:

Name:

Title:

ATTACHMENT A

BLOOM SYSTEMS

Table 1

Facility List – Removed from Purchase Order(s) by Change Order(s)

		Unit	Net Capacity
Serial No.	Location of Facility	Model	(kW-AC)

Table 2

Facility List – Added to Purchase Order(s) by Change Order(s)

		Unit	Net Capacity
Serial No.	Location of Facility	Model	(kW-AC)

Exhibit I

Form of Seller’s Deposit Milestone Certificate

To:

1. 2015 ESA PROJECT COMPANY, LLC (Buyer); and

2. Crédit Agricole Corporate and Investment Bank, as Administrative Agent

Copy: Leidos Engineering, LLC (Independent Engineer)

This Deposit Milestone Certificate, dated , 201 , is given pursuant to paragraph (c) of the definition of Deposit Milestone Requirements in the Amended and Restated Purchase, Use and Maintenance Agreement between the BLOOM ENERGY CORPORATION (Seller) and the Buyer dated June 25, 2015 (as amended, amended and restated, supplemented or otherwise modified from time to time, the PUMA).

Terms defined in the PUMA have the same meaning where used in this Certificate.

This certificate is provided in respect of the Facilities set forth on Attachment A hereto (the “Facilities”).

The Seller hereby certifies that in respect of the Facilities, Commencement of Operations is expected to occur within ninety (90) days of the date hereof.

This Deposit Milestone Certificate may be relied upon by the Buyer and the Buyer’s Lender.

Signed for and on behalf of BLOOM ENERGY CORPORATION

By:

Name:

Title:

ATTACHMENT A

BLOOM SYSTEMS

Table 1

Facility List

		Unit	Net Capacity
Serial No.	Location of Facility	Model	(kW-AC)

EX-10

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Exhibit 10.32

EQUITY CAPITAL CONTRIBUTION AGREEMENT

by and between

CLEAN TECHNOLOGIES 2015, LLC

and

2015 ESA INVESTCO, LLC

June 25, 2015

ARTICLE ONE DEFINITIONS AND PRINCIPLES OF INTERPRETATION			6
	1.1	Definitions	6
	1.2	Rules of Interpretation	15
ARTICLE TWO EQUITY CAPITAL CONTRIBUTIONS			15
	2.1	Execution Date	15
	2.2	Contributions	16
	2.3	Execution of LLC Agreement	17
ARTICLE THREE REPRESENTATIONS AND WARRANTIES REGARDING THE FACILITY ENTITIES AND EACH FACILITY			18
	3.1	Organization and Good Standing	18
	3.2	Authorization, Execution and Enforceability	18
	3.3	No Violation	19
	3.4	Subsidiaries; Non-Related Liabilities	19
	3.5	Members of the Company; Additional Membership Interests	20
	3.6	Warranty of Title; Personal Property	20
	3.7	Facilities; Governmental Approvals	20
	3.8	Intellectual Property	21
	3.9	Employees	21
	3.10	Brokers	21
	3.11	Consents and Approvals	21
	3.12	Compliance with Applicable Law	21
	3.13	Litigation	21
	3.14	Contracts	21
	3.15	Default	22
	3.16	Environmental Matters	22
	3.17	Casualty Defect	22
	3.18	Real Property	23
	3.19	PUHCA and FPA Status	23
	3.20	Affiliate Transactions	23
	3.21	Information	23
	3.22	Insurance	23
	3.23	State Regulation	23
	3.24	Taxes	24
	3.25	Tax Representations	24
	3.26	Bankruptcy	25
	3.27	Executive Order 13224 and the Patriot Act	25
	3.28	Facility Costs	26
	3.29	Facility Funding Conditions	26
	3.30	Financial Statements	26
ARTICLE FOUR REPRESENTATIONS AND WARRANTIES REGARDING THE BLOOM MEMBER			26
	4.1	Organization and Good Standing	26
	4.2	Authorization, Execution and Enforceability	26
	4.3	No Violation	27
	4.4	Brokers	27
	4.5	Consents and Approvals	27

	4.6	Litigation	27
	4.7	United States Person	27
	4.8	Disqualified Person	27
	4.9	Ownership	27
	4.10	No Options	27
	4.11	Compliance with Law	28
	4.12	Fees	28
ARTICLE FIVE REPRESENTATIONS AND WARRANTIES OF THE INVESTOR			28
	5.1	Organization and Good Standing	28
	5.2	Authorization, Execution and Enforceability	28
	5.3	No Violation	29
	5.4	Consents and Approvals	29
	5.5	Litigation	29
	5.6	Investment Intent; Unregistered Securities	29
	5.7	Accredited Investor	29
	5.8	Brokers	30
	5.9	United States Person	30
	5.10	[Intentionally Left Blank.]	30
	5.11	Disqualified Person	30
	5.12	Related Party	30
	5.13	Compliance with ERISA	30
	5.14	No Other Representations	31
ARTICLE SIX CONDITIONS PRECEDENT			31
	6.1	Execution Date Conditions Precedent	31
	6.2	Funding Date Conditions Precedent	33
ARTICLE SEVEN GENERAL PROVISIONS			36
	7.1	Notices	36
	7.2	Survival of Warranties	37
	7.3	Indemnity	37
	7.4	Limitation on Liability	38
	7.5	Exclusivity	39
	7.6	No Third Party Beneficiaries	39
	7.7	Amendment and Waiver	39
	7.8	Binding Nature; Assignment	39
	7.9	Governing Law	40
	7.10	Jurisdiction; Service of Process	40
	7.11	Counterparts	40
	7.12	Headings	40
	7.13	Severability	40
	7.14	Entire Agreement	40
	7.15	[Reserved]	40
	7.16	WAIVER OF JURY TRIAL	40
	7.17	Confidentiality	41
	7.18	Further Assurances	42

3

LIST OF SCHEDULES AND ANNEXES TO

EQUITY CAPITAL CONTRIBUTION AGREEMENT

SCHEDULES
Schedule 3.4	Outside Assets and Liabilities
Schedule 3.20	Affiliate Transactions
Schedule 3.22	Insurance Requirements
EXHIBITS
Exhibit A	Contribution Amounts
Exhibit B	Base Case Model
Exhibit C	“Knowledge” Persons
Exhibit D	Form of Company LLC Agreement
Exhibit E	Form of Independent Engineer Use of Work Product Agreement
Exhibit F	RESERVED
Exhibit G	RESERVED
Exhibit H	Form of Officer’s Certificate – Section 6.2(j)
Exhibit I	Form of Officer’s Certificate – Section 6.2(n)

EQUITY CAPITAL CONTRIBUTION AGREEMENT

This EQUITY CAPITAL CONTRIBUTION AGREEMENT (the “Agreement”) dated as of June 25, 2015 (the “Execution Date”) entered into by and between Clean Technologies 2015, LLC, a Delaware limited liability company (the “Bloom Member”), on the one hand, and 2015 ESA Investco, LLC, a Delaware limited liability company (together with its permitted successors and assigns, the “Investor”), on the other hand.

PRELIMINARY STATEMENTS:

1. 2015 ESA Project Company, LLC, a Delaware limited liability company (the “Facility Company”), has entered into an Amended and Restated Purchase Use and Maintenance Agreement with Bloom Energy Corporation, a Delaware corporation (“Seller”), dated as of the date hereof (the “PUMA”), pursuant to which the Facility Company will purchase, subject to the terms and conditions set forth therein, on-site fuel cell power generating systems (each a “System”) with an aggregate System Capacity (as defined in the PUMA) of up to 40 MW, to be installed, together with the relevant “BOF” (as defined in the PUMA), on each relevant “Site” (as defined in the PUMA) located in California, Connecticut, New Jersey and New York (each System together with the relevant BOF at a Site, a “Facility”).

2. 2015 ESA HoldCo, LLC, a Delaware limited liability company (the “Company”), wholly-owns the Facility Company.

3. The Investor desires to make certain capital contributions to the Company in exchange for the issuance to the Investor of an equity interest in the Company on the Initial Funding Date and the Bloom Member’s agreements herein to make certain capital contributions to the Company, and the Bloom Member (as the managing member of the Company) and the Facility Company desire that the Investor makes such capital contributions in exchange for an equity interest in the Company, in the manner and subject to the terms and conditions set forth in this Agreement.

4. The Facility Company has obtained financing for the development, construction, installation, testing and start-up of the Facilities pursuant to that Credit Agreement (the “Credit Agreement”), dated as of June 25, 2015, among the Facility Company, Crédit Agricole Corporate and Investment Bank, as administrative agent (the “Administrative Agent”), Wilmington Trust, National Association, as collateral agent (the “Collateral Agent”) and depositary bank (the “Depositary Bank”), Crédit Agricole Corporate and Investment Bank, KeyBank National Association, Manufacturers and Traders Trust Company, Mizuho Bank, Ltd., and Silicon Valley Bank, each as a lender (together with the execution, delivery of the Financing Documents referred to in such Credit Agreement, the “Financing Transaction”).

4. In connection with the Financing Transaction, the Investor, the Facility Company, Wilmington Trust, National Association, as Collateral Agent, and Credit Agricole Corporate and Investment Bank, as Administrative Agent, have entered into the certain Equity Contribution Agreement, dated as of the date hereof (the “ECA”) pursuant to which the Investor commits to make “Equity Contributions” as defined therein (for purposes of this Agreement, “ECA Equity Contributions”) to the Facility Company.

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NOW, THEREFORE, in consideration of the mutual agreements, covenants, representations and warranties set forth herein and intending to be legally bound hereby, the Parties (as defined herein) agree as follows:

ARTICLE ONE

DEFINITIONS AND PRINCIPLES OF INTERPRETATION

1.1 Definitions. The following capitalized terms shall have the respective meanings set forth below:

“Administrator” means Bloom Energy Corporation, or any other Person who may serve as administrator from time to time under the Facility Company ASA or the Company ASA, as applicable.

“Affiliate” means, with respect to any specified Person, any Person directly or indirectly controlling, controlled by or under common control with such Party. The term “control” (including the terms “controlled by” or “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership, by contract, or otherwise. Without limiting the foregoing, any Person shall be deemed to be an Affiliate of any specified Person if such Person owns more than 50% of the voting securities of the specified Person, if the specified Person owns more than 50% of the voting securities of such Person, or if more than 50% of the voting securities of the specified Person and such Person are under common control.

“Agreement” has the meaning set forth in the Preamble hereto.

“Allocable Percentage” with respect to each Party has the meaning given in Section 2.2(c)(i).

“Applicable Law” means any treaty, constitution, law, statute, ordinance, rule, order, decree, regulation or other directive which is legally binding and has been enacted, issued or promulgated by any Governmental Authority.

“Assets” means, with respect to any Person, all right, title and interest of such Person in land, properties, buildings, improvements, fixtures, foundations, assets and rights of any kind, whether tangible or intangible, real, personal or mixed, including contracts, equipment, systems, books and records, proprietary rights, intellectual property, Governmental Approvals, rights under or pursuant to all warranties, representations and guarantees, cash, accounts receivable, deposits and prepaid expenses.

“Bankruptcy” or “Bankrupt” as to any Person means the filing of a petition for relief as to any such Person as debtor or bankrupt under the Bankruptcy Code or like provision of law (except if such petition is contested by such Person and has been dismissed within sixty (60) days); insolvency of such Person as finally determined by a court proceeding; filing by such Person of a petition or application to accomplish the same or for the appointment of a receiver or a trustee for such Person or a substantial part of its assets; commencement of any proceedings

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relating to such Person under any other reorganization, arrangement, insolvency, adjustment of debt or liquidation law of any jurisdiction, whether now in existence or hereinafter in effect, either by such Person or by another, provided that if such proceeding is commenced by another, such Person indicates its approval of such proceeding, consents thereto or acquiesces therein, or such proceeding is contested by such Person and has not been finally dismissed within sixty (60) days.

“Bankruptcy Code” means any and all sections and chapters of Title 11 of the United States Code, as in effect from time to time.

“Base Case Model” means the financial model attached hereto as Exhibit B, as may be revised from time to time pursuant to this Agreement.

“Bloom Entities” means the Bloom Member, the Company, the Facility Company, the Seller and the Administrator.

“Bloom Guarantee” means that certain limited guaranty issued by Seller in favor of the Investor, dated as of the date hereof.

“Bloom Member” has the meaning set forth in the Preamble hereto. “Bloom Member Contribution” means the amount set forth in Exhibit A.

“Business Day” means any day other than a Saturday, a Sunday or any other day on which banks are authorized to be closed in San Francisco or New York City.

“Casualty Defect” means any destruction by fire, explosion or other casualty or any taking, or pending taking, in condemnation or under the right of eminent domain, of a Facility or any portion thereof, that constitutes, or could reasonably be expected to constitute, a Material Adverse Effect with respect to such Facility.

“Class A Member” has the meaning specified in the Company LLC Agreement. “Class A Units” has the meaning specified in the Company LLC Agreement. “Class B Units” has the meaning specified in the Company LLC Agreement. “Code” means the Internal Revenue Code of 1986, as amended.

“Commencement of Operations” has the meaning specified in the PUMA. “Company” has the meaning specified in the Preliminary Statements hereto.

“Company ASA” means the Administrative Services Agreement, dated as of June 25, 2015, by and among the Administrator and the Company.

“Company LLC Agreement” means that certain Amended and Restated Limited Liability Company Agreement of the Company, entered into on or before the initial Funding Date, substantially in the form attached hereto as Exhibit D.

“Continued Funding Conditions” means, with respect to a Facility, (1) an Initial Investor Contribution has occurred, and the Funding Date Conditions Precedent were met at the time of the Funding Date on which such Initial Investor Contribution was made, (2) the applicable

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Milestone Requirements under the PUMA relating to such Funding Date have been met, and (3) with respect to any Facility that has not yet achieved Commencement of Operations, Bloom Member reasonably believes that the Commencement of Operations will occur within thirty (30) days after the Shipment Date with respect to such Facility.

“Credit Agreement” has the meaning set forth in the Preliminary Statements hereto.

“Deposit Invoice” means an invoice for one or more Facilities delivered pursuant to Section 2.2(a)(i) of the PUMA.

“Disqualified Person” means (a) the United States, any state or political subdivision thereof, any possession of the United States, or any agency or instrumentality of any of the foregoing, (b) any organization which is exempt from tax imposed by the Code (including any former tax-exempt organization within the meaning of Code Section 168(h)(2)(E) and any tax-exempt controlled entity within the meaning of Code Section 168(h)(6)(F)(iii) if such entity has not made the election provided in Code Section 168(h)(6)(F)(ii)), (c) any Person who is not a United States Person, (d) any Person ineligible for the ITC in whole or in part pursuant to Code Section 50 and the Treasury regulations thereunder, (e) any Indian tribal government described in Section 7701(a)(40) of the Code, or (f) any partnership or other pass-through entity, any direct or indirect partner (or other holder of an equity or profits interest) of which is an organization or entity described in clauses (a)-(f); provided, however, that any such Person described in clauses (a) – (f) shall not be considered a Disqualified Person to the extent that (i) the exception under Code Section 168(h)(1)(D) applies with respect to the income from the Facility Company for that Person, (ii) the Person is described within clause (c) of this definition, and the exception under Code Section 168(h)(2)(B)(i) applies with respect to the income from the Facility Company for that Person, or (iii) the Person’s ownership of an Asset for federal income tax purposes, would not result in either the loss, disallowance, reduction or recapture of the ITC or application of Code sections 168(g) or 168(h).

“ECA” has the meaning set forth in the Preliminary Statements hereto.

“ECA Equity Contributions” has the meaning set forth in the Preliminary Statements hereto.

“Electronic Data Room” means the electronic dataroom known as “Project Bloom PPA” established by the Bloom Member and made available to the Investor.

“Encumbrance” means any lien (statutory or otherwise), mortgage, deed of trust, claim, option, lease, easement, charge, pledge, security interest, hypothecation, assignment, use restriction or other encumbrance of any kind or nature whatsoever, whether voluntary or involuntary, choate or inchoate (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement).

“Environmental Claim” means any demand, order, suit, action or proceeding before any Governmental Authority or arbitral body, or any claim, in each such case, brought or made by a third party, relating in any way to any Environmental Law or Environmental Permit.

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“Environmental Laws” means all Applicable Laws pertaining to Hazardous Substances, the environment, human health, safety and natural resources to the extent applicable with respect to the property or operation to which application of the term “Environmental Laws” relates.

“Environmental Permits” means all licenses, approvals, consents, permits and other authorizations or registrations required under all Environmental Laws.

“Equity Capital Contributions” means the capital contributions provided to be made pursuant to Article Two.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.

“ERISA Affiliate” means, with respect to any Party or the Company, any Person (whether or not incorporated) which is under common control with such Party or the Company within the meaning of section 4001(a) of ERISA or that is treated as a single employer together with such Party or the Company under section 414 of the Code.

“Execution Date” has the meaning provided in the Preamble hereto.

“Execution Date Conditions Precedent” has the meaning set forth in Section 6.1.

“Executive Order 13224” has the meaning set forth in Section 3.27.

“Exelon” means Exelon Generation Company, LLC, a Pennsylvania limited liability company.

“Facility” has the meaning specified in the Preliminary Statements hereto.

“Facility Company” has the meaning specified in the Preliminary Statements hereto.

“Facility Company ASA” means the Administrative Services Agreement, dated as of June 25, 2015, by and among the Administrator and the Facility Company.

“Facility Company LLC Agreement” means the Amended and Restated Limited Liability Company Agreement of the Facility Company, dated as of the date hereof.

“Facility Costs” means, with respect to a Facility, without duplication, the costs (other than Transaction Expenses) incurred by the Facility Company or the Company in connection with the acquisition, ownership, financing, leasing, occupation, construction, design, equipping, installation, testing, start-up, initial operation, and commissioning of such Facility, to the extent set forth in the Base Case Model, including: (a) all amounts payable to third parties under the Principal Facility Documents, (b) all payments required to be made to the interconnection utility and Governmental Authorities, (c) all out-of-pocket fees and expenses of the Facility Company’s consultants, appraisers and engineers, (d) the interest, fees and expenses owing to the Facility Lenders under the Financing Documents and (e) all out-of-pocket fees and expenses of the Facility Company’s counsel.

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“Facility Entities” means the Company and the Facility Company.

“Facility Lenders” means the lender parties to the Credit Agreement and any trustee or agent acting on behalf of such lender parties.

“Facility Funding Conditions” means, with respect to a Facility, that (1) the Facility has not been Placed in Service, at least in part because (a) the Facility has not been synchronized onto the electric distribution and transmission system of the applicable Transmitting Utility, (b) the critical tests necessary for the proper operation of the Facility have not been completed, (c) the Facility has not commenced regular, continuous, daily operation, and (d) the Facility has generated no revenue, and (2) the Deposit Milestone Requirements under the PUMA have been met.

“FERC” means the Federal Energy Regulatory Commission.

“Financing Documents” means the Credit Agreement, depositary agreement, security agreement, pledge agreement, interparty agreement, and any promissory note or interest rate hedge agreement, and any other material agreement entered into in connection therewith, including without limitation any “Financing Document” as defined in the Credit Agreement.

“Flow of Funds” means, with respect to each Funding Date, the funding memorandum prepared by the Bloom Member with respect to such date, setting forth in detail, all sources and uses of funds to be received and paid on such date (including payment of the Transaction Expenses due on or about such date), including the exact amounts to be paid on such date and the Persons (and the account information related thereto) to whom such amounts are to be paid, which memorandum, in form and substance, shall be reasonably acceptable to the Investor.

[***]

“FPA” means the Federal Power Act, as amended, 16 U.S.C. §§ 791a et seq.

“Funding Date” means, with respect to a Tranche, the date that is the first Business Day on which the satisfaction or waiver of all of the Funding Date Conditions Precedent for such Tranche occurs.

“Funding Date Conditions Precedent” has the meaning given in Section 6.2.

“Funding Date Deadline” means January 31, 2017.

“Funding Date Deadline Capital Adjustment” has the meaning given in Section 2.2(c)(i).

“[***] ESA” has the meaning given in the Facility Company LLC Agreement.

“Governmental Approval” means all permits, licenses, approvals and authorizations of any Governmental Authority.

[***] Confidential Treatment Requested

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“Governmental Authority” means any national, provincial, regional, municipal or local authority, body, agency, ministry, court, judicial or administrative body, Taxing Authority, regulatory authority or other governmental organization having jurisdiction or effective control over any of the Parties or any Facility.

“Government Official” has the meaning set forth in Section 4.11.

“Hazardous Substances” means any hazardous or toxic material, substance or waste, pollutant, contaminant or solid waste as defined under applicable Environmental Laws, including petroleum, petroleum products, asbestos, polychlorinated biphenyls and radioactive materials.

“Indemnified Party” has the meaning set forth in Section 7.3.

“Indemnifying Party” has the meaning set forth in Section 7.3.

“Independent Engineer” means Leidos Engineering, LLC.

“Independent Engineer Report” means the report of the Independent Engineer delivered to the Investor on the Execution Date.

“Initial Investor Contribution” has the meaning set forth in Section 2.2(b)(i).

“Initial Investor Contribution Amount” means, with respect to any Tranche, an amount equal to [***] of the anticipated Purchase Price (as defined in the PUMA) with respect to the Facilities in such Tranche.

“Insurance Consultant” means Moore-McNeil, LLC.

“Insurance Report” means a letter from the Insurance Consultant addressed to Investor and delivered to the Investor on the Execution Date which confirms that the insurance coverages for both the construction and operation periods of the Facility comply with the insurance requirements described in Schedule 3.22.

“Interconnection Agreement” has the meaning set forth in the PUMA.

[***]

“Investment Documents” means this Agreement, the Bloom Guarantee, the PUMA, the Company LLC Agreement, the Facility Company LLC Agreement, the Company ASA, the Facility Company ASA, [***].

“Investor” has the meaning set forth in the Preamble hereto. “Investor Contribution” means the amount set forth on Exhibit A.

“Investor Interest” means the Investor’s Membership Interest in the Company having the rights, preferences and designations provided for such interest in the Company LLC Agreement.

[***] Confidential Treatment Requested

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“ITC” means an investment tax credit pursuant to Code Sections 38(b)(1), 46 and 48(a).

“Knowledge” means (a) as it applies to the Bloom Member, the actual knowledge, after reasonable inquiry, of those individuals listed on Exhibit C, or (b) as to any other Person (other than a natural person), the actual knowledge, after reasonable inquiry, of the officers of such Person having responsibility for and direct involvement in the transactions contemplated by this Agreement and (c) in respect of any Person who is a natural Person, the actual knowledge, after reasonable inquiry, of such Person.

“LLC Agreements” means, collectively, the Company LLC Agreement and the Facility Company LLC Agreement.

“Material Adverse Effect” means, for any Person or Facility, as applicable, any material adverse effect on the business, earnings, Assets, results of operations or financial condition of such Person or Facility, as applicable, taken as a whole or, with respect to such Person, on its ability to perform its obligations under this Agreement, any other Investment Document, any Financing Document or any Principal Facility Document.

“Membership Interest” means, for a limited liability company, the membership interest of a member in such company including, without limitation, its right to a share of the profits, losses, deductions and credits of the company and its right to a distributive share of the Assets of the company in accordance with the provisions of such company’s operating agreement.

“Mitigation Agreement” means that certain Mitigation Agreement by and between Exelon and Seller, dated as of the date hereof.

“Multiemployer Plan” means, with respect to a Party, a “multiemployer plan” (as such term is defined in section 4001(a)(3) of ERISA), which is, or within the immediately preceding six years was, contributed to by such Party or any of its ERISA Affiliates.

“MW” means megawatt.

“Party” means one of the parties to this Agreement, its successors and permitted assigns.

“Patriot Act” has the meaning set forth in Section 3.27.

“Permitted Encumbrances” means (a) liens, security interests, mortgages, hypothecations, encumbrances or other restrictions on title or property interest that are released or otherwise terminated at or prior to the date of delivery of the encumbered assets to the Site; (b) obligations or duties to any Governmental Authority arising in the ordinary course of business (including under licenses and permits held by the Facility Company and under all applicable laws, rules, regulations and orders of any Governmental Authority); (c) obligations or duties under easements, leases or other property rights; (d) liens in favor of the Facility Lenders; (e) liens for taxes not yet due or that are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP; (f) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, employees’, contractors’, operators’ or other similar liens or encumbrances securing the payment of expenses not yet due and payable

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that were incurred in the ordinary course of business of the Facility Company or for amounts being contested in good faith and by appropriate proceedings; (g) encumbrances created pursuant to the Investment Documents; (h) all other Encumbrances that are incurred in the ordinary course of business of the Facility Company, are not incurred for borrowed money, and do not have a Material Adverse Effect on either the use of any material Assets of the Facility Company or the value of any such Assets; (i) easements, rights-of-way, restrictions, reservations and other similar encumbrances and exceptions to title existing or incurred in the ordinary course of business that, in the aggregate, do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the Facility Company; (j) Encumbrances (including purchase options) created pursuant to the Power Purchase Agreements; (k) trade contracts or other obligations of a like nature incurred in the ordinary course of business of the Facility Company; (l) liens arising out of judgments or awards so long as an appeal or proceeding for review is being prosecuted in good faith and for the payment of which adequate reserves in accordance with GAAP or bonds or other security have been provided or which are fully covered by insurance; (m) liens of record and zoning and other land use restrictions that do not impair the value or intended use of a Facility; (n) restrictions on transfer of membership interests provided for in any Investment Document or under any applicable federal, state or foreign securities law and (o) any other liens agreed to in writing by the parties.

“Person” means any individual, partnership, joint venture, company, corporation, limited liability company, limited duration company, limited life company, association, trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.

“Placed in Service” has the meaning set forth in the PUMA.

“Plan” means, with respect to any Party, an “employee benefit plan” (as defined in section 3(3) of ERISA) subject to Title I of ERISA (other than a Multiemployer Plan) that is or, within the immediately preceding six years, has been established or maintained, or to which contributions are or, within the immediately preceding six years, have been made or required to be made, by such Party or any of its ERISA Affiliates or with respect to which such Party or any of its ERISA Affiliates may have any liability.

“Power Purchase Agreement” means each Power Purchase Agreement, Energy System Use Agreement or similar agreement pursuant to which the Facility Company sells the output of the Systems.

“PPA Customers” means each party to a Power Purchase Agreement that is not the Facility Company.

“Principal Facility Documents” means the Power Purchase Agreements, the Site Leases, the PUMA, the Company ASA, the Facility Company ASA and the Facility Company LLC Agreement. Reference to any Principal Facility Document shall include all appendices, annexes, exhibits, riders and schedules thereto.

“Prohibited Payment” has the meaning set forth in Section 4.11.

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“PUHCA” means the Public Utility Holding Company Act of 2005. “PUMA” has the meaning set forth in the Preliminary Statements.

“PUMA Invoice” means an invoice for one or more Facilities delivered pursuant to Section 2.2(a) of the PUMA.

“Seller” has the meaning set forth in the Preamble hereto.

“Site” has the meaning set forth in the Preliminary Statements hereto.

“Site Leases” means each agreement between Facility Company and a PPA Customer regarding the lease, license, or similar contractual arrangement providing Facility Company with the right of access to, and use of, a Site for the purposes of performing Facility Company’s obligations pursuant to the applicable Power Purchase Agreement. If Facility Company’s right of access to, and use of, a Site is contained within a Power Purchase Agreement, then the term “Site Lease”, with respect to such Site, shall mean the provisions for access to, and use of, that Site contained in such Power Purchase Agreement.

“System” has the meaning set forth in the Preliminary Statements hereto. “Tax Information” has the meaning set forth in Section 7.17(b).

“Tax Return” means any return, report, information return, attachment, declaration, election, claim for refund or other document (including any schedule or related or supporting information) filed or supplied or required to be filed or supplied to any Taxing Authority with respect to Taxes including amendments thereto.

“Taxes” or “Tax” means all taxes, charges, fees, levies, duties, tariffs, imposts, penalties or other assessments imposed by any Governmental Authority or other Taxing Authority, including, but not limited to, income, excise, ad valorem, real or personal property, sales, use transfer, capital stock, franchise, payroll, withholding, social security, gross receipts, license, stamp, occupation, wage, employment, workers’ compensation or other taxes, including any interest, penalties or additions attributable thereto, that are owed or were paid by the Facility Company or with respect to the Facility Company’s Assets or operations.

“Taxing Authority” means the agency or department of the Governmental Authority responsible for the administration and collection of Taxes.

“Title IV Plan” means, with respect to any Party, a Plan subject to Title IV of ERISA to which the Party or any of its ERISA Affiliates is, or within the immediately preceding six years was, an “employer” as defined in section 3(35) of ERISA.

“Tranche” means one or more Facilities, collectively, for which a Bloom Member Contribution and/or an Investor Contribution is requested.

“Transaction” has the meaning provided in Section 7.17(a).

“Transaction Expenses” means, to the extent set forth in the Flow of Funds, the following: (i) the documented, reasonable fees (including legal fees), expenses and

14

disbursements of the Facility Lenders, the Company, the Facility Company and the Bloom Member; and (ii) amounts to be funded into any accounts of the Facility Company, including amounts required to be funded into any reserve accounts in accordance with the Financing Documents, in each case as set forth in the Base Case Model. For the avoidance of doubt, Transaction Expenses shall not include any Facility Costs.

“Transmitting Utility” means, with respect to a Facility, the local electric utility company in whose territory the Facility is located.

“Treasury” means the United States Department of the Treasury.

“Underfunded Plan” has the meaning set forth in Section 5.13(b).

“United States Person” means a “United States person” as defined in Code Section 7701(a)(30).

1.2 Rules of Interpretation.

In this Agreement:

(a) The singular shall include the plural and the masculine shall include the feminine and neuter as the context requires.

(b) Unless otherwise expressly specified, references to “Articles,” “Exhibits,” “Schedules,” or “Sections” shall be to articles, exhibits, schedules or sections of this Agreement.

(c) Unless otherwise expressly specified, any agreement, contract or document defined or referred to herein (including in any exhibit or schedule hereto) shall mean such agreement, contract or document as the same may be amended, amended and restated, supplemented or otherwise modified from time to time in accordance with such agreement, contract, or document, or this Agreement or (once executed and delivered by the signatories thereto) the LLC Agreements, as applicable.

(d) References to “days” shall mean calendar days, unless otherwise indicated.

(e) The words “herein,” “hereof” and “hereunder” shall refer to this Agreement as a whole and not to any particular section or subsection of this Agreement; the words “include,” “includes” or “including” shall mean “including, but not limited to.”

ARTICLE TWO

EQUITY CAPITAL CONTRIBUTIONS

2.1 Execution Date. The execution and delivery of this Agreement on the Execution Date by the Investor and the Bloom Member signifies the satisfaction of, or waiver by, the Investor and the Bloom Member, as applicable, of the Execution Date Conditions Precedent. For the avoidance of doubt, neither the Investor nor the Bloom Member shall be required to make any capital contributions pursuant to Section 2.2 on the Execution Date, unless a Funding Date occurs on the Execution Date.

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2.2 Contributions.

(a) On the Execution Date, the Bloom Member shall make a contribution to the Company in an amount equal to [***], which amount shall be used to pay Transaction Expenses and Facility Costs due on or about the Execution Date.

(b) On each Funding Date occurring on or prior to the Funding Date Deadline (provided that there shall be no more than one Funding Date in each calendar month, unless otherwise agreed in writing by the Bloom Member and the Investor):

(i) the Investor shall contribute to the Company (or directly to the Facility Company as contemplated under the ECA, at Investor’s election) an amount equal to the Initial Investor Contribution Amount (the “Initial Investor Contribution”) for each Deposit Invoice for the applicable Tranche that is due and payable as of such Funding Date, if any;

(ii) thereafter the Bloom Member shall contribute (or shall have already contributed) to the Company an amount equal to the lesser of (A) the remaining amount of all Facility Costs for the applicable Tranche due and payable as of such Funding Date following the application of Section 2.2(b)(i), minus the proceeds of any loan being advanced with respect to such Tranche pursuant to the Credit Agreement and (B) the Bloom Member Contribution minus any previous contributions made by the Bloom Member pursuant to Section 2.2(a) with respect to Transaction Expenses or pursuant to this Section 2.2(b), whether for the Tranche subject to such funding or with respect to any other Tranche; and

(iii) thereafter, in the event that the amount to be funded pursuant to Section 2.2(b)(i) and Section 2.2(b)(ii) is insufficient to pay all Facility Costs for such Tranche, the Investor shall contribute to the Company (or directly to the Facility Company as contemplated under the ECA, at Investor’s election) an amount equal to the lesser of (A) the remaining amount of all Facility Costs for the applicable Tranche due and payable as of such Funding Date following the application of Section 2.2(b)(i) and Section 2.2(b)(ii), minus the proceeds of any loans being advanced with respect to such Tranche pursuant to the Credit Agreement and (B) the Investor Contribution minus any previous contributions made by the Investor pursuant to this Section 2.2, whether for the Tranche subject to such funding or with respect to any other Tranche.

(c) Notwithstanding anything in Section 2.2(b) to the contrary,

(i) if by the Funding Date Deadline, the aggregate amount of (A) capital contributions made by the Bloom Member (including pursuant to Section 2.2(a) and Section 2.2(b)(ii)), less (B) any distributions from the Company to the Bloom Member pursuant to Section 5.1(b)(ii) of the Company LLC Agreement, is not equal to [***] percent [***] of the aggregate contributions made by both the Bloom Member and the Investor

[***] Confidential Treatment Requested

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with respect to all Facility Costs for all Tranches (including without limitation any Initial Investor Contribution), then, on such Funding Date Deadline, the Parties shall perform a true-up (the “Funding Date Deadline Capital Adjustment”) so that the deemed capital contributions of the Bloom Member (less any such distributions from the Company) equal [***] of the aggregate capital contributions and the deemed capital contributions of the Investor equal [***] of the aggregate capital contributions (with respect to each Party, the “Allocable Percentage”). To carry out the Funding Date Deadline Capital Adjustment, the Party who has contributed less than its Allocable Percentage shall contribute an additional amount such that, after (1) giving effect to such additional contribution by such Party, (2) distributing such amount to the other Party and (3) deeming such distribution to the other Party to have correspondingly reduced the aggregate contributions of such other Party to the Company, the percentage of the aggregate contributions made by the Bloom Member and the Investor shall equal the Allocable Percentages. Any positive difference between (x) the contributions previously made to the Company by a Party hereunder (or to the Facility Company under the ECA, in the case of the Investor) and (y) such Party’s Allocable Percentage shall be distributed to such Party on such Funding Date Deadline; and

(ii) for the avoidance of doubt, the Investor shall not be required to make any contributions pursuant to Section 2.2(b) or 2.2(c) to the extent of cost overruns related to the Facility that were not included in Facility Costs set forth in the Base Case Model.

(d) Bloom Member shall provide written notice to the Investor no less than ten (10) days prior to any anticipated Placed in Service date for a Facility with respect to which the Investor has not yet contributed the Initial Investor Contribution Amount (or made a payment of such amount directly to the Facility Company as contemplated under the ECA), and after the delivery of such notice shall not cause such Facility to be Placed in Service until the date following the date on which the Investor has contributed the Initial Investor Contribution Amount.

(e) Notwithstanding anything else herein to the contrary, it is understood and agreed by Bloom and Investor that any ECA Equity Contribution made by the Investor pursuant to Section 2.1(c) of the ECA shall be deemed a contribution by the Investor pursuant to Section 2.2(b) hereof and shall be credited toward the Investor Contribution hereunder as if made to the Company directly.

2.3 Execution of LLC Agreement. On the initial Funding Date, each of the Investor and the Bloom Member shall execute and deliver the Company LLC Agreement and, simultaneously with the making of the capital contributions pursuant to Section 2.2, the Investor and Bloom Member shall cause the Company to, issue Class A Units to the Investor and issue Class B Units to the Bloom Member, in each case in accordance with the terms of the Company LLC Agreement.

2.5 Use of Funding Date Proceeds. On each Funding Date, the contributions made to the Company by the Bloom Member and the Investor pursuant to Section 2.2, together with any loans being made on such Funding Date pursuant to the Credit Agreement, shall be allocated as follows (as provided for in greater detail in the Flow of Funds):

(a) First, to pay, for the benefit of the Facility Company, any PUMA Invoices submitted on or prior to such date and any other applicable Facility Costs that are payable on such date for the relevant Tranche;

[***] Confidential Treatment Requested

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(b) Second, to contribute to the Facility Company amounts required to be contributed to the Facility Company pursuant to the Equity Contribution Agreement (as defined in the Credit Agreement);

(c) Third, to pay any Transaction Expenses not otherwise paid pursuant to Section 2.4(b) that are payable on such date; and

(d) Fourth, to the extent applicable as set forth in Section 2.2(c)(i), on the Funding Date Deadline, any distribution due in connection with the Funding Date Deadline Capital Adjustment shall be distributed by the Company to the appropriate Party.

26 Final List of Facilities. No later than the Funding Date Deadline, the Bloom Member shall provide to the Investor a list of all Facilities that have been funded by the Investor.

ARTICLE THREE

REPRESENTATIONS AND WARRANTIES REGARDING THE FACILITY ENTITIES AND EACH FACILITY

The Bloom Member represents and warrants to the Investor as follows on each Funding Date; provided, that the representations and warranties made on any Funding Date shall expressly apply only to the Facilities that are being funded on such Funding Date:

3.1 Organization and Good Standing. Each Facility Entity is a limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, with full limited liability company power and authority to carry on its business as such business is now conducted and as proposed to be conducted in the Investment Documents, Financing Documents and Principal Facility Documents. The Seller is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, with full corporate power and authority to carry on its business as such business is now conducted and as proposed to be conducted in the Investment Documents, Financing Documents and Principal Facility Documents. Seller and each Facility Entity is duly qualified to transact business and is in good standing in each jurisdiction in which the failure to so qualify would have a Material Adverse Effect on Seller or such Facility Entity. The Bloom Member has previously delivered to the Investor true, correct and complete copies of the Facility Company’s organizational documents, with all material amendments thereto, in effect as of the date thereof, and, except as otherwise delivered to the Investor, there have been no material changes, amendments, modification or terminations of such organizational documents.

3.2 Authorization, Execution and Enforceability. Each Facility Entity has full limited liability company power and authority to execute and deliver each Investment Document, each Financing Document and each Principal Facility Document to which it is a party and to consummate the transactions contemplated thereunder. Seller has full corporate power and authority to execute and deliver each Investment Document, each Financing Document and each

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Principal Facility Document to which it is a party and to consummate the transactions contemplated thereunder. The execution and delivery by Seller and each Facility Entity of each Investment Document, each Financing Document and Principal Facility Document to which it is a party and the consummation by Seller or such Facility Entity of the transactions contemplated thereunder, have been duly authorized by all necessary limited liability company action required on the part of such Facility Entity or corporate action required on the part of Seller. Each Investment Document, Financing Document and Principal Facility Document to which Seller or such Facility Entity is a party has been duly executed and delivered by Seller or such Facility Entity. Each Investment Document, Financing Document and Principal Facility Document to which Seller or such Facility Entity is a party constitutes the valid and binding obligation of Seller or such Facility Entity, enforceable against Seller or such Facility Entity in accordance with its terms, except as such enforcement may be limited by (i) bankruptcy, insolvency or similar laws affecting creditors’ rights generally or (ii) general principles of equity, whether considered in a proceeding in equity or at law.

3.3 No Violation. The execution, delivery and performance by Seller and each Facility Entity, as applicable, of this Agreement and each Investment Document, Financing Document and Principal Facility Document to which it is a party and the consummation of the transactions contemplated hereunder and thereunder, do not and will not: (a) violate, or conflict with, in any material respect, any provision of the certificate of formation or operating agreement of Seller or such Facility Entity; (b) violate any material provision or material requirement of Applicable Law applicable to Seller or such Facility Entity; (c) violate in any material respect, result in a material breach of, constitute (with due notice or lapse of time or both) a material default or cause any material penalty or right of termination to arise or accrue under, any Investment Document, Financing Document or Principal Facility Document to which Seller or such Facility Entity is a party; (d) result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, lease or sublease agreement to which Seller or any Facility Entity is bound; (e) violate any judgment, decree or order of any court or arbiter to which Seller or any Facility Entity is a party or by which Seller or any Facility Entity is bound; or (f) result in the creation or imposition of any Encumbrance on the Assets of Seller or any Facility Entity other than Permitted Encumbrances upon any of the Assets of Seller or such Facility Entity or the suspension, revocation, forfeiture, or nonrenewal of any material permit or license applicable to Seller or such Facility Entity.

3.4 Subsidiaries; Non-Related Liabilities. The Company directly owns 100% of the Membership Interests in the Facility Company free and clear of all Encumbrances other than Permitted Encumbrances of the type described in clauses (d) and (n) of such term’s definition. The Company has no, and has never had, any Assets or any liabilities which do not arise from or otherwise relate to the ownership or operation of the Facility Company or the ownership or operation of the Facilities. Except as set forth on Schedule 3.4 hereof, the Facility Company has no, and has never had, any Assets or any liabilities that do not arise from or otherwise relate to the ownership or operation of the Facilities. The Facility Company has no, and has never had any, subsidiaries and has never owned or controlled, directly or indirectly, any interest in any other Person. The Company has no, and has never had any, subsidiaries and has never owned or controlled, directly or indirectly, any interest in any other Person other than the Facility Company.

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3.5 Members of the Company; Additional Membership Interests. Immediately prior to the execution and delivery of this Agreement and the Company LLC Agreement, the Bloom Member is the sole member of the Company and there have never been any other members or owners of the Company. Upon execution and delivery of the Company LLC Agreement, the Bloom Member and the Investor shall hold the respective membership interests in the Company as set forth in the Company LLC Agreement and said interests shall constitute the entire membership interests in the Company. Other than as set forth in this Agreement, the Financing Documents, the Power Purchase Agreements and the Company LLC Agreement, none of the Facility Entities or the Bloom Member have any contract, arrangement or commitment to issue or sell any of its membership interests or any interest in the Company, the Facility Company or the Facilities or any securities or obligations convertible into or exchangeable for, or giving any Person any right to acquire from it, any of its membership interests or any interest in the Company, the Facility Company or the Facilities, and no such securities or obligations are issued or outstanding other than as contemplated by this Agreement or the Company LLC Agreement. Upon the execution and delivery of the Company LLC Agreement and payment to the Company of the Investor Contribution on the first Funding Date, the Class A Units will be validly issued and duly authorized and the Investor will have good title to the Class A Units free and clear of all Encumbrances, other than Permitted Encumbrances of the type described in clause (n) of such term’s definition.

3.6 Warranty of Title; Personal Property. The Facility Company is the sole owner of each of the Facilities that has been delivered to a Site and the Facility Company has good and valid title to all of the Facility Company’s Assets free and clear of all Encumbrances except Permitted Encumbrances. All of the Bloom Systems (as defined in the PUMA) located in (a) the State of California are considered personal property and not real property under the laws of the State of California, (b) the State of Connecticut are considered personal property and not real property under the laws of the State of Connecticut, (c) the State of New Jersey are considered personal property and not real property under the laws of the State of New Jersey, and (d) the State of New York are considered personal property and not real property under the laws of the State of New York.

3.7 Facilities; Governmental Approvals. As of the date this representation is made or confirmed, the Facility Company owns (or holds enforceable leasehold rights or easements to) all Assets (other than Governmental Approvals or intellectual property rights) necessary for the construction, installation, operation and maintenance of the Facilities and has obtained all Governmental Approvals, and owns, or holds a license with respect to, all intellectual property rights (without any known conflict with, or infringement of, the rights of others), in each case, required as of such date to construct such Facilities, own any installed Facilities and operate and sell electric power from any operating Facilities in compliance with Applicable Law, and to execute and deliver, and perform obligations as of such date under, the Investment Documents and all Financing Documents and Principal Facility Documents to which the Facility Company is a party. Each of the Governmental Approvals obtained as of such date is validly issued, final and in full force and effect and is not subject to any current legal proceeding or to any unsatisfied condition which is reasonably likely to have a Material Adverse Effect on the Facility Company. The Facility Company is in compliance in all material respects with all applicable Governmental Approvals and no Facility Entity has received written notice from a Governmental Authority of an actual or potential violation of any such Governmental Approval that could reasonably be expected to have a Material Adverse Effect on the Facility Company.

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3.8 Intellectual Property. To the Knowledge of the Bloom Member, no product or service marketed or sold (or proposed to be marketed or sold) by either Facility Entity violates or will violate any license or infringes or will infringe any intellectual property rights of any other party. Neither Facility Entity has received any written communications alleging that such Facility Entity has violated, or by conducting its business, would violate any of the patents, trademarks, service marks, tradenames, copyrights, trade secrets, mask works or other proprietary rights or processes of any other Person.

3.9 Employees. None of the Facility Entities has, or has had since the date of its creation, any employees or any Plan or any obligations with respect to any Multiemployer Plan.

3.10 Brokers. No broker, finder, investment banker, engineer or other Person is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated hereunder, based upon arrangements made by or on behalf of any Facility Entity for which any Facility Entity or the Investor will be responsible.

3.11 Consents and Approvals. Each Facility Entity has received all material third party consents which are required as of such date for the consummation and performance of the transactions contemplated hereunder by such Facility Entity.

3.12 Compliance with Applicable Law. Each of the Facility Entities, the business and operations of the Facility Entities and, with respect to the Facility Company, the development and construction of the Facilities are and have been, conducted in all material respects in compliance with all Applicable Law (except that this representation does not apply to Environmental Laws, which are addressed in Section 3.15, and Taxes, which are addressed in Section 3.23).

3.13 Litigation. There is no action, suit, claim, investigation or proceeding (including, but not limited to, any arbitration proceeding) of any nature pending or, to the Knowledge of the Bloom Member, threatened in writing against Seller or any Facility Entity involving, affecting or relating to the transactions contemplated hereunder or any Facility Entity’s ability to complete the transactions contemplated hereunder, questioning the validity of the Investment Documents, the Financing Documents or the Principal Facility Documents, or involving the ownership or operation of any Facility, at law or in equity, or before or by any Governmental Authority or arbitral body. No Facility Entity or Seller is subject to any order, writ, judgment, award, injunction or decree of any Governmental Authority or arbitral body involving, affecting or relating to the transactions contemplated hereunder or its ability to complete the transactions contemplated hereunder or questioning the validity of the Investment Documents, the Financing Documents or the Principal Facility Documents.

3.14 Contracts. The Facility Company is a party to all material contracts that are necessary for it to be a party to as of such date for the ownership, construction, installation, financing and operation of the Facilities. Each such contract is in full force and effect and constitutes a valid and binding obligation of the applicable Facility Entity, enforceable against

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such Facility Entity in accordance with its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency or similar laws affecting creditors’ rights generally or (ii) general principles of equity, whether considered in a proceeding in equity or at law. There are no material disputes or legal proceedings between Seller or any Facility Entity and any counterparty to any Financing Document and Principal Facility Document. No Facility Entity nor Seller (x) owes any indemnity payment to any counterparty to any Financing Document or Principal Facility Document with respect to any Facility, or (y) has any Knowledge of any event, act, circumstance or condition which constitutes, or, with the passage of time could reasonably be expected to constitute, an event of force majeure under any Financing Document or Principal Facility Document. The consummation of the transactions contemplated by the Investment Documents would not give any party to any Financing Document or Principal Facility Document the right to terminate or alter the terms of such contract or a right to claim damages thereunder.

3.15 Default. None of the Facility Entities, Seller nor, to the Knowledge of the Bloom Member, any of the other parties to the Financing Documents or Principal Facility Documents in effect with respect to the Facilities is in default under, nor has any event occurred and is continuing which, with notice or the lapse of time or both, would result in a default under, any of such Financing Documents, Principal Facility Documents or Governmental Approvals, whether caused by a Facility Entity, Seller, or any other party to any of the Principal Facility Documents or any Governmental Approval, which, in each such case could reasonably be expected to result in a Material Adverse Effect.

3.16 Environmental Matters.

(a) The Facility Company has not performed or suffered any act, nor has the Facility Company failed to take any action, which could reasonably be expected to give rise to, or has otherwise incurred, liability to any person (governmental or not) under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq., or any other Environmental Laws, nor has it received written notice of any such liability or any claim therefor.

(b) To the Knowledge of the Bloom Member, except as set forth in Schedule 3.16, there are no existing conditions at any Facility that, individually or collectively, could reasonably be expected to give rise to any liability of the Investor, the Company or the Facility Company under any applicable Environmental Law or any applicable standard of conduct under any common law doctrine, including negligence, nuisance or trespass, personal injury or property damage related to or arising out of the presence, Release or exposure to Hazardous Substances.

(c) To the Knowledge of the Bloom Member, there are no existing facts or circumstances that, individually or collectively, could reasonably be expected to result in the revocation of the Environmental Permits, if any, or an order prohibiting, terminating or modifying any Facility’s operations, which, in each such case, could be reasonably expected to have a Material Adverse Effect.

3.17 Casualty Defect. There is no Casualty Defect in existence with respect to any Facility.

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3.18 Real Property. The real property referred to in each PPA and any Site Lease is all the real property that is necessary for the construction, installation, operation and maintenance of the Facilities other than those real property interests that can be reasonably expected to be available on commercially reasonable terms as and to the extent required.

3.19 PUHCA and FPA Status. The Company has obtained an exemption or waiver of the FERC’s regulations under PUHCA regarding accounting, record-retention and reporting requirements of 18 C.F.R. §§ 366.21, 366.22, and 366.23. The Facility Company has not sold and will not sell electric energy, unless such sales are (1) exclusively to retail users; or (2) pursuant to a State-approved net metering program. The Facility Company has obtained authorization from FERC to make sales at wholesale of electric energy, capacity and ancillary services at market-based rates pursuant to Section 205 of the FPA. The Facility Company is subject to and in compliance with all applicable regulatory requirements, with applicable exemptions and waivers of utility regulation typically extended by FERC to an entity that sells electric energy, capacity and ancillary services at wholesale at market-based rates.

3.20 Affiliate Transactions. Except as listed on Schedule 3.20, there are no existing contracts between any Facility Entity, on the one hand, and any affiliate of the Bloom Member, on the other hand. Each contract, arrangement or agreement between the Bloom Member or its Affiliates and the Facility Company or the Company is on arms’ length terms and conditions, and any compensation provided in such contract, arrangement or agreement is commercially reasonable in relation to the value of the services provided.

3.21 Information. All of the factual information posted by, or on behalf of, the Bloom Member to the Electronic Data Room, taken as a whole, was accurate and complete (or, where appropriate, estimated in good faith) in all material respects when posted to the Electronic Data Room and none of such information, as of the date such information was posted, taken as a whole, contained an untrue statement of a material fact or omitted to state any material fact which was necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that no representation or warranty is made with regard to projections or other forward-looking statements provided by or on behalf of the Facility Entities, the Bloom Member or any of their respective Affiliates (including the Base Case Model and the assumptions therein).

3.22 Insurance. The insurance policies maintained by the Facility Entities and for the Facilities meet the requirements of Schedule 3.22 and such insurance policies are in full force and effect.

3.23 State Regulation. The Facility Company is not and will not be subject to regulation as a “public utility” or an “electrical corporation” as such terms are defined, respectively, in sections 216 and 218 of the California Public Utilities Code. The Facility Company will not be subject to regulation as a “public service company” or an “electric company” as such terms are defined, respectively, in section 16-1 of the Connecticut General Statutes. The Facility Company will not be subject to regulation as an “electric corporation” as such term is defined in section 2 of the New York Public Service Law. The Facility Company will not be subject to regulation as a “public utility” in relation to public utility law of New Jersey.

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3.24 Taxes. The Facility Company is, and has been, a “disregarded entity” for federal and other applicable income tax purposes. Immediately prior to the initial Funding Date only, the Company is, and has been, a “disregarded entity” for federal and other applicable income tax purposes. None of the Facility Entities is a corporation or has ever been a corporation. None of the Facility Entities, the Bloom Member or any Affiliate thereof has filed Internal Revenue Service Form 8832 (or any alternative or successor form) to elect to have, or taken any other action which would result in, any Facility Entity being classified as a corporation for federal income tax purposes under Treasury Regulation Section 301.7701-3. All material Tax Returns of the Facility Entities that were required to be filed have been timely and properly filed. All such Tax Returns were true, correct and complete in all material respects as they refer to any Facility Entity or the operations or Assets or any Facility Entity. All material Taxes (whether or not shown on any Tax Return) attributable to the operations or Assets of any Facility Entity, or for which the Facility Entity may be liable, that are due and payable have been timely and properly paid (taking into account all valid extensions). No Facility Entity has any material Taxes which are currently due and payable. No Facility Entity has requested or had requested on its behalf or agreed to any extensions of time within which to file any waivers or comparable consents of the statute of limitation with respect to Taxes and is not currently the subject of any audit, assessment, claim, examination, or administrative or court proceeding with respect to Taxes and none have been threatened in writing. No Facility Entity has received any written notice or inquiry from any jurisdiction where Tax Returns have not been filed that Tax Returns may be required. No Facility Entity has any powers of attorney relating to Taxes in effect. No Facility Entity has or has had any tax sharing, tax allocation, tax indemnity, or similar agreement in effect with respect to Taxes.

3.25 Tax Representations.

(a) No Facility Entity has leased any part of any Facility to a Disqualified Person or has taken any other action that has resulted in any Facility becoming “tax-exempt use property” within the meaning of Code Section 168(h).

(b) Each System is a fuel cell power plant that generates at least 0.5 kilowatts of electricity using an electrochemical process and has an electricity-only generation efficiency greater than 30 percent. Each System will function independently of each other Systems to generate electricity for transmission and sale to a PPA Customer and has all the necessary components to convert a fuel into electricity using electrochemical means.

(c) As of the Funding Date on which an Investor Contribution is being made with respect to a Facility, no federal, state, or local tax credit (including the ITC) has been claimed with respect to any property that is part of the applicable Tranche. No application has been submitted, for a grant provided under Section 1603 of the American Recovery and Reinvestment Tax Act of 2009, as amended by the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010, with respect to any property that is part of any Facility.

(d) No private letter ruling has been, obtained for the transactions contemplated hereunder from the IRS.

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(e) Prior to the later of (i) the Funding Date on which the Initial Investor Contribution is being made with respect to a Facility, and (ii) the date such Facility is purchased by the Facility Company, no System or BOF that is part of such Facility will be originally Placed in Service and, specifically, clauses (3) and (4) of the definition of the term “Placed in Service” will not have been met with respect to any System or BOF that is part of such Facility.

(f) No Facility is comprised of any property that (i) is “used predominately outside of the United States” within the meaning of Code Section 168(g), (ii) is imported property of the kind described in Code Section 168(g)(6), (iii) is “tax-exempt use property” within the meaning of Code Section 168(h), or (iv) is property described in Code Section 50(b).

(g) Other than de minimis property, material or parts, each Facility consists of property, materials or parts not used by any person prior to having been first placed in as state of readiness and availability for their specific design function as part of the Facility.

(h) No portion of the basis of the Facility is attributable to “qualified rehabilitation expenditures” within the meaning of Section 47(c)(2)(A) of the Code.

(i) No grants (for purposes of this paragraph, “grants” shall not include any credits, benefits, emissions reductions, offsets or allowances, howsoever entitled, attributable to the generation from the Facilities, and its respective avoided emission of pollutants) have been provided by the United States, a state, a political subdivision of a state, or any other Governmental Authority for use in constructing or financing any Facility or with respect to which the Bloom Member, the Company, the Facility Company, or any Facility is the beneficiary. No proceeds of any issue of state or local government obligations have been used to provide financing for any Facility the interest on which is exempt from tax under Code Section 103. No subsidized energy financing (within the meaning of Code Section 45(b)(3)) has been provided, directly or indirectly, under a federal, state, or local program provided in connection with any Facility.

(j) Neither the Bloom Member nor any Facility Entity is related to any PPA Customer within the meaning of Code Section 267 or Code Section 707.

3.26 Bankruptcy. No event of Bankruptcy has occurred with respect to any Facility Entity.

3.27 Executive Order 13224 and the Patriot Act. None of the Bloom Entities or any person or entity that holds any direct or indirect interest in the Facility Company, Company, the Bloom Member, or any Facility (other than the Investor or any Affiliate thereof), or is in any way affiliated with or will benefit from any of the above, (i) is described in, covered by, or specially designated pursuant to or affiliated with any person or entity described in, covered by, or specially designated pursuant to “Executive Order 13224 Blocking Terrorist Property and a Summary of the Terrorism Sanctions Regulations (Title 31, Part 595 of the U.S. Code of Federal Regulations), Terrorism List Governments Sanctions Regulations (Title 31, Part 596 of the U.S. Code of Federal Regulations), and Foreign Terrorist Organizations Sanctions Regulations (Title 31, Part 597 of U.S. Code of Federal Regulations)” (“Executive Order 13224”), or any other list or designation promulgated by the United States of America or any department or agency thereof

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of persons or entities transactions with which are blocked or prohibited by any statute, regulation or governmental order and (ii) is, or is reasonably likely to become, a person or entity with which any individual or entity is restricted from doing business under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56, as amended from time to time (the “Patriot Act”) or Executive Order 13224, and any regulations promulgated pursuant thereto.

3.28 Facility Costs. As of each Funding Date, each PUMA Invoice delivered as of such date for the applicable Tranche is true, correct and complete, and the Facility Company will have paid, or caused to be paid, such PUMA Invoice.

3.29 Facility Funding Conditions. For each Facility, as of the Funding Date on which the Initial Investor Contribution is or was made with respect to such Facility, the Facility Funding Conditions were true and correct for such Facility, and as of each subsequent Funding Date the Continued Funding Conditions were true and correct for such Facility.

3.30 Financial Statements. The unaudited balance sheet and income statements of the Facility Company delivered pursuant to Sections 6.2(k) has been prepared in accordance with generally accepted accounting principles applied on a consistent basis (except that such balance sheet may not contain all footnotes required by such accounting principles) and presents fairly in all material respects the financial position of the Facility Company as of the date of such balance sheet.

ARTICLE FOUR

REPRESENTATIONS AND WARRANTIES REGARDING THE BLOOM MEMBER

The Bloom Member represents and warrants to the Investor as follows on each Funding Date under this Agreement:

4.1 Organization and Good Standing. The Bloom Member is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware, with full limited liability company power and authority to carry on its business as such business is now conducted and as proposed to be conducted in the Investment Documents, Financing Documents and Principal Facility Documents.

4.2 Authorization, Execution and Enforceability. The Bloom Member has full limited liability company power and authority to execute and deliver this Agreement and each other Investment Document to which it is a party and to consummate the transactions contemplated hereunder and thereunder. The execution and delivery by it of this Agreement and each other Investment Document to which it is a party and the consummation by it of the transactions contemplated hereunder and thereunder, have been duly authorized by all necessary limited liability company action required on its part. This Agreement and each other Investment Document to which it is a party has been duly executed and delivered by it. This Agreement constitutes the valid and binding obligation of it, enforceable against it in accordance with its respective terms, except as such enforcement may be limited by (i) bankruptcy, insolvency or similar laws affecting creditors’ rights generally or (ii) general principles of equity, whether considered in a proceeding in equity or at law.

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4.3 No Violation. The execution, delivery and performance of this Agreement and each other Investment Document to which the Bloom Member is a party, the consummation of the transactions contemplated hereunder and thereunder do not or will not: (a) violate or conflict with any provision of its certificate of formation or operating agreement in any material respect; (b) violate any material provision or material requirement of any Applicable Law applicable to the Bloom Member; (c) violate in any material respect, result in a material breach of, constitute (with due notice or lapse of time or both) a material default or cause any material penalty or right of termination to arise or accrue under, any Financing Document or Principal Facility Document; or (d) result in the creation or imposition of any Encumbrance on its Assets other than a Permitted Encumbrance.

4.4 Brokers. No broker, finder, investment banker, engineer or other Person is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated hereunder, based upon arrangements made by or on behalf of the Bloom Member for which any Facility Entity or the Investor will be responsible.

4.5 Consents and Approvals. The Bloom Member has received all material third party consents which are required as of such date for the consummation and performance of the transactions contemplated hereunder by the Bloom Member.

4.6 Litigation. There is no claim, action, suit, investigation or proceeding (including, but not limited to, any arbitration proceeding) of any nature, at law or in equity, pending or, to the Knowledge of the Bloom Member, threatened in writing by or against the Bloom Member, the Bloom Member’s directors, officers, employees, agents, any of the Bloom Member’s Affiliates involving, affecting or relating to the transactions contemplated hereunder or the Bloom Member’s ability to consummate the transactions contemplated hereunder or involving the ownership or operation of the Facilities, at law or at equity, or before or by any Governmental Authority or arbitral body. The Bloom Member is not subject to any order, writ, judgment, award, injunction or decree of any Governmental Authority or arbitral body involving, affecting or relating to the transactions contemplated hereunder or the Bloom Member’s ability to consummate the transactions contemplated hereunder.

4.7 United States Person. The Bloom Member is a United States person not subject to withholding under Section 1446 of the Code.

4.8 Disqualified Person. The Bloom Member is not a Disqualified Person.

4.9 Ownership. Immediately prior to the initial Funding Date, the Bloom Member owns 100% of the Membership Interests in the Company, free and clear of all Encumbrances other than Permitted Encumbrances.

4.10 No Options. Except as set forth herein and in the other Investment Documents and Financing Documents, there are no outstanding options, warrants or other rights (including conversion or preemptive rights, preferential rights to purchase and rights of first refusal) obligating the Bloom Member to transfer any rights, interests or properties to any party relating to any applicable Facility Entity or any Facility.

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4.11 Compliance with Law. The Bloom Member, in respect of itself, warrants that in performing its obligations pursuant to this Agreement and the other Investment Documents to which it is a party, that the Bloom Member, its officers, directors, employees and agents have not and will not, directly or indirectly, offer, give, make, promise, pay or authorize the offering, giving, making, promising or payment of any Prohibited Payment (as defined below) to any officer or employee of any government, or any department, agency or instrumentality thereof, any public international organization, any person acting in an official capacity on behalf of such government, any candidate for or appointee to a political or government office, or any political party (each a “Government Official”). As used herein the term “Prohibited Payment” means any offer, gift, payment, promise to pay, or authorization of the payment of any money or anything of value, directly or indirectly, to a Government Official, including for the use or benefit of any other person or entity, to the extent that one knows or has reasonable grounds for believing that all or a portion of the money or thing of value which was given or is to be given to such other person or entity, will be paid, offered, promised or given or authorized to be paid by such other person or entity, directly or indirectly, to a Government Official, for the purpose of either influencing any act or decision of the Government Official in his official capacity; (ii) inducing the Government Official to do or omit to do any act in violation of his lawful duty; (iii) securing any improper advantage; or (iv) inducing the Government Official to use his influence with such government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality, in order to assist in obtaining or retaining business or in directing business to any party. The Bloom Member further affirms that it shall promptly report to the other parties hereto any Prohibited Payment of which it obtains knowledge with respect to the services performed under this Agreement.

4.12 Fees. All fees to be paid to the Bloom Member or its Affiliates, as well as the other terms and conditions, under the PUMA, the Company ASA and the Facility Company ASA are commercially reasonable in relation to the services actually performed under such agreements.

ARTICLE FIVE

REPRESENTATIONS AND WARRANTIES OF THE INVESTOR

The Investor hereby represents and warrants to the Bloom Member as follows on each Funding Date:

5.1 Organization and Good Standing. It is duly organized, validly existing and in good standing under the laws of the state of its formation, with full power and authority to carry on its business as such business is now conducted.

5.2 Authorization, Execution and Enforceability. It has full limited liability company power and authority to execute and deliver this Agreement and each other Investment Document to which it is a party, to make its respective Equity Capital Contributions and to consummate the transactions contemplated hereunder and thereunder. The execution and delivery by it of this Agreement and each other Investment Document to which it is a party and the consummation by it of the transactions contemplated hereunder and thereunder, have been duly authorized by all necessary limited liability company action. This Agreement and each other Investment Document to which it is a party has been duly executed and delivered by it. This Agreement and

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each other Investment Document to which it is a party constitute its valid and binding obligation, enforceable against it in accordance with its respective terms except as such terms may be limited by (i) bankruptcy, insolvency or similar laws affecting creditors’ rights generally or (ii) general principles of equity, whether considered in a proceeding in equity or at law.

5.3 No Violation. The execution, delivery and performance by it of this Agreement and each other Investment Document to which it is a party and the consummation by it of the transactions contemplated hereunder or thereunder do not and will not: (a) violate or conflict with any provision of its organizational documents in any material respect; (b) violate any material provision or material requirement of any Applicable Law applicable to it; or (c) violate in any material respect, result in a material breach of, constitute (with due notice or lapse of time or both) a material default, or result in an Encumbrance being created or imposed upon any of the properties or Assets of such Investor, under any material contract to which such Investor is a party or by which its property is bound, which violation, breach, default or Encumbrance would adversely affect the ability of such Investor to perform its obligations under this Agreement and the other Investment Documents to which it is a party.

5.4 Consents and Approvals. There is no requirement applicable to it to make any filing with, or to obtain the consent or approval of any Person as a condition to the consummation of the transactions contemplated hereunder, other than those that have already been obtained. All third-party consent requirements which are a condition to the execution, delivery and performance by such Investor of this Agreement and the other Investment Documents to which it is a party and the consummation of the transactions contemplated hereunder have been satisfied.

5.5 Litigation. There is no claim, action, suit, investigation or proceeding (including, but not limited to, any arbitration proceeding) of any nature, at law or in equity, pending or, to its Knowledge, threatened in writing by or against it, its directors, officers, employees, agents of it, or any of its Affiliates involving, affecting or relating to the transactions contemplated hereunder or its ability to complete the transactions contemplated hereunder. It is not subject to any order, writ, judgment, award, injunction or decree of any Governmental Authority or arbitral body involving, affecting or relating to the transactions contemplated hereunder or its ability to complete the transactions contemplated hereunder.

5.6 Investment Intent; Unregistered Securities. The Investor Interests to be held by it will be acquired for investment for its own account, not with a view to the distribution of any part thereof and, without in any way affecting its right to dispose of its Membership Interest in the Company as permitted by the Company LLC Agreement, it has no present intention of selling, granting any participation in, or otherwise distributing the same. It understands that the Membership Interests in the Company are characterized as a “restricted security” under federal and state securities laws inasmuch as such securities are being acquired in a transaction not involving a public offering and that under such laws and applicable regulations such securities may not be resold in the absence of an effective registration statement covering such Membership Interests or an exemption from registration under federal and state securities laws.

5.7 Accredited Investor. It is an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act of 1933, as amended. It has

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such knowledge and experience in financial and business matters that it is capable of independently evaluating the risks and merits of purchasing the Membership Interests in the Company; it has independently evaluated the risks and merits of purchasing the Membership Interests in the Company and has independently determined that the Membership Interests in the Company is a suitable investment for it; and it has sufficient financial resources to bear the loss of its entire investment in the Membership Interests in the Company. It has received all the information it considers necessary or appropriate for deciding whether to make its respective Equity Capital Contributions and acquire its respective Membership Interests in the Company and further represents that it has had an opportunity to ask questions and receive answers from the Bloom Member regarding the terms and conditions of the offering of the Membership Interests in the Company and the business, properties, prospects and financial condition of the Facility Entities.

5.8 Brokers. No broker, finder, investment banker, engineer or other Person is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated hereunder, based upon arrangements made by or on behalf of it for which the Bloom Member or each Facility Entity will be responsible.

5.9 United States Person. It is a United States person not subject to withholding under Section 1446 of the Code.

5.10 [Intentionally Left Blank.]

5.11 Disqualified Person. The Investor is not a Disqualified Person.

5.12 Related Party. The Investor is not related to any PPA Customer within the meaning of Code Section 267 or Code Section 707

5.13 Compliance with ERISA. The representations set forth this Section 5.13 apply only to an Investor during the time that such Investor is an ERISA Affiliate of the Company.

(a) The Investor and each of its ERISA Affiliates has operated and administered each Title IV Plan (other than any Multiemployer Plan) in compliance in all material respects with all applicable laws. Neither the Investor nor any of its ERISA Affiliates has incurred any material liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans (as defined in section 3 of ERISA) which has not been satisfied, and no event, transaction or condition has occurred or exists that could reasonably be expected to result in the incurrence of any such material liability by the Company, the Investor or any of its ERISA Affiliates, or in the imposition of any material lien on any of the rights, properties or assets of the Company, the Investor or any of its ERISA Affiliate, in either case pursuant to Title I or IV of ERISA or to section 430(k) of the Code or to such penalty or excise tax provisions or to section 4068 of ERISA.

(b) The present value of the aggregate benefit liabilities under all of the ERISA Affiliates’ Underfunded Plans, determined as of the end of each such Underfunded Plan’s most recently ended plan year on the basis of the actuarial assumptions specified for funding purposes in such Underfunded Plan’s most recent actuarial valuation report, did not

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exceed the aggregate current value of the assets of all of such Underfunded Plans, determined by reference to the current value of the assets allocable to each such Underfunded Plan’s benefit liabilities as of the end of such Underfunded Plan’s most recently ended plan year, by an amount that, if required to be paid in an immediate lump-sum payment, could reasonably be expected to result in a Material Adverse Effect. The term “Underfunded Plan” means a Plan (other than a Multiemployer Plan) for which the aggregate benefit liabilities determined as of the end of such Plan’s most recently ended plan year on the basis of actuarial assumptions specified for funding purposes for such Plan in such Plan’s most recent actuarial statement exceeded the aggregate current value of the assets of such Plan, the term “benefit liabilities” has the meaning specified in section 4001 of ERISA and the terms “current value” and “present value” have the meaning specified in section 3 of ERISA.

(c) Neither the Investor nor any of its ERISA Affiliates has incurred any material partial or complete withdrawal liabilities (and is not subject to material contingent withdrawal liabilities) under section 4201 or 4204 of ERISA in respect of Multiemployer Plans.

5.14 No Other Representations. The Investor is not relying on any representations or warranties whatsoever, express, implied, at common law, statutory or otherwise, except for the representations or warranties expressly set out in this Agreement and the other Investment Documents.

ARTICLE SIX

CONDITIONS PRECEDENT

6.1 Execution Date Conditions Precedent. The execution and delivery by the Investor and the Bloom Member of this Agreement on the Execution Date signifies that the following conditions have been satisfied or waived by the Investor and the Bloom Member, as applicable (“Execution Date Conditions Precedent”):

(a) Investor has received fully executed copies of this Agreement, the PUMA, the Company ASA, the Facility Company ASA, the Forbearance Agreement and the Facility Company LLC Agreement, and Exelon has received a fully executed copy of the Mitigation Agreement, each in form and substance reasonably satisfactory to such Investor, and each is in full force and effect;

(b) Investor has received a legal opinion of O’Melveny & Myers LLP, as counsel to the Bloom Member with respect to the enforceability of this Agreement, in form and substance reasonably satisfactory to the Investor;

(c) Investor has received the Insurance Report, in form and substance reasonably satisfactory to it;

(d) Investor has received a tax opinion from McDermott Will & Emery LLP, which opinion shall be in form and substance reasonably satisfactory to the Investor;

(e) Investor has received necessary approval from its internal investment committee, board of directors or other governing body, as applicable, to enter into the

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transactions contemplated hereunder and to make the capital contributions and payments in accordance with Article Two, subject only to the satisfaction or waiver of the conditions set forth in Section 6.2;

(f) Investor has received (i) an incumbency certificate dated as of the Execution Date from the Facility Entities, and the Bloom Member, (ii) a good standing certificate of the Facility Entities, and the Bloom Member, each dated as of a recent date, from the applicable Secretary of State, (iii) resolutions of the board of directors, or other equivalent governing body, of the Facility Entities, and the Bloom Member authorizing and approving the execution of this Agreement, the other Investment Documents and the transactions contemplated hereunder certified by a secretary or an assistant secretary as of the Execution Date, and (iv) formation documents certified by a secretary or an assistant secretary as of the Execution Date, in each case, unless otherwise noted, of the Bloom Member and the Facility Entities as are customary for transactions of this type, each of which shall be reasonably satisfactory to the Investor;

(g) such Investor has received an affidavit of non-foreign status from the Bloom Member dated the Execution Date that complies with Section 1445 of the Code;

(h) the Flow of Funds for the Execution Date shall have been executed and delivered by the Bloom Member to the Investor;

(i) such Investor has received the Base Case Model, in form and substance reasonably satisfactory to it;

(j) Investor has received copies of searches of all financing statements of public record and of judgment, litigation and tax lien records that relate or pertain to the Facilities, the Company and the Facility Company;

(k) Investor has received reasonably satisfactory evidence of the transfer of the membership interests in the Facility Company from the Bloom Member to the Company;

(l) Investor has received fully executed copies of the Financing Documents;

(m) Investor has received the Independent Engineer Report and a letter executed by the Independent Engineer substantially in the form attached at Exhibit E, permitting the Investor to rely on such Independent Engineer Report, if such Independent Engineer Report is not addressed to the Investor, in each case in form and substance reasonably satisfactory to the Investor;

(n) the Bloom Member has received (i) an incumbency certificate dated as of the Execution Date from the Investor, (ii) a good standing certificate of the Investor, each dated as of a recent date, from the applicable Secretary of State, (iii) resolutions of the board of directors, or other equivalent governing body, of the Investor authorizing and approving the execution of this Agreement, the other Investment Documents to which the Investor is a party and the transactions contemplated hereunder certified by a secretary or an assistant secretary as of the Execution Date, and (iv) formation documents certified by a secretary or an assistant

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secretary as of the Execution Date, in each case, unless otherwise noted, of the Investor as are customary for transactions of this type, each of which shall be reasonably satisfactory to the Bloom Member;

(o) the Bloom Member has received a legal opinion of outside or in-house counsel of the Investor with respect to the enforceability of this Agreement, in form and substance reasonably satisfactory to Bloom Member; and

(p) Investor has received a fully executed copy of the Bloom Guarantee, in form and substance reasonably satisfactory to the Investor, which is in full force and effect.

6.2 Funding Date Conditions Precedent. The obligations of the Investor and the Bloom Member to make a contribution on the Funding Date are subject to the satisfaction of or waiver, three (3) Business Days prior to such Funding Date, by the Investor and the Bloom Member, as applicable, of the following conditions with respect to the applicable Tranche to be funded on such Funding Date, except as otherwise set forth below, and which must continue to be satisfied as of the Funding Date (“Funding Date Conditions Precedent”):

(a) Investor has received notice from the Bloom Member six (6) Business Days prior to the Funding Date (which notice includes the number of Facilities to be funded, the kW of the Facilities to be funded, the location of the Facilities to be funded, the estimated date of Commencement of Operations for the Facilities to be funded, the Persons (and the account information with respect thereto) designated to receive the payments set forth in Section 2.2;

(b) with respect to the initial Funding Date, the Investor has received a fully executed copy of the Company LLC Agreement, which may be held in escrow until released by each of the Parties thereto as of the Funding Date;

(c) Investor has received, true, correct and complete copies of all of the insurance certificates from the insurance broker with respect to the insurance policies for the Company, the Facility Company and the applicable Tranche that are described in Schedule 3.22 or are otherwise required under the Financing Documents, or such other evidence reasonably satisfactory to the Investor that such insurance policies are in full force and effect;

(d) Seller and each Facility Entity has received all necessary third party consents, waivers, authorizations and approvals required as of such date in connection with the execution, delivery and performance of this Agreement and the transactions contemplated hereunder;

(e) the Facility Company is not subject to regulation as (i) a “public utility” or an “electrical corporation” as such terms are defined, respectively, in sections 216 and 218 of the California Public Utilities Code, (ii) a “public service company” or an “electric company” as such terms are defined, respectively, in section 16-1 of the Connecticut General Statutes, (iii) an “electric corporation” as such term is defined in section 2 of the New York Public Service Law, or (iv) a “public utility” in relation to public utility law of New Jersey;

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(f) each of the representations and warranties in this Agreement that are applicable to Seller, any Facility Entity or to any Facility being funded on such Funding Date is true and correct in all material respects as of such Funding Date;

(g) no Material Adverse Effect has occurred, or could reasonably be expected to occur based on current facts and circumstances, with respect to Seller, either Facility Entity or the Bloom Member;

(h) the Bloom Member shall have performed in all material respects all obligations, and complied in all material respects with the agreements and covenants, required to be performed by or complied with by it hereunder as of such date, and the Bloom Member has not otherwise breached this Agreement;

(i) Investor has received reasonably satisfactory evidence that the Bloom Member Contribution, if any, required to be made on such date has been made or shall be made contemporaneously with the Investor Contribution on such date;

(j) Investor has received a certificate from the Bloom Member, in the form of Exhibit H-1 hereto, and has received as of the Funding Date a certificate from the Bloom Member in the form of Exhibit H-2 hereto, in each case certifying to the Investor that (i) each of the conditions set forth in Sections 6.2(d)-(h), 6.2(m) and 6.2(t)-(x) has been satisfied, (ii) (1) there have been no amendments to any of the Financing Documents, or (2) there have been amendments to the Financing Documents and the Bloom Member has provided Investor with fully executed copies of such amendments, (iii) all amounts then payable to the Seller pursuant to the PUMA have been paid or shall be paid with the proceeds of the Investor Contribution, the Bloom Member Contribution and the advances pursuant to the Credit Agreement to be made on such date, and (iv) the insurance policies described in Schedule 3.22 of this Agreement remain in full force and effect, and all insurance premiums that are due and payable have been paid in full with no premium overdue;

(k) Investor has received the unaudited balance sheet and income statement of the Facility Company for the latest period for which its books have been closed;

(l) the Flow of Funds for such Funding Date shall have been executed and delivered by the Bloom Member to the Investor;

(m) except as provided by the Financing Documents and except for Permitted Encumbrances, there are no Encumbrances against the Facilities in respect of which such funding is being made;

(n) Investor has received a certificate from the Bloom Member, in the form of Exhibit I-1 hereto, and has received as of the Funding Date a certificate from the Bloom Member in the form of Exhibit I-2 hereto, in each case certifying to the Investor that (i) the Facility Funding Conditions or Continued Funding Conditions, as applicable, have been satisfied with respect to each Facility in the applicable Tranche as of such Funding Date and (ii) the list attached to such certificate setting forth the Facilities included in the applicable Tranche is true, correct and complete, and has received, four (4) Business Days in advance of the Funding Date,

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a copy of any certificates provided by the Independent Engineer to the Facility Company pursuant to the terms of the PUMA in connection with the payments to be made on such Funding Date, provided that any Independent Engineer’s Change Order Certificates (as defined in the PUMA) in connection with the payments to be made on such Funding Date must be received by the Investor six (6) Business Days is advance of the Funding Date;

(o) Investor has received fully executed copies of any amendments to the Financing Documents, if any, in forms previously agreed to by the Bloom Member and the Investor that have been executed as of such date and which have not been previously delivered to the Investor;

(p) Investor has received fully executed copies of each of the Principal Facility Documents in forms previously agreed to by the Bloom Member and the Investor relating to the Facilities being funded on such date;

(q) the ITC has not been repealed or modified in a manner that would materially reduce the amount of ITC available for the Facilities;

(r) [***];

(s) [***];

[***] Confidential Treatment Requested

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(t) Neither Seller nor any of its Affiliates has breached its material obligations under, nor has any event occurred and is continuing which, with notice or the lapse of time or both, would result in an event of default by Seller or its Affiliates under any Financing Documents, Investment Documents, Principal Facility Documents, or the Mitigation Agreement. Seller and its Affiliates have provided all deliverables due and owing from Seller and its Affiliates to Investor and its Affiliates pursuant to the Investment Documents, Principal Facility Documents, and the Mitigation Agreement;

(u) No event of Bankruptcy has occurred with respect to Seller or any Facility Entity;

(v) With respect to all prior Funding Dates, fundings have been made by the Facility Lenders in accordance with the Financing Documents and by the Members in accordance with the Investment Documents;

(w) All Investor Contributions and Bloom Member Contributions made to date have been contributed by the Company to the Facility Company and have been allocated or earmarked to the Facility or Facilities and the Milestone Requirements under the PUMA for which such Contributions were requested; and

(x) With respect to the Systems in each Facility being funded on such Funding Date, (i) none of the Systems has been Placed in Service prior to the funding of the Initial Investor Contribution Amount with respect to such Systems, (ii) none of the Systems was Placed in Service after December 31, 2016, and (iii) each System meets the requirements of Section 48 of the Code including that (A) it is a fuel cell power plant that generates at least 0.5 kilowatts of electricity using an electrochemical process; (B) it has an electricity-only generation efficiency greater than 30 percent; and (C) the ITC with respect to such System is not expected to be limited by Section 48(c)(1)(B), or if the ITC is so limited, such limitation has been accounted for in the Base Case Model. Each such System will function independently of each other System to generate electricity for transmission and sale to a PPA Customer and has all the necessary components to convert a fuel into electricity using electrochemical means.

ARTICLE SEVEN

GENERAL PROVISIONS

7.1 Notices. Any notice or other communication to be given hereunder shall be in writing and shall be delivered by hand (including, without limitation, by express courier against written receipt) or sent by registered prepaid first class mail or by email transmission to the persons or addresses specified below (or such other Person or address as a Party may previously have notified all other Parties in writing for that purpose). A notice or other communication shall be deemed to have been served when delivered by hand at that address or received by email (provided the sender can and does provide evidence of successful transmission), or, if sent by registered prepaid first class mail as aforesaid, on the date delivered. Any notice or other communication received on a day that is not a Business Day or later than 5:00 p.m. on a Business Day shall be deemed to be received on the next Business Day. The names and addresses for the service of notices referred to in this Section 7.1 are:

If to the Bloom Member, to:

Clean Technologies 2015, LLC

c/o Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, CA 94089-1137

Attention: Bill Brockenborough

Telephone: (408) 543-1500

Email: bill.brockenborough@bloomenergy.com

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If to the Investor, to:

2015 ESA Investco, LLC

c/o Constellation NewEnergy, Inc.

100 Constellation Way

Suite 1000

Baltimore, MD 21202

Attn: Gary Fromer

Telephone: (410) 470-1856

Email: gary.fromer@constellation.com

with a copy to:

Exelon Business Services Company, LLC

10 South Dearborn St., 49th Floor

Chicago, IL 60603

Attn: Nadim Kazi

Telephone: (312) 394-7143

Email: nadim.kazi@exeloncorp.com

Any Party may change the address or number to which notices to such Party are to be delivered by providing notice of such change to each other Party in the manner set forth above.

7.2 Survival of Warranties. Unless otherwise set forth in this Agreement, the representations and warranties of each Party contained in or made pursuant to this Agreement shall survive the execution and delivery of this Agreement and each Funding Date and shall in no way be affected by any investigation or knowledge of the subject matter thereof made by or on behalf of each Party. Without limiting the foregoing, the representations set forth in Sections 3.23, 3.24, 3.25, 4.8, and 5.11 shall survive until the expiration of the applicable statute of limitations plus ninety (90) days.

7.3 Indemnity. Without duplication of any indemnity provided pursuant to Article XI of the Company LLC Agreement, each Party (the “Indemnifying Party”) shall indemnify the other Parties and their Affiliates and agents, including accountants, counsel, directors, officers, employees and consultants (the “Indemnified Parties”), against and hold each of them harmless from any and all damage, loss, liability and expense (including reasonable expenses of investigation and reasonable attorneys’ fees and expenses in connection with any proceeding,

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whether by a third party or instituted in order to recover any of the foregoing hereunder), whether or not arising due to third party claims or incurred or suffered by any Indemnified Party, caused by, resulting from, arising out of or relating to (i) any inaccuracy or breach of any representation or warranty made by or on behalf of the Indemnifying Party in this Agreement, and (ii) any failure by the Indemnifying Party to perform or otherwise fulfill any agreement or covenant to be performed by it hereunder or under any of the Principal Facility Documents or Financing Documents; provided that the indemnity obligations set forth in this Section 7.3 shall not apply to an Indemnified Party to the extent that the indemnity claim is attributable to (x) the fraud, gross negligence or willful misconduct of such Indemnified Party or (y) the inaccuracy or breach of any representation or warranty made by or on behalf of such Indemnified Party in this Agreement or (z) the failure of such Indemnifying Party to perform or otherwise fulfill any agreement or covenant to be performed by it hereunder or under any of the Principal Facility Documents or Financing Documents.

7.4 Limitation on Liability.

(a) The amount required to be paid by any Party to indemnify any other Party pursuant to Section 7.3 shall be reduced to the extent of any amounts actually received by such other Party with respect to the amounts covered by such indemnification payment pursuant to (i) this Agreement, (ii) the Bloom Guarantee, (iii) the Company LLC Agreement and (iv) the terms of the insurance policies (if any) obtained and maintained by the Company, the Facility Company, the Investor or the Bloom Member or any Affiliate thereof covering such claim. In the event an Indemnified Party or any of its Affiliates receives proceeds from indemnification under this Agreement, the Bloom Guarantee, the Company LLC Agreement or any insurance policy with respect to an indemnity clam for which it previously received indemnification payments, such Indemnified Party shall promptly pay to the Indemnifying Party such proceeds to the extent such proceeds and the previously paid indemnification payments, in the aggregate, exceed the amount of the applicable indemnity claim.

(b) Amounts paid pursuant to Section 7.3 shall, to the maximum extent permitted under Applicable Law, be treated as an adjustment to the capital contributions of the Members (as defined in the LLC Agreement) (or otherwise as a non-taxable reimbursement, contribution, or return of capital, as the case may be). To the extent any amounts paid pursuant to this Section 7.3 are includible in the recipient’s gross income, as determined by agreement of the parties, or if there is no agreement, by an opinion of a nationally-recognized tax counsel selected jointly by the parties at a “should” level of comfort that such amount is includable as income of the recipient, solely to the extent the tax liability with respect to the inclusion of such payment of amounts in the income of the recipient is greater than the tax liability of the recipient would have been if there had been no breach giving rise to the payment of such amounts, such payment will be grossed-up and paid on an after-tax basis (assuming the then-highest highest marginal federal income tax rate then applicable to corporations). In the event an indemnified party is entitled to claim an item of loss or deduction, credit or other tax benefit with respect to an item that gives rise to the receipt of an indemnity payment, such tax benefit shall be taken into account for purposes of determining the amount of the indemnification payment and, to the extent payment has been made to an indemnified party prior to the period in which such tax benefit was claimed, the indemnified party shall promptly repay the indemnifying party an amount equal to the present value of such loss or deduction, credit or other tax benefit (in each case, assuming then-highest marginal federal income tax rate then applicable to corporations).

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(c) NO PARTY SHALL BE LIABLE (WHETHER IN CONTRACT, TORT, STRICT LIABILITY, EQUITY, OR OTHERWISE) FOR ANY SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, INCLUDING LOST PROFITS AND ANY OTHER DAMAGES WHICH CANNOT BE READILY ASCERTAINED AND QUANTIFIED, FOR ANY BREACH OF A REPRESENTATION OR WARRANTY UNDER THIS AGREEMENT. THE OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT ARE OBLIGATIONS OF THE PARTIES ONLY AND NO RECOURSE SHALL BE AVAILABLE UNDER THIS AGREEMENT AGAINST ANY OFFICER, DIRECTOR, MANAGER, MEMBER, PARTNER, OR AFFILIATE OF ANY PARTY.

7.5 Exclusivity. The Parties hereto agree that, in relation to any breach, default, or nonperformance of any representation, warranty, covenant, or agreement made or entered into by the Bloom Member pursuant to this Agreement, any other Investment Document, the Company ASA, the Facility Company ASA or any certificate, instrument, or document delivered pursuant hereto or thereto or arising out of the transactions contemplated herein or therein, the only relief and remedy available to the other Parties hereto in respect of said breach, default, or nonperformance shall be damages, but only to the extent properly claimable hereunder and as limited pursuant to Section 7.4 or otherwise hereunder.

7.6 No Third Party Beneficiaries. This Agreement is solely for the benefit of the Parties and their respective successors and permitted assigns and this Agreement shall not otherwise be deemed to confer upon or give to any other third party any right, claim, cause of action, or other interest herein.

7.7 Amendment and Waiver. Neither this Agreement nor any term hereof may be changed, amended or terminated orally, but only by written act of each of the Parties (or, in respect of a waiver, the waiving Party or Parties). No failure or delay on the part of a Party hereto in the exercise of any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or of any other right.

7.8 Binding Nature; Assignment. This Agreement shall bind and inure to the benefit of the Parties hereto and their respective successors and legal representatives and permitted assigns. No Party shall assign its rights and obligations under this Agreement, without the prior written consent of the other Parties hereto and any such assignment contrary to the terms hereof shall be null and void and of no force and effect; provided, however, that the Investor may assign its rights and obligations under this Agreement to an Affiliate (“Affiliate Transferee”) without the prior written consent of the other Parties hereto provided that (a) the Investor remains liable for all of its obligations hereunder, (b) the Affiliate Transferee has the same or better credit rating as possessed by the Investor as of the Execution Date or (c) the Affiliate Transferee’s obligations hereunder are guaranteed by an entity that has the same or better credit rating as possessed by the Investor as of the Execution Date. The Parties acknowledge and agree that the Facility Entities will assign certain of their assets to the Facility Lenders as collateral for the obligations of the Facility Company pursuant to the Financing Documents.

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7.9 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS THEREOF (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, WHICH THE PARTIES AGREE SHALL APPLY).

7.10 Jurisdiction; Service of Process. Each of the Parties hereby irrevocably consents to the non-exclusive jurisdiction of the courts of the State of New York located in New York County and of the United States District Court for the Southern District of New York in connection with any suit, action or other proceeding arising out of or relating to this Agreement or the transactions contemplated hereby; agrees to waive any objection to venue in the State and County of New York; and agrees that, to the extent permitted by law, service of process in connection with any such proceeding may be effected by mailing in the same manner provided in Section 7.1 hereof.

7.11 Counterparts. This Agreement may be executed in counterparts, each of which shall be an original, but each of which, when taken together, shall constitute one and the same instrument. Signatures of the Parties hereto transmitted by facsimile or portable document format (PDF) shall be deemed to be their original signatures for all purposes.

7.12 Headings. The section and paragraph headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning and interpretation of this Agreement.

7.13 Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, (provided the substance of the agreement between the Parties is not thereby materially altered) and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by Applicable Law, the Parties hereto hereby waive any provision of law which renders any provision hereof prohibited or unenforceable in any respect.

7.14 Entire Agreement. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior statements or agreements, whether oral or written, among the Parties with respect to such subject matter.

7.15 [Reserved].

7.16 WAIVER OF JURY TRIAL. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING TO A DISPUTE AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO.

40

7.17 Confidentiality.

(a) With respect to each of the Facility Entities, the Investor and their respective Affiliates, except to the extent necessary for the exercise of its rights and remedies and the performance of its obligations under this Agreement, such party will not itself use or intentionally disclose (and will not permit the use or disclosure by any of its Affiliates or its advisors, counsel and public accountants (collectively, “advisors”)), directly or indirectly, any of the Principal Facility Documents or information furnished thereunder, or the Investment Documents or information furnished thereunder (the “Transaction”) and will use all reasonable efforts to have all such information kept confidential (consistent with its own practices) and not used in any way known to such party to be detrimental to any of the others; provided that (i) any such party and its advisors may use, retain and disclose any such information to its special counsel and public accountants or any Governmental Authority, (ii) any such party and its advisors may use, retain and disclose any such information that has been publicly disclosed (other than by such party or any Affiliate thereof or any of its advisors in breach of this Section 7.17(a)) or has rightfully come into the possession of such party or any Affiliate thereof or any of its advisors other than from another party hereto or a Person acting on such other party’s behalf, (iii) to the extent that any such party or any Affiliate thereof or its advisors is required or requested to disclose any such information as a result of any Applicable Law or may have received a subpoena or other written demand under color of legal right for such information, such party or such Affiliate or advisor may disclose such information, but such party shall first, as soon as practicable upon receipt of such demand or request, furnish a copy thereof to the other parties and, if practicable so long as such party shall not be in violation of such subpoena, demand or request or likely to become liable to any penalty or sanctions thereunder, afford the other parties reasonable opportunity, at any other party’s cost and expense, to obtain a protective order or other reasonably satisfactory assurance of confidential treatment for the information required to be disclosed, (iv) any such party and its advisors may disclose any such information to lenders, potential lenders or other Persons providing financing to the Facility Entities or any member in any Facility Entity, if such Persons have agreed to abide by the terms of this Section 7.17(a), (v) any such party and its advisors may disclose any such information and make such filings, as may be required by this Agreement, the other Investment Documents or the Principal Facility Documents, (vi) any such party and its Affiliates and advisors may disclose information relating to the Facilities (but not information relating to a member’s equity investment in any Facility Entity) to lenders, potential lenders or other Persons providing financing to any Person developing or proposing to develop the remaining phases of the Facilities and potential purchasers of Membership Interests in such Person if such Persons have agreed to the terms of this Section 7.17(a) and (vii) any such party which is an insurance company or an Affiliate thereof may disclose such information to the National Association of Insurance Commissioners and any rating agency requiring access to its investment portfolio. Notwithstanding anything herein to the contrary, a Party may disclose information to its Affiliates and other advisors in accordance with this Agreement if such Persons have agreed with the other Parties in writing to the terms of this Section 7.17(a) and, additionally, the Bloom Member and any of its Affiliates (including entities that become Affiliates subsequent to the date hereof) may use any operational data with respect to the Facilities for the purpose of researching, analyzing, designing, improving, developing, manufacturing, installing, modifying or operating other fuel cell-powered electric generating facilities, whether similar to or different from the Facilities.

41

(b) Notwithstanding anything to the contrary, the foregoing obligations shall not apply to the tax treatment or tax structure of the Transaction and each party hereto (and any employee, representative, or agent of any party) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all other materials of any kind (including opinions or other tax analyses) that are provided to any party hereto to the extent relating to such tax treatment and tax structure (all such information that may be so disclosed hereunder is hereinafter referred to as the “Tax Information”). For purposes of this Section 7.17(b), the Tax Information includes only those facts that may be relevant to understanding the purported or claimed U.S. federal income tax treatment or tax structure of the Transaction and, to eliminate any doubt, therefore specifically does not include information that either reveals or standing alone or in the aggregate with other information so disclosed tends of itself to reveal or allow the recipient of the information to ascertain the identity of any of the Facility Entities, any member (or potential member) of the Facility Entities, or any other third parties involved in any of the Transaction or any other potential transactions with any of the foregoing. However, any Tax Information is required to be kept confidential to the extent necessary to comply with any applicable securities laws. This Section 7.17(b) is intended to prevent such an investment in the Facility Entities from being treated as “reportable transaction” as a result of it being a transaction offered to a taxpayer under conditions of confidentiality within the meaning of Code Sections 6011, 6111 and 6112 (or any successor provision) and the Treasury Regulations thereunder (as clarified by Notice 2004-80 and Notice 2005-22) and shall be construed in a manner consistent with such purpose.

7.18 Further Assurances.

(a) Each Party hereto covenants and agrees promptly to execute, deliver, file, or record such agreements, instruments, certificates and other documents and to do and perform such other and further acts and things as any other Party hereto may reasonably request or as may otherwise be necessary or proper to consummate the transactions contemplated hereby and to carry out the provisions of this Agreement.

(b) Each Party hereto covenants and agrees to promptly deliver the information requested by any other Party in order to allow such party to comply with the Patriot Act, including, without limitation, the names, addresses and other information that will allow the requesting Party to identify the other Party in accordance with the requirements of the Patriot Act.

[SIGNATURE PAGE FOLLOWS]

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IN WITNESS WHEREOF, the parties hereto have caused this Equity Capital Contribution Agreement to be duly executed by their respective officers thereunto duly authorized as of the date first set forth above.

[                    ]

By:

Name:

Title:

CLEAN TECHNOLOGIES 2015, LLC

By:

Name:

Title:

43

SCHEDULE 3.4

Outside Assets and Liabilities

Energy Services and License Agreement, dated as of December 17, 2014, between the Company and [***] (as amended, amended and restated, modified or otherwise supplemented from time to time).

Assignment and Assumption Agreement, dated as of December 17, 2014, by and among 2013B ESA Project Company, LLC and the Company (as amended, amended and restated, modified or otherwise supplemented from time to time).

[***] Confidential Treatment Requested

SCHEDULE 3.16

Environmental Conditions

The “South Campus Site” (as defined in the [***] ESA), on which several Systems are to be installed pursuant to the [***] ESA, is known to contain Hazardous Materials in soil, soil gas, and groundwater, which are being monitored and remediated by the owner and former owner of the South Campus Site.

[***] Confidential Treatment Requested

SCHEDULE 3.20

Affiliate Transactions

(terms as defined in this Agreement, unless noted otherwise)

1. PUMA

2. Company ASA

3. Facility Company ASA

4. Facility Company LLC Agreement

SCHEDULE 3.22

Insurance Requirements¹

[Terms used in this Schedule 3.22 that are not defined in this Agreement shall have the meaning assigned to such terms in the Credit Agreement.]

The Borrower shall, without cost to the Secured Parties, obtain and maintain or cause to be obtained and maintained in full force and effect the insurance policies as required in this Schedule.

In each case the policies must be with insurance carriers with a rating of at least A- and a financial size category of at least X by A.M. Best or A by S&P or otherwise reasonably acceptable to the Required Lenders.

The policies specified in Appendix 1 of this Schedule shall be in full force and effect at all times on and after the Closing Date or at such later inception date as is permitted by Appendix 1 to this Schedule until termination of the Credit Documents subject to renewal no more frequently than annually.

At no time shall there be any gap in cover.

The policy limits and cover of the insurances required in this schedule shall be sufficient to satisfy the requirements set forth in the Project Documents, but in no event less than the limits and coverage provisions set forth in Appendix 1 herein. The obligation to verify that the insurances carried by the Borrower meet the requirements of the Project Documents shall rest solely with the Borrower.

The Borrower shall not violate or permit to be violated any condition, provision or requirement of any insurance policy required by this Schedule, and the Borrower shall perform, satisfy and comply with all conditions, provisions and requirements of all insurance policies.

The Borrower hereby waives any and every claim for recovery against the Secured Parties or their directors, officers and employees and agents for any and all loss or damage covered by any insurance policies to be maintained under this Schedule to the extent such loss or damage is recovered under any such policy.

All policies of insurance required to be maintained pursuant to this Schedule, other than cover required by law, shall be endorsed such that if at any time they are cancelled, lapsed, terminated or suspended (by any party including the insuring parties), such cancellation, lapse, termination or suspension shall not become effective until at least 30 days after receipt by the Collateral Agent from such insurer of such cancellation, lapse, termination or suspension, except for non-payment of premium for which the required written notice shall be 10 days. In addition to this requirement, the Borrower shall inform the Administrative Agent and each of the Lenders

¹  [Subject to Insurance Advisor review; Schedule 3.22 based on that attached to the draft insurance Advisor’s report, dated as of June 22, 2015. Please note that the Insurance Advisor Report attaches this Schedule 3.22 in Section 7 of such report and does not replace this Schedule.]

as soon a reasonably possible if it becomes aware of and such cancellation, lapse, termination or suspension or of any reasonable prospect of such and shall further requite its broker to do the same.

All policies of insurance required to be maintained pursuant to this Schedule except workers’ compensation and employer’s liability shall provide:

• Additional Insured status for the Collateral Agent and each of the other [Secured Parties, the Sponsors]² and in the case of liability policies only also their respective affiliates, directors, officers, employees and agents (collectively, the “Additional Insureds”). This requirement shall not apply to any professional indemnity policy.

• Waivers of subrogation from the insurers in favor of the Additional Insureds.

• Policies shall either (a) be non-cancellable except for non-payment of premium with at least 10 days written notice of such to each of the Secured Parties; or (b) have cancellation/non-payment provisions in accordance with the provisions of this Schedule.

• Each Lender, the Administrative Agent or the Collateral Agent, on behalf of the Secured Parties, will have the right but not the obligation to pay premiums on behalf of the Borrower in case of non-payment.

• Policies shall be unaffected by any bankruptcy or foreclosure relating to the Borrower or the Project.

• Insurance shall be primary and not excess to or contributing with any other insurance or self-insurance maintained by the Borrower or the Additional Insureds. However, policies can act in excess of underlying policies and any policies provided by contractors in accordance with the requirements of this Schedule.

• The Borrower shall ensure that no Insurer of a policy required in accordance with the terms of this Schedule shall permit the first named insured under such policy to reduce limits or cover or degrade terms and conditions without the prior written approval of the Required Lenders.

• The Additional Insureds shall have no obligations whatsoever including but not limited to no obligation to pay premium and no obligation to pay deductibles.

• Policy limits shall act in excess of deductibles including the indemnity period for time element insurance which shall act in excess of the delay deductible for such insurance.

• Insurer costs and expenses including any associated with claims including claims adjustment are for the account of the relevant insurer and further will not be deducted from policy limits or sublimits.

²  [NTD: To be confirmed following correction to the definition of Sponsors in the Credit Agreement.]

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• In addition, all property policies including marine cargo (if applicable) and further including any time element insurance shall provide:

• That the Collateral Agent for the benefit of the Secured Parties shall be sole loss payee of any amounts payable under the policies in relation to the Borrower and the Project.

• A non-vitiation clause in the form of a multiple insured clause where commercially available, or at least in a form consistent with Lenders Loss Payable 438 BFU.

• Cover for accidental errors and omissions with, to the extent available on commercially reasonable terms, with no sublimit applied or otherwise a sublimit acceptable to the Collateral Agent acting reasonably.

• Replacement cost, new for old, with no deduction of any kind including no coinsurance provision or a waiver thereof and no allowance for depreciation (accounting or otherwise), obsolescence or loss of value over time other than in a total constructive loss or other scenario where repair/replacement does not follow loss.

• An advance or partial payment endorsement.

• A clause requiring the insurer to make final payment on any claim within thirty days after the submission of proof of loss and its acceptance by the insurer.

• Except for marine transit policies, a LEG2 exclusion or similar endorsement with no sublimit applied.

In addition, all liability policies except workers’ compensation and employer’s liability shall provide:

• Severability.

• Cross liability with no insured or additional insured excluded.

The above requirements shall be referred to as the “Required Lender Provisions”. The Required Lender Provisions can be provided either as endorsements to or in the main body of the relevant policy. All policies that replace or renew policies shall contain provisions, including limits, sublimits, deductibles, exclusions and the Required Lender Provisions, that are, mutatis mutandis, in all material regards at least the same as those in place at the Closing Date or, if later, the date of first inception of such policy cover, except in relation to risks where exposure no longer exists or where a better level of cover is provided or which would be required in accordance with the provisions of this Schedule.

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The Borrower shall provide the Administrative Agent and each of the Secured Parties as soon as reasonably possible prior to financial close, and at least 10 days prior to any subsequent policy inception or renewal, a certificate of pre-agreed format from:

Each placing broker confirming:

• Summary policy terms in the pre-agreed format.

• That all policies required by this schedule are in full force and effect.

• All insurance premiums that are due and payable have been paid in full with no premium overdue.

There shall be appended to such certificate or letter of undertaking insurance certificates for each policy required by this Schedule listing the major sublimits (to be agreed) and confirming that all required endorsements that apply to such policy are in place.

• The Insurance Advisor confirming that:

• The insurance provided complies with the requirements of this Agreement including this Schedule and further complies with the requirements of the Borrower in the Project Documents.

• That the undertakings made by each placing broker conform to the requirements of prudent industry practice.

The Collateral Agent may, at its sole discretion, waive the requirement for a certificate from the Insurance Advisor at policy replacement/renewal without requiring the approval of the Lenders or the Required Lenders.

The insurance provided by the Borrower shall be at least that evidenced in any certificates or other evidence provided by or on behalf of the Borrower.

Any of the requirements of this Schedule can be satisfied by single or by combined policies. However, as would be deemed necessary in accordance with prudent industry practice, a joint loss agreement will be required and included as part of the respective policies (for example, if there were separate marine transit and builders all-risk policies, then a 50:50 clause would be required).

If in the opinion of the Borrower, acting reasonably, any insurance, including the terms and conditions, required endorsements and limits or deductibles thereof, hereby required by this Schedule to be maintained, other than insurance required to be maintained by law which shall be maintained at all times, shall not be available on commercially reasonable terms in the commercial insurance market, the Borrower shall promptly inform the Collateral Agent and each of the Lenders of such purported unavailability and the Borrower shall seek a waiver from the Required Lenders in relation to such purported unavailability in which case the Required Lenders, acting after consultation with the Insurance Advisor, shall not unreasonably withhold agreement to waive such requirement to the extent the maintenance thereof is not so available. The granting by the Required Lenders of any such waiver is conditional on: (i) the Borrower first requesting such waiver in writing, which request shall be accompanied by written reports prepared by the Borrower and its placing broker certifying that such insurance is not available on commercially reasonable terms in the commercial insurance market for projects of similar type and capacity and, in any case where the required amount is not so available, certifying as to the

50

maximum amount which is so available, and explaining in detail the basis for such conclusions and the form and substance of such reports to be reasonably acceptable to the Required Lenders after consultation with the Insurance Advisor; (ii) at any time after the granting of any such waiver, any Secured Party may request, and the Borrower shall furnish to each Secured Party within fifteen (15) days after such request, supplemental reports reasonably acceptable to the Required Lenders updating the prior reports and reaffirming such conclusion; (iii) any such waiver granted by the Required Lenders can amend, to the extent reasonably required to mitigate any increased risks created by the absence of insurance cover that is the subject of the waiver, any of the terms of this Schedule and this Agreement; (iv) any Lender may require the Borrower to obtain the best available insurance comparable to the requirements of this Schedule on commercially reasonable terms then available in the commercial insurance market (as determined by the Insurance Advisor); and (v) such waiver shall be effective only so long as such insurance shall not be available on commercially reasonable terms in the commercial insurance market (as determined by the Insurance Advisor) it being understood that the failure of the Borrower to furnish any supplemental reports shall be deemed to be conclusive evidence that such waiver is no longer effective because such condition no longer exists, but that such failure is not the only way to establish such non-existence.

Any failure on the part of any Secured Party to pursue or obtain the evidence of insurance required by this Schedule from the Borrower and/or failure to point out any non-compliance of such evidence of insurance shall not constitute a waiver of any of the insurance requirements in this Schedule.

Each liability insurance policy required pursuant to this Schedule that is permitted to be written on a “claims made” basis shall provide (a) a retroactive date (as such term is specified in each of such policies) that is no later than the Closing Date and (b) each time any policy written on a “claims made” basis is not renewed or the retroactive date of such policy is to be changed, the Borrower shall obtain and maintain, or cause to be obtained or maintained, for each such policy or policies the broadest extended reporting period coverage, or “tail”, reasonably available in the commercial insurance market for each such policy or policies but in no case less than three (3) years. The Borrower may satisfy the requirements of this Section by obtaining “prior acts” coverage from a subsequent insurance carrier on terms acceptable to the Collateral Agent, acting reasonably.

All property insurance including marine cargo and any time element insurance shall not include any annual or term aggregate limits or sublimits except for the perils of windstorm, flood, earth movement, unintentional errors & omissions in reporting and land and water decontamination but only to the extent permitted in Appendix 1 to this Schedule. Liability policies may have general aggregate limits in accordance with prudent insurance market practice.

All insurance policies required to be maintained pursuant to this Schedule shall contain terms and conditions reasonably acceptable to the Required Lenders following consultation with the Insurance Advisor.

In the event that at any time the insurance as herein provided or as evidenced shall be reduced or cease to be maintained, then (without limiting the rights of any Secured Party hereunder in respect of the Event of Default which arises as a result of such failure) any Secured

51

Party, upon ten (10) Business Days’ prior written notice (unless such insurance coverage would lapse within such period, in which event notice should be given as soon as reasonably possible) to the Borrower of any such failure, may (but shall not be obligated to) take out the required policies of insurance and pay the premiums on the same. All amounts so advanced for such purpose shall become an additional obligation of the Borrower to the Secured Parties that provided such funding, and the Borrower shall forthwith pay such amounts, together with interest on such amounts at the applicable Default Rate from the date so advanced.

The Required Lenders can, acting reasonably, require such additional cover to be provided as is required to conform to prudent industry practice.

The Required Lenders shall have the option to be present and/or to send representatives during meetings and/or negotiations with insurers of any loss settlement in relation to the Borrower or the Project regarding (a) total constructive loss or any scenario in which repair/replacement will not follow loss, (b) any circumstance involving a claim in relation to an event or series of events which has or could be reasonably expected to lead to a Default. Neither the Borrower nor any of its Affiliates shall be permitted to settle any such claim with an insurer without the approval of the Required Lenders to the agreed settlement.

Each Lender may, pursuant to its rights and obligations under this Agreement and this Schedule and the provisions therein, consult with the Insurance Advisor and require reports, compliance certificates and other work product from the Insurance Advisor.

Terms used in this Schedule, unless otherwise specifically defined, shall have the meaning normally ascribed to them in accordance with prudent industry practice in relation to a project similar in type and jurisdiction as the Project.

52

APPENDIX 1

The provisions of this Appendix 1 to Schedule 3.22 shall be subject to all of the terms and conditions of this Agreement and Schedule 3.22.

a. Property and Business Interruption Insurance

“All-Risk” property form, as such term is used in the insurance industry, including coverage for the perils of flood, earthquake, hail, lightning, strike, riot and civil commotion, vandalism and malicious mischief. Such policy shall insure all real and personal property of the Borrower whether at a fixed (including non-owned location for off-Site repair or refurbishment), off-Site storage or a warehouse location or while in the course of inland or ocean transit (as the case may be), for an amount of not less than the greater of (a) $35,000,000 and (b) 10% of the current aggregate replacement cost of the Project.

The policy shall provide cover in accordance with this Schedule 3.22 for each System from the time no later than the time of delivery to the Borrower in accordance with the terms of the PUMA or such earlier time that the Borrower has risk of loss. This cover shall include cover for installation, testing including hot testing and commissioning sufficient to cover planned testing and commissioning activities and any likely over-run of such activities.

Sub-limits are permitted with respect to the following perils:

• For earthquake and flood a separate aggregate limit for each as commercially available but in no event less than $12,500,000;

• Unintentional Errors & Omissions, aggregated limit as commercially available but in no event less than $7,000,000;

• such other coverages customarily sub-limited and/or aggregated or restricted in reasonable amounts consistent with current industry practice, including without limitation, extra expense, debris removal, on site pollutant cleanup (resulting from a covered peril) and other perils normally sub-limited.

Such policy shall include: (a) an automatic reinstatement of limits following each loss except for those perils normally aggregated (including the perils of earthquake, named windstorm, pollution cleanup and flood), (b) replacement cost valuation with no deduction for depreciation and no coinsurance clauses (or a waiver thereof).

Business Interruption insurance triggered by any and all losses covered for property damage subject to such additional exclusions as are customary for time element insurance shall be provided for not less than 12 months projected covered revenue loss less non-recurrent costs and for an indemnity period of not less than 12 months for example:

a) if the main policy limit for property damage is 10% of the total portfolio replacement cost; then

b) the limit for business interruption shall be at least 20% of annual revenues for the portfolio over a 12 months indemnity period.

Contingent business interruption shall be provided in accordance with prudent industry practice, minimum $5,000,000.

Such policy may have per occurrence deductibles of not greater than $100,000 for all perils except (a) five percent (5%) of the value of property damaged by either earthquake or flood subject to a minimum of up to $250,000; and (b) fourteen (14) days for Business Interruption.

b. Marine Cargo and Marine Business Interruption Insurance

To the extent a material exposure exists, transit coverage, either included in a property policy or under a separate policy (including air, land and ocean cargo, as applicable) on an “all-risk” basis and a “warehouse to warehouse” basis with a per occurrence limit equal to not less than 110% of the value including transit and insurance of such shipment involving Project or any other Collateral assets to or from any storage site or the Project site at all times for which the Borrower has accepted risk of loss or has responsibility for providing insurance. Coverage shall include loading and unloading, temporary storage (as applicable). Coverage shall be maintained in accordance with prudent industry practice in all regards with per occurrence deductibles of not more than $100,000 for physical damage and other terms and conditions acceptable to the Lenders and the [Sponsors]³ in consultation with the Insurance Advisor.

Marine Business Interruption insurance shall be attached to the Marine Cargo policy providing equivalent cover, mutatis mutandis, to the Business Interruption cover attached to the All Risk Property policy in accordance with the terms of this Schedule.

c. General Liability

A limit of $1,000,000 per occurrence and in the aggregate shall be provided for:

• Property damage, death and injury (including mental injury).

• Broad form property damage.

• Blanket contractual.

• Products/completed operations

• Advertising injury

• XCU

Deductibles shall be the best commercially available in accordance with prudent industry practice.

³  [NTD: To be confirmed following correction to the definition of Sponsors in the Credit Agreement.]

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d. Automobile Liability

Automobile liability insurance, to the extent exposure exists, including coverage for owned, non-owned and hired automobiles for both bodily injury and property damage and containing appropriate no-fault insurance provisions or other endorsements in accordance with state legal requirements, with a combined single limit of no less than $1,000,000 per accident with respect to bodily injury, property damage or death. Deductibles shall be the best commercially available in accordance with prudent industry practice.

e. Workers’ Compensation and Employer’s Liability

If the Borrower has employees, workers’ compensation insurance in compliance with statutory requirements and employer’s liability insurance, to the extent exposure exists, with a limit of not less than $1,000,000 per accident, per employee and per disease including such other forms of insurance that the Borrower is required by law to provide for the Project, all other states’ endorsement and, to the extent any exposure exists, coverage with respect to the USL&H Act and Jones Act, covering loss resulting from bodily injury, sickness, disability or death of the employees of the Borrower. Deductibles shall be the best commercially available in accordance with prudent industry practice.

f. Pollution Liability

Pollution liability insurance for liability arising out of property damage or bodily injury to third parties as a result of sudden and accidental pollution including the cost of on-site and off-site clean up in an amount not less than $1,000,000 per occurrence and in the aggregate. Deductibles shall be the best commercially available in accordance with prudent industry practice.

g. Umbrella Liability Insurance

An aggregate limit of $15,000,000 (or $20,000,000, if so required by any Project Document) shall be attached and in excess of the underlying general liability, automobile liability, employer’s liability policies on a following form basis with drop down provisions.

h. Errors and Omissions Liability

Errors and omissions insurance for liability arising out of property damage or bodily injury to third parties as a result of prototype manufacturing errors and omissions liability $1,000,000 per glitch and in the aggregate. Deductibles shall be the best commercially available in accordance with prudent industry practice.

i. Directors & Officers Insurance

Directors & Officers insurance, including Employment Practices (if employees) in an amount not less than $10,000,000 on industry standard policy forms subject to a retention not to exceed $50,000. This requirement may be satisfied by a corporate policy.

55

EXHIBIT A

Contribution Amounts

Bloom Member Contribution: $27,731,923.00

Investor Contribution: $249,587,304.00

EXHIBIT B

Base Case Model

[To be provided.]

EXHIBIT C

“Knowledge” Persons

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***]

[***] Confidential Treatment Requested

EXHIBIT D

Form of Company LLC Agreement

EXHIBIT E

Form of Independent Engineer Use of Work Product Agreement

Agreement with Leidos Engineering, LLC for

Use of Work Products in connection with

PPA-V Distributed generation fuel cell project

[***]

[Note: 3 pages redacted]

[***] Confidential Treatment Requested

Page C-1

EXHIBIT F

[reserved]

EXHIBIT G

[reserved]

EXHIBIT H-1

Form of Officer’s Certificate – Section 6.2(j)

CLEAN TECHNOLOGIES 2015, LLC

[Date]

Officer’s Certificate

This Certificate is given on behalf of Clean Technologies 2015, LLC, a Delaware limited liability company (“Bloom Member”), pursuant to Section 6.2(j) of the Equity Capital Contribution Agreement (the “ECCA”), dated as of [            ], 2015, by and between the Investor and the Bloom Member, with respect to the anticipated Funding Date to occur on or about             ,     , 201   (the “Anticipated Funding Date”). All capitalized terms, unless otherwise defined herein, shall have the meanings ascribed to them in the ECCA.

The undersigned, being a duly appointed officer of Bloom Member does hereby certify that he is duly authorized to certify and does hereby certify on behalf of Bloom Member as follows:

1. Each of the conditions set forth in Sections 6.2(d)-(h), 6.2(m) and 6.2(t)-(x) of the ECCA has been satisfied as of the date set forth above and, to the knowledge of the undersigned, will be satisfied as of the Anticipated Funding Date.

2. With respect to Section 6.2(o) of the ECCA (check one):

     There have been, and to the knowledge of the undersigned as of the Anticipated Funding Date will be, no amendments to any of the Financing Documents.

or

     There have been amendments to the Financing Documents and Bloom Member has provided Investor with fully executed copies of such amendments.

3. All amounts payable as of the Anticipated Funding Date to the Bloom Energy Corporation, a Delaware corporation, in its capacity as the “Seller” pursuant to the PUMA have been paid or shall be paid with the proceeds of the Investor Contribution, the Bloom Member Contribution and the advances pursuant to the Credit Agreement to be made as of the Anticipated Funding Date.

4. The insurance policies described in Schedule 3.22 of the ECCA remain in full force and effect, and all insurance premiums that are due and payable have been paid in full with no premium overdue, and to the knowledge of the undersigned, the insurance policies will remain in full force and effect as of the Anticipated Funding Date.

[Remainder of this page intentionally left blank]

64

IN WITNESS WHEREOF, the undersigned has hereunto signed his name on behalf of Bloom Member as of the date first set forth above.

CLEAN TECHNOLOGIES 2015, LLC
By:
Name:	Bill Brockenborough
Title:	Vice President

EXHIBIT H-2

Form of Officer’s Certificate – Section 6.2(j)

CLEAN TECHNOLOGIES 2015, LLC

[Funding Date]

Officer’s Certificate

This Certificate is given on behalf of Clean Technologies 2015, LLC, a Delaware limited liability company (“Bloom Member”), pursuant to Section 6.2(j) of the Equity Capital Contribution Agreement (the “ECCA”), dated as of [            ], 2015, by and between the Investor and the Bloom Member. All capitalized terms, unless otherwise defined herein, shall have the meanings ascribed to them in the ECCA.

The undersigned, being a duly appointed officer of Bloom Member does hereby certify that he is duly authorized to certify and does hereby certify on behalf of Bloom Member as follows:

1. Each of the conditions set forth in Sections 6.2(d)-(h), 6.2(m) and 6.2(t)-(x) of the ECCA has been satisfied as of the date set forth above.

2. With respect to Section 6.2(o) of the ECCA (check one):

     There have been, and to the knowledge of the undersigned as of the Anticipated Funding Date will be, no amendments to any of the Financing Documents.

or

     There have been amendments to the Financing Documents and Bloom Member has provided Investor with fully executed copies of such amendments.

3. All amounts payable as of the date set forth above to the Bloom Energy Corporation, a Delaware corporation, in its capacity as the “Seller” pursuant to the PUMA have been paid or shall be paid with the proceeds of the Investor Contribution, the Bloom Member Contribution and the advances pursuant to the Credit Agreement to be made as of the date set forth above.

4. The insurance policies described in Schedule 3.22 of the ECCA remain in full force and effect, and all insurance premiums that are due and payable have been paid in full with no premium overdue.

[Remainder of this page intentionally left blank]

IN WITNESS WHEREOF, the undersigned has hereunto signed his name on behalf of Bloom Member as of the date first set forth above.

CLEAN TECHNOLOGIES 2015, LLC
By:
Name:	Bill Brockenborough
Title:	Vice President

EXHIBIT I-1

Form of Officer’s Certificate – Section 6.2(n)

CLEAN TECHNOLOGIES 2015, LLC

[Date]

Officer’s Certificate

This Certificate is given on behalf of Clean Technologies 2015, LLC, a Delaware limited liability company (“Bloom Member”), pursuant to Section 6.2(n) of the Equity Capital Contribution Agreement (the “ECCA”), dated as of [            ], 2015, by and between the Investor and Bloom Member in connection with the Funding to be made on or about [                  , 201  ] (the “Anticipated Funding Date”). All capitalized terms, unless otherwise defined herein, shall have the meanings ascribed to them in the ECCA.

The undersigned, being a duly appointed officer of Bloom Member does hereby certify that he is duly authorized to certify and does hereby certify on behalf of Bloom Member, in each case, as of the date hereof as follows with respect to the Tranche as to which the Funding occurring on or about the date hereof pertains:

1. The Facility Funding Conditions are satisfied as of the date hereof and, to the knowledge of the undersigned, will be satisfied as of the Anticipated Funding Date with respect to each Facility in such Tranche for which the Initial Investor Contribution is to be made on such Anticipated Funding Date and the Continued Funding Conditions are satisfied as of the date hereof and, to the knowledge of the undersigned, will be satisfied as of the Anticipated Funding Date with respect to each Facility in such Tranche for which the Initial Investor Contribution has already been made;

2. Attached to this Certificate as Annex A is a true, correct and complete list setting forth the Facilities included in such Tranche.

[Remainder of this page intentionally left blank]

IN WITNESS WHEREOF, the undersigned has hereunto signed his name on behalf of Bloom Member as of the date first set forth above.

CLEAN TECHNOLOGIES 2015, LLC
By:
Name:	Bill Brockenborough
Title:	Vice President

Annex A to

Bloom Member Officer’s Certificate

Facilities

EXHIBIT I-2

Form of Officer’s Certificate – Section 6.2(n)

CLEAN TECHNOLOGIES 2015, LLC

[Funding Date]

Officer’s Certificate

This Certificate is given on behalf of Clean Technologies 2015, LLC, a Delaware limited liability company (“Bloom Member”), pursuant to Section 6.2(n) of the Equity Capital Contribution Agreement (the “ECCA”), dated as of [            ], 2015, by and between the Investor and Bloom Member. All capitalized terms, unless otherwise defined herein, shall have the meanings ascribed to them in the ECCA.

The undersigned, being a duly appointed officer of Bloom Member does hereby certify that he is duly authorized to certify and does hereby certify on behalf of Bloom Member, in each case, as of the date hereof as follows with respect to the Tranche as to which the Funding occurring on or about the date hereof pertains:

1. The Facility Funding Conditions are satisfied as of the Funding Date with respect to each Facility in such Tranche for which the Initial Investor Contribution is to be made on the date hereof and the Continued Funding Conditions are satisfied as of the Funding Date with respect to each Facility in such Tranche for which the Initial Investor Contribution has already been made;

2. Attached to this Certificate as Annex A is a true, correct and complete list setting forth the Facilities included in such Tranche.

[Remainder of this page intentionally left blank]

IN WITNESS WHEREOF, the undersigned has hereunto signed his name on behalf of Bloom Member as of the date first set forth above.

CLEAN TECHNOLOGIES 2015, LLC
By:
Name:	Bill Brockenborough
Title:	Vice President

Annex A to

Bloom Member Officer’s Certificate

Facilities

EX-10

Exhibit 10.33

Execution

AMENDMENT NO. 1

EQUITY CAPITAL CONTRIBUTION AGREEMENT

This AMENDMENT NO. 1 TO EQUITY CAPITAL CONTRIBUTION AGREEMENT (this “Amendment”), is entered into effective as of November 19, 2015 (“Effective Date”) by and between Clean Technologies 2015, LLC, a Delaware limited liability company (the “Clean Technologies”) and 2015 ESA InvestCo, LLC (“InvestCo”, and together with Clean Technologies, the “Parties”). Capitalized terms used and not otherwise defined herein have the meanings given to them in the ECCA (as defined below). All Section references, unless otherwise indicated, shall be references to Sections of the ECCA and the rules of interpretation set forth in the ECCA apply as if set forth herein.

RECITALS

WHEREAS, reference is hereby made to that certain Equity Capital Contribution Agreement, dated as of June 25, 2015, by and between Clean Technologies and InvestCo (the “ECCA”); and

WHEREAS, Clean Technologies and InvestCo now wish to hereby amend the ECCA as set forth herein.

NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, and for other consideration, the receipt and adequacy of which is hereby acknowledged, the Parties hereto hereby agree as follows:

AGREEMENT

Section 1. Amendment to the ECCA. Exhibit A to the ECCA is hereby amended and restated in its entirety to read as set forth on Attachment 1 attached hereto.

Section 2. No Other Changes or Waivers. Except as expressly provided or contemplated by this Amendment, all of the terms, conditions and provisions of the ECCA remain unaltered and in full force and effect. Except as specifically provided herein, the execution, delivery and performance of this Amendment shall not be deemed as a waiver of any other matters or any future matters. The ECCA and this Amendment shall be read and construed as one instrument.

Section 3. Headings. The section and paragraph headings contained in this Amendment are for reference purposes only and shall not affect in any way the meaning and interpretation of this Amendment.

Section 4. Governing Law. THIS AMENDMENT SHALL BE DEEMED MADE AND PREPARED AND SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS THEREOF WHICH MAY REQUIRE THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).

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Section 5. Severability. Any provision of this Amendment that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, (provided the substance of the agreement between the Parties is not thereby materially altered) and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by Applicable Law, the Parties hereto hereby waive any provision of law which renders any provision hereof prohibited or unenforceable in any respect.

Section 6. Counterparts. This Agreement may be executed in counterparts, each of which shall be an original, but each of which, when taken together, shall constitute one and the same instrument. Signatures of the Parties hereto transmitted by facsimile or portable document format (PDF) shall be deemed to be their original signatures for all purposes.

[The remainder of this page intentionally left blank]

2

IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed by their respective officers thereunto duly authorized as of the Effective Date.

CLEAN TECHNOLOGIES 2015, LLC
By:	/s/ William E. Brockenborough
Name:	William E. Brockenborough
Title:	Vice President

2015 ESA INVESTCO, LLC
By:
Name:	Gary D. Fromer
Title:	Senior Vice President

IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed by their respective officers thereunto duly authorized as of the Effective Date.

CLEAN TECHNOLOGIES 2015, LLC
By:
Name:	William E. Brockenborough
Title:	Vice President
2015 ESA INVESTCO, LLC
By:	/s/ Gary D. Fromer
Name:	Gary D. Fromer
Title:	Senior Vice President

ATTACHMENT 1

EXHIBIT A

Contribution Amounts

Bloom Member Contribution:	$27,931,672.62
Investor Contribution:	$251,385,054.00

EX-10

Exhibit 10.34

EXECUTION VERSION

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

CREDIT AGREEMENT

among

2015 ESA PROJECT COMPANY, LLC,

as Borrower,

THE LENDERS REFERRED TO HEREIN,

CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK,

as Issuing Bank, Syndication Agent, Coordinating Lead Arranger and Sole Bookrunner,

KEYBANK NATIONAL ASSOCIATION AND

SILICON VALLEY BANK,

as Joint Lead Arrangers, Issuing Banks and Co-Documentation Agents,

MANUFACTURERS AND TRADERS TRUST COMPANY AND MIZUHO BANK, LTD.

as Issuing Banks,

CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK,

as Administrative Agent,

and

WILMINGTON TRUST, NATIONAL ASSOCIATION,

as Collateral Agent and Depositary Bank

Dated as of June 25, 2015

TABLE OF CONTENTS

			Page
Section 1. DEFINITIONS AND RULES OF INTERPRETATION				1
	1.1	Defined Terms		1
	1.2	Rules of Interpretation		1
	1.3	Accounting Principles		1
Section 2. AMOUNTS AND TERMS OF CREDIT FACILITY				1
	2.1	Construction Loans		1
	2.2	Incremental Loans		2
	2.3	[Reserved]		5
	2.4	Letters of Credit		5
	2.5	[Reserved]		9
	2.6	Notice of Borrowing; Notice of Term Conversion		9
	2.7	[Reserved		10
	2.8	Interest		10
	2.9	Interest Periods		11
	2.10	Minimum Amount and Maximum Number of Eurodollar Loans		12
	2.11	Conversion or Continuation		12
	2.12	Voluntary Prepayments		13
	2.13	Mandatory Prepayments		13
	2.14	Application of Prepayments		15
	2.15	Method and Place of Payment		16
	2.16	Interest Rate Unascertainable; Increased Costs; Illegality		16
	2.17	Funding Losses		18
	2.18	Increased Capital		19
	2.19	Tax Matters		19
	2.20	Alternative Office; Mitigation; Replacement of Lender		22
	2.21	Use of Proceeds		22
	2.22	Sharing of Payments		22
	2.23	Application of Loss Proceeds		23
	2.24	Fees		23
	2.25	Defaulting Lenders		24
Section 3. CONDITIONS PRECEDENT				27
	3.1	Conditions to Closing		27
	3.2	Closing Date, Loans and Letters of Credit		30
	3.3	Conditions Precedent to Conversion to Term Loans		34
Section 4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS				37
	4.1	Organization		37
	4.2	Authorization; No Conflict		37

i

TABLE OF CONTENTS

(continued)

			Page
	4.3	Enforceability		38
	4.4	ERISA		38
	4.5	Taxes		38
	4.6	Business; Contracts		39
	4.7	Investment Company, Holding Company and Power Acts		39
	4.8	Governmental Regulation		39
	4.9	Investments		40
	4.10	Financial Statements		40
	4.11	Use of Proceeds; Margin Regulations		40
	4.12	No Existing Defaults		40
	4.13	Applicable Permits		40
	4.14	Adverse Change		41
	4.15	Insurance		41
	4.16	Environmental Matters; Hazardous Materials		41
	4.17	Litigation		42
	4.18	Foreign Assets Control Regulations, Etc.		43
	4.19	No Joint Ventures; Subsidiaries		44
	4.20	Sufficient Rights		44
	4.21	No Casualty		44
	4.22	Disclosure		44
	4.23	Compliance with Law		45
	4.24	Collateral and Real Property		45
	4.25	Projections		45
	4.26	Security Interest		46
	4.27	Intellectual Property		46
	4.28	Project Construction		46
	4.29	Major Project Documents		46
	4.30	No Recordation; Etc.		46
	4.31	Employees; Labor Matters		47
	4.32	Organizational ID Number; Location of Tangible Collateral		47
	4.33	Solvency		47
	4.34	Affirmation		47
Section 5. COVENANTS OF THE BORROWER				47
	5.1	Use of Proceeds; Payment		47
	5.2	Notices		47
	5.3	Financial Statements and Reporting Requirements		48
	5.4	Reports		49
	5.5	Existence, Conduct of Business		50
	5.6	Books and Records		50
	5.7	Utility Regulation		50
	5.8	Construction of the Projects		50
	5.9	Completion		50

ii

TABLE OF CONTENTS

(continued)

			Page
	5.10	Operation of Projects		51
	5.11	Preservation of Rights		51
	5.12	Eminent Domain		52
	5.13	Taxes		53
	5.14	Tax Status		53
	5.15	Compliance with Laws and Applicable Permits		53
	5.16	Maintenance of Insurance		53
	5.17	Required Interest Rate Hedge Agreements		53
	5.18	Project Revenue		54
	5.19	Additional Necessary Permits and Project Documents		54
	5.20	Policy Proceeds, Subrogation and Consent		54
	5.21	Independent Consultants		55
	5.22	Further Assurances		55
Section 6. NEGATIVE COVENANTS				55
	6.1	Contingent Liabilities		55
	6.2	Limitations on Liens		55
	6.3	Accounts		56
	6.4	Indebtedness		56
	6.5	Sale or Lease of Assets		57
	6.6	Distributions		57
	6.7	Amendment of Project Documents; Assignment by Third Parties		57
	6.8	Additional Project Documents		58
	6.9	Capital Expenditures		58
	6.10	Investments		58
	6.11	Transactions With Affiliates		58
	6.12	Fundamental Changes		58
	6.13	Margin Loan Regulations		59
	6.14	Loss Proceeds; Project Revenue		59
	6.15	Sanctions Regulations		59
	6.16	Real Property		59
	6.17	Lease Obligations		59
	6.18	Use of Sites		59
	6.19	Disputes		59
	6.20	Assignment		59
	6.21	Insurance Policy		59
Section 7. EVENTS OF DEFAULT AND REMEDIES				60
	7.1	Events of Default		60
	7.2	Acceleration		65
	7.3	Other Remedies		66

iii

TABLE OF CONTENTS

(continued)

			Page
Section 8. THE AGENTS				66
	8.1	Appointment and Authorization		66
	8.2	Delegation of Duties		67
	8.3	Liability of the Agents		67
	8.4	Reliance by the Agents		68
	8.5	Notice of Default		69
	8.6	Credit Decision		69
	8.7	Indemnification of Agents		70
	8.8	Agents in Individual Capacities		70
	8.9	Successor Agents		71
	8.10	Registry		71
	8.11	Withholding		72
Section 9. MISCELLANEOUS				72
	9.1	Costs and Expenses		72
	9.2	Indemnity		73
	9.3	Notices		76
	9.4	Benefit of Agreement		76
	9.5	No Waiver; Remedies Cumulative		77
	9.6	No Third Party Beneficiaries		77
	9.7	Reinstatement		77
	9.8	No Immunity		77
	9.9	Counterparts		77
	9.10	Amendment or Waiver		78
	9.11	Assignments and Participations		78
	9.12	Survival		81
	9.13	WAIVER OF JURY TRIAL		81
	9.14	Right of Set-off		81
	9.15	Severability		82
	9.16	Domicile of Loans		82
	9.17	Limitation of Recourse		82
	9.18	Governing Law; Submission to Jurisdiction		82
	9.19	Complete Agreement		83
	9.20	Regulation A		83
	9.21	Force Majeure		83
	9.22	USA PATRIOT Act Section 326 Customer Identification Program		83
	9.23	Confidentiality		84
	9.24	Right to Withdraw		84

iv

TABLE OF CONTENTS

(continued)

Appendix A – Defined Terms and Rules of Interpretation

Appendix B – Conditions Precedent to Incremental Loans

Schedule A – Direct Agreements

Schedule B – Energy Server Use Agreements

Schedule 2.1 – Construction Loan Commitments

Schedule 2.1(a) – Amortization

Schedule 3.1(h) – Lien Search Reports

Schedule 3.1(l) – Security Documents Filings

Schedule 3.1(n)(i) – Lender Base Case Projections

Schedule 3.1(n)(ii) – Downside Sizing Case Projections

Schedule 3.1(o) – Legal Opinions

Schedule 3.1(q)(i) – Project Schedule

Schedule 3.1(q)(ii) – Project Budget

Schedule 3.1(r) – Closing Date Litigation

Schedule 4.13 – Applicable Permits

Schedule 4.16 – Environmental Matters; Hazardous Materials

Schedule 4.17 – Litigation

Schedule 5.16 – Required Insurance

Annex I – Lenders and Loan Commitments

Annex II – Issuing Banks and LC Commitments

Exhibit A – Form of Request for LC

Exhibit B – Form of Letter of Credit

Exhibit C – Form of Assignment and Acceptance

Exhibit D(i) – Form of Closing Certificate

Exhibit D(ii) – Form of Incremental Loan Closing Certificate

Exhibit E – Form of Solvency Certificate

Exhibit F – Form of Borrower’s Completion Certificate

Exhibit G – Form of Independent Engineer’s Completion Certificate

Exhibit H – Form of Notice of Borrowing

Exhibit I – Form of Notice of Continuation

Exhibit J – Form of Notice of Conversion

Exhibit K – Form of Notice of Term Conversion

Exhibit L – Form of Monthly Construction Report

Exhibit M(i) – Form of Drawdown Certificate

Exhibit M(ii) – Form of Borrower’s Milestone Certificate

Exhibit M(iii)(A) – Form of Independent Engineer’s Deposit Milestone Certificate

Exhibit M(iii)(B) – Form of Commencement of Operations Certificate

Exhibit M(v) – Form of Independent Engineer Change Order Certificate

Exhibit N – Form of Note

v

CREDIT AGREEMENT (this “Agreement”), dated as of June 25, 2015, among (i) 2015 ESA Project Company, LLC, a limited liability company organized and existing under the laws of the State of Delaware, as Borrower, (ii) the financial institutions from time to time party hereto as Lenders, (iii) Crédit Agricole Corporate and Investment Bank, as Administrative Agent, (iv) Crédit Agricole Corporate and Investment Bank, as Issuing Bank, Syndication Agent, Coordinating Lead Arranger and Sole Bookrunner, (v) KeyBank National Association and Silicon Valley Bank, as Joint Lead Arrangers, Issuing Banks and Co-Documentation Agents, (vi) Manufacturers and Traders Trust Company and Mizuho Bank, Ltd., as Issuing Bank, and (vii) Wilmington Trust, National Association, as Collateral Agent and Depositary Bank.

W I T N E S S E T H

WHEREAS the Borrower intends to develop, construct, install, finance, own, operate and maintain a portfolio of fuel cell electricity generators with an initial aggregate capacity of 39.95 MW, to be located on sites in California, Connecticut, New York and New Jersey (each site, a “Project” and collectively, the “Projects”); and

WHEREAS the Lenders are willing to provide the credit facilities described herein upon the terms and conditions herein set forth;

NOW, THEREFORE, in consideration of the premises and mutual agreements hereinafter contained, the parties hereto agree as follows:

SECTION 1. DEFINITIONS AND RULES OF INTERPRETATION.

1.1 Defined Terms. Except as otherwise expressly provided herein, capitalized terms used in this Agreement and its Schedules and Exhibits shall have the respective meanings assigned to such terms in Appendix A hereto.

1.2 Rules of Interpretation. Except as otherwise expressly provided herein, the rules of interpretation set forth in Appendix A hereto shall apply to this Agreement.

1.3 Accounting Principles. Except as otherwise expressly provided in this Agreement, all computations and determinations as to financial matters, and all financial statements to be delivered under this Agreement shall be made or prepared in accordance with GAAP (including principles of consolidation where appropriate) applied on a consistent basis (except to the extent approved or required by the independent public accountants certifying such statements and disclosed therein).

SECTION 2. AMOUNTS AND TERMS OF CREDIT FACILITY.

2.1 Construction Loans.

(a) Subject to the satisfaction of the conditions precedent set forth in Section 3.1 and Section 3.2 and upon the terms and conditions set forth herein, each Lender severally and not jointly agrees to make certain construction loans (the “Construction Loans”) to the Borrower, from time to time during the Construction Loan Availability Period, in an aggregate amount up to the aggregate principal amount of the Construction Loan Commitments; provided, however, that the aggregate principal amount of the Construction Loans funded by each Lender shall not exceed the Construction Loan Commitment of such Lender. Once repaid or prepaid under the terms of this Agreement, the Construction Loans may not be reborrowed.

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(b) The Construction Loan Commitment shall expire, and each Construction Loan shall either be converted to a Term Loan, upon satisfaction of the terms and conditions set forth herein, or mature and be due and payable, on the Construction Loan Maturity Date, without further action on the part of any Lender or the Administrative Agent.

(c) Subject to the satisfaction of the conditions precedent set forth in Section 3.3 and upon the terms and conditions set forth herein, each Lender severally and not jointly agrees on the Term Conversion Date to convert the Construction Loans of such Lender outstanding on such date to term loans (collectively, “Term Loans”), after giving effect to any prepayment of Construction Loans made on or before such date pursuant to the terms of this Agreement. The aggregate principal amount of the Term Loans of each Lender shall not exceed the Term Loan Commitment of such Lender. Each Term Loan shall mature and be due and payable on the Final Maturity Date, without further action on the part of any Lender or the Administrative Agent. Once repaid or prepaid under the terms of this Agreement, Term Loans may not be reborrowed. Construction Loans converted into Term Loans shall not be deemed to be repaid or discharged, but shall be deemed to be continued as Term Loans as provided herein.

(d) The Term Loans shall be repaid by the Borrower, without premium or penalty, in the amounts and on the Payment Dates set forth in Schedule 2.1(a). Any remaining amounts outstanding shall be due and payable on the Final Maturity Date.

(e) Except as provided by Section 2.8(c) and Section 2.16, any Term Loan may, from time to time, be Eurodollar Loans or Base Rate Loans as determined by the Borrower who shall notify the Administrative Agent in accordance with Section 2.6.

2.2 Incremental Loans.

(a) The Borrower may at any time or from time to time after the Closing Date and before the Term Conversion Date, by notice to the Administrative Agent (an “Incremental Loan Request”), request the establishment of one or more new commitments which may be in the same Loan Facility as any outstanding Construction Loans of an existing Class of Construction Loans (a “Construction Loan Commitment Increase”) or a new Class of construction loans (collectively with any Construction Loan Commitment Increase, the “Incremental Construction Loan Commitments”). The Borrower may, in any Incremental Loan Request, request one or more increases in the amount of the LC Commitments (a “LC Commitment Increase”) or the establishment of one or more new letter of credit loan commitments (any such new commitments, collectively with any LC Commitment Increases, the “Incremental LC Commitments”; the Incremental LC Commitments, collectively with any Incremental Construction Loan Commitments, the “Incremental Commitments”), whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders.

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(b) Any Incremental Commitments effected through the establishment of one or more new Construction Loans made on an Incremental Facility Closing Date shall be designated a separate Class of Incremental Commitments for all purposes of this Agreement. On any Incremental Facility Closing Date on which any Incremental Construction Loan Commitments of any Class are effected (including through any Construction Loan Commitment Increase), subject to the satisfaction of the terms and conditions in this Section 2.2, (i) each Incremental Lender of such Class shall make a Loan to the Borrower (an “ Incremental Construction Loan”) in an amount equal to its Incremental Construction Loan Commitment of such Class and (ii) each Incremental Lender of such Class shall become a Lender hereunder with respect to the Incremental Construction Loan Commitment of such Class and the Incremental Construction Loans of such Class made pursuant thereto. On any Incremental Facility Closing Date on which any Incremental LC Commitments of any Class are effected through the establishment of one or more new letter of credit loan commitments (including through any LC Commitment Increase), subject to the satisfaction of the terms and conditions in this Section 2.2, (i) each Incremental Issuing Bank of such Class shall make its Incremental LC Commitment available to the Borrower (when borrowed, an “Incremental LC Loan” and, collectively with any Incremental Construction Loan, an “Incremental Loan”) in an amount equal to its Incremental LC Commitment of such Class and (ii) each Incremental Issuing Bank of such Class shall become an Issuing Bank hereunder with respect to the Incremental Commitment of such Class. Notwithstanding the foregoing, Incremental Construction Loans may have identical terms to any of the Construction Loans and may be treated as the same Class as any of such Construction Loans.

(c) Each Incremental Loan Request from the Borrower pursuant to this Section 2.2 shall set forth the requested amount of the Incremental Commitments, which shall not, in the case of Incremental Construction Loan Commitments, in the aggregate exceed $17,500,000 and, in the case of Incremental LC Commitments, exceed in the aggregate the limit set forth in Section 2.2(d)(vi).

(i) Incremental Construction Loans may be made by any existing Lender (but no existing Lender will have any obligation to make any Incremental Commitment) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”) (each such existing Lender or Additional Lender providing such, an “Incremental Lender”); provided that the Administrative Agent and each Issuing Bank shall have consented (not to be unreasonably withheld, conditioned or delayed) to such Additional Lender’s making such Incremental Construction Loans to the extent such consent, if any, would be required under Section 9.11 for an assignment of Loans, to such Lender or Additional Lender.

(ii) Incremental LC Commitments may be made by any existing Lender or Issuing Bank (but no existing Lender or Issuing Bank will have any obligation to make any Incremental LC Commitment) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Issuing Bank”) (each such existing Issuing Bank or Additional Issuing Bank providing such, an “Incremental Issuing Bank”); provided that if an Additional Issuing Bank has a credit rating that is lower than A- (from Standard & Poors) or A3 (from Moody’s), then the Administrative Agent and each Lender shall have consented (not to be unreasonably withheld, conditioned or delayed) to such Additional Issuing Bank’s making such Incremental LC Commitments.

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(d) The effectiveness of any Incremental Joinder, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions:

(i) no Event of Default shall exist after giving effect to such Incremental Commitments;

(ii) after giving effect to such Incremental Commitments, the conditions contained in Appendix B shall have been satisfied;

(iii) the Borrower shall have executed one or more additional ESAs (or amendments to existing ESAs that effectuate an increase in the contract capacity (and accompanying Direct Agreements or appropriate amendments thereto to effectuate the amended contract capacity, as applicable) (A) in each case with an Offtaker rated BBB-or higher by Standard & Poor’s or Baa3 or higher by Moody’s, (B) in an aggregate capacity of up to 5 MW, and (C) in each case, for a term of at least fifteen (15) years (the “Incremental ESAs”);

(iv) each Incremental Construction Loan Commitment shall be in an aggregate amount that is not less than $1,000,000.00 and shall be in an increment of $500,000 (provided that such amount may be less than $500,000 if such amount represents all remaining availability under the limit set forth in Section 2.2(d)(v));

(v) the aggregate amount of the Incremental Construction Loan Commitments shall not exceed $17,500,000.00 in the aggregate;

(vi) the aggregate amount of the Incremental LC Commitments at a given time, when added to the initial LC Commitments, shall not exceed an amount equal to the greatest projected Debt Service Reserve Requirement calculated based on the aggregate Construction Loan Commitments existing at such time;

(vii) after accounting for such Incremental Commitments, the sum of the LC Commitments plus cash on deposit in the Debt Service Reserve Account shall be greater than or equal to the amount of the greatest projected Debt Service Reserve Requirement; and

(viii) each Lender shall have received the Updated Projections, revised to reflect the projected outstanding balance of the Loans as of the Incremental Facility Closing Date (after giving effect to the Incremental Commitments effected as of the Incremental Facility Closing Date) and the increased projected revenues and expenses after giving effect to the new or amended ESAs in respect of which such Incremental Commitments are being obtained, as confirmed by the Independent Engineer.

(e) The terms, provisions and documentation of the Incremental Term Loans and Incremental Term Loan Commitments or the Incremental Construction Loans and the Incremental LC Loans, as the case may be, of any Class shall be as agreed among the Borrower and the applicable Incremental Lenders and Incremental Issuing Banks providing such Incremental Commitments, except that, to the extent such terms and provisions are not identical

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(except for pricing terms; provided that the applicable margin shall not be greater than 25 basis points higher than the corresponding Applicable Margin existing on the Incremental Facility Closing Date)) to the Construction Loans or LC Loans, as applicable, existing on the Incremental Facility Closing Date, then such terms and provisions (except for pricing terms; provided that the applicable margin shall not be greater than 25 basis points higher than the corresponding Applicable Margin existing on the Incremental Facility Closing Date) shall be approved by the Required Lenders. In any event:

(i) the Incremental Loans:

A. shall rank pari passu in right of payment and of security with the Loans;

B. the Incremental Construction Loans shall not mature earlier than the Construction Loan Maturity Date, and the Incremental LC Loans shall not mature earlier than the LC Loan Maturity Date; and

C. the Incremental Loans may participate on a pro rata basis or less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments of Loans hereunder, as specified in the applicable Incremental Joinder.

(f) Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to a joinder (or in the case of an existing lender, amendment) (as the case may be, an “Incremental Joinder”) to this Agreement and, as appropriate, amendments to the other Financing Documents, executed (as applicable) by the Borrower, each Incremental Lender providing such Commitments and the Administrative Agent. The Incremental Joinder may, without the consent of any other Credit Party, Agent or Lender, effect such amendments to this Agreement and the other Financing Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.2, including any amendments that are not adverse to the interests of any Lender that are made to effectuate changes necessary to enable any Incremental Construction Loans that are intended to be fungible with the existing Construction Loans, which shall include any amendments to Section 9.10 that do not reduce the ratable amortization received by each Lender thereunder. The Borrowers will use the proceeds of the Incremental Loans for any purpose permitted for Construction Loans or LC Loans, as applicable. No Lender shall be obligated to provide any Incremental Loans, unless it so agrees.

(g) This Section 2.2 shall supersede any provisions in Section 9.10 to the contrary with respect to any Incremental Loans.

2.3 [Reserved].

2.4 Letters of Credit.

(a) Subject to the satisfaction of the conditions precedent set forth in Section 3.2 and Section 3.3, and upon the terms and conditions set forth herein, the LC Commitments may be utilized from time to time after the Term Conversion Date by the Borrower upon the irrevocable

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prior written request for the issuance of letters of credit pursuant to and in accordance with Section 2.4(b) (each a “Letter of Credit”). On each day during the period commencing with the issuance by an Issuing Bank of any Letter of Credit and until such Letter of Credit shall have expired or been terminated, the LC Commitments shall be deemed to be utilized for all purposes hereof in an amount equal to the Stated Amount of such Letter of Credit. Letters of Credit may be issued solely for the purpose of satisfying the Debt Service Reserve Requirement as described in Section 2.21(c). Letters of Credit shall permit the amounts drawn thereunder to be reinstated by amendment of such Letter of Credit upon reimbursement of any such drawings.

(b) Upon the irrevocable prior written request for issuance by the Borrower to the Administrative Agent and an Issuing Bank in the form of Exhibit A during the LC Loan Availability Period (“Request for LC”) no less than five (5) Business Days prior to the requested date of issuance, each Issuing Bank shall issue one or more Letter(s) of Credit in the form of Exhibit B on the requested date of issuance for the account of the Borrower (i) for a term of the lesser of one year or five (5) Business Days prior to the LC Loan Maturity Date; provided that the Letter(s) of Credit may, by their terms, automatically extend for additional periods past the stated expiration date therein unless the applicable Issuing Bank provides notice to the beneficiary thereof that such Letter of Credit shall terminate upon the then effective expiration date, in which case the beneficiary shall be permitted upon receipt of such notice, to draw under the applicable Letter of Credit prior to the date such Letter of Credit otherwise would have been automatically renewed, (ii) in the Stated Amount set forth in the request for issuance; provided that for each Request for LC, each Issuing Bank shall issue Letter(s) of Credit with an aggregate Stated Amount equal to such Issuing Bank’s Pro Rata Share of the total Stated Amounts of all Letters of Credit issued pursuant to such Request for LC, and (iii) naming the beneficiary as the Collateral Agent; provided that the aggregate Stated Amounts of any outstanding Letters of Credit shall not exceed the unused LC Commitment as of the date of issuance.

(c) The payment by an Issuing Bank of a drawing under any Letter of Credit (“LC Disbursement”) shall constitute the making by such Issuing Bank of a loan to the Borrower in the amount of such payment. Each LC Disbursement shall be made pro rata among all outstanding Letters of Credit. Upon any drawing under any Letter of Credit, the Borrower shall pay and reimburse such Issuing Bank for the amount of such drawing at or prior to the date on which payment is to be made by such Issuing Bank in accordance with the terms of such Letter of Credit to the beneficiary thereunder. In the event that a drawing under any Letter of Credit is not repaid by the Borrower by 2:00 p.m. (New York City time), on the day of such drawing, upon receiving notice from such Issuing Bank the Administrative Agent shall promptly notify each Lender of the applicable Class of LC Commitments. Each such Lender shall, on the day after such notification, make a loan to the Borrower which shall be used to repay such Issuing Bank’s loan with respect to such drawing, in an amount equal to the amount of such Lender’s Pro Rata Share (calculated with respect to such Class of LC Commitments) in such drawing (each, an “LC Loan”), and shall pay to such Issuing Bank, on the day after such notification and in immediately available funds, the amount of such LC Loan plus one day of interest on such loan at the rate applicable hereunder. Each such Lender’s obligation to make such payments to such Issuing Bank shall be absolute and unconditional and shall not be affected by any circumstance whatsoever, including, without limiting the effect of the foregoing, (A) the failure of any other Lender to make its payment under this clause (c), (B) the financial condition of the Borrower (or any other account party), (C) the existence of any Default or Event of Default, or (D) the

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termination of the applicable LC Commitments. Each such payment to such Issuing Bank shall be made without any offset, abatement, withholding or reduction whatsoever. In the event that any Lender fails to make any payment due to such Issuing Bank on the due date therefor, such Lender shall pay interest to such Issuing Bank on such amount from and including such due date to but excluding the date such payment is made (A) during the period from and including such due date to but excluding the date three (3) Business Days thereafter, at a rate per annum equal to the Base Rate, and (B) thereafter, at a rate per annum equal to the Default Rate.

(d) Any LC Loans shall be repaid by the Borrower in accordance with Section 4.2 of the Depositary Agreement without premium or penalty. Any remaining amounts outstanding shall be due and payable on the LC Loan Maturity Date.

(e) Except as provided by Sections 2.8(c) and Section 2.16, any LC Loan may, from time to time, be Eurodollar Loans or Base Rate Loans as determined by the Borrower who shall notify the Administrative Agent in the applicable Request for LC in accordance with Section 2.4(b).

(f) The obligation of the Borrower to reimburse any LC Disbursement as provided in this Section 2.4 or repay any LC Loan resulting therefrom shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms of this Agreement under any and all circumstances whatsoever and irrespective of (i) any lack of validity or enforceability of any Letter of Credit, this Agreement or any Credit Document, or any term or provision therein, (ii) any draft or other document presented under a Letter of Credit proving to be forged, fraudulent or invalid in any respect or any statement therein being untrue or inaccurate in any respect, (iii) payment by any Issuing Bank or the Lenders (as the case may be) in good faith under a Letter of Credit against presentation of a draft or other document that does not fully comply with the terms of such Letter of Credit, (iv) any amendment or waiver of or any consent to departure from all or any terms of any of the Transaction Documents, (v) the existence of any claim, setoff, defense or other right which the Borrower may have at any time against the beneficiary of such Letter of Credit (or any Persons for whom such beneficiary may be acting), any Issuing Bank, the Administrative Agent, any Lender or any other Person, whether in connection with this Agreement, the transactions contemplated hereby, by any other Transaction Document or by any unrelated transaction, (vi) any breach of contract or dispute among or between the Borrower, any Issuing Bank, the Administrative Agent, any Lender or any other Person, (vii) any non-application or misapplication by the beneficiary of the Letter of Credit of the proceeds of any LC Disbursement or any other act or omission of such beneficiary in connection with such Letter of Credit, (viii) any failure to preserve or protect any Collateral, any failure to perfect or preserve the perfection of any Lien thereon, or the release of any of the Collateral securing the performance or observance of the terms of this Agreement or any of the other Credit Documents, (ix) the failure of any Lender to make a Loan as contemplated by Section 2.4(c), or (x) any other event or circumstance whatsoever, whether or not similar to any of the foregoing, that might, but for the provisions of this Section 2.4, constitute a legal or equitable discharge of, or provide a right of setoff against, the Borrower’s obligations hereunder; provided that, in each case, payment by the Issuing Banks or the Lenders (as the case may be) shall not have constituted gross negligence, bad faith or willful misconduct. Neither the Administrative Agent, the Lenders nor the Issuing Banks, nor any of their Affiliates, shall have any liability or responsibility by reason of or in connection with the issuance or transfer of any

7

Letter of Credit or any payment or failure to make payment thereunder (irrespective of any of the circumstances referred to in the preceding sentence), or any error, omission, interruption, loss or delay in transmission or delivery of any draft, notice or other communication under or relating to any Letter of Credit (including any document required to make a drawing thereunder), any error in interpretation of technical terms or any consequence arising from causes beyond the control of such Person; provided that the foregoing shall not be construed to excuse the Issuing Banks or the Lenders under the LC Loan facility from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable Law) suffered by the Borrower that are determined by a court having jurisdiction to have been caused by (i) the failure by the Issuing Banks or the Lenders (as the case may be) to exercise care when determining whether drafts and other documents presented under a Letter of Credit comply with the terms thereof or (ii) the refusal of the Issuing Banks or the Lenders (as the case may be) to issue a Letter of Credit in accordance with the terms of this Agreement. The parties hereto expressly agree that, in the absence of gross negligence, bad faith or willful misconduct on the part of the Issuing Banks or the Lenders (as the case may be), each such Person shall be deemed to have exercised care in each such determination and each refusal to issue a Letter of Credit. In furtherance of the foregoing and without limiting the generality thereof, the parties hereto agree that, with respect to documents presented which appear on their face to be in substantial compliance with the terms of a Letter of Credit, the Issuing Banks or the Lenders (as the case may be) may, in good faith and in their respective sole discretion, either accept and make payment upon such documents without responsibility for further investigation, regardless of any notice or information to the contrary, or refuse to accept and make payment upon such documents if such documents are not in strict compliance with the terms of such Letter of Credit.

(g) If any Event of Default shall occur and be continuing, on the third (3^rd) Business Day following the date on which the Borrower receives notice from the Administrative Agent in accordance with Section 7.2 demanding the deposit of Cash Collateral pursuant to this paragraph, the Borrower shall deposit in an account with the Collateral Agent, in the name of the Administrative Agent and for the benefit of the Lenders, an amount in Dollars in cash equal to the total LC Exposure as of such date plus any accrued and unpaid interest thereon; provided that, upon the occurrence of any Event of Default with respect to the Borrower described in Section 7.1(f) or Section 7.1(g), the obligation to deposit such Cash Collateral shall become effective immediately, and such deposit shall become immediately due and payable in Dollars, without demand or other notice of any kind. Each such deposit shall be held by the Collateral Agent in accordance with the terms hereof as collateral for the payment and performance of the Obligations by the Borrower. The Administrative Agent shall have exclusive dominion and control, including the exclusive right to direct withdrawal, over such account. Other than any income earned on the investment of such deposits, which investments shall be made at the option and sole discretion of (i) for so long as an Event of Default shall be continuing, the Administrative Agent (acting at the direction of the Required Lenders) and (ii) at any other time, the Borrower, in each case, in Permitted Investments and at the risk and expense of the Borrower, such deposits shall remain uninvested. Income or profits, if any, on such investments shall accumulate in such account. Moneys in such account shall be applied by the Collateral Agent at the direction of the Administrative Agent (acting at the direction of the Required Lenders) to reimburse the Issuing Banks or the Lenders (as the case may be) for LC Disbursements or LC Loans for which any such Person has not been reimbursed and, to the

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extent not so applied, shall be held for the satisfaction of the Obligations of the Borrower or, if the maturity of the Loans has been accelerated, be applied to satisfy other Obligations. If the Borrower is required to provide an amount of Cash Collateral hereunder as a result of the occurrence of an Event of Default, such amount (to the extent not applied as aforesaid) shall be returned to the Borrower within three (3) Business Days after all Events of Default have been cured or waived to the satisfaction of the Required Lenders.

2.5 [Reserved].

2.6 Notice of Borrowing; Notice of Term Conversion.

(a) Each Loan shall be made by the Lenders ratably in accordance with their respective Loan Commitments as to each Loan Facility; provided that the Loan Commitments of the Lenders are several and no Lender shall be responsible for any other Lender’s failure to make Loans or issue Letters of Credit as required. The failure of any Lender to make any Loan required to be made by it, or to issue any Letter of Credit required to be issued by it, shall not relieve any other Lender of its obligations hereunder.

(b) If the conditions precedent set forth in Section 3.1 and Section 3.2, as applicable, to the advance of a Construction Loan shall have been satisfied, the Borrower may submit a Notice of Borrowing to the Administrative Agent at the Administrative Agent’s Office, prior to 11:00 A.M., New York City time, at least three (3) Business Days prior to the date on which such Loan is to be made hereunder; provided, however, that in the case of Base Rate Loans, Borrower may submit a Notice of Borrowing to the Administrative Agent at the Administrative Agent’s Office prior to 11:00 A.M., New York City time, no later than one (1) Business Day prior to the date on which such Loan is to be made hereunder. Such Notice of Borrowing shall be irrevocable, shall be signed by an Authorized Officer of the Borrower and shall (i) include a certification by the Borrower that the conditions precedent set forth above have been satisfied, (ii) specify the aggregate principal amount of the requested Loan, (iii) specify the date of Borrowing (which shall be a Business Day), (iv) specify the Type of Loan and (v) specify the initial Interest Period to be applicable thereto. Borrower may submit no more than one Notice of Borrowing each calendar month.

(c) If the conditions precedent set forth in Section 3.3, as applicable, to the conversion of the Construction Loans to Term Loans shall have been satisfied, the Borrower may submit a Notice of Term Conversion to the Collateral Agent at the Collateral Agent’s Office, and to the Administrative Agent, prior to 11:00 A.M., New York City time, at least five (5) Business Days prior to the date on which the Term Conversion Date is to occur hereunder provided that (unless otherwise agreed by the Administrative Agent) not later than seven (7) Business Days prior to delivery of the Notice of Term Conversion, Borrower shall deliver to the Administrative Agent a draft of such Notice of Term Conversion and evidence documenting the anticipated satisfaction of the conditions to Term Conversion set forth in Section 3.3 on the proposed Term Conversion Date. Such Notice of Term Conversion shall be irrevocable, shall be signed by an Authorized Officer of the Borrower and shall (i) include a certification by the Borrower that the conditions precedent set forth above have been satisfied, (ii) specify the aggregate principal amount of the requested Term Loan, (iii) specify the date of Borrowing (which shall be a Business Day), and (iv) specify the initial Interest Period to be applicable thereto.

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2.7 [Reserved.]

2.8 Interest.

(a) Base Rate. The Borrower agrees to pay interest in respect of the unpaid principal amount of each Base Rate Loan from the date of the conversion of Loans into Base Rate Loans until such Base Rate Loan shall be paid in full or converted to a Eurodollar Loan at a rate per annum, which shall be equal to the sum of the Applicable Margin plus the Base Rate in effect from time to time, such interest to be computed on a basis of a 365/366-day year, as applicable, and actual days elapsed.

(b) Eurodollar Rate. The Borrower agrees to pay interest in respect of the unpaid principal amount of each Eurodollar Loan from the date of the making of such Loan until such Eurodollar Loan shall be paid in full or converted to a Base Rate Loan at a rate per annum which shall be equal to the sum of the Applicable Margin plus the relevant Eurodollar Rate or Adjusted Eurodollar Rate, as applicable, such interest to be computed on the basis of a 360-day year and actual days elapsed.

(c) Default Rate. In the event that, and for so long as, any Event of Default shall have occurred and be continuing, the outstanding principal amount of all Loans, accrued interest in respect of such Loans (to the extent permitted by applicable Law), and all other amounts owing hereunder shall bear interest at a rate per annum (the “Default Rate”) equal to the sum of two percent (2.00%) plus the interest rate otherwise applicable hereunder to such amount in effect from time to time.

(d) Payments.¹ Interest on Loans shall be payable (i) in respect of each Base Rate Loan, quarterly in arrears on each Quarterly Date, (ii) in respect of each Eurodollar Loan, in arrears at the earlier of (A) each Quarterly Date and (B) the end of each Interest Period, and (iii) in the case of all Loans, on any conversion, prepayment (on the amount prepaid), at maturity (whether by acceleration or otherwise) and, after such maturity, on demand; provided that, notwithstanding the foregoing, interest on the Loans advanced on the Closing Date shall first be payable on September 30, 2015.

(e) Notification of Rates. The Administrative Agent shall, upon determining the Eurodollar Rate or the Base Rate on any Interest Rate Determination Date for any Interest Period, promptly notify the Collateral Agent, the Borrower and the Lenders thereof; provided, however, that the Administrative Agent’s failure to provide such notification shall not relieve or otherwise affect the Borrower’s obligations to pay interest on any Loan in accordance with the terms of this Agreement.

(f) Excessive Interest. It is the intention of the parties hereto to conform strictly to applicable usury laws and, anything herein or elsewhere to the contrary notwithstanding, the Obligations shall be subject to the limitation that the Borrower shall not be required to pay, and the Lenders shall not be entitled to charge or receive, any interest to the extent that such interest exceeds the maximum rate of interest which the Lenders are permitted by applicable Law to

¹ NTD: To be reviewed by Exelon.

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contract for, charge or receive and which would not give rise to any claim or defense of usury. If, as a result of any circumstances whatsoever, performance of any provision hereof or of any other Financing Documents shall, at the time performance of such provision is due, violate applicable usury law, then, ipso facto, the obligation to be performed shall be reduced to the highest lawful rate, and if, from any such circumstance, the Lenders shall ever receive interest or anything which might be deemed interest under applicable Law which would exceed the highest lawful rate, the amount of such excess interest shall be applied to the reduction of the principal amount owing on account of the Note or the amounts owing on other Obligations and not to the payment of interest, or, if such excessive interest exceeds the unpaid principal balance of the Obligations, such excess shall be refunded to the Borrower.

2.9 Interest Periods.

(a) The Borrower shall, in each Notice of Borrowing or Notice of Conversion or Notice of Continuation in respect of the making of, or continuation of a Eurodollar Loan (each such notice to be delivered to the Administrative Agent and the Collateral Agent by 11:00 A.M. (New York City time) at least three (3) Business Days prior to the requested Borrowing Date in the case of Eurodollar Loans or by 11:00 A.M. (New York City time) at least one (1) Business Day prior to the Borrowing Date in the case of Base Rate Loans), select the interest period (each, an “Interest Period”) applicable to such Eurodollar Loan, which Interest Period shall be (x) with respect to the making of, or continuation of any Eurodollar Loan prior to the Term Conversion Date, a one (1)-month period and (y) with respect to the making of, or continuation of any Eurodollar Loan after the Term Conversion Date, one of a one (1)-month, three (3)-month or six (6)-month period; provided that:

(i) the initial Interest Period for any Eurodollar Loan shall commence on the date of the making of such Eurodollar Loan (including the date of any conversion from a Base Rate Loan) and each Interest Period occurring thereafter in respect of such Eurodollar Loan shall commence on the date on which the immediately preceding Interest Period, if any, expires;

(ii) if any Interest Period would otherwise expire on a day which is not a Business Day, such Interest Period shall expire on the next succeeding Business Day; provided, however, that if any Interest Period applicable to a Borrowing of Eurodollar Loans would otherwise expire on a day which is not a Business Day but is a day of the month after which no further Business Day occurs in such month, such Interest Period shall expire on the Business Day preceding the day of scheduled expiration;

(iii) if any Interest Period applicable to a Borrowing of Eurodollar Loans begins on a day for which there is no numerically corresponding day in the calendar month at the end of such Interest Period, such Interest Period shall end on the last Business Day of such calendar month;

(iv) no Interest Period in respect of any Loan shall extend beyond the Final Maturity Date;

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(v) no Interest Period in respect of any Loan shall extend beyond any date upon which a repayment of such Loan is required to be made unless the aggregate principal amount of such Loans which are Base Rate Loans or which have Interest Periods which will expire on or before such date, is equal to or in excess of the amount of the repayment required to be made on such date; and

(vi) the Borrower may request irregular Interest Periods (without premium or penalty) with a duration other than a one (1)-month, three (3)-month or six (6)-month Interest Period in order to consolidate outstanding Interest Periods and Payment Dates, as well as to facilitate the repayment of Eurodollar Loans and LC Loans in accordance with the terms of this Agreement. Upon receipt of a Notice of Conversion or Notice of Continuation from the Borrower requesting such irregular Interest Period, the Administrative Agent and Lenders shall use best efforts to provide the Borrower with such Interest Period so long as such Interest Period is available in the London interbank market, in the reasonable judgment of Administrative Agent; provided, that where this Agreement requires the Borrower to have an irregular Interest Period for a Borrowing of a Eurodollar Loan, the Administrative Agent shall use best efforts to set the applicable Adjusted Eurodollar Rate through interpolating the available Eurodollar Rate for periods having terms ending immediately prior to and immediately following such Interest Period (e.g., for a seventy-five (75) day Interest Period, the Administrative Agent shall use the midpoint of a two (2)-month and three (3)-month Eurodollar Rate).

(b) There shall be no more than three (3) Interest Periods in effect at any one time.

(c) If, upon the expiration of any Interest Period, the Borrower has failed to elect a new Interest Period to be applicable to a Eurodollar Loan as provided above, the Borrower’s Eurodollar Loans shall be converted into a Base Rate Loan effective as of the expiration date of such current Interest Period.

2.10 Minimum Amount and Maximum Number of Eurodollar Loans. All borrowings, conversions, continuations, payments, prepayments and selection of Interest Periods hereunder shall be made or selected by the Borrower so that, after giving effect thereto, (a) the aggregate principal amount of any Borrowing comprised of Eurodollar Loans shall not be less than [***] and No/100 Dollars ([***]), and (b) there shall be no more than five (5) Borrowings comprised of Eurodollar Loans outstanding at any one time.

2.11 Conversion or Continuation.

(a) Subject to the other provisions hereof, the Borrower shall have the option (i) to convert at any time all or any part of outstanding Base Rate Loans to Eurodollar Loans, or (ii) to continue all or any part of outstanding Eurodollar Loans as Eurodollar Loans for an additional Interest Period, on the expiration of the Interest Period applicable thereto; provided that no Loan may be continued at the end of an Interest Period as, or converted into, a Eurodollar Loan when any Default or Event of Default has occurred and is continuing or if the Required Lenders shall have notified the Borrower through the Administrative Agent that Eurodollar Loans shall not be available during such period pursuant to Section 2.16.

[***] Confidential Treatment Requested

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(b) In order to elect to convert or continue a Loan under this Section 2.11, the Borrower shall deliver an irrevocable Notice of Conversion or Notice of Continuation to the Administrative Agent, no later than 11:00 A.M., New York City time, at least three (3) Business Days in advance of the proposed continuation date in the case of a conversion to, or a continuation of, a Eurodollar Loan. A Notice of Conversion or Notice of Continuation shall specify (i) the requested conversion or continuation date (which shall be a Business Day), (ii) the amount to be converted or continued, (iii) whether a conversion or continuation is requested, and (iv) the requested Interest Period. Promptly after receipt of a Notice of Conversion or Notice of Continuation under this Section, the Administrative Agent shall provide each Lender with a copy thereof.

2.12 Voluntary Prepayments. The Borrower may, at any time and from time to time, elect to prepay the Loans on any Business Day at the option of the Borrower, at par together with accrued and unpaid interest to but excluding the date of prepayment. In case of any voluntary prepayment of Loans, (i) the Borrower shall, at least five (5) days prior to the date of voluntary prepayment by the Borrower, notify the Administrative Agent and the Collateral Agent of such date and of the principal amount of the Loans to be prepaid, and (ii) each prepayment shall be in an aggregate principal amount equal to at least $1,000,000 of the outstanding principal amount of all Loans, together with accrued and unpaid interest thereon.

2.13 Mandatory Prepayments.

(a) The Borrower shall prepay the outstanding Loans with Loss Proceeds received by the Borrower as to any Event of Loss in accordance with the provisions of Section 4.6 of the Depositary Agreement, subject, in each case, to the Borrower’s right to apply such Loss Proceeds to Restoration Work as contemplated in Section 4.6 of the Depositary Agreement.

(b) The Borrower shall prepay the outstanding Loans with the proceeds:

(i) of the Borrower’s voluntary disposition of any energy server or Project;

(ii) of refund claims received by the Borrower pursuant to Sections 5.4(c) and 5.7(b) of the PUMA, other than amounts reserved for payment to the Offtakers, in each case in accordance with the provisions of the applicable ESA; and

(iii) from any payment of Termination Value or Early Termination Fee, which the Borrower may receive upon the occurrence of a Customer Default or Host Default, as applicable, under each ESA (as defined therein),

in each case, in amounts determined as follows:

A. with respect to such proceeds affecting up to five (5) MW (in the aggregate) of energy servers or Projects disposed or otherwise removed during the term of the Loans, an amount such that after such prepayment, the Construction Loans and the Term Loans will fully amortize over a 14.5-year amortization period based on contracted cash flows under each ESA for the Projects for which COO has occurred and the associated production-based environmental incentives (to the extent

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such incentives are for the benefit of the Borrower), yielding projected minimum annual Debt Service Coverage Ratios of (i) [***] through the Final Maturity Date based on a portfolio capacity factor of 94.85%, as evidenced by Updated Lender Base Case Projections (except that for purposes of this section the minimum annual Debt Service Coverage Ratio shall be [***]) as confirmed by the Independent Engineer and (ii) 1.00:1.00 through the Final Maturity Date based on a portfolio capacity factor of 80%, as evidenced by Updated Downside Sizing Case Projections, in each case as confirmed by the Independent Engineer;

B. with respect to such proceeds affecting in excess of [***] ([***]) MW (in the aggregate) but not more than [***] ([***]) MW (in the aggregate) of energy servers or Projects disposed or otherwise removed during the term of the Loans, in an amount such that after such prepayment, the Construction Loans and the Term Loans will fully amortize over a 14.5-year amortization period based on contracted cash flows under each ESA for the Projects for which COO has occurred and the associated production-based environmental incentives (to the extent such incentives are for the benefit of the Borrower), yielding projected minimum annual Debt Service Coverage Ratios of (i) [***] through the Final Maturity Date based on a portfolio capacity factor of 94.85%, as evidenced by Updated Lender Base Case Projections (except that for purposes of this Section the minimum annual Debt Service Coverage Ratio shall be [***]) as confirmed by the Independent Engineer and (ii) [***] through the Final Maturity Date based on a portfolio capacity factor of [***], as evidenced by Updated Downside Sizing Case Projections, in each case as confirmed by the Independent Engineer; and

C. with respect to such proceeds affecting in excess of [***] ([***]) MW (in the aggregate) of energy servers or Projects disposed or otherwise removed during the term of the Loans, in an amount equal to [***] percent ([***]) of such proceeds.

(c) The Borrower shall prepay the outstanding Loans with the proceeds in excess of [***] dollars ([***]) from the receipt of proceeds from any single sale or disposition of assets other than pursuant to Section 2.13(b) or in excess of [***] dollars ([***]) in the aggregate for all such dispositions or receipts by the Borrower during the term of the Loans (excluding the sale of energy, capacity or ancillary services in the ordinary course of business or other sales permitted pursuant to Section 6.5 of this Agreement).

(d) The Borrower shall prepay the outstanding Loans with the net proceeds received by the Borrower under the Policy pursuant to the “One-Time Payment Option” (as defined in the Policy).

(e) The Borrower shall prepay the outstanding Loans with amounts on deposit in the Suspense Account to the extent required pursuant to Section 4.5 of the Depositary Agreement.

[***] Confidential Treatment Requested

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(f) Upon the occurrence and during the continuance of an Event of Default, at the discretion of the Required Lenders and without prejudice to the rights and remedies of the Collateral Agent, the Administrative Agent and the Lenders as set forth herein, the Borrower shall prepay the outstanding Loans in accordance with the provisions of Section 8.11 of the Depositary Agreement.

(g) If on the Term Conversion Date, COO has not occurred for Sites having an aggregate capacity of at least the Minimum Capacity, the Borrower shall prepay the outstanding Loans in an amount such that after such prepayment, the Term Loan will fully amortize over a 14.5-year amortization period based on contracted cash flows under each ESA for the Projects for which COO has occurred and the associated production-based environmental incentives (to the extent such incentives are for the benefit of the Borrower), yielding projected minimum annual Debt Service Coverage Ratios of (i) [***] through the Final Maturity Date based on a portfolio capacity factor of 94.85%, as evidenced by Updated Lender Base Case Projections as confirmed by the Independent Engineer and (ii) [***] through the Final Maturity Date based on a portfolio capacity factor of 80%, as evidenced by Updated Downside Sizing Case Projections as confirmed by the Independent Engineer (the “Conversion Payoff”).

(h) The Borrower shall prepay the outstanding Loans with Excess Cash Flow (as defined in the Depositary Agreement) in accordance with Clause Ninth of Section 4.2(e) of the Depositary Agreement.

2.14 Application of Prepayments. All prepayments pursuant to Section 2.12 or 2.13 shall be applied (i) first to any interest or Fees that are accrued, due and unpaid, (ii) next to any interest or Fees accrued in respect of the Loans to be prepaid, (iii) then as to prepayments pursuant to Section 2.12 and Section 2.13 to the unpaid principal of such Loans pro rata across all remaining payments.

(b) In connection with any prepayment permitted by Section 2.12 or required by Section 2.13 hereof, the Borrower shall revise Schedule 2.1(a) to reflect the application of such prepayment and submit such revised Schedule to the Administrative Agent for approval. Once approved by the Administrative Agent, such revised Schedule 2.1(a) shall (i) replace the prior Schedule 2.1(a) for all purposes under this Agreement and (ii) be used to generate a revised Schedule 1 to the Depositary Agreement, which, upon approval by the Administrative Agent, shall replace the prior Schedule 1 to the Depositary Agreement in accordance with Section 4.4(d) thereof.

(c) Subject to clause (d) below, on or before the fifteenth (15^th) Business Day prior to each Payment Date, the Borrower shall submit to the Administrative Agent a proposed new Schedule 1 to the Depositary Agreement. The Administrative Agent shall promptly review such Schedule and discuss any proposed revisions thereto with the Borrower in a timely manner such that the Administrative Agent can provide its approval thereof no later than the fifth (5th) Business Day prior to each Payment Date after the Term Conversion Date. Upon such approval, and notice thereof to the Depositary Bank, such revised Schedule shall become Schedule 1 to the Depositary Agreement.

[***] Confidential Treatment Requested

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(d) On or before the fifteenth (15^th) Business Day prior to each Monthly Date after the Term Conversion Date during which any LC Loan remains outstanding, the Borrower shall submit to the Administrative Agent a proposed new Schedule 1 to the Depositary Agreement reflecting an updated Required DSR Balance. The Administrative Agent shall promptly review such Schedule and discuss any proposed revisions thereto with the Borrower in a timely manner such that the Administrative Agent can provide its approval thereof no later than the fifth (5th) Business Day prior to each Monthly Date after the Term Conversion Date. Upon such approval, and notice thereof to the Depositary Bank, such revised Schedule shall become Schedule 1 to the Depositary Agreement.

2.15 Method and Place of Payment.

(a) Except as otherwise specifically provided therein, all payments and prepayments made by the Borrower under the Financing Documents shall be made to the Administrative Agent, with notification to the Administrative Agent of the purpose of any such payment or prepayment, for the account of the Lenders, as applicable, not later than 11:00 A.M., New York City time, on the date when due and shall be made in Dollars and immediately available funds at the Administrative Agent’s Office, and any funds received by the Administrative Agent after such time shall, for all purposes hereof (including the following sentence), be deemed to have been paid on the next succeeding Business Day. Except as otherwise specifically provided herein, the Administrative Agent shall thereafter cause to be distributed on the date of receipt thereof to the Lenders, in like funds, the payments so received.

(b) Unless otherwise provided herein, whenever any payment to be made hereunder shall be stated to be due on a day which is not a Business Day, the due date thereof shall be extended to the next succeeding Business Day.

(c) All payments made by the Borrower hereunder and under the other Financing Documents shall be made irrespective of, and without any reduction for, any setoff or counterclaims.

2.16 Interest Rate Unascertainable; Increased Costs; Illegality.

(a) In the event that the Administrative Agent, in the case of clause (i) below, or any Lender, in the case of clauses (ii) and (iii) below, or any of the Administrative Agent, any Lender or any Issuing Bank, in the case of clause (iv) below, shall have determined (which determination shall, absent manifest error, be final and conclusive and binding upon all parties hereto):

(i) on any date for determining a Eurodollar Rate for any Interest Period, that by reason of any changes arising after the date of this Agreement affecting the interbank Eurodollar market, adequate and fair means do not exist for ascertaining the applicable interest rate on the basis provided for in the definition of the Eurodollar Rate; or

(ii) at any time, that the relevant Adjusted Eurodollar Rate shall not represent the effective cost to such Lender of funding or maintaining a Eurodollar Loan, or such Lender shall incur increased costs or reductions in the amounts received or receivable hereunder in respect of any Eurodollar Loan, in any such case because of (A) any change

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since the date of this Agreement in any applicable Law and including the introduction of any new Law (such as for example but not limited to a change in official reserve requirements, but, in all events, excluding reserves required under Regulation D of the Federal Reserve Board to the extent included in the computation of the Adjusted Eurodollar Rate) whether or not having the force of Law and whether or not failure to comply therewith would be unlawful, and/or (B) other circumstances arising since the date of this Agreement affecting such Lender or the interbank Eurodollar market or the position of such Lender in such market;

(iii) at any time, that the making or continuance by it of any Loan has become unlawful by compliance by such Lender in good faith with any Law (whether or not having the force of Law and whether or not failure to comply therewith would be unlawful) or has become impracticable as a result of a contingency occurring after the date of this Agreement which materially and adversely affects the interbank Eurodollar market; or

(iv) any change in Law has subjected any Lender, Issuing Bank, or Agent to any taxes (other than (A) Taxes addressed in Section 2.19 and (B) Excluded Taxes) on its Loans, loan principal, Letters of Credit, Loan Commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto;

then, and in any such event, the Administrative Agent or such Lender shall, promptly after making such determination, give written notice to the Borrower and (if notice is being given by a Lender) the Administrative Agent of such determination (which notice the Administrative Agent shall promptly transmit to each of the other Lenders). Thereafter (x) in the case of clause (i) above, the Borrower’s right to request Eurodollar Loans of the affected type shall be suspended, and any Notice of Borrowing or Notice of Conversion or Notice of Continuation given by the Borrower with respect to any Borrowing of such Eurodollar Loans which has not yet been made, converted or continued (as the case may be) shall be deemed canceled and rescinded by the Borrower, (y) in the case of clause (ii) or clause (iv) above, the Borrower shall pay to such Lender, Agent or Issuing Bank, as applicable, upon delivery of written demand therefor to the Borrower, with a copy to the Administrative Agent, such additional amounts as shall be required to compensate such Lender, Agent or Issuing Bank, as applicable, for such increased costs or reduction in amounts received or receivable hereunder and (z) in the case of clause (iii) above, the Borrower shall take one of the actions specified in clause (b) below as promptly as possible and, in any event, within the time period required by Law. The written demand provided for in clause (y) shall specify the bases for, and set forth the computation of, the claimed amount in reasonable detail and, absent manifest error, shall be final, conclusive, and binding upon all of the parties hereto.

(b) In the case of any Eurodollar Loan affected by the circumstances described in clause (a)(i) above and clause (a)(ii) above the Borrower may, and in the case of any Eurodollar Loan affected by the circumstances described in clause (a)(iii) above the Borrower shall, either (i) if any such Eurodollar Loan has not yet been made but is then the subject of a Notice of Borrowing or a Notice of Conversion or Notice of Continuation, be deemed to have canceled and rescinded such notice, or (ii) if any such Eurodollar Loan is then outstanding, require the affected Lender to convert each such Eurodollar Loan into a Loan of a different Type at the end of the

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applicable Interest Period or such earlier time as may be required by Law, in each case by giving the Administrative Agent and the Collateral Agent notice thereof on the Business Day that the Borrower was notified by the Lender pursuant to clause (a) above; provided, however, that all Lenders whose Eurodollar Loans are affected by the circumstances described in clause (a) above shall be treated in the same manner under this clause (b).

(c) In the event that the Administrative Agent determines at any time following its giving of notice based on the conditions described in clause (a)(i) above that such conditions no longer exist, the Administrative Agent shall promptly give notice thereof to the Borrower and the Lenders, whereupon the Borrower’s right to request Eurodollar Loans of the affected type from the Lenders and the Lenders’ obligation to make such Eurodollar Loans shall be restored.

(d) In the event that a Lender determines at any time following its giving of a notice based on the conditions described in clause (a)(ii) or clause (a)(iii) above that such conditions no longer exist, such Lender shall promptly give notice thereof to the Borrower, the Administrative Agent and the Collateral Agent, whereupon the Borrower’s right to request Eurodollar Loans of the affected type from such Lender and such Lender’s obligation to make such Eurodollar Loans shall be restored.

2.17 Funding Losses. The Borrower shall compensate each Lender, upon such Lender’s delivery of a written demand therefor to the Borrower, with a copy to the Administrative Agent and the Collateral Agent (which demand shall, absent manifest error, be final and conclusive and binding upon all of the parties hereto), for all reasonable losses, expenses and liabilities (including, without limitation, any loss, expense or liability incurred by such Lender in connection with the liquidation or reemployment of deposits or funds required by it to make or carry its Eurodollar Loans and including loss of anticipated profits), that such Lender sustains: (a) if for any reason (other than a default by such Lender) a Borrowing of, or conversion from or into, or a continuation of, Eurodollar Loans does not occur on a date specified therefor in a Notice of Borrowing or Notice of Conversion or Notice of Continuation (whether or not rescinded, canceled or withdrawn or deemed rescinded, canceled or withdrawn), (b) if any repayment (including payment after acceleration) or conversion of any of its Eurodollar Loans occurs on a date which is not the last day of the Interest Period applicable thereto, (c) if any prepayment of any of its Eurodollar Loans is not made on any date specified in a notice of prepayment given by the Borrower, or (d) as a consequence of any default by the Borrower in repaying its Eurodollar Loans or any other amounts owing hereunder in respect of its Eurodollar Loans when required by the terms of this Agreement. Calculation by a Lender of all amounts payable to such Lender under this Section shall be made on the assumption that such Lender has funded its relevant Eurodollar Loan through the purchase of a deposit, bearing interest at the Eurodollar Rate, in an amount equal to the amount of such Eurodollar Loan, with a maturity equivalent to the Interest Period applicable to such Eurodollar Loan and through the transfer of such deposit from an offshore office of such Lender to such Lender’s Domestic Lending Office, provided that each Lender may fund its Eurodollar Loans in any manner that it in its sole discretion chooses and the foregoing assumption shall only be made in order to calculate amounts payable under this Section.

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2.18 Increased Capital. If any Lender shall have determined in good faith that compliance with any applicable Law, guideline or directive enacted after the date hereof (whether or not having the force of law) or compliance with any change in any applicable Law, guideline or directive (whether or not having the force of law), has or would have the effect of reducing the rate of return on the capital or assets of such Lender or any Person controlling such Lender as a consequence of its commitments or obligations hereunder, then from time to time, upon such Lender’s delivery of a written demand therefor to the Borrower (with a copy to the Administrative Agent and the Collateral Agent), which demand shall be made promptly after making such determination, the Borrower shall pay to such Lender such additional amount or amounts as will compensate such Lender or Person for such reduction. Each written demand for compensation under this Section shall specify the bases for, and set forth the computation of, the claimed amount in reasonable detail, and absent manifest error, shall be final, conclusive, and binding upon all of the parties hereto. Notwithstanding the foregoing, Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs incurred or reductions suffered more than one hundred and eighty (180) days prior to the date of Lender’s demand for payment pursuant to this Section.

2.19 Tax Matters.

(a) Taxes. Any and all payments to or for the benefit of any Agent, any Issuing Bank or any Lender hereunder or under any other Credit Document shall be made free and clear of and without deduction, setoff or counterclaim of any kind whatsoever for, and in such amounts as may be necessary in order that, all such payments, after deduction for or on account of any present or future taxes, levies, imposts, deductions, charges or withholdings (including interest, additions to tax and penalties) arising from or relating to such Lender’s Loan Commitments or Loans made under this Agreement or other amounts payable to any Agent, any Issuing Bank or any Lender under the Credit Documents, and all liabilities with respect thereto (excluding (i) any and all taxes imposed on or measured by the net income or capital of any Agent, any Issuing Bank or any Lender as a result of being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such tax, (ii) any branch profits taxes imposed by the United States of America or any similar tax imposed by any other jurisdiction described in clause (i) above, (iii) in the case of a Lender (other than an assignee pursuant to a request by the Borrower under Section 2.20(a)), any U.S. federal withholding tax that is imposed on amounts payable to such Lender pursuant to any Law enacted at the time such Lender becomes a party to this Agreement (or designates a new lending office) or is attributable to such Lender’s failure to comply with Sections 2.19(c) or 2.19(d), and (iv) any U.S. federal withholding taxes imposed under FATCA (“Excluded Taxes”)) (all such taxes, levies, imposts, deductions, charges, withholdings and liabilities (including interest, additions to tax and penalties) other than Excluded Taxes being hereinafter referred to as “Taxes”), shall be not less than the amounts otherwise specified to be paid under this Agreement and the other Credit Documents. If any Taxes imposed by any Governmental Authority shall be required by law to be withheld or deducted from or in respect of any sum payable hereunder or under any other Credit Document to any Agent, any Issuing Bank or any Lender, (A) the sum payable by the Borrower shall be increased as may be necessary so that after making all required deductions (including deductions applicable to additional sums payable under this Section 2.19), such Agent, such Issuing Bank or such Lender receives an amount equal to the sum it would have received had no such deductions been made; (B) Borrower shall make such deductions; and (C) Borrower shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with applicable Law. In addition, Borrower agrees to pay any present or

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future stamp, court, intangible, filing, recording or documentary taxes and any other excise or property taxes, charges or similar levies that arise under applicable Law from any payment made hereunder or under any other Credit Document or from the execution, delivery or performance or otherwise with respect to this Agreement or any other Credit Document (hereinafter referred to as “Other Taxes”).

(b) Indemnity. Borrower shall indemnify each Agent, each Issuing Bank and each Lender for the full amount of Taxes and Other Taxes (including any Taxes or Other Taxes imposed by any jurisdiction on amounts payable under this Section 2.19) arising from the execution, delivery or performance of its obligations or from receiving a payment hereunder or under any other Credit Document, or enforcing this Agreement or any other Credit Document, paid by any Agent, any Issuing Bank or any Lender, or any liability (including penalties, interest and expenses) arising therefrom or with respect thereto, whether or not such Taxes or Other Taxes were correctly or legally asserted; provided, however, that Borrower shall not be obligated to indemnify any Agent, any Issuing Bank or any Lender for any penalties, interest or expenses relating to Taxes or Other Taxes arising from the indemnitee’s gross negligence or willful misconduct as determined by a final non-appealable judgment of a court of competent jurisdiction. Each Agent, each Issuing Bank and each Lender agrees to use its commercially reasonable efforts to give notice to Borrower of the assertion of any claim against such Agent, such Issuing Bank or such Lender, as applicable, relating to such Taxes or Other Taxes reasonably promptly, and in no event later than ninety (90) days after the principal officer of such Agent, such Issuing Bank or such Lender responsible for administering this Agreement has actual knowledge of such claim; provided that any Agent’s, any Issuing Bank’s or any Lender’s failure to notify Borrower within such 90-day period of such assertion shall not relieve Borrower of its obligation under this Section 2.19. Payments by Borrower pursuant to this indemnification shall be made within thirty (30) days from the date such Agent, such Issuing Bank or such Lender makes written demand therefor (submitted through Administrative Agent), which demand shall be accompanied by a certificate describing in reasonable detail the basis and calculation thereof and certifying further that the method used to calculate such amount is fair and reasonable. Each Agent, each Issuing Bank and each Lender agree to repay to Borrower any refund (including that portion of any interest that was included as part of such refund with respect to Taxes or Other Taxes paid by Borrower pursuant to this Section 2.19) received by such Agent, such Issuing Bank or such Lender for Taxes or Other Taxes that were paid by Borrower pursuant to this Section 2.19 and to contest (in good faith considering the benefit to be gained by such contest), with the cooperation and at the request and expense of Borrower, any such Taxes or Other Taxes which such Agent, such Issuing Bank or such Lender or Borrower reasonably believes not to have been properly assessed.

(c) Withholding Exemption Certificates. On the Closing Date, or upon becoming a Lender hereunder, each Lender agrees that it will deliver to Borrower and Administrative Agent either (i) if it is incorporated under the laws of the United States of America or a state thereof, two duly completed originals or copies of the United States Internal Revenue Service Form W-9; (ii) if it is not so incorporated, two duly completed originals or copies of United States Internal Revenue Service Form W-8ECI, Form W-8BEN/W-8BEN-E or Form W-8IMY or successor applicable form, as the case may be, certifying in each case that such Lender is entitled to receive payments under this Agreement without deduction or withholding of any United States federal income taxes; or (iii) in the case of such a Lender that is entitled to claim exemption from

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withholding of United States Federal income tax under Section 871(h) or Section 881(c) of the Code, (x) a certificate to the effect that such Lender is (A) not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) not a “10 percent shareholder” within the meaning of Section 881(c)(3)(B) of the Code and (C) not a controlled foreign corporation described in Section 881(c)(3)(C) of the Code and (y) two accurate, complete and signed copies of United States Internal Revenue Service Form W-8BEN/W-8BEN-E or successor form. Each Lender which delivers to Borrower and Administrative Agent a Form W-9, W-8ECI, W-8IMY or W-8BEN/W-8BEN-E pursuant to the preceding sentence further undertakes to deliver to Borrower and Administrative Agent further completed originals or copies of the said letter and Form W-9, W-8ECI, or W-8IMY or W-8BEN/W-8BEN-E, or successor applicable forms, or other manner of certification or procedure, as the case may be, on or before the date that any such letter or form expires or becomes obsolete or within a reasonable time after gaining knowledge of the occurrence of any event requiring a change in the most recent letter and forms previously delivered by it to Borrower, and such extensions or renewals thereof as may reasonably be requested by Borrower or Administrative Agent, certifying in the case of a Form W-8ECI, W-8IMY or W-8BEN/W-8BEN-E that such Lender is entitled to receive payments under this Agreement, the Notes and the other Credit Documents without deduction or withholding of any United States federal income taxes, unless in any such cases an event (including any change in treaty, law or regulation) has occurred prior to the date on which any such delivery would otherwise be required which renders all such forms inapplicable or which would prevent a Lender from duly completing and delivering any such letter or form with respect to it and such Lender advises Borrower that it is not capable of receiving payments without any deduction or withholding of United States federal income tax.

(d) If a payment made to a Lender under any Credit Document would be subject to U.S. Federal withholding Tax imposed by FATCA if such Lender fails to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to the Borrower and Administrative Agent (A) such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and (B) other documentation reasonably requested by the Borrower or Administrative Agent sufficient for the Borrower and Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such applicable reporting requirements or to determine the amount to deduct and withhold from such payment. Solely for purposes of this paragraph (d), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

(e) As soon as practicable after any payment of Taxes or Other Taxes by the Borrower to a Governmental Authority pursuant to this Section 2.19, the Borrower shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(f) Each party’s obligations under this Section 2.19 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the commitments and the repayment, satisfaction or discharge of all obligations under any Financing Document.

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2.20 Alternative Office; Mitigation; Replacement of Lender. To the extent reasonably possible, each Lender shall designate an alternative lending office with respect to its Loans and otherwise take reasonable actions to avoid, minimize or reduce any liability of Borrower to such Lender under Section 2.16(a)(ii), 2.16(a)(iii), 2.16(a)(iv), 2.18 or 2.19. If any Lender (a) requests compensation under Section 2.16(a)(ii), 2.16(a)(iii), 2.16(a)(iv), 2.18 or 2.19, or if Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.19, (b) is a non-consenting Lender in connection with amendments and waivers requiring the consent of all Lenders, so long as Lenders holding more than 50% of the outstanding Loans have consented thereto or (c) becomes insolvent or bankrupt, Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in Section 9.11), all of its interests, rights and obligations under this Agreement and the related Credit Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment).

2.21 Use of Proceeds.

(a) The Borrower shall use the proceeds of each Construction Loan made hereunder solely to pay Project Costs in accordance with the Depositary Agreement.

(b) The Borrower shall use the proceeds of the Term Loans solely to repay the outstanding Construction Loans, accrued and unpaid interest and fees thereon, and Project Costs.

(c) The Borrower shall use the proceeds of the Letters of Credit solely to fund the Debt Service Reserve Account.

2.22 Sharing of Payments.

(a) The Borrower agrees that, in addition to (and without limitation of) any right of set-off, Lender’s lien or counterclaim a Lender may otherwise have, each Lender shall be entitled, at its option, to offset balances held by it for the account of the Borrower at any of its offices, in Dollars or in any other currency, against any principal of or interest on any of such Lender’s Loans, or any other amount payable to such Lender hereunder or under any Note held by it or any other Credit Document, that is not paid when due, subject to the expiration of all applicable notice and grace periods (regardless of whether such balances are then due to the Borrower), in which case it shall promptly notify the Borrower, the Administrative Agent and the Collateral Agent thereof, provided that such Lender’s failure to give such notice shall not affect the validity thereof.

(b) Nothing contained herein shall require any Lender to exercise any such right or shall affect the right of any Lender to exercise, and retain the benefits of exercising, any such right with respect to any other indebtedness or obligation of the Borrower. If, under any applicable bankruptcy, insolvency or other similar law, any Lender receives a secured claim in lieu of a set-off to which this Section 2.22 applies, such Lender shall, to the extent practicable, exercise its rights in respect of such secured claim in a manner consistent with the rights of the Lenders entitled under this Section 2.22 to share in the benefits of any recovery on such secured claim.

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2.23 Application of Loss Proceeds. The Borrower shall irrevocably direct that all proceeds in respect of any insurance policy covering it or the Collateral, (“Insurance Proceeds”) shall be paid by the respective insurers directly to the Loss Proceeds Account or, in the case of the Insurance Proceeds of any insurance policy as to business interruption insurance, to the Revenue Account. The Borrower shall irrevocably direct that all proceeds in respect of any action to condemn, seize or appropriate all or any part of the Collateral or any right to develop, construct, finance, manage, use or operate the Collateral (“Condemnation Proceeds”) shall be paid to the Loss Proceeds Account. If any Insurance Proceeds or Condemnation Proceeds (collectively, “Loss Proceeds”) are received by the Borrower or any other Person on behalf of Borrower, such Loss Proceeds shall be received in trust for the Collateral Agent, shall be segregated from other funds of the recipient, and shall be forthwith paid into the Loss Proceeds Account (with any necessary endorsement).

2.24 Fees.

(a) The Borrower shall pay to the Agents (for their own accounts), compensation as agreed in the Fee Letters. Each Agent’s annual fee set forth in such Fee Letters shall be payable annually in advance for the period from the Closing Date through and including the Final Maturity Date on the Closing Date and on last Business Day of each year.

(b) The Borrower agrees to pay to the Administrative Agent for the account of each Lender, a commitment fee (the “Commitment Fee”) as set forth below:

Construction and Term Loan Commitments	[***] percent ([***]) per annum (for so long as the Construction Loan Commitments or Term Loan Commitments, as the case may be, are outstanding) on each Lender’s Pro Rata Share of the daily average unused portion of each of the Construction Loan Commitments or Term Loan Commitments, as applicable
LC Commitment	[***] percent ([***]) per annum on each Lender’s Pro Rata Share of the daily average unused portion of each of the LC Commitments

The accrued and unpaid Commitment Fee shall be payable quarterly in arrears for the period from the Closing Date through and including the Final Maturity Date on each Quarterly Date. The Commitment Fee shall be computed on the basis of a 360-day year and actual days elapsed.

[***] Confidential Treatment Requested

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(c) The Borrower agrees to pay to the Administrative Agent for the account of each Lender, a letter of credit fee (the “LC Fee”) equal [***], payable quarterly in arrears on each Quarterly Date occurring after the Closing Date calculated on the basis of a 360-day year for the actual number of days elapsed.

2.25 Defaulting Lenders.

(a) Defaulting Lender Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:

(i) Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Required Lenders.

(ii) Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts (excluding payments under the Required Hedging Agreements) received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Section 7.1 or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section 9.14 shall be applied at such time or times as may be determined by the Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to each Issuing Bank hereunder; third, to Cash Collateralize each Issuing Bank’s Fronting Exposure with respect to such Defaulting Lender in accordance with Section 2.25(d); fourth, as the Borrower may request (so long as no Default or Event of Default exists), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth, if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize each Issuing Banks’ future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section 2.25(d); sixth, to the payment of any amounts owing to the Lenders or each Issuing Bank as a result of any judgment of a court of competent jurisdiction obtained by any Lender or any Issuing Bank against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; seventh, so long as no Default or Event of Default exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or reimbursement obligations with respect to Letters of Credit in respect of which such Defaulting Lender has not fully funded its appropriate share, and

[***] Confidential Treatment Requested

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(y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section 3.2 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and reimbursement obligations with respect to Letters of Credit owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or reimbursement obligations with respect to Letters of Credit owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit are held by the Lenders pro rata in accordance with the Loan Commitments under the applicable Loan Facility without giving effect to Section 2.25(a)(iv). Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 2.25(a)(ii) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

(iii) Certain Fees.

(a) No Defaulting Lender shall be entitled to receive any Commitment Fee for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender).

(b) With respect to any fees not required to be paid to any Defaulting Lender pursuant to clause (A) above, the Borrower shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in Letters of Credit that have been reallocated to such Non-Defaulting Lender pursuant to clause (iv) below, (y) pay to each Issuing Bank the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such Issuing Bank’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.

(iv) Reallocation of Participations to Reduce Fronting Exposure. All or any part of such Defaulting Lender’s participation in Letters of Credit shall be reallocated among the Non-Defaulting Lenders in the applicable Class(es) in accordance with their respective Pro Rata Shares (calculated without regard to such Defaulting Lender’s Loan Commitment) but only to the extent that such reallocation does not cause the aggregate LC Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s LC Commitments. No reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.

(v) Cash Collateral. If the reallocation described in clause (iv) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under law, Cash Collateralize the Issuing Banks’ Fronting Exposure in accordance with the procedures set forth in Section 2.25(d).

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(b) Defaulting Lender Cure. If the Borrower, the Administrative Agent and the Issuing Banks agree in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit to be held pro rata by the Lenders in accordance with the Loan Commitments under the applicable Loan Facility (without giving effect to Section 2.25(a)(iv), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

(c) Letters of Credit. So long as any Lender is a Defaulting Lender, no Issuing Bank shall be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that it will have no Fronting Exposure after giving effect thereto.

(d) Cash Collateral. At any time that there shall exist a Defaulting Lender, within five (5) Business Days following the written request of the Administrative Agent or any Issuing Bank (with a copy to the Administrative Agent), the Borrower shall Cash Collateralize the Issuing Banks’ Fronting Exposure with respect to such Defaulting Lender (determined after giving effect to Section 2.25(a)(iv) and any Cash Collateral provided by such Defaulting Lender) in an amount not less than the Minimum Collateral Amount.

(i) Grant of Security Interest. The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to the Administrative Agent, for the benefit of the Issuing Banks, and agrees to maintain, a first priority security interest in all such Cash Collateral as security for the Defaulting Lenders’ obligation to fund participations in respect of Letters of Credit, to be applied pursuant to clause (ii) below. If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent and the Issuing Banks as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrower will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency (after giving effect to any Cash Collateral provided by the Defaulting Lender).

(ii) Application. Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under this Section 2.25 in respect of Letters of Credit shall be applied to the satisfaction of the Defaulting Lender’s obligation to fund participations in respect of Letters of Credit (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) for which the Cash Collateral was so provided, prior to any other application of such property as may otherwise be provided for herein.

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(iii) Termination of Requirement. Cash Collateral (or the appropriate portion thereof) provided to reduce each Issuing Bank’s Fronting Exposure shall no longer be required to be held as Cash Collateral pursuant to this Section 2.25(d) following (A) the elimination of the applicable Fronting Exposure (including by the termination of Defaulting Lender status of the applicable Lender), or (B) the determination by the Administrative Agent and each Issuing Bank that there exists excess Cash Collateral; provided that, subject to this Section 2.25, the Person providing Cash Collateral and each Issuing Bank may agree that Cash Collateral shall be held to support future anticipated Fronting Exposure or other obligations and provided further that to the extent that such Cash Collateral was provided by the Borrower, such Cash Collateral shall remain subject to the security interest granted pursuant to the Financing Documents.

SECTION 3. CONDITIONS PRECEDENT.

3.1 Conditions to Closing. The Closing Date and the initial advance of the Loans hereunder on the Closing Date shall be subject to the satisfaction of the following conditions precedent, each of which shall be in form and substance satisfactory to each Lender, or waived by each Lender (written notice of which shall be provided to the Administrative Agent):

(a) Credit Documents. The Administrative Agent shall have received originals of each of the Credit Documents, duly authorized, executed and delivered by each party thereto (other than (i) the Notes and (ii) any Required Hedging Agreement required to be entered into pursuant to Section 5.17) together with all amendments, supplements, exhibits and schedules thereto, each of which (A) shall have been duly authorized, executed and delivered by an Authorized Officer of the Borrower and an officer of each other Person party thereto (other than the Administrative Agent, the Collateral Agent and the Lenders), and (B) shall be in full force and effect. Borrower shall deliver or cause to be delivered all documents required to be delivered pursuant to each Credit Document, including, without limitation, all certificated securities representing pledged equity interests and accompanying transfer powers.

(b) Major Project Documents. The Administrative Agent shall have received copies of each Major Project Document executed on or prior to the Closing Date (together with all amendments, supplements, exhibits, annexes and schedules thereto), each of which shall have been duly authorized, executed and delivered by an Authorized Officer of the Borrower and an officer of each counterparty to the Project Documents. The Administrative Agent shall have received a certificate executed by an Authorized Officer of the Borrower, dated the Closing Date, certifying that the Major Project Documents delivered to the Administrative Agent are true, correct and complete copies of such documents as of the Closing Date and are in full force and effect. Unless otherwise indicated in a Direct Agreement with an Offtaker, Borrower and/or Collateral Agent shall deliver payment account notices to each Offtaker.

(c) Secretary Certificates. Each Lender shall have received a certificate of the Secretary (or comparable Authorized Officer) of each of the Borrower, the Pledgor, Bloom and each Sponsor, in each case, dated the Closing Date attaching the Charter Documents of each such Person and otherwise in form and substance acceptable to the Lenders.

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(d) Borrower’s Certificates. Each Lender shall have received a closing certificate of Borrower in the form of Exhibit D(i) and a solvency certificate of Borrower in the form of Exhibit E, in each case, duly executed by an Authorized Officer of the Borrower.

(e) Insurance. Insurance complying with the provisions of Section 5.16 hereof shall be in full force and effect, and each Lender shall have received a certificate from the Borrower’s insurance broker in form and substance satisfactory to the Lenders certifying as to an accompanying binder or certificates signed by the insurer or a broker authorized to bind the insurer evidencing such insurance (including the designation of the Collateral Agent as lender loss payee thereunder to the extent required by Section 5.16 hereof.) In addition, each Lender shall have received a report and certificate from the Insurance Advisor as to such matters regarding the insurance coverage maintained with respect to the Projects, as the Lenders may reasonably require. Each Lender shall have received a power of attorney and comfort letters with respect to the Policy each in form and substance satisfactory to the Lenders.

(f) Consultants Reports. The Administrative Agent shall have received a satisfactory report of the Independent Engineer discussing such matters as to the Projects as the Lenders may require, including (i) technical aspects of the Projects; (ii) all Major Project Documents; (iii) operating budget; (iv) maintenance program; and (v) pro forma revenues and operating expenses with respect to the Projects, and dated no earlier than fifteen (15) days prior to the Closing Date. The Administrative Agent shall have received an Amended and Restated Professional Services Agreement entered into between the Independent Engineer, the Administrative Agent, the Borrower and Bloom, in form and substance satisfactory to the Administrative Agent.

(g) Governmental Approvals. Delivery to Administrative Agent of (i) Schedule 4.13, in form and substance satisfactory to the Lenders and (ii) a certificate of Borrower signed by an Authorized Officer certifying that all Applicable Permits that are presently required to be obtained have been obtained and are in full force and effect and are not subject to further procedures or any Unsatisfied Condition that could reasonably be expected to result in material modification or revocation, and all applicable appeals periods shall have expired, except as noted on Schedule 4.13 hereto or Applicable Permits that do not have limits on appeal periods under applicable law or regulation; provided that with respect to Applicable Permits which cannot be obtained on or prior to the Closing Date in the exercise of reasonable diligence (but which are routinely obtainable and can be obtained only at a later stage of construction or operation), the Lenders shall have received a certificate of Borrower certifying that such Permits are reasonably expected to be obtained by the time when needed in connection with the construction or operation of the Projects and the Borrower’s basis therefor.

(h) Lien Search Reports; Termination Statements. Each Lender shall have received satisfactory reports, dated no more than twenty (20) days prior to the Closing Date, of UCC, judgment and tax lien searches with respect to the Borrower and Pledgor, in each case conducted by search firms acceptable to the Lenders in each of the locations set forth in Schedule 3.1(h).

(i) Pledge Agreement. Each Lender shall have received evidence satisfactory to such Lender that the certificates of Stock required to be delivered to the Collateral Agent pursuant to the Pledge Agreement have been delivered, together with such other documents as are necessary to perfect the interests of the Secured Parties in and to the Collateral covered thereby with the priority contemplated therefor by the Pledge Agreement.

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(j) Direct Agreements. Delivery to Administrative Agent of executed Direct Agreements from each of the Major Project Participants whose Project Documents are in effect on the Closing Date, which Direct Agreements shall be reasonably satisfactory to Administrative Agent.

(k) Equity Contribution.

(i) The Borrower shall have delivered to the Lenders a true, correct and complete copy of the Equity Contribution Agreement, in form and substance reasonably satisfactory to the Lenders, (i) which shall have been duly authorized, executed and delivered by the parties thereto and be in full force and effect on the Closing Date and (ii) with respect to which no material breaches or defaults have occurred and are continuing thereunder, and accompanied by a certificate of the Borrower certifying to the foregoing.

(ii) ExGen shall have provided the Lenders with Acceptable Credit Support (as defined in the Equity Contribution Agreement).

(l) Security Documents Filings. The Security Documents and all other instruments with respect thereto, as may be necessary, shall have been duly filed or recorded (or arrangements for the filing or recording thereof satisfactory to the Lenders shall have been made) in such manner and in such places listed on Schedule 3.1(l) and otherwise as are required under applicable Laws to establish and perfect the Liens granted pursuant to the Security Documents in the Collateral in favor of the Collateral Agent for the benefit of the Secured Parties. All taxes, fees and other charges payable in connection with the foregoing shall have been paid in full (or arrangements for the payment thereof satisfactory to the Lenders shall have been made) by or on behalf of the Borrower (and Administrative Agent shall have received satisfactory evidence thereof).

(m) Financial Information. The Administrative Agent shall have received copies of the most recent audited annual financial statements from Bloom and ExGen and the most recent unaudited quarterly financial statements (comprised of a balance sheet and income statement, and without notes) from ExGen, Bloom, Pledgor and the Borrower, together with, for purposes of Borrower’s, Pledgor’s, Bloom’s and ExGen’s financial statements, a certificate from the chief financial officer or other Authorized Officer of Borrower, Pledgor, Bloom or ExGen, as applicable, dated the Closing Date, to the effect that, to such officer’s knowledge (A) such financial statements are true, complete and correct in all material respects and (B) there has been no material adverse change in the financial condition, operations, Properties, business or prospects of such Person since the date of such financial statements.

(n) Projections. Each Lender shall have received (i) the Lender Base Case Projections and (ii) the Downside Sizing Case Projections, which are, in each case, in form and substance acceptable to the Lenders in consultation with the Independent Engineer.

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(o) Legal Opinions. Each Lender shall have received each of the legal opinions from counsel as set forth in Schedule 3.1(o), in each case, dated the Closing Date and in form and substance acceptable to the Lenders.

(p) Real Property. The Borrower shall have delivered to each of the Lenders copies of (i) all Leases or easements in which the Borrower holds the lessor’s interest or other agreements relating to possessory interests, if any, in the Real Property and (ii) all NDAs obtained as of the Closing Date.

(q) Project Budget and Schedule.

(i) Each Lender shall have received a copy of the Project Schedule, a copy of which is attached to this Agreement as Schedule 3.1(q)(i).

(ii) Each Lender shall have received a copy of the Project Budget, a copy of which is attached to this Agreement as Schedule 3.1(q)(ii).

(r) Litigation. The Borrower shall have delivered to the Lenders a certificate confirming that (i) there are no actions, suits or proceedings by or before any Governmental Authority or arbitrator pending or, to the Borrower’s knowledge, threatened in writing by or against any Credit Party related to the Projects and (ii) to the Borrower’s knowledge, there are no actions, suits or proceedings by or before any Governmental Authority or arbitrator pending or threatened in writing by or against any Major Project Participant (other than the Credit Parties) related to the Projects other than as set forth on Schedule 3.1(r).

(s) Accounts. The Accounts required under the Depositary Agreement shall have been established.

(t) Fees. The Borrower shall have paid, or made arrangements satisfactory to the Lenders to pay, all fees, costs and charges due and payable by it under the Credit Documents on or prior to the Closing Date.

(u) PATRIOT Act. Each Lender shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and Anti-Money Laundering Laws, including the USA Patriot Act.

3.2 Closing Date, Loans and Letters of Credit. Any advance of any Loan on the Closing Date and any advance of any Loan or issuance of any Letter of Credit after the Closing Date (each, a “Credit Event”) shall be subject to the satisfaction of conditions precedent that each Lender shall have received, or shall have waived receipt of, the following (as applicable only to the particular Type of Loan (or issuance of a Letter of Credit) as specified below), each of which shall be in form and substance satisfactory to the Lenders:

(a) Notice of Borrowing. As to any Loan (excluding LC Loans), not less than three (3) Business Days prior to such Borrowing Date (or one (1) Business Day in the case of Base Rate Loans), the Administrative Agent shall have received a Notice of Borrowing pursuant to and in compliance with Section 2.6.

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(b) Request for LC. As to the issuance of any Letter of Credit, not less than five (5) Business Days prior to the requested date of issuance (or one (1) Business Day as to requests for issuance of any Letter of Credit on the Closing Date), the Administrative Agent and each Issuing Bank shall have received a Request for LC pursuant to and in compliance with Section 2.4(b).

(c) Credit Documents; Liens. Each Credit Document remains in full force and effect and the Collateral Agent continues to have a perfected security interest and first lien in all right, title, and interest of the Borrower, in and to the Collateral free of all other Liens thereon other than Permitted Liens or Liens approved or accepted in writing by the Lenders.

(d) Drawdown Certificate and Independent Engineer Drawdown Certificate.

(i) At least three (3) Business Days prior to the submission of each Notice of Borrowing, the Borrower shall have provided the Administrative Agent and the Independent Engineer with a duly executed copy of a Drawdown Certificate, dated the date of delivery of such certificate, setting forth the date of the proposed occurrence of such Credit Event and signed by an Authorized Officer of the Borrower, substantially in the form of Exhibit M(i) (the “Drawdown Certificate”). Prior to the Borrower’s submission of the executed Drawdown Certificate, the Borrower will provide the Independent Engineer, as soon as reasonably practical, the supporting material required for the Independent Engineer to issue the Independent Engineer’s Milestone Certificate required under Section 3.2(d)(iii).

(ii) At least two (2) Business Days prior to the submission of each Notice of Borrowing, the Borrower shall have provided the Administrative Agent (with a copy to the Independent Engineer) with a certificate, confirming that the applicable payment condition(s) under Section 2.2(d), (e) or (f) of the PUMA has occurred with respect to the Facilities being funded under the requested Credit Event and signed by an Authorized Officer of the Borrower, substantially in the form of Exhibit M(ii) (the “Borrower’s Milestone Certificate”).

(iii) At least one (1) Business Day prior to the submission of each Notice of Borrowing, the Independent Engineer shall have provided the Administrative Agent with, as applicable, an Independent Engineer’s Deposit Milestone Certificate or Commencement of Operations Certificate with respect to each Facility being funded under the requested Credit Event, (collectively, the “Independent Engineer’s Milestone Certificate”).

(iv) Promptly and in any event no later than one (1) Business Day after receipt of a notice of a proposed Change Order (as defined in the PUMA) pursuant to Section 2.2(c) of the PUMA, the Borrower shall provide the Administrative Agent and the Independent Engineer a copy of such notice of proposed Change Order (a “Notice of Change Order”).

(v) Within two (2) Business Days following receipt of a Notice of Change Order, the Independent Engineer shall have provided the Administrative Agent with an Independent Engineer Change Order Certificate, substantially in the form of Exhibit M(v) (an “Independent Engineer Change Order Certificate”).

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(e) System COO. Each System being financed with such Credit Event has achieved the applicable milestone under the PUMA, and each System being financed with such Credit Event is anticipated to achieve COO prior to the Policy Cutoff Date.

(f) Equity Funding. The Equity Contribution Agreement shall continue to be in full force and effect and, to the Borrower’s knowledge, no material breaches or defaults have occurred and are continuing thereunder.

(g) Available Funds. After taking into consideration the making of the applicable Credit Event, the Administrative Agent (based on consultation with the Independent Engineer) shall have reasonably determined that Available Funds shall not be less than the aggregate unpaid amount required to cause Completion to occur in accordance with all Legal Requirements, the PUMA, each other Major Project Document pursuant to which construction work with respect to the Project is being performed and the Credit Documents prior to the end of the Construction Loan Availability Period and to pay or provide for all anticipated non-construction Project Costs, all as set forth in the then-current Project Budget.

(h) Permits.

(i) Each Applicable Permit with respect to the System or Systems being funded under the requested Credit Event shall have been duly obtained and issued or been assigned in the Borrower’s name, shall be in full force and effect, shall not be subject to any current legal proceeding, and shall not be subject to any Unsatisfied Condition that could reasonably be expected to result in material modification or revocation of such Applicable Permit, and all applicable appeal periods with respect to such Applicable Permit shall have expired, except in each case where such failure, legal proceeding or Unsatisfied Condition could not reasonably be expected to result in a Material Adverse Effect.

(ii) To Borrower’s actual knowledge, each Applicable Third Party Permit with respect to the System or Systems being funded under the requested Credit Event shall have been duly obtained and issued in the applicable third party’s name, shall be in full force and effect, shall not be subject to any current legal proceeding, and shall not be subject to any Unsatisfied Condition that could reasonably be expected to result in material modification or revocation of such Applicable Third Party Permit, except in each case where such failure, legal proceeding or Unsatisfied Condition could not reasonably be expected to result in a Material Adverse Effect.

(iii) The Permits which have been obtained by the Borrower with respect to the System or Systems being funded under the requested Credit Event shall be in full force and effect and shall not be subject to any restriction, condition, limitation, current legal proceeding or other provision that could reasonably be expected to result in material modification or revocation of such Permit or have a Material Adverse Effect.

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(i) Lien Releases. Subject to the Borrower’s right to contest Liens as described in the definition of “Permitted Liens,” the Borrower shall have delivered (such delivery may be conditioned upon concurrent receipt of payment by the relevant Person) if applicable, to the Administrative Agent (i) duly executed Lien waivers relating to mechanics’ and materialmen’s Liens, in form and substance reasonably acceptable to the Administrative Agent or (ii) proof of the bonding of such Lien by a surety company that has a Best’s Insurance Rating of at least A-VIII or is otherwise reasonably satisfactory to the Administrative Agent.

(j) Acceptable Work; No Liens. All work that has been done on the Projects has been done in accordance with the PUMA, and there shall not have been filed against any of the Collateral or otherwise filed with or served upon the Borrower with respect to the Projects or any part thereof, notice of any Lien, claim of Lien or attachment upon or claim affecting the right to receive payment of any of the moneys payable to any of the Persons named on such request which has not been released by payment or bonding or otherwise or which will not be released with the payment of such obligation out of the proceeds of the Loans, other than Permitted Liens.

(k) Representations and Warranties. The representations and warranties of the Borrower contained in Section 4 hereof and the representations and warranties of the Borrower, the Pledgor and each Sponsor (as applicable) contained in any other Financing Document shall be true and correct in all material respects on and as of such Borrowing Date as if made on and as of such date (or, if stated to have been made solely as of an earlier date, were true and correct as of such date).

(l) No Default. No Default or Event of Default shall have occurred and be continuing on such date either before or after giving effect to the making of such Loans or issuance of such Letter of Credit.

(m) Material Adverse Effect. There shall have been no change in the business, prospects, profits or financial condition of the Borrower, Pledgor , Bloom or the Sponsors from the date of the financial statements delivered pursuant to Section 3.1(m) hereof (or, if later, from the last Borrowing Date) which could reasonably be expected to have a Material Adverse Effect, and there shall exist after the Closing Date no other circumstance, event or condition which has had or could reasonably be expected to have a Material Adverse Effect.

(n) Fees and Expenses. The Borrower shall have paid all fees, expenses and other charges payable by it to a Secured Party on or prior to such Borrowing Date under this Agreement or under any other Credit Document.

(o) Insurance Policy. The Policy is in full force and effect, the Collateral Agent is named as a sole loss payee thereunder, and all premiums then due and owing thereunder, as well as premiums thereunder that are required to be paid by the fifteenth day of the current calendar quarter, have been paid. No System in the Portfolio has reached COO after the Policy Cutoff Date.

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(p) Utilities. All process water, sewer, telephone, waste disposal, electric and all other utility services necessary for the development, construction, ownership and operation of the Projects are either contracted for, or are readily available on commercially reasonable terms, with respect to the System or Systems being funded under such requested Credit Event.

(q) Other Documents.

(i) With respect to Material Additional Project Documents entered into or obtained, transferred or required (whether because of the status of the development, construction or operation of the Projects or otherwise) since the date of the most recent Credit Event, the Administrative Agent shall have received copies of such Material Additional Project Documents.

(ii) With respect to any NDAs entered into or obtained since the date of the most recent Credit Event, the Administrative Agent shall have received copies of all such NDAs.

(iii) With respect to any Material Additional Project Document or NDA referenced in clauses (i) and (ii) above, the Administrative Agent shall have received such other statements, documents, certificates, approvals and legal opinions that the Administrative Agent may reasonably request, consistent with such statements, certificates, documents, approvals and legal opinions delivered on the Closing Date.

3.3 Conditions Precedent to Conversion to Term Loans. The conversion of the Construction Loans to Term Loans shall be subject to the satisfaction of the following conditions precedent, each of which shall be in form and substance satisfactory to each Lender, or waived by each Lender (written notice of which shall be provided to the Administrative Agent):

(a) Notice of Term Conversion. The Administrative Agent shall have received an executed Notice of Term Conversion in accordance with Section 2.6(c).

(b) Completion. Completion shall have occurred and the Administrative Agent shall have received (i) the Borrower’s Completion Certificate, duly executed by an Authorized Officer of the Borrower and (ii) the Independent Engineer’s Completion Certificate.

(c) Construction Loan Payoff; Projections.

(i) The Borrower shall have paid the Conversion Payoff as required pursuant to Section 2.13(g).

(ii) Each Lender shall have received an update to the Projections in form and substance satisfactory to the Lenders (in consultation with the Independent Engineer), updated to reflect the projected outstanding balance of the Loans as of the Term Conversion Date (after giving effect to any projected Borrowing on the Term Conversion Date).

(d) Representations and Warranties. Each of the representations and warranties contained herein and in the other Financing Documents in existence on the Term Conversion Date shall be true and correct in all material respects as if made on such date both before and after giving effect to the making of such Loans (or, if stated to have been made as of an earlier date, were true and correct as of such date).

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(e) No Default or Event of Default. No Default or Event of Default shall have occurred and be continuing on such date either before or after giving effect to the conversion of the Construction Loans.

(f) Project Documents. The Administrative Agent shall have received copies of each Major Project Document and each Direct Agreement executed on or prior to the Term Conversion Date (together with all amendments, supplements, exhibits, annexes and schedules thereto), in each case, to the extent not previously delivered, each of which shall have been duly authorized, executed and delivered by an Authorized Officer of the Borrower and an officer of each counterparty to the Project Documents, each of which shall be in full force and effect.

(g) Real Property. The Borrower shall have delivered to the Administrative Agent, to the extent not already delivered, copies of (i) all Leases or easements in which the Borrower holds the lessor’s interest or other agreements relating to possessory interests, if any, in the Real Property and (ii) all NDAs obtained as of the Closing Date. For the avoidance of doubt, each of the Lenders acknowledge that, other than the AT&T Lease, the Borrower does not, as at the Closing Date, have any Real Property Rights).

(h) Liquidated Damages. All payments in excess of [***] under the Project Documents in respect of liquidated damages (other than liquidated damages payable to the Borrower) either (i) have been paid or (ii) have been fully provisioned with (A) a cash reserve or (B) other credit support acceptable to the Administrative Agent, and in each case is part of the Collateral and equal to the amount of such liquidated damages.

(i) Annual Budget. Delivery to the Administrative Agent of an Annual Budget (in consultation with the Independent Engineer) approved in accordance with Section 5.10(a).

(j) Insurance.

(i) All insurance policies required to be maintained under Section 5.16 shall be in full force and effect and the Administrative Agent shall have received certificates confirming such insurance coverages, in form and substance satisfactory to Administrative Agent (in consultation with the Insurance Advisor).

(ii) The Policy is in full force and effect, the Collateral Agent is named as a loss payee thereunder, and all premiums then due and owing thereunder, as well as premiums thereunder that are required to be paid by the fifteenth (15^th) day of the current calendar quarter, have been paid.

(iii) No System in the Portfolio has reached COO after the Policy Cutoff Date.

(k) Required Reserves. The Borrower shall cause the Debt Service Reserve Account to be funded in the amount of the Required DSR Balance.

[***] Confidential Treatment Requested

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(l) Continuing Perfection and Priority of Liens. The Administrative Agent shall have received reasonable evidence, in the form of search results from each relevant jurisdiction identified in Schedule 3.1(h) and an update of the legal opinion provided by Borrower’s counsel on the Closing Date, that the Collateral Agent continues to have a perfected security interest or lien, as applicable, in all right, title, and interest of the Borrower, in and to the Collateral free of all other Liens thereon other than Permitted Liens or Liens approved or accepted in writing by the Required Lenders.

(m) Date Certain. The Date Certain has not passed.

(n) Equity Contributions.

(i) the Equity Requirement (as defined in the Equity Contribution Agreement) shall have been funded in full as of the Term Conversion Date in accordance with the Equity Contribution Agreement;

(ii) the sum of final Equity Contributions and borrowings at Term Conversion shall not exceed the amount required to pay Total Project Costs; and

(iii) no more than [***] of borrowings of combined Construction Loans and/or Term Loans shall be made on the Term Conversion Date to fund the distribution permitted to be made in accordance with Clause Fourth of Section 4.1(c) of the Depositary Agreement.

(o) Lien Releases. Subject to the Borrower’s right to contest Liens as described in the definition of “Permitted Liens,” the Borrower shall have delivered (such delivery may be conditioned upon concurrent receipt of payment by the relevant Person) if applicable, to the Administrative Agent duly executed Lien waivers relating to mechanics’ and materialmen’s Liens, in form and substance reasonably acceptable to the Administrative Agent.

(p) Acceptable Work; No Liens. All work that has been done on the Projects has been done in accordance with the PUMA, and there shall not have been filed against any of the Collateral or otherwise filed with or served upon the Borrower with respect to the Projects or any part thereof, notice of any Lien, claim of Lien or attachment upon or claim affecting the right to receive payment of any of the moneys payable to any of the Persons named on such request which has not been released by payment or bonding or otherwise or which will not be released with the payment of such obligation out of the proceeds of the Loans, other than Permitted Liens.

(q) Other Documents.

(i) With respect to Material Additional Project Documents entered into or obtained, transferred or required (whether because of the status of the development, construction or operation of the Project or otherwise) since the date of the most recent Credit Event, the Administrative Agent shall have received copies of such Material Additional Project Documents.

[***] Confidential Treatment Requested

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(ii) With respect to any NDAs entered into or obtained since the date of the most recent Credit Event, the Administrative Agent shall have received copies of all such NDAs.

(iii) With respect to any Material Additional Project Document or NDA referenced in clauses (i) and (ii) above, the Administrative Agent shall have received such other statements, certificates, documents, approvals and legal opinions that the Administrative Agent may reasonably request, consistent with such statements, certificates, documents, approvals and legal opinions delivered on the Closing Date.

SECTION 4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS.

The Borrower makes the following representations and warranties to and in favor of the Secured Parties as of the Closing Date. All of these representations and warranties shall survive the Closing Date.

4.1 Organization. The Borrower is a Delaware limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware and has the full power and authority to carry on its business as now conducted, to own or hold under lease its properties and to enter into and perform its obligations under each Transaction Document to which it is or is to be a party. Pledgor is the sole member of Borrower holding all of the issued and outstanding membership interests in Borrower. Borrower (i) is duly qualified, authorized to do business and in good standing in such State and each other jurisdiction where the character of its properties or the nature of its activities makes such qualification necessary, and (ii) has the power (A) to carry on its business as now being conducted and as proposed to be conducted by it, (B) to execute, deliver and perform its obligations under each Transaction Document to which it is a party, in its individual capacity, (C) to take all action as may be necessary to consummate the transactions contemplated thereunder, and (D) to grant the liens and security interest provided for in the Financing Documents to which it is a party.

4.2 Authorization; No Conflict. The Borrower has all necessary limited liability company power and authority and legal right to execute, deliver, and perform this Agreement and the other Transaction Documents to which it is a party or by which it is bound. The Borrower has duly authorized, executed and delivered each Transaction Document to which the Borrower is a party (or such Transaction Documents have been duly and validly assigned to the Borrower and the Borrower has assumed the obligations thereunder), and neither the Borrower’s execution and delivery thereof nor its consummation of the transactions contemplated thereby nor its compliance with the terms thereof (a) contravenes in any material respect any applicable Law binding on the Borrower or any of its properties, (b) contravenes or results in any breach of or constitutes any default under, or results in or requires the creation of any Lien (other than Permitted Liens) upon any of its property under any agreement or instrument to which it is a party or by which it or any of its properties may be bound or affected, which contravention, breach, default or Lien would be reasonably expected to result in a Material Adverse Effect, (c) contravenes the Charter Documents of the Borrower, or (d) requires the consent or approval of any Person or any Applicable Permit which has not already been obtained.

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4.3 Enforceability. Each Transaction Document to which the Borrower is a party is a legal, valid and binding obligation of the Borrower, enforceable against the Borrower in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting the enforcement of creditors’ rights. None of the Project Documents to which Borrower is a party has been amended or modified except in accordance with the Financing Documents or as disclosed to the Administrative Agent in writing.

4.4 ERISA. Each Plan and, with respect to each Plan, the Borrower and each member of the Controlled Group, are in compliance in all material respects with all applicable provisions of ERISA and the Code. Each Plan which is intended to qualify under Section 401(a) of the Code has received a favorable determination letter from the IRS indicating that such Plan is so qualified or an application for such determination status will be filed on or before the expiration of the applicable remedial amendment period, and, to the knowledge of the Borrower and each member of the Controlled Group, nothing has occurred subsequent to the issuance of such determination letter which could reasonably be expected to cause such Plan to lose its qualified status. Either (a) there are no Pension Plans or (b) except as would not reasonably be expected to result in a Material Adverse Effect (i) the Borrower and each member of the Controlled Group have fulfilled their obligations under the minimum funding standards of Section 302 of ERISA and Section 412 of the Code, (ii) no Pension Plan is in “at risk” status (as defined in Section 430 of the Code or Section 303 of ERISA) and no Multiemployer Plan is in “critical” or “endangered” status under Section 432 of the Code or Section 305 of ERISA, (iii) the present value of all accrued benefit obligations under each Pension Plan (based on those assumptions used to fund such Pension Plan) did not, as of the last annual valuation date prior to the date on which this representation is made or deemed made, exceed the value of the assets of such Pension Plan allocable to such accrued benefit obligations by a material amount, (iv) as of the most recent valuation date for each Multiemployer Plan, the liability that would be incurred by the Borrower or any member of the Controlled Group upon a complete withdrawal from such Multiemployer Plan (within the meaning of Section 4203 or Section 4205 of ERISA) is zero, and (v) neither the Borrower nor any member of the Controlled Group has incurred, or reasonably expects to incur, any liability to the PBGC (other than for the payment of premiums), the IRS or any employee benefit plan under Title IV of ERISA with respect thereto. No employee benefit plan that is subject to the laws of any jurisdiction outside the United States that is maintained or contributed to by the Borrower or any member of the Controlled Group has incurred, or reasonably expects to incur, any liability that would reasonably be expected to result in a Material Adverse Effect.

4.5 Taxes. Each of Borrower and Pledgor has filed all federal, state, local and other tax returns that each is required to file, and has paid all taxes each is required to pay to the extent due (other than those taxes that each is contesting in good faith and by appropriate proceedings, with adequate reserves established for such taxes in accordance with GAAP) and, to the extent such taxes are not due, has established reserves that are adequate for the payment thereof, in accordance with GAAP. There are no tax Liens on any assets of Borrower. There are no tax audits or investigations presently pending or threatened in writing with respect to Borrower or Pledgor. The Borrower is and has been at all times since formation an entity that is disregarded as separate from its owner for U.S. federal and applicable state and local income tax purposes.

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4.6 Business; Contracts. The Borrower has not conducted any business other than the business contemplated by the Transaction Documents and it is not a party to or bound by any material contract other than the Transaction Documents to which it is a party or which are contemplated or permitted under the Credit Documents.

4.7 Investment Company, Holding Company and Power Acts.

(a) Neither the Borrower nor any Affiliate of the Borrower is an investment company or a company controlled by an investment company, within the meaning of the Investment Company Act of 1940.

(b) As of the Closing Date, (i) the Borrower sells electricity at each Site only to the applicable Offtaker pursuant to the relevant ESA and will not make any other wholesale or retail sales and (ii) is not subject to or benefits from an exemption from or waiver of regulation as an “electric supplier”, a “retail electricity supplier” or a “public utility” under the laws of the States of California, New York, New Jersey or Connecticut and any other state in which the Borrower operates facilities that generate electricity. The Borrower is not a “public utility” under the FPA as of the Closing Date, provided, however, that it shall not constitute a Default or an Event of Default of any kind for the Borrower to (1) obtain an order from FERC (X) authorizing the Borrower to sell electric energy, capacity or ancillary services from its facilities that generate electricity at market-based rates pursuant to Section 205 of the FPA, (Y) accepting for filing the Borrower’s tariff pertaining to such sales, and (Z) granting the Borrower waivers of regulations and blanket authorizations customarily granted by FERC to an entity that sells electric energy, capacity and ancillary services at wholesale at market-based rates, including blanket authorization for the issuance of securities and assumption of liabilities under Section 204 of the FPA and Part 34 of FERC’s regulations (together, “MBR Authority”), and (2) make sales at wholesale of electric energy, capacity and ancillary services from its facilities that generate electricity pursuant to such MBR Authority. Such MBR Authority, once obtained and accepted as effective by FERC, will be in full force and effect and at such time the Borrower will become a “public utility” under the FPA. As of the Closing Date, Bloom has obtained a declaratory order from FERC in FERC Docket No. EL14-68-000 finding that Bloom and its current and future subsidiaries are exempt from sections 366.2, 366.21, 366.22, and 366.23 of the FERC’s PUHCA regulations. Within ten (10) Business Days after the Closing Date, Borrower shall file (or shall support a filing by Bloom) of a petition to FERC for a declaratory order finding that Borrower is subject to the same exemptions granted in Docket No. EL14-68-000 (“FERC PUHCA Order”) and Borrower is not aware of any reason why such petition should not be granted by FERC.

4.8 Governmental Regulation. None of the Borrower, or any of the Secured Parties, nor any Affiliate of any of them will, solely as a result of the ownership, leasing or operation of the Projects, the sale of electricity therefrom or the entering into any Transaction Document or any transaction contemplated hereby or thereby, be subject to, or not benefit from an exemption from or waiver of, regulation as a “public utility” under the FPA, under PUHCA or under state laws and regulations as currently in effect respecting the rates or the financial regulation of electric utilities, except that (i) the exercise of remedies, as provided for under the Credit Documents, may cause any such Person to be subject to, and not benefit from an exemption or waiver from, such regulation, (ii) Borrower will be a “public utility” under the FPA upon the effective date of its MBR Authority (as provided under Section 4.7(b)), and (iii) Borrower is

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seeking confirmation that it is exempt from regulation under PUHCA in the FERC PUHCA Order (as provided in Section 4.7(b)) and, if such petition is denied, then Borrower will not be exempt from regulation under PUHCA. The Borrower is not and, as of the COO for each System, will not be subject to regulation as a “retail electricity supplier,” an “electric supplier” or a “public utility” under the laws of the States of California, New York, New Jersey or Connecticut as each such state’s laws are in effect as of the date hereof; provided that if Borrower were to be determined by a Governmental Authority in Connecticut to be a “retail electricity supplier” or an “electric supplier” under Connecticut law, compliance by Borrower with the applicable Connecticut laws and regulations in effect on the date hereof governing “retail electricity suppliers” or an “electric suppliers” would not be reasonably expected to have a Material Adverse Effect.

4.9 Investments. Other than Permitted Investments, the Borrower has not acquired an equity interest in, acquired all or substantially all of the assets of, loaned money, extended credit or made advances to, or made deposits with (other than deposits or advances in relation to the payment for goods and equipment in the ordinary course of business the making of which is expressly contemplated pursuant to the Transaction Documents), any Person.

4.10 Financial Statements. The financial statements delivered pursuant to this Agreement on the Closing Date and as of any date on which Borrower delivers a financial statement hereunder are true, complete and correct and fairly present the financial condition of such Person as of the date thereof (subject, in the case of unaudited financial statements, to normal year-end adjustments). The financial statements have been prepared in accordance with GAAP. As of the date of any financial statement delivered by Borrower under this Agreement, such financial statements show all of such Person’s material liabilities, direct or contingent, to the extent required to be shown thereon in accordance with GAAP.

4.11 Use of Proceeds; Margin Regulations. All proceeds of each Loan will be used by the Borrower only in accordance with the provisions of Section 2.21. No part of the proceeds of any Loan will be used by the Borrower to purchase or carry any Margin Stock or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. Neither the making of any Loan nor the use of the proceeds thereof will violate or be inconsistent with the provisions of Regulations T, U or X. Margin stock does not constitute any of the value of the assets of the Borrower and the Borrower does not have any present intention that margin stock will constitute any of the value of such assets.

4.12 No Existing Defaults. The Borrower is not in default under any material term of any Project Document or any material agreement relating to any obligation of the Borrower for or with respect to borrowed money, and to the best of the Borrower’s knowledge, no other party to any Project Document is in default with respect to any material term thereunder. No Default or Event of Default has occurred and is continuing.

4.13 Applicable Permits.

(a) All Applicable Permits that have been issued have been duly obtained or been assigned in the Borrower’s name are in full force and effect and not subject to current legal proceedings or to any Unsatisfied Condition that could reasonably be expected to result in

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material modification, limitation or revocation, and all applicable appeal periods with respect thereto have expired, except where such failure, legal proceeding, Unsatisfied Condition or appeal could not reasonably be expected to result in a Material Adverse Effect. The Borrower is in compliance in all material respects with each Applicable Permit that has been issued, except where such non-compliance could not reasonably be expected to result in a Material Adverse Effect.

(b) To Borrower’s actual knowledge, all Applicable Third Party Permits that have been issued have been duly obtained in the applicable third party’s name, are in full force and effect and not subject to current legal proceedings or to any Unsatisfied Condition that could reasonably be expected to result in material modification, limitation or revocation, and all applicable appeal periods with respect thereto have expired, and, to the Borrower’s actual knowledge, no other Person is in material violation of any issued Applicable Third Party Permit, except where such failure, legal proceeding, Unsatisfied Condition or appeal could not reasonably be expected to result in a Material Adverse Effect.

(c) With respect to any Permits that are not yet Applicable Permits or, to the knowledge of the Borrower, Applicable Third Party Permits to be obtained by an Offtaker, no fact or circumstance exists which makes it likely that any such Permit will not be timely obtainable by the Borrower or such Offtaker, as applicable, (i) prior to the time that it becomes an Applicable Permit or Applicable Third Party Permit, as applicable, (ii) without expense materially in excess of the amounts provided therefor in the then current Project Budget and (iii) without being inconsistent in any material respect with any of the Transaction Documents, except in each case where failure to obtain such Permit could not reasonably be expected to result in a Material Adverse Effect.

(d) Except as disclosed in Schedule 4.13, the Permits which have been obtained by the Borrower or, to the Borrower’s knowledge, any Offtaker identified in Schedule 4.13, are not subject to any restriction, condition, limitation or other provision that could reasonably be expected to have a Material Adverse Effect.

4.14 Adverse Change. Since the ending date of the most-recent financial statements of the Borrower, Pledgor or each Sponsor delivered pursuant to this Agreement, there has occurred no event, act or condition that could reasonably be expected to have a Material Adverse Effect and there has occurred no material adverse change in the financial condition of the Borrower, Pledgor, Bloom or any Sponsor that could reasonably be expected to have a Material Adverse Effect.

4.15 Insurance. All insurance policies then required to be maintained by the Borrower and, to the Borrower’s knowledge, each other party pursuant to the terms of the Transaction Documents are in full force and effect, and all premiums then due and payable have been paid.

4.16 Environmental Matters; Hazardous Materials.

(a) Neither Borrower nor, to Borrower’s knowledge, any predecessor in interest thereof is or in the past has been in violation of any Environmental Law, which violation could reasonably be expected to give rise to a material liability of Borrower or have a Material Adverse Effect.

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(b) Except as set forth in Schedule 4.16, (i) neither the Borrower nor, to the knowledge of the Borrower, any third party has used, released, discharged, generated, manufactured, produced, stored, or disposed of in, on, under or about the Land, or transported thereto or therefrom, any Hazardous Materials that could reasonably be expected to subject the Secured Parties to liability or the Borrower to material liability under any Hazardous Materials Law; (ii) to Borrower’s knowledge, there are no underground tanks, whether operative or temporarily or permanently closed, located on the Land which could reasonably be expected to result in material liability of Borrower; (iii) to Borrower’s knowledge, there are no Hazardous Materials used, stored or present at or on the Land in violation of any Hazardous Materials Law which could reasonably be expected to result material liability of Borrower; and (iv) to the knowledge of the Borrower, there is no condition, circumstance, action, activity or event that could form the basis of any violation of, or any liability to the Secured Parties or any material liability to the Borrower under, any Hazardous Materials Law.

(c) Except as set forth in Schedule 4.16, the Borrower has no knowledge of any existing violations of any Hazardous Materials Laws by any Person relating in any way to the Land which could reasonably be expected to result in material liability of Borrower.

(d) Borrower has not received a written notice of any Environmental Claim by any Governmental Authority (including the U.S. Environmental Protection Agency) or any non-governmental third party with respect to the presence or release of Hazardous Materials in, on, though, from or to the Land or the Projects that could reasonably be expected to result in material liability of Borrower, and does not have knowledge of any condition or circumstance that could reasonably be expected to give rise to such notice.

(e) There is no Environmental Claim pending or, to the knowledge of Borrower, threatened in writing with respect to the Projects, the Land or the Borrower, which Environmental Claim could be reasonably expected to give rise to a material liability of Borrower or have a Material Adverse Effect.

4.17 Litigation. Except as set forth in Schedule 4.17, there are no actions, suits, investigations or proceedings by or before any Governmental Authority or arbitrator pending or, to the Borrower’s knowledge, threatened against or affecting the Borrower or the Projects, and, to the Borrower’s knowledge, there are no actions, suits, investigations or proceedings by or before any Governmental Authority or arbitrator pending or threatened against or affecting any counterparty to a Project Document which could reasonably be expected to have a Material Adverse Effect. There are no condemnation proceedings by or before any Governmental Authority now pending or threatened in writing against Borrower, the Projects or any portion thereof material to the construction, development, ownership, financing or operation of the Projects or sale of power therefrom that, if adversely determined against Borrower or the Projects, could reasonably be expected to have a Material Adverse Effect. There are no proceedings by or before any Governmental Authority now pending or threatened in writing against Borrower that seek to restrain, prohibit or invalidate the consummation of the transactions contemplated by the Credit Documents. There are no proceedings by or before any Governmental Authority now pending or threatened in writing against Borrower, the Projects, or any portion thereof relating to Environmental Claims.

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4.18 Foreign Assets Control Regulations, Etc.

(a) Neither the Borrower, any Controlled Entity, nor any director, officer or employee of the Borrower or any Controlled Entity is (i) a Person whose name appears on the list of Specially Designated Nationals and Blocked Persons published by the Office of Foreign Assets Control, U.S. Department of the Treasury (“OFAC”) (an “OFAC Listed Person”) or (ii) a department, agency or instrumentality of, or is otherwise owned or Controlled by or acting on behalf of, directly or indirectly, (x) any OFAC Listed Person or (y) any Person, entity, organization, foreign country or regime that is subject to any OFAC Sanctions Program (each OFAC Listed Person and each other Person, entity, organization and government of a country described in clause (ii), a “Blocked Person”).

(b) Neither the Borrower nor any Controlled Entity is located, organized, or resident in a country or territory subject to comprehensive U.S. trade sanctions including, without limitation, the Crimea region of Ukraine, Cuba, Iran, North Korea, Sudan and Syria (a “Sanctioned Country”).

(c) No part of the Loans constitutes or will constitute funds obtained on behalf of any Blocked Person or will otherwise be used, directly by the Borrower or indirectly through any Controlled Entity, in connection with any investment in, or any transactions or dealings with, any Blocked Person or Sanctioned Country.

(d) In respect of any applicable law, to the Borrower’s actual knowledge after making reasonable inquiry, neither the Borrower nor any Controlled Entity (i) is under investigation by any Governmental Authority for, or has been charged with, or convicted of, violations of (x) money laundering, drug trafficking, terrorist-related activities or other money laundering predicate crimes under any applicable law (collectively, “Anti-Money Laundering Laws”) or (y) sanctions administered or enforced by the U.S. Government (including, without limitation, by OFAC and the U.S. Department of State), the United Nations Security Council, the European Union, Her Majesty’s Treasury, or other competent sanctions authority (collectively, “Sanctions Laws”), (ii) has been assessed civil penalties under any Anti-Money Laundering Laws or Sanctions Laws or (iii) has had any of its funds seized or forfeited in an action under any Anti-Money Laundering Laws or Sanctions Laws. The Borrower has taken reasonable measures appropriate to the circumstances (in any event as required by applicable law) to ensure that the Borrower and each Controlled Entity is and will continue to be in compliance with all applicable Anti-Money Laundering Laws and Sanctions Laws.

(e) No part of the Loans will be used, directly or indirectly, for any improper payments to any governmental official or employee, political party, official of a political party, candidate for political office, official of any public international organization or anyone else acting in an official capacity on behalf of a Governmental Authority, in order to obtain, retain or direct business or obtain any improper advantage. The Borrower has taken reasonable measures appropriate to the circumstances (in any event as required by applicable law) to ensure that the Borrower and each Controlled Entity is and will continue to be in compliance with all applicable anti-corruption laws and regulations.

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4.19 No Joint Ventures; Subsidiaries. The Borrower is not a general partner or a limited partner in any general or limited partnership, a joint venturer in any joint venture or a member in any limited liability company. The Borrower does not have any subsidiaries.

4.20 Sufficient Rights. (i) the Borrower’s ownership and lease of its properties, the Transaction Documents and the Applicable Permits create rights in the Borrower sufficient to enable it to develop, construct, finance, own and operate the Projects and to perform as required pursuant to and in accordance with the Transaction Documents; and (ii) there are no material services, materials or rights (including utility services and any Real Property Rights) required for the development, construction, finance, operation or routine maintenance of the Projects in accordance with this Agreement and the ESAs, other than those available under the Project Documents or that can reasonably be expected to be commercially available at the site of each Project.

4.21 No Casualty. Neither the business nor the properties of Borrower are affected by any material casualty, including any fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy, or other casualty (whether or not covered by insurance), that could be reasonably expected to have a Material Adverse Effect. To the knowledge of Borrower, none of the counterparties to a Project Document is affected by any material casualty, including any fire, explosion, accident, strike, lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy, or other casualty (whether or not covered by insurance), that could be reasonably expected to prevent or substantially limit such counterparty’s performance under the applicable Project Document.

4.22 Disclosure.

(a) As of the Closing Date, all representations, warranties and other factual statements relating to the Projects furnished by or on behalf of the Borrower in this Agreement, in any other Credit Document or otherwise in writing (subject to any updates to such representations, warranties and other factual statements delivered by the Borrower in writing prior to the date of this Agreement), to any Secured Party, the Insurance Advisor or the Independent Engineer, are, and all other representations, warranties and other factual statements hereafter furnished by or on behalf of the Borrower in writing (subject to any updates to such representations and warranties delivered by the Borrower in writing) to any Secured Party or any Independent Consultant will be, true and correct in all material respects on the date as of which such information is or was dated or furnished and do not omit any material fact necessary to make such information (taken as a whole) in light of the circumstances under which the same are made not materially misleading at such time.

(b) There are no facts, events or conditions known to the Borrower, that have not been disclosed in writing to the Lenders which, individually or in the aggregate, have or could reasonably be expected to have a Material Adverse Effect.

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4.23 Compliance with Law. Borrower is performing its obligations under each Transaction Document to which it is a party, and the Projects are being developed, constructed, financed, owned and operated by the Borrower, in compliance in all material respects with all applicable Law and the requirements of all Applicable Permits.

4.24 Collateral and Real Property.

(a) Borrower and Pledgor, collectively, have (i) good and marketable title in and to all of the Collateral free and clear of all Liens other than Permitted Liens, (ii) good and valid leasehold interests (other than for Leases of Property located in California) or valid and subsisting easement interests and licenses, if applicable, in and to the Sites, and (iii) interests in any other Real Property, in each case free and clear of all Liens, encumbrances or other exceptions to title, other than Permitted Liens.

(b) With regard to each of the Real Property Documents (other than those related to property located in California) (i) each such Real Property Document is valid and effective against the Borrower and, to the Borrower’s knowledge, the counterparties thereto, in accordance with the terms thereof, (ii) neither the Borrower, nor to the Borrower’s knowledge, any of the counterparties thereto, is in breach or default under such Real Property Document, and (iii) to the Borrower’s knowledge, no event or circumstance has occurred or currently exists which, with notice or lapse of time or both, would become a default by the Borrower or the counterparties thereto under such Real Property Document. No notice of default under any Real Property Document has been delivered to the Borrower or, to the Borrower’s knowledge, the counterparties thereto.

(c) The Borrower has not received written notice from any Governmental Authority of any pending or threatened proceeding to condemn or take by power of eminent domain or otherwise, by any Governmental Authority, all or any material part of the Real Property or any interest therein.

(d) Except for the AT&T Lease, there are no Real Property Rights necessary in connection with Borrower’s performance of its obligations under the PUMA or the ESAs in effect as of the Closing Date. For the avoidance of doubt, each of the Lenders acknowledge that, other than the AT&T Lease, the Borrower does not have, as of the date of this Agreement, any Real Property Rights in association with any of the ESAs.

4.25 Projections. Borrower has prepared, or caused to be prepared, the Project Budget, the Project Schedule and the Projections in good faith. The Project Budget, the Project Schedule and the Projections: (a) are, as of the Closing Date, based on reasonable assumptions as to all legal and factual matters material to the estimates set forth therein, and set forth a reasonably accurate summary of Borrower’s good faith expectations regarding financial performance of the Projects over the life of the credit facilities set forth in this Agreement, provided, however, that the Borrower provides no guaranty as to the financial performance of the Projects; and (b) are consistent, in all material respects, with the provisions of the Transaction Documents executed on or prior to such date.

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4.26 Security Interest.

(a) The security interests in the Collateral granted to the Secured Parties pursuant to the Security Documents are, and, with respect to such subsequently acquired property, will be, as to Collateral perfected under the Uniform Commercial Code, superior and prior to the rights of all third Persons now existing or thereafter arising whether by way of mortgage, lien, security interests, encumbrance, assignment or otherwise except for Permitted Liens.

(b) All action as is necessary has been taken to establish and perfect the Liens in and to the Collateral, including any recording, filing, registration, giving of notice or other similar action.

(c) The principal place of business of the Borrower, as such term is used in the Uniform Commercial Code, is located in California, and the place at which the Borrower’s books of accounts and records shall be located is in California.

4.27 Intellectual Property. Borrower owns or has the right to use all material patents, trademarks, service marks, trade names, copyrights, licenses and other rights, which are necessary for the construction and operation of its business. Borrower has received no notice that (a) any material product, process, method, substance, part or other material presently contemplated to be sold by or employed by Borrower in connection with its business will infringe in any material manner any patent, trademark, service mark, trade name, copyright, license or other right owned by any other Person; (b) there is pending or threatened in writing any claim or litigation against or affecting Borrower contesting its right to sell or use any such product, process, method, substance, part or other material; or (c) there is, or there is pending or proposed, any patent, invention, device, application or principle or any statute, law, rule, regulation, standard or code relating to the Borrower’s intellectual property which could reasonably be expected to have a Material Adverse Effect.

4.28 Project Construction. To the best of the Borrower’s knowledge, all work done on the Projects has been done in a good and workmanlike manner, free of any material defects, and in accordance in all material respects with the Major Project Documents, Prudent Electrical Practices and all Legal Requirements.

4.29 Major Project Documents. True, correct and complete copies of all Major Project Documents together with all amendments, modifications or supplements thereof as currently in effect have been delivered to the Administrative Agent. Each Major Project Document is in full force and effect and, to the Borrower’s knowledge, no material breaches or defaults have occurred and are continuing thereunder.

4.30 No Recordation; Etc. Each Transaction Document is in proper legal form under the respective governing laws selected in such Transaction Document (a) for the enforcement thereof in such jurisdictions against the Borrower and each other party thereto without any further action on the part of the Secured Parties, and (b) to ensure the legality, validity, enforceability, priority or admissibility in evidence of any such document, it is not necessary that such document or any other document be filed, registered or recorded with, or executed or notarized before, any court or other authority in such jurisdiction or that any registration charge or stamp or similar tax be paid on or in respect of any such document, except for the recordation of the Security Documents and filing and recordation of such other documents as specifically contemplated pursuant to this Agreement.

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4.31 Employees; Labor Matters. Borrower does not have any current employees or former employees and is not engaged in any unfair labor practice that has had or could (individually or together with other similar unfair labor practices) reasonably expected to have a Material Adverse Effect.

4.32 Organizational ID Number; Location of Tangible Collateral.

(a) The Borrower’s Delaware organizational identification number is 47-2025119.

(b) All of the tangible Collateral is, or when installed pursuant to the Project Documents will be, located on one of the Sites or at the Borrower’s address set forth on the signature pages hereto; provided, that equipment may be temporarily removed from the Sites from time to time in the ordinary course of business.

4.33 Solvency. As of the Closing Date and any Incremental Facility Closing Date, the Borrower is Solvent after taking into account the transactions contemplated by the Credit Documents.

4.34 Affirmation. The occurrence of the Closing Date, the issuance of each Letter of Credit, and the making of all Loans (except LC Loans) shall constitute an affirmation by the Borrower that the foregoing representations and are true and correct in all material respects on and as of each Borrowing Date as if made on and as of such date (or, if stated to have been made solely as of an earlier date, were true and correct as of such date).

SECTION 5. COVENANTS OF THE BORROWER.

The Borrower covenants and agrees that until the Loan Termination Date it will:

5.1 Use of Proceeds; Payment. Deposit the proceeds of any Loan in the account designated in the Depositary Agreement and apply such proceeds in accordance with Section 2.21. Pay all sums due under the Financing Documents according to the terms hereof and thereof.

5.2 Notices. Promptly, upon acquiring notice or giving notice, as the case may be, or obtaining knowledge thereof, give written notice to the Administrative Agent of:

(a) Promptly after delivery and in any event within five (5) Business Days after receipt thereof, any written notice of any material litigation, material claim (including any claim pursuant to Hazardous Materials Law or Environmental Laws), investigations by or a dispute with a Governmental Authority, including with respect to an alleged material violation of applicable Law or material proceeding, pending or, to the Borrower’s knowledge, threatened, involving or affecting the Borrower or the Pledgor, a copy of such notice.

(b) Any Event of Default or Default;

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(c) (i) the institution of, or the threat in writing of, any condemnation action with respect to the Collateral and (ii) any casualty, damage or loss, whether or not insured, through fire, theft, other hazard or casualty, or any act or omission of the Borrower, its employees, agents, contractors, consultants or representatives, or of any other Person if such casualty, damage or loss affects the Borrower or the Projects, in excess of $250,000 for any one casualty or loss or an aggregate of $600,000 in any five (5) year period;

(d) Any termination, default or event of default or any allegation or notice thereof under any Project Document and any request for a material amendment thereto;

(e) Any written claim of force majeure under any Project Document;

(f) Copies of all material notices received or sent by the Borrower in connection with the Policy;

(g) The issuance, cancellation or material change in the terms of the coverages or amounts of any insurance of the Borrower;

(h) Within ten (10) days following the date on which the Borrower’s auditors resign or the Borrower elects to change auditors, as the case may be, notification thereof, together with such supporting information as the Administrative Agent may reasonably request;

(i) In no event later than five (5) Business Days after execution and delivery thereof, a copy of each Additional Project Document and each new NDA obtained;

(j) Any notice of violation or any requested or actual material modification, revocation or termination in respect of any Applicable Permits; and

(k) Such reports and information concerning the Projects and at such times as the Administrative Agent shall reasonably require.

5.3 Financial Statements and Reporting Requirements.

(a) Deliver to the Administrative Agent (unless waived by the Administrative Agent at the direction of the Required Lender with respect to the timing of delivery of the statements and reports in electronic format suitable for distribution on the Platform (as defined in Section 9.3(e) hereof):

(i) Within forty-five (45) days after the end of each of the first three quarterly accounting periods of each fiscal year (commencing with the quarter ending September 30, 2015), unaudited financial statements (comprised of a balance sheet and income statement, and without notes) of each of Borrower and each Sponsor (provided that the obligations to provide such financial statements of a Sponsor shall terminate upon termination of such Sponsor’s funding obligations under the Equity Contribution Agreement); and

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(ii) Within one hundred twenty (120) days after the end of each fiscal year of the Borrower (commencing with the fiscal year ending December 31, 2015), annual audited financial statements of each of Borrower, each Sponsor (provided that the obligations to provide such financial statements of a Sponsor shall terminate upon termination of such Sponsor’s funding obligations under the Equity Contribution Agreement), and Bloom for such fiscal year, accompanied with an audit opinion thereon by an auditor with a nationally-recognized accounting firm, which opinion shall state that said financial statements present fairly, in all material respects, the financial position of the relevant Person at the end of, and for, such fiscal year in accordance with GAAP.

(b) Upon delivery of each financial statement of Borrower pursuant to Section 5.3(a), deliver a certificate of an Authorized Officer of the Borrower that (i) no Default or Event of Default has occurred and is continuing, (ii) the financial statements of Borrower fairly present in all material respects the financial condition and (to the extent applicable) results of operations of Borrower, in accordance with GAAP, consistently applied, as at the end of, and for, such period (subject to normal year-end audit adjustments), (iii) beginning with the first financial statements due to be delivered on or after the first Quarterly Date after Completion, a calculation of the Debt Service Coverage Ratio for the preceding twelve (12) months; provided that, to the extent any such Quarterly Date is less than 12 months after Completion, the Debt Service Coverage Ratio as of such Quarterly Date shall be calculated solely on the basis of the period between Completion and such Quarterly Date, and (iv) which includes a statement of whether the Borrower is in compliance with the requirements of Section 5.16.

5.4 Reports.

(a) Prior to the Term Conversion Date, deliver to Administrative Agent and the Independent Engineer monthly after the Closing Date as soon as available but not later than the thirtieth (30th) day following the end of each calendar month and at such other times as Administrative Agent may reasonably request, a report in the form of Exhibit L describing in reasonable detail the progress of the construction of each of the Projects since the last such report hereunder, including compliance with the Project Budget and the Project Schedule and any material variances therefrom.

(b) From and after the Term Conversion Date, deliver to Administrative Agent quarterly as soon as available but not later than the forty-fifth (45th) day after the end of each quarter, a summary operating report, which shall include [***] and (ii) to the extent applicable, a comparison of year-to-date figures to corresponding figures provided in the prior year.

(c) From and after the Term Conversion Date, deliver to Administrative Agent quarterly as soon as available but not later than the forty-fifth (45th) day after the end of each quarter, a summary operating report, which shall include in relation to the Portfolio: (i) a monthly and year-to-date numerical and narrative assessment of compliance with each material category in the then-current Annual Budget; and (ii) to the extent applicable, a comparison of year-to-date figures to corresponding figures provided in the prior year.

[***] Confidential Treatment Requested

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5.5 Existence, Conduct of Business. Except as otherwise expressly permitted under this Agreement, (a) maintain and preserve its existence as a limited liability company and all material rights and privileges necessary or desirable in the normal conduct of its business, and (b) engage only in the business contemplated by the Transaction Documents. Borrower will be, and at all times will hold itself out to the public as, a legal entity separate and distinct from any other entity (including any Affiliate of Borrower or any constituent party of Borrower), shall correct any known misunderstanding regarding its status as a separate entity, shall conduct business in its own name, shall not identify itself as a division or part of the other and shall maintain and utilize separate stationery, separate bank accounts, invoices and checks bearing its own name.

5.6 Books and Records. Maintain adequate books, accounts and records with respect to the Borrower and the Projects and prepare all financial statements of the Borrower required hereunder in accordance with GAAP and in compliance with the regulations of any governmental regulatory body having jurisdiction thereof. The Borrower shall permit employees or agents of the Administrative Agent at any reasonable times (but, in the absence of a continuing material Default or a continuing Event of Default, limited to two (2) times per year) and upon reasonable prior notice to inspect all of the Borrower’s properties, including the Land, and to examine or audit all of the Borrower’s books, accounts and records and make copies and memoranda thereof.

5.7 Utility Regulation. Take or cause to be taken all necessary or appropriate actions so that (a) the Borrower and the Projects shall not be subject to, or shall benefit from an exemption from or waiver of financial, organizational or rate regulation as an “electric utility”, “electric corporation” or any similar Person under the laws of the States of California, New York, New Jersey and Connecticut and any other state in which the Borrower operates facilities that generate electricity as presently constituted and as construed by the courts of such States, (b) the Borrower will sell electricity only to the applicable Offtaker at each Site pursuant to the relevant ESA and will not make any other wholesale or retail sales, (c) Borrower files (or supports a filing by Bloom) with FERC for the FERC PUHCA Order and maintains such order in effect, and (d) no later than the Borrower’s initial sale at wholesale of any electric energy, capacity or ancillary services from its facilities that generate electricity the Borrower shall have obtained MBR Authority. For so long as the Borrower is a “public utility” under the FPA it shall maintain its MBR Authority and shall comply in all material respects with the requirements of FERC applicable to its MBR Authority, including timely reporting and filings under the FPA.

5.8 Construction of the Projects. Borrower agrees to use commercially reasonable efforts to cause all work done on the Projects to be done in a good and workmanlike manner, free of any material defects, and in accordance in all material respects with the Major Project Documents, Prudent Electrical Practices and all Legal Requirements.

5.9 Completion. Achieve Completion on or before the Date Certain.

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5.10 Operation of Projects.

(a) No less than thirty (30) days in advance of the end of each calendar year, prepare an Annual Budget for the upcoming annual period, detailed by calendar month and consistent with the methodology set forth in the Lender Base Case Projections for the Portfolio (by ESA), of anticipated revenues, Debt Service, proposed member distributions, the difference (if positive) of the Total Aggregate Efficiency Deficit Amount (as such term is defined in each ESA other than the AT&T ESA) with respect to the applicable Systems under an ESA minus the sum of all Aggregate Efficiency Deficit Amounts (as defined in each such ESAs) paid by Borrower to the applicable Offtaker under such ESAs, positive efficiency bank balance, failures to meet power performance warranties, maintenance, repair and operation expenses (including reasonable allowance for contingencies and working capital), maintenance reserves and all other anticipated Operation and Maintenance Expenses for the Projects until the conclusion of the first full fiscal year thereafter and provide a copy of such Annual Budget to the Administrative Agent and the Independent Engineer for the review and approval by the Independent Engineer (such approval not to be unreasonably withheld, conditioned or delayed). Borrower shall incorporate reasonable suggestions of the Administrative Agent if any within ten (10) days of receipt (in consultation with the Independent Engineer) into the final Annual Budget and the Annual Budget shall be adopted prior to the end of the calendar year. Borrower shall operate and maintain the Projects, or cause the Projects to be operated and maintained, within the applicable Annual Budget as approved by the Administrative Agent in consultation with the Independent Engineer and, in addition to and subject to the foregoing, shall not exceed the aggregate Annual Budget by more than [***] ([***]) of the total budgeted amount for the applicable fiscal year.

(b) Operate and administer the Projects, its business and its properties at all times in accordance in all material respects with the Annual Budget, applicable Law and Prudent Electrical Practice and make or cause to be made all repairs (structural and non-structural, extraordinary or ordinary) necessary to keep and operate the Projects and perform its obligations under the Project Documents.

(c) Pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all of its obligations under the Project Documents and all of its other obligations of whatever nature and howsoever arising, except such as may be contested in good faith or as to which a bona fide dispute may exist, provided that adequate cash reserves have been established for the payment thereof in the event such dispute was resolved unfavorably to the Borrower, or the Lenders are satisfied in their reasonable discretion that non-payment of such obligation pending the resolution of such contest or dispute will not result in a Material Adverse Effect.

5.11 Preservation of Rights.

(a) Maintain and preserve its existence as a Delaware limited liability company and all material rights, privileges and franchises necessary in the normal conduct of its business. Maintain all necessary permits and licenses, including all Applicable Permits, with respect to its business and the Projects.

(b) Preserve, protect and defend the material rights of the Borrower under each Project Document, including prosecution of suits to enforce any right of the Borrower thereunder and enforce any claims with respect thereto; provided, however, that upon the occurrence and during the continuance of an Event of Default, if the Administrative Agent requests that certain actions necessary to preserve the Collateral be taken and the Borrower fails to take the requested action within five (5) Business Days, the Administrative Agent may enforce, in its own name or the Borrower’s name, such rights of the Borrower.

[***] Confidential Treatment Requested

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(c) From time to time promptly, upon the reasonable request of the Administrative Agent or the Required Lenders, the Borrower shall execute, acknowledge or deliver, or, in the case of Real Property, use commercially reasonable efforts to cause the execution, acknowledgment and delivery of, and thereafter register, file or record, or cause to be registered, filed or recorded in an appropriate governmental office, all such notices, statements, instruments and other documents (including any financing statement, continuation statement, certificate of title or lessee estoppel certificate) supplemental to or confirmatory of the Security Documents, and take such other steps as may be deemed by the Administrative Agent necessary or advisable to render fully valid and enforceable under all applicable laws the rights, liens and priorities of the Secured Parties with respect to all Collateral in which a first priority security interest can be perfected by possession, control or by filings under the UCC, and other security from time to time furnished under the Credit Documents or intended to be so furnished, or for the continued validity, perfection and priority of the Liens on the Collateral covered thereby subject to no other Liens except as permitted by the applicable Security Document, or in the case of Real Property use commercially reasonable efforts to obtain any consents or waivers as may be necessary or appropriate in connection therewith, in each case in such form and at such times as shall be reasonably requested by the Required Lenders or the Administrative Agent, and pay all reasonable fees and expenses (including reasonable attorneys’ fees) incident to compliance with this Section 5.11(c). Upon the exercise by the Required Lenders or the Collateral Agent of any power, right, privilege or remedy pursuant to any Credit Document which requires any consent, approval, registration, qualification or authorization of any Governmental Authority, the Borrower shall execute and deliver all applications, certifications, instruments and other documents and papers that any Lender or the Administrative Agent may reasonably require. If the Required Lenders or the Administrative Agent reasonably determine that they are required by law or regulation to have appraisals prepared in respect of the Real Property, the Borrower shall provide to each Lender appraisals that satisfy the applicable requirements of the Real Estate Appraisal Reform Amendments of FIRREA and are otherwise in form and substance satisfactory to the Required Lenders.

5.12 Eminent Domain. If an Event of Eminent Domain shall occur with respect to any Collateral, the Borrower shall (a) diligently pursue all its rights to compensation against the relevant Governmental Authority in respect of such Event of Eminent Domain, (b) not, without the consent of the Administrative Agent as directed by the Required Lenders (which consent shall not be unreasonably withheld or delayed), compromise or settle any claim against such Governmental Authority in an amount in excess of $1,000,000 individually and $5,000,000 in the aggregate, and (c) pay or apply all proceeds from an Event of Eminent Domain in accordance with the Depositary Agreement. The Borrower consents to, and agrees not to object to or otherwise impede or impair, the participation of the Lenders and/or the Collateral Agent in any condemnation proceedings involving an amount in excess of $1,000,000 individually and $5,000,000 in the aggregate, and the Borrower shall from time to time deliver to the Lenders and the Collateral Agent all documents and instruments requested by them or it to permit such participation

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5.13 Taxes. (i) prior to the time penalties shall attach thereto, pay and discharge or cause to be paid or discharged all taxes, assessments and governmental charges or levies imposed upon it or its income or profits; provided that, the Borrower shall not be required to pay any such obligation if such charges are subject to a Contest, and (ii) pay or cause to be paid any valid, final and non-appealable judgment enforcing any such tax, duty, fee, assessment, levy, other governmental charge or claim and shall cause the same to be satisfied of record, as applicable.

5.14 Tax Status. The Borrower shall at all times maintain its classification as an entity that is disregarded as separate from its owner for U.S. federal and applicable state and local income tax purposes and shall not elect, or take or fail to take any other action that could cause the Borrower, to be treated as an association taxable as a corporation for U.S. federal and applicable state and local income tax purposes.

5.15 Compliance with Laws and Applicable Permits. At its expense, promptly (i) comply, or cause compliance, in all material respects, with all applicable Laws, including but not limited to Hazardous Materials Laws and Environmental Laws, and with applicable regulations of FERC and NERC, and (ii) procure, maintain and comply, or cause to be procured, maintained and complied, in all material respects, with all Applicable Permits. Borrower shall (i) promptly take any remedial, responsive or corrective action required under any Environmental Law or Hazardous Materials Law with respect to any presence or Release of Hazardous Materials to the extent that such presence or Release could reasonably be expected to give rise to a material liability or a material remedial, corrective or investigatory obligation of Borrower and (ii) promptly respond to, and address, any Environmental Claim against Borrower or the Projects as required by Environmental Law and as required by Prudent Electrical Practice.

5.16 Maintenance of Insurance. Maintain or cause to be maintained on its behalf in effect at all times the types of insurance required by Schedule 5.16 with insurance companies rated “A-” or better, with a minimum size rating of “X” by Best’s Insurance Guide and Key Ratings (or an equivalent rating by another nationally recognized insurance rating agency of similar standing if Best’s Insurance Guide and Key Ratings shall no longer be published) or other insurance companies of recognized responsibility satisfactory to the Administrative Agent (in consultation with the Insurance Advisor); provided that, if, the Required Lenders shall determine (in consultation with the Insurance Advisor or its independent brokers (and, as long as no Event of Default has occurred and is continuing (other than as a result of the unavailability of insurance on commercially reasonable terms), Borrower)) that any insurance hereby required to be maintained is not available on commercially reasonable terms, then Borrower may obtain and maintain similar insurance to the extent available on commercially reasonable terms. Any insurance policy required to be maintained under this Section 5.16 shall be subject to Section 2.23 and Section 5.2(g).

5.17 Required Interest Rate Hedge Agreements. By the date which is thirty (30) days after the Closing Date in respect of part (a) below and ten (10) Business Days after the Closing Date in respect of part (b) below, Borrower will enter into and thereafter maintain interest rate hedge agreements on such terms as shall be reasonably satisfactory to the Lenders (which may include the interest rate hedge agreements that the Borrower has in place on or prior to the Closing Date, if applicable), in order to protect from adverse fluctuations in interest expense (a)

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from the Closing Date through Term Conversion Date in respect of at least [***] percent ([***]) (but no more than [***] percent ([***])) of the outstanding aggregate principal amount of the Construction Loans and Term Loans at any such time (based on funding and repayment thereof in accordance with the most recent Lender Base Case Projections delivered to and approved by the Administrative Agent), (b) from Term Conversion Date through [***], [***] in respect of at least [***] percent ([***]) (but no more than [***] percent ([***])) of the outstanding aggregate principal amount of the Term Loans at any such time (based on funding and repayment thereof in accordance with the most recent Lender Base Case Projections delivered to and approved by the Administrative Agent); provided, however, that obligations of the Borrower pursuant to any interest rate hedge agreement with any Lenders or their respective affiliates shall be paid on a pari passu basis with the Obligations; provided, further, that should such any hedge position cover greater than [***] percent ([***]) of the applicable Loans, the Borrower shall have thirty (30) days to unwind or revise such hedge position to the levels required in this Section 5.17.

5.18 Project Revenue. Deposit all Project Revenue in the Revenue Account for application solely for the purposes and in the order and manner provided in the Depositary Agreement.

5.19 Additional Necessary Permits and Project Documents.

(a) Deliver to Administrative Agent promptly, but in no event later than fifteen (15) days after the receipt thereof by Borrower, copies of any Project Document entered into after the Closing Date and any amendment, supplement or other modification to any Applicable Permit or any Project Document received or entered into by Borrower after the Closing Date.

(b) With respect to any Material Additional Project Document entered into by Borrower after the Closing Date and except as provided below, Borrower shall use commercially reasonable efforts to cause its counterparty thereto to execute and deliver to Administrative Agent a consent in form and substance reasonably satisfactory to Administrative Agent. With respect to any Material Additional Project Document entered into by Borrower after the Closing Date which is a replacement for a Project Document in effect as of the Closing Date (except the Required Hedging Agreements), Borrower shall cause its counterparty thereto to execute and deliver to Administrative Agent a consent in form and substance reasonably satisfactory to Administrative Agent or in substantially the form of the Direct Agreement in place with the counterparty to the Project Document which is being replaced.

5.20 Policy Proceeds, Subrogation and Consent. The Borrower shall promptly upon receipt thereof deposit any amount received from the Insurer under the Policy in accordance with Section 2.23 of this Agreement.

(a) No right of subrogation or assignment of any rights of recovery under the Policy shall be permitted so long as any Loans are outstanding.

(b) The Borrower acknowledges that certain modifications, amendments, amendments and restatements, extensions or waivers under the Credit Documents may require the consent of an insurer pursuant to Section VIII.11 of the Policy, and the Borrower shall take all commercially reasonable efforts to obtain any such consent required under the Policy.

[***] Confidential Treatment Requested

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5.21 Independent Consultants. Cooperate in all reasonable respects with the Independent Consultants and ensure that each Independent Consultant is provided with all information reasonably requested by such consultant with respect to the financing, construction or operation of the Projects and exercise due care to ensure that any factual information which it may supply to such consultant is materially accurate in all respects, and not, by omission of information or otherwise, misleading in any material respect at the time such information is provided, to the extent that such consultant relied on such information in preparing its report.

5.22 Further Assurances. Execute and deliver all documents as shall be reasonably required or that the Administrative Agent or any Lender shall reasonably request in connection with the rights and remedies of the Administrative Agent and the Lenders under the Transaction Documents.

SECTION 6. NEGATIVE COVENANTS.

The Borrower covenants and agrees that until the Loan Termination Date it will not, without the prior written consent of the Required Lenders (unless a different consent standard is specifically provided in any section):

6.1 Contingent Liabilities. Except as provided in this Agreement, become liable as a surety, guarantor, accommodation endorser or otherwise, for or upon the obligation of any other person, firm or corporation or otherwise create, incur, assume or suffer to exist any contingent obligation exceeding in the aggregate $500,000; provided, however, that this Section 6.1 shall not be deemed to prohibit (a) the acquisition of goods, supplies or merchandise in the normal course of business on normal trade credit; (b) the endorsement of negotiable instruments received in the normal course of its business; (c) contingent liabilities required under any Permit; or (d) contingent obligations under or in respect of indemnification obligations pursuant to Project Documents or other agreements entered into in accordance with this Agreement, obligations to pay insurance premiums and similar obligations in each case incurred in the ordinary course of business.

6.2 Limitations on Liens. Create, assume or suffer to exist any Lien securing a charge or obligation on the Collateral, the Projects or the Real Property Rights, whether now owned or hereafter acquired, except the following:

(a) Liens specifically created by any Financing Document;

(b) Liens for taxes, assessments and other governmental charges not yet due or which are subject to a Contest;

(c) pledges or deposits to secure statutory obligations or to secure the performance of bids, trade contracts and leases;

(d) any interest or title of a licensor, lessor or sublessor under any written license, lease or sublease of real estate permitted hereunder and covering only the assets so leased;

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(e) any zoning, building and land use or similar law, ordinance, order, decree, restriction, condition or right reserved to or vested in any Governmental Authority to control or regulate the use of any real property; provided such law, ordinance, order, decree, restriction, condition or right does not adversely affect in any material respect the intended use of the Real Property Rights subject thereto as contemplated by the Transaction Documents;

(f) Liens securing judgments not constituting an Event of Default under Section 7.1(i);

(g) involuntary Liens (including a Lien of an attachment, judgment or execution) securing a charge or obligation, on any of the Borrower’s property, either real or personal, whether now or hereafter owned in the aggregate sum of less than $100,000;

(h) materialmen’s, mechanics’, workers’, repairmen’s, employees’ or other like Liens, arising in the ordinary course of business or in connection with the construction, operation or maintenance of the Projects, either for amounts not yet due or for amounts being contested in good faith and by appropriate proceedings, so long as (i) such proceedings shall not involve any substantial danger of the sale, forfeiture or loss of the Projects or any Site, as the case may be, title thereto or any interest therein and shall not interfere in any material respect with the use or disposition of the Projects or any Site, (ii) a bond or other security reasonably acceptable to the Administrative Agent has been posted or provided in such manner and amount as to assure the Administrative Agent that any amounts determined to be due will be promptly paid in full when such contest is determined, or (iii) adequate cash reserves have been provided therefor; and

(i) easements, rights-of-way, restrictions, title imperfections, encroachments, minor defects or irregularities in title and similar matters in each case, that could not reasonably be expected to (i) impair the relevant System’s ability to perform materially in accordance with the Lender Base Case Projections or (ii) cause or result in a material breach of, or event of default under, any Major Project Document.

6.3 Accounts. Maintain, establish or use any account (other than the Accounts or the Local Account).

6.4 Indebtedness. Create, incur, assume, suffer to exist or otherwise become or remain directly or indirectly liable for any Indebtedness except the following:

(a) Indebtedness hereunder;

(b) Indebtedness under Required Hedging Agreements;

(c) Indebtedness pursuant to the terms of a Project Document (but not for borrowed money), either not more than 90 days past due or being contested in good faith;

(d) Contingent Obligations permitted pursuant to Section 6.1 hereof;

(e) Indebtedness for Capital Lease Obligations not to exceed $100,000 in the aggregate;

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(f) trade or other similar Indebtedness incurred in the ordinary course of business (but not for borrowed money), either not more than 90 days past due or being contested in good faith; and

(g) unsecured Indebtedness in an aggregate amount at any one time outstanding not in excess of $1,000,000, which is incurred in the ordinary course of business other than for money borrowed.

6.5 Sale or Lease of Assets. Sell, lease to a third Person, assign, transfer or otherwise dispose of assets whether now owned or hereafter acquired, except (a) in the ordinary course of its business, as contemplated in the Project Documents, (b) for obsolete or worn out property not used or useful in its business, (c) as expressly contemplated by the Transaction Documents (including, without limitation, in connection with the (i) return and repurchase of any System by Bloom as provided in the PUMA, (ii) sale of any System to an Offtaker under an ESA and (iii) transfer (following payment by an Offtaker of the applicable Termination Value and application of such proceeds pursuant to Section 2.13(b)(iii)) of any System to the Pledgor; and (d) for assets which are replaced by substitute assets of equal or greater value in the ordinary course of business. Upon any such sale, lease, assignment, transfer or other disposition of any such assets, all Liens in favor of Collateral Agent relating to such asset shall be released. The Borrower shall not enter into any sale and leaseback transactions.

6.6 Distributions. Directly or indirectly, make or declare any distribution (in cash, property or obligation) on, or other payment on account of, any interest in the Borrower except in accordance with the Depositary Agreement.

6.7 Amendment of Project Documents; Assignment by Third Parties.

(a) Except as otherwise provided herein, materially amend, modify, supplement or waive, accept, or permit or consent to the termination, or material amendment, modification, supplement or waiver (including any waiver (or refund) of damages (liquidated or otherwise) payable by any contractor under any Major Project Document) of, any provision of, or give any material consent under any of the Major Project Documents, the [***] Assignment and Assumption Agreement or the [***] Reimbursement Agreement. Notwithstanding the foregoing, the Borrower may amend, modify, supplement or waive, or accept, or permit or consent to, any of the ESAs and Project Documents to allow for the addition, removal or modification of Sites or locations so long as any such amendment, modification, supplement, or waiver could not reasonably be expected to have a Material Adverse Effect on the performance of the Portfolio as reflected in the DSCR contained in the most recent Updated Lender Base Case Projections.

(b) To the extent the Borrower’s consent is required, consent to the assignment of any obligations under any Major Project Document by any counterparty thereto; excluding, however, any instance in which, in accordance with the terms of the applicable Major Project Document, the Borrower is required to provide such consent (so long as the stated conditions are satisfied).

[***] Confidential Treatment Requested

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6.8 Additional Project Documents. Enter into any Material Additional Project Document unless an Authorized Officer of the Borrower certifies in writing to the Lenders (at least ten (10) Business Days prior to execution) that the transactions contemplated by such Material Additional Project Document could not reasonably be expected to result in a Material Adverse Effect, are, in the Borrower’s reasonable judgment, in the best interest of the applicable Project and are not inconsistent with the Project Budget or the Annual Budget, as applicable and provides a copy of the proposed agreement.

6.9 Capital Expenditures. Make or enter into any binding future commitment to make Capital Expenditures except in compliance with the Project Budget or the Annual Budget then in effect, as applicable, or to prevent injury or protect property in the event of an emergency up to a maximum amount of [***], or that are reasonably required in order to operate and maintain the Project in accordance with the Legal Requirements and the Major Project Documents up to a maximum amount of [***].

6.10 Investments. Make or permit to remain outstanding any advances or loans or extensions of credit to, or purchase or own any stock, bonds, notes, debentures or other securities of any person, firm or corporation except Permitted Investments.

6.11 Transactions With Affiliates. Enter into any transaction or series of related transactions with any Affiliate on terms less favorable than those in comparable arms-length transactions. The Lenders acknowledge the Administrative Services Agreement, the PUMA, and the [***] Energy Services and License Agreement in the forms in effect on the Closing Date are acceptable for purposes of this Section 6.11.

6.12 Fundamental Changes.

(a) Enter into any transaction of merger or consolidation, change its form or jurisdiction of organization, liquidate, wind-up, dissolve itself (or suffer any liquidation or dissolution) or sell all or substantially all its assets (other than as expressly contemplated by the Transaction Documents (including, without limitation, in connection with the (i) return and repurchase of any System by Bloom as provided in the PUMA and (ii) sale of any System to an Offtaker under an ESA)) to any other entity.

(b) Change the nature of its business or expand its business beyond the business contemplated in the Transaction Documents or activities incidental thereto or take any action, whether by acquisition or otherwise, which would constitute or result in any material alteration to the nature of such business.

(c) (i) Acquire by purchase or otherwise stock or other evidence of beneficial ownership of any Person, (ii) create or acquire any subsidiary, or (iii) enter into any partnership, joint venture or sale-leaseback.

(d) Change its name or the location of its chief executive office or principal place of business (as such terms are used in the applicable UCC from time to time) without written notice to Administrative Agent at least thirty (30) days prior to such change, or change its fiscal year without the prior written consent of the Required Lenders such consent not to be unreasonably withheld.

[***] Confidential Treatment Requested

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6.13 Margin Loan Regulations. Directly or indirectly apply any part of the proceeds of the Loans, any cash equity contributions received by the Borrower or other funds or revenues to the “buying” or “carrying” of any Margin Stock or to extend credit to others for the purpose of “buying” or “carrying” any Margin Stock within the meaning of the regulations of the Federal Reserve Board, including Regulations T, U or X, or any interpretations or rulings thereunder.

6.14 Loss Proceeds; Project Revenue. Use, pay, transfer, distribute or dispose of any Loss Proceeds or any Project Revenues in any manner or for any purpose except in accordance with the Credit Documents.

6.15 Sanctions Regulations. The Borrower will not (a) become a Blocked Person or (b) have any investments in or engage in any dealings or transactions with any Blocked Person or in or relating to a Sanctioned Country if such investments, dealings or transactions would cause any Lender to be in violation of any laws or regulations that are applicable to such Lender.

6.16 Real Property. Acquire any material real property or leasehold, easement or other material interest in real property, except in connection with the potential acquisition of a leasehold interest in a new Site under an existing ESA or a new ESA entered into in connection with any Incremental Loans.

6.17 Lease Obligations. Create, incur, assume or suffer to exist any obligations as lessee for the rent or hire of any property under leases (other than the Leases) which, in the aggregate, costs the Borrower in excess of [***].

6.18 Use of Sites. Subject to the fee rights of the Offtakers and to existing third party easements, rights of way, or other third party property rights over the Sites, and only to the extent that Borrower has site control over the Sites: use, maintain, operate or occupy, or allow the use, maintenance, operation or occupancy of, any portion of the Projects or any Site for any purpose (a) which may (i) constitute a public or private nuisance or (ii) make void, voidable, or cancelable, or materially increase the premium of, any insurance policies then in force with respect to all or a portion of the Projects, or (b) that could reasonably be expected to have a Material Adverse Effect.

6.19 Disputes. Agree, authorize or otherwise consent to any proposed settlement, resolution or compromise of any litigation, arbitration or other dispute with any Person if such proposed settlement, resolution or compromise could reasonably be expected to result in a Material Adverse Effect.

6.20 Assignment. Assign its rights or obligations under any Credit Document or any Major Project Document to any Person, except pursuant to the Security Documents.

6.21 Insurance Policy.

(a) Knowingly take (or fail to take) any action that could reasonably be expected to cause any breach or termination of the Policy including, without limitation, any action in violation of Section VIII.12.a. of the Policy.

[***] Confidential Treatment Requested

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(b) Permit any System reaching COO after the Policy Cutoff Date to be included in the Portfolio.

(c) Permit the capacity of the Portfolio to exceed the Maximum Capacity.

SECTION 7. EVENTS OF DEFAULT AND REMEDIES.

7.1 Events of Default. Each of the following events, acts, occurrences or conditions shall constitute an “Event of Default” under this Agreement, regardless of whether such event, act, occurrence or condition is voluntary or involuntary or results from the operation of Law or pursuant to or as a result of compliance by any Person with any judgment, decree, order, rule or regulation of any Governmental Authority:

(a) Failure to Make Payments. The Borrower shall (i) default in the payment when due of any Fees or any other Obligations (other than principal on the Loans) under this Agreement or any other Credit Document and such default shall continue for a period of five (5) Business Days of receipt of written notice from the Administrative Agent (at the direction of the Required Lenders except as to Fees, interest and principal), or (ii) default in the payment when due of any principal with respect to the Loans, including any mandatory prepayments required hereunder, and such default shall continue for a period of three (3) Business Days.

(b) Breach of Representation or Warranty. Any representation or warranty made by the Borrower, the Pledgor or any Sponsor in any Transaction Document or in any certificate or instrument delivered pursuant thereto shall prove to be false or misleading in any material respect on the date as of which made or deemed made; provided that no Event of Default shall occur pursuant to this clause (b) if within thirty (30) days of the date on which the Borrower receives notice or becomes aware (in each case, from any source) that such representation or warranty was false or misleading, Borrower shall eliminate or otherwise cure to the reasonable satisfaction of the Required Lenders any such material and adverse effects relating to such false or misleading representation or warranty.

(c) Breach of Covenants. (i) Borrower shall fail to perform or cause to be performed any covenant or obligation arising under Sections 5.5, 5.11(b) and (c) and Article VI (other than as set forth in clause 7.1(c)(ii)), (ii) Borrower shall fail to perform or cause to be performed any covenant or obligation arising under Section 6.2(e) and (f) and such failure shall continue for fifteen (15) days, (iii) Borrower shall fail to perform or cause to be performed any covenant or obligation arising under Section 5.16 and such failure shall continue for five (5) Business Days, or (iv) the Borrower, the Pledgor or any Sponsor shall fail to perform or cause to be performed any covenant or obligation arising under this Agreement (except those described in subsections (a), (b) and (c)(i), (ii) and (iii) above) or under any other Credit Document, and such failure shall continue for thirty (30) days after knowledge thereof by the Borrower; provided, that with written notice from the Borrower to the Administrative Agent such thirty (30) day grace period shall be extended by up to an additional sixty (60) days as shall be necessary for the Borrower diligently to cure such failure so long as the Borrower certifies in such notice that (A) such default is reasonably subject to cure within such additional period, (B) the Borrower commences such cure no later than fifteen (15) days after the Borrower becomes aware or is made aware of such failure and the Borrower is at all times thereafter diligently and continuously proceeding to cure such failure, and (C) the granting of such additional time would not reasonably be expected to have a Material Adverse Effect; provided, further, however, that if such failure constitutes an Event of Default under any other provision of this Section 7.1, no such grace period shall apply.

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(d) Indebtedness. (i) The Borrower shall default in the payment when due (whether by scheduled maturity, required prepayment, acceleration, demand or otherwise, but after giving effect to any grace period) of any financial Indebtedness (other than the Obligations) in the aggregate principal amount of $1,500,000 or more and such default permits the holder or holders thereof, or any collateral agent for such holders, to accelerate the maturity of such Indebtedness; or (ii) the Borrower shall default in the performance or observance of any obligation or condition with respect to any such Indebtedness or any other event shall occur or condition exist, if the effect of such default, event or condition has been to accelerate the maturity of any such Indebtedness or to permit the holder or holders thereof, or any collateral agent for such holders, to accelerate the maturity of any such Indebtedness, or any such Indebtedness shall become or be declared to be due and payable prior to its stated maturity other than as a result of a regularly scheduled payment; provided, however, that the Lenders shall have the right, but not the obligation, to cure any such default prior to the passage of any applicable grace period by the use or application of funds on deposit in the Accounts.

(e) Default Under Project Documents.

(i) Borrower’s Defaults. The Borrower shall be in breach of, or in default of, any material obligation under a Major Project Document and either (A) such breach or default has been asserted in writing by the counterparty of such Major Project Document and such breach or default shall not be remediable or, if remediable, shall continue unremedied for the lesser of (x) a period of 30 days or (y) such period of time (without giving effect to any extension given to Collateral Agent under any applicable Direct Agreement with respect thereto) under such Major Project Document (or with the consent of the counterparty thereto) which the Borrower has available to it in which to remedy such breach or default, or (B) such breach or default could reasonably be expected to lead to a termination of such Major Project Document or other material liability thereunder.

(ii) Third Party Defaults. Any Major Project Participant shall be in breach of, or in default under a Major Project Document (other than early termination or partial termination of any ESA, so long as the Offtaker owes a Termination Value pursuant to such ESA at termination or partial termination) to which it is party, and such breach or default (x) shall not be remediable or, if remediable, shall continue unremedied for a period beyond the applicable grace period and (y) has had or could reasonably be expected to have a Material Adverse Effect; provided, however that any such action under this subsection (ii) shall not constitute an Event of Default if: (A) the Borrower has entered into a Replacement Major Project Contract with a Replacement Obligor within ninety (90) days thereof, as such period may be extended by one additional thirty (30)-day cure period if Borrower is diligently seeking to obtain such Replacement Material Project Contract and continues during such extended cure period to meet or exceed the Downside Sizing Case Projections, or (B) in the case of any ESA, the Termination Value has been paid by the applicable Offtaker to the Borrower within ninety (90) days thereof.

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(iii) Third Party Direct Agreements. (x) Any Person other than the Borrower shall disaffirm or repudiate in writing its material obligations under any Direct Agreement and such disaffirmation or repudiation could reasonably be expected to result in a Material Adverse Effect, (y) any representation or warranty made by any Person other than the Borrower in a Direct Agreement shall be untrue or misleading in any material respect as of the time made and such untrue or misleading representation or warranty could reasonably be expected to result in a Material Adverse Effect, or (z) a Person other than the Borrower shall breach any material covenant of a Direct Agreement and such breach or default shall not be remediable or, if remediable, shall continue unremedied for a period of thirty (30) days from the time the Borrower obtains knowledge of such breach and such breach could reasonably be expected to result in a Material Adverse Effect.

(iv) Wal-Mart Direct Agreement. Subject to the Collateral Agent having signed a Direct Agreement in the form of Exhibit F to the ESA with Wal-Mart, the Borrower shall fail to deliver to Wal-Mart within ten (10) Business Days of the Closing Date such Direct Agreement.

(f) Bankruptcy. (i) Any Event of Bankruptcy shall occur with respect to any of the Borrower, the Pledgor or any Sponsor who has funding obligations under the ECA that have not been fully performed, (ii) any Event of Bankruptcy shall occur with respect to any Major Project Participant, unless (A) the Borrower has entered into a Replacement Major Project Contract with a Replacement Obligor within 270 days following such applicable Event of Bankruptcy; (B) such applicable Replacement Major Project Contract is assumed by the estate of the entity subject to the Event of Bankruptcy; or (C) in the case of any ESA, the Termination Value has been paid by the applicable Offtaker to the Borrower within 270 days following such applicable Event of Bankruptcy or (iii) for counterparties not otherwise addressed in the foregoing clauses (i) and (ii), any Event of Bankruptcy shall occur with respect to any other counterparty to any other Major Project Document, if such Event of Bankruptcy could, in the judgment of the Required Lenders, reasonably be expected to have a Material Adverse Effect; provided, however, notwithstanding anything to the contrary in the foregoing clause, so long as payments in respect of debt service are being made under the Policy (or are scheduled to be made in accordance with the terms thereof) or otherwise, no Event of Default under this Section 7.1(f) in respect of Bloom shall be deemed to have occurred.

(g) Dissolution. (i) Any order, judgment, or decree shall be entered against any of the Borrower, the Pledgor, Bloom or ExGen, in each case, decreeing such Person’s involuntary dissolution or (ii) any of Borrower, the Pledgor, Bloom or ExGen, shall dissolve or cease to exist; provided, however, notwithstanding anything to the contrary in the foregoing clause, so long as payments in respect of debt service are being made under the Policy (or are scheduled to be made in accordance with the terms thereof) or otherwise, no Event of Default under this Section 7.1(g) in respect of Bloom shall be deemed to have occurred.

(h) Ownership of the Project. The Borrower shall cease to be the sole owner of the Projects (other than in connection with the (i) repurchase of any System by a Sponsor in accordance with the PUMA and/or (ii) sale of any System to an Offtaker under any of the ESAs), and/or (iii) transfer (following payment by an Offtaker of the applicable Termination Value and application of such proceeds pursuant to Section 2.13(b)(iii)) of any System to the Pledgor, and/or (iv) any other disposition of a Project that is permitted or contemplated hereunder.

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(i) ERISA. (i) an event described in Section 4043 of ERISA shall occur (other than an event not subject to the provision for notice to the PBGC under the regulations promulgated under such Section) with respect to any Pension Plan, (ii) any Pension Plan shall fail to meet the minimum funding standards of Section 412 or 430 of the Code or Section 302 or 303 of ERISA, whether or not waived, (iii) any Pension Plan shall be in “at risk” status within the meaning of Section 430(i) of the Code, or any Multiemployer Plan shall be in “endangered status” or “critical status” within the meaning of Section 432(b) of the Code, (iv) any Borrower shall fail to pay when due an amount which it shall have become liable to pay to the PBGC, any Pension Plan or a trust established under Title IV of ERISA, (v) a condition shall exist by reason of which the PBGC would be entitled to obtain a decree adjudicating that a Pension Plan must be terminated or have a trustee appointed to administer it, (vi) Borrower or a member of the Controlled Group shall suffer a partial or complete withdrawal from a Multiemployer Plan that could reasonably be expected to result in the imposition of liability in excess of $500,000 or is in “default” (as defined in Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan in excess of $500,000, (vii) a proceeding shall be instituted against the Borrower to enforce Section 515 of ERISA or (viii) any other event or condition shall occur or exist with respect to any Pension Plan which would subject the Borrower to any tax, penalty or other liability (other than required contributions in the normal course); and any such event or events described in clauses (i) through (viii) above, either individually or together with any other such event or events, could reasonably be expected to have a Material Adverse Effect.

(j) Judgments. Any final and non-appealable judgment or decree shall be entered by a court or courts of competent jurisdiction against the Borrower and (i) such judgment or decree shall award non-monetary relief which could reasonably be expected to have a Material Adverse Effect and has not been stayed, discharged, satisfied, or vacated within forty-five (45) days, (ii) such judgment or decree shall award monetary damages in an amount of $1,500,000 or more individually or in the aggregate when taken together with all other judgments and decrees, and shall not be stayed, discharged, paid, bonded or vacated within forty-five (45) days, or (iii) enforcement proceedings shall be commenced by any creditor on any judgment or decree described above and shall not be stayed, discharged, paid, bonded or vacated on the date which is five (5) days after commencement of such proceeding.

(k) RESERVED

(l) Loss of Collateral. (i) All or any material portion of the Collateral is damaged, seized or appropriated (including by means of eminent domain) without appropriate Loss Proceeds (subject to the underlying deductible), payment under the Policy, or without fair value being paid therefor so as to allow replacement of such Collateral or prepayment of the Loans and to allow the Borrower to continue satisfying its obligations hereunder and under the other Transaction Documents, (ii) any Person other than Collateral Agent attaches or institutes proceedings to attach all or any material part of the Collateral, and any such proceeding or attachment or any judgment Lien against any such Collateral (other than Permitted Liens) (A) remains unlifted, unstayed or undischarged for a period of thirty (30) days or (B) is upheld in a final nonappealable judgment of a court of competent jurisdiction, or (iii) at any time following the Term Conversion Date, the Borrower elects, as contemplated in Section 2.13(b)(i), to voluntarily dispose of energy servers or Projects that aggregate in excess of 10MW of Systems that have achieved COO and are in active operation at such time.

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(m) Credit Document Matters. At any time after the execution and delivery thereof, (a) any Credit Document or any material provision hereof or thereof (i) ceases to be in full force and effect or to be valid and binding on any party thereto other than a Secured Party (other than by reason of the satisfaction in full of the Obligations or any termination of a Credit Document in accordance with the terms hereof or thereof), or is assigned or otherwise transferred (except as otherwise required or expressly permitted hereunder or thereunder) or is prematurely terminated by any party thereto (other than a Secured Party), (ii) is or becomes invalid, illegal or unenforceable, or any party hereto or thereto (other than a Secured Party) repudiates or disavows or takes any action to challenge the validity or enforceability of such agreement, (iii) is declared null and void by a Governmental Authority of competent jurisdiction, or (iv) fails to or ceases to provide the rights, powers and privileges purported to be created thereby or hereby, or (b) any authorization or approval by any Governmental Authority necessary to enable any Credit Party to comply with or perform its Obligations or otherwise perform in accordance with the terms of the Credit Documents shall be revoked, withdrawn or withheld, or shall otherwise fail to be issued or remain in full force and effect, and the failure of such authorization or approval from such Governmental Authority is reasonably expected to have a Material Adverse Effect.

(n) Loss of or Failure to Obtain Applicable Permits.

(i) The Borrower shall fail to obtain any Permit on or before the date that such Permit becomes an Applicable Permit with respect to the Projects, and such failure could reasonably be expected to have a Material Adverse Effect.

(ii) Any Applicable Permit shall be materially modified (other than modifications contemplated in a Project Document requested by the Borrower), revoked, cancelled or not renewed by the issuing agency or other Governmental Authority having jurisdiction (or otherwise ceases to be in full force and effect) and within forty-five (45) days thereafter the Borrower is not able to demonstrate to the reasonable satisfaction of the Required Lenders that such modification of, revocation of, cancellation of, failure to renew, or failure to maintain in full force and effect such Permit could not reasonably be expected to have a Material Adverse Effect.

(o) Change of Control. A Change of Control shall have occurred without the prior written consent of the Required Lenders.

(p) Insurance Policy. The Policy ceases to be in full force and effect, or the Insurer has failed to pay any claim that has been properly submitted and is undisputed under the Policy within one hundred eighty (180) days of submission.

(q) Debt Service Reserve Facility. In the event any Letter of Credit is terminated and not replaced, extended or renewed in accordance with Section 2.4(a) (except if such termination or absence of replacement, extension or renewal is due to the action or inaction of a Defaulting Lender), the Debt Service Reserve Account is not funded in cash with an amount equal to the lesser of (i) the Debt Service Reserve Requirement and (ii) the available amount under such Letter of Credit prior to such termination.

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7.2 Acceleration.

(a) If an Event of Default specified in paragraph (f) or (g) of Section 7.1 shall occur with respect to the Borrower, automatically all Loan Commitments shall immediately terminate and all Loans (with accrued interest thereon) and all other amounts owing under the Financing Documents shall immediately become due and payable.

(b) If any Event of Default (other than an Event of Default referred to in Section 7.2(a)) shall occur, then the Administrative Agent (acting at the direction of the Required Lenders) may by notice to the Borrower either (A) declare the Loan Commitments to be terminated, whereupon all Loan Commitments shall immediately terminate and/or (B) declare the Loans, all accrued and unpaid interest thereon and all other amounts owing to the Lenders under the Financing Documents to be due and payable, whereupon the same shall become immediately due and payable.

(c) Except as expressly provided above in this Section 7.2, presentment, demand, protest and all other notices and other formalities of any kind are hereby expressly waived by the Borrower.

(d) Notwithstanding the foregoing, prior to the exercise of remedies by the Administrative Agent, Borrower shall have the option, exercisable upon written notice to the Administrative Agent, with respect to any Event of Default affecting up to [***] of the Portfolio (the “Affected Portion”) to cure such Event of Default by removing the Systems part of such Affected Portion and severing the Systems in the Affected Portion from the Portfolio by effectuating a buydown of the Loan Facilities as described in this Section 7.2(d). In order to avail itself of the buydown set forth in this Section 7.2(d), the Borrower shall re-calculate the size of the Loan Facilities under the Downside Sizing Case Projections (in consultation with the Independent Engineer) by reducing the project-capacity assumption therein to the capacity of the Systems not affected by the Event of Default and otherwise changing no other assumptions in the Downside Sizing Case Projections, which Updated Downside Sizing Case Projections shall be confirmed by the Independent Engineer. Any amount by which, after such review and approval, the then outstanding aggregate principal amount of the Loans exceeds the revised total principal amount of the Loans needed to achieve a Debt Service Coverage Ratio of [***] through the Final Maturity Date based such Updated Downside Sizing Case Projections, is the “Event of Default Buydown Amount.” The Borrower shall prepay, pursuant to Section 2.12, the Event of Default Buydown Amount within thirty (30) days unless the Required Lenders within five (5) Business Days of receipt thereof (in consultation with the Independent Engineer) object in writing to the Borrower’s re-calculation and, as soon as reasonably practicable with such prepayment, transfer the Affected Portion of the Portfolio to another Person.

[***] Confidential Treatment Requested

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7.3 Other Remedies. Upon the occurrence and during the continuation of an Event of Default:

(a) The Collateral Agent may, but shall not be obligated to, exercise any or all rights and remedies at law or in equity (in any combination or order that the Collateral Agent may elect), including without limitation or prejudice to the Collateral Agent’s other rights and remedies, any and all rights and remedies available under any of the Financing Documents.

(b) The Collateral Agent may take certain actions herein described, and the Borrower hereby appoints the Collateral Agent (acting on the instruction of the Administrative Agent at the direction of the Required Lenders) as the attorney-in-fact of the Borrower, with full power of substitution, and in the name of the Borrower, if the Collateral Agent elects to do so at any time after the Loans have been declared immediately due and payable pursuant to this Section 7, to: (i) employ such engineers and contractors as may be required, and advance and apply such sums as are necessary, including any proceeds of the Loans, for the purpose of completing the construction of the Projects, (ii) disburse and directly apply the proceeds of any Loan to the satisfaction of any of the Borrower’s obligations hereunder or under any other Financing Document, (iii) hold, use, disburse and apply the Loans for the payment or performance of any obligation of the Borrower under any Project Document, (iv) advance and incur such expenses as the Required Lenders deem reasonably necessary for the completion of construction of the Projects and to preserve the Projects, (v) disburse any portion of any Loan, from time to time, to Persons other than the Borrower for the purposes specified herein or in any other Transaction Document, (vi) maintain or operate the Projects, (vii) execute all applications and certificates in the name of the Borrower as may be required for construction and operation of the Projects, (viii) endorse the name of the Borrower on any checks or drafts, representing proceeds of any insurance policies, or other checks or instruments payable to the Borrower with respect to the Projects, (ix) do every act with respect to the Transaction Documents and the construction and operation of the Projects which the Borrower may do and (x) prosecute or defend any action or proceedings incident to the Projects. The power-of-attorney granted hereby is a power coupled with an interest and is irrevocable. The Collateral Agent shall have no obligation to undertake any of the foregoing actions, and, if it takes any such action it shall have no liability to the Borrower to continue the same or for the sufficiency or adequacy thereof.

(c) Any funds of any Lender or the Collateral Agent (including the proceeds of any Loans) used for any purpose referred to in this Section 7.3, whether or not in excess (without obligating any Lender to fund any Loans in excess of its Commitment) of the relevant Loan Commitments shall (i) be governed hereby, (ii) constitute a part of the Obligations secured by the Security Documents, (iii) bear interest at the Default Rate, and (iv) be payable upon demand by such Lender or the Collateral Agent, as applicable.

SECTION 8. THE AGENTS.

8.1 Appointment and Authorization.

(a) Each Lender hereby irrevocably (subject to Section 8.9) appoints, designates and authorizes Crédit Agricole Corporate and Investment Bank as the initial Administrative Agent to take such action on its behalf under the provisions of this Agreement and each other Financing Document to which it is a party and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any such other Financing Document, together with such powers as are reasonably incidental thereto.

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(b) Each Lender hereby irrevocably (subject to Section 8.9) appoints, designates and authorizes Wilmington Trust, National Association as the initial Collateral Agent to take such action on its behalf under the provisions of this Agreement and each other Financing Document to which it is a party and to exercise such powers and perform such duties as are expressly delegated to it by the terms of this Agreement or any such other Financing Document, together with such powers as are reasonably incidental thereto.

(c) Each of the Lenders authorizes, respectively, each Agent to execute, deliver and perform each of the Financing Documents to which such Agent is or is intended to be a party and each Lender agrees to be bound by all of the agreements of such Agent contained in the Financing Documents.

(d) Notwithstanding any provision to the contrary contained elsewhere in this Agreement or in any other Financing Document, none of the Agents shall have any duties or responsibilities except those expressly set forth herein and in the other Financing Documents, nor shall any of the Agents have or be deemed to have any fiduciary relationship with any Lender, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into this Agreement or any other Financing Document or otherwise exist against any of the Agents. Without limiting the generality of the foregoing sentence, the use of the terms “Administrative Agent,” and “Collateral Agent,” in this Agreement with reference to the Administrative Agent or the Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead, such terms are used merely as a matter of market custom, and are intended to create or reflect only a relationship between independent contracting parties.

8.2 Delegation of Duties. Any of the Agents may execute any of its duties under this Agreement or any other Credit Document by or through agents, employees or attorneys-in-fact and shall be entitled to advice of counsel concerning all matters pertaining to such duties. None of the Agents shall be responsible for the negligence or misconduct of any agent or attorney-in-fact that it selects with reasonable care.

8.3 Liability of the Agents. None of the Agents nor the respective directors, officers, agents, representatives and employees of such parties shall (a) be liable to any Lender for any action taken or omitted to be taken by any of them under or in connection with this Agreement or any other Transaction Document or the transactions contemplated hereby (except for its own gross negligence or willful misconduct), or (b) be responsible in any manner to any of the Secured Parties or any other Person for any recital, statement, representation or warranty made by the Borrower or any Affiliate of the Borrower, or any officer thereof, contained in this Agreement or in any other Transaction Document, or in any certificate, report, statement or other document referred to or provided for in, or received by any Agent under or in connection with, this Agreement or any other Transaction Document, or for the value of or title to any Collateral, or the validity, effectiveness, genuineness, enforceability or sufficiency of this Agreement or any other Transaction Document, or for any failure of the Borrower or any other party to any Transaction Document to perform its obligations hereunder or thereunder. None of the Agents or any Agent-Related Person shall be under any obligation to any Secured Party to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, this Agreement or any other Transaction Document, or to inspect the Properties, books or records of the Borrower or any Affiliate of the Borrower.

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8.4 Reliance by the Agents. Each of the Agents shall be entitled to rely, and shall be fully protected in relying, upon any writing, resolution, notice, consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone message, statement or other document or conversation believed by it to be genuine and correct and to have been signed, sent or made by the proper Person or Persons, and upon advice and statements of legal counsel (including counsel to the Borrower), independent accountants and other experts selected by any such Agent. Each of the Agents shall be fully justified in failing or refusing to take any action under this Agreement or any other Transaction Document (a) if such action would, in the opinion of such Agent (upon consultation with counsel), be contrary to applicable Law or the terms of any Credit Document, (b) if such action is not specifically provided for in the Credit Documents to which such Agent is a party or such action involves discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by such Agent (including, as to the Collateral Agent, the enforcement of any remedies under the Credit Documents) and it shall not have received such advice or concurrence of the Administrative Agent (or, in the case of the Administrative Agent, of the Required Lenders) as it deems appropriate, (c) if in connection with the taking of any such action that would constitute the making of a payment due under any Project Document pursuant to the terms of any Direct Agreement, it shall not first have received from any or all of the other Secured Parties funds equal to the amount of such payment, or (d) unless, if it so requests, such Agent shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Each of the Agents shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement or any other Transaction Document in accordance with a request or consent of the Required Lenders or, in the case of the Collateral Agent, in accordance with a request or consent of the Administrative Agent or Required Lenders, and such request and any action taken or failure to act pursuant thereto shall be binding upon all of the Secured Parties.

The permissive rights of the Collateral Agent hereunder shall not be construed as duties. In no event shall the Collateral Agent be liable for indirect, consequential or special damages regardless of the form of action and regardless of whether the Collateral Agent was warned of the possibility thereof in advance. The Collateral Agent is authorized to obey and comply, in any manner it or its counsel deems appropriate, with all writs, order, judgments, awards, decrees issued or process entered by any court or arbitral tribunal with respect to this Agreement and if the Collateral Agent so complies, it shall not be liable to any party hereto or to any other party or person notwithstanding that any such writ, order, judgment, award, decree or process may be subsequently reversed, modified, annulled, set aside, vacated or found to have been entered without competent jurisdiction. No provision of this Agreement shall require the Collateral Agent to take any action or inaction or to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it.

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Notwithstanding anything to the contrary contained herein, the Collateral Agent shall have no responsibility for (i) preparing, recording, filing, re-recording or re-filing any financing statement, perfection statement, continuation statement or other instrument in any public office or for otherwise ensuring the perfection or maintenance of any security interest granted pursuant to any Financing Document, (ii) taking any necessary steps to preserve rights against any parties with respect to any Collateral or (iii) taking any action to protect against any diminution in value of the Collateral.

8.5 Notice of Default.

(a) The Administrative Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default, except with respect to defaults in the payment of principal, interest and fees required to be paid to the Administrative Agent for the account of the Lenders, unless the Administrative Agent shall have received written notice from a Lender or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “Notice of Default.” If the Administrative Agent receives any such notice of the occurrence of a Default or an Event of Default, it shall give prompt notice thereof to the Lenders and the Collateral Agent. The Administrative Agent, in accordance with this Agreement, shall take such action with respect to such Default or Event of Default as may be requested by the Required Lenders in accordance with this Section 8; provided, however, that unless and until the Administrative Agent has received any such request, the Administrative Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default as it shall deem advisable or in the best interest of the Lenders.

(b) The Collateral Agent shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default unless the Collateral Agent shall have received written notice from the Administrative Agent, a Lender or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “Notice of Default”. If the Collateral Agent receives any such notice of the occurrence of a Default or an Event of Default, it shall give notice thereof to the Administrative Agent. The Collateral Agent, in accordance with this Agreement, shall take such action with respect to such Default or Event of Default, and such action on behalf of the Secured Parties under any other Financing Document as may be requested by the Administrative Agent (as directed by the Required Lenders); provided, however, that unless and until the Collateral Agent has received any such request, the Collateral Agent may (but shall not be obligated to) take such action, or refrain from taking such action, with respect to such Default or Event of Default or other Financing Document as it shall deem advisable or in the best interest of the Lenders.

8.6 Credit Decision. Each Lender acknowledges that none of the Agents has made any representation or warranty to it, and that no act by any of the Agents hereafter taken, including any review of the Projects or of the affairs of the Borrower, shall be deemed to constitute any representation or warranty by any Agent to any Lender. Each Lender represents to the Agents that it has, independently and without reliance upon any Agent and based on such documents and information as it has deemed appropriate, made its own appraisal of and investigation into the business, prospects, operations, Property, financial and other condition and creditworthiness of the Borrower, the Projects, the value of and title to any Collateral, and all

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applicable bank regulatory Laws relating to the transactions contemplated hereby, and made its own decision to enter into this Agreement and to extend credit to the Borrower hereunder. Each Lender also represents that it will, independently and without reliance upon any Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit analysis, appraisals and decisions in taking or not taking action under this Agreement and the other Transaction Documents, and to make such investigations as it deems necessary to inform itself as to the business, prospects, operations, Property, financial and other condition and creditworthiness of the Borrower and the Projects. Except for notices, reports and other documents expressly required pursuant to any Financing Document to be furnished to the Lenders by the Agents, the Agents shall not have any duty or responsibility to provide any Lender with any credit or other information concerning the business, prospects, operations, Property, financial and other condition or creditworthiness of the Projects or of the Borrower which may come into the possession of any Agent.

8.7 Indemnification of Agents.

(a) Whether or not the transactions contemplated hereby are consummated, the Lenders shall indemnify upon demand each Agent and its directors, officers, agents, representatives and employees (to the extent not reimbursed by or on behalf of the Borrower and without limiting the obligation of the Borrower to do so), pro rata in accordance with the aggregate principal amount of the Loans held by such Lender, from and against any and all for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever, which may at any time be imposed on, incurred by or asserted against each Agent and its Affiliates and the partners, directors, officers, employees, agents and advisors of each Agent and of such Agent’s Affiliates in any way relating to or arising out of this Agreement or the other Financing Documents (“Indemnified Liabilities”); provided, however, that no Lender shall be liable for the payment to any Agent of any portion of such Indemnified Liabilities resulting solely from such Person’s gross negligence or willful misconduct.

(b) Without limitation of the foregoing, each Lender shall reimburse each Agent upon demand for its ratable share as provided above of any costs or out-of-pocket expenses (including Attorney Costs) incurred by such Agent in connection with the preparation, execution, delivery, administration, modification, amendment or enforcement (whether through negotiations, legal proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, this Agreement, any other Transaction Document or any document contemplated by or referred to herein, to the extent that such Agent is not reimbursed for such expenses by or on behalf of the Borrower.

(c) The undertakings of the Lenders in this Section shall survive the payment of all Obligations hereunder, the termination of this Agreement and the resignation or replacement of any Agent.

8.8 Agents in Individual Capacities. Each of the Agents and their respective Affiliates may make loans to, issue letters of credit for the account of, accept deposits from, acquire equity interests in and generally engage in any kind of banking, trust, financial advisory, underwriting or other business with the Borrower or its Affiliates as though such Agent were not

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an Agent hereunder and without notice to or consent of the Lenders. The Lenders acknowledge that, pursuant to such activities, an Agent or its Affiliates may receive information regarding the Borrower or its Affiliates (including information that may be subject to confidentiality obligations in favor of the Borrower or such Affiliates) and acknowledge that the Agents shall be under no obligation to provide such information to them. Any Agent which is also a Lender hereunder shall have the same rights and powers under this Agreement as any other Lender and may exercise the same as though it were not an Agent, and the terms “Lender” and “Lenders” shall include such Agent in its individual capacity.

8.9 Successor Agents.

(a) Subject to the appointment and acceptance of a successor as provided below, each of the Administrative Agent and the Collateral Agent may resign at any time by giving notice thereof to the other Agents, the Lenders and the Borrower, and each such Agent may be removed at any time with or without cause by the Required Lenders. Upon any such resignation or removal, the Required Lenders shall have the right to appoint a successor to the applicable Agent. If no successor Agent shall have been appointed by the Required Lenders, and shall have accepted such appointment within thirty (30) days after the resigning Agent’s giving of notice of resignation or the giving of any notice of removal of any such Agent, then the resigning Agent or Agent being removed, as the case may be, may petition a court of competent jurisdiction to appoint a successor to such Agent; provided that in no event shall any such successor Agent be a Defaulting Lender. If the Collateral Agent shall resign or be removed pursuant to the foregoing provisions, upon the acceptance of appointment by a successor Collateral Agent hereunder, the former Collateral Agent shall deliver all Collateral then in its possession to the successor Collateral Agent. Upon the acceptance of its appointment as a successor Agent hereunder, such successor Agent shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of such resigning or removed Agent, and such resigning Agent or removed Agent shall be discharged from its duties and obligations hereunder.

(b) If the Person serving as any Agent is a Defaulting Lender pursuant to clause (d) of the definition thereof, the Required Lenders may, to the extent permitted by applicable law, by notice in writing to the Borrower and such Person remove such Person as Agent and, in consultation with the Borrower, appoint a successor. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within thirty (30) days (or such earlier day as shall be agreed by the Required Lenders) (the “Removal Effective Date”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.

(c) After any Agent’s resignation or removal, the provisions of this Section 8 and of Sections 9.1 and 9.2 shall inure to its benefit as to any actions taken or omitted to be taken by it while it was an Agent.

8.10 Registry. The Borrower hereby designates the Administrative Agent, and the Administrative Agent agrees, to serve as the Borrower’s agent, solely for purposes of this Section 8.10, to maintain a register at one of its offices in New York, New York (the “Register”) on which it will record the Loan Commitments from time to time of each of the Lenders, the Loans made by each of the Lenders and each repayment in respect of the principal amount of the

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Loans of each Lender. Failure to make any such recordation, or any error in such recordation shall not affect the Borrower’s obligations in respect of such Loans. With respect to any Lender, the transfer of the Loan Commitments of such Lender and the rights to the principal of, and interest on, any Loan made pursuant to such Loan Commitments shall not be effective until such transfer is recorded on the Register maintained by the Administrative Agent with respect to ownership of such Loan Commitments and Loans, and prior to such recordation all amounts owing to the transferor with respect to such Loan Commitments and Loans shall remain owing to the transferor. The registration of an assignment or transfer of all or part of any Loan Commitments and Loans shall be recorded by the Administrative Agent on the Register only upon the acceptance by the Administrative Agent of a properly executed and delivered Assignment and Acceptance pursuant to Section 9.11.

8.11 Withholding. To the extent required by any applicable Laws, the Administrative Agent may withhold from any payment to any Lender an amount equivalent to any applicable withholding tax. Without limiting or expanding the provisions of Section 2.19, each Lender shall indemnify and hold harmless the Administrative Agent against, and shall make payable in respect thereof within 10 days after demand therefor, any and all taxes and any and all related losses, claims, liabilities and expenses (including fees, charges and disbursements of any counsel for the Administrative Agent) incurred by or asserted against the Administrative Agent by the United States Internal Revenue Service or any other Governmental Authority as a result of the failure of the Administrative Agent to properly withhold tax from amounts paid to or for the account of such Lender for any reason (including, without limitation, because the appropriate form was not delivered or not properly executed, or because such Lender failed to notify the Administrative Agent of a change in circumstance that rendered the exemption from, or reduction of withholding tax ineffective). A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under this Agreement or any other Financing Document against any amount due the Administrative Agent under this Section 8.11. The agreements in this Section 8.11 shall survive the resignation and/or replacement of the Administrative Agent, any assignment of rights by, or the replacement of, a Lender, the termination of the commitments and the repayment, satisfaction or discharge of all other Obligations. For the avoidance of doubt, for purposes of this Section 8.11, the term “Lender” includes an Issuing Bank and the term “Administrative Agent” includes the “Collateral Agent.”

SECTION 9. MISCELLANEOUS.

9.1 Costs and Expenses. The Borrower shall, whether or not the transactions contemplated hereby are consummated and whether or not any of the following are incurred before or after the Closing Date, pay, within five (5) Business Days after demand, all reasonable and documented costs and expenses of the Agents in connection with the preparation, issuance, delivery, filing, recording, performance and administration of this Agreement, the other Transaction Documents, and any other documents which may be delivered in connection herewith or therewith, including, without limitation, all reasonable and documented engineers’, architects’, environmental, insurance, grant and other consultants’ fees (including any such fees incurred in connection with the preparation of any report referred to herein and any inspections pursuant hereto), all reasonable and documented Attorney Costs, the reasonable and documented

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fees and expenses of any local counsel who may be retained by the Administrative Agent with respect to the transactions contemplated by this Agreement, and all reasonable and documented costs and expenses incurred by any Secured Party (including Attorney Costs) in connection with (a) any and all amounts which any Secured Party has paid relative to curing any Event of Default resulting from the acts or omissions of the Borrower under this Agreement or any other Transaction Document, (b) the enforcement or attempted enforcement of, or the investigation or preservation of any rights or remedies under, this Agreement or any other Transaction Document, or (c) any amendment, waiver or consent with respect to any provision contained in this Agreement or any other Transaction Document. Notwithstanding the foregoing, the documented costs and expenses of the Agents incurred complying with any instructions (whether reasonable or not) of the Secured Parties in connection with any Default or Event of Default by Borrower or enforcement of rights under the Financing Documents shall be deemed reasonably incurred by such Agents (to the extent the incurrence of such costs and expenses is reasonably required to comply with such instructions) and are reimbursable by Borrower hereunder. In addition, the Borrower shall pay any and all stamp and other taxes and fees payable or determined to be payable in connection with the execution, delivery, filing and recording of this Agreement or any other Transaction Document, or any other document which may be delivered in connection with this Agreement, and agrees to save the Secured Parties harmless from and against any and all liabilities with respect to or resulting from any delay in paying or omission to pay such taxes and fees.

9.2 Indemnity. Whether or not the transactions contemplated hereby are consummated:

(a) The Borrower shall pay all reasonable and documented out-of-pocket costs and expenses (including reasonable attorney’s fees, expenses and court costs) of the Joint Lead Arrangers, Agents, the Issuing Banks and, the Lenders, as the case may be, in connection with (i) the negotiation, preparation, execution and delivery of the Credit Documents and the documents and instruments referred to therein, (ii) the syndication of the Loans (including reasonable and documented fees and expenses of the Independent Engineer in the performance of services contemplated by the terms of this Agreement, or otherwise in providing engineering expertise reasonably necessary in connection with any consent or approval by the Lenders, or in connection with the reasonably necessary review of any circumstance or condition affecting the Transactions, the reasonable fees and expenses of the Insurance Advisor), (iii) the creation, perfection or protection of the Collateral Agent’s Liens in the Collateral (including, without limitation, fees and expenses for lien searches and filing and recording fees), (iv) the Administrative Agent’s and Collateral Agent’s review and due diligence (including, without limitation, the review of the other Material Additional Project Documents and the reasonable and documented fees and expenses of the Independent Engineer and the Insurance Advisor), and (v) any amendment, waiver or consent relating to any of the Credit Documents (including, without limitation, as to each of the foregoing, the reasonable and documented fees and disbursements of counsel to the Administrative Agent and the Collateral Agent (including those incurred in any bankruptcy proceeding). As to sub-parts (i) through (iv) above for the period prior to the Closing Date, none of the Joint Lead Arrangers, Administrative Agent, the Issuing Banks, the Lenders or the Collateral Agent shall be entitled to reimbursement of any fees for additional counsel or consultants engaged by any such Person if not previously agreed with Borrower.

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(b) The Borrower shall pay all reasonable and documented out-of-pocket costs and expenses of the Collateral Agent, the Administrative Agent, each Issuing Bank and each Lender in connection with the preservation of rights under, and enforcement of, the Credit Documents and the documents and instruments referred to therein or in connection with any restructuring or rescheduling of the Obligations (including, without limitation, the reasonable and documented fees and disbursements of counsel for the Collateral Agent, the Administrative Agent, the Issuing Banks and the Lenders). Notwithstanding the foregoing, the documented costs and expenses of the Agents incurred complying with any instructions (whether reasonable or not) of the Secured Parties in connection with any Default or Event of Default by Borrower or enforcement of rights under the Credit Documents shall be deemed reasonably incurred by such Agents (to the extent the incurrence of such costs and expenses is reasonably required to comply with such instructions) and are reimbursable by Borrower hereunder.

(c) The Borrower shall pay, and hold the Collateral Agent, the Administrative Agent, each Issuing Bank and each Lender harmless from and against, any and all present and future stamp, excise, mortgage recording and other similar taxes and fees with respect to the foregoing matters and hold the Collateral Agent, the Administrative Agent, each Issuing Bank and each Lender harmless from and against any and all liabilities with respect to or resulting from any delay or omission (other than to the extent attributable to such Person) to pay such taxes.

(d) Subject to Section 9.2(e), the Borrower agrees that provided that the Indemnitee (as defined below) promptly notifies the Borrower (but failure to so notify the Borrower shall not relieve the Borrower of its obligations hereunder except to the extent such failure materially prejudices the ability of the Borrower with respect to a claim or results in an increased indemnification obligation to be incurred by the Borrower) of such claim (i) to indemnify, defend and hold harmless each of the Collateral Agent, the Administrative Agent, each Issuing Bank, each Lender and its Affiliates, and the respective directors, officers, agents, representatives and employees of such parties (each, an “Indemnitee”), from and against any actual losses, claims, demands, damages or liabilities of any kind, including any Environmental Claims or any losses, claims, demands, damages or liabilities arising under Hazardous Materials Law, arising out of activities of any Indemnitee pursuant to the Financing Documents and in connection with Lender acting in its capacity as a lender, and (ii) to reimburse each Indemnitee for all reasonable and documented out of pocket expenses (including reasonable attorney’s fees and expenses) incurred by such Indemnitee after the date it learns of a claim in connection with investigating, preparing or defending (to the extent such Indemnitee is permitted to defend such claim or matter at the Borrower’s expense pursuant to this Section 9.2(d)) any investigative, administrative, judicial or regulatory action or proceeding in any jurisdiction arising out of such activities, services, transaction or role, whether or not in connection with pending or threatened litigation to which any Indemnitee is a party, in each case within thirty (30) days after a request for reimbursement of such expenses is received by the Borrower. The Borrower shall have the right to investigate, and to defend or, subject to the applicable Indemnitee’s consent and approval (which shall not be unreasonably withheld, conditioned or delayed) compromise or settle any claim for which indemnification is sought under this Section 9.2(d); provided, however, that such Indemnitee shall not be required to consent to any compromise or settlement involving the imposition of non-financial obligations or financial obligations for which such Indemnitee will not be indemnified hereunder. If the Borrower elects to compromise or defend any such asserted liability, it may do so with counsel selected by it, after notice to the Indemnitee indicating that, as

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between the Borrower and the Indemnitee, the Borrower is obligated to indemnify the Indemnitees for such asserted liability. Each Indemnitee shall cooperate with all reasonable requests of the Borrower in connection with the Borrower’s compromise or defense and will provide the Borrower with all information not within the control of the Borrower as is reasonably available to such Indemnitee. Any Indemnitee shall be entitled, at its expense, to participate in any defense or compromise which has been assumed by the Borrower. Notwithstanding the foregoing, each Indemnitee shall have the right under this Section 9.2(d) to participate in the defense of any asserted liability or assume and control the defense or compromise of any asserted liability against such Indemnitee and employ separate counsel in connection thereof if and to the extent that (i) in the reasonable opinion of such Indemnitee and its counsel, such defense or compromise involves the potential imposition or conflict of interest between such Indemnitee and the Borrower or between such Indemnitee and another Indemnitee or the potential imposition of criminal liability upon such Indemnitee, (ii) the retention of counsel by the Indemnitee or the assumption and control of the defense or compromise of any such asserted liability, as applicable, has been specifically authorized by the Borrower, (iii) the Borrower does not notify the Indemnitee within twenty (20) days after receipt of a claim notice that it elects to undertake the defense of such claim or (iv) the Borrower provides such notice but fails to prosecute vigorously and diligently such claim and, in each such event described in the preceding clauses (i), (ii), (iii) and (iv), the Borrower shall pay the reasonable fees and expenses (including, without limitation, reasonable attorneys’ fees and expenses) of such Indemnitee in such defense or compromise. The Borrower will not, however, be responsible for any such losses, claims, demands, damages, liabilities or expenses (a) that are finally judicially determined to have resulted primarily from Indemnitee’s gross negligence or willful misconduct or (b) if not the primary cause of loss, to the actual extent such losses, claims, demands, damages, liabilities or expenses are finally judicially determined to have resulted from Indemnitee’s gross negligence or willful misconduct. The Borrower shall not be liable for any settlement of any litigation or proceeding effected without its written consent (which will not be unreasonably withheld, conditioned or delayed). The Borrower will not, without Indemnitee’s written consent which will not be unreasonably withheld, conditioned or delayed, settle, compromise, consent to the entry of any judgment in or otherwise seek to terminate any claim, action or proceeding in respect of which indemnity may be sought hereunder, whether or not any Indemnitee is an actual or potential party thereto, unless such settlement, compromise, consent or termination includes an unconditional release of each Indemnitee from any liabilities arising out of such claim, action or proceeding. If the foregoing indemnification is judicially determined to be unavailable to an Indemnitee (other than in accordance with the terms hereof), the Borrower shall contribute to the losses, claims, demands, damages, liabilities and expenses referred to herein that are paid or payable by such Indemnitee in such proportion as is appropriate to reflect the relative economic interests of the Borrower and its security holders, on the one hand, and of Lender, on the other hand, in the transaction contemplated hereunder, and any other relevant equitable considerations.

(e) Notwithstanding any other provision of this Agreement, the Borrower shall not have any obligation or liability to any party (including without limitation an Indemnitee) for any Environmental Claims or matters related to Hazardous Materials to the extent that such claim or matter relates to Hazardous Materials first brought on or occurring at, on, under, to or from the relevant Property after the date on which the title to or possession of the relevant Project(s) or Site(s) are foreclosed upon or otherwise taken in accordance with the terms of this Agreement or any other Financing Document.

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9.3 Notices.

(a) All notices, requests and other communications provided for hereunder shall be in writing (including, unless the context expressly otherwise provides, by facsimile or electronic mail transmission (with the notice, request or communication included in an attachment in PDF format).

(b) All such notices, requests and communications (i) sent by express courier will be effective upon delivery to the addressee, (ii) transmitted by facsimile will be effective when sent and facsimile confirmation received, and (iii) transmitted by electronic mail will be effective upon sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, return e-mail or other written acknowledgement).

(c) The Borrower acknowledges and agrees that any agreement of the Secured Parties to receive certain notices by telephone and facsimile is solely for the convenience and at the request of the Borrower. The Secured Parties shall be entitled to rely on the authority of any Person purporting to be a Person authorized by the Borrower to give such notice and the Secured Parties shall not have any liability to the Borrower or other Person on account of any action taken or not taken by any of the Secured Parties in reliance upon such telephonic or facsimile notice.

(d) All notices, requests and other communications hereunder and under the other Credit Documents shall be in the English language.

(e) The Borrower and each Lender hereby acknowledge that the Administrative Agent will make information available to the Lenders by posting the information on Debtdomain or another similar electronic system (the “Platform”). Each Lender agrees that any notice or document posted on the Platform by the Administrative Agent shall be deemed to have been delivered to the Lenders. It is expressly understood and agreed that the Platform shall be maintained at the sole cost and expense of the Administrative Agent, and Borrower shall not be responsible for any costs and expenses relating thereto.

THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” NEITHER THE ADMINISTRATIVE AGENT NOR ANY OF ITS AFFILIATES WARRANTS THE ACCURACY OR COMPLETENESS OF THE INFORMATION CONTAINED ON THE PLATFORM OR THE ADEQUACY OF THE PLATFORM AND EACH EXPRESSLY DISCLAIMS LIABILITY FOR ERRORS OR OMISSIONS IN THE INFORMATION CONTAINED ON THE PLATFORM. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS IS MADE BY THE ADMINISTRATIVE AGENT OR ANY OF ITS AFFILIATES IN CONNECTION WITH THE INFORMATION CONTAINED ON THE PLATFORM OR THE PLATFORM.

9.4 Benefit of Agreement. This Agreement shall be binding upon and inure to the benefit of and be enforceable by the respective successors and permitted assigns of the parties hereto. The Borrower may not assign or otherwise transfer any of its rights under this Agreement or any of the other Credit Documents without the prior written consent of the Lenders.

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9.5 No Waiver; Remedies Cumulative. No failure or delay on the part of any of the Secured Parties or the holder of any Note in exercising any right, power or privilege hereunder or under any other Credit Document and no course of dealing between the Borrower and any Secured Party or the holder of any Note shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege hereunder or under any other Credit Document preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder or thereunder. No notice to or demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of any Secured Party or the holder of any Note to take any other or further action in any circumstances without notice or demand. All remedies, either under this Agreement or any other Credit Document or pursuant to any applicable Law or otherwise afforded to any Secured Party shall be cumulative and not alternative.

9.6 No Third Party Beneficiaries. The agreement of each Lender to make extensions of credit to the Borrower on the terms and conditions set forth in this Agreement and the other Financing Documents is solely for the benefit of the Borrower, and no other Person (including any other Major Project Participant, or any contractor, sub-contractor, supplier, worker, carrier, warehouseman, materialman or vendor furnishing supplies, goods or services to or for the benefit of the Borrower or the Projects or receiving services from the Projects) shall have any rights hereunder against any Secured Party with respect to the Loans, the proceeds thereof or otherwise.

9.7 Reinstatement. To the extent that any Secured Party receives any payment by or on behalf of the Borrower, which payment or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to the Borrower or to its estate, trustee, receiver, custodian or any other party under any Bankruptcy Law or otherwise, then to the extent of the amount so required to be repaid, the obligation or part thereof which has been paid, reduced or satisfied by the amount so repaid shall be reinstated by the amount so repaid and shall be included within the Obligations as of the date such initial payment, reduction or satisfaction occurred.

9.8 No Immunity. To the extent that the Borrower may be entitled, in any jurisdiction in which judicial proceedings may at any time be commenced with respect to this Agreement or any other Credit Document, to claim for itself or its revenues, assets or Properties any immunity from suit, the jurisdiction of any court, attachment prior to judgment, attachment in aid of execution of judgment, set-off, execution of a judgment or any other legal process, and to the extent that in any such jurisdiction there may be attributed to such Person such an immunity (whether or not claimed), the Borrower hereby irrevocably agrees not to claim and hereby irrevocably waives such immunity to the fullest extent permitted by the Law of the applicable jurisdiction.

9.9 Counterparts. This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument.

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9.10 Amendment or Waiver.

(a) No provision of this Agreement or any other Financing Document may be amended, supplemented, modified or waived, except by a written instrument signed by the Administrative Agent on behalf of the Required Lenders and the Borrower (but only if the Borrower is a party thereto or beneficiary thereof), and, to the extent that its rights or obligations may be affected thereby, the Administrative Agent or Agents party thereto. Notwithstanding the foregoing provisions, (i) no such waiver and no such amendment, supplement or modification shall (A) increase the Loan Commitments of any Lender (it being understood that waivers or modifications of conditions precedent, covenants, Defaults or Events of Default or of a mandatory reduction in the Commitment, shall not constitute an increase of the Commitment of any Lender), without the prior written consent of such Lender, (B) postpone or delay the scheduled final maturity date of any Loan, without the prior written consent of each affected Lender, or postpone or delay any date fixed by this Agreement or any other Financing Document for any payment of principal, interest or Fees due to any Lender hereunder or under any other Financing Document, without the prior written consent of each Lender, (C) reduce the principal of, or the rate of interest or fees specified in any Financing Document on, any Loan of any Lender, without the prior written consent of each Lender, (D) release any guaranty or any significant portion of the Collateral except as shall be otherwise provided in any Security Document or other Financing Document or consent to the assignment or transfer by the Borrower of any of its respective obligations under this Agreement or any other Financing Document, without the prior written consent of each Lender, (E) amend, modify or waive any provision of this Section 9.10 or Article 7, Section 9.1 or Section 9.2, without the prior written consent of each Lender, or (F) reduce the percentage specified in or otherwise amend the definition of Required Lenders, without the prior written consent of each Lender and (ii) amendments, supplements, modifications or waivers to Section 3.2 (other than Section 3.2(l)) with respect to conditions precedent to the issuance of any Letter of Credit shall be effected by a written instrument signed by the Administrative Agent on behalf of the Lenders holding at least 50.01% of the aggregate outstanding principal amount of the LC Commitments and the Borrower, and, to the extent that its rights or obligations may be affected thereby, the Administrative Agent or Agents party thereto.

(b) Any waiver and any amendment, supplement or modification made or entered into in accordance with Section 9.10(a) shall be binding upon the Borrower, the Administrative Agent, the Collateral Agent and the Lenders.

9.11 Assignments and Participations.

(a) Any Lender may, with the written acknowledgement of the Administrative Agent and the written consent of each Issuing Bank with Fronting Exposure (and, so long as no Event of Default is continuing hereunder, the Borrower (such consent of the Borrower not to be unreasonably withheld, conditioned or delayed), at any time assign to one or more Eligible Assignees (each, an “Assignee”) (provided that no written consent of the Borrower or the Issuing Banks shall be required in connection with any assignment and delegation by a Lender to (i) an entity that is an Affiliate of such Lender or (ii) another Lender) all or any part of any Loan and the other rights and obligations of such Lender hereunder and under the other Financing Documents; provided, that (A) each such assignment by a Lender of its Loans, its Note or its

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Loan Commitments shall be made in such a manner so that the same portion of its Loans, its Note and Loan Commitments are assigned to such Assignee; (B) in the case of an assignment of any part of a Loan to any Assignee, such assignment shall not be for an amount less than [***] (or a higher integral multiple of [***] in excess thereof) in each instance; and (C) the Borrower and the Agents may continue to deal solely and directly with the assigning Lender in connection with the interest so assigned until (1) written notice of such assignment, together with payment instructions, addresses and related information with respect to the Assignee, shall have been given to the Borrower and the Administrative Agent by such assigning Lender and the Assignee, (2) the assigning Lender or Assignee has paid to the Administrative Agent a processing fee in the amount of [***], and (3) the assigning Lender shall have delivered to the Borrower and the Administrative Agent an Assignment and Acceptance substantially in the form of Exhibit C hereto (an “Assignment and Acceptance”) with respect to such assignment from the assigning Lender. Any assignment of a participation in any Letter of Credit shall (x) require the written acknowledgment of the Issuing Bank of such Letter of Credit and (y) only be made to a bank or financial institution with a credit rating of no lower than A-from Standard & Poors, no lower than A3 from Moody’s or no lower than A- from Fitch Ratings (provided that if such financial institution is rated by more than one of such agencies, all ratings of the financial institution shall meet such minimum rating).

(b) Subject to Section 9.11(a) and Section 9.11(f), from and after the date that the Administrative Agent notifies the assigning Lender and the Borrower that it has received (and provided its acknowledgement with respect to) an executed Assignment and Acceptance and payment of the above-referenced processing fee, (i) the Assignee thereunder shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned to it pursuant to such Assignment and Acceptance, shall have the rights and obligations of a Lender hereunder and under the other Financing Documents, and this Agreement shall be deemed to be amended to the extent, but only to the extent, necessary to effect the addition of the Assignee, and any reference to the assigning Lender hereunder or under the other Financing Documents shall thereafter refer to such Lender and to the Assignee to the extent of their respective interests, and (ii) the assigning Lender shall, to the extent that rights and obligations hereunder and under the other Financing Documents have been assigned by it pursuant to such Assignment and Acceptance, relinquish its rights and be released from its obligations under the Financing Documents; provided that any Lender that assigns all of its Loan Commitments and Loans hereunder in accordance with Section 9.11(a) shall continue to have the benefit of indemnification provisions under this Agreement, which shall survive as to such assigning Lender; provided further that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. At the time of each assignment pursuant to Section 9.11(a) to a Person which is not already a Lender hereunder, the respective assignee Lender shall provide to the Borrower and the Administrative Agent the appropriate United States Internal Revenue Service forms.

(c) Promptly after its receipt of notice from the Administrative Agent that it has received an executed Assignment and Acceptance and payment of the processing fee, upon the request of the Assignee, the Borrower shall execute and deliver to the Administrative Agent a replacement Note or Notes evidencing the Assignee’s assigned Loan Commitments and Loans and, if applicable, the Commitment and the principal amount of the Loans retained by the assigning Lender (such Note(s) to be in exchange for, but not in payment of, the Note(s), if any, held by such Lender).

[***] Confidential Treatment Requested

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(d) Any Lender (the “originating Lender”) may at any time sell to one or more commercial banks or other financial institutions (excluding hedge funds) (a “Participant”) participating interests in any Loans; provided, however, that (i) the originating Lender’s obligations under this Agreement shall remain unchanged, (ii) the originating Lender shall remain solely responsible for the performance of such obligations, (iii) the Borrower and the Agents shall continue to deal solely and directly with the originating Lender in connection with the originating Lender’s rights and obligations under this Agreement and the other Financing Documents, and (iv) no Lender shall transfer or grant any participating interest under which the Participant shall have rights to approve any amendment to, or any consent or waiver with respect to, this Agreement or any other Transaction Document, except to the extent such amendment, consent or waiver would require unanimous consent of the Lenders as described in Section 9.11. In the case of any such participation, the Participant shall not have any rights under this Agreement or any of the other Financing Documents (the Participant’s rights against the originating Lender in respect of such participation to be those set forth in the agreement executed by the originating Lender in favor of the Participant relating thereto) and all amounts payable by the Borrower hereunder shall be determined as if such Lender had not sold such participation. Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other obligations under the Financing Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Financing Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

(e) Notwithstanding any other provision contained in this Agreement or any other Transaction Document to the contrary, any Lender may assign all or any portion of the Loans held by it as collateral security, provided that any payment in respect of such assigned Loans or Note made by the Borrower to or for the account of the assigning or pledging Lender in accordance with the terms of this Agreement shall satisfy the Borrower’s obligations hereunder in respect to such assigned Loans or Note to the extent of such payment. No such assignment shall release the assigning Lender from its obligations hereunder.

(f) In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution

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thereof as appropriate (which may be by outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and the Administrative Agent, the applicable Pro Rata Share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, each Issuing Bank and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full Pro Rata Share of all Loans. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.

9.12 Survival. All indemnities set forth herein, including, without limitation, Section 9.2, shall survive the execution and delivery of this Agreement and the Note and the making and repayment of the Loans. In addition, each representation and warranty made or deemed to be made pursuant hereto shall survive the making of such representation and warranty, and no Lender shall be deemed to have waived, by reason of making any extension of credit, any Default or Event of Default which may arise by reason of such representation or warranty proving to have been false or misleading, notwithstanding that such Lender may have had notice or knowledge or reason to believe that such representation or warranty was false or misleading at the time such extension of credit was made. The confidentiality provisions contained in Section 9.23 shall survive for a period of the earlier of (a) two (2) years from the Loan Termination Date or (b) with respect to a Lender, two (2) years from the date when such Lender ceases to have any Loans or Commitments hereunder.

9.13 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH, THIS AGREEMENT, THE NOTES OR ANY OTHER CREDIT DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY RELATING HERETO OR THERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE SECURED PARTIES TO ENTER INTO THIS AGREEMENT.

9.14 Right of Set-off. In addition to any rights now or hereafter granted under applicable Law or otherwise, and not by way of limitation of any such rights, upon the occurrence and during the continuance of an Event of Default, each Lender is hereby authorized at any time or from time to time, without presentment, demand, protest or other notice of any kind to the Borrower or to any other Person, any such notice being hereby expressly waived, to set off and to appropriate and apply any and all deposits (general or special) and any other Indebtedness at any time held or owing by such Lender (including without limitation by branches and agencies of any Lender wherever located), to or for the credit or the account of the Borrower against and on account of the Obligations or liabilities of the Borrower to such Lender under this Agreement or any of the other Financing Documents, including all claims of any nature or description arising out of or connected with this Agreement or any other Financing Document, irrespective of whether such Lender shall have made any demand hereunder.

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9.15 Severability. Any provision hereof which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and without affecting the validity or enforceability of any provision in any other jurisdiction.

9.16 Domicile of Loans. Each Lender may transfer and carry its Loans at, to or for the account of any office, Subsidiary or Affiliate of such Lender.

9.17 Limitation of Recourse. There shall be full recourse to the Borrower and to all of the Collateral for the liabilities of the Borrower under this Agreement and the other Credit Documents and its other Obligations, but in no event shall the Pledgor or any Sponsor be personally liable or obligated for such liabilities and Obligations of the Borrower, except as may be specifically provided in any Transaction Document to which the Pledgor or such Sponsor is a party. Nothing contained herein shall (a) limit or be construed to limit the obligations and liabilities of the Pledgor or any Sponsor in any Transaction Document creating such liabilities and obligations to which the Pledgor or such Sponsor is a party, or (b) affect or diminish any rights of any Person against any other Person for such other Person’s fraud, willful misrepresentation, gross negligence or willful misconduct.

9.18 Governing Law; Submission to Jurisdiction. (a) THIS AGREEMENT AND EACH OF THE OTHER FINANCING DOCUMENTS (UNLESS SUCH DOCUMENT EXPRESSLY STATES OTHERWISE THEREIN) SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

(a) The Borrower hereby submits to the nonexclusive jurisdiction of the United States District Court for the Southern District of New York and of any New York State court sitting in New York City for the purposes of all legal proceedings arising out of or relating to this Agreement, any other Credit Document or the transactions contemplated hereby or thereby. The Borrower hereby irrevocably waives, to the fullest extent permitted by applicable Law, any objection which it may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. Nothing herein shall affect the right to serve process in any other manner permitted by applicable Law or any right to bring legal action or proceedings in any other competent jurisdiction, including judicial or non-judicial foreclosure of real property interests which are part of the Collateral. The Borrower further agrees that the aforesaid courts of the State of New York and of the United States of America for the Southern District of New York shall have exclusive jurisdiction with respect to any claim or counterclaim of the Borrower based upon the assertion that the rate of interest charged by or under this Agreement or under the other Financing Documents is usurious. To the extent permitted by applicable Law, the Borrower further irrevocably agrees to the service of process of any of the aforementioned courts in any suit, action or proceeding by the mailing of copies thereof by certified mail, postage prepaid, return receipt requested, to the Borrower at the address referenced in Section 9.3, such service to be effective upon the date indicated on the postal receipt returned from the Borrower.

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(b) The Borrower agrees that it will at all times continuously maintain an agent to receive service of process in the State of New York on behalf of itself and its Properties, and in the event that for any reason the Process Administrative Agent mentioned above shall not serve as agent for the Borrower to receive service of process in the State of New York on its behalf, the Borrower shall promptly appoint a successor satisfactory to the Administrative Agent, advise the Administrative Agent thereof, and deliver to the Administrative Agent evidence in writing of the successor agent’s acceptance of such appointment. The foregoing provisions constitute, among other things, a special arrangement for service among the parties to this Agreement for the purposes of 28 U.S.C. § 1608.

(c) To the extent the Borrower may, in any action or proceeding arising out of or relating to any of the Credit Documents, be entitled under any applicable Law to require or claim that any Secured Party post security for costs or take similar action, the Borrower hereby irrevocably waives and agrees not to claim the benefit of such entitlement.

9.19 Complete Agreement. THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS REPRESENT THE FINAL AND COMPLETE AGREEMENT OF THE PARTIES HERETO, AND ALL PRIOR NEGOTIATIONS, REPRESENTATIONS, UNDERSTANDINGS, WRITINGS AND STATEMENTS OF ANY NATURE ARE HEREBY SUPERSEDED IN THEIR ENTIRETY BY THE TERMS OF THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS.

9.20 Regulation A. Notwithstanding any other language in this Agreement, any Lender may at any time assign all or any portion of its rights under this Agreement to a Federal Reserve System lender as collateral in accordance with Regulation A of the Federal Reserve Board and the applicable operating circular of such Federal Reserve System lender.

9.21 Force Majeure. The Agents shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility under the Transaction Documents by reason of any occurrence beyond the control of such Agent and which is not the result of its own willful misconduct or gross negligence (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, civil unrest, local or national disturbance or disaster, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).

9.22 USA PATRIOT Act Section 326 Customer Identification Program. To help the government fight the funding of terrorism and money laundering activities, pursuant to Federal regulations that became effective on October 1, 2003, Section 326 of the USA PATRIOT Act requires all financial institutions to obtain, verify, and record information that identifies each person establishing a relationship or opening an account with each of the Lenders and the Agents. What this means: Each of the Lenders and the Agents will ask for the name, address, tax identification number and other information that will allow it to identify the individual or entity who is establishing the relationship or opening the account and may also ask for formation documents such as articles of incorporation or other identifying documents to be provided.

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9.23 Confidentiality. Each Secured Party hereby agrees not to disclose, directly or indirectly, and to maintain the confidentiality of, the Information (as defined below), except that Information may be disclosed (i) to its and its Affiliates’ directors, officers, employees, and agents, including accountants, legal counsel, service providers and other advisors who need to know (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information by a stamp or watermark which states explicitly that such Information is confidential), (ii) to the extent requested by any applicable regulatory authority, by applicable laws or regulations or by any subpoena, oral question posed at any deposition, interrogatory or similar legal process, provided that the party from whom disclosure is being required shall give notice thereof to the Credit Parties as soon as practicable (unless restricted from doing so by law, regulation, subpoena or otherwise or such disclosure is required or requested in the course of any routine regulatory review or audit), (iii) to any other party to this Agreement, (iv) to the extent the disclosing party reasonably determines such disclosure to be necessary or appropriate to exercise any remedies hereunder or under any other Credit Document or in connection with any suit, action or proceeding relating to this Agreement or any other Credit Document or the enforcement of rights hereunder or thereunder, (v) subject to an agreement containing provisions substantially the same as those of this Section, to (A) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement, (B) any actual or prospective party (or its related parties) to any swap, derivative or other transaction under which payments are to be made by reference to the Borrower and its obligations, this Agreement or payments hereunder or (C) any insurance broker or provider of credit protection, (vi) with the consent of the Credit Parties, (vii) to prospective investors or lenders to the Projects (it being understood that the Persons to whom such disclosure is made shall, prior to any such disclosure, enter into an agreement containing confidentiality terms substantially the same as those of this paragraph) or (viii) to the extent such Information (A) becomes publicly available other than as a result of a breach of this paragraph by any Secured Party or (B) becomes available to any Secured Party on a nonconfidential basis from a source other than the Borrower. For the purposes of this paragraph, “Information” means all information received from the Borrower or either Sponsor relating to the Credit Parties or their respective businesses, other than any such information that is available to the Administrative Agent, any Issuing Banks or any Lender on a nonconfidential basis prior to disclosure by the Borrower) including, without limitation, (i) all information relating to Bloom’s energy market, financial forecasts and long range plans, (ii) information relating to the design, development, marketing and/or manufacturing of Bloom’s products, (iii) any and all trade secrets embodied in the design, manufacture, and function of the Projects, and (iv) Bloom’s software programs and source documentation. Any Person required to maintain the confidentiality of Information as provided in this Section 9.23 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care not to disclose (directly or indirectly), and to maintain the confidentiality of, such Information as such Person would accord to its own confidential information.

9.24 Right to Withdraw. In the event that the Collateral Agent is required to acquire title to an asset for any reason, or take any managerial action of any kind in regard thereto, in order to carry out any obligation for the benefit of another, which in the Collateral Agent’s sole discretion may cause the Collateral Agent to incur potential liability for any Environmental Claim or arising under any Hazardous Materials Law, the Collateral Agent reserves the right,

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instead of taking such action, to either resign as the Collateral Agent or arrange for the transfer of the title or control of the asset to a court-appointed receiver. The Collateral Agent shall not be liable to the Borrower, the Secured Parties or any other Person for any Environmental Claims or any liability arising under any Hazardous Materials Law by reason of the Collateral Agent’s actions and conduct as authorized, empowered and directed under the Financing Documents or relating to the presence, Release or threatened Release of Hazardous Materials.

*                     *                     *

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IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute and deliver this Agreement as of the date first above written.

Notice Address:		2015 ESA PROJECT COMPANY, LLC,
		as Borrower
Address:	1252 Orleans Drive
	Sunnyvale, CA 94089
Attention:	Bill Brockenborough		By	/s/ William E. Brockenborough
Telephone:	(408) 543-1772			Name: William E. Brockenborough
Telecopier:	(408) 543-1501			Title: Vice President

[Signature Page to Credit Agreement]

Notice Address:		CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK,
Address:	1301 Avenue of the Americas	as Administrative Agent
	New York, NY 10019
Attention:	Theodore M. Vandermel
Telephone:	(212) 261-7888		By	/s/ Theodore M. Vandermel
Telecopier:	(212) 849-5054			Name: Theodore M. Vandermel
				Title: Managing Director
			By	/s/ Edward Chu
				Name: Edward Chu
				Title: Vice President

[Signature Page to Credit Agreement]

Notice Address:		CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK,
Address:	1301 Avenue of the Americas New York, NY 10019	as Syndication Agent, Coordinating Lead Arranger, Sole Bookrunner and a Lender
Attention:	Deborah Kross
Telephone:	(212) 261-7346		By	/s/ Gayer D. Bellamy Jr
Telecopier:	(917) 849 5455			Name: Gayer D. Bellamy Jr
				Title: Managing Director
			By	/s/ Deborah Kross
				Name: Deborah Kross
				Title:   Director

Domestic Lending Office:

Address: 1301 Avenue of the Americas

New York, NY 10019-6022

Attention: Deborah Kross

Telephone: 212-261-7346

Telecopier: 917-849-5455

[Signature Page to Credit Agreement]

Notice Address:		CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK,
Address:	1301 Avenue of the Americas	as Issuing Bank
	New York, NY 10019
Attention:	Catherine Wong
Telephone:	(732) 590-7628		By	/s/ Gayer D. Bellamy Jr.
Telecopier:	(732) 590-7697			Name: Gayer D. Bellamy Jr.
				Title: Managing Director
			By	/s/ Deborah Kross
				Name: Deborah Kross
				Title:   Director

[Signature Page to Credit Agreement]

Notice Address:		KEYBANK NATIONAL ASSOCIATION, as a Joint Lead Arranger, Co-Documentation
Address:	Mailcode: OH-01-27-1122 127 Public Square	Agents and a Lender
	Cleveland, OH 44114
Attention:	Renee Bonnell
Telephone:	216.689.7729		By	/s/ Renee M. Bonnell
Telecopier:	216.689.4981			Name: Renee M. Bonnell
				Title: Vice President
Domestic Lending Office:
Address:	4900 Tiedeman Road Brooklyn, OH 44114
Attention:	Jean Pauley-Fisher
Telephone:	216.813.4728
Telecopier:	216.370.5997
Notice Address:		KEYBANK NATIONAL ASSOCIATION, as Issuing Bank
Address:	4900 Tiedeman Road Brooklyn, OH 44114
Attention:	Standby Letter of Credit Services		By	/s/ Renee M. Bonnell
Telephone:	216.813.3714 or 216.813.3715			Name: Renee M. Bonnell
Telecopier:	216.813.3719			Title: Vice President

[Signature Page to Credit Agreement]

Notice Address:	MIZUHO BANK, LTD., as Lender
Address: 1251 Avenue of the Americas, NY NY 10020
Attention: Hiroe Nikaido
Telephone: 212-282-3552		By	/s/ Seiji Tate
Telecopier: 212-282-3618			Name: Seiji Tate
			Title: Deputy General Manager
Domestic Lending Office:
Address: 1251 Avenue of the Americas, NY NY 10020
Attention: Hiroe Nikaido
Telephone: 212-282-3552
Telecopier: 212-282-3618
Notice Address:	MIZUHO BANK, LTD., as Issuing Bank
Address: 1251 Avenue of the Americas, NY NY 10020
Attention: Hiroe Nikaido		By	/s/ Seiji Tate
Telephone: 212-282-3552			Name: Seiji Tate
Telecopier: 212-282-3618			Title: Deputy General Manager

[Signature Page to Credit Agreement]

Notice Address:	MANUFACTURERS AND TRADERS TRUST COMPANY,
Address: 1100 N. Market St, 11th Floor, Wilmington, DE 19802	as Lender
Attention: John F. Matarese
Telephone: 302-651-1357		By	/s/ John F. Matarese
Telecopier: 302-651-1325			Name: John F. Matarese
			Title: Vice President
Domestic Lending Office:
Address: 1100 N. Market St, Wilmington, DE 19802
Attention: John F. Matarese
Telephone: 302-651-1357
Telecopier: 302-651-1325
Notice Address:	MANUFACTURERS AND TRADERS TRUST COMPANY,
Address: 1100 N. Market St, 11th Floor, Wilmington, DE 19802	as Issuing Bank
Attention: John F. Matarese		By	/s/ John F. Matarese
Telephone: 302-651-1357			Name: John F. Matarese
Telecopier: 302-651-1325			Title: Vice President

[Signature Page to Credit Agreement]

Notice Address:
Address:	555 Mission Street Suite 900
	San Francisco, CA 94105
Attention:	Dan Baldi
Telephone:	415.764.3106
Telecopier:	415.615.0076
Domestic Lending Office:
Address:	555 Mission Street Suite 900
	San Francisco, CA 94105
Attention:	Dan Baldi
Telephone:	415.764.3106
Telecopier:	415.615.0076
Notice Address:
Address:	555 Mission Street Suite 900
	San Francisco, CA 94105
Attention:	Dan Baldi
Telephone:	415.764.3106
Telecopier:	415.615.0076

SILICON VALLEY BANK, as a Joint Lead Arranger, Co-Documentation Agent and a Lender
By	/s/ Dan Baldi
	Name: Dan Baldi
	Title: Managing Director
SILICON VALLEY BANK, as Issuing Bank
By	/s/ Dan Baldi
	Name: Dan Baldi
	Title: Managing Director

[Signature Page to Credit Agreement]

Notice Address:
Address:	1100 North Market Street Wilmington, Delaware 19890
Attention:	Corporate Trust Administration
Telephone:	(302) 636-6973
Telecopier:	(302) 636-4140

WILMINGTON TRUST, NATIONAL ASSOCIATION, as Collateral Agent
By	/s/ Steve Barone
	Name: Steve Barone
	Title: Assistant Vice President

[Signature Page to Credit Agreement]

Notice Address:
Address:	1100 North Market Street Wilmington, Delaware 19890
Attention:	Corporate Trust Administration
Telephone:	(302) 636-6973
Telecopier:	(302) 636-4140

WILMINGTON TRUST, NATIONAL ASSOCIATION, as Depositary Bank
By	/s/ Steve Barone
	Name: Steve Barone
	Title: Assistant Vice President

[Signature Page to Credit Agreement]

APPENDIX A

DEFINED TERMS AND RULES OF INTERPRETATION

1. Defined Terms.

“Acceptable Bank ” shall mean the Lenders or any domestic office of any commercial bank organized under the laws of the United States of America, any State thereof, any country that is a member of the Organization for Economic Co-Operation and Development or any political subdivision thereof, that has a combined capital and surplus and undivided profits of not less than five hundred million Dollars ($500,000,000) and has a rating of “A-” or higher from Standard & Poor’s and “A3” or higher from Moody’s (or, if at any time neither Standard & Poor’s nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized rating service).

“Accounts” shall have the meaning provided in the Depositary Agreement and shall include any other accounts or sub-accounts established pursuant to the Depositary Agreement.

“Additional Lender” shall have the meaning provided in Section 2.2(c)(i).

“Additional Issuing Bank” shall have the meaning provided in Section 2.2(c)(ii).

“Additional Project Document” shall mean any contract or agreement relating to the development, construction, testing, operation, maintenance, repair, financing or use of the Projects entered into by the Borrower with any other Person subsequent to the date of this Agreement (including any contract(s) or agreement(s) entered into in substitution for any Project Document that has been terminated in accordance with its terms or otherwise).

“Adjusted Eurodollar Rate” shall mean, for any Eurodollar Loan for any Interest Period therefor, the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) determined by the Administrative Agent to be equal to the quotient obtained by dividing (a) the Eurodollar Rate for such Eurodollar Loan for such Interest Period by (b) 1 minus the Reserve Requirement for such Eurodollar Loan for such Interest Period.

“Administrative Agent” shall mean Crédit Agricole Corporate and Investment Bank, acting in its capacity as administrative agent for the Lenders pursuant to this Agreement.

“Administrative Agent’s Office” shall mean 1301 Avenue of the Americas, New York, NY 10019.

“Administrative Services Agreement” shall mean the Administrative Services Agreement, dated as of the Closing Date, between the Borrower and Bloom.

“Affected Portion” shall have the meaning provided in Section 7.2(d).

A-1

“Affiliate” shall mean, with respect to any Person, (a) any other Person that is directly or indirectly controlled by, under common control with or controls such Person; (b) any other Person owning beneficially or controlling five percent or more of the Voting Stock of such Person; or (c) any officer, director or partner of such Person. As used herein, the term “control” means possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of partnership interests or voting securities, by contract or otherwise.

“Agents” shall mean the Administrative Agent, the Collateral Agent and the Depositary Bank.

“Agent-Related Person” shall mean each Agent, together with their Affiliates, officers, directors, employees, attorneys and agents.

“Agreement” shall have the meaning provided in the preamble.

“Annual Budget” shall mean an annual budget with respect to the Operation and Maintenance Expenses (i) for the period from the Closing Date to the first anniversary thereof in form and substance acceptable to the Lenders, and (ii) as to each subsequent one-year period, prepared and adopted in accordance with Section 5.10(a) of this Agreement.

“Anti-Money Laundering Laws” shall have the meaning provided in Section 4.18(d).

“Applicable Margin” shall mean, with respect to Loans, for purposes of calculating the applicable interest rate for Eurodollar Loans or Base Rate Loans for any day during the period specified in the first column in the table below, the rate per annum specified opposite such period:

Time Period	Applicable Margin by Loan Type
	Eurodollar Loans	Base Rate Loans
Prior to the Term Conversion Date as to Construction Loans	[***]	[***]
Years 1-3 following the Term Conversion Date as to Term Loans and LC Loans	[***]	[***]
After Year 3 following the Term Conversion Date as to Term Loans and LC Loans	[***]	[***]

“Applicable Permit” shall mean, at any time, any Permit (a) that is necessary under applicable Legal Requirements or any of the Transaction Documents to have been obtained by or on behalf of the Borrower at such time in light of the stage of development, construction or operation of the Projects at each Site to construct, test, operate, maintain, repair, lease, own or use the Projects as contemplated by the Transaction Documents, to sell electricity from the

[***] Confidential Treatment Requested

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Projects, or for the Borrower to enter into any Transaction Document or to consummate any transaction contemplated thereby, in each case in accordance with all applicable Legal Requirements, or (b) that is necessary so that none of the Borrower or any Secured Party nor any Affiliate of any of them may be deemed by any Governmental Authority to be (A) subject to regulation as a public utility under the FPA and PUHCA (except as provided in Sections 4.7(b) and 4.8) or (B) treated as a public utility under the Constitution and the laws of the States of California, New York, Connecticut and New Jersey and any other state in which the Borrower operates facilities that generate electricity as presently constituted and as construed by the courts of such States with respect to the regulation of the rates of, or the financial or organizational regulation of, electric utilities as a result of the development and construction or operation of the Projects or the sale of electricity therefrom.

“Applicable Third Party Permit” shall mean, at any time, any Permit that is necessary to have been obtained by such time in light of the stage of development, construction or operation of the Projects by any Person (other than the Borrower) that is a party to a Major Project Document or a Credit Document in order to perform such Person’s obligations thereunder (other than Permits necessary to conduct its business generally and maintain its existence and good standing), or in order to consummate any transaction contemplated thereby, in each case in accordance with all applicable Legal Requirements.

“Assignee” shall have the meaning provided in Section 9.11 of this Agreement.

“Assignment and Acceptance” shall have the meaning provided in Section 9.11 of this Agreement.

“AT&T Lease” shall mean the Site Lease Agreement, dated as of February 13, 2015, between Borrower and AT&T Corp. by AT&T Services, Inc., entered into in association with the AT&T ESA.

“Attorney Costs” shall mean all reasonable fees and disbursements of any law firm or other external counsel.

“Authorized Officer” shall mean (i) with respect to any Person that is a corporation or a limited liability company, the Chairman, President, any Vice President or Secretary of such Person, and (ii) with respect to any Person that is a partnership, the President, any Vice President or Secretary (or Assistant Secretary) of a general partner or managing partner of such Person, in each case whose name appears on a certificate of incumbency of such Person delivered in accordance with this Agreement, as such certificate may be amended from time to time.

“Available Funds” shall mean, at any time and without duplication, the sum of (a) amounts in the Construction Account, (b) the undrawn portion of the Total Loan Commitment, (c) undisbursed Loss Proceeds which are available for payment of Project Costs, and (d) to the extent not all committed equity has been invested in the Projects and there are equity investment undertakings in place and the Administrative Agent reasonably has no reason to believe that the amounts committed to be invested thereunder will not be invested, the remainder of the commitments thereunder.

“Bankruptcy Code” shall mean the United States Federal Bankruptcy Code of 1978.

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“Bankruptcy Law” shall mean the Bankruptcy Code and any other Law of any jurisdiction relating to bankruptcy, insolvency, liquidation, reorganization, moratorium, winding-up or composition or readjustment of debts or any similar Law.

“Base Rate” shall mean, for any day,” the rate per annum equal to the higher of (a) the Federal Funds Rate for such day plus [***] percent ([***]) and (b) the Prime Rate for such day, in each case, such rate shall not be less than zero. Any changes in the Base Rate due to a change in the Prime Rate or the Federal Funds Rate shall be effective on the effective date of such change in the Prime Rate or Federal Funds Rate.

“Base Rate Loans” shall mean Loans which bear interest based upon the Base Rate.

“Blocked Person” shall have the meaning provided in Section 4.18(a).

“Bloom” shall mean Bloom Energy Corporation, a Delaware corporation.

“Bloom Closing Date Equity Contribution” shall mean the equity contribution of Bloom on the Closing Date of $27,931,673.

“Borrower” shall mean 2015 ESA Project Company, LLC, a limited liability company organized and existing under the laws of Delaware.

“Borrowing” shall mean the borrowing of Loans of one Type from the Lenders on a given date (or the conversion of a Loan or Loans of a Lender or Lenders on a given date) having, in the case of Eurodollar Loans, the same Interest Period.

“Borrowing Date” shall mean the date specified in a Notice of Borrowing as the date on which Borrowings of Loans are requested by the Borrower.

“Borrower’s Completion Certificate” shall mean a certificate in the form of Exhibit F.

“Borrower’s Milestone Certificate” shall have the meaning provided in Section 3.2(d)(ii) of this Agreement.

“Business Day” shall mean (i) for all purposes other than as covered by clause (ii) below, any day except Saturday, Sunday and any day which shall be in New York City or the State of California, a legal holiday or a day on which banking institutions are authorized or required by law or other government action to close in New York City or the State of California, and (ii) with respect to all notices and determinations in connection with, and payments of principal and interest on, Eurodollar Loans, any day which is a Business Day described in clause (i) above and which is also a day for trading by and between banks in the London interbank eurodollar market.

“[***] Assignment and Assumption Agreement” shall mean the Assignment and Assumption Agreement dated December 17, 2014, between 2013B ESA Project Company, LLC and the Borrower.

“[***] Energy Services and License Agreement” shall mean the Energy Services and License Agreement dated December 17, 2014, between the Borrower and the [***] [***] (as assigned to 2013B ESA Project Company, LLC under the [***] Assignment and Assumption Agreement).

[***] Confidential Treatment Requested

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“[***] Reimbursement Agreement” shall mean the Reimbursement Agreement dated the Closing Date, among the Borrower, Bloom and the Collateral Agent.

“Capital Expenditures” shall mean expenditures made by the Borrower (but only to the extent any such expenditures are not reimbursed to the Borrower within ninety (90) days) to acquire or construct fixed assets, plant and equipment which, in accordance with GAAP, are or should be included in “purchase of property and equipment” or similar items reflected in the statement of cash flows of the Borrower (including renewals, improvements and replacements thereto, but, notwithstanding the foregoing, excluding any such expenditures that are paid out of Loss Proceeds).

“Capital Lease” shall mean a lease of (or other agreement conveying the right to use) real or personal Property, which obligations to pay rent or other amounts are required to be classified and accounted for as a capital lease on a balance sheet under GAAP (including Statement of Financial Accounting Standards No. 13 of the Financial Accounting Standards Board (“Statement No. 13”))“Capital Lease Obligations” shall mean, for any Person, the obligations of such Person to pay rent or other amounts under a Capital Lease and, for purposes of this Agreement, the amount of such obligations shall be the capitalized amount thereof, determined in accordance with GAAP (including such Statement No. 13).

“Capital Stock” shall mean, with respect to any Person, any and all shares, interests, participations and/or rights in or other equivalents (however designated, whether voting or nonvoting, ordinary or preferred) in the equity or capital of such Person, now or hereafter outstanding, and any and all rights, warrants or options exchangeable for or convertible into any thereof.

“Cash Collateralize” shall mean, in respect of an Obligation, to provide and pledge (as a first priority perfected security interest) cash collateral in Dollars, at a location and pursuant to documentation in form and substance satisfactory to Administrative Agent and each Issuing Bank (“Cash Collateralization” and “Cash Collateralized” shall have corresponding meanings). “Cash Collateral” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

“Change of Control” shall mean (a) prior to the Term Conversion Date, any direct or indirect transfer of the membership interests of the Borrower unless either (i) ExGen remains the general partner of InvestCo and (ii) written consent of the Required Lenders is obtained, (b) on and after the Term Conversion Date, the consummation of any transaction or series of related transactions (including, without limitation, any merger or consolidation) the result of which is that at least 50.1% of the Voting Stock and the economic interests of the Borrower ceases to be owned by a Sponsor; provided that, after the Term Conversion Date, it shall not be a Change of Control if a Sponsor disposes of its Voting Stock or economic interests in the Borrower to a Qualified Owner and such Qualified Owner satisfies the KYC requirements used by each Lender in the normal course of its business or (c) at any time during which tax equity investors indirectly own membership interests in the Borrower, ExGen ceases to be the general partner of InvestCo.

[***] Confidential Treatment Requested

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“Charter Documents” shall mean, with respect to any Person, (i) the articles of incorporation, certificate of formation, limited liability company agreement, partnership agreement, or other similar organizational document of such Person, (ii) the by-laws or other similar document of such Person, (iii) any certificate of designation or instrument relating to the rights of preferred shareholders or other holders of Capital Stock of such Person, and (iv) any shareholder rights agreement or other similar agreement.

“Class” (a) when used with respect to any Lender, refers to whether such Lender has a Loan or Commitment with respect to a particular Class of Loans or Commitments, (b) when used with respect to Commitments, refers to whether such Commitments are Original LC Commitments, Incremental LC Commitments, Original Construction Loan Commitments, Incremental Construction Loan Commitments, Original Term Loan Commitments, or Incremental Term Loan Commitments, and (c) when used with respect to Loans, refers to whether such Loans are Original LC Loans, Incremental LC Loans, Original Construction Loans, Incremental Construction Loans, Original Term Loans, or Incremental Term Loans. Original LC Commitments, Incremental LC Commitments, Original Construction Loan Commitments, Incremental Construction Loan Commitments, Original Term Loan Commitments, Incremental Term Loan Commitments (and in each case, the Loans made pursuant to such Commitments) that have different terms or conditions shall be construed to be in different Classes. Commitments (and, in each case, the Loans made pursuant to such Commitments) that have the same terms and conditions shall be construed to be in the same Class.

“CleanTech” shall mean Clean Technologies 2015, LLC, a Delaware limited liability company.

“Closing Date” shall mean the date hereof.

“Code” shall mean the Internal Revenue Code of 1986, as amended from time to time, and the regulations promulgated and rulings issued thereunder. Section references to the Code are to the Code as in effect at the date of this Agreement and any subsequent provisions of the Code, amendatory thereof, supplemental thereto or substituted therefor (unless as indicated otherwise).

“Collateral” shall mean all Property that, in accordance with the terms of the Security Documents, is intended to be subject to any Lien in favor of the Secured Parties.

“Collateral Agent” shall mean Wilmington Trust, National Association, acting in its capacity as Collateral Agent for the Secured Parties, and shall include any successor Collateral Agent appointed pursuant to Section 8.9 of this Agreement.

“Collateral Agent Engagement Letter” shall mean that certain Collateral Agent Engagement Letter, dated as of June 4, 2015.

“Collateral Agent’s Office” shall mean 1100 North Market Street, Wilmington, Delaware 19890.

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“Commencement of Operations Certificate” shall mean a certificate, substantially in the form attached hereto as Exhibit M(iii)(B), issued by the Independent Engineer, certifying that (1) the installation, commissioning and testing of the Systems comprising each Facility listed in Table 1 on Attachment A of such certificate, has been successfully completed in accordance with the requirements of the PUMA; (2) each of the requirements set out in paragraphs (a) through (f) of the definition of Commencement of Operations in the PUMA have been satisfied with respect to each Facility listed in Table 1 on Attachment A, attached to the certificate; (3) each System comprising each Facility listed in Table 1 on Attachment A, attached to the certificate, has achieved COO; and (4) Seller has completed all BOF Work (as defined in the PUMA) necessary for the operation of each Facility listed in Table 1 on Attachment A, attached to the certificate.

“Commitment Fee” shall have the meaning provided in Section 2.24 of this Agreement

“Completion” shall mean that all of the following shall have occurred: (a) all Applicable Permits have been received and (b) COO has occurred for at least [***] MW of Projects in the Portfolio (as may be adjusted pursuant to a Conversion Payoff, or in accordance with Section 2.13(b) or 7.2(d) of this Agreement) (all as duly certified in writing by the Independent Engineer to Administrative Agent, accompanied by a copy of the applicable certificate from Bloom pursuant to sub-paragraph (g) in the definition of Commencement of Operations in the PUMA).

“Condemnation Proceeds” shall have the meaning provided in Section 2.23 of this Agreement.

“Construction Account” shall have the meaning provided in the Depositary Agreement.

“Construction Loans” shall have the meaning provided in Section 2.1(a) of this Agreement.

“Construction Loan Availability Period” shall mean the period commencing on the Closing Date, and ending on the earliest to occur of (i) the full utilization of the Construction Loan Commitments of the Lenders, (ii) January 31, 2017, (iii) the Construction Loan Maturity Date, and (iv) the termination of the Loan Commitments pursuant to the provisions of this Agreement.

“Construction Loan Commitment Increase” shall have the meaning provided in Section 2.2(a) of this Agreement.

“Construction Loan Commitments” shall mean, as to any Lender, the applicable amount set forth opposite such Lender’s name in Schedule 2.1 to this Agreement as to the Construction Loans; provided that the aggregate Construction Loan Commitments shall not exceed an amount equal to $131,236,503.37 plus the aggregate Incremental Construction Loan Commitments, if any.

“Construction Loan Maturity Date” shall mean the earliest to occur of (a) the Term Conversion Date, (b) the Date Certain, or (c) the date on which all outstanding Loans shall have become due and payable pursuant to Article VII.

“Construction Period” shall have the meaning provided in the definition of “Project Costs” below.

[***] Confidential Treatment Requested

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“Contest” shall mean, with respect to any tax, Lien, or claim, a contest pursued in good faith and by appropriate proceedings diligently conducted, provided: (i) adequate reserves have been established with respect thereto in accordance with GAAP or, if the Required Lenders determine any Lien filed in connection therewith could reasonably be expected to have a Material Adverse Effect, such Lien shall have been removed from the record by the bonding of such Lien by a surety company that has a Best’s Insurance Rating of at least A-VIII or is otherwise reasonably satisfactory to the Required Lenders, or security satisfactory to the Required Lenders is otherwise provided to assure the discharge of the obligation thereunder and any additional charge, penalty or expense arising from or incurred as a result of such contest, (ii) if it becomes necessary to prevent the delivery of a tax deed or other similar instrument conveying the Collateral or any portion thereof because of non-payment of such tax, Lien or claim being contested, then the Borrower shall pay the same in sufficient time to prevent the delivery of such tax deed or other similar instrument, (iii) the failure to pay any such tax, Lien or claim during the pendency of such contest could not reasonably be expected to have a Material Adverse Effect and (iv) the Person subject to any such tax, Lien or claim has no knowledge of any actual or proposed additional deficiency or additional assessment in connection therewith except to the extent such additional deficiency or assessment satisfies items (i) through (iii) above.

“Contingent Obligation” shall mean, as to any Person, any obligation of such Person guaranteeing or intending to guarantee any Indebtedness, leases, or other obligations (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, including, without limitation, any contingent obligation of such Person, (a) to purchase any such primary obligation or any property constituting direct or indirect security therefor, (b) to advance or supply funds (i) for the purchase or payment of any such primary obligation or (ii) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor, (c) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (d) otherwise to assure or hold harmless the owner of such primary obligation against loss in respect thereof. The amount of any Contingent Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation is made or, if not stated or determinable, the maximum reasonably anticipated liability in respect thereof (assuming such Person is required to perform thereunder) as determined by such Person in good faith.

“Control” shall mean the possession, directly or indirectly (either alone or pursuant to an arrangement or understanding with one or more other Persons), of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and the terms “Controlling” and “Controlled” shall have meanings correlative thereto.

“Controlled Entity” shall mean any of the Subsidiaries of the Borrower and any Affiliate of the Borrower or Subsidiary of the Borrower that in each case is Controlled by the Borrower or a Subsidiary of the Borrower.

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“Controlled Group” shall mean all members of a controlled group of corporations and all trades or businesses (whether or not incorporated) under common control which, together with the Borrower, are treated as a single employer under Section 414(b), 414(c), 414(m) or 414(o) of the Code.

“Conversion Payoff” shall have the meaning provided in Section 2.13(g) of this Agreement.

“Co-Documentation Agents” shall mean KeyBank National Association and Silicon Valley Bank.

“COO” for a System shall mean “Commencement of Operations” of such System, as such term is defined in the PUMA.

“Credit Documents” shall mean, collectively, the Financing Documents and the Policy.

“Credit Event” shall have the meaning provided in Section 3.2 of this Agreement.

“Credit Parties” shall mean the Borrower, Pledgor, and, so long as any payment obligations remain under the Equity Contribution Agreement, InvestCo and ExGen.

“Date Certain” shall mean February 28, 2017.

“Debt Service” shall mean, for the Borrower and for any period, (i) interest (taking into account the net effect of any Hedging Agreements), Commitment Fees, LC Fees, and fronting fees, if any, plus (ii) scheduled principal amortization on the Loan Facilities with respect to Construction Loans and Term Loans and all obligations for principal payments on any other secured Indebtedness (which, for the avoidance of doubt, shall exclude Letters of Credit and any other Indebtedness pursuant to clauses (b)-(g) of Section 6.4).

“Debt Service Coverage Ratio” shall mean, for the applicable period referred to in this Agreement, the ratio of (i) Operating Cash Available for Debt Service for such period to (ii) Debt Service for such period (including scheduled principal payments but excluding mandatory prepayments in respect of the Loans payable during such period pursuant to the Financing Documents).

“Debt Service Reserve Account” shall have the meaning provided in the Depositary Agreement.

“Debt Service Reserve Requirement” shall mean, as of any date of calculation beginning on the Term Conversion Date, an amount equal to scheduled Debt Service projected to be due on the next two (2) succeeding Payment Dates (excluding any balloon payments or mandatory prepayments).

“Default” shall mean any event or circumstance which with notice or lapse of time or both would become an Event of Default.

“Default Rate” shall have the meaning provided in Section 2.8(c) of this Agreement.

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“Defaulting Lender” shall mean, subject to Section 2.25(b), any Lender that (a) has failed to (i) fund all or any portion of its Loans within two (2) Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies the Administrative Agent and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to the Administrative Agent, each Issuing Bank or any other Lender any other amount required to be paid by it hereunder (including in respect of its participation in Letters of Credit) within two (2) Business Days of the date when due, (b) has notified the Borrower, the Administrative Agent or the Issuing Banks in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three (3) Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by the Administrative Agent and the Borrower), or (d) has, or has a direct or indirect parent company that has (i) become the subject of a proceeding under any Bankruptcy Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.25(b)) upon delivery of written notice of such determination to the Borrower, each Issuing Bank and each Lender.

“Depositary Agreement” shall mean that certain Depositary Agreement, dated as of the Closing Date, by and among, the Borrower, the Collateral Agent and the Depositary Bank.

“Depositary Bank” shall mean Wilmington Trust, National Association, acting in its capacity as Depositary Bank for the Secured Parties, and shall include any successor depositary bank appointed pursuant to Section 5.1 of the Depositary Agreement.

“Direct Agreements” shall mean the consents specified on Schedule A and any other third party consents to the assignments required by the Financing Documents, in form and substance satisfactory to Administrative Agent.

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“Dollars” and the sign “$” shall each mean freely transferable, lawful money of the United States.

“Downside Sizing Case Projections ” shall mean a projection of operating results based on a portfolio capacity factor of 80% showing at a minimum Borrower’s good faith estimates, as of the Closing Date, of revenues, operating expenses and sources and uses over the forecast period (and excluding any warranty payments to the Borrower under the PUMA and any capacity-based environmental incentives (to the extent such incentives are for the benefit of the Borrower)), in substantially the form of Schedule 3.1(n)(ii), which demonstrate the ability of the Portfolio to maintain the Debt Service Coverage Ratio at a 1.00:1.00 minimum over such period.

“Drawdown Certificate” shall have the meaning provided in Section 3.2(d)(i) of this Agreement.

“Early Termination Fee” has the meaning assigned to such term in each applicable ESA.

“Eligible Assignee” shall mean (i) a commercial bank or other financial institution having a combined capital and surplus of at least $25,000,000, or (ii) a Person that is primarily engaged in the business of commercial banking and that is an Affiliate of a Lender.

“Enforcement Action” shall mean any action or proceeding against the Borrower, the Projects or all or any part of the Collateral taken for the purpose of (i) enforcing the rights of any Secured Party under or in respect of the Collateral or the Security Documents, including, without limitation, the initiation of action in any court or before any administrative agency or governmental tribunal to enforce such rights, and any action to exercise any rights provided in Section 7.3 of this Agreement, and (ii) adjudicating or seeking a judgment on a claim.

“Environmental Claim” shall mean, with respect to any Person, (i) any liability, loss, claim, administrative, regulatory or judicial or equitable action or proceeding, suit, decree, Lien, judgment, warning notice, notice of noncompliance or violation, investigation, request for information, removal or remedial action or order, or demand by any Governmental Authority or (ii) any other written communication by any Governmental Authority, in either case alleging or asserting such Person’s liability for investigatory costs, removal, response, remedial or other cleanup costs, consultants’ fees, governmental response costs, damages to natural resources (including, without limitation, wetlands, wildlife, aquatic and terrestrial species and vegetation) or other Property, property damages, personal injuries, fines or penalties arising out of, based on or resulting from (x) the presence, or release into the environment, of any Hazardous Material at any location, whether or not owned by such Person or (y) circumstances forming the basis of any violation, or alleged violation, of any Environmental Law or Permit issued under any Environmental Law.

“Environmental Laws” shall mean any and all Laws, now or hereafter in effect, as applicable, and any judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree or judgment, relating to the environment, occupational health, human health or safety, or to emissions, discharges, releases or threatened releases of pollutants, contaminants, chemicals, or toxic or hazardous substances or wastes into or through the environment including, without limitation, ambient air, surface water, groundwater, or land, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport, or handling of pollutants, contaminants, chemicals, or toxic or hazardous substances or wastes.

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“Equity Contribution Agreement” shall mean the Equity Contribution Agreement, dated as of the Closing Date, between InvestCo, the Administrative Agent, the Collateral Agent and the Borrower.

“Equity Guaranty” shall mean that certain Equity Guaranty, dated as of the date hereof, by ExGen in favor of the Collateral Agent and the Administrative Agent.

“ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended from time to time, and the regulations promulgated and rulings issued thereunder. Section references to ERISA are to ERISA, as in effect at the date of this Agreement and any subsequent provisions of ERISA, amendatory thereof, supplemental thereto or substituted therefor.

“ESA” shall mean each Energy Server Use Agreement, listed in Schedule B (as such schedule may be updated to reflect Incremental ESAs any ESA that is an Additional Project Document or a Replacement Major Project Contract), between the Borrower and each applicable Offtaker.

“Eurodollar Loans” shall mean Loans which bear interest based on the Adjusted Eurodollar Rate.

“Eurodollar Rate ” shall mean, with respect to each Interest Period in respect of a Eurodollar Loan, (a) the rate per annum equal to the rate determined by Administrative Agent to be the offered rate which appears on the page of the Reuters Screen which displays an average London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) (such page currently being LIBOR01 page) for deposits (for delivery on the first day of such period) with a term equivalent to such period in Dollars, determined as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date, or (b) in the event the rate referenced in the preceding clause (a) does not appear on such page or service or if such page or service shall cease to be available, the rate per annum equal to the rate determined by Administrative Agent to be the offered rate on such other page or other service which displays an average London interbank offered rate administered by ICE Benchmark Administration Limited (or any other person which takes over the administration of that rate) for deposits (for delivery on the first day of such period) with a term equivalent to such period in Dollars determined as of approximately 11:00 a.m. (London, England time) two Business Days prior to the first day of such Interest Period for a term comparable to such Interest Periods; provided, however, if more than one rate is specified on Reuters Screen LIBO Page, on such Interest Rate Determination Date, or (c) in the event the rates referenced in the preceding clauses (a) and (b) are not available, the rate per annum equal to the offered quotation rate to first class banks in the London interbank market for deposits (for delivery on the first day of the relevant period) in Dollars of amounts in same day funds comparable to the principal amount of the applicable Loan for which the Eurodollar Rate is then being determined with maturities comparable to such period as of approximately 11:00 a.m. (London, England time) on such Interest Rate Determination Date; provided that, if the rates referenced in the preceding clauses (a), (b) or (c), as applicable, shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.

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“Event of Default” shall have the meaning provided in Section 7.1 of this Agreement.

“Event of Default Buydown Amount” shall have the meaning provided in Section 7.2(d) of this Agreement.

“Event of Bankruptcy” shall mean shall mean, with respect to any Person, the occurrence of any of the following events:

(i) the commencement by such Person of a voluntary case concerning itself under the Bankruptcy Code or similar Law;

(ii) an involuntary case is commenced against such Person and the petition is not controverted within ten (10) days, or is not dismissed within sixty (60) days, after commencement of the case;

(iii) a custodian (as defined in the Bankruptcy Code) is appointed for, or takes charge of, all or substantially all of the property of such Person or such Person commences any other proceedings under any reorganization, arrangement, adjustment of debt, relief of debtors, dissolution, insolvency or liquidation or similar Law of any jurisdiction whether now or hereafter in effect relating to such Person or there is commenced against such Person any such proceeding which remains undismissed for a period of sixty (60) days;

(iv) the entrance of any order of relief or other order approving any such case or proceeding involving such Person;

(v) such Person is adjudicated insolvent or bankrupt;

(vi) such Person suffers any appointment of any custodian, trustee, receiver, or the like for it or any substantial part of its property to continue undischarged or unstayed for a period of sixty (60) days;

(vii) such Person makes a general assignment for the benefit of creditors;

(viii) such Person shall fail to pay, or shall state that it is unable to pay, or shall be unable to pay, its debts generally as they become due;

(ix) such Person shall by any act or failure to act consent to, approve of or acquiesce in any of the foregoing; or

(x) any partnership, limited liability company, or corporate action, as the case may be, is taken by such Person for the purpose of effecting any of the foregoing.

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“Event of Eminent Domain” shall mean any compulsory transfer or taking by condemnation, eminent domain or exercise of a similar power, or transfer under threat of such compulsory transfer or taking, of any part of the Collateral, by any agency, department, authority, commission, board, instrumentality or political subdivision of the States of California, New York, New Jersey or Connecticut and any other state in which the Borrower operates facilities that generate electricity, the United States or another Governmental Authority having jurisdiction.

“Event of Loss” shall mean, with respect to any Property of the Borrower, any loss of, destruction of or damage to, or any condemnation or other taking of, such Property.

“Excluded Taxes” shall have the meaning provided in Section 2.19(a) of this Agreement.

“ExGen” shall mean Exelon Generation Company, LLC, a wholly owned subsidiary of Exelon Corporation or any successor thereof.

“FATCA” shall mean Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations or official interpretations thereof and any agreement entered into pursuant to Section 1471(b)(1) of the Code.

“Federal Funds Rate” shall mean, for any day, the rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided, that (i) if the day for which such rate is to be determined is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day and (ii) if such rate is not so published for any day, the Federal Funds Rate for such day shall be the average rate charged to the Administrative Agent (in its individual capacity) on such day on such transactions as determined by the Administrative Agent.

“Federal Reserve Board” shall mean the Board of Governors of the Federal Reserve System (or any successor).

“Fee Letters” shall mean each of (a) the Structuring and Arrangement Fee Letter and (b) the Collateral Agent Engagement Letter.

“Fees” shall mean all amounts payable pursuant to or referred to in Section 2.24 of this Agreement.

“FERC” shall mean the Federal Energy Regulatory Commission of the United States or any successor agency thereto.

“Final Maturity Date” shall mean the earliest of (a) five (5) years from the Term Conversion Date, (b) the Stated Maturity Date, or (c) the date on which all outstanding Loans shall have become due and payable pursuant to Article VII.

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“Financing Documents” shall mean, collectively, this Agreement, the Note, the Security Documents, the Equity Contribution Agreement, the Equity Guaranty, the Required Hedging Agreements, and the Fee Letters.

“FPA” shall mean the Federal Power Act, as amended, and FERC’s implementing regulations related thereto.

“Fronting Exposure” shall mean, at any time there is a Defaulting Lender, with respect to the Issuing Banks, such Defaulting Lender’s Pro Rata Share of the outstanding Obligations with respect to any Letters of Credit issued by the Issuing Banks other than such Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.

“GAAP” shall mean generally accepted accounting principles and practices as in effect from time to time in the United States of America.

“Governmental Authority” shall mean any government, governmental department, commission, board, bureau, agency, regulatory authority, instrumentality, judicial or administrative body, domestic or foreign, federal, state or local having jurisdiction over the matter or matters in question, including, without limitation, those in the United States.

“Hazardous Material ” shall mean any chemical substance or waste that is defined, listed or regulated as “hazardous,” “toxic,” “radioactive,” or as a “pollutant” or “contaminant” (or terms of similar import or meaning) under Environmental Laws, or could lead to liability under any Environmental Law, including, but not limited to, any petroleum or petroleum product, asbestos in any form that is or could become friable, transformers or other equipment that contain dielectric fluid containing hazardous levels of polychlorinated biphenyls (PCB’s), hazardous waste, hazardous material, hazardous substance, toxic substance, contaminant or pollutant, as defined or regulated as such under, any applicable Environmental Law.

“Hazardous Materials Law” shall mean all applicable Federal, state and local Laws which govern Hazardous Materials and the regulations adopted pursuant to such laws, including, without limitation, (i) the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et seq.), (ii) the Clean Air Act (42 U.S.C. Section 7401 et seq.), (iii) the Federal Water Pollution Control Act (33 U.S.C. Section 1251 et seq.), (iv) the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.) (“RCRA”), (v) the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Section 136 et seq.), (vi) the Hazardous Materials Transportation Act (49 U.S.C. Section 1801 et seq.), (vii) the Occupational Safety and Health Act (29 U.S.C. Section 651 et seq.), and (viii) the Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.).

“Hedge Counterparty” shall mean a Person which enters into a Required Hedging Agreement with the Borrower.

“Hedging Agreement” shall mean any agreement in respect of any interest rate swap transaction, basis swap, forward rate transaction, commodity swap, commodity option, equity or equity index swap, equity or equity index option, bond option, interest rate option, foreign exchange transaction, cap transaction, floor transaction, collar transaction, currency swap transaction, cross-currency rate swap transaction, currency option or any other similar transaction (including any option with respect to any of the foregoing transactions) or any combination of the foregoing transactions entered into by the Borrower.

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“Incremental Commitments” shall have the meaning provided in Section 2.2(a) of this Agreement.

“Incremental Construction Loan” shall have the meaning provided in Section 2.2(b) of this Agreement.

“Incremental Construction Loan Commitments” shall have the meaning provided in Section 2.2(a) of this Agreement.

“Incremental Direct Agreement” shall mean a Direct Agreement in respect of an Incremental ESA.

“Incremental ESAs” shall have the meaning provided in Section 2.2(d)(iii)of this Agreement.

“Incremental Facility Closing Date” shall have the meaning provided in Section 2.2(d) of this Agreement.

“Incremental Issuing Bank” shall have the meaning provided in Section 2.2(c)(ii) of this Agreement.

“Incremental Joinder” shall have the meaning provided in Section 2.2(f) of this Agreement.

“Incremental LC Loan” shall have the meaning provided in Section 2.2(b) of this Agreement.

“Incremental LC Commitments” shall have the meaning provided in Section 2.2(a) of this Agreement.`

“Incremental Lender” shall have the meaning provided in Section 2.2(c)(i) of this Agreement.

“Incremental Loan” shall have the meaning provided in Section 2.2(b) of this Agreement.

“Incremental Loan Request” shall have the meaning provided in Section 2.2(a) of this Agreement.

“Incremental Project” shall mean any site on which a fuel cell electricity generator will be developed, constructed, installed, financed, owned, operated and maintained by the Borrower pursuant to an Incremental ESA.

“Incremental Term Loan Commitment” shall mean, as to any Lender the applicable amount of such Lender’s Incremental Construction Loan Commitment.

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“Incremental Term Loans” shall mean Term Loans converted from Incremental Construction Loans.

“Indebtedness” of any Person shall mean (i) all indebtedness of such Person for borrowed money, (ii) the deferred purchase price of assets or services which in accordance with GAAP would be shown on the liability side of the balance sheet of such Person, (iii) the face amount of all letters of credit issued for the account of such Person and, without duplication, all drafts drawn thereunder, (iv) all Indebtedness of a second Person secured by any Lien on any Property owned by such first Person, whether or not such Indebtedness has been assumed, (v) all Capital Lease Obligations of such Person, (vi) all obligations of such Person to pay a specified purchase price for goods or services whether or not delivered or accepted, i.e., take-or-pay and similar obligations, (vii) all net obligations of such Person under Hedging Agreements and (viii) all Contingent Obligations of such Person; provided that Indebtedness shall not include trade payables arising in the ordinary course of business so long as such trade payables are payable within 90 days of the date the respective goods are delivered or the respective services are rendered and are not overdue.

“Indemnified Liabilities” shall have the meaning provided in Section 8.7(a) of this Agreement.

“Indemnitee” shall have the meaning provided in Section 9.2(d) of this Agreement.

“Independent Consultants” shall mean, collectively, the Insurance Advisor and the Independent Engineer.

“Independent Engineer” shall mean Leidos or any other Person from time to time appointed by the Required Lenders to act as Independent Engineer for the purposes of this Agreement.

“Independent Engineer Change Order Certificate” shall have the meaning provided in Section 3.1(d)(v).

“Independent Engineer’s Completion Certificate” shall mean a certificate in the form of Exhibit G.

“Independent Engineer’s Deposit Milestone Certificate” shall mean a certificate, substantially in the form attached hereto as Exhibit M(iii)(A), issued by the Independent Engineer, certifying that [***].

[***] Confidential Treatment Requested

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“Independent Engineer’s Milestone Certificate” shall have the meaning provided in Section 3.2(d)(iii) of this Agreement.

“Insurance Advisor” shall mean Moore-McNeil, LLC or any other Person from time to time appointed by the Required Lenders to act as Insurance Advisor for the purposes of this Agreement.

“Insurance Proceeds” shall have the meaning provided in Section 2.23 of this Agreement.

“Insurer” shall mean Indian Harbor Insurance Co.

“Interest Period” shall have the meaning provided in Section 2.9(a) of this Agreement.

“ Interest Rate Determination Date” shall mean, with respect to any Interest Period, the date that is two (2) Business Days prior to the first day of such Interest Period.

“Interparty Agreement” shall mean the Interparty Agreement, dated as of the Closing Date, among the Borrower, ExGen and the Collateral Agent.

“InvestCo” shall mean 2015 ESA Investco, LLC, a Delaware limited liability company.

“Issuing Bank ” shall mean each Issuing Bank named on Annex II to this Agreement (as may be updated from time to time to reflect Incremental Issuing Banks becoming Issuing Banks pursuant to Section 2.2(b) and assignees of a participation in any Letters of Credit to pursuant to Section 9.11(a)), each in its capacity as the issuer of any Letter of Credit requested by the Borrower pursuant to Section 2.4, or any successor thereto.

“Joint Lead Arranger” shall mean Crédit Agricole Corporate and Investment Bank.

“Land” shall mean the sites upon which each Project has been installed, together with any fixtures constructed thereon.

“Law” shall mean, with respect to any Person (i) any statute, law, regulation, ordinance, rule, judgment, order, decree, permit, concession, grant, franchise, license, agreement or other governmental restriction or any interpretation or administration of any of the foregoing by any Governmental Authority (including, without limitation, Permits) and (ii) any directive, guideline, policy, requirement or any similar form of decision of or determination by any Governmental Authority which is binding on such Person, in each case, whether now or hereafter in effect (including, without limitation, in each case, any Environmental Law).

“LC Commitment Increase” shall have the meaning provided in Section 2.2(a) of this Agreement.

“LC Commitments” shall mean up to [***] plus the Incremental LC Commitments, if any.

“LC Disbursement” shall have the meaning specified in Section 2.4(c) of this Agreement.

[***] Confidential Treatment Requested

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“LC Exposure” shall mean the aggregate of the Stated Amount of all outstanding Letters of Credit.

“LC Fee” shall have the meaning provided in Section 2.24(c) of this Agreement.

“LC Loans” shall have the meaning provided in Section 2.4(c) of this Agreement.

“LC Loan Availability Period” shall mean the period commencing on the Term Conversion Date, and ending on the earliest to occur of (i) the full utilization of the LC Commitments of the Lenders, (ii) the LC Loan Maturity Date, and (iii) the termination of the Loan Commitments pursuant to the provisions of this Agreement.

“LC Loan Maturity Date” shall mean the Final Maturity Date.

“Lease” shall mean each lease, if applicable, related to any ESA.

“Legal Requirements” shall mean, as to any Person, the Charter Documents of such Person, any requirement under a Permit, and any Law in each case applicable to or binding upon such Person or any of its Properties or to which such Person or any of its Property is subject.

“Lender” shall mean each Lender named on Annex I to this Agreement (as may be updated from time to time to reflect Incremental Lenders becoming Lenders pursuant to Section 2.2(b)) and any Assignee thereof pursuant to Section 9.11 of this Agreement.

“Lender Base Case Projections” shall mean a projection of operating results based on a portfolio capacity factor of [***] showing at a minimum Borrower’s good faith estimates, as of the Closing Date, of revenues, operating expenses and sources and uses over the forecast period (and excluding any warranty payments to the Borrower under the PUMA and any capacity-based environmental incentives (to the extent such incentives are for the benefit of the Borrower)), in substantially the form of Schedule 3.1(n)(i).

“Lender’s Domestic Lending Office” shall mean each Lender’s “Domestic Lending Office” address set forth on the signature pages hereto.

“Letter of Credit” shall have the meaning specified in Section 2.4(a) of this Agreement.

“Lien” shall mean, with respect to any Property of any Person, any mortgage, lien, deed of trust, hypothecation, fiduciary transfer of title, assignment by way of security, pledge, charge, lease, sale and lease-back arrangement, easement, servitude, trust arrangement, or security interest or encumbrance of any kind in respect of such Property, or any preferential arrangement having the practical effect of constituting a security interest with respect to the payment of any obligation with, or from the proceeds of, any Property of any kind (and a Person shall be deemed to own subject to a Lien any Property that it has acquired or holds subject to the interest of a vendor or lessor under any conditional sale agreement, Capital Lease or other title retention agreement relating to such Property).

“Loan Commitments” shall mean, as to any Lender, the applicable amount set forth opposite such Lender’s name in Annex I to this Agreement as to all Loan Facilities; provided that the aggregate Loan Commitments shall not exceed [***] plus the amount of any Incremental Commitments.

[***] Confidential Treatment Requested

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“Loan Termination Date” shall mean the date on which all Obligations, other than contingent liabilities and obligations which are unasserted at such date, have been indefeasibly paid and satisfied in full in cash and all Loan Commitments have been terminated.

“Loans” shall mean the Construction Loans, the LC Loans and the Term Loans, in each case, including any applicable Incremental Loans.

“Loan Facilities” shall mean, collectively, the loan facilities contemplated hereunder for the advance of the Construction Loans, the Term Loans and the LC Loans, in each case, including any applicable Incremental Loans.

“Local Account” shall have the meaning provided in the Depositary Agreement.

“ Local Account Control Agreement” shall mean the Blocked Account Agreement, dated as of the Closing Date, in form and substance satisfactory to the Lenders, among the Borrower, Manufacturers and Traders Trust Company, and Collateral Agent.

“Loss Proceeds” has the meaning specified in Section 2.23 of this Agreement.

“Loss Proceeds Account” shall have the meaning provided in the Depositary Agreement.

“Major Project Documents” shall mean the PUMA, each ESA, the Administrative Services Agreement, the Policy, each Lease, any guaranty agreements related to any of the foregoing executed by Persons in favor of Borrower, each Replacement Major Project Contract and any Material Additional Project Document.

“Major Project Participants” shall mean, without duplication, the Borrower, each Sponsor, Bloom, Pledgor, each Offtaker, and to the extent not already included in this list, any counterparty to a Major Project Document.

“Margin Stock” shall mean margin stock within the meaning of Regulations T, U and Regulation X.

“Material Additional Project Document” shall mean any Additional Project Document if (i) the aggregate cost or value of goods and services to be acquired by the Borrower pursuant thereto could reasonably be expected to exceed [***] or the equivalent in any calendar year or (ii) the aggregate amount of termination fees or liquidated damages which could be incurred by the Borrower in respect of such Additional Project Document in any single calendar year could reasonably be expected to exceed [***] or the equivalent or (iii) such Additional Project Document provides [***].

“Material Adverse Effect” shall mean, as of any given date, a material adverse effect on (a) the business, financial condition, operations or a material portion of the property of the Borrower, taken as a whole on the basis of the Portfolio as it exists as of such date before giving effect to the event that caused such effect, (b) the ability of the Borrower to fully and timely

[***] Confidential Treatment Requested

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perform its material obligations under any Credit Document or Major Project Document to which it is a party, (c) with respect to any party to a Major Project Document, the legality, validity, binding nature or enforceability against such party of such Major Project Document or (d) the rights and remedies of the Secured Parties under any Credit Document.

“Maximum Capacity” shall mean 44.95 MW.

“MBR Authority” shall have the meaning provided in Section 4.7(b) of this Agreement.

“Minimum Capacity” shall mean the greater of (a) 39.95 MW and (b) the aggregate capacity of the Projects after accounting for the Incremental ESAs, if any.

“Minimum Collateral Amount” shall mean, at any time, (i) with respect to Cash Collateral consisting of cash or deposit account balances, an amount equal to 102% of the Fronting Exposure of each Issuing Bank with respect to Letters of Credit issued and outstanding at such time and (ii) otherwise, an amount determined by Administrative Agent and Issuing Bank in their sole discretion.

“Monthly Date” shall mean the last Business Day of each calendar month.

“Multiemployer Plan” shall mean any multiemployer plan as defined in Section 4001(a)(3) of ERISA to which the Borrower or any member of the Controlled Group has contributed within the preceding six years for the benefit of its employees or under which the Borrower or any member of the Controlled Group has any withdrawal liability pursuant to Section 4201 of ERISA.

“NDA” shall mean each non-disturbance agreement obtained pursuant to any applicable ESA.

“Non-Defaulting Lender” shall mean, at any time, each Lender that is not a Defaulting Lender at such time.

“Note” shall mean any promissory note evidencing any Loan.

“Notice of Borrowing” shall mean a notice of Borrowing by the Borrower in the form of Exhibit H.

“Notice of Change Order” shall have the meaning provided in Section 3.2(d)(iv).

“Notice of Continuation” shall mean a notice of continuation of any Eurodollar Loan by the Borrower in the form of Exhibit I.

“Notice of Conversion” shall mean a notice of conversion of any Base Rate Loan to a Eurodollar Loan by the Borrower in the form of Exhibit J.

“Notice of Term Conversion” shall mean a notice of Term Conversion by the Borrower in the form of Exhibit K.

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“Obligations” shall mean, collectively (i) all loans, advances, debts, liabilities, and obligations, howsoever arising, owed by the Borrower under a Financing Document or otherwise to the Collateral Agent or any Secured Party of every kind and description (whether or not evidenced by any note or instrument and whether or not for the payment of money), direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, including all interest, fees, charges, expenses, attorneys’ fees and consultants’ fees chargeable to the Borrower; (ii) any and all sums advanced by the Collateral Agent or any Secured Party in order to preserve the Collateral or to preserve the Security Interests; (iii) in the event of any Enforcement Action, the reasonable expenses of retaking, holding, preparing for sale or lease, selling or otherwise disposing of or realizing on the Collateral, or of any exercise by the Collateral Agent and/or the Secured Parties of their rights under the Security Documents, together with reasonable attorneys’ fees and court costs; and (iv) the obligations of the Borrower under any Required Hedging Agreement entered into with any Secured Hedge Counterparty.

“OFAC” shall have the meaning provided in Section 4.18(a) of this Agreement.

“OFAC Listed Person” shall have the meaning provided in Section 4.18(a) of this Agreement.

“OFAC Sanctions Program” shall mean any economic or trade sanction that OFAC is or becomes responsible for administering and enforcing. A list of OFAC Sanctions Programs may be found at http://www.ustreas.gov/offices/enforcement/ofac/programs/.

“Offtaker” shall mean each counterparty under each ESA, including Home Depot U.S.A., Inc., AT&T Corp., Wal-Mart, [***], and any counterparty to any ESA that is an Incremental ESA, an Additional Project Document or a Replacement Major Project Document.

“Operating Cash Available for Debt Service” shall mean, for any period, Project Revenues during such period minus Operation and Maintenance Expenses during such period.

“Operation and Maintenance Expenses” shall mean, for any period, costs and expenses necessary for the operation and maintenance of the Projects or any portion thereof and for the purchase of goods and services in connection therewith, including (a) payments under the PUMA (other than Project Costs); (b) the cost of all RECs (as defined in the Wal-Mart ESA) purchased in connection with the Wal-Mart ESA; (c) the administrative agency fees as set forth in Section 3 of the Structuring and Arrangement Fee Letter; (d) payments under the Administrative Services Agreement); (e) property taxes; (f) property and casualty insurance payments; (g) fees due under collateral and depositary agreements; and (h) all other fees and expenses necessary for the continued operation and maintenance of the Projects and the conduct of the business of the Projects, but exclusive in all cases of non-cash charges and also exclusive of all interest charges and charges for the payment or amortization of principal of the Loans. Operation and Maintenance Expenses shall not include payments for restoration or repair of the Projects from the Loss Proceeds Account or income taxes.

“Original Construction Loan Commitments” shall mean the Construction Loan Commitments in effect as of the Closing Date.

[***] Confidential Treatment Requested

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“Original Construction Loans” shall mean the construction loans made by Lenders to the Borrower pursuant to the Original Construction Loan Commitments.

“Original LC Commitments” shall mean the LC Commitments in effect as of the Closing Date.

“Original LC Loans” shall mean the LC Loans made by Lenders to the Borrower pursuant to the Original LC Commitments.

“Original Term Loans” shall mean the Term Loans converted from Original Construction Loans.

“Original Term Loan Commitments” shall mean Term Loan Commitments in effect as of the Closing Date.

“Other Taxes” shall have the meaning provided in Section 2.19(a) of this Agreement.

“Participant Register” shall have the meaning provided in Section 9.11(d) of this Agreement.

“Payment Dates” shall mean the Quarterly Dates.

“PBGC ” shall mean the Pension Benefit Guaranty Corporation or any entity succeeding to any or all of its functions under ERISA.

“Pension Plan” shall mean any pension plan as defined in Section 3(2) of ERISA other than a Multiemployer Plan that is covered by Title IV of ERISA or to which Section 412 of the Code applies that is (or, within the preceding six years, has been) established or maintained, or to which contributions are (or, within the preceding six years, have been) made or required to be made, by the Borrower or by any member of the Controlled Group.

“Permit” shall mean any approval, consent, waiver, exemption, variance, franchise, order, permit, authorization, right or license of or from a Governmental Authority.

“Permitted Investments” shall mean:

(a) marketable securities issued by the U.S. Government and supported by the full faith and credit of the U.S. Treasury, either by statute or an opinion of the Attorney General of the United States;

(b) marketable debt securities issued by U. S. Government-sponsored enterprises, U. S. Federal agencies, U. S. Federal financing banks, and international institutions whose capital stock has been subscribed for by the United States;

(c) certificates of deposit, time deposits, and bankers acceptances of any Acceptable Bank;

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(d) commercial paper of any corporation incorporated under the laws of the United States or any state thereof which on the date of acquisition is rated by Moody’s and/or S&P, provided each such credit rating is least P-1 and/or A-1;

(e) money market mutual funds that are registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, and operated in accordance with Rule 2a-7 and that at the time of such investment are rated Aaa-mf by Moody’s and/or AAAm by S&P, including such funds for which the Collateral Agent or an Affiliate provides investment advice or other services;

(f) tax-exempt variable rate commercial paper, tax-exempt adjustable rate option tender bonds, and other tax-exempt bonds or notes issued by municipalities in the United States, having a short-term rating of “MIG-1” or “VMIG-1” or a long term rating of “Aa2” (Moody’s), or a short-term rating of “A-1” or a long term rating of “AA” (S&P);

(g) repurchase obligations with a term of not more than thirty (30) days, 102 percent collateralized, for underlying securities of the types described in clauses (a) and (b) above, entered into with any Acceptable Bank; and

(h) all rating requirements are based on the time of purchase.

“Permitted Lien” shall mean any Lien permitted to be incurred by the Borrower pursuant to Section 6.2 of this Agreement.

“Person” shall mean any individual, corporation, limited liability company, company, voluntary association, partnership, joint venture, trust, or other enterprise or unincorporated organization or government (or any agency, instrumentality or political subdivision thereof).

“Plan” shall mean any pension plan as defined in Section 3(2) of ERISA other than a Multiemployer Plan that is (or, within the preceding six years, has been) established or maintained, or to which contributions are (or, within the preceding six years, have been) made or required to be made, by the Borrower (or, with respect to any such plan covered by Title IV of ERISA or to which Section 412 of the Code applies, by any member of the Controlled Group).

“Platform” shall have the meaning provided in Section 9.3(e).

“Pledge Agreement” shall mean, the Pledge and Security Agreement, dated as of the Closing Date, in form and substance satisfactory to the Lenders, among Pledgor, the Borrower and Collateral Agent.

“Pledgor” shall mean 2015 ESA HoldCo, LLC, a Delaware limited liability company.

“Policy” shall mean the fuel cell energy production insurance policy issued by the Insurer, dated as of the Closing Date, in form and substance satisfactory to the Lenders.

“Policy Cutoff Date” shall mean twenty-four (24) months after commencement of the Policy Term (as defined in the Policy); provided that the Policy Cutoff Date may be extended commensurate with adequate amendments to the Policy, as determined by the Administrative Agent and the Lenders in their sole discretion.

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“Portfolio” shall mean, on an aggregate basis, all Systems owned by the Borrower at any time that were purchased pursuant to the PUMA and that have achieved COO, other than Systems that have been repurchased by Bloom pursuant to the terms of the PUMA or were purchased by an Offtaker pursuant to an ESA.

“Prime Rate” shall mean the rate of interest per annum publicly announced from time to time by the Administrative Agent as such bank’s “prime rate” with respect to extensions of credit made by it in the United States of America. Each change in the Prime Rate shall be effective on the date such change is publicly announced as effective. Such rate is a rate set by the Administrative Agent based upon various factors including such bank’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate.

“Pro Rata Share” shall mean, (i) with respect to a Lender, a fraction (expressed as a percentage), the numerator of which is the amount of such Lender’s Loan Commitments and the denominator of which is the sum of the amounts of all of the Lenders’ Loan Commitments, or if no Loan Commitments are outstanding, a fraction (expressed as a percentage), the numerator of which is the amount of Obligations owed to such Lender and the denominator of which is the aggregate amount of the Obligations owed to all Lenders and (ii) with respect to an Issuing Bank, a fraction (expressed as a percentage), the numerator of which is the amount of such Issuing Bank’s LC Commitments and the denominator of which is the sum of the amounts of all of the Issuing Banks’ LC Commitments, or if no LC Commitments are outstanding, a fraction (expressed as a percentage), the numerator of which is the amount of Obligations with respect to any Letters of Credit owed to such Issuing Bank and the denominator of which is the aggregate amount of the Obligations with respect to any Letters of Credit owed to all Issuing Banks.

“Process Administrative Agent” shall mean CT Corporation System.

“Project” and “Projects” shall have the meanings set forth in the preamble.

“Projections” shall mean each of the Lender Base Case Projections and the Downside Sizing Case Projections.

“Project Budget” shall mean the budget for anticipated costs to be incurred in connection with the development, construction, installation, timing and start up of the Projects as set forth in Schedule 3.1(q)(ii), as may be amended from time to time.

“Project Costs” shall mean the cost of developing, designing, engineering, equipping, procuring, constructing, starting up, commissioning, acquiring, interconnecting, testing and operating the Projects in accordance with Prudent Industry Practice, including (a) the cost of all labor, services, materials, supplies, equipment, tools, transportation, supervision, storage, training, demolition, site preparation, civil works, and remediation in connection therewith, (b) the Purchase Price (as defined in the PUMA) of the Systems, (c) insurance premiums payable with respect to the Project during the period ending on the Term Loan Conversion Date (the “Construction Period”), (d) the cost of funding the reserve accounts during the Construction

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Period, (e) interest payable on any Loans and financing- related fees and costs during the Construction Period (including any and all commitment fees and other fees, interest and other amounts payable by the Borrower under the Credit Agreement), (f) costs incurred for Operation and Maintenance Expenses and mobilization costs during the Construction Period, (g) amounts payable under the Administrative Services Agreement during the Construction Period, (h) other fees (but only fees payable to third parties) and expenses relating to the development, construction, acquisition and closing of financing of the Project, including financial, legal and consulting fees, costs and expenses in accordance with the Project Budget, including the permitted variances thereto and (i) costs, including legal and consulting fees and expenses associated with regulatory proceedings and other governmental and regulatory matters during the Construction period.

“Project Documents” shall mean without duplication, the Major Project Documents and any other agreement or document relating to the development, construction or operation of the Projects to which the Borrower is a party.

“Project Revenues” shall mean, without duplication, all income and cash receipts of the Borrower derived from the ownership or operation of the Projects), including payments received by the Borrower from the Offtakers and/or from Bloom under the PUMA (except for delay liquidated damages or payment of the Refund Adder pursuant to Section 5.11 of the PUMA, as applicable), proceeds of any delay in start up or business interruption or liability insurance (to the extent such liability insurance proceeds represent reimbursement of third party claims previously paid by the Borrower), proceeds from sale of assets, investment income on amounts in the Accounts (solely to the extent deposited in the applicable Account), but excluding solely for purposes of calculating Operating Cash Available for Debt Service, (a) any receipts derived from the sale of any property pertaining to the Projects or incidental to the operation of the Projects, as determined in conformity with cash accounting principles, (b) proceeds of casualty insurance, (c) payments received pursuant to Section 5.8 of the PUMA, (d) payments received upon termination of the ESAs following a Customer Default (as defined in each ESA), (e) the proceeds of any condemnation awards relating to the Projects and (f) proceeds from the Security Documents. For the avoidance of doubt, Project Revenues does not and will not include any indemnity payments made by the Sponsors to the Borrower or any direct or indirect member thereof pursuant to the PUMA for any losses arising as a result of the loss or recapture of any investment tax credit under Section 48 of the Code, and all such funds, if they are deposited in any of the Accounts, shall be sent to any Persons or other account directed by the Borrower or such direct or indirect member of the Borrower, as the case may be, free of the Liens of the Security Documents.

“Project Schedule” shall mean the schedule identifying the projected schedule for the construction and testing of the Projects and the occurrence of Completion.

“Property” shall mean any property of any kind whatsoever, whether real, personal or mixed and whether tangible or intangible, and any right or interest therein.

“Prudent Electrical Practices” has the meaning assigned to such term in the PUMA.

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“PUHCA” shall mean the Public Utility Holding Company Act of 2005 (42 U.S.C. §§ 16451-16463), and FERC’s implementing regulations related thereto (18 C.F.R. Part 366).

“PUMA” shall mean the Purchase, Use and Maintenance Agreement, dated as of the Closing Date, between the Borrower and Bloom.

“Quarterly Dates” shall mean the last Business Day of each March, June, September and December.

“Qualified Owner” shall mean a Person that (i) has (or whose ultimate parent company has) (A) to the extent that such entity (or such ultimate parent company) is publicly traded, outstanding common stock with a market value totaling at least $300,000,000 or, to the extent that such entity (or such ultimate parent company) is not publicly traded, a net worth of at least $300,000,000) or (B) has at least one the following credit ratings: (1) Baa3 by Moody’s, (2) BBB- by S&P or (3) BBB- by Fitch Ratings; and (ii) has (or whose ultimate parent company has) (1) at least three years of experience in the ownership and operation of distributed generation power projects and (2) owns or operates distributed generation power projects aggregate generation capacity of at least 150 MW (net); and (iii) until the date on which the Projects are no longer exposed to ITC recapture, is not a Person to whom a transfer described above would trigger ITC recapture with respect to the Projects.

“Real Property” shall mean the real property interests of the Borrower, including the Sites.

“Real Property Documents” shall mean any documents, agreements or instruments pursuant to which the Borrower has rights in Real Property, including all easements, sub-easements, leases, subleases, licenses and other agreements with landowners, any non-disturbance agreements and any deeds pursuant to which the Borrower owns a fee interest in Real Property.

“Real Property Rights” shall mean all real property rights necessary for the construction, ownership and operation of the Projects pursuant to the Transaction Documents.

“Register” shall have the meaning provided in Section 8.10 of this Agreement.

“Regulation D” shall mean Regulation D of the Federal Reserve Board.

“Regulation T” shall mean Regulation T of the Federal Reserve Board.

“Regulation U” shall mean Regulation U of the Federal Reserve Board.

“Regulation X” shall mean Regulation X of the Federal Reserve Board.

“Release” shall mean any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, or disposing into or through the environment (including the abandonment or discarding of barrels, containers, and other closed receptacles containing any Hazardous Material, but excluding (i) emissions from the engine exhaust of a motor vehicle and (ii) the normal application of fertilizer).

A-27

“Removal Effective Date” shall have the meaning provided in Section 8.9(b) of this Agreement

“Replacement Major Project Contract” shall mean any Major Project Contract entered into by the Borrower with a Replacement Obligor in replacement of a Major Project Contract which either (a) has economic and other terms which, taken as a whole, are no less favorable to the Borrower than those in the Major Project Contract being replaced and have a term at least equal to the remaining term of the Major Project Contract being replaced or (b) is in form and substance and on terms reasonably satisfactory to the Lenders.

“Replacement Obligor” shall mean a Person (or any guarantor of such Person’s obligations) (a) having, on the date of such replacement, a credit rating of [***] or better from S&P or [***] or better from Moody’s or (b) otherwise acceptable to the Lenders.

“Request for LC” shall have the meaning provided in Section 2.4(b) of this Agreement.

“Required Hedging Agreement” shall mean any interest rate hedge agreement entered into by the Borrower and a Hedge Counterparty in accordance with Section 5.17 of this Agreement.

“Required Lenders” shall mean (x) subject to clause (y) below, the Lenders holding at least 50.01% of the aggregate outstanding principal amount of the Loans or, if no Loans have been made, at least 50.01% of the Loan Commitments and (y) in respect of (i) Section 7.3 following the termination of any Secured Hedge Counterparties’ Required Hedging Agreement, (ii) any matters that disproportionately and adversely impact the Secured Hedge Counterparties relative to the Lenders, (iii) a release of all or substantially all of the Collateral and (iv) any subordination of the Secured Hedge Counterparties’ Required Hedging Agreement, the Lenders holding at least 50.01% of the sum of (a) the aggregate outstanding principal amount of the Loans and (b) the aggregate Swap Termination Value. The Total Credit Exposure of any Defaulting Lender shall be disregarded in determining Required Lenders at any time.

“Required DSR Balance” shall have the meaning provided in the Depositary Agreement.

“Reserve Requirement ” shall mean, at any time, the maximum rate at which reserves (including, without limitation, any marginal, special, supplemental, or emergency reserves) are required to be maintained under regulations issued from time to time by the Federal Reserve Board by member banks of the Federal Reserve System against “Eurocurrency liabilities” (as such term is used in Regulation D) (such requirement as set forth on www.federalreserve.gov/monetarypolicy/reservereq.htm or any similar website operated or made available from time to time by the Federal Reserve Board either relating to reserve requirements in general or to the terms of Regulation D in particular). Without limiting the effect of the foregoing, the Reserve Requirement shall reflect any other reserves required to be maintained by such member banks with respect to (i) any category of liabilities which includes deposits by reference to which the Adjusted Eurodollar Rate is to be determined, or (ii) any category of extensions of credit or other assets which include Eurodollar Loans. The Adjusted Eurodollar Rate shall be adjusted automatically on and as of the effective date of any change in the Reserve Requirement.

[***] Confidential Treatment Requested

A-28

“Restoration Work” shall have the meaning provided in the Depositary Agreement.

“Revenue Account” shall have the meaning provided in the Depositary Agreement.

“Sanctions Laws” shall have the meaning provided in Section 4.18(d) of this Agreement.

“Sanctioned Country” shall have the meaning provided in Section 4.18(b) of this Agreement.

“Secured Parties” shall mean, collectively, the Administrative Agent, the Collateral Agent, the Lenders and each Secured Hedge Counterparty.

“Secured Hedge Counterparty” shall mean any Hedge Counterparty which is a Lender or an Affiliate thereof.

“Security Agreement” shall mean the Security Agreement, dated as of the Closing Date, in form and substance satisfactory to the Lenders, between the Borrower and Collateral Agent.

“Security Documents” shall mean, collectively, the Depositary Agreement, the Security Agreement, the Pledge Agreement, the Local Account Control Agreement, the Interparty Agreement, each Direct Agreement and all Uniform Commercial Code financing statements and other filings, recordings or registrations required by this Agreement to be filed or made in respect of any such Security Document.

“Security Interest” shall mean the Lien on the Collateral or any other collateral purported to be granted to the Collateral Agent for the benefit of one or more of the Secured Parties (or any trustee, sub-agent or other Person acting for or on behalf of the Collateral Agent).

“Site” shall mean, with respect to each ESA, the real property on which the Systems are installed and operated, as such real property is described in the applicable ESA.

“Solvent” shall mean, with respect to any Person, that as of the date of determination, (a) the aggregate value of all properties of such Person at their present saleable value (i.e., the amount that may be realized within a reasonable time, considered to be six months to one year, either through collection or sale at the regular market value, conceiving the latter as the amount that could be obtained for the property in question within such period by a capable and diligent businessperson from an interested buyer who is willing to purchase under ordinary selling conditions), exceed the amount of all the debts and liabilities (including contingent, subordinated, unmatured and unliquidated liabilities) of such Person, (b) such Person will not, on a consolidated basis, have an unreasonably small capital with which to conduct its business operations heretofore conducted and (c) such Person will have, on a consolidated basis, sufficient cashflow to enable it to pay its debts as they mature.

“Sponsors” shall mean each of ExGen and CleanTech.

“Standard & Poor’s” shall mean Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.

A-29

“Stated Amount” shall mean, as to any Letter of Credit, the face amount of such Letter of Credit.

“Stated Maturity Date” shall mean December 31, 2021.

“Stock” shall mean Capital Stock or Voting Stock.

“Structuring and Arrangement Fee Letter” shall mean that certain Structuring and Arrangement Fee Letter, dated as of May 13, 2015, between the Administrative Agent and the Borrower.

“Subsidiary” shall mean, for any Person, any corporation, partnership or other entity of which at least a majority of the securities or other ownership interests having by the terms thereof ordinary voting power to elect a majority of the board of directors or other persons performing similar functions of such corporation, partnership or other entity (irrespective of whether or not at the time securities or other ownership interests of any other class or classes of such corporation, partnership or other entity shall have or might have voting power by reason of the happening of any contingency) is at the time directly or indirectly owned or controlled by such Person or one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of such Person.

“Suspense Account” shall have the meaning provided in the Depositary Agreement.

“Swap Termination Value” shall mean, on any date of determination, in respect of a Required Hedging Agreement, (i) prior to the designation of an early termination date under such Required Hedging Agreement, the amount determined by the Secured Hedge Counterparty in a commercially reasonable manner that would be payable by the Borrower if such Required Hedging Agreement were terminated as of such date of determination and (ii) after the designation of an early termination date under such Required Hedging Agreement, the termination amount (including any unpaid amounts) determined to be payable under such Required Hedging Agreement.

“System” shall mean each proprietary solid oxide fuel cell power generating unit, including, where applicable, any uninterruptible power modules installed in connection therewith, to be purchased from Bloom by the Borrower under the PUMA.

“Taxes” shall have the meaning provided in Section 2.19(a) of this Agreement.

“Term Conversion” shall mean, the conversion of the Construction Loans to Term Loans on the Term Conversion Date pursuant to Section 2.1 of the Credit Agreement.

“Term Loan Commitment” shall mean, as to any Lender the applicable amount of such Lender’s Construction Loan Commitment.

“Term Conversion Date” shall mean the date on which all of the conditions precedent to the making of the Term Loans set forth in Section 3.3 are satisfied or waived by the Required Lenders, and the Construction Loans then outstanding (after giving effect to any prepayment made on such date) are converted to Term Loans.

A-30

“Term Loans” shall have the meaning provided in Section 2.1(c) of this Agreement.

“Termination Value” has the meaning assigned to such term in each applicable ESA.

“Total Credit Exposure” shall mean, as to any Lender at any time, the unused Loan Commitments and outstanding Loans of such Lender at such time.

“Total Loan Commitment” shall mean the aggregate Loan Commitments as to all Loan Facilities.

“Total Project Costs” shall mean the expected aggregate Project Costs, including, for the avoidance of doubt, costs incurred for Operation and Maintenance Expenses and mobilization costs during the Construction Period. The estimated Total Project Costs as of the Closing Date are [***].

“Transactions” shall mean, collectively, the transactions that will take place under the Transaction Documents.

“Transaction Documents” shall mean, collectively, the Project Documents and the Credit Documents.

“Type” shall mean the type of Loan determined with regard to the interest option applicable thereto, i.e., whether a Base Rate Loan or a Eurodollar Loan.

“Undisclosed Administration” shall mean in relation to a Lender or its direct or indirect parent company the appointment of an administrator, provisional liquidator, conservator, receiver, trustee, custodian or other similar official by a supervisory authority or regulator under or based on the law in the country where such Lender or its direct or indirect parent company is subject to home jurisdiction supervision if applicable law requires that such appointment is not to be publicly disclosed.

“Uniform Commercial Code” shall mean the Uniform Commercial Code as adopted in any applicable jurisdiction.

“United States” and “U.S.” shall each mean the United States of America.

“Unsatisfied Condition” shall mean a condition in a Permit that has not been satisfied and that must be satisfied either (a) before such Permit can become effective, or (b) as of the date on which a representation is made or a condition precedent must be satisfied (in each case, under this Agreement), or (c) as of a future date but with respect to which facts or circumstances exist which, to the Borrower’s knowledge, could reasonably be expected to result in a failure to satisfy such Permit condition, and which failure could reasonably result in a Material Adverse Effect.

“Updated Downside Sizing Case Projections ” shall mean, as of a particular date of calculation thereof, a projection of operating results based on a portfolio capacity factor of 80% showing at a minimum Borrower’s good faith estimates, as of such date of calculation, of revenues, operating expenses and sources and uses over the forecast period (and excluding any warranty payments to the Borrower under the PUMA and any capacity-based environmental incentives (to the extent such incentives are for the benefit of the Borrower)), in substantially the form of Schedule 3.1(n)(ii), which demonstrate the ability of the Portfolio to maintain the Debt Service Coverage Ratio at a [***] minimum over such period.

[***] Confidential Treatment Requested

A-31

“Updated Lender Base Case Projections” shall mean, as of a particular date of calculation thereof, a projection of operating results based on a portfolio capacity factor of [***] showing at a minimum Borrower’s good faith estimates, as of such date of calculation, of revenues, operating expenses and sources and uses over the forecast period (and excluding any warranty payments to the Borrower under the PUMA and any capacity-based environmental incentives (to the extent such incentives are for the benefit of the Borrower)), in substantially the form of Schedule 3.1(n)(i), which demonstrate the ability of the Portfolio to maintain the Debt Service Coverage Ratio at a [***] minimum over such period.

“Updated Projections” shall mean, as of a particular date, collectively, the Updated Downside Sizing Case Projections and the Updated Lender Base Case Projections.

“Voting Stock”, with respect to any Person, shall mean Capital Stock the holders of which are ordinarily, in the absence of contingencies, entitled to vote for the election of directors (or persons performing similar functions) of such Person, even if the right so to vote has been suspended by the happening of a contingency.

“Wal-Mart” shall mean Wal-Mart Stores, Inc., as an Offtaker.

“Wal-Mart ESA” shall mean that certain Master Fuel Cell Power & Services Agreement between the Borrower and Wal-Mart, dated as of December 19, 2014.

2. Rules of Interpretation. In each Credit Document, unless otherwise indicated:

(a) each reference to, and the definition of, any document (including any Credit Document) shall be deemed to refer to such document as it may be amended, supplemented, revised or modified from time to time in accordance with its terms and, to the extent applicable, the terms of this Agreement;

(b) unless expressly stated otherwise, each reference to a Law or Permit shall be deemed to refer to such Law or Permit as the same may be amended, supplemented or otherwise modified from time to time;

(c) any reference to a Person in any capacity includes a reference to its permitted successors and assigns in such capacity and, in the case of any Governmental Authority, any Person succeeding to any of its functions and capacities;

(d) references to days shall refer to calendar days unless Business Days are specified; references to weeks, months or years shall be to calendar weeks, months or years, respectively;

(e) all references to a “Section,” “Appendix,” “Annex,” “Schedule” or “Exhibit” are to a Section of such Financing Document or to an Appendix, Annex, Schedule or Exhibit attached thereto;

[***] Confidential Treatment Requested

A-32

(f) the table of contents and Section headings and other captions therein are for the purpose of reference only and do not affect the interpretation of such Credit Document;

(g) defined terms in the singular shall include the plural and vice versa, and the masculine, feminine or neuter gender shall include all genders;

(h) the words “hereof”, “herein” and “hereunder”, and words of similar import, when used in any Financing Document, shall refer to such Financing Document as a whole and not to any particular provision of such Financing Document;

(i) the words “include,” “includes” and “including” are deemed to be followed by the phrase “without limitation”; the words “will” and “shall” are deemed to have the same meaning and effect; the expression “and/or” shall connote “any or all of”;

(j) where the terms of any Credit Document require that the approval, opinion, consent or other input of any Secured Party be obtained, such requirement shall be deemed satisfied only where the requisite approval, opinion, consent or other input is given by or on behalf of the relevant party in writing;

(k) where the terms of any Credit Document require or permit any action to be taken by the Collateral Agent, such action shall be taken strictly in accordance with the applicable provisions of the relevant Credit Documents; and

(l) any reference to a document shall be deemed to include all exhibits, annexes, appendices and schedules thereto.

A-33

APPENDIX B

CONDITIONS PRECEDENT TO INCREMENTAL LOANS

The Incremental Facility Closing Date and the advance of any Incremental Loans hereunder on any Incremental Facility Closing Date shall be subject to the satisfaction of the following conditions precedent:

(a) Credit Documents. The Administrative Agent shall have received an original of the relevant Incremental Joinder and originals of any amendment to any Credit Documents, each of which (A) shall have been duly authorized, executed and delivered by an Authorized Officer of the Borrower and an officer of each other Person party thereto (other than the Administrative Agent, the Collateral Agent and the Lenders), and (B) shall be in full force and effect. Borrower shall deliver or cause to be delivered all documents required to be delivered pursuant to each Incremental Joinder (if any).

(b) Incremental ESAs. The Administrative Agent shall have received copies of each of the Incremental ESAs executed on or prior to the Incremental Facility Closing Date (together with all amendments, supplements, exhibits, annexes and schedules thereto), each of which shall have been duly authorized, executed and delivered by an Authorized Officer of the Borrower and an officer of each counterparty to the Incremental ESA(s). The Administrative Agent shall have received a certificate executed by an Authorized Officer of the Borrower, dated the Incremental Facility Closing Date, certifying that the Incremental ESA(s) delivered to the Administrative Agent are true, correct and complete copies of such documents as of the Incremental Facility Closing Date and are in full force and effect.

(c) Secretary Certificates. Each Additional Lender (if any) shall have received a certificate of the Secretary (or comparable Authorized Officer) of each of the Borrower, the Pledgor and each Sponsor, in each case, dated the Incremental Facility Closing Date attaching the Charter Documents of each such Person and substantially similar to those provided pursuant to Section 3.1(c) on the Closing Date.

(d) Borrower’s Certificates. Each Lender shall have received an Incremental Loan closing certificate of Borrower in the form of Exhibit D(ii),and a solvency certificate of Borrower in the form of Exhibit E, in each case, duly executed by an Authorized Officer of the Borrower.

(e) Insurance. Insurance in respect of the Incremental Project(s) complying with the provisions of Section 5.16 hereof shall be in full force and effect, and each Lender shall have received a binder or certificates signed by the insurer or a broker authorized to bind the insurer evidencing such insurance (including the designation of the Collateral Agent as lender loss payee thereunder to the extent required by Section 5.16 hereof.) In addition, each Lender shall have received a report from the Insurance Advisor as to such matters regarding the insurance coverage maintained with respect to the Incremental Projects as the Lenders may reasonably require. Each Additional Lender shall have received a power of attorney and comfort letters with respect to the Policy, each in form and substance reasonably satisfactory to the Lenders.

B-1

(f) Consultants Reports. The Administrative Agent shall have received a reasonably satisfactory report of the Independent Engineer discussing such matters as to the Incremental Projects as the Lenders may require, including (i) technical aspects of the Incremental Projects; (ii) all relevant Incremental ESAs; (iii) operating budget of the Incremental Projects; (iv) maintenance program in relation to the Incremental Projects; and (v) pro forma revenues and operating expenses with respect to the Incremental Projects, and dated no earlier than fifteen (15) days prior to the Incremental Facility Closing Date.

(g) Governmental Approvals. Delivery to Administrative Agent of (i) a revised Schedule 4.13 updated to include any Applicable Permits in respect of the Incremental Project(s), in substantially the same form as the original and (ii) a certificate of Borrower signed by an Authorized Officer certifying that all Applicable Permits in respect of the Incremental Project(s) that are presently required to be obtained have been obtained and are in full force and effect and are not subject to further procedures or any Unsatisfied Condition that could reasonably be expected to result in material modification or revocation; provided that with respect to Permits which cannot be obtained on or prior to the Incremental Facility Closing Date in the exercise of reasonable diligence (but which are routinely obtainable and can be obtained only at a later stage of construction or operation), the Lenders shall have received a certificate of Borrower certifying that such Permits are reasonably expected to be obtained by the time when needed in connection with the construction or operation of the Incremental Projects and the Borrower’s basis therefor.

(h) Lien Search Reports; Termination Statements. Each Lender shall have received satisfactory reports, dated no more than twenty (20) days prior to the Incremental Facility Closing Date, of UCC, judgment and tax lien searches in respect of the Incremental Project(s) with respect to the Borrower and Pledgor, in each case conducted by search firms acceptable to the Lenders.

(i) Incremental Direct Agreements. Delivery to Administrative Agent of executed Incremental Direct Agreements (if any) from each of the Major Project Participants who are party to an Incremental ESA in effect on the Incremental Facility Closing Date, which Incremental Direct Agreements shall be reasonably satisfactory to Administrative Agent.

(j) Security Documents Filings. Amendments (if any) to the Security Documents and all other instruments with respect thereto, as may be necessary, shall have been duly filed or recorded (or arrangements for the filing or recording thereof satisfactory to the Lenders shall have been made) in such manner and in such places as are required under applicable Laws to ensure the continued perfection of the Liens granted pursuant to the Security Documents in the Collateral in favor of the Collateral Agent for the benefit of the Secured Parties. All taxes, fees and other charges payable in connection with the foregoing shall have been paid in full (or arrangements for the payment thereof reasonably satisfactory to the Lenders shall have been made) by or on behalf of the Borrower (and Administrative Agent shall have received satisfactory evidence thereof).

B-2

(k) Financial Information. The Administrative Agent shall have received copies of the most recent audited annual financial statements from Bloom, ExGen, Pledgor (if available) and the Borrower (if available) and the most recent unaudited quarterly financial statements (comprised of a balance sheet and income statement, and without notes) from Bloom, ExGen, Pledgor and the Borrower, together with, for purposes of Borrower’s, Pledgor’s, Bloom’s and ExGen’s financial statements, a certificate from the chief financial officer or other Authorized Officer of Borrower, Pledgor, Bloom or ExGen, as applicable, dated the Incremental Facility Closing Date, to the effect that, to such officer’s knowledge (i) such financial statements are true, complete and correct in all material respects and (ii) there has been no material adverse change in the financial condition, operations, Properties, business or prospects of such Person since the date of such financial statements.

(l) Legal Opinions. Each Lender shall have received legal opinions from counsel substantially similar to those provide at the Closing Date pursuant to Section 3.1(o), in each case, dated the Incremental Facility Closing Date.

(m) Real Property. The Borrower shall have delivered to each of the Lenders copies of (i) all Leases or easements in which the Borrower holds the lessor’s interest or other agreements relating to possessory interests, if any, in the Real Property associated with the Incremental ESAs executed on or prior to the Incremental Facility Closing Date and (ii) all NDAs obtained as of the Incremental Facility Closing Date.

(n) Project Budget and Schedule.

(i) Each Lender shall have received an update to the Project Schedule, a copy of which is attached to this Agreement as Schedule 3.1(q)(i).

(ii) Each Lender shall have received an update to the Project Budget, a copy of which is attached to this Agreement as Schedule 3.1(q)(ii).

(o) Policy Matters.

(i) After accounting for the Incremental Projects, the capacity of the Portfolio shall not exceed the Maximum Capacity.

(ii) The Insurer shall have consented to the Incremental Commitments and the Incremental Projects.

(iii) Premiums due under the Policy with respect to the Incremental Commitments shall be paid from proceeds of Incremental Loans advanced with respect to such Incremental Commitments.

(p) Litigation. The Borrower shall have delivered to the Additional Lenders a certificate confirming that (i) there are no actions, suits or proceedings by or before any Governmental Authority or arbitrator pending or, to the Borrower’s knowledge, threatened in writing by or against any Credit Party related to the Projects and (ii) to the Borrower’s knowledge, there are no actions, suits or proceedings by or before any Governmental Authority or arbitrator pending or threatened in writing by or against any counterparty to an Incremental ESA in effect on the Incremental Facility Closing Date related to the Incremental Project(s) which could reasonably be expected to result in a Material Adverse Effect.

B-3

(q) Fees. The Borrower shall have paid, or made arrangements reasonably satisfactory to the Incremental Lenders to pay, all fees, costs and charges due and payable by it under the Incremental Joinder on or prior to the Incremental Facility Closing Date.

(r) PATRIOT Act. Each Additional Lender (if any) shall have received all documentation and other information required by bank regulatory authorities under applicable “know your customer” and Anti-Money Laundering Laws, including the USA Patriot Act.

(s) Advance of Incremental Loans. For the avoidance of doubt, any advance of Incremental Loans shall be subject to the subject to the satisfaction of the conditions precedent for Credit Events set forth in Section 3.2.

B-4

Schedule A

DIRECT AGREEMENTS

1. That certain Consent and Agreement, dated as of the date hereof, by and among Wilmington Trust, National Association, as Collateral Agent for the Secured Parties, 2015 ESA Project Company, LLC, as assignor, and Bloom Energy Corporation, as consenting party, relating to that certain (i) Amended and Restated Purchase, Use and Maintenance Agreement, dated as of the date hereof, between 2015 ESA Project Company, LLC and Bloom Energy Corporation and (ii) that certain Administrative Services Agreement, dated as of the date hereof, between 2015 ESA Project Company, LLC and Bloom Energy Corporation.

2. That certain Lender Agreement, dated as of the date hereof, by and among Wilmington Trust, National Association, as Collateral Agent for the Secured Parties, 2015 ESA Project Company, LLC, as assignor, and Home Depot U.S.A., Inc., as consenting party, relating to that certain Energy Server Use and License Agreement, dated as of December 19, 2014.

3. That certain Consent and Acknowledgment, dated as of the date hereof, by Wal-Mart Stores, Inc., as consenting party, for the benefit of Wilmington Trust, National Association, as Collateral Agent for the Secured Parties and 2015 ESA Project Company, LLC, as assignor, relating to that certain Master Fuel Cell Power & Services Agreement, dated as of December 19, 2014.

4. That certain Lender Agreement, dated as of the date hereof, by and among Wilmington Trust, National Association, as Collateral Agent for the Secured Parties, 2015 ESA Project Company, LLC, as assignor, and Wal-Mart Stores, Inc., as consenting party, relating to that certain Master Fuel Cell Power & Services Agreement, dated as of December 19, 2014.

5. That certain Lender Agreement, dated as of the date hereof, by and among Wilmington Trust, National Association, as Collateral Agent for the Secured Parties, 2015 ESA Project Company, LLC, as assignor, and AT&T, Corp., as consenting party, relating to that certain Energy System Use Agreement, dated as of February 13, 2015.

6. That certain Lender Agreement, dated as of the date hereof, by and among Wilmington Trust, National Association, as Collateral Agent for the Secured Parties, 2015 ESA Project Company, LLC, as assignor, and [***], as consenting party, relating to that certain Energy Server Use and License Agreement, dated as of March 31, 2015 as amended by that certain First Amendment to the Energy Server and Use and License Agreement, entered into as of April 10, 2015 and that certain Second Amendment to the Energy Server Use and License Agreement, entered into as of June 11, 2015.

7. That certain Lender Agreement, dated as of the date hereof, by and among Wilmington Trust, National Association, as Collateral Agent for the Secured Parties, 2015 ESA Project Company, LLC, as assignor, and [***], as consenting party, relating to that certain Energy Server Use and License Agreement, dated as of June 25, 2015.

[***] Confidential Treatment Requested

SCHEDULE A TO CREDIT AGREEMENT

Schedule B

ENERGY SERVER USE AGREEMENTS

1. That certain Energy Server Use and License Agreement, dated as of December 19, 2014, by and between Home Depot U.S.A., Inc. and 2015 ESA Project Company, LLC, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

2. That certain Master Fuel Cell Power & Services Agreement, dated as of December 19, 2014, by and between Wal-Mart Stores, Inc. and 2015 ESA Project Company, LLC, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

3. That certain Energy System Use Agreement, dated as of February 13, 2015, by and between AT&T Corp. and 2015 ESA Project Company, LLC, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

4. That certain Energy Server Use and License Agreement, dated as of March 31, 2015, by and between [***] and 2015 ESA Project Company, LLC, as amended by that certain First Amendment to the Energy Server Use and License Agreement, entered into as of April 10, 2015 and that certain Second Amendment to the Energy Server Use and License Agreement, entered into as of June 11, 2015, as may further be amended, amended and restated, supplemented or otherwise modified from time to time.

5. That certain Energy Server Use and License Agreement, dated as of June 25, 2015, by and between [***], and 2015 ESA Project Company, LLC, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

[***] Confidential Treatment Requested

SCHEDULE B TO CREDIT AGREEMENT

Schedule 2.1

CONSTRUCTION LOAN COMMITMENTS

Lender	Construction Loan Commitment		Percentage (%)
Crédit Agricole Corporate and Investment Bank		[***]		[***]
KeyBank National Association		[***]		[***]
Mizuho Bank, Ltd.		[***]		[***]
Silicon Valley Bank		[***]		[***]
Manufacturers and Traders Trust Company		[***]		[***]
Total	$	131,236,503.37		100	%

[***] Confidential Treatment Requested

SCHEDULE 2.1 TO CREDIT AGREEMENT

Schedule 2.1(a)

PAYMENT DATES AND AMORTIZATION

PAYMENT DATE	BASE CASE PRINCIPAL PAYMENT
3/31/2017	$	398,474.78
6/30/2017	$	66,930.15
9/30/2017	$	667,565.32
12/31/2017	$	711,757.64
3/31/2018	$	568,239.25
6/30/2018	$	228,050.08
9/30/2018	$	839,502.65
12/31/2018	$	898,575.66
3/31/2019	$	694,106.93
6/30/2019	$	427,820.51
9/30/2019	$	1,037,656.75
12/31/2019	$	1,091,625.86
3/31/2020	$	736,299.53
6/30/2020	$	548,265.50
9/30/2020	$	1,170,426.95
12/31/2020	$	1,255,071.04
3/31/2021	$	947,789.74
6/30/2021	$	867,080.81
9/30/2021	$	1,523,128.23
12/31/2021	$	1,532,503.04

SCHEDULE 2.1(a) TO CREDIT AGREEMENT

Schedule 3.1(h)

LIEN SEARCH REPORTS

PERSON	JURISDICTIONS
2015 ESA Project Company, LLC	Delaware; New York; New Jersey (including Gloucester County, Monmouth County and Atlantic County); California (including Kern County, Santa Clara County and Fresno County); and Connecticut (including Putnam Town; Windham County and Cromwell Town; Middlesex County)
2015 ESA HoldCo, LLC	Delaware

SCHEDULE 3.1(h) TO CREDIT AGREEMENT

Schedule 3.1(l)

SECURITY DOCUMENTS FILINGS

INSTRUMENT	JURISDICTION
UCC-1 Financing Statement (Pledged Interests): 2015 ESA HoldCo, LLC	Delaware
UCC-1 Financing Statement (Personalty): 2015 ESA Project Company, LLC	Delaware
UCC-1 Financing Statement (Transmitting Utility): 2015 ESA Project Company, LLC	Delaware
UCC-1 Financing Statement (Transmitting Utility): 2015 ESA Project Company, LLC	New Jersey
UCC-1 Financing Statement (Transmitting Utility): 2015 ESA Project Company, LLC	New York
UCC-1 Financing Statement (Transmitting Utility): 2015 ESA Project Company, LLC	California
UCC-1 Financing Statement (Transmitting Utility): 2015 ESA Project Company, LLC	Connecticut

SCHEDULE 3.1(l) TO CREDIT AGREEMENT

Schedule 3.1(n)(i)

LENDER BASE CASE PROJECTIONS

Schedule 3.1(n)(i)

Lender Base Case Projections

Source: PPA V Financial Model 2015.06.24 (Lender Base Case).xlsx

$000s (except where noted)

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SCHEDULE 3.1(n)(i) TO CREDIT AGREEMENT

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[***] Confidential Treatment Requested

SCHEDULE 3.1(n)(i) TO CREDIT AGREEMENT

Schedule 3.1(n)(ii)

DOWNSIDE SIZING CASE PROJECTIONS

Schedule 3.1(n)(ii)

Downside Sizing Case

Projections

Source: PPA V Financial Model

2015.06.24 (Lender Base Case).xlsx

$000s (except where noted)

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SCHEDULE 3.1(n)(ii) TO CREDIT AGREEMENT

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[***] Confidential Treatment Requested

SCHEDULE 3.1(n)(ii) TO CREDIT AGREEMENT

Schedule 3.1(o)

LEGAL OPINIONS

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[***] Confidential Treatment Requested

SCHEDULE 3.1(o) TO CREDIT AGREEMENT

Schedule 3.1(q)(i)

PROJECT SCHEDULE

Schedule 3.1(q)(i)

Project Schedule

[Note: 5 pages redacted]

Source: PPA V Financial Model 2015.06.24 (Lender Base Case).xlsx

[***] Confidential Treatment Requested

Site Address

Projected Milestone Dates

Site ID

Customer

Named Offtaker (ESA Reference)

Customer Reference

Street

City

State

System Capacity (kW)

Initial Tolling Rate ($/kWh)

Deposit

Shipment

COO

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SCHEDULE 3.1(q)(i) TO CREDIT AGREEMENT

Schedule 3.1(q)(ii)

PROJECT BUDGET

Schedule 3.1(q)(ii)

Project Budget

Source: Financial Model Final Model Base Case - 95% TMO).xlsx

Uses:	Total %		Total $
System Purchase Price Excluding Installation and Sales Tax		[***]		[***]
Installation Price		[***]		[***]
Estimated Sales Tax		[***]		[***]
Total Purchase and Installation		[***]		[***]
Prepaid Operating Expenses		[***]		[***]
IDC Reserve Account		[***]		[***]
Transaction Costs		[***]		[***]
Total		[***]		[***]

[***] Confidential Treatment Requested

SCHEDULE 3.1(q)(ii) TO CREDIT AGREEMENT

Schedule 3.1(r)

CLOSING DATE LITIGATION

None.

SCHEDULE 3.1(r) TO CREDIT AGREEMENT

Schedule 4.13

APPLICABLE PERMITS

None.

SCHEDULE 4.13 TO CREDIT AGREEMENT

Schedule 4.16

ENVIRONMENTAL MATTERS; HAZARDOUS MATERIALS

None.

SCHEDULE 4.16 TO CREDIT AGREEMENT

Schedule 4.17

LITIGATION

None.

SCHEDULE 4.17 TO CREDIT AGREEMENT

Schedule 5.16

REQUIRED INSURANCE

The Borrower shall, without cost to the Secured Parties, obtain and maintain or cause to be obtained and maintained in full force and effect the insurance policies as required in this Schedule.

In each case the policies must be with insurance carriers with a rating of at least A- and a financial size category of at least X by A.M. Best or A by S&P or otherwise reasonably acceptable to the Required Lenders.

The policies specified in Appendix 1 of this Schedule shall be in full force and effect at all times on and after the Closing Date or at such later inception date as is permitted by Appendix 1 to this Schedule until termination of the Credit Documents subject to renewal no more frequently than annually.

At no time shall there be any gap in cover.

The policy limits and cover of the insurances required in this schedule shall be sufficient to satisfy the requirements set forth in the Project Documents, but in no event less than the limits and coverage provisions set forth in Appendix 1 herein. The obligation to verify that the insurances carried by the Borrower meet the requirements of the Project Documents shall rest solely with the Borrower.

The Borrower shall not violate or permit to be violated any condition, provision or requirement of any insurance policy required by this Schedule, and the Borrower shall perform, satisfy and comply with all conditions, provisions and requirements of all insurance policies.

The Borrower hereby waives any and every claim for recovery against the Secured Parties or their directors, officers and employees and agents for any and all loss or damage covered by any insurance policies to be maintained under this Schedule to the extent such loss or damage is recovered under any such policy.

All policies of insurance required to be maintained pursuant to this Schedule, other than cover required by law, shall be endorsed such that if at any time they are cancelled, lapsed, terminated or suspended (by any party including the insuring parties), such cancellation, lapse, termination or suspension shall not become effective until at least 30 days after receipt by the Collateral Agent from such insurer of such cancellation, lapse, termination or suspension, except for non-payment of premium for which the required written notice shall be 10 days. In addition to this requirement, the Borrower shall inform the Administrative Agent and each of the Lenders as soon a reasonably possible if it becomes aware of and such cancellation, lapse, termination or suspension or of any reasonable prospect of such and shall further requite its broker to do the same.

All policies of insurance required to be maintained pursuant to this Schedule except workers’ compensation and employer’s liability shall provide:

SCHEDULE 5.16 TO CREDIT AGREEMENT

• Additional Insured status for the Collateral Agent and each of the other Secured Parties, the Sponsors and in the case of liability policies only also their respective affiliates, directors, officers, employees and agents (collectively, the “Additional Insureds”). This requirement shall not apply to any professional indemnity policy.

• Waivers of subrogation from the insurers in favor of the Additional Insureds.

• Policies shall either (a) be non-cancellable except for non-payment of premium with at least 10 days written notice of such to each of the Secured Parties; or (b) have cancellation/non-payment provisions in accordance with the provisions of this Schedule.

• Each Lender, the Administrative Agent or the Collateral Agent, on behalf of the Secured Parties, will have the right but not the obligation to pay premiums on behalf of the Borrower in case of non-payment.

• Policies shall be unaffected by any bankruptcy or foreclosure relating to the Borrower or the Project.

• Insurance shall be primary and not excess to or contributing with any other insurance or self-insurance maintained by the Borrower or the Additional Insureds. However, policies can act in excess of underlying policies and any policies provided by contractors in accordance with the requirements of this Schedule.

• The Borrower shall ensure that no Insurer of a policy required in accordance with the terms of this Schedule shall permit the first named insured under such policy to reduce limits or cover or degrade terms and conditions without the prior written approval of the Required Lenders.

• The Additional Insureds shall have no obligations whatsoever including but not limited to no obligation to pay premium and no obligation to pay deductibles.

• Policy limits shall act in excess of deductibles including the indemnity period for time element insurance which shall act in excess of the delay deductible for such insurance.

• Insurer costs and expenses including any associated with claims including claims adjustment are for the account of the relevant insurer and further will not be deducted from policy limits or sublimits.

In addition, all property policies including marine cargo (if applicable) and further including any time element insurance shall provide:

• That the Collateral Agent for the benefit of the Secured Parties shall be sole loss payee of any amounts payable under the policies in relation to the Borrower and the Project.

• A non-vitiation clause in the form of a multiple insured clause where commercially available, or at least in a form consistent with Lenders Loss Payable 438 BFU.

• Cover for accidental errors and omissions with, to the extent available on commercially reasonable terms, with no sublimit applied or otherwise a sublimit acceptable to the Collateral Agent acting reasonably.

SCHEDULE 5.16 TO CREDIT AGREEMENT

• Replacement cost, new for old, with no deduction of any kind including no coinsurance provision or a waiver thereof and no allowance for depreciation (accounting or otherwise), obsolescence or loss of value over time other than in a total constructive loss or other scenario where repair/replacement does not follow loss.

• An advance or partial payment endorsement.

• A clause requiring the insurer to make final payment on any claim within thirty days after the submission of proof of loss and its acceptance by the insurer.

• Except for marine transit policies, a LEG2 exclusion or similar endorsement with no sublimit applied.

In addition, all liability policies except workers’ compensation and employer’s liability shall provide:

• Severability.

• Cross liability with no insured or additional insured excluded.

The above requirements shall be referred to as the “Required Lender Provisions”. The Required Lender Provisions can be provided either as endorsements to or in the main body of the relevant policy. All policies that replace or renew policies shall contain provisions, including limits, sublimits, deductibles, exclusions and the Required Lender Provisions, that are, mutatis mutandis, in all material regards at least the same as those in place at the Closing Date or, if later, the date of first inception of such policy cover, except in relation to risks where exposure no longer exists or where a better level of cover is provided or which would be required in accordance with the provisions of this Schedule.

The Borrower shall provide the Administrative Agent and each of the Secured Parties as soon as reasonably possible prior to financial close, and at least 10 days prior to any subsequent policy inception or renewal, a certificate of pre-agreed format from:

Each placing broker confirming:

• Summary policy terms in the pre-agreed format.

• That all policies required by this schedule are in full force and effect.

• All insurance premiums that are due and payable have been paid in full with no premium overdue.

There shall be appended to such certificate or letter of undertaking insurance certificates for each policy required by this Schedule listing the major sublimits (to be agreed) and confirming that all required endorsements that apply to such policy are in place.

• The Insurance Advisor confirming that:

• The insurance provided complies with the requirements of this Agreement including this Schedule and further complies with the requirements of the Borrower in the Project Documents.

SCHEDULE 5.16 TO CREDIT AGREEMENT

• That the undertakings made by each placing broker conform to the requirements of prudent industry practice.

The Collateral Agent may, at its sole discretion, waive the requirement for a certificate from the Insurance Advisor at policy replacement/renewal without requiring the approval of the Lenders or the Required Lenders.

The insurance provided by the Borrower shall be at least that evidenced in any certificates or other evidence provided by or on behalf of the Borrower.

Any of the requirements of this Schedule can be satisfied by single or by combined policies. However, as would be deemed necessary in accordance with prudent industry practice, a joint loss agreement will be required and included as part of the respective policies (for example, if there were separate marine transit and builders all-risk policies, then a 50:50 clause would be required).

If in the opinion of the Borrower, acting reasonably, any insurance, including the terms and conditions, required endorsements and limits or deductibles thereof, hereby required by this Schedule to be maintained, other than insurance required to be maintained by law which shall be maintained at all times, shall not be available on commercially reasonable terms in the commercial insurance market, the Borrower shall promptly inform the Collateral Agent and each of the Lenders of such purported unavailability and the Borrower shall seek a waiver from the Required Lenders in relation to such purported unavailability in which case the Required Lenders, acting after consultation with the Insurance Advisor, shall not unreasonably withhold agreement to waive such requirement to the extent the maintenance thereof is not so available. The granting by the Required Lenders of any such waiver is conditional on: (i) the Borrower first requesting such waiver in writing, which request shall be accompanied by written reports prepared by the Borrower and its placing broker certifying that such insurance is not available on commercially reasonable terms in the commercial insurance market for projects of similar type and capacity and, in any case where the required amount is not so available, certifying as to the maximum amount which is so available, and explaining in detail the basis for such conclusions and the form and substance of such reports to be reasonably acceptable to the Required Lenders after consultation with the Insurance Advisor; (ii) at any time after the granting of any such waiver, any Secured Party may request, and the Borrower shall furnish to each Secured Party within fifteen (15) days after such request, supplemental reports reasonably acceptable to the Required Lenders updating the prior reports and reaffirming such conclusion; (iii) any such waiver granted by the Required Lenders can amend, to the extent reasonably required to mitigate any increased risks created by the absence of insurance cover that is the subject of the waiver, any of the terms of this Schedule and this Agreement; (iv) any Lender may require the Borrower to obtain the best available insurance comparable to the requirements of this Schedule on commercially reasonable terms then available in the commercial insurance market (as determined by the Insurance Advisor); and (v) such waiver shall be effective only so long as such insurance shall not be available on commercially reasonable terms in the commercial insurance market (as determined by the Insurance Advisor) it being understood that the failure of the Borrower to furnish any supplemental reports shall be deemed to be conclusive evidence that such waiver is no longer effective because such condition no longer exists, but that such failure is not the only way to establish such non-existence.

SCHEDULE 5.16 TO CREDIT AGREEMENT

Any failure on the part of any Secured Party to pursue or obtain the evidence of insurance required by this Schedule from the Borrower and/or failure to point out any non-compliance of such evidence of insurance shall not constitute a waiver of any of the insurance requirements in this Schedule.

Each liability insurance policy required pursuant to this Schedule that is permitted to be written on a “claims made” basis shall provide (a) a retroactive date (as such term is specified in each of such policies) that is no later than the Closing Date and (b) each time any policy written on a “claims made” basis is not renewed or the retroactive date of such policy is to be changed, the Borrower shall obtain and maintain, or cause to be obtained or maintained, for each such policy or policies the broadest extended reporting period coverage, or “tail”, reasonably available in the commercial insurance market for each such policy or policies but in no case less than three (3) years. The Borrower may satisfy the requirements of this Section by obtaining “prior acts” coverage from a subsequent insurance carrier on terms acceptable to the Collateral Agent, acting reasonably.

All property insurance including marine cargo and any time element insurance shall not include any annual or term aggregate limits or sublimits except for the perils of windstorm, flood, earth movement, unintentional errors & omissions in reporting and land and water decontamination but only to the extent permitted in Appendix 1 to this Schedule. Liability policies may have general aggregate limits in accordance with prudent insurance market practice.

All insurance policies required to be maintained pursuant to this Schedule shall contain terms and conditions reasonably acceptable to the Required Lenders following consultation with the Insurance Advisor.

In the event that at any time the insurance as herein provided or as evidenced shall be reduced or cease to be maintained, then (without limiting the rights of any Secured Party hereunder in respect of the Event of Default which arises as a result of such failure) any Secured Party, upon ten (10) Business Days’ prior written notice (unless such insurance coverage would lapse within such period, in which event notice should be given as soon as reasonably possible) to the Borrower of any such failure, may (but shall not be obligated to) take out the required policies of insurance and pay the premiums on the same. All amounts so advanced for such purpose shall become an additional obligation of the Borrower to the Secured Parties that provided such funding, and the Borrower shall forthwith pay such amounts, together with interest on such amounts at the applicable Default Rate from the date so advanced.

The Required Lenders can, acting reasonably, require such additional cover to be provided as is required to conform to prudent industry practice.

SCHEDULE 5.16 TO CREDIT AGREEMENT

The Required Lenders shall have the option to be present and/or to send representatives during meetings and/or negotiations with insurers of any loss settlement in relation to the Borrower or the Project regarding (a) total constructive loss or any scenario in which repair/replacement will not follow loss, (b) any circumstance involving a claim in relation to an event or series of events which has or could be reasonably expected to lead to a Default. Neither the Borrower nor any of its Affiliates shall be permitted to settle any such claim with an insurer without the approval of the Required Lenders to the agreed settlement.

Each Lender may, pursuant to its rights and obligations under this Agreement and this Schedule and the provisions therein, consult with the Insurance Advisor and require reports, compliance certificates and other work product from the Insurance Advisor.

Terms used in this Schedule, unless otherwise specifically defined, shall have the meaning normally ascribed to them in accordance with prudent industry practice in relation to a project similar in type and jurisdiction as the Project.

SCHEDULE 5.16 TO CREDIT AGREEMENT

APPENDIX 1

The provisions of this Appendix 1 to Schedule 5.16 shall be subject to all of the terms and conditions of this Agreement and Schedule 5.16.

a. Property and Business Interruption Insurance

“All-Risk” property form, as such term is used in the insurance industry, including coverage for the perils of flood, earthquake, hail, lightning, strike, riot and civil commotion, vandalism and malicious mischief. Such policy shall insure all real and personal property of the Borrower whether at a fixed (including non-owned location for off-Site repair or refurbishment), off-Site storage or a warehouse location or while in the course of inland or ocean transit (as the case may be), for an amount of not less than the greater of (a) $35,000,000 and (b) 10% of the current aggregate replacement cost of the Project.

The policy shall provide cover in accordance with this Schedule 5.16 for each System from the time no later than the time of delivery to the Borrower in accordance with the terms of the PUMA or such earlier time that the Borrower has risk of loss. This cover shall include cover for installation, testing including hot testing and commissioning sufficient to cover planned testing and commissioning activities and any likely over-run of such activities.

Sub-limits are permitted with respect to the following perils:

• For earthquake and flood a separate aggregate limit for each as commercially available but in no event less than $12,500,000;

• Unintentional Errors & Omissions, aggregated limit as commercially available but in no event less than $7,000,000;

• such other coverages customarily sub-limited and/or aggregated or restricted in reasonable amounts consistent with current industry practice, including without limitation, extra expense, debris removal, on site pollutant cleanup (resulting from a covered peril) and other perils normally sub-limited.

Such policy shall include: (a) an automatic reinstatement of limits following each loss except for those perils normally aggregated (including the perils of earthquake, named windstorm, pollution cleanup and flood), (b) replacement cost valuation with no deduction for depreciation and no coinsurance clauses (or a waiver thereof).

Business Interruption insurance triggered by any and all losses covered for property damage subject to such additional exclusions as are customary for time element insurance shall be provided for not less than 12 months projected covered revenue loss less non-recurrent costs and for an indemnity period of not less than 12 months for example:

SCHEDULE 5.16 TO CREDIT AGREEMENT

a) if the main policy limit for property damage is 10% of the total portfolio replacement cost; then

b) the limit for business interruption shall be at least 20% of annual revenues for the portfolio over a 12 month indemnity period.

Contingent business interruption shall be provided in accordance with prudent industry practice, minimum $5,000,000.

Such policy may have per occurrence deductibles of not greater than $100,000 for all perils except (a) five percent (5%) of the value of property damaged by either earthquake or flood subject to a minimum of up to $250,000; and (b) fourteen (14) days for Business Interruption.

b. Marine Cargo and Marine Business Interruption Insurance

To the extent a material exposure exists, transit coverage, either included in a property policy or under a separate policy (including air, land and ocean cargo, as applicable) on an “all-risk” basis and a “warehouse to warehouse” basis with a per occurrence limit equal to not less than 110% of the value including transit and insurance of such shipment involving Project or any other Collateral assets to or from any storage site or the Project site at all times for which the Borrower has accepted risk of loss or has responsibility for providing insurance. Coverage shall include loading and unloading, temporary storage (as applicable). Coverage shall be maintained in accordance with prudent industry practice in all regards with per occurrence deductibles of not more than $100,000 for physical damage and other terms and conditions acceptable to the Lenders and the Sponsors in consultation with the Insurance Advisor.

Marine Business Interruption insurance shall be attached to the Marine Cargo policy providing equivalent cover, mutatis mutandis, to the Business Interruption cover attached to the All Risk Property policy in accordance with the terms of this Schedule.

c. General Liability

A limit of $1,000,000 per occurrence and in the aggregate shall be provided for:

• Property damage, death and injury (including mental injury).

• Broad form property damage.

• Blanket contractual.

• Products/completed operations

• Advertising injury

• XCU

Deductibles shall be the best commercially available in accordance with prudent industry practice.

SCHEDULE 5.16 TO CREDIT AGREEMENT

d. Automobile Liability

Automobile liability insurance, to the extent exposure exists, including coverage for owned, non-owned and hired automobiles for both bodily injury and property damage and containing appropriate no-fault insurance provisions or other endorsements in accordance with state legal requirements, with a combined single limit of no less than $1,000,000 per accident with respect to bodily injury, property damage or death. Deductibles shall be the best commercially available in accordance with prudent industry practice.

e. Workers’ Compensation and Employer’s Liability

If the Borrower has employees, workers’ compensation insurance in compliance with statutory requirements and employer’s liability insurance, to the extent exposure exists, with a limit of not less than $1,000,000 per accident, per employee and per disease including such other forms of insurance that the Borrower is required by law to provide for the Project, all other states’ endorsement and, to the extent any exposure exists, coverage with respect to the USL&H Act and Jones Act, covering loss resulting from bodily injury, sickness, disability or death of the employees of the Borrower. Deductibles shall be the best commercially available in accordance with prudent industry practice.

f. Pollution Liability

Pollution liability insurance for liability arising out of property damage or bodily injury to third parties as a result of sudden and accidental pollution including the cost of on-site and off-site clean up in an amount not less than $1,000,000 per occurrence and in the aggregate. Deductibles shall be the best commercially available in accordance with prudent industry practice.

g. Umbrella Liability Insurance

An aggregate limit of $15,000,000 (or $20,000,000, if so required by any Project Document) shall be attached and in excess of the underlying general liability, automobile liability, employer’s liability policies on a following form basis with drop down provisions.

h. Errors and Omissions Liability

Errors and omissions insurance for liability arising out of property damage or bodily injury to third parties as a result of prototype manufacturing errors and omissions liability $1,000,000 per glitch and in the aggregate. Deductibles shall be the best commercially available in accordance with prudent industry practice.

i. Directors & Officers Insurance

Directors & Officers insurance, including Employment Practices (if employees) in an amount not less than $10,000,000 on industry standard policy forms subject to a retention not to exceed $50,000. This requirement may be satisfied by a corporate policy.

SCHEDULE 5.16 TO CREDIT AGREEMENT

ANNEX I

LENDERS AND LOAN COMMITMENTS

LENDER	AMOUNT ($)		Percentage (%)
Credit Agricole Corporate and Investment Bank		[***]		[***]
KeyBank National Association		[***]		[***]
Mizuho Bank, Ltd.		[***]		[***]
Silicon Valley Bank		[***]		[***]
Manufacturers and Traders Trust Company		[***]		[***]
TOTAL	$	131,236,503.37		100	%

[***] Confidential Treatment Requested

Annex I-1

ANNEX II

ISSUING BANKS AND LC COMMITMENTS

ISSUING BANK	AMOUNT ($)		Percentage (%)
Credit Agricole Corporate and Investment Bank		[***]		[***]
KeyBank National Association		[***]		[***]
Mizuho Bank, Ltd.		[***]		[***]
Silicon Valley Bank		[***]		[***]
Manufacturers and Traders Trust Company		[***]		[***]
TOTAL		[***]		[***]

[***] Confidential Treatment Requested

Annex II-1

Exhibit A to

Credit Agreement

FORM OF REQUEST FOR LC¹

[Date]

To: Each of the addressees listed on Annex I

I, the undersigned, an Authorized Officer of 2015 ESA Project Company, LLC, a Delaware limited liability company (the “Borrower”), DO HEREBY CERTIFY, as of the date hereof (and, if set forth below, as of the date of the Letter of Credit issuance requested hereby), that:

1. This Letter of Credit request (the “Request for LC”) is furnished pursuant to Section 2.4 of that certain Credit Agreement, dated as of June 25, 2015 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among the Borrower, Crédit Agricole Corporate and Investment Bank, as administrative agent (in such capacity, the “Administrative Agent”), Wilmington Trust, National Association, as collateral agent and depositary bank, Crédit Agricole Corporate and Investment Bank, as issuing bank, syndication agent, coordinating lead arranger and sole bookrunner, KeyBank National Association and Silicon Valley Bank, as joint lead arrangers, and the financial institutions from time to time party thereto as lenders (the “Lenders”). All capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the Credit Agreement.

2. The undersigned is an Authorized Officer of the Borrower as of the date hereof and as of the date of each Letter of Credit issuance requested hereby.

3. This Request for LC is being delivered to the Administrative Agent and each Issuing Bank named in Annex I no less than five (5) Business Days prior to the requested date of issuance.

4. The Borrower hereby irrevocably requests the pro rata issuance of Letters of Credit as follows:

Date of issuance of each

Letter of Credit:                                         [                            ]

Date of each Letter of Credit expiration:   [                            ]²

¹  [Form of Request for LC subject to review by Issuing Banks other than Crédit Agricole Corporate and Investment Bank.]

²  The term for Letters of Credit shall be the lesser of one year or five (5) Business Days prior to the LC Loan Maturity Date; provided that the Letter(s) of Credit may, by their terms, automatically extend for additional periods past the stated expiration date therein unless the Issuing Bank provides notice to the beneficiary thereof that such letter of Credit shall terminate upon the then effective expiration date, in which case the beneficiary shall be permitted upon receipt of such notice, to draw under the applicable Letter of Credit prior to the then current expiration date.

Exhibit A-1

Stated Amount of Letters of Credit:³

Issuing Bank	Stated Amount
Crédit Agricole Corporate and Investment Bank	$[                    ]
KeyBank National Association	$[                    ]
Mizuho Bank, Ltd.	$[                    ]
Silicon Valley Bank	$[                    ]
Manufacturers and Traders Trust Company	$[                    ]
[Additional Issuing Bank] 4	[$[                  ]]

LC Loan Type:	[Base Rate Loan]5[Eurodollar Loan]
Name and address of Letter of Credit beneficiary:	Wilmington Trust, National Association,
	as Collateral Agent
	Attn: Corporate Trust Administration
	1100 North Market Street
	Wilmington, Delaware 19890
	Tel.: (302) 636-6973
	Fax: (302) 636-4140
	Email: sbarone@wilmingtontrust.com

In the form of Exhibit B to the Credit Agreement.

5. The Letters of Credit will be used solely for the purpose of satisfying the Debt Service Reserve Requirement as described in Section 2.21(c) of the Credit Agreement.

6. As of the date of issuance of the Letters of Credit, the aggregate Stated Amount of all outstanding Letters of Credit does not exceed the unused LC Commitments.

³  Each Issuing Bank shall issue Letter(s) of Credit with an aggregate Stated Amount equal to such Issuing Bank’s Pro Rata Share of the total Stated Amounts of all Letters of Credit issued pursuant to this Request for LC.

⁴  Insert applicable Additional Issuing Bank(s) (if any).

⁵ Base Rate Loan may be selected by Borrower for LC Loan, except as provided in Sections 2.8(c) and Section 2.16.

Exhibit A-2

7. As of the date of issuance of the Letters of Credit, all conditions precedent set forth in Section 3.2 and Section 3.3 of the Credit Agreement have been satisfied.

8. As of the date hereof and as of the date of issuance of the Letters of Credit, the representations and warranties of the Borrower set forth in Section 4 of the Credit Agreement and the representations and warranties of the Borrower, the Pledgor and each Sponsor (as applicable) contained in any other Credit Document are true and correct in all material respects.

9. No Default or Event of Default has occurred and is continuing on the date of the Letter of Credit issuance, either before or after giving effect to the Letter of Credit issuance.

10. All information set forth in this Request for LC is true, correct and complete as of the date hereof and the date of the Letter of Credit issuance.

[SIGNATURE PAGE FOLLOWS]

Exhibit A-3

IN WITNESS WHEREOF, the Borrower has caused this Request for LC to be executed on its behalf by the undersigned on and as of the date hereof.

2015 ESA PROJECT COMPANY, LLC,

as Borrower

By:

Name:

Title:

[Signature Page to Request for LC]

Annex I - Addressees

Crédit Agricole Corporate and Investment Bank,

as Administrative Agent

Attn: Theodore M. Vandermel

1301 Avenue of the Americas

New York, NY 10019

Tel.: (212) 261-7888

Fax: (212) 849-5054

Email: theodore.vandermel@ca-cib.com

Crédit Agricole Corporate and Investment Bank,

as Issuing Bank

Attn: Catherine Wong

1301 Avenue of the Americas

New York, NY 10019

Tel.: (732) 590-7628

Fax: (732) 590-7697

Email: cbs.lcadmin@ca-cib.com

KeyBank National Association,

as Issuing Bank

Attn: Standby Letter of Credit Services

4900 Tiedman Road

Brooklyn, OH 44114

Tel.: 216.813.3714 or 216.813.3715

Fax: 216.813.3719

Mizuho Bank, Ltd.,

as Issuing Bank

Attn: Hiroe Nikaido

1251 Avenue of the Americas

New York, NY 10020

Tel.: (212) 282-3552

Fax: (212) 282-3618

Silicon Valley Bank,

as Issuing Bank

Attn: Dan Baldi

555 Mission Street Suite 900

San Francisco, CA 94105

Tel.: (415) 764-4763

Fax: (415) 264-0143

Email: dbaldi@svb.com

Annex I to Request for LC

Manufacturers and Traders Trust Company,

as Issuing Bank

Attn: Mark Hutton

1100 N. Market Street, suite 1100

Wilmington, DE 19801

Tel.: (302) 651-1204

Email: Mhutton@mtb.com

Annex I to Request for LC

Exhibit B to

Credit Agreement

FORM OF LETTER OF CREDIT

[Issuing Bank Letterhead]¹

[Issuing Bank Address]²

Irrevocable Standby Letter of Credit

[Issue Date]
Beneficiary:	Applicant:
Wilmington Trust, National Association,	[Name]
as Collateral Agent	[Address]
1100 North Market Street
Wilmington, Delaware 19890
Irrevocable Standby Letter of Credit No. [    ]
Amount:

USD [            ] (                             AND 00/100 UNITED STATES DOLLARS).

Expiration Date And Place:

[            ]³ at the counters of [                    ].

We hereby establish this Irrevocable Standby Letter of Credit in your (Beneficiary’s) favor for the account of the Applicant for drawing(s) in an aggregate amount of USD [            ] (                     AND 00/100 UNITED STATES DOLLARS).

We hereby undertake to honor your sight draft(s) drawn on us, indicating the number of this Letter of Credit, accompanied by a statement signed by an authorized representative of Beneficiary as provided below and presented for payment at the counters of [                                ] on or before our close of business on the expiration date specified above; provided that such expiration date (and any subsequently extended expiration dates) shall be automatically extended for additional one (1) year annual periods unless at least sixty (60) days prior to the expiration date, we provide Beneficiary with written

¹ Insert name of applicable Issuing Bank. Form of Letter of Credit subject to review by Issuing Banks other than Crédit Agricole Corporate and Investment Bank.

² Insert address of applicable Issuing Bank.

³ The term for Letters of Credit shall be the lesser of one year or the date that is five (5) Business Days prior to the LC Loan Maturity Date.

Exhibit B-1

notice that the expiration date of this Irrevocable Standby Letter of Credit will not be extended (in which case Beneficiary may, upon receipt of such notice, draw upon this Letter of Credit prior to the then current expiration date) and except that the final extended expiration date of this Letter of Credit shall be no later than December 26, 2021 (the “final expiration date”) unless we otherwise expressly agree in writing by means of our amendment to you. Such written notice of non-extension to be provided by SWIFT or overnight courier, to [                ].

Beneficiary’s sight draft(s) shall be accompanied by the following statement purportedly signed by an authorized representative of Beneficiary:

“[                ], as Collateral Agent, certifies that it is entitled to make a drawing in the amount of $                pursuant to the Credit Agreement, dated as of June 25, 2015 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among 2015 ESA Project Company, LLC, a Delaware limited liability company, as borrower (the “Borrower”), Crédit Agricole Corporate and Investment Bank, as administrative agent (in such capacity, the “Administrative Agent”), Wilmington Trust, National Association, as collateral agent (in such capacity, the “Collateral Agent”), Wilmington Trust, National Association, as depositary bank (in such capacity, the “Depositary Bank”), Crédit Agricole Corporate and Investment Bank, as issuing bank, syndication agent, coordinating lead arranger and sole bookrunner, KeyBank National Association and Silicon Valley Bank, as joint lead arrangers, and the financial institutions from time to time party thereto as lenders (the “Lenders”).”

Partial and multiple drawings are permitted hereunder. A copy of this Letter of Credit shall accompany any drawing.

This Letter of Credit may not be modified without the express written consent of the Beneficiary and us.

This Letter of Credit is subject to and shall be governed by the International Standby Practices, 1998 Edition, International Chamber of Commerce Publication No. 590 (the “ISP98”), and to the extent not inconsistent therewith shall be governed by, and construed in accordance with, the laws of the State of New York. In the event of a conflict between the ISP98 and the laws of the State of New York, the ISP98 shall prevail.

[ISSUING BANK]
By:
	Name:
	Title:

Exhibit B-2

Exhibit C to

Credit Agreement

FORM OF ASSIGNMENT AND ACCEPTANCE

[Date]

Crédit Agricole Corporate and Investment Bank,

as Administrative Agent

Attn: Theodore M. Vandermel

1301 Avenue of the Americas

New York, NY 10019

Tel.: (212) 261-7888

Fax: (212) 849-5054

Email: theodore.vandermel@ca-cib.com

2015 ESA Project Company, LLC

1252 Orleans Drive

Sunnyvale, CA 94089

Attn: Bill Brockenborough

Tel.: (408) 543-1772

Fax: (408) 543-1501

E-mail: Bill.Brockenborough@bloomenergy.com

Reference is made to that certain Credit Agreement, dated as of June 25, 2015 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among 2015 ESA Project Company, LLC, a Delaware limited liability company, as borrower (the “Borrower”), Crédit Agricole Corporate and Investment Bank, as administrative agent (in such capacity, the “Administrative Agent”), Wilmington Trust, National Association, as collateral agent (in such capacity, the “Collateral Agent”), Wilmington Trust, National Association, as depositary bank (in such capacity, the “Depositary Bank”), Crédit Agricole Corporate and Investment Bank, as issuing bank, syndication agent, coordinating lead arranger and sole bookrunner, KeyBank National Association and Silicon Valley Bank, as joint lead arrangers, and the financial institutions from time to time party thereto as lenders (the “Lenders”). All capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the Credit Agreement.

This Assignment and Acceptance is being executed and delivered in accordance with Section 9.11 of the Credit Agreement.[            ] (the “Assignor”) and [            ] (the “Assignee”) agree as follows:

1. The Assignor hereby sells and assigns to the Assignee, and the Assignee hereby purchases and assumes from the Assignor, a [      ] percent ([        ]%) interest in and to all of the Assignor’s rights and obligations under the Credit Agreement as of the Effective Date (as defined below), including, without limitation, such percentage interest in the Loan Commitments (including any Incremental Commitments) and Loans (including any Incremental Loans) of the Assignor as in effect on the Effective Date, but excluding any rights of the Assignor to indemnification under the Credit Documents for matters arising or occurring prior to the Effective Date.

Exhibit C-1

2. The Assignor (i) represents and warrants that as of the date hereof its [Construction Loan is $[        ]] [LC Loan is $[        ]] [Term Loan is $[        ]] [Incremental Construction Loan is $[        ]] [Incremental LC Loan is $[        ]] [Incremental Term Loan is $[    ]] [Construction Loan Commitment is $[        ]] [LC Commitment is $[        ]] [Term Loan Commitment is $[        ]] [Incremental Construction Loan Commitment is $[        ]] [Incremental LC Commitment is $[        ]] [Incremental Term Loan Commitment is $[        ]];¹ (ii) represents and warrants that it is the legal and beneficial owner of the interests being assigned by it hereunder and that such interests are free and clear of any adverse claim created by or through it; (iii) makes no representation or warranty and assumes no responsibility with respect to any statements, warranties or representations made in or in connection with either the Credit Agreement or the execution, legality, validity, enforceability, genuineness, sufficiency or value of either the Credit Agreement, or any other Credit Documents or any other instrument or document furnished pursuant thereto; and (iv) makes no representation or warranty and assumes no responsibility with respect to the financial condition of the Borrower, the other Lenders or any counterparty or the performance or observance by the Borrower, the other Lenders or any counterparty of any of its obligations under the Credit Agreement, the other Credit Documents or any other instrument or documents furnished pursuant thereto.

3. The Assignor and Assignee represent and warrant that the Assignee is an Eligible Assignee.

4. The Assignee (i) confirms that it has received a copy of each of the Credit Documents, together with such financial statements and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Assignment and Acceptance and to become a party to the Credit Agreement independently and without reliance upon the Administrative Agent, the Collateral Agent, the Assignor or any other Lender; (ii) agrees that it will, independently and without reliance upon the Administrative Agent, the Collateral Agent, the Assignor or any other Lender and based on such documents and information as it shall deem appropriate at the time, continue to make its own appraisal of and investigation into the business, operations, property, prospects, financial and other conditions and creditworthiness of the Borrower and will make its own credit analysis, appraisal and decisions in taking or not taking action under the Credit Agreement; (iii) appoints and authorizes the Administrative Agent and the Collateral Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Credit Documents as are delegated to the Administrative Agent and/or to the Collateral Agent by the terms thereof, together with such powers as are incidental thereto; (iv) agrees that it will be bound by and perform in accordance with their terms all of the obligations which by the terms of the Credit Agreement are required to be performed by it as a Lender; (v) specifies as its domestic lending office (and address for notices) and its Eurodollar lending office the offices as set forth beneath its name on the signature page hereof; and (vi) attaches the Internal Revenue Service forms (if any) required by of Section 2.19(c) of the Credit Agreement.

¹  If separate Classes exist for any category, list each Class.

Exhibit C-2

5. This Assignment and Acceptance shall be effective on the date (the “Effective Date”) on which (i) it shall have been executed and delivered by the parties hereto, and (ii) executed copies hereof shall have been delivered to the Administrative Agent, the Collateral Agent and the Borrower.

6. On and after the Effective Date, (i) the Assignee (if it is not already a Lender party to the Credit Agreement) shall be a party to the Credit Agreement and, to the extent provided in this Assignment and Acceptance, shall have the rights and obligations of a Lender thereunder and under the other Credit Documents, and the Credit Agreement shall be deemed to be amended, but only to the extent necessary, to effect the addition of the Assignee, and any reference to the Assignor hereunder or under the other Credit Documents shall thereafter refer to such Lender and to the Assignee to the extent of their respective interests and (ii) the Assignor shall, to the extent provided in this Assignment and Acceptance, relinquish its rights and be released from its obligations under the Credit Documents.

7. From and after the Effective Date, the Administrative Agent shall make all payments under the Credit Agreement in respect of the interest assigned hereby (including, without limitation, all payments of principal, interest and commitment fees with respect thereto) to the Assignee. The Assignor and the Assignee shall make all appropriate adjustments in payments under the Credit Agreement for periods prior to the Effective Date directly between themselves.

8. Each of the parties to this Assignment and Acceptance agrees and acknowledges that, notwithstanding the Borrower’s execution hereof (if required), the Borrower shall not have any greater liability or obligations by virtue of the transfer of the interest assigned hereby than the Borrower would have had, had no such transfer occurred.

9. THIS ASSIGNMENT AND ACCEPTANCE AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, EXCLUDING SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.

10. This Assignment and Acceptance may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument.

[SIGNATURE PAGES FOLLOWS]

Exhibit C-3

[NAME OF ASSIGNEE]

By:

Name:

Title:

[NAME OF ASSIGNOR]

By:

Name:

Title:

Domestic lending office:

Eurodollar lending office:

[Signature Page to Assignment and Acceptance]

Agreed and Accepted:

CRÉDIT AGRICOLE CORPORATE AND

INVESTMENT BANK,

as Administrative Agent

By:

Name:

Title:

By:

Name:

Title

WILMINGTON TRUST, NATIONAL ASSOCIATION,

as Collateral Agent

By:

Name:

Title:

[ISSUING BANK,

as Issuing Bank

By:

Name:

Title:]¹

2015 ESA PROJECT COMPANY, LLC,

a Delaware limited liability company,

as Borrower

By:

Name:

Title:

¹ Any assignment of a participation in any Letter of Credit shall require the written acknowledgment of the Issuing Bank of such Letter of Credit.

[Signature Page to Assignment and Acceptance]

Exhibit D(i) to

Credit Agreement

FORM OF CLOSING CERTIFICATE

[Date]

Crédit Agricole Corporate and Investment Bank,

as Administrative Agent

Attn: Theodore M. Vandermel

1301 Avenue of the Americas

New York, NY 10019

Tel.: (212) 261-7888

Fax: (212) 849-5054

Email: theodore.vandermel@ca-cib.com

Reference is hereby made to that certain Credit Agreement, dated as of June 25, 2015 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among 2015 ESA Project Company, LLC, a Delaware limited liability company, as borrower (the “Borrower”), Crédit Agricole Corporate and Investment Bank, as administrative agent (in such capacity, the “Administrative Agent”), Wilmington Trust, National Association, as collateral agent (in such capacity, the “Collateral Agent”), Wilmington Trust, National Association, as depositary bank (in such capacity, the “Depositary Bank”), Crédit Agricole Corporate and Investment Bank, as issuing bank, syndication agent, coordinating lead arranger and sole bookrunner, KeyBank National Association and Silicon Valley Bank, as joint lead arrangers, and the financial institutions from time to time party thereto as lenders (the “Lenders”). All capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the Credit Agreement.

This Certificate is being delivered pursuant to Section 3.1(d) of the Credit Agreement. The undersigned, an Authorized Officer of the Borrower, hereby certifies that:

1. The Borrower has delivered to the Administrative Agent true, correct and complete copies of each Credit Document, together with all amendments, supplements, exhibits and schedules thereto, all of which have been duly authorized, executed and delivered by the Credit Parties party thereto and remain in full force and effect as of the date hereof.

2. The Borrower has delivered to the Administrative Agent a certified list attached hereto as Annex A of, and true, correct and complete copies of, each Major Project Document executed on or prior to the Closing Date. Each of the Major Project Documents executed on or prior to the Closing Date (together with all amendments, supplements, exhibits, annexes and schedules thereto) has been duly authorized, executed and delivered by an Authorized Officer of the Credit Parties thereto and an officer of each counterparty to the Major Project Documents, and remain in full force and effect as of the date hereof, and with respect to which no material breaches or defaults have occurred and are continuing thereunder. Unless otherwise indicated in a Direct Agreement with an Offtaker, Borrower and/or the Collateral Agent has delivered payment account notices to each Offtaker.

Exhibit D(i)-1

3. All Applicable Permits that are presently required to be obtained have been obtained and are in full force and effect and are not subject to further procedures or any Unsatisfied Condition that could reasonably be expected to result in material modification or revocation and all applicable appeals periods have expired, except as noted on Schedule 4.13 to the Credit Agreement delivered to the Administrative Agent as of the date hereof or Applicable Permits that do not have limits on appeal periods under applicable law or regulation[, and with respect to Applicable Permits that are presently required to be obtained which cannot be obtained on or prior to the Closing Date in the exercise of reasonable diligence (but which are routinely obtainable and can be obtained only at a later stage of construction or operation), Borrower reasonably expects that such Permits will be obtained by the time when needed in connection with the construction or operation of the Projects based on [insert the Borrower’s basis therefor in accordance with Section 3.1(g) of the Credit Agreement]]¹.

4. All insurance required to be obtained and maintained by the Borrower pursuant to the Transaction Documents, as set forth in Schedule 5.16 to the Credit Agreement, on or prior to the Closing Date, has been obtained and is in full force and effect and the Borrower has not received any notice of cancellation of any such insurance.

5. Attached hereto as Annex B are true, complete and correct copies (in all material respects) of the most recent unaudited quarterly financial statements of the Borrower as of March 30, 2015. Such financial statements have been prepared in accordance with GAAP and fairly present the financial position of the Borrower as of the date thereof. There has been no material adverse change in the financial condition, operations, Properties, business or prospects of such Person since the date of such financial statements.

6. All certificates of Stock required to be delivered to the Collateral Agent pursuant to the Pledge Agreement have been delivered, together with such documents as are necessary to perfect the interests of the Secured Parties in and to the Collateral covered thereby with the priority contemplated therefor by the Pledge Agreement.

7. The Borrower has delivered to the Administrative Agent a certified list attached hereto as Annex C of, and true, correct and complete copies of, each Direct Agreement from each of the Major Project Participants whose Project Documents are in effect on the Closing Date, which has been duly authorized, executed and delivered by an Authorized Officer of the applicable Major Project Participant, and remain in full force and effect as of the date hereof, and with respect to which no material breaches or defaults have occurred and are continuing thereunder.

8. The Security Documents and all other instruments with respect thereto, as may be necessary, have been duly executed, delivered, filed and recorded (or arrangements for the filing or recording thereof satisfactory to the Lenders have been made) in such manner and in such places set forth on Schedule 3.1(l) to the Credit Agreement and otherwise as are required under applicable Laws to establish and perfect the Liens granted pursuant to the Security Documents in the Collateral in favor of the Collateral Agent for the benefit of the Secured Parties. All taxes,

¹ To be inserted in the event that Borrower has not obtained all Applicable Permits required to be obtained on or prior to the Closing Date.

Exhibit D(i)-2

fees and other charges payable in connection with the foregoing have been paid in full (or arrangements for the payment thereof reasonably satisfactory to the Lenders have been made) by or on behalf of the Borrower (and Administrative Agent has received satisfactory evidence thereof).

9. Attached hereto as Annex D is a true, correct and complete copy of the Equity Contribution Agreement, which has been duly authorized, executed and delivered by the parties thereto, is in full force and effect on the date hereof and with respect to which no material breaches or defaults have occurred and are continuing thereunder, and the Sponsors have provide the Lenders with Acceptable Credit Support (as defined in the Equity Contribution Agreement).

10. Attached hereto as Annex E are the (i) Lender Base Case Projections and (ii) Downside Sizing Case Projections, in each case, in form and substance acceptable to the Lenders in consultation with the Independent Engineer.

11. The Borrower has paid, or has made arrangements satisfactory to the Lenders to pay, all fees, costs and charges (including reasonable attorneys’ fees and expenses) due and payable by the Borrower under the Credit Agreement or under the other Credit Documents on or prior to the Closing Date.

12. Each of the representations and warranties of the Borrower set forth in Section 4 of the Credit Agreement and each of the representations and warranties of the Borrower, the Pledgor and each Sponsor, as applicable, contained in any other Transaction Document are true and correct in all material respects (except that any representation or warranty that is qualified as to “materiality” or “Material Adverse Effect” or the like is true and correct in all respects) on and as of the Closing Date, before and after giving effect to the Closing Date, with the same effect as though made on and as of such date, unless such representation or warranty expressly relates solely to an earlier date.

13. The Borrower has no reason to believe that (i) Completion will not occur by the Date Certain and (ii) the Term Conversion Date will not occur by the Date Certain.

14. The Accounts required under the Depositary Agreement have been established.

15. The Borrower has delivered to the Administrative Agent a certified list attached hereto as Annex F of, and true, correct and complete copies of, each Lease or easement in which Borrower holds the lessor’s interest and other agreements relating to possessory interests in the Real Property as of the Closing Date, which have been duly authorized, executed and delivered by an Authorized Officer of the Credit Parties thereto and an officer of each counterparty thereto, and remain in full force and effect as of the date hereof, and with respect to which no material breaches or defaults have occurred and are continuing thereunder.

16. The Borrower has not entered into any NDAs on or prior to the Closing Date.

17. No Default or Event of Default has occurred and is continuing or will arise as a result of the closing of the transactions contemplated by the Credit Agreement and the other Financing Documents on the Closing Date.

Exhibit D(i)-3

18. Attached hereto as Annex G is a true, correct and complete copy of the Project Schedule.

19. Attached hereto as Annex H is a true, correct and complete copy of the Project Budget.

20. There are no actions, suits or proceedings by or before any Governmental Authority or arbitrator pending, or to the Borrower’s knowledge, threatened in writing by or against any Credit Party related to the Projects.

21. To the Borrower’s knowledge, there are no actions, suits or proceedings by or before any Governmental Authority or arbitrator pending or threatened in writing by or against any Major Project Participant (other than the Credit Parties) related to the Projects other than as set forth on Schedule 3.1(r) to the Credit Agreement delivered even date herewith.

22. There are no facts, events or conditions known to the Borrower, that have not been disclosed in writing to the Lenders which, individually or in the aggregate, have or could reasonably be expected to have a Material Adverse Effect.

23. No Event of Loss has occurred and no condemnation or appropriation proceedings have been initiated or threatened which, individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect

24. Each of the conditions set forth in Section 3.1 of the Credit Agreement have been fully satisfied or waived by each Lender (written notice of which has been provided to the Administrative Agent).

25. I hereby represent and warrant, as an Authorized Officer of the Borrower, that all information set forth in this certificate is true, correct and complete.

[SIGNATURE PAGE FOLLOWS]

Exhibit D(i)-4

IN WITNESS WHEREOF, the undersigned, an Authorized Officer of the Borrower, has duly executed and delivered this Closing Certificate as of the date first written above.

2015 ESA PROJECT COMPANY, LLC,

as Borrower

By:

Name:

Title:

[Signature Page to Closing Certificate]

Annex A: Major Project Documents

1. Amended and Restated Purchase, Use and Maintenance Agreement, dated as of June 25, 2015, by and between Bloom Energy Corporation and 2015 ESA Project Company, LLC, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

2. Administrative Services Agreement, dated as of June 25, 2015, by and among Bloom Energy Corporation and 2015 ESA Project Company, LLC, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

3. Fuel Cell Energy Production Insurance Policy, dated as of June 25, 2015, issued by Indian Harbor Insurance Company in favor of 2015 ESA Project Company, LLC, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

4. Energy Server Use and License Agreement, dated as of December 19, 2014, by and between Home Depot U.S.A., Inc. 2015 ESA Project Company, LLC, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

5. Parent Guaranty, dated as of June 22, 2015, by The Home Depot, Inc. in favor of 2015 ESA Project Company, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

6. Master Fuel Cell Power & Services Agreement, dated as of December 19, 2014, by and between Wal-Mart Stores, Inc. and the 2015 ESA Project Company, LLC, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

7. Energy System Use Agreement, dated as of February 13, 2015, by and between AT&T Corp. and 2015 ESA Project Company, LLC, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

8. Site Lease Agreement, dated as of February 13, 2015, by and between AT&T Corp. and 2015 ESA Project Company, LLC, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

9. Energy Server Use and License Agreement, dated as of March 31, 2015, by and between [***] and 2015 ESA Project Company, LLC, as amended by that certain First Amendment to the Energy Server Use and License Agreement, entered into as of March 31, 2015 and that certain Second Amendment to the Energy Server Use and License Agreement, entered into as of June 11, 2015, as may be further amended, amended and restated, supplemented or otherwise modified from time to time.

10. Energy Server Use and License Agreement, dated as of June 25, 2015, by and between [***] and 2015 ESA Project Company, LLC, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

[***] Confidential Treatment Requested

Exhibit D(i)-5

Annex B: Unaudited Quarterly Financial Statements

[See Attached]

Exhibit D(i)-6

Annex C: Direct Agreements

1. Consent and Agreement, dated as of June 25, 2015, by and among Wilmington Trust, National Association, as Collateral Agent for the Secured Parties, 2015 ESA Project Company, LLC, as assignor, and Bloom Energy Corporation, as consenting party, relating to that certain (i) Amended and Restated Purchase, Use and Maintenance Agreement, dated as of the date hereof, between 2015 ESA Project Company, LLC and Bloom Energy Corporation and (ii) that certain Administrative Services Agreement, dated as of the date hereof, between 2015 ESA Project Company, LLC and Bloom Energy Corporation.

2. Lender Agreement, dated as of June 25, 2015, by and among Wilmington Trust, National Association, as Collateral Agent for the Secured Parties, 2015 ESA Project Company, LLC, as assignor, and Home Depot U.S.A., Inc., as consenting party, relating to that certain Energy Server Use and License Agreement, dated as of December 19, 2014.

3. Consent and Acknowledgment, dated as of June 25, 2015, by Wal-Mart Stores, Inc., as consenting party, for the benefit of Wilmington Trust, National Association, as Collateral Agent for the Secured Parties and 2015 ESA Project Company, LLC, as assignor, relating to that certain Master Fuel Cell Power & Services Agreement, dated as of December 19, 2014.

4. Lender Agreement, dated as of June 25, 2015, by and among Wilmington Trust, National Association, as Collateral Agent for the Secured Parties, 2015 ESA Project Company, LLC, as assignor, and Wal-Mart Stores, Inc., as consenting party, relating to that certain Master Fuel Cell Power & Services Agreement, dated as of December 19, 2014.

5. Lender Agreement, dated as of June 25, 2015, by and among Wilmington Trust, National Association, as Collateral Agent for the Secured Parties, 2015 ESA Project Company, LLC, as assignor, and AT&T, Corp., as consenting party, relating to that certain Energy System Use Agreement, dated as of February 13, 2015.

6. Lender Agreement, dated as of June 25, 2015, by and among Wilmington Trust, National Association, as Collateral Agent for the Secured Parties, 2015 ESA Project Company, LLC, as assignor, and [***], as consenting party, relating to that certain Energy Server Use and License Agreement, dated as of March 31, 2015 as amended by that certain First Amendment to the Energy Server Use and License Agreement, entered into as of April 10, 2015 and that certain Second Amendment to the Energy Server Use and License Agreement, entered into as of June 11, 2015.

7. Lender Agreement, dated as of June 25, 2015, by and among Wilmington Trust, National Association, as Collateral Agent for the Secured Parties, 2015 ESA Project Company, LLC, as assignor, and [***], as consenting party, relating to that certain Energy Server Use and License Agreement, dated as of June 25, 2015.

[***] Confidential Treatment Requested

Exhibit D(i)-7

Annex D: Equity Contribution Agreement

[See Attached]

Exhibit D(i)-8

Annex E: Projections

[See Attached]

Exhibit D(i)-9

Annex F: Real Property

1. Site Lease Agreement, dated as of February 13, 2015, by and between AT&T Corp. and 2015 ESA Project Company, LLC, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

Exhibit D(i)-10

Annex G: Project Schedule

[See Attached]

Exhibit D(i)-11

Annex H: Project Budget

[See Attached]

Exhibit D(i)-12

Exhibit D(ii) to

Credit Agreement

FORM OF INCREMENTAL LOAN CLOSING CERTIFICATE

[Date]

Crédit Agricole Corporate and Investment Bank,

as Administrative Agent

Attn: Theodore M. Vandermel

1301 Avenue of the Americas

New York, NY 10019

Tel.: (212) 261-7888

Fax: (212) 849-5054

Email: theodore.vandermel@ca-cib.com

Reference is hereby made to that certain Credit Agreement, dated as of June 25, 2015 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among 2015 ESA Project Company, LLC, a Delaware limited liability company, as borrower (the “Borrower”), Crédit Agricole Corporate and Investment Bank, as administrative agent (in such capacity, the “Administrative Agent”), Wilmington Trust, National Association], as collateral agent (in such capacity, the “Collateral Agent”), Wilmington Trust, National Association, as depositary bank (in such capacity, the “Depositary Bank”), Crédit Agricole Corporate and Investment Bank, as issuing bank, syndication agent, coordinating lead arranger and sole bookrunner, KeyBank National Association and Silicon Valley Bank, as joint lead arrangers, and the financial institutions from time to time party thereto as lenders (the “Lenders”). All capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the Credit Agreement.

This Certificate is being delivered pursuant to paragraph (d) of Appendix B to the Credit Agreement. The undersigned, an Authorized Officer of the Borrower, hereby certifies that:

1. The Borrower has delivered to the Administrative Agent true, correct and complete copies of the relevant Incremental Joinder and originals of any amendment to any Credit Document, all of which have been duly authorized, executed and delivered by the parties thereto and remain in full force and effect as of the date hereof, and Borrower has delivered or caused to be delivered all documents required to be delivered pursuant to each Incremental Joinder (if any).

2. The Borrower has delivered to the Administrative Agent a certified list attached hereto as Annex A of, and true, correct and complete copies of the Incremental ESA(s) executed on or prior to the Incremental Facility Closing Date (together with all amendments, supplements, exhibits, annexes and schedules thereto), each of which has been duly authorized, executed and delivered by an Authorized Officer of the Borrower and an officer of each counterparty to such Incremental ESAs, and remain in full force and effect as of the date hereof, and with respect to which no material breaches or defaults have occurred and are continuing thereunder.

Exhibit D(ii)-1

3. All Applicable Permits in respect of the Incremental Project(s) that are presently required to be obtained have been obtained and are in full force and effect and are not subject to further procedures or any Unsatisfied Condition that could reasonably be expected to result in material modification or revocation, and with respect to Applicable Permits that are presently required to be obtained which cannot be obtained on or prior to the Incremental Facility Closing Date in the exercise of reasonable diligence (but which are routinely obtainable and can be obtained only at a later stage of construction or operation), Borrower reasonably expects that such Permits will be obtained by the time when needed in connection with the construction or operation of the Incremental Project(s) based on [insert details on Borrower’s basis therefor].

4. All insurance in respect of the Incremental Project(s) required to be obtained and maintained by the Borrower pursuant to the Transaction Documents, as set forth in Schedule 5.16 to the Credit Agreement, has been obtained and is in full force and effect and the Borrower has not received any notice of cancellation of any such insurance.

5. Attached hereto as Annex B are true, complete and correct copies (in all material respects) of the most recent audited annual financial statements from the Borrower and the most recent unaudited quarterly financial statements (comprised of a balance sheet and income statement, and without notes) from the Borrower. Such financial statements have been prepared in accordance with GAAP and fairly present the financial position of the Borrower as of the date thereof. There has been no material adverse change in the financial condition, operations, Properties, business or prospects of such Person since the date of such financial statements.

6. The Borrower has delivered to the Administrative Agent a certified list attached hereto as Annex C of, and true, correct and complete copies of, each Incremental Direct Agreement (if any) from each of the Major Project Participants who are party to an Incremental ESA in effect on the Incremental Facility Closing Date, each of which has been duly authorized, executed and delivered by an Authorized Officer of the applicable Major Project Participant, and remain in full force and effect as of the date hereof, and with respect to which no material breaches or defaults have occurred and are continuing thereunder.

7. Amendments (if any) to the Security Documents and all other instruments with respect thereto, as may be necessary, have been duly executed, delivered, filed and recorded (or arrangements for the filing or recording thereof reasonably satisfactory to the Lenders have been made) in such manner and in such places as are required under applicable Laws to ensure the continued perfection of the Liens granted pursuant to the Security Documents in the Collateral in favor of the Collateral Agent for the benefit of the Secured Parties. All taxes, fees and other charges payable in connection with the foregoing have been paid in full (or arrangements for the payment thereof reasonably satisfactory to the Lenders have been made) by or on behalf of the Borrower (and Administrative Agent has received reasonably satisfactory evidence thereof).

8. Attached hereto as Annex D are the (i) Updated Lender Base Case Projections and (ii) Updated Downside Sizing Case Projections, in each case, , revised to reflect the projected outstanding balance of the Loans as of the Incremental Facility Closing Date (after giving effect to the Incremental Commitments effected as of the Incremental Facility Closing Date) and the increased projected revenues and expenses after giving effect to the new or amended ESAs in respect of which such Incremental Commitments are being obtained, as confirmed by the Independent Engineer.

Exhibit D(ii)-2

9. The Borrower has paid, or has made arrangements reasonably satisfactory to the Incremental Lenders to pay, all fees, costs and charges (including reasonable attorneys’ fees and expenses) due and payable by the Borrower under the Incremental Joinder on or prior to the Incremental Facility Closing Date.

10. Each of the representations and warranties of the Borrower set forth in Section 4 of the Credit Agreement and each of the representations and warranties of the Borrower, the Pledgor and each Sponsor, as applicable, contained in any other Transaction Document are true and correct in all material respects (except that any representation or warranty that is qualified as to “materiality” or “Material Adverse Effect” or the like is true and correct in all respects) on and as of the Incremental Facility Closing Date, before and after giving effect to the Incremental Facility Closing Date, with the same effect as though made on and as of such date, unless such representation or warranty expressly relates solely to an earlier date.

11. The Borrower has no reason to believe that (i) Completion will not occur by the Date Certain and (ii) the Term Conversion Date will not occur by the Date Certain.

12. The Borrower has delivered to the Administrative Agent a certified list attached hereto as Annex E of, true, correct and complete copies of, each Lease or easement in which Borrower holds the lessor’s interest and other material agreements relating to possessory interests, if any, in the Real Property associated with the Incremental ESAs as of the Incremental Facility Closing Date, which have been duly authorized, executed and delivered by an Authorized Officer of the parties thereto, and remain in full force and effect as of the date hereof, and with respect to which no material breaches or defaults have occurred and are continuing thereunder.

13. The Borrower has delivered to the Administrative Agent a certified list attached hereto as Annex F of, and true, correct and complete copies of each NDA (if any) obtained as of the Incremental Facility Closing Date.

14. No Default or Event of Default has occurred and is continuing or will arise as a result of the closing of the transactions contemplated by the Incremental Joinder, Credit Agreement and the other Financing Documents on the Incremental Facility Closing Date.

15. Attached hereto as Annex G is a true, correct and complete copy of the updated Project Schedule.

16. Attached hereto as Annex H is a true, correct and complete copy of the updated Project Budget.

17. [Note: Only to be included if there are Additional Lenders: There are no actions, suits or proceedings by or before any Governmental Authority or arbitrator pending, or to the Borrower’s knowledge, threatened in writing by or against any Credit Party related to the Projects.]

Exhibit D(ii)-3

18. [Note: Only to be included if there are Additional Lenders: To the Borrower’s knowledge, there are no actions, suits or proceedings by or before any Governmental Authority or arbitrator pending or threatened in writing by or against any counterparty to an Incremental ESA in effect on the Incremental Facility Closing Date related to the Incremental Project(s) which could reasonably be expected to result in a Material Adverse Effect.]

19. No Event of Loss has occurred and no condemnation or appropriation proceedings have been initiated or threatened which, individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect.

20. Each of the conditions set forth in Section 2.2(d) and Appendix B to the Credit Agreement have been satisfied (or waived) in accordance with the terms of that Section 2.2(d) or Appendix B (as applicable).

21. I hereby represent and warrant, as an Authorized Officer of the Borrower, that all information set forth in this certificate is true, correct and complete.

[SIGNATURE PAGE FOLLOWS]

Exhibit D(ii)-4

IN WITNESS WHEREOF, the undersigned, an Authorized Officer of the Borrower, has duly executed and delivered this Incremental Facility Closing Certificate as of the date first written above.

2015 ESA PROJECT COMPANY, LLC,

as Borrower

By:

Name:

Title:

[Signature Page to Incremental Facility Closing Certificate]

Annex A: Incremental ESAs

[See attached]

Exhibit D(ii)-6

Annex B: Financial Statements

[See Attached]

Exhibit D(ii)-7

Annex C: Incremental Direct Agreements

[See attached]

Exhibit D(ii)-8

Annex D: Updated Projections

[See Attached]

Exhibit D(ii)-9

Annex E: Real Property

[See Attached]

Exhibit D(ii)-10

Annex F: NDAs

[See Attached]

Exhibit D(ii)-11

Annex G: Updated Project Schedule

[See Attached]

Exhibit D(ii)-12

Annex H: Updated Project Budget

[See Attached]

Exhibit D(ii)-13

Exhibit E to

Credit Agreement

FORM OF SOLVENCY CERTIFICATE

[Date]

Crédit Agricole Corporate and Investment Bank,

as Administrative Agent

Attn: Theodore M. Vandermel

1301 Avenue of the Americas

New York, NY 10019

Tel.: (212) 261-7888

Fax: (212) 849-5054

Email: theodore.vandermel@ca-cib.com

This certificate is furnished pursuant to [Section 3.1(d) of]¹ [paragraph (d) of Appendix B to]² that certain Credit Agreement, dated as of June 25, 2015 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among 2015 ESA Project Company, LLC, a Delaware limited liability company, as borrower (the “Borrower”), Crédit Agricole Corporate and Investment Bank, as administrative agent (in such capacity, the “Administrative Agent”), Wilmington Trust, National Association, as collateral agent (in such capacity, the “Collateral Agent”), Wilmington Trust, National Association, as depositary bank (in such capacity, the “Depositary Bank”), Crédit Agricole Corporate and Investment Bank, as issuing bank, syndication agent, coordinating lead arranger and sole bookrunner, KeyBank National Association and Silicon Valley Bank, as joint lead arrangers, and the financial institutions from time to time party thereto as lenders. All capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the Credit Agreement.

The undersigned hereby certifies, on behalf of the Borrower, solely in [his/her] capacity as an Authorized Officer of the Borrower, and not in [his/her] individual capacity, and without personal liability therefor, as follows:

1. I have reviewed the provisions of the Transaction Documents which are relevant to the furnishing of this certificate, and, in my opinion, have made, or have caused to be made under my supervision, such examination or investigation as is necessary to enable me to express an informed opinion as to the matters referred to herein.

2. Based upon my review and examination described in paragraph 1 above, I certify that as of the date hereof (a) the aggregate value of all properties of the Borrower at their present saleable value (i.e., the amount that may be realized within a reasonable time, considered to be six months to one year, either through collection or sale at the regular market value, conceiving the latter as the amount that could be obtained for the property in question within such period by

¹ To be used on the Closing Date.

² To be used on an Incremental Facility Closing Date.

Exhibit E-1

a capable and diligent businessperson from an interested buyer who is willing to purchase under ordinary selling conditions), exceed the amount of all the debts and liabilities (including contingent, subordinated, unmatured and unliquidated liabilities) of the Borrower, (b) the Borrower will not, on a consolidated basis, have an unreasonably small capital with which to conduct its business operations heretofore conducted and (c) the Borrower will have, on a consolidated basis, sufficient cashflow to enable it to pay its debts as they mature.

[SIGNATURE PAGE FOLLOWS]

Exhibit E-2

IN WITNESS WHEREOF, the undersigned, an Authorized Officer of the Borrower, has duly executed and delivered this Solvency Certificate as of the date first written above.

2015 ESA PROJECT COMPANY, LLC,

as Borrower

By:

Name:

Title:

[Signature Page to Solvency Certificate]

Exhibit F to

Credit Agreement

FORM OF BORROWER’S COMPLETION CERTIFICATE

[Letterhead of Borrower]

[Date]

Crédit Agricole Corporate and Investment Bank,

as Administrative Agent

Attn: Theodore M. Vandermel

1301 Avenue of the Americas

New York, NY 10019

Tel.: (212) 261-7888

Fax: (212) 849-5054

Email: theodore.vandermel@ca-cib.com

Re: 2015 ESA Project Company, LLC, Borrower’s Completion Certificate

Ladies and Gentlemen:

The undersigned hereby certifies that [he/she] is a duly Authorized Officer of 2015 ESA Project Company, LLC, a Delaware limited liability company, and as such, is duly authorized to execute and deliver this Borrower’s Completion Certificate (this “Completion Certificate”) on behalf of the Borrower pursuant to Section 3.3(b) of that certain Credit Agreement, dated as of June 25, 2015 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among 2015 ESA Project Company, LLC, a Delaware limited liability company, as borrower (the “Borrower”), Crédit Agricole Corporate and Investment Bank, as administrative agent (in such capacity, the “Administrative Agent”), Wilmington Trust, National Association, as collateral agent (in such capacity, the “Collateral Agent”), Wilmington Trust, National Association, as depositary bank (in such capacity, the “Depositary Bank”), Crédit Agricole Corporate and Investment Bank, as issuing bank, syndication agent, coordinating lead arranger and sole bookrunner, KeyBank National Association and Silicon Valley Bank, as joint lead arrangers, and the financial institutions from time to time party thereto as lenders. All capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the Credit Agreement.

I, the undersigned, an Authorized Officer of the Borrower, DO HEREBY CERTIFY, as of the date hereof, that:

1. Completion has occurred.

2. All of the Applicable Permits have been received and are in full force and effect.

Exhibit F-1

3. COO has occurred for at least 35 MW of Projects in the Portfolio (as may be adjusted pursuant to a Conversion Payoff, or in accordance with Section 2.13(b)(iii) or 7.2(d) of the Credit Agreement).

4. No Default or Event of Default has occurred or is continuing or would result from the delivery of this Certificate.

[SIGNATURE PAGE FOLLOWS]

Exhibit F-2

IN WITNESS WHEREOF, the Borrower has caused this Completion Certificate to be executed on its behalf by the undersigned and as of the date hereof.

2015 ESA PROJECT COMPANY, LLC,

a Delaware limited liability company,

as Borrower

By:

Name:

Title:

[Signature Page to Borrower’s Completion Certificate]

Exhibit G to

Credit Agreement

FORM OF INDEPENDENT ENGINEER’S COMPLETION CERTIFICATE

[Letterhead of Leidos Engineering, LLC]

[Date]

Crédit Agricole Corporate and Investment Bank,

as Administrative Agent

Attn: Theodore M. Vandermel

1301 Avenue of the Americas

New York, NY 10019

Tel.: (212) 261-7888

Fax: (212) 849-5054

Email: theodore.vandermel@ca-cib.com

Re: 2015 ESA Project Company, LLC, Independent Engineer’s Completion Certificate

Ladies and Gentlemen:

I, the undersigned, the [insert title] of Leidos Engineering, LLC (the “Independent Engineer”), DO HEREBY CERTIFY, as of the date hereof, as follows:

1. This certificate (this “Certificate”) is furnished pursuant to Section 3.3(b) of that certain Credit Agreement, dated as of June 25, 2015, by and among 2015 ESA Project Company, LLC, a Delaware limited liability company, as borrower (the “Borrower”), Crédit Agricole Corporate and Investment Bank, as administrative agent (in such capacity, the “Administrative Agent”), Wilmington Trust, National Association, as collateral agent (in such capacity, the “Collateral Agent”), Wilmington Trust, National Association, as depositary bank (in such capacity, the “Depositary Bank”), Crédit Agricole Corporate and Investment Bank, as issuing bank, syndication agent, coordinating lead arranger and sole bookrunner, KeyBank National Association and Silicon Valley Bank, as joint lead arrangers, and the financial institutions from time to time party thereto as lenders (the “Lenders”) (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”). All capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the Credit Agreement.

2. The Independent Engineer has discussed matters believed pertinent to this Certificate with the Borrower, Bloom and appropriate third parties. In addition, the Independent Engineer has witnessed the performance testing of the Projects related to Completion conducted by Bloom and the Borrower and reviewed test reports and information made available by Bloom and the Borrower with respect to those tests.

Exhibit G-1

3. The Independent Engineer has performed the services in a professional manner using sound project management and supervisory principles and procedures and in accordance with the standards of care and diligence customarily practiced by recognized engineering firms in performing similar services at the time of the Independent Engineer’s performance of the services on similar projects in accordance with the scope of services in that certain Amended and Restated Professional Services Agreement, dated effective as of June 9, 2015, by and among Leidos Engineering, LLC, Bloom Energy Corporation, 2015 ESA Project Company, LLC, and the Administrative Agent (the “IE Services Agreement”). The Independent Engineer represents that it has the required skills and capacity to perform such services in the foregoing manner and has made such reviews, examinations and investigations as the Independent Engineer believes in its professional capacity to be reasonably necessary.

4. The testing referenced in paragraph 2 above has demonstrated that the Projects have met each of the technical requirements under the PUMA and each of the applicable ESAs.

5. All process water, sewer, telephone, waste disposal, electric and all other utility services necessary for the development, construction, ownership and operation of the Projects are in place to service the Projects (including, as necessary, natural gas and electrical facilities).

6. To the extent practicable, the Independent Engineer has verified that the materials procured and work performed were procured and performed in accordance with the PUMA and the requirements under each of the applicable ESAs.

7. COO has occurred for at least [***] MW of Projects in the Portfolio (as may be adjusted pursuant to a Conversion Payoff, or in accordance with Section 2.13(b)(iii) or 7.2(d) of the Credit Agreement).

8. All of the Applicable Permits listed in Schedule 4.13 of the Credit Agreement have been received and the Projects are capable of complying with the Applicable Permits.

9. The certification hereto is subject to all parties hereto being subject to all terms and conditions of the IE Services Agreement, including all limitations, obligations and remedies.

10. Completion has occurred.

Very truly yours,

LEIDOS ENGINEERING, LLC,

as Independent Engineer

By:

Name:

Title:

[***] Confidential Treatment Requested

Exhibit G-2

Exhibit H to

Credit Agreement

FORM OF NOTICE OF BORROWING

[Date]¹

Crédit Agricole Corporate and Investment Bank,

as Administrative Agent

Attn: Theodore M. Vandermel

1301 Avenue of the Americas

New York, NY 10019

Tel.: (212) 261-7888

Fax: (212) 849-5054

Email: theodore.vandermel@ca-cib.com

I, the undersigned, an Authorized Officer of 2015 ESA Project Company, LLC, a Delaware limited liability company (the “Borrower”), DO HEREBY CERTIFY, as of the date hereof (and, if set forth below, as of the date of the Requested Borrowing (as defined below)), that:

1. This Notice of Borrowing (the “Notice of Borrowing”) is furnished pursuant to Section 2.6(b) of that certain Credit Agreement, dated as of June 25, 2015 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among 2015 ESA Project Company, LLC, a Delaware limited liability company, as borrower (the “Borrower”), Crédit Agricole Corporate and Investment Bank, as administrative agent (in such capacity, the “Administrative Agent”), Wilmington Trust, National Association, as collateral agent (in such capacity, the “Collateral Agent”), Wilmington Trust, National Association, as depositary bank (in such capacity, the “Depositary Bank”), Crédit Agricole Corporate and Investment Bank, as issuing bank, syndication agent, coordinating lead arranger and sole bookrunner, KeyBank National Association and Silicon Valley Bank, as joint lead arrangers, and the financial institutions from time to time party thereto as lenders (the “Lenders”). All capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the Credit Agreement.

2. The undersigned is an Authorized Officer of the Borrower as of the date hereof and as of the date of the Requested Borrowing (the “Borrowing Date”).

3. This Notice of Borrowing is being delivered to the Administrative Agent at the Administrative Agent’s Office, prior to 11:00 A.M., New York City time, [at least three (3) Business Days]² [no later than one (1) Business Day]³ prior to the Borrowing Date (other than the Closing Date).

¹ Borrower may submit no more than one Notice of Borrowing each calendar month.

² For Eurodollar Loans.

³ For Base Rate Loans.

Exhibit H-1

4. The Borrower hereby irrevocably requests a [Construction Loan] [Incremental Construction Loan] on the date of Borrowing (which shall be a Business Day) in the amount requested below (the “Requested Borrowing”):

Date of Borrowing:	[                            ]
Amount of Borrowing:	$[                    ] of [                        ] Loans [List by Loan Facility]
Account:	[see Depositary Agreement]

5. The Type of Borrowing⁴ made as part of this Notice of Borrowing will initially be [Base Rate Borrowing] [Eurodollar Borrowing and the initial Interest Period will be one of a [one (1)-month]⁵ [three (3)-month] [six (6)-month period]]. The Applicable Margin will be determined under the Credit Agreement.

6. As of the Borrowing Date, all conditions precedent set forth in [Sections 3.1 and]⁶ 3.2 of the Credit Agreement, as applicable, to the making of the Requested Borrowing have been satisfied.

7. As of the date hereof and the Borrowing Date, all work that has been done on the Projects has been done in accordance with the PUMA, and there shall not have been filed against any of the Collateral or otherwise filed with or served upon the Borrower with respect to the Projects or any part thereof, notice of any Lien, claim of Lien or attachment upon or claim affecting the right to receive payment of any of the moneys payable to any of the Persons named on such request which has not been released by payment or bonding or otherwise or which will not be released with the payment of such obligation out of the proceeds of the Loans, other than Permitted Liens.

8. The representations and warranties of the Borrower set forth in the Section 4 of the Credit Agreement and the representations and warranties of the Borrower, the Pledgor and each Sponsor, as applicable, contained in any other Financing Document shall be true and correct in all material respects on and as of the Borrowing Date as if made on and as of that date (or, if stated to have been made solely as of an earlier date, were true and correct as of that date).

9. No Default or Event of Default has occurred and is continuing on the Borrowing Date, either before or after giving effect to the making of such Loan.

10. The Borrower has paid all fees, expenses and other charges due and payable by it to a Secured Party under the Credit Agreement or under any other Credit Document.

⁴ If no election as to the Type of Borrowing is specified, then the requested Borrowing shall be a Base Rate Borrowing.

⁵ For Eurodollar Loans requested to be made prior to the Term Conversion Date, select one (1)-month Interest Period only.

⁶ Only applies to a Borrowing made on the Closing Date.

Exhibit H-2

11. All information set forth in this Notice of Borrowing Request is true, correct and complete as of the date hereof and the Borrowing Date.

[SIGNATURE PAGE FOLLOWS]

Exhibit H-3

IN WITNESS WHEREOF, the Borrower has caused this Notice of Borrowing to be executed on its behalf by the undersigned and as of the date hereof.

2015 ESA PROJECT COMPANY, LLC,

a Delaware limited liability company,

as Borrower

By:

Name:

Title:

[Signature Page to Notice of Borrowing]

Exhibit I to

Credit Agreement

FORM OF NOTICE OF CONTINUATION

[Date]

Crédit Agricole Corporate and Investment Bank,

as Administrative Agent

Attn: Theodore M. Vandermel

1301 Avenue of the Americas

New York, NY 10019

Tel.: (212) 261-7888

Fax: (212) 849-5054

Email: theodore.vandermel@ca-cib.com

RE: 2015 ESA Project Company, LLC, Notice of Continuation

Ladies and Gentlemen:

I, the undersigned, an Authorized Officer of 2015 ESA Project Company, LLC, a Delaware limited liability company (the “Borrower”), DO HEREBY CERTIFY, as of the date hereof, that:

1. This Notice of Continuation (this “Notice”) is furnished pursuant to Section 2.11 of that certain Credit Agreement, dated as of June 25, 2015 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among 2015 ESA Project Company, LLC, a Delaware limited liability company, as borrower (the “Borrower”), Crédit Agricole Corporate and Investment Bank, as administrative agent (in such capacity, the “Administrative Agent”), Wilmington Trust, National Association, as collateral agent (in such capacity, the “Collateral Agent”), Wilmington Trust, National Association, as depositary bank (in such capacity, the “Depositary Bank”), Crédit Agricole Corporate and Investment Bank, as issuing bank, syndication agent, coordinating lead arranger and sole bookrunner, KeyBank National Association and Silicon Valley Bank, as joint lead arrangers, and the financial institutions from time to time party thereto as lenders (the “Lenders”). All capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the Credit Agreement.

2. The undersigned is an Authorized Officer of the Borrower.

3. This Notice is being delivered to the Administrative Agent no later than 11:00 A.M., New York City time, at least three (3) Business Days in advance of the proposed Continuation Date (as defined below).

4. The Borrower hereby irrevocably requests a continuation of a Eurodollar Loan under the Credit Agreement.

Exhibit I-1

5. The Type of Loan to be continued pursuant hereto is presently a Eurodollar Loan in the principal amount of $[                    ] outstanding as of the date hereof (the “Current Loan”).

6. The Current Loan is to be continued on [insert date]¹ (the “Continuation Date”)² as a Eurodollar Loan³ in an amount equal to $[                    ] and the Interest Period therefor shall be [one (1) month]⁴ [three (3) months] [six (6) months] [[      ] [(  )] months, which Borrower requests as an irregular Interest Period in accordance with Section 2.9(a)(vi) of the Credit Agreement]⁵.

7. No Default or Event of Default has occurred and is continuing.

[SIGNATURE PAGE FOLLOWS]

¹ Continuation Date shall be a Business Day.

² The Interest Period shall commence on the date on which the immediately preceding Interest Period expires.

³ Continuation of a Eurodollar Loan shall not be permitted if the Required Lenders have notified the Borrower through the Collateral Agent or the Administrative Agent that Eurodollar Loans shall not be available during such period pursuant to Section 2.16.

⁴ For Eurodollar Loans requested to be continued prior to the Term Conversion Date, select one (1)-month Interest Period only.

⁵ Borrower may request irregular Interest Periods (without premium or penalty) with a duration other than a one (1)-month, three (3)-month or six (6)-month Interest Period in order to consolidate outstanding Interest Periods and Payment Dates, as well as to facilitate the repayment of Eurodollar Loans and LC Loans in accordance with the terms of the Credit Agreement.

Exhibit I-2

Very truly yours,

2015 ESA PROJECT COMPANY, LLC,

a Delaware limited liability company,

as Borrower

By:

Name:

Title:

[Signature Page to Notice of Continuation]

Exhibit J to

Credit Agreement

FORM OF NOTICE OF CONVERSION

[Date]

Crédit Agricole Corporate and Investment Bank,

as Administrative Agent

Attn: Theodore M. Vandermel

1301 Avenue of the Americas

New York, NY 10019

Tel.: (212) 261-7888

Fax: (212) 849-5054

Email: theodore.vandermel@ca-cib.com

RE: 2015 ESA Project Company, LLC, Notice of Conversion

Ladies and Gentlemen:

I, the undersigned, an Authorized Officer of 2015 ESA Project Company, LLC, a Delaware limited liability company (the “Borrower”), DO HEREBY CERTIFY, as of the date hereof, that:

1. This Notice of Conversion (this “Notice”) is furnished pursuant to Section 2.11 of that certain Credit Agreement, dated as of June 25, 2015 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among 2015 ESA Project Company, LLC, a Delaware limited liability company, as borrower (the “Borrower”), Crédit Agricole Corporate and Investment Bank, as administrative agent (in such capacity, the “Administrative Agent”), Wilmington Trust, National Association, as collateral agent (in such capacity, the “Collateral Agent”), Wilmington Trust, National Association, as depositary bank (in such capacity, the “Depositary Bank”), Crédit Agricole Corporate and Investment Bank, as issuing bank, syndication agent, coordinating lead arranger and sole bookrunner, KeyBank National Association and Silicon Valley Bank, as joint lead arrangers, and the financial institutions from time to time party thereto as lenders (the “Lenders”). All capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the Credit Agreement.

2. The undersigned is an Authorized Officer of the Borrower.

3. This Notice is being delivered to each of the Administrative Agent and the Collateral Agent no later than 11:00 A.M., New York City time, at least three (3) Business Days prior to the Conversion Date (as defined below).

4. The Borrower hereby irrevocably requests a conversion of a Base Rate Loan under the Credit Agreement.

Exhibit J-1

5. The Type of Loan to be converted pursuant hereto is presently a Base Rate Loan in the principal amount of $[                ] outstanding as of the date hereof (the “Current Loan”).

6. The entire Current Loan is to be converted on [insert date]¹ (the “Conversion Date”)² into a Eurodollar Loan³ in an amount equal to $[                ] with an Interest Period of [one (1) month] [three (3) months] [six (6) months] [[    ] [(  )] months, which Borrower requests as an irregular Interest Period in accordance with Section 2.9(a)(vi) of the Credit Agreement]⁴.

7. No Default or Event of Default has occurred and is continuing.

[SIGNATURE PAGE FOLLOWS]

¹ Conversion Date shall be a Business Day.

² The initial Interest Period for any Eurodollar Loan shall commence on the date of the making of such Eurodollar Loan (including the date of any conversion from a Base Rate Loan).

³ Conversion to a Eurodollar Loan shall not be permitted if the Required Lenders shall have notified the Borrower through the Collateral Agent or the Administrative Agent that Eurodollar Loans shall not be available during such period pursuant to Section 2.16.

⁴ Borrower may request irregular Interest Periods (without premium or penalty) with a duration other than a one (1)-month, three (3)-month or six (6)-month Interest Period in order to consolidate outstanding Interest Periods and Payment Dates, as well as to facilitate the repayment of Eurodollar Loans and LC Loans in accordance with the terms of the Credit Agreement.

Exhibit J-2

Very truly yours,

2015 ESA PROJECT COMPANY, LLC,

a Delaware limited liability company,

as Borrower

By:

Name:

Title:

[Signature Page to Notice of Conversion]

Exhibit K to

Credit Agreement

FORM OF NOTICE OF TERM CONVERSION

[Date]

Crédit Agricole Corporate and Investment Bank,

as Administrative Agent

Attn: Theodore M. Vandermel

1301 Avenue of the Americas

New York, NY 10019

Tel.: (212) 261-7888

Fax: (212) 849-5054

Email: theodore.vandermel@ca-cib.com

Wilmington Trust, National Association,

as Collateral Agent

1100 North Market Street

Wilmington, Delaware 19890

Attn: Corporate Trust Administration

Tel.: (302) 636-6973

Fax: (302) 636-4140

Email: sbarone@wilmingtontrust.com

RE: 2015 ESA Project Company, LLC, Notice of Term Conversion

Ladies and Gentlemen:

I, the undersigned, an Authorized Officer of 2015 ESA Project Company, LLC, a Delaware limited liability company (the “Borrower”), DO HEREBY CERTIFY, as of the date hereof, that:

1. This Notice of Term Conversion (this “Notice”) is furnished pursuant to Section 2.6(c) of that certain Credit Agreement, dated as of June 25, 2015 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among 2015 ESA Project Company, LLC, a Delaware limited liability company, as borrower (the “Borrower”), Crédit Agricole Corporate and Investment Bank, as administrative agent (in such capacity, the “Administrative Agent”), Wilmington Trust, National Association, as collateral agent (in such capacity, the “Collateral Agent”), Wilmington Trust, National Association, as depositary bank (in such capacity, the “Depositary Bank”), Crédit Agricole Corporate and Investment Bank, as issuing bank, syndication agent, coordinating lead arranger and sole bookrunner, KeyBank National Association and Silicon Valley Bank, as joint lead arrangers, and the financial institutions from time to time party thereto as lenders (the “Lenders”). All capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the Credit Agreement.

2. The undersigned is an Authorized Officer of the Borrower.

Exhibit K-1

3. This Notice is being delivered to the Collateral Agent at the Collateral Agent’s Office, and to the Administrative Agent, prior to 11:00 A.M., New York City time, at least five (5) Business Days prior to the Term Conversion Date (as defined below).

4. [The Borrower has previously provided the Collateral Agent and the Administrative Agent at least seven (7) days prior to the date hereof a draft of this Notice of Term Conversion with evidence documenting the anticipated satisfaction of the conditions to Term Conversion set forth in Section 3.3 of the Credit Agreement on the proposed Term Conversion Date.]¹

5. The Borrower hereby irrevocably requests the conversion of the Construction Loans, in the principal amount of $[            ] outstanding as of the date hereof (the “Current Loan”), to Term Loans on [insert date]² (the “Term Conversion Date”), which Current Loan is to be converted on the Term Conversion Date into a Eurodollar Loan³ in an amount equal to $[                ] with an Interest Period of [one (1) month] [three (3) months] [six (6) months] [[    ] [(    )] months, which Borrower requests as an irregular Interest Period in accordance with Section 2.9(a)(vi) of the Credit Agreement]⁴.

6. As of the Term Conversion Date, each of the conditions precedent set forth in Section 3.3 of the Credit Agreement have been satisfied.

7. As of the date hereof, Completion has occurred.

8. The Borrower has paid the Conversion Payoff as required pursuant to Section 2.13(g) of the Credit Agreement.

9. Attached hereto as Annex A are (i) Updated Lender Base Case Projections and (ii) Updated Downside Sizing Case Projections, which Projections⁵ have been updated to reflect the projected outstanding balance of the Loans as of the Term Conversion Date (after giving effect to any projected Borrowing on the Term Conversion Date).

10. Each of the representations and warranties of the Borrower set forth in Section 4 of the Credit Agreement and each of the representations and warranties of the Borrower, the Pledgor and each Sponsor, as applicable, contained in any other Credit Document are true and correct in all material respects (except that any representation or warranty that is qualified as to “materiality” or “Material Adverse Effect” or the like is true and correct in all respects) on and as of the date hereof and the Term Conversion Date, before and after giving effect to the Term Conversion Date, with the same effect as though made on and as of such date, unless such representation or warranty expressly relates solely to an earlier date.

¹ Include unless otherwise agreed to by the Administrative Agent.

² Term Conversion Date shall be a Business Day.

³ Conversion to a Eurodollar Loan shall not be permitted if the Required Lenders shall have notified the Borrower through the Collateral Agent or the Administrative Agent that Eurodollar Loans shall not be available during such period pursuant to Section 2.16.

⁴ Borrower may request irregular Interest Periods (without premium or penalty) with a duration other than a one (1)-month, three (3)-month or six (6)-month Interest Period in order to consolidate outstanding Interest Periods and Payment Dates, as well as to facilitate the repayment of Eurodollar Loans and LC Loans in accordance with the terms of the Credit Agreement.

⁵ Updated Projections to be confirmed by the Independent Engineer.

Exhibit K-2

11. As of the date hereof and the Term Conversion Date (both prior to and immediately after giving effect to the conversion of the Construction Loans), no Default or Event of Default has occurred and is occurring.

12. Attached hereto as Annex B are copies of each Major Project Document and Direct Agreement executed on or prior to the Term Conversion Date (together with all amendments, supplements, exhibits, annexes and schedules thereto), in each case, not previously delivered to the Administrative Agent, and each of which has been duly authorized, executed and delivered by an Authorized Officer of the Borrower and an officer of each counterparty to the Project Documents, and each of which is in full force and effect.

13. All payments in excess of $100,000 under the Project Documents in respect of liquidated damages (other than liquidated damages payable to the Borrower) either (i) have been paid or (ii) have been fully provisioned with (A) a cash reserve or (B) other credit support acceptable to the Administrative Agent, and in each case is part of the Collateral and equal to the amount of such liquidated damages.

14. Attached hereto as Annex C is an Annual Budget approved in accordance with Section 5.10(a) of the Credit Agreement.

15. All insurance policies required to be maintained under Section 5.16 of the Credit Agreement are in full force and effect.

16. The Policy is in full force and effect, the Collateral Agent is named as a loss payee thereunder, and all premiums then due and owing thereunder, as well as premiums thereunder that are required to be paid by the fifteenth (15^th) day of the current calendar quarter, have been paid.

17. No System in the Portfolio has reached COO after the Policy Cutoff Date.

18. As of the Term Conversion Date, the Debt Service Reserve Account will be funded in the amount of the Required DSR Balance.

19. As of the date hereof and the Term Conversion Date, the Collateral Agent continues to have a perfected security interest or lien, as applicable in all right, title and interest of the Borrower, in and to the Collateral free of all other Liens thereon other than Permitted Liens or Liens approved or accepted in writing by the Required Lenders, as evidenced in the search results from each relevant jurisdiction identified in Schedule 3.1(h) to the Credit Agreement attached hereto as Annex D, and as provided in the updated legal opinion of Borrower’s counsel attached hereto as Annex E.

20. The Date Certain has not passed.

21. Attached hereto as Annex F are copies of each duly executed Lien waiver relating to mechanics’ and materialmen’s Liens.

Exhibit K-3

22. All work that has been done on the Projects has been done in accordance with the PUMA, and there has not been filed against any of the Collateral or otherwise filed with or served upon the Borrower with respect to the Projects or any part thereof, notice of any Lien, claim of Lien or attachment upon or claim affecting the right to receive payment of any of the moneys payable to any of the Persons named on such request which has not been released by payment or bonding or otherwise or which will not be released with the payment of such obligation out of the proceeds of the Loans, other than Permitted Liens.

23. The Equity Requirement (as defined in the Equity Contribution Agreement) has been funded in full as of the Term Conversion Date in accordance with the Equity Contribution Agreement.

24. The sum of the final Equity Contributions and borrowings at Term Conversion will not exceed the amount required to pay Total Project Costs.

25. No more than $5,000,000 of borrowings of combined Construction Loans and/or Term Loans will be made on the Term Conversion Date to fund the distribution permitted to be made in accordance with Clause Fourth of Section 4.1(c) of the Depositary Agreement.

26. Attached hereto as Annex G are copies of each (i) Material Additional Project Document entered into or obtained, transferred or required (whether because of the status of the development, construction or operation of the Projects or otherwise) since the date of the most recent Credit Event and (ii) each NDA entered into or obtained since the date of the most recent Credit Event.

27. Attached hereto as Annex H are copies of each (i) Lease or easement in which Borrower holds the lessor’s interest or other agreements relating to possessory interests, if any, in the Real Property and (i) each NDA obtained as of the Closing Date, in each case, to the extent not already delivered to the Administrative Agent.

28. All information set forth in this Notice of Term Conversion is true, correct and complete as of the date hereof and will be certified in writing as being true correct and complete as of the requested Term Conversion Date by delivery of a certificate of an Authorized Officer to that effect to the Administrative Agent on the Term Conversion Date prior to the conversion of the Construction Loans to Term Loans.

Exhibit K-4

Very truly yours,

2015 ESA PROJECT COMPANY, LLC,

a Delaware limited liability company,

as Borrower

By:

Name:

Title:

[Signature Page to Notice of Term Conversion]

Annex A: Updated Projections

[See Attached]

Exhibit K-5

Annex B: Major Project Documents and Direct Agreements

[See Attached]

Exhibit K-6

Annex C: Annual Budget

[See Attached]

Exhibit K-7

Annex D: Lien Search Results

[See Attached]

Exhibit K-8

Annex E: Legal Opinion of Borrower’s Counsel

[See Attached]

Exhibit K-9

Annex F: Lien Waivers

[See Attached]

Exhibit K-10

Annex G: Additional Material Project Documents and NDAs

[See Attached]

Exhibit K-11

Annex H: Leases, Easements and NDAs

Exhibit K-12

Exhibit L to

Credit Agreement

FORM OF MONTHLY CONSTRUCTION REPORT

Site Address

COO

Named Offtaker (ESA

Customer

Stage of

Milestone

Milestone

System Capacity

Tolling Rate

Projected @ Financial

Prior Report

Current Report

Site ID Customer

Reference)

Reference

Completion

Achieved

Date†

Street

City

State Zip

(kW)

($/kWh)

Close

Projection

Projection

Comments*

Sites Currently in Portfolio

Design / Permitting

Deposit

Construction

Shipment

Complete

COO

New Sites Added

Design / Permitting

NA

Design / Permitting

NA

All Sites Removed

Removed

NA

Removed

NA

			†  Date when Bloom-related deliverables and obligation with respect to the applicable Milestone are achieved
Project Final Completion Date				*Commentary Notes
Projected @ Financial Close		12/31/2016		Note reason for site delays
Prior Report Projection	[    ]			Note reasons for site removal
Current Report Projection	[    ]

Exhibit L-1

Exhibit M(i) to

Credit Agreement

FORM OF DRAWDOWN CERTIFICATE

[LETTERHEAD OF BORROWER]

(Delivered pursuant to Section 3.2(d)(i)

of the Credit Agreement)

Date: ________ __, ____¹ Drawdown Certificate No. [    ]

Drawdown Date: ________ __, ____

Crédit Agricole Corporate and Investment Bank,

as Administrative Agent

Attn: Theodore M. Vandermel

1301 Avenue of the Americas

New York, NY 10019

Tel.: (212) 261-7888

Fax: (212) 849-5054

Email: theodore.vandermel@ca-cib.com

Leidos Engineering, LLC,

as Independent Engineer

Meditech Corporate Center,

West Wing, 4^th Floor

550 Cochituate Road

Framingham, MA 01701

Re: 2015 ESA Project Company, LLC – Drawdown Certificate

Ladies and Gentlemen:

This Drawdown Certificate (the “Drawdown Certificate”) is delivered to you pursuant to Section 3.2(d)(i) of that certain Credit Agreement, dated as of June 25, 2015 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among 2015 ESA Project Company, LLC, a Delaware limited liability company, as borrower (the “Borrower”), Crédit Agricole Corporate and Investment Bank, as administrative agent (in such capacity, the “Administrative Agent”), Wilmington Trust, National Association, as collateral agent (in such capacity, the “Collateral Agent”), Wilmington Trust, National Association, as depositary bank (in such capacity, the “Depositary Bank”), Crédit

¹ Drawdown Certificate must be submitted to the Administrative Agent and Independent Engineer at least three (3) Business Days prior to the date of submission of the Notice of Borrowing for each applicable Credit Event.

Exhibit M(i)-1

Agricole Corporate and Investment Bank, as issuing bank, syndication agent, coordinating lead arranger and sole bookrunner, KeyBank National Association and Silicon Valley Bank, as joint lead arrangers, and the financial institutions from time to time party thereto as lenders (the “Lenders”). Capitalized terms used herein and not otherwise defined have the meanings provided in the Credit Agreement.

I, [                     ], am an Authorized Officer of the Borrower. I have reviewed the provisions of the Credit Documents which are relevant to the furnishing of this Drawdown Certificate. To the extent that this Drawdown Certificate evidences, attests or confirms compliance with any covenants, representations, warranties or conditions precedent provided for in the Credit Documents, I have made such examination or investigation as was, in my opinion, reasonably necessary to enable me to express an informed opinion as to whether such covenants, representations, warranties or conditions have been complied with. This Drawdown Certificate relates to a Credit Event to take place on the date specified above as the “Drawdown Date” (the “Drawdown Date”).

I, on behalf of the Borrower, solely in my capacity as an Authorized Officer of the Borrower and not in my personal capacity, and without personal liability therefor, do hereby certify to the Secured Parties that the following statements are accurate, true and complete on the date hereof (except for those statements that solely relate to a later date), and will be accurate, true and complete on and as of the Drawdown Date:

1) The aggregate Project Costs incurred, but not yet paid, through the date of the requested Credit Event are anticipated to be $[                    ].

2) The Project Costs to be paid with the funds requested in connection with this Drawdown Certificate are to be paid with proceeds of the Construction Loans deposited in the Construction Account in the amounts shown on Appendix I hereto.

3) The currently estimated aggregate Project Costs necessary to achieve Completion are as described and segregated in Appendix I hereto. Such amount is consistent with the current Project Budget (as amended, allocated, re-allocated or modified from time to time in accordance with Section 5.10 of the Credit Agreement) or has otherwise been approved or permitted pursuant to the Credit Agreement.

4) The variances in estimated Project Costs (from the Closing Date to the proposed Drawdown Date) are summarized in Appendix I hereto and such variances are described in the current or past monthly construction progress reports delivered pursuant to Section 5.4(a) of the Credit Agreement.

5) Attached in Appendix II hereto are the previously paid or due and payable invoices, purchase orders or other documents evidencing the Project Costs that are to be reimbursed or paid with the funds requested in connection with this Drawdown Certificate.

6) After taking into consideration the making of the Credit Event hereby requested, Available Funds are not less than the aggregate unpaid amount required to cause Completion to occur in accordance with all Legal Requirements, the PUMA, each

Exhibit M(i)-2

other Major Project Document pursuant to which construction work with respect to the Projects are being performed and the Credit Documents prior to the end of the Construction Loan Availability Period and to pay or provide for all anticipated non-construction Project Costs, all as set forth in the current Project Budget. After taking into consideration the making of the Credit Event hereby requested, the sources and uses of such Available Funds to achieve Completion are as follows:

Sources		Uses
Total:	$	Total:	$

7) The estimated dates for achieving the (a) Commencement of Operations (under and as defined in the PUMA) with respect to the Systems being funded under this requested Credit Event and (b) date of Completion (the “Completion Date”) are each set forth on Appendix III hereto.

8) Each representation and warranty of each Credit Party in any of the Financing Documents to which it is a party is true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” is true and correct in all respects) on and as of the date of the Drawdown Date, before and after giving effect to the Credit Event requested hereby, with the same effect as though made on and as of such date, unless such representation or warranty expressly relates solely to an earlier date.

9) No Default or Event of Default has occurred and is continuing or will result from the funding of the Credit Event hereby requested.

10) The Borrower has delivered to the Administrative Agent copies of all Additional Project Documents entered into or obtained, transferred or required (whether because of the status of the development, construction or operation of the Projects or otherwise) since the date of the most recent Credit Event.

11) The Borrower has delivered to the Administrative Agent copies of all NDAs entered into or obtained since the date of the most recent Credit Event.

12) All work that has been done on the Projects to date has been done in accordance with the PUMA and there has not been filed against any of the Collateral or otherwise filed with or served upon the Borrower with respect to the Projects or any part thereof, notice of any Lien, claim of Lien or attachment upon or claim affecting the right to receive payment of any of the moneys payable to any of the Persons named on such request which has not been released by payment or bonding or otherwise or which will not be released with the payment of such obligation out of the proceeds of the Loans, other than Permitted Liens.

Exhibit M(i)-3

13) Except for any such Liens being contested by the Borrower as permitted under the definition of “Permitted Liens”, attached in Appendix IV are duly executed Lien waivers or proof of the bonding of such Liens required to be delivered to the Administrative Agent pursuant to Section 3.2(i) of the Credit Agreement relating to mechanics’ and materialmen’s Liens from each Person performing work at the applicable Site or having a statutory right to file a mechanics’ and/or materialmen’s Lien, as the case may be, for all work, services and materials (including equipment and fixtures of all kinds, done, previously performed or furnished for the construction of the Project), for which the related Project Costs have been or will, from the proceeds of the requested Drawdown (the “Drawdown”), be paid.

14) Each Applicable Permit with respect to the System or Systems being funded under the Credit Event requested hereby has been duly obtained and issued or been assigned in the Borrower’s name, is in full force and effect, is not subject to any current legal proceeding, and is not subject to any Unsatisfied Condition that could reasonably be expected to result in material modification or revocation of such Applicable Permit, and all applicable appeal periods with respect to such Applicable Permit have expired, except in each case where such failure, legal proceeding or Unsatisfied Condition could not reasonably be expected to result in a Material Adverse Effect.

15) To Borrower’s actual knowledge, each Applicable Third Party Permit with respect to the System or Systems being funded under the Credit Event requested hereby has been duly obtained and issued in the applicable third party’s name, is in full force and effect, is not subject to any current legal proceeding, and is not subject to any Unsatisfied Condition that could reasonably be expected to result in material modification or revocation of such Applicable Third Party Permit, except in each case where such failure, legal proceeding or Unsatisfied Condition could not reasonably be expected to result in a Material Adverse Effect.

16) The Permits which have been obtained by the Borrower with respect to the System or Systems being funded under the Credit Event requested hereby are in full force and effect and are not subject to any restriction, condition, limitation, current legal proceeding or other provision that could reasonably be expected to result in material modification or revocation of such Permit or to have a Material Adverse Effect.

17) Each System being financed with the Credit Event requested hereby has achieved the applicable milestone under the PUMA, and each System that will be financed pursuant to the Credit Event requested hereby is anticipated to achieve COO prior to the Policy Cutoff Date.

18) The Equity Contribution Agreement is in full force and effect and, to the Borrower’s knowledge, no material breaches have occurred and are continuing thereunder or will result from the funding of the Credit Event hereby requested.

Exhibit M(i)-4

19) There have been no changes in the business, prospects, profits or financial condition of the Borrower, Pledgor, Bloom or the Sponsors from the date of the financial statements delivered on the Closing Date (or, if later, from the last Borrowing Date) which could reasonably be expected to have a Material Adverse Effect, and there exists after the Closing Date no other circumstance, event or condition which has had or could reasonably be expected to have a Material Adverse Effect.

20) The Policy is in full force and effect, the Collateral Agent is named as loss payee thereunder, and all premiums due and owing thereunder, as well as premiums thereunder that are required to be paid by the fifteenth day of the current calendar quarter, have been paid. No System in the Portfolio has reached COO after the Policy Cutoff Date.

21) All process water, sewer, telephone, waste disposal, electric and all other utility services necessary for the development, construction, ownership and operation of the Projects are either contracted for, or are readily available on commercially reasonable terms, with respect to the System or Systems being funded under this Drawdown.

22) The Borrower will have paid all fees, expenses and other charges payable by it to a secured party on or prior to the Drawdown Date under the Credit Agreement or under any other Credit Document.

23) Attached in Appendix V hereto are all approved, pending or proposed change orders (including each Notice of Change Order and each Independent Engineer Change Order Certificate) with respect to the System or Systems being funded under this Drawdown.

[Signature page follows]

Exhibit M(i)-5

IN WITNESS WHEREOF, the undersigned has caused this Drawdown Certificate to be duly executed and delivered on behalf of the Borrower as of the date first above written.

2015 ESA PROJECT COMPANY, LLC,

a Delaware limited liability company,

as Borrower

By:

Name:

Title:

[Signature Page to Drawdown Certificate]

APPENDIX I

to Drawdown Certificate

Currently Estimated Aggregate Project Costs

Project Cost	Amount
	$
	$
	$
	$
	$
	Total: $

Summary of Variances in Estimated Project Costs (from Closing Date to Proposed Drawdown Date)

Exhibit M(i)-7

APPENDIX II

to Drawdown Certificate

Invoices

Exhibit M(i)-8

APPENDIX III

to Drawdown Certificate

Estimated Dates

Expected Completion Date:                     , 20    

Expected Commencement of Operations Date: [Indicate Commencement of Operations Date for each individual system, by Serial Number or other distinct means]

Exhibit M(i)-9

APPENDIX IV

to Drawdown Certificate

Lien Waivers; Proof of Bonding

Exhibit M(i)-10

APPENDIX V

to Drawdown Certificate

Change Orders, Notices of Change Orders and

Independent Engineer Change Order Certificates

Exhibit M(i)-11

Exhibit M(ii) to

Credit Agreement

FORM OF BORROWER’S MILESTONE CERTIFICATE

[LETTERHEAD OF BORROWER]

(Delivered pursuant to Section 3.2(d)(ii)

of the Credit Agreement)

Date:                      ,         ¹

Drawdown Date:                      ,         

Crédit Agricole Corporate and Investment Bank,

as Administrative Agent

Attn: Theodore M. Vandermel

1301 Avenue of the Americas

New York, NY 10019

Tel.: (212) 261-7888

Fax: (212) 849-5054

Email: theodore.vandermel@ca-cib.com

Leidos Engineering, LLC,

as Independent Engineer

Meditech Corporate Center,

West Wing, 4^th Floor

550 Cochituate Road

Framingham, MA 01701

Re: 2015 ESA Project Company, LLC – Borrower’s Milestone Certificate

Ladies and Gentlemen:

This Borrower’s Milestone Certificate (the “Certificate”) is delivered to you pursuant to Section 3.2(d)(ii) of that certain Credit Agreement, dated as of June 25, 2015 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among 2015 ESA Project Company, LLC, a Delaware limited liability company, as borrower (the “Borrower”), Crédit Agricole Corporate and Investment Bank, as administrative agent (in such capacity, the “Administrative Agent”), Wilmington Trust, National Association, as collateral agent (in such capacity, the “Collateral Agent”), Wilmington Trust, National Association, as depositary bank (in such capacity, the “Depositary Bank”), Crédit Agricole Corporate and Investment Bank, as issuing bank, syndication agent, coordinating lead arranger and sole bookrunner, KeyBank National Association and Silicon Valley Bank, as joint lead arrangers, and the financial institutions from time to time party thereto as lenders (the “Lenders”). Capitalized terms used herein and not otherwise defined have the meaning provided in the Credit Agreement.

¹ Certificate must be submitted to the Administrative Agent and Independent Engineer at least two (2) Business Days prior to the date of submission of the Notice of Borrowing for each applicable Credit Event.

Exhibit M(ii)-1

I, [                     ], am an Authorized Officer of the Borrower. I have reviewed the provisions of the Credit Documents which are relevant to the furnishing of this Certificate for the Facilities listed in Appendix 1 to this Certificate. To the extent that this Certificate evidences, attests or confirms compliance with any covenants, representations, warranties or conditions precedent provided for in the Credit Documents, I have made such examination or investigation as was, in my opinion, reasonably necessary to enable me to express an informed opinion as to whether such covenants, representations, warranties or conditions have been complied with. This Certificate relates to a Credit Event to take place on the date specified above as the “Drawdown Date” (the “Drawdown Date”).

I, on behalf of the Borrower, solely in my capacity as an Authorized Officer of the Borrower and not in my personal capacity, and without personal liability therefor, do hereby certify to the Secured Parties that the following statements are accurate, true and complete on the date hereof, and will be accurate, true and complete on and as of the Drawdown Date:

1) The funds from the Credit Event requested hereby will be used to pay:

i) [***] percent [***] of the Purchase Price (as defined in the PUMA) for each Facility (as defined in the PUMA) listed in Part A of Appendix 1 to this Certificate;

ii) [***] percent ([***]) of the Purchase Price plus [***] percent ([***]) of the Taxes (as defined in the PUMA) to be paid by Buyer pursuant to Section 2.2(c) of the PUMA for each Facility listed in Part B of Appendix 1 to this Certificate; and

iii) [***] percent ([***]) of the Purchase Price for each Facility listed in Part C of Appendix 1 to this Certificate.

2) The Borrower has received an invoice from Bloom requesting payment of the portion of the Purchase Price above in accordance with Section 2.2(d), 2.2(e) and/or 2.2(f) of the PUMA (as applicable).

3) Attached hereto as Annex I is the Deposit Milestone Certification delivered from Bloom to Borrower and the Administrative Agent certifying that all Systems to be incorporated into each Facility listed in Part A of Appendix 1 to this Certificate [***].

4) Borrower has received (i) a bill of lading or (ii) similar evidence of receipt of each applicable System by the applicable carrier in a form reasonably acceptable to Borrower, in either case demonstrating that the Shipment Date (as defined in the PUMA) has occurred for all Systems in each Facility listed in Part B of Appendix 1 to this Certificate.

5) No Facility listed in Part B of Appendix 1 to this Certificate has been Placed in Service (as defined in the PUMA), but the necessary licenses and Permits for the operation of such Facilities and the sale of power generated by such Facilities, after the commencement of regular, continuous, daily operation of such Facilities, have been obtained.

[***] Confidential Treatment Requested

Exhibit M(ii)-2

6) Bloom has cause to be performed any and all studies, reports and applications (in the name of Borrower, if Bloom is an Affiliate of Borrower) that are necessary for interconnection to the distribution and transmission facilities of each applicable Transmitting Utility (as defined in the PUMA).

7) Bloom has finalized and delivered to Borrower a single line diagram of each applicable Facility installation

8) COO is reasonably expected to occur within thirty (30) days following the Purchase (as defined in the PUMA) of each Facility listed in Part B of Appendix 1 to this Certificate.

9) Attached hereto as Annex II is the Certificate of Installation (as defined in the PUMA) delivered to Borrower and the Independent Engineer from Bloom, certifying that:

i. Each System comprising each Facility listed in Part C of Appendix 1 to this Certificate has been installed, commissioned and tested in accordance with the Performance Standards and all other requirements of the PUMA; and

ii. All BOF and BOF Work necessary for the operation of such Facilities has been installed, commissioned and tested in accordance with the Performance Standards and all other requirements of the PUMA.

10) After giving effect to the Credit Event to take place on the Drawdown Date, the Standard Payment Conditions (as defined in the PUMA) are and continue to be satisfied for each Facility listed on Appendix 1 to this Certificate.

Exhibit M(ii)-3

IN WITNESS WHEREOF, the undersigned has caused this Borrower’s Milestone Certificate to be duly executed and delivered on behalf of the Borrower as of the date first above written.

2015 ESA PROJECT COMPANY, LLC,

a Delaware limited liability company,

as Borrower

By:

Name:

Title:

[Signature Page to Borrower’s Milestone Certificate]

APPENDIX 1

Facilities and Systems

Date:                      ,         ¹

Drawdown Date:                      ,         

Part A: Deposit Milestone

System Number                                     System Description                                     Facility Location

Part B: Shipment Milestone

System Number                                     System Description                                     Facility Location

Part C: Commencement of Operations

System Number                                     System Description                                     Facility Location

¹ Certificate must be submitted to the Administrative Agent and Independent Engineer at least two (2) Business Days prior to the date of submission of the Notice of Borrowing for each applicable Credit Event.

Exhibit M(ii)-6

Annex I

Deposit Milestone Certification

[See Attached]

Exhibit M(ii)-7

Annex II

Certificate of Installation

[See Attached]

Exhibit M(ii)-8

Exhibit M(iii)(A) to

Credit Agreement

FORM OF INDEPENDENT ENGINEER’S DEPOSIT MILESTONE CERTIFICATE

[LETTERHEAD OF INDEPENDENT ENGINEER]

(Delivered pursuant to Section 3.2(d)(iii)

of the Credit Agreement)

Date: [___________]¹

Drawdown Date: [___________]

Crédit Agricole Corporate and Investment Bank,

as Administrative Agent

Attn: Theodore M. Vandermel

1301 Avenue of the Americas

New York, NY 10019

Tel.: (212) 261-7888

Fax: (212) 849-5054

Email: theodore.vandermel@ca-cib.com

Subject:       Independent Engineer’s Deposit Milestone Certificate

Ladies and Gentlemen:

This Independent Engineer’s Deposit Milestone Certificate (this “Certificate”) is delivered to you by Leidos Engineering, LLC (“Leidos”) as “Independent Engineer” pursuant to Section 3.2(d)(iii) of that certain Credit Agreement, dated as of June 25, 2015, by and among 2015 ESA Project Company, LLC, a Delaware limited liability company, as borrower (the “Borrower”), Crédit Agricole Corporate and Investment Bank, as administrative agent (in such capacity, the “ Administrative Agent”), Wilmington Trust, National Association, as collateral agent (in such capacity, the “Collateral Agent”), Wilmington Trust, National Association, as depositary bank (in such capacity, the “Depositary Bank”), Crédit Agricole Corporate and Investment Bank, as issuing bank, syndication agent, coordinating lead arranger and sole bookrunner, KeyBank National Association and Silicon Valley Bank, as joint lead arrangers, and the financial institutions from time to time party thereto as lenders (the “Lenders”) (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”).

We have reviewed the provisions of Section 3.2(d) of the Credit Agreement as they identify the responsibilities of the Independent Engineer related to providing this Certificate as required by Section 3.2(d)(iii).

¹ Independent Engineer’s Deposit Milestone Certificate must be submitted to the Administrative Agent at least one (1) Business Day prior to the date of submission of the Notice of Borrowing for each applicable Credit Event.

Exhibit M(iii)(A)-1

All defined terms set forth in this Certificate shall have the respective meanings specified in the Credit Agreement unless the context otherwise requires or unless otherwise defined. We have reviewed the Credit Agreement as to the meaning of defined terms used herein.

We have reviewed the Borrower’s Drawdown Certificate No. [    ] and the attachments thereto, dated as of [                    ] (the “Current Drawdown Certificate”), requesting that a Drawdown from the Construction Account in the aggregate amount of $[                    ] (the “Drawdown”) be disbursed on [                    ] (the “Drawdown Date”). We have also reviewed the Borrower’s Milestone Certificate dated as of [                    ].

In connection herewith, we have reviewed: (a) the Borrower’s, contractors’ and subcontractors’ monthly construction progress reports dated [                    ] for progress through [                    ]; (b) we have also reviewed the material and data made available to us by Bloom Energy Corporation as the “Seller” under the PUMA; and (c) we have reviewed other material, such as invoices, applications for payment, payment receipts and lien waivers or releases, relating to the development of the Projects as we believed was necessary to establish the accuracy of the technical aspects of the Current Drawdown Certificate.

Due to the similarity of the sites and to the wide locational distribution of sites, we have visited a representative sample of sites. We last visited the [                    ] Site on [                    ] and observed progress at the applicable Project. Our site observations of progress did not include investigation of buried items or other unobservable items or hidden conditions. We have reviewed documentation and held discussions with the Borrower regarding the progress of construction activities at the Projects since that time.

This Certificate was prepared pursuant to the scope of services under our Amended and Restated Professional Services Agreement (the “Services Agreement”), dated effective as of June 9, 2015, by and among Leidos Engineering, LLC, Bloom Energy Corporation, 2015 ESA Project Company, LLC, and the Administrative Agent. This Certificate was prepared with the degree of skill and diligence normally practiced by professional engineers or consultants performing the same or similar services on like projects.

Based upon the foregoing review and review procedures and on the understanding and assumption that we have been provided true and complete information from other parties as to the matters covered by the Current Drawdown Certificate, as of the date of this Certificate, except as set forth in Attachment A to this Certificate, we are of the opinion and certify that:

1. Based on our review of the Borrower’s previous expenditures compared to the Project Budget and our review of the progress of engineering, procurement and construction, we concur with the Borrower’s estimate of the Project Costs to Completion as set forth in the Current Drawdown Certificate[ If not, continue as follows: ][, except as noted in Attachment A [state reasons and approximate amount of variance, if known in Attachment A]];

2. Each of the dates for (a) COO and (b) Completion are expected to be achieved by the dates indicated in Appendix III of the Current Drawdown Certificate[[ If not, continue as follows: ][, except as noted in Attachment A [state reasons scheduled dates will vary from the estimates set forth in the Current Drawdown Certificate in Attachment A]];

Exhibit M(iii)(A)-2

3. Our scope of review, which, to the extent practical and consistent with our scope of work under our Services Agreement, includes periodically reviewing the progress of engineering, procurement and construction for the Project, has not brought to our attention, any errors in the information contained in the Current Drawdown Certificate; [If any paragraphs in the Current Drawdown Certificate are incorrect, list and specify reasons for each paragraph in Attachment A.]

4. To the best of our knowledge [and the extent of our Site observations, if any], the quality of construction performed during the period covered by this Certificate was performed materially in conformance with the applicable construction Project Documents; [If unsatisfactory, specify reasons in Attachment A.]

5. The work accomplished during the period covered by this Certificate is in accordance with the Project Schedule; [If unsatisfactory, specify reasons in Attachment A.]

6. The request for funds in the Current Drawdown Certificate is in conformance, on a cumulative basis, with the drawdown schedule included with the Project Budget; [If not, state reasons in Attachment A.]

7. To the best of our knowledge, there are no approved, pending or proposed change orders that are not listed in Appendix V to the Current Drawdown Certificate [except as noted in Attachment A [list change orders in Attachment A]];

8. Attached hereto as Attachment C is a true, complete and correct copy of the Independent Engineer Deposit Milestone Certificate (as defined in the PUMA) that has been delivered to Borrower, certifying that:

a. Bloom has generated a site plan and single-line drawings for the installation of each Facility (as defined in the PUMA) listed Attachment B to this Certificate, which have been accepted by the applicable Offtaker;

b. Bloom has received all materials required for the commencement of fabrication of each System comprising each Facility listed in Attachment B to this Certificate to allow for completion of such fabrication in order to achieve COO of each such Facility within ninety (90) days of the date of the Independent Engineer Deposit Milestone Certificate and the Independent Engineer has reviewed and confirmed evidence of such receipt; and

c. All Systems to be incorporated into each Facility listed in Attachment B to this Certificate are reasonably expected to achieve COO within ninety (90) days of the date of the Independent Engineer Deposit Milestone Certificate.

Exhibit M(iii)(A)-3

This Certificate is solely for the information of, and assistance to, the Administrative Agent and the other Secured Parties in conducting and documenting their investigation of the matters in connection with the Projects and is not to be used, circulated, quoted, or otherwise referred to for any other purpose. Leidos disclaims any obligation to update this Certificate. This Certificate is not intended to, and may not, be construed to benefit any party other than the Administrative Agent and the other Secured Parties.

Very truly yours, LEIDOS ENGINEERING, LLC

[Name goes here]

[Title goes here]

[Name goes here]

[Title goes here]

Exhibit M(iii)(A)-4

ATTACHMENT A

EXCEPTIONS AND CLARIFICATIONS

[List any exceptions or clarifications. If there are none indicate “NONE”.]

Exhibit M(iii)(A)-5

Attachment B

Facilities and Systems

Date: ________ __, ____¹

Drawdown Date: ________ __, ____

System Number                                     System Description                                     Facility Location

¹ Deposit Milestone Certificate must be submitted to the Borrower (and to the Administrative Agent by the Borrower) at least one (1) Business Day prior to the date of submission of the Notice of Borrowing for each applicable Credit Event.

Exhibit M(iii)(A)-6

ATTACHMENT C

Independent Engineer Deposit Milestone Certificate

[See Attached]

Exhibit M(iii)(A)-7

Exhibit M(iii)(B) to

Credit Agreement

FORM OF COMMENCEMENT OF OPERATIONS CERTIFICATE

[LETTERHEAD OF INDEPENDENT ENGINEER]

(Delivered pursuant to Section 3.2(d)(iii)

of the Credit Agreement)

Date: [___________]¹

Drawdown Date: [___________]

2015 ESA Project Company, LLC

1252 Orleans Drive

Sunnyvale, CA 94089

Attn: Bill Brockenborough

Tel.: (408) 543-1772

Fax: (408) 543-1501

E-mail: Bill.Brockenborough@bloomenergy.com

Subject: Commencement of Operations Certificate

[List of Facilities]

Ladies and Gentlemen:

This Commencement of Operations Certificate (this “Certificate”) is delivered to you by Leidos Engineering, LLC (“Leidos”) as “Independent Engineer” pursuant to Section 3.2(d)(iii) of that certain Credit Agreement, dated as of June 25, 2015, by and among 2015 ESA Project Company, LLC, a Delaware limited liability company, as borrower (the “Borrower”), Crédit Agricole Corporate and Investment Bank, as administrative agent (in such capacity, the “Administrative Agent”), Wilmington Trust, National Association, as collateral agent (in such capacity, the “Collateral Agent”), Wilmington Trust, National Association, as depositary bank (in such capacity, the “Depositary Bank”), Crédit Agricole Corporate and Investment Bank, as issuing bank, syndication agent, coordinating lead arranger and sole bookrunner, KeyBank National Association and Silicon Valley Bank, as joint lead arrangers, and the financial institutions from time to time party thereto as lenders (the “Lenders”) (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”).

We have reviewed the provisions of Section 3.2(d) of the Credit Agreement as they identify the responsibilities of the Independent Engineer related to providing this Certificate as required by Section 3.2(d)(iii).

¹ Commencement of Operations Certificate must be submitted to the Borrower (and to the Administrative Agent by the Borrower) at least one (1) Business Day prior to the date of submission of the Notice of Borrowing for each applicable Credit Event.

Exhibit M(iii)(B)-1

All defined terms set forth in this Certificate shall have the respective meanings specified in the Credit Agreement unless the context otherwise requires or unless otherwise defined. We have reviewed the Credit Agreement as to the meaning of defined terms used herein.

We have reviewed the Borrower’s Drawdown Certificate No. [    ] and the attachments thereto, dated as of [                    ] (the “Current Drawdown Certificate”), requesting that a Drawdown from the Construction Account be disbursed on [                    ] (the “Drawdown Date”). We have also reviewed the Borrower’s Milestone Certificate dated as of [                    ].

Due to the similarity of the sites and to the wide locational distribution of sites, we have visited a representative sample of sites. We last visited the          Site on [                     ] and observed progress at the Project. Our site observations of progress did not include investigation of buried items or other unobservable items or hidden conditions. We have reviewed documentation and held discussions with the Borrower regarding the progress of construction activities at the Projects since that time.

This Certificate was prepared pursuant to the scope of services under our Amended and Restated Professional Services Agreement (the “Services Agreement”), dated effective as of June 9, 2015, by and among Leidos Engineering, LLC, Bloom Energy Corporation, 2015 ESA Project Company, LLC, and the Administrative Agent. The Services Agreement, among other things, outlines the terms and conditions for the Administrative Agent’s use of this Certificate on behalf of the Secured Parties. This Certificate was prepared with the degree of skill and diligence normally practiced by professional engineers or consultants performing the same or similar services on like projects.

Based upon the foregoing review and review procedures and on the understanding and assumption that we have been provided true and complete information from other parties as to the matters covered by the Current Drawdown Certificate, as of the date of this Certificate, except as set forth in this Certificate, we are of the opinion and certify that:

1. Attached hereto as Attachment B is a true, complete and correct copy of the Independent’s Engineer’s Commencement of Operations Certificate (as defined in the PUMA) delivered to Borrower;

2. The installation, commissioning and testing of the each System listed in Table 1 on Attachment A, attached hereto, has been successfully completed in accordance with the requirements of the PUMA;

3. Each of the requirements set out in paragraphs (a) through (f) of the definition of “Commencement of Operations” in the PUMA have been satisfied with respect to each Facility listed in Table 1 on Attachment A, attached hereto;

4. Each System comprising each Facility listed in Table 1 on Attachment A, attached hereto, has achieved commercial operation; and

Exhibit M(iii)(B)-2

5. Seller has completed all BOF Work (as defined in the PUMA) necessary for the operation of each Facility listed in Table 1 on Attachment A, attached hereto.

This Certificate is solely for the information of, and assistance to, the Administrative Agent and the other Secured Parties in conducting and documenting their investigation of the matters in connection with the Projects and is not to be used, circulated, quoted, or otherwise referred to for any other purpose. Leidos disclaims any obligation to update this Certificate. This Certificate is not intended to, and may not, be construed to benefit any party other than the Administrative Agent and the other Secured Parties.

Very truly yours, LEIDOS ENGINEERING, LLC

[Name goes here]

[Title goes here]

[Name goes here]

[Title goes here]

Exhibit M(iii)(B)-3

ATTACHMENT A

COMPLETED SYSTEMS AND FACILITIES

Table 1

Facility List and COO Date

Serial No. Location of Facility Unit
Model Net Capacity
(kW-AC) COO Date

Exhibit M(iii)(B)-4

ATTACHMENT B

Independent’s Engineer’s Commencement of Operations Certificate

[See Attached]

Exhibit M(iii)(B)-1

Exhibit M(v) to

Credit Agreement

FORM OF INDEPENDENT ENGINEER CHANGE ORDER CERTIFICATE

[LETTERHEAD OF INDEPENDENT ENGINEER]

(Delivered pursuant to Section 3.2(d)(v)

of the Credit Agreement)

Date: [___________]¹

Drawdown Date: [___________]

Crédit Agricole Corporate and Investment Bank,

as Administrative Agent

Attn: Theodore M. Vandermel

1301 Avenue of the Americas

New York, NY 10019

Tel.: (212) 261-7888

Fax: (212) 849-5054

Email: theodore.vandermel@ca-cib.com

Subject: Independent Engineer Change Order Certificate

Ladies and Gentlemen:

This Independent Engineer Change Order Certificate (this “Certificate”) is delivered to you by Leidos Engineering, LLC (“Leidos”) as “Independent Engineer” pursuant to Section 3.2(d)(v) of that certain Credit Agreement, dated as of June 25, 2015, by and among 2015 ESA Project Company, LLC, a Delaware limited liability company, as borrower (the “Borrower”), Crédit Agricole Corporate and Investment Bank, as administrative agent (in such capacity, the “ Administrative Agent”), Wilmington Trust, National Association, as collateral agent (in such capacity, the “Collateral Agent”), Wilmington Trust, National Association, as depositary bank (in such capacity, the “Depositary Bank”), Crédit Agricole Corporate and Investment Bank, as issuing bank, syndication agent, coordinating lead arranger and sole bookrunner, KeyBank National Association and Silicon Valley Bank, as joint lead arrangers, and the financial institutions from time to time party thereto as lenders (the “Lenders”) (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”).

We have reviewed the provisions of Section 3.2(d) of the Credit Agreement as they identify the responsibilities of the Independent Engineer related to providing this Certificate as required by Section 3.2(d)(v).

¹ Independent Engineer Change Order Certificate must be submitted to the Administrative Agent within two (2) Business Days following receipt of a Notice of Change Order from the Borrower.

Exhibit M(v)-1

All defined terms set forth in this Certificate shall have the respective meanings specified in the Credit Agreement unless the context otherwise requires or unless otherwise defined. We have reviewed the Credit Agreement as to the meaning of defined terms used herein.

We have reviewed the Borrower’s Drawdown Certificate No. [        ] and the attachments thereto, dated as of [                    ] (the “Previous Drawdown Certificate”), requesting that a Drawdown from the Construction Account in the aggregate amount of $[                    ] (the “Drawdown”) be disbursed on [                    ] (the “Previous Drawdown Date”). We have also reviewed the Borrower’s Milestone Certificate dated as of [                    ].

The Independent Engineer previously delivered that certain Independent Engineer’s Deposit Milestone Certificate dated as of             , 201     (the “Previous Independent Engineer’s Deposit Milestone Certificate”), certifying the satisfaction of the items (a) - (c) of the Deposit Milestone Requirements (as defined in the PUMA) with respect to each of the Facilities (as defined in the PUMA) set forth on Table 1 of Attachment A to this Certificate. Subsequent to the delivery of the Previous Independent Engineer’s Deposit Milestone Certificate, Bloom has submitted a Change Order (as defined in the PUMA) to the Buyer pursuant to Section 2.2(c) of the PUMA, updating the terms of the Purchase Orders (as defined in the PUMA) regarding certain of the Facilities to which the Previous Independent Engineer’s Deposit Milestone Certificate relates.

In connection herewith, we have previously reviewed: (a) the Borrower’s, contractors’ and subcontractors’ monthly construction progress reports dated [                    ] for progress through [                    ]; (b) we have also reviewed the material and data made available to us by Bloom Energy Corporation as the “Seller” under the PUMA; and (c) we have reviewed other material, such as invoices, applications for payment, payment receipts and lien waivers or releases, relating to the development of the Projects as we believed was necessary to establish the accuracy of the technical aspects of the Previous Drawdown Certificate.

Due to the similarity of the sites and to the wide locational distribution of sites, we have visited a representative sample of sites. We last visited the [                    ] Site on [                    ] and observed progress at the applicable Project. Our site observations of progress did not include investigation of buried items or other unobservable items or hidden conditions. We have reviewed documentation and held discussions with the Borrower regarding the progress of construction activities at the Projects since that time.

This Certificate was prepared pursuant to the scope of services under our Amended and Restated Professional Services Agreement (the “Services Agreement”), dated effective as of June 9, 2015, by and among Leidos Engineering, LLC, Bloom Energy Corporation, 2015 ESA Project Company, LLC, and the Administrative Agent. The Services Agreement, among other things, outlines the terms and conditions for the Administrative Agent’s use of this Certificate on behalf of the Secured Parties. This Certificate was prepared with the degree of skill and diligence normally practiced by professional engineers or consultants performing the same or similar services on like projects.

Exhibit M(v)-2

Based upon the foregoing review and review procedures and on the understanding and assumption that we have been provided true and complete information from other parties as to the matters covered by the Current Drawdown Certificate, as of the date of this Certificate, we are of the opinion and certify that:

1. The Change Order does not affect the amount of the Drawdown requested in the Previous Drawdown Certificate.

2. [***]

This Certificate is solely for the information of, and assistance to, the Administrative Agent and the other Secured Parties in conducting and documenting their investigation of the matters in connection with the Projects and is not to be used, circulated, quoted, or otherwise referred to for any other purpose. Leidos disclaims any obligation to update this Certificate. This Certificate is not intended to, and may not, be construed to benefit any party other than the Administrative Agent and the other Secured Parties.

Very truly yours, LEIDOS ENGINEERING, LLC

[Name goes here]

[Title goes here]

[Name goes here]

[Title goes here]

[***] Confidential Treatment Requested

Exhibit M(v)-3

ATTACHMENT A

Table 1

Facility List – Removed from Purchase Order(s) by Change Order(s)

Serial No. Location of Facility Unit
Model Net Capacity
(kW-AC)

Table 2

Facility List – Added to Purchase Order(s) by Change Order(s)

Serial No. Location of Facility Unit
Model Net Capacity
(kW-AC)

Exhibit M(v)-4

Exhibit N to

Credit Agreement

FORM OF NOTE

$[_____]	[_____], 20__
	New York, New York

FOR VALUE RECEIVED, the undersigned (the “Borrower”), hereby promises to pay to [        ] (the “Lender”), at the office of the Administrative Agent as provided for by the Credit Agreement referred to below, for the account of the Lender, the principal sum of $[        ] (or such lesser amount as shall equal the aggregate unpaid principal amount of the Loans made by the Lender to the Borrower under the Credit Agreement), in lawful money of the United States of America and in immediately available funds, on the dates and in the principal amounts provided in the Credit Agreement, and to pay interest on the unpaid principal amount of each such Loan, at such office, in like money and funds, for the period commencing on the date of such Loan until such Loan shall be paid in full, at the rates per annum and on the dates provided in the Credit Agreement.

The date, amount, Type, interest rate and duration of Interest Period (if applicable) of each Loan made by the Lender to the Borrower, and each payment made on account of the principal thereof, shall be recorded by the Lender on its books and, prior to any transfer of this Note, endorsed by the Lender on the schedule attached hereto or any continuation thereof, provided that the failure of the Lender to make any such recordation or endorsement shall not affect the obligations of the Borrower to make a payment when due of any amount owing under the Credit Agreement or hereunder in respect of the Loans made by the Lender.

This Note evidences Loans made by the Lender under the Credit Agreement dated as of June 25, 2015 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”) among 2015 ESA Project Company, LLC, the Lenders and the Issuing Banks party thereto from time to time, Crédit Agricole Corporate & Investment Bank, as the Administrative Agent for the Lenders and the Issuing Banks, and Wilmington, Trust, National Association, as the Collateral Agent and Depositary Bank. Terms used but not defined in this Note have the respective meanings assigned to them in the Credit Agreement.

The Credit Agreement provides for the acceleration of the maturity of this Note upon the occurrence of certain events and for prepayments of Loans upon the terms and conditions specified therein.

Except as permitted by Section 9.11 of the Credit Agreement, this Note may not be assigned by the Lender to any other Person.

This Note shall be governed by, and construed in accordance with, the law of the State of New York

EXHIBIT N-1

2015 ESA PROJECT COMPANY, LLC
By:
	Name:
	Title:

[Note]

Schedule of Loans

This Note evidences Loans made, continued or converted under the Credit Agreement to the Borrower, on the dates, in the principal amounts, of the Classes, of the Types, bearing interest at the rates and having Interest Periods (if applicable) of the durations set forth below, subject to the continuations, conversions and payments and prepayments of principal set forth below:

ALTERNATE BASE RATE (“ABR”) LOANS, CONVERSION, AND REPAYMENTS

Date Amount of ABR Loan Amount Converted to ABR Loan Amount of
ABR Loan
Principal
Repayment Amount of
ABR Loan
Converted to
Eurodollar
Loan Unpaid
Principal
Balance of
ABR Loan Class of
ABR Loan Interest
Rate Notation
Made By

1. EURODOLLAR LOANS, CONVERSIONS, AND REPAYMENTS

Date Amount of
Eurodollar
Loan Amount
Converted to
Eurodollar
Loan Amount of
Eurodollar
Loan
Principal
Repayment Amount
of
Eurodollar
Loan
Converted
to ABR
Loan Unpaid
Principal
Balance
of
Eurodollar
Loan Class of
Eurodollar
Loan Interest
Rate Duration
of Interest
Period (if
any) Notation
Made
By

EXHIBIT N-3

EX-10

Exhibit 10.35

EXECUTION VERSION

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

EQUITY CAPITAL CONTRIBUTION AGREEMENT

with respect to

DIAMOND STATE GENERATION HOLDINGS, LLC

by and among

CLEAN -TECHNOLOGIES II, LLC

DIAMOND STATE GENERATION HOLDINGS, LLC

DIAMOND STATE GENERATION PARTNERS, LLC

and

MEHETIA INC.

dated as of March 16, 2012

[TABLE OF CONTENTS]

Table of Contents

		Page
ARTICLE 1 DEFINED TERMS			2
1.1	Defined Terms		2
ARTICLE 2 CAPITAL CONTRIBUTIONS; MEMBERSHIP INTERESTS			2
2.1	Issuance of Class B Membership Interests		2
2.2	Contributions		2
2.3	Initial Funding		4
2.4	Subsequent Fundings		4
2.5	Conditions Precedent to the Obligations of Investor at the Initial Funding		5
2.6	Conditions Precedent to the Obligations of Clean Technologies at the Initial Funding		8
2.7	Conditions Precedent to the Obligations of Investor at Each Subsequent Funding		9
2.8	Conditions Precedent to the Obligations of Clean Technologies at Each Subsequent Funding		13
ARTICLE 3 REPRESENTATIONS AND WARRANTIES			14
3.1	Representations and Warranties of Clean Technologies on the Execution Date and the Initial Funding Date		14
3.2	Representations and Warranties of Clean Technologies on each Subsequent Funding Date		21
3.3	Representations and Warranties of Investor on the Execution Date and the Initial Funding Date		22
3.4	Representations and Warranties of Investor on each Subsequent Funding Date		24
ARTICLE 4 CERTAIN COVENANTS			24
4.1	Confidentiality		24
4.2	Access to Information		24

i

TABLE OF CONTENTS

(continued)

		Page
4.3	Regulatory Matters		24
4.4	System Manufacturing		25
4.5	Site Preparation Costs		25
ARTICLE 5 TERMINATION			25
5.1	Termination		25
5.2	Procedure and Effect of Termination		26
ARTICLE 6 INDEMNIFICATION			26
6.1	Indemnification		26
6.2	Direct Claims		27
6.3	Third Party Claims		27
6.4	No Duplication		29
6.5	Sole Remedy		29
6.6	Survival		29
6.7	Final Date for Assertion of Indemnity Claims		29
6.8	Mitigation and Limitations on Indemnified Costs		30
6.9	Payment of Indemnification Claims		30
6.10	Repayment; Subrogation		31
ARTICLE 7 GENERAL PROVISIONS			31
7.1	Exhibits and Schedules		31
7.2	Disclosure Schedules		31
7.3	Amendment, Modification and Waiver		31
7.4	Severability		32
7.5	Expenses		32

ii

TABLE OF CONTENTS

(continued)

		Page
7.6	Parties in Interest		32
7.7	Notices		32
7.8	Counterparts		34
7.9	Entire Agreement		34
7.10	Governing Law; Choice of Forum; Waiver of Jury Trial		34
7.11	Public Announcements		34
7.12	Assignment		35
7.13	Relationship of Parties		35

iii

ANNEXES

Annex I	Definitions
Annex II	Projected Contribution Schedule
Annex III	Base Case Model

EXHIBITS

Exhibit A	Form of MOMA
Exhibit B	Form of MESPA
Exhibit C	Form of Administrative Services Agreement
Exhibit D	Form of Company LLC Agreement
Exhibit E	Form of Project Company LLC Agreement
Exhibit F	Form of Chadbourne Opinion
Exhibit G-1	Form of Company Officer Instruction Letter
Exhibit G-2	Form of Project Company Officer Instruction Letter
Exhibit H	Form of McDermott Opinion
Exhibit I	Form of Funding Notice
Exhibit J	March 16, 2012 Draft Version of Credit Agreement

SCHEDULES

Schedule 3.1(d)	Litigation
Schedule 3.1(g)	Taxes
Schedule 3.1(h)	Financial Statements
Schedule 3.1(i)	Governmental Approvals and Filings
Schedule 3.1(k)	Environmental Matters
Schedule 3.1(1)	Permits
Schedule 3.1(m)	Insurance
Schedule 3.1(n)	Real Property
Schedule 3.1(o)	Personal Property
Schedule 3.1(p)	Liens
Schedule 3.1(q)	Material Contracts
Schedule 3.1(s)	Affiliate Transactions
Schedule 3.1(y)	Intellectual Property

i

EQUITY CAPITAL CONTRIBUTION AGREEMENT

This Equity Capital Contribution Agreement (this “Agreement”) is made and entered into as of March 16, 2012 (the “Execution Date”) by and among Mehetia Inc., a Delaware corporation (“Investor” or “Mehetia”), Clean Technologies II, LLC, a Delaware limited liability company (“Clean Technologies”), Diamond State Generation Holdings, LLC, a Delaware limited liability company (the “Company”), and Diamond State Generation Partners, LLC, a Delaware limited liability company (the “Project Company”).

Preliminary Statements

WHEREAS, on October 19, 2011 Clean Technologies contributed the Project Company to the Company;

WHEREAS, as of the Execution Date Clean Technologies owns 100% of the issued and outstanding membership interests in the Company and the Company owns 100% of the issued and outstanding membership interests in the Project Company;

WHEREAS, the Project Company intends to acquire and own a portfolio of Systems having an aggregate nameplate capacity of up to 30 MW to be operated in accordance with the Tariffs and the REPS Act (collectively, the “Portfolio” or the “Project”);

WHEREAS, on December 30, 2011 Clean Technologies made a capital contribution to the Company in the amount of $16,619,399.60, and, subject to the terms and conditions herein, on or prior to the Initial Funding Date, Clean Technologies will make a further capital contribution to the Company as provided in this Agreement;

WHEREAS, subject to the terms and conditions herein, on the Initial Funding Date (i) Investor will make an initial capital contribution to the Company in the amount set forth on the Projected Contribution Schedule and Clean Technologies will cause the Company to issue Class B Membership Interests to Investor and (ii) Clean Technologies will retain the Class A Membership Interests in the Company, in each case pursuant to the Company LLC Agreement;

WHEREAS, Clean Technologies and Investor are hereby agreeing on the form of the Company LLC Agreement to define their interests, rights and obligations in the Company from and after the Initial Funding Date;

WHEREAS, subject to the terms and conditions herein, on each Subsequent Funding Date, the Class A Member and the Class B Member will make additional capital contributions to the Company in amounts determined pursuant to and as provided in this Agreement;

WHEREAS, Bloom and Credit Suisse Guarantor have agreed to provide the Bloom Guaranty and the Credit Suisse Guaranty, respectively, as of the date hereof;

NOW, THEREFORE, in consideration of the respective representations, warranties, covenants, agreements, and conditions in this Agreement, and other good and valuable consideration, the sufficiency of which is hereby acknowledged, the parties to this Agreement agree as follows:

1

ARTICLE 1

DEFINED TERMS

1.1 Defined Terms. Capitalized terms not otherwise defined in this Agreement have the meanings given such terms in Annex I.

ARTICLE 2

CAPITAL CONTRIBUTIONS; MEMBERSHIP INTERESTS

2.1 Issuance of Class B Membership Interests. Subject to the terms and conditions in this Agreement, (a) on or before the Initial Funding Date, Clean Technologies will make a Capital Contribution to the Company (in cash or in kind) in an amount such that, together with the Capital Contribution made by Clean Technologies on December 30, 2011, the amount of capital contributed to the Company by Clean Technologies prior to the Initial Funding Date (excluding the value of the Project Company membership interests previously contributed by Clean Technologies to the Company) totals $16,619,399.60 (with such contributions in turn previously having been contributed or to be contributed on the Initial Funding Date by the Company to the Project Company), and (b) on the Initial Funding Date (i) Investor will make a Capital Contribution to the Company as provided in Section 2.2(a) and (ii) Clean Technologies will cause the Company to issue to Investor the Class B Membership Interests in the Company.

2.2 Contributions.

(a) Subject to the terms and conditions in this Agreement, Investor will make a Capital Contribution on the Initial Funding Date in the amount set forth in the Projected Contribution Schedule (an “Initial Funding Payment”). Subject to the terms and conditions in this Agreement, Clean Technologies will make a Capital Contribution on the Initial Funding Date in the amount set forth in the Projected Contribution Schedule.

(b) Subject to the terms and conditions in this Agreement, on each Subsequent Funding Date, Investor will make a further Capital Contribution (a “Subsequent Funding Payment”) as follows:

(i) In connection with the portion of any Capital Contribution to be contributed on a Subsequent Funding Date to Company in order for Company to contribute such amounts to Project Company for use by Project Company to make [***]% Progress Payments (“Deposit Contribution”), Investor will make a Deposit Contribution on such Subsequent Funding Date in an amount equal to the total required Deposit Contributions due from Class B Member on such Subsequent Funding Date, but not more than the lesser of (A) 100% of the amount of the Capital Contributions requested to be contributed to the Project Company in order for the Project Company to make [***]% Progress Payments and (B) an amount which, together with prior Capital Contributions of Class B Member, would cause Class B Member to have made Capital Contributions which in the aggregate would equal the Class B Member CC Maximum Amount; provided that there exists a commitment on such Subsequent Funding Date of the Lenders, enforceable against such Lenders, to fund Loan Proceeds for a portion (consistent with the Base Case Model) of the [***]% Progress Payments due with respect any such System for which Investor is making a Deposit Contribution; and

[***] Confidential Treatment Requested

2

(ii) Subject to Section 2.2(f), in connection with the portion of any Capital Contribution to be contributed on a Subsequent Funding Date to Company in order for Company to contribute such amounts to Project Company for use by Project Company to make [***]% Progress Payments (“Progress Contributions”), Investor will make a Capital Contribution on such Subsequent Funding Date in an amount equal to (x) [***]% of the required Progress Contribution less (y) the pro rata portion (based on 150 Systems) of the December Capital Contribution shown as credited to Clean Technologies for purposes of Progress Contributions in the Base Case Model.

Notwithstanding the foregoing, prior to any Subsequent Funding Payment being made by Investor, the Initial Funding Payment, any prior Subsequent Funding Payments and any prior CT Funding Amounts, as applicable, shall have been drawn upon in full by the Project Company in accordance with the Company LLC Agreement and not more than $20 million of such amounts in the aggregate remain unspent by the Project Company. Except for the Initial Funding Payment and the Capital Contribution of Clean Technologies on the Initial Funding Date, for the avoidance of doubt, the Projected Contribution Schedule is just a projection and the parties hereto intend that the Capital Contributions will only be made as needed in order for the Project Company to make payments under the MESPA, after taking into account the Loan Proceeds.

(c) Subject to the terms and conditions in this Agreement, Clean Technologies will make a Capital Contribution on each Subsequent Funding Date in an amount equal to the CT Funding Amount.

(d) On or prior to each Funding Date, Investor will transfer its respective Funding Payments and Clean Technologies will transfer its respective CT Funding Amount, if any, by wire transfer of immediately available funds to the following account (or to such other account as the Company may from time to time advise it in writing):

Holder Name:	[***]
Bank Name:	[***]
Account Number:	[***]
ABA Number:	[***]

(e) Clean Technologies will provide Investor with not less than five Business Days prior written notice as to the Initial Funding Date.

(f) Notwithstanding anything contained herein to the contrary, (i) the aggregate amount paid by Mehetia as the Initial Funding Payment and Subsequent Funding Payments shall not exceed the Class B Member CC maximum Amount and shall be in accordance with the manner of calculation set forth in the Base Case Model, and (ii) the aggregate amount contributed by Clean Technologies to the Company as Capital Contributions (including, for the avoidance of doubt, the Capital Contributions made by Clean Technologies prior to and on the Initial Funding Date, and each CT Funding Amount) shall not exceed its respective Equity Commitment Amount and shall be in accordance with the manner of calculation set forth in the Base Case Model.

[***] Confidential Treatment Requested

3

(g) Notwithstanding anything contained herein to the contrary, in the event the Initial Funding occurs but any of the conditions set forth in Sections 2.7(v), (w), (x) and (y) have not been satisfied by the date on which Clean Technologies provides notice of the first Subsequent Funding Date following the Initial Funding Date, Investor may, at its option, provide Clean Technologies not less than 10 Business Days written notice (the “Refund Notice”) that it desires to receive a refund of the Initial Funding Payment made by Investor. Upon receipt of such notice Clean Technologies shall have 10 Business Days to pay or cause such amount to be paid to Investor (such date, the “Refund Payment Date”). Upon the giving of the Refund Notice to Clean Technologies, Investor shall have no further obligation to make any Funding Payment until all of the conditions in Section 2.5 and Section 2.7 are satisfied. If all of the conditions in Section 2.5 and Section 2.7 are subsequently satisfied, Clean Technologies may by not less than 10 Business days’ written notice to Investor again require Investor to make a Capital Contribution of the Initial Funding Payment and any Subsequent Funding Payments, as provided under this Agreement.

2.3 Initial Funding. Subject to the termination rights in Article 5, the closing of the Initial Funding Payment and the closing of the Capital Contribution on the Initial Funding Date by Clean Technologies of the CT Funding Amount (the “Initial Funding”) and the issuance of the Class B Membership Interests pursuant to Section 2.1 will take place (a) at the offices of Chadbourne & Parke LLP in New York City at 11:00 a.m. (eastern time) on the date on which all of the conditions in Section 2.5 and Section 2.6 have either been satisfied or waived in writing by the Party entitled to the benefit of such conditions, or (b) at such other place and time as Investor and Clean Technologies may agree in writing (such date as determined under clause (a) or (b), the “Initial Funding Date”), but in any event not later than the Initial Funding Termination Date. Each of the documents to be delivered pursuant to Section 2.5 and Section 2.6 shall be deemed to be delivered simultaneously, and no such document shall be of any force or effect until all such documents are delivered and the Initial Funding is consummated.

2.4 Subsequent Fundings. Subject to the terms and conditions of this Agreement, the making of Subsequent Funding Payments by Investor and the making of payments of CT Funding Amounts by Clean Technologies (each payment made by the respective Member referred to as a “Subsequent Funding”) will take place on (a) the dates upon which all conditions in Section 2.7 and Section 2.8 have either been satisfied or waived in writing by the party entitled to the benefit of such conditions or (b) at such other time as Investor and Clean Technologies may agree in writing (such date as determined under clause (a) or (b), each, a “Subsequent Funding Date”). The parties acknowledge that, other than as agreed to by the Parties, there will only be one Subsequent Funding Date per Member per calendar quarter, which will be no earlier than the last Business Day of the previous calendar quarter and no later than the fifth Business Day of the current calendar quarter. In no event will any Subsequent Funding Date occur later than the Subsequent Funding Termination Date. Each of the documents to be delivered pursuant to Section 2.7 and Section 2.8 will be deemed to be delivered simultaneously, and no such document will be of any force or effect until all such documents are delivered and the Subsequent Funding is consummated. Subject to the terms and conditions in this Agreement, on each Subsequent Funding Date, Investor will deliver its Subsequent Funding Payment and Clean Technologies will deliver its CT Funding Amount as described in Section 2.2(d).

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2.5 Conditions Precedent to the Obligations of Investor at the Initial Funding. The obligation of Investor to consummate the Initial Funding will be subject to the fulfillment by Clean Technologies, the Company or the Project Company, on or before the Initial Funding Date and prior to the Initial Funding Termination Date, of each of the following conditions (any or all of which may be waived in whole or in part by Investor in their sole discretion):

(a) Investor has received copies of the Insurance Report and the Environmental Reports (and any reliance letters in connection therewith), each in form and substance reasonably satisfactory to Investor and has received evidence that the requirements set forth in Section 8.4 of the Company LLC Agreement have been complied with;

(b) Investor has received a copy of the Independent Engineer Report (and a reliance letter in connection therewith) in form and substance reasonably satisfactory to Investor including with respect to the establishment of operating and test data showing operating efficiency improvement consistent with Project performance expectations;

(c) Investor has received copies of the Credit Agreement and the other Credit Documents, each in form and substance satisfactory to Investor, and such agreements shall have been fully executed prior to or contemporaneous with the occurrence of the Initial Funding, it being understood that in the case of the Credit Agreement, the draft version dated March 16, 2012 attached hereto as Exhibit J is acceptable to Investor, other than with respect to certain state and federal regulatory statements contained in Sections 4.16.1,4.16.2 and 5.11.2 thereof;

(d) Investor has received fully executed copies of each of the Material Contracts (including the MOMA substantially in the form attached as Exhibit A, the MESPA substantially in the form attached as Exhibit B, and the Administrative Services Agreement substantially in the form attached as Exhibit C), each of which is in full force and effect;

(e) Investor has received a fully executed copy of this Agreement attaching forms of the Company LLC Agreement as Exhibit D and the Project Company LLC Agreement as Exhibit E, each in form and substance satisfactory to Investor, which agreements shall be fully executed simultaneously with the occurrence of the Initial Funding;

(f) Investor has received a fully executed copy of the Bloom Guaranty, dated as of the Execution Date, in form and substance acceptable to Investor;

(g) Investor has received the unaudited, consolidated balance sheet of each of the Company and Project Company as of the Initial Funding Date;

(h) Investor has received the audited financial report of Bloom as of its most recent fiscal year end;

(i) Investor has received each of the following legal opinions in form and substance reasonably satisfactory to it: (A) a legal opinion of Chadbourne & Parke LLP as counsel to Bloom, Clean Technologies, the Company and the Project Company with respect to corporate and federal regulatory matters substantially in the form attached as Exhibit F, (B) a customary legal opinion of Delaware counsel to the Company and the Project Company with respect to the enforceability under Delaware law of the Company LLC Agreement and the

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Project Company LLC Agreement, and (C) any other customary opinions reasonably requested by Investor, including, without limitation, a legal opinion of Delaware counsel with respect to the REPS Act and the Tariffs;

(j) Investor has received (i) from each of Bloom, Clean Technologies, the Company and the Project Company (A) an incumbency certificate dated as of the date hereof, (B) a good standing certificate, dated as of a recent date, from the applicable Secretary of State, (C) resolutions of the board of directors, or other equivalent governing and managing body, authorizing and approving the execution of this Agreement and each of the other Transaction Documents to which it is a party, and the transactions contemplated hereunder and thereunder, certified by a secretary or an assistant secretary as of the date hereof, and (D) formation documents certified by a secretary or an assistant secretary as of the date hereof and (ii) from an authorized officer of Clean Technologies, a certificate dated as of the date hereof to the effect that the conditions set forth, as applicable, in Section 2.5(o) have been satisfied;

(k) Investor has received evidence of insurance maintained by, or for the benefit of, the Project Company, together with an Insurance Consultant’s (as defined in the Credit Agreement) certification thereto;

(l) [Reserved];

(m) Clean Technologies has fully funded its corresponding Equity Commitment Amount to the Company and the Company has funded such amount to Project Company;

(n) No material ongoing breach exists by Bloom, Clean Technologies, the Company, the Project Company, the Managing Member, DPL or PJM under the Company LLC Agreement, the Project Company LLC Agreement, the MESPA, the MOMA, the Administrative Services Agreement, the Credit Documents, the DPL Agreements, the PJM Agreements, this Agreement or any other Transaction Document or Material Contract, as applicable;

(o) Each of the representations and warranties of Clean Technologies, Company and Project Company in this Agreement (other than those made as of a later date) is (i) true and correct in all material respects as of the Initial Funding Date, except to the extent that any such representation or warranty shall have been expressly made only as of an earlier date in which case such representation and warranty was true and correct in all material respects as of such earlier date or (ii) if and to the extent such representations and warranties are qualified by the words “material,” “Material Adverse Effect” or similar qualification, true and correct, as qualified, as of the Initial Funding Date (or such earlier date, as applicable);

(p) Investor has received fully executed copies of the DPL Agreements and the PJM Agreements that are subject to execution at the Initial Funding Date, each in form and substance satisfactory to Investor, which agreements shall have been fully executed prior to the occurrence of the Initial Funding;

(q) None of Bloom, Clean Technologies, the Company and the Project Company (i) has admitted in writing its inability to pay its debts generally as they become due, (ii) has filed a petition or answer seeking reorganization or arrangement under the federal

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bankruptcy laws or any other applicable law or statute of the United States of America or any State, district. or territory thereof, (iii) has made an assignment for the benefit of creditors, (iv) has consented to the appointment of a receiver of the whole or any substantial part of its assets, (v) has had a petition in bankruptcy filed against it, (vi) has had a court of competent jurisdiction enter an order, judgment, or decree appointing a receiver of the whole or any substantial part of such entity’s assets or (vii) has had, under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction assume custody or control of the whole or any substantial part of such entity’s assets;

(r) Clean Technologies shall make a Capital Contribution to the Company in an amount equal to the CT Funding Amount prior to, or simultaneously with, the Initial Funding;

(s) The REPS Act and the Tariffs have not been amended or otherwise modified since the date hereof and remain in full force and effect, no legislation has been introduced in the Delaware legislature to repeal the REPS Act and there are no pending proceedings challenging the REPS Act or the Tariffs in any respect material to the parties hereto or the transactions contemplated herein;

(t) The Project has met all the requirements to be a “Qualified Fuel Cell Provider Project” under the REPS Act, Project Company shall have met all the requirements to be a “QFCP Generator” under the QFCP-RC Tariff, and the Project has been designated as an “economic development opportunity” by the Delaware Economic Development Office and the Delaware Department of Natural Resources;

(u) The QFCP-RC Tariff and the Gas Tariff have been approved by the DPSC in accordance with Section 364(d) of the REPS Act, has not been further amended without Investor’s prior written consent, is final, non-appealable and in full force and effect, and there is no pending litigation challenging the same;

(v) Investor has received evidence, including, but not limited to, invoices, purchase or supply agreements, evidence of delivery, documents detailing how the costs incurred have been allocated to and incorporated in portions of the Project for which a Grant application will be filed, and related agreements and documents, reasonably satisfactory to Investor demonstrating that a Grant is expected to be available for Systems that will be funded by such Initial Funding because the Capital Contribution by Clean Technologies has been used by Project Company to incur Project costs that will allow the portions of the Project for which a Grant application will be filed and for which such costs are incurred to meet the 5% “safe harbor” for Grant eligibility under the Guidance, and both Bloom and Project Company shall have used commercially reasonable efforts to satisfy this requirement;

(w) Investor has received, in form and substance satisfactory to Investor, the feasibility and system impact study from PJM and the facilities study from DPL for the Project interconnection with respect to the Brookside Site and neither study identifies any material impediments that are reasonably likely to have an adverse effect on the ability of any party hereto to execute and deliver all agreements necessary for the transmission, interconnection and delivery of the Brookside Site Systems’ Energy to the PJM Grid by the Guaranteed Initial Delivery Date;

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(x) Project Company has filed with FERC a Notice of Exempt Wholesale Generator Status;

(y) Investor has received evidence reasonably satisfactory to Investor that Bloom is proceeding to prepare a permanent facility in Delaware for manufacturing by Bloom of 20 MW of Systems so that all the Systems shall be considered to have been manufactured in Delaware under the REPS Act;

(z) the Company and Project Company shall have executed and delivered the officer instruction letters in the forms attached hereto as Exhibit G-1 and Exhibit G-2;

(aa) the findings of Investor’s customary due diligence review, including with respect to any environmental compliance issues, are satisfactory to Investor;

(bb) Each of Clean Technologies, Company and Project Company has received all necessary third party consents, waivers, authorizations and approvals in connection with the execution, delivery and performance of this Agreement and each of the Transaction Documents to which it is a party and the transactions contemplated hereunder and thereunder, each of which consents, waivers, authorizations and approvals is in form reasonably satisfactory to Investor, and copies of the same have been delivered to Investor;

(cc) Project Company has entered into the Site Leases, each Site Lease having such terms and conditions reasonably satisfactory to Investor (except that the DDOT Site Lease shall be subject to amendment as set forth in Section 2.7(xl), and Project Company has received either (i) an owner’s ALTA extended coverage policy of title insurance (2006 form) issued by a title insurance company and in a form and substance acceptable to Investor, which policy shall insure that Project Company’s leasehold interest at each Site is free and clear of all defects and encumbrances, except Permitted Liens, and shall contain such endorsements as are reasonably requested by Investor, or (ii) the unconditional and irrevocable commitment of the title insurance company to issue such a policy, in each case in a coverage amount equal to the amount reasonably acceptable to Investor; and

(dd) Investor has received a fully executed copy of the Control Agreement, in form and substance satisfactory to Investor.

2.6 Conditions Precedent to the Obligations of Clean Technologies at the Initial Funding. The obligation of Clean Technologies to consummate the Initial Funding will be subject to the fulfillment by Investor, on or before the Initial Funding Date, of each of the following conditions (any or all of which may be waived in whole or in part by Clean Technologies in its sole discretion):

(a) Clean Technologies has received fully executed copies of this Agreement attaching forms of the Company LLC Agreement as Exhibit D and the Project Company LLC Agreement as Exhibit E, each in form and substance satisfactory to Clean Technologies;

(b) Clean Technologies has received each of the following legal opinions in a form reasonably satisfactory to it: (A) a legal opinion of McDermott Will & Emery LLP as counsel to Mehetia and Credit Suisse Guarantor with respect to corporate matters, substantially in the form attached as Exhibit H and (B) any other customary opinions reasonably requested by Clean Technologies;

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(c) Investor (i) has not admitted in writing its inability to pay its debts generally as they become due, (ii) has not filed a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other applicable law or statute of the United States of America or any State, district or territory thereof, (iii) has not made an assignment for the benefit of creditors, (iv) has not consented to the appointment of a receiver of the whole or any substantial part of its assets, (v) has not had a petition in bankruptcy filed against it, (vi) has not had a court of competent jurisdiction enter an order, judgment, or decree appointing a receiver of the whole or any substantial part of such entity’s assets or (vii) has not had, under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction assume custody or control of the whole or any substantial part of such entity’s assets;

(d) Investor has received all necessary third party consents, waivers, authorizations and approvals in connection with the execution, delivery and performance of this Agreement and each of the Transaction Documents to which it is a party and the transactions contemplated hereunder, which consents, waivers, authorizations and approvals are in form reasonably satisfactory to Clean Technologies and copies of the same have been delivered to Clean Technologies;

(e) each of the representations and warranties of Investor in this Agreement (other than those made as of a later date) is (i) true and correct in all material respects as of the Initial Funding Date, except to the extent that any such representation or warranty shall have been expressly made only as of an earlier date in which case such representation and warranty was true and correct in all material respects as of such earlier date or (ii) if and to the extent such representations and warranties are qualified by the words “material,” “Material Adverse Effect” or similar qualification, true and correct, as qualified, as of the Initial Funding Date (or such earlier date, as applicable);

(f) Clean Technologies shall have received a fully executed copy of the Credit Suisse Guaranty, dated as of the Execution Date, in form and substance acceptable to Clean Technologies; and

(g) Clean Technologies has received (1) from Investor (i) an incumbency certificate dated as of the date hereof, (ii) a good standing certificate, dated as of a recent date, from the applicable Secretary of State, (iii) resolutions of the board of directors, or other equivalent governing and managing body, authorizing and approving the execution of this Agreement and each of the other Transaction Documents to which it is a party, and the transactions contemplated hereunder and thereunder, certified by a secretary or an assistant secretary as of the date hereof and (iv) formation documents certified by a secretary or an assistant secretary as of the date hereof, and (2) from an authorized officer of Investor, a certificate dated as of the date hereof to the effect that the conditions set forth, as applicable, in Section 2.6(e) have been satisfied.

2.7 Conditions Precedent to the Obligations of Investor at Each Subsequent Funding. The obligation of Investor to consummate any Subsequent Funding will be subject to the

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fulfillment by Clean Technologies, the Company or the Project Company, on or before the applicable Subsequent Funding Date and prior to the Subsequent Funding Termination Date, of each of the following conditions (any or all of which may be waived in whole or in part by Investor in its sole discretion):

(a) confirmation by Clean Technologies that (i) all conditions precedent in Section 2.5 (other than in Section 2.5(aa)) continue to be satisfied; provided that none of Clean Technologies, Company or Project Company shall be required to update any diligence reports, legal opinions, appraisals or other third party documents previously delivered to Investor unless any of such previously delivered documents have been withdrawn or circumstances have materially changed such that the previously delivered document is inapplicable or is materially incorrect or misleading and (ii) there have been no material adverse changes from the circumstances addressed in the due diligence reports delivered to Investor as required under Section 2.5(a) and (b);

(b) each of the representations and warranties of Clean Technologies in Section 3.2 is (i) true and correct in all material respects as of such Funding Date, except to the extent that any such representation or warranty shall have been expressly made only as of an earlier date in which case such representation and warranty was true and correct in all material respects as of such earlier date or (ii) if and to the extent such representations and warranties are qualified by the words “material,” “Material Adverse Effect” or similar qualification, true and correct, as qualified, as of such Funding Date (or such earlier date, as applicable);

(c) Clean Technologies shall deliver to Investor a certificate from an authorized officer dated as of such Subsequent Funding Date, to the effect that the conditions set forth in Section 2.7(a) and Section 2.7Cb), have been satisfied as of such Subsequent Funding Date;

(d) the net equity investment in the Company by Investor (meaning the aggregate Capital Contributions of Investor including the contemplated Subsequent Funding, less actual pre-tax cash distributions received by Investor from the Company), collectively, does not exceed $65,000,000;

(e) no material ongoing breach exists by Bloom, Clean Technologies, the Company, the Project Company, the Managing Member, DPL or PJM under any of the Company LLC Agreement, the Project Company LLC Agreement, the MESPA, the MOMA, the Administrative Services Agreement, the Credit Documents, the DPL Agreements, the PJM Agreements, this Agreement or any other Transaction Document or Material Contract, as applicable, and each of the Company LLC Agreement, the Project Company LLC Agreement, the MESPA, the MOMA, the Administrative Services Agreement, the Credit Documents, the DPL Agreements, the PJM Agreements, this Agreement or any other Transaction Document or Material Contract, as applicable, is in full force and effect;

(f) Unless an Alternative Tax Program has been elected under Section 7.5(b)(i) of the Company LLC Agreement, Investor has received evidence, including, but not limited to, invoices, purchase or supply agreements, evidence of delivery, documents detailing how the costs incurred have been allocated to and incorporated in portions of the Project for

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which a Grant application will be filed, and related agreements and documents, reasonably satisfactory to Investor demonstrating that a Grant is expected to be available for Systems that will be funded by such Subsequent Funding because the Capital Contribution by Clean Technologies has been used by Project Company to incur Project costs that will allow the portions of the Project for which a Grant application will be filed and for which such costs are incurred to meet the 5% “safe harbor” for Grant eligibility under the Guidance, and both Bloom and Project Company shall have used commercially reasonable efforts to satisfy this requirement;

(g) Unless an Alternative Tax Program has been elected under Section 7.5(b)(i) of the Company LLC Agreement, the Grant program has not been repealed and none of the applications for the Grant that have been filed with respect to any Systems prior to the Subsequent Funding have been rejected or denied on grounds that suggest Systems to be paid for with the Subsequent Funding are ineligible for a Grant or are eligible for a Grant that is less by more than a de minimis amount than the applied for amount, and no notification from the Treasury requesting additional information related to eligibility for a Grant with respect to any previously filed application has been received that, in each such case, has been the subject of a response that is not to the reasonable satisfaction of Investor;

(h) in the case of the portion of any Subsequent Funding Payment used to pay any [***]% Progress Payments, (i) with respect to Subsequent Fundings for the first 58 Systems, Investor has received confirmation that the amount of loan proceeds from the Lenders pursuant to the manner of calculation set forth in the Base Case Model have either been funded to the Project Company or the administrative agent under the Credit Agreement has in writing confirmed to the Investor that all conditions precedent to such funding have been satisfied or waived and the Lenders are prepared to make such funding contemporaneous with Project Company’s drawdown of such Progress Contribution from the Company and (ii) with respect to Subsequent Fundings for the remaining Systems, Investor has received confirmation that the loan proceeds agreed to in writing by the parties hereto and the Lenders and then reflected in an updated Base Case Model have either been funded to the Project Company or the administrative agent under the Credit Agreement has in writing confirmed to the Investor that all conditions precedent to such funding have been satisfied or waived and the Lenders are prepared to make such funding contemporaneous with Project Company’s drawdown of such Progress Contribution from the Company (such respective amounts of loan proceeds, the “Loan Proceeds”);

(i) No breach exists under the Bloom Guaranty or DPL Agreements and the Bloom Guaranty, the REPS Act and the Tariffs are in full force and effect and there are no pending proceedings challenging the same in any respect material to the parties hereto;

(j) Project Company has received payment under the QFCP-RC Tariff and the PJM Agreements for all sales of energy, capacity, ancillary services and environmental attributes up to the date of the Subsequent Funding as well as reimbursement for fuel in accordance with the DPL Agreements (except, in each case, for amounts for which payment is not yet due);

[***] Confidential Treatment Requested

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(k) The Initial Funding Payment, any prior Subsequent Funding Payments and any prior CT Funding Amounts have been contributed by Company to Project Company in accordance with the Company LLC Agreement, and not more than $20,000,000 of such amount is unspent by Project Company;

(l) Investor has received evidence reasonably satisfactory to Investor that, with respect to any Funding related to Systems beyond the first IOMW of Portfolio capacity, Bloom is manufacturing such Systems in Delaware;

(m) Project Company (i) has entered into all PJM Agreements, DPL Agreements and all other agreements and made all filings and other arrangements necessary for the transmission, interconnection and delivery of the Portfolio’s energy to the PJM Grid and {ii) shall be a PJM member (or shall have contracted with a market participant in PJM to perform its PJM obligations and such market participant shall have entered into all required PJM Agreements and shall be in compliance therewith);

(n) Project Company has obtained all necessary authorizations from FERC to sell the Portfolio’s energy at market-based rates as contemplated by the QFCP-RC Tariff (the “MBR Authority”), and is in compliance with such authorization; provided, however, that any proposed market-based rate filing shall be provided to Investor at least 30 days in advance of such filing;

(o) Project Company is an Exempt Wholesale Generator

(p) Investor has received from Project Company all reports and notices produced or received by Project Company in accordance with the Tariffs at least 5 Business Days prior to the applicable Subsequent Funding Date;

(q) Investor has received evidence reasonably satisfactory to Investor that Bloom is proceeding to prepare a permanent facility in Delaware for manufacturing by Bloom of at least 20 MW of Systems so that all the Systems shall be considered to have been manufactured in Delaware under the REPS Act;

(r) An executed Funding Notice in the form attached to this Agreement as Exhibit I has been provided to Investor at least 5 Business Days prior to the applicable Subsequent Funding Date;

(s) The Section 203 Order has been issued;

(t) Prior to the first Funding for any System to be installed at the ·Red Lion Site, Investor has received in form and substance satisfactory to Investor (i) a system impact study for the Project interconnection for the Red Lion Site from PJM and such study does not identify any material impediments that are reasonably likely to have an adverse effect on the ability of any party hereto to execute and deliver all agreements necessary for the transmission, interconnection and delivery of the Red Lion Site Systems’ Energy to the PJM Grid by the Guaranteed Initial Delivery Date, (ii) evidence reasonably satisfactory to Investor that PJM has waived the requirement for a facilities study with respect to Red Lion Site, (iii) an executed copy of an interconnection services agreement among the Project Company, PJM and DPL with

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respect to the Red Lion Site, which agreement has been filed with FERC if required and (iv) an executed copy of a construction services agreement among the Project Company, DPL and PJM with respect to the Red Lion Site;

(u) Prior to the first Funding for any System to be installed at the Red Lion Site, Project Company has obtained all permits required (if any) under the Delaware Coastal Zone Act;

(v) Investor has received in form and substance reasonably satisfactory to Investor an executed copy of a wholesale market participation agreement among Project Company, DPL and PJM with respect to the Brookside Site;

(w) Investor has received, in form and substance reasonably satisfactory to Investor, an executed copy of an interconnection agreement between the Project Company and DPL with respect to the Brookside Site;

(x) Investor has received an executed copy of an amendment to the DDOT Site Lease, amending the term of such lease so that the term of such lease is at least 21 years commencing from the date of “commercial operation” (as defined in the QFCP-RC Tariff) of the last System to be installed at such Site;

(y) Investor has received an executed copy of the Gas Service Agreement between the Project Company and DPL required pursuant to the Gas Tariff; and

(z) Clean Technologies shall make a Capital Contribution to the Company in an amount equal to the CT Funding Amount prior to, or simultaneously with, the Subsequent Funding by Investor.

2.8 Conditions Precedent to the Obligations of Clean Technologies at Each Subsequent Funding. The obligation of Clean Technologies to consummate any Subsequent Funding will be subject to the fulfillment by Investor, on or before the applicable Subsequent Funding Date, of each of the following conditions (any or all of which may be waived in whole or in part by Clean Technologies in its sole discretion):

(a) confirmation that all conditions precedent in Sections 2.6 continue to be satisfied;

(b) each of the representations and warranties of Investor in Section 3.3 is (i) true and correct in all material respects as of such Funding Date, except to the extent that any such representation or warranty shall have been expressly made only as of an earlier date in which case such representation and warranty was true and correct in all material respects as of such earlier date or (ii) if and to the extent such representations and warranties are qualified by the words “material,” “Material Adverse Effect” or similar qualification, true and correct, as qualified, as of such Funding Date (or such earlier date, as applicable);

(c) Investor shall deliver to Clean Technologies a certificate from an authorized officer dated as of such Funding Date to the effect that the conditions set forth in Section 2.8(b) have been satisfied; and

(d) no breach exists under the Credit Suisse Guaranty, and the Credit Suisse Guaranty is in full force and effect.

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ARTICLE 3

REPRESENTATIONS AND WARRANTIES

3.1 Representations and Warranties of Clean Technologies on the Execution Date and the Initial Funding Date. Clean Technologies represents and warrants lo Investor as of (i) the Execution Date (except with respect to clauses (e), (f), (i)(ii) and (k)(ii)of this Section 3.1), and (ii) the Initial Funding Date (except with respect to clauses (i)(i) and (k)(i) of this Section 3.1), in each case as follows:

(a) Organization, Good Standing, Etc. Each of Clean Technologies, the Company and the Project Company is a limited liability company duly formed, validly existing and in good standing under the laws of its state of formation. Bloom is a corporation duly formed, validly existing and in good standing under the laws of the State of Delaware. Each of Clean Technologies, the Company and the Project Company has the limited liability company power and authority to own, lease and operate its properties and to carry on its business as being conducted on the date hereof in each jurisdiction where the character of its property or nature of its activities makes such a qualification necessary. Bloom has the corporate power and authority to own, lease and operate its properties and to carry on its business as being conducted on the date hereof in each jurisdiction where the character of its property or nature of its activities makes such a qualification necessary. Each of Bloom, Clean Technologies, the Company and the Project Company has provided Investor with true and correct copies of its organizational documents.

(b) Authority. Each of Clean Technologies, the Company and the Project Company has the limited liability company power and authority to enter into this Agreement and the other Transaction Documents to which it is a party, to perform its obligations hereunder and thereunder, and to consummate the transactions contemplated hereby or thereby. Bloom has the corporate power and authority to enter into any Transaction Documents to which it is a party, to perform its obligations thereunder, and to consummate the transactions contemplated thereby. The execution and delivery by Clean Technologies, the Company and the Project Company of this Agreement and each other Transaction Document to which it is a party, and the consummation by each of them of the transactions contemplated hereunder and thereunder, have been duly authorized by all necessary limited liability company action required on their respective parts. The execution and delivery by Bloom of each Transaction Document to which it is a party, and the consummation by Bloom of the transactions contemplated thereunder, have been duly authorized by all necessary corporate action required on its part. Each of Bloom, Clean Technologies, the Company and the Project Company has duly executed and delivered each Transaction Document to which it is a party. This Agreement (assuming due authorization, execution and delivery by Investor) constitutes, and upon execution and delivery by Bloom, Clean Technologies, the Company and the Project Company of the other Transaction Documents to which it is respectively a party, the Transaction Documents will constitute, the valid and binding obligations of each of Bloom, Clean Technologies, the Company and the Project Company, respectively, enforceable against each of them in all material respects in accordance with their respective terms, subject as to enforceability to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting enforcement of creditors’ rights and remedies generally and to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).

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(c) No Conflicts. The execution and delivery by Bloom, Clean Technologies, the Company and the Project Company, as applicable, of this Agreement and the other Transaction Documents to which it is a party do not, and the performance by each of Bloom, Clean Technologies, the Company and the Project Company of its obligations hereunder and thereunder will not, (i) violate or require any filing or notice (that has not been filed or made) under any Applicable Law applicable to Bloom, Clean Technologies, the Company or the Project Company, (ii) conflict with or cause a breach of any provision in the certificate of incorporation, bylaws or other organizational document of Bloom or the certificate of formation, limited liability company agreement or other organizational document of Clean Technologies, the Company or the Project Company, as applicable or (iii) cause a breach of, constitute a default under, cause the acceleration of, create in any party the right to accelerate, terminate, modify or cancel, or require any authorization, consent, waiver or approval under any contract, license, instrument, decree, judgment or other arrangement to which Bloom (as to which making this representation after the Execution Date, any of the same would reasonably be expected to have a material adverse effect on Bloom’s ability to perform its obligations under the Transaction Documents to which it is a party), Clean Technologies, the Company or the Project Company is a party or under which any of them is bound or to which any of their assets are subject (or result in the imposition of a Lien, other than Permitted Liens, upon any such assets).

(d) Absence of Litigation. There are no pending proceedings challenging the REPS Act or the Tariffs in any respect material to the parties hereto or the transactions contemplated herein. Except as listed on Schedule 3.1(d), none of Bloom, Clean Technologies, the Company or the Project Company is subject to any outstanding injunction, judgment, order, decree, ruling or charge, any pending action, litigation, suit, proceeding or investigation before or by any court, arbitrator or other Governmental Authority or, to the Knowledge of Clean Technologies, is threatened with being made a party to any action, suit, proceeding, hearing or investigation of, in, or before any Governmental Authority or before any arbitrator which making this representation after the Execution Date, would reasonably be expected to have a material adverse effect on such party’s ability to perform its obligations under the Transaction Documents to which it is a party. None of Bloom, Clean Technologies, the Company or the Project Company has received a notice of any change to either the REPS Act or the Tariffs and to the Knowledge of Clean Technologies there has been no change to the REPS Act or the Tariffs.

(e) Ownership. Clean Technologies owns of record and beneficially, 100% of the membership interests of the Company immediately prior to the Initial Funding Date and before giving effect to the transactions contemplated by this Agreement. The Company will own of record and beneficially 100% of the membership interests in the Project Company as of the Initial Funding Date. There are no outstanding options, warrants, calls, puts, convertible securities or other contracts of any nature obligating Clean Technologies, the Company or the Project Company to issue, deliver or sell membership interests or other securities in the Company or the Project Company except as provided herein. The membership interests in the Company and the Project Company are free and clear of all Liens, except (i) for covenants, restrictions and rights of first refusal as provided under the Company LLC Agreement or

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Permitted Encumbrances and (ii) in the case of the Class A Membership Interests, if any security interest has been granted with respect to the Class A Membership Interests by the Class A Member, such security interest complies with the requirements of Section 9.5(b) of the Company LLC Agreement. The Company has no subsidiaries other than the Project Company and the Project Company has no subsidiaries. Except as provided in this Agreement and the other Transaction Documents, no Person has or will have a right to acquire an ownership interest in the Systems or Portfolio (excluding electric energy and RECs) owned or to be acquired by the Project Company. The Project Company is not a party to or otherwise subject to any legal, regulatory, or contractual restriction (other than as set forth herein or in the Company LLC Agreement) restricting the ability of the Project Company to pay dividends or make similar distributions to the Company or other holders of its respective equity interests.

(f) Valid Interests. Upon execution and delivery by Investor and Clean Technologies of the Company LLC Agreement and on the Initial Funding Date, the Class B Membership Interests will constitute a membership interest in the Company, and are being issued free and clear of any Liens except for obligations imposed on members of the Company under the Company LLC Agreement.

(g) Taxes. Except as listed on Schedule 3.1(g), each of the Company and the Project Company has filed, or caused to be filed on its behalf, all material Tax Returns required to be filed (after giving effect to any extensions that have been requested by, and granted to such party by, the applicable Governmental Authority) and has paid or caused to be paid on its behalf all material Taxes required to be paid by or with respect to the Company and the Project Company (other than those Taxes that it is contesting in good faith and by appropriate proceedings and for which adequate reserves have been set aside in accordance with GAAP). As of the Initial Funding Date, the amount of Taxes in the aggregate being contested by Clean Technologies, the Company and the Project Company is zero.

(h) Financial Statements. Included in Schedule 3.l(h) are unaudited .balance sheets of the Company and Project Company as of the Execution Date. Such balance sheets have been prepared in accordance with GAAP, and present fairly in all material respects the financial position of the Company or Project Company, as applicable, as of such date, subject to normal year-end audit adjustments and the absence of footnotes. From the date of their respective inceptions through the Execution Date, neither the Company nor the Project Company has had any income or losses. Each of the Company and the Project Company has no material liabilities or debts except those related to the development, construction, ownership or operation of the Systems and the Project Company (as applicable) which in the aggregate are zero as of the Execution Date.

(i) Compliance with Laws.

(i) As of the Execution Date, other than Environmental Laws (which are addressed in Section 3. l (k)) and other than Tax matters (which are addressed in Section 3. l (g)), each of the Company and the Project Company is in compliance with all Applicable Laws, and none of them has received written notice from a Governmental Authority of an actual or potential violation of any Applicable Laws.

(ii) As of the Initial Funding Date and each Subsequent Funding Date, other than non-compliance that would not reasonably be expected to have a Material Adverse Effect, other than Environmental Laws (which are addressed in Section 3.Hk)) and other than Tax matters (which are addressed in Section 3.l(g)), each of the Company and the Project Company is in compliance with all Applicable Laws, and none of them has received written notice from a Governmental Authority of an actual or potential violation of any Applicable Laws.

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(j) Governmental Approvals and Filings. No Governmental Approval of or filing with any Governmental Authority is required to be obtained or made by Bloom, Clean Technologies, the Company or the Project Company for the execution, delivery and performance by Bloom, Clean Technologies, the Company or the Project Company of any Transaction Document to which it is a party or the consummation of the transactions contemplated therein, other than (i) filings or approvals as set forth on Schedule 3.l(j) and (ii) any other Governmental Approval or filings that have been obtained or are ministerial in nature or can reasonably be expected to be obtained or made in the ordinary course on commercially reasonable terms and conditions when needed, and each such Governmental Approval that has been obtained and remains necessary is in full force and effect.

(k) Environmental Matters.

(i) As of the Execution Date, (i) each of the Company and the Project Company is and at all times has been in compliance with all Environmental Laws, other than as set forth on Schedule 3.1(k), and (ii) none of Bloom, Clean Technologies, the Company or the Project Company has received written notice from any Governmental Authority of an actual or potential violation of, or liability under, any Environmental Laws.

(ii) As of the Initial Funding Date and each Subsequent Funding Date, (i) each of the Company and the Project Company is and at all times has been in compliance with all Environmental Laws, other than any failures to comply that would not reasonably be expected to have a Material Adverse Effect, and (ii) none of Bloom, Clean Technologies, the Company or the Project Company has received written notice from any Governmental Authority of an actual or potential violation of, or liability under, any Environmental Laws.

(l) Permits. Schedule 3.1(l) sets forth all material Government Approvals necessary for the construction, operation, ownership and maintenance of the Systems owned or to be acquired by the Project Company. There are no other Government Approvals necessary other than those that are ministerial in nature or can reasonably be expected to be obtained on commercially reasonable terms and conditions when needed.

(m) Insurance. Schedule 3.l(m) lists all of the insurance maintained by, or for the benefit of, the Project Company. None of Clean Technologies, the Company or the Project Company has taken any action that has rendered such insurance unenforceable.

(n) Real Property. The Company neither owns nor leases any real property. The Project Company owns no fee simple real property. Schedule 3.l(n) lists all Site Leases and easements or rights of way for transmission lines from the Site Leases to the Interconnection

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Point (or Delivery Point (as defined in the QFCP-RC Tariff), as applicable}with the PJM Grid and identifies any material reciprocal easement or operating agreements relating thereto. The Project Company has good and valid title to the leasehold estates in each Site, in each case free and clear of all Liens, except Permitted Liens. As of the Execution Date, the Project Company shall have, peaceful and undisturbed possession under all the Site Leases, such leases are valid and in full force and effect and binding and enforceable in accordance with their respective terms; and there is not, under any of such leases, any existing default, event of default or event which with notice or lapse of time or both would constitute a default. None of the rights of the Project Company under any of Site Leases will be subject to termination or modification as a result of the consummation of the transactions contemplated by this Agreement.

(o) Personal Property. The Company owns no personal property other than all of the-membership interests in the Project Company and the bank accounts set forth on Schedule 3.l(o). Except as set forth on Schedule 3.l(o), the Project Company does not own any material personal property other than the type of assets which the Project Company is expected to own or possess in order to perform under the Transaction Documents.

(p) Liens. All assets owned by the Company and by the Project Company are free and clear of all Liens, other than Permitted Liens, and except as shown on Schedule 3.l(p).

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(q) Material Contracts. Schedule 3.l(g) lists all Material Contracts (other than the Transaction Documents) to which the Company or the Project Company is a party and each such Material Contract, and each Transaction Document, has not been amended, terminated or otherwise modified except as set forth on such schedule. Each Material Contract listed in Schedule 3.1(q), and each Transaction Document, is in full force and effect and is binding on the Company or the Project Company, as applicable, and on the other parties thereto, except as enforceability may be limited by applicable bankruptcy and similar laws affecting the enforcement of creditors’ rights and general equitable principles. Except as shown on Schedule 3.l(g), none of Bloom, the Company, the Project Company or, to the Knowledge of Clean Technologies, any applicable counterparty, is in default under any Material Contract or any Transaction Document.

(r) Employee Matters. Neither the Company nor the Project Company has any employees or has maintained, sponsored, administered or participated in any employee benefit plan or arrangement, including any employee benefit plan subject to ERISA.

(s) Affiliate Transactions. Except for the Transaction Documents and those documents listed on Schedule 3.1(s), there are no existing contracts between the Company or the Project Company, on the one hand, and Clean Technologies or any Affiliate of Clean Technologies, on the other hand. Neither the Company nor the Project Company has any outstanding debt to an Affiliate thereof, other than with respect to the amounts owed for Systems purchased under the MESPA.

(t) Tax Character. The Project Company is, and since its respective date of formation has been, a “disregarded entity” for federal and other applicable income tax purposes.

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Immediately prior to the Initial Funding only, the Company is a “disregarded entity” for federal and other applicable income tax purposes. Immediately prior to the Initial Funding, Clean Technologies is a “disregarded entity” for federal and other applicable income tax purposes that is wholly-owned by Bloom, which is a corporation for federal and other applicable income tax purposes. No elections have been filed with the IRS to treat Clean Technologies, the Company or the Project Company as an association. No private letter ruling will be obtained for the transactions contemplated hereunder from the IRS.

(u) FPA. As of the Execution Date and prior to receiving MBR Authority, the Project Company is not subject to regulation as a “public utility” under the FPA. As of the date on which FERC issues an order granting the Project Company MBR Authority, Project Company will be subject to regulation as a “public utility” under the FPA.

(v) PUHCA.

(i) At the time that the Systems commence the generation of electric energy for sale, the Company will be a “holding company” under PUHCA and FERC’s regulations thereunder solely with respect to its ownership of the Project Company, and will not be subject to, or will be exempt from, the accounting, record retention and reporting requirements of FERC’s regulations under PUHCA.

(ii) The Project Company is not, and, following the commencement of the generation of electric energy for sale by the Systems, will not be a “holding company” under PUHCA and FERC’s regulations thereunder, and the Project Company is not, and, following the commencement of the generation of electric energy for sale by the Systems, will not be subject to regulation under PUHCA except with respect to regulations applicable to Exempt Wholesale Generators.

(w) State Utility Regulation. Neither the Company nor the Project Company is subject to regulation as a “retail electricity supplier,” an “electric supplier” or a “public utility” under the laws of the State of Delaware.

(x) Acknowledgement. Clean Technologies, the Company and the Project Company, acknowledge that, except with respect to the representations and warranties expressly made by Investor in this Agreement and the Transaction Documents, Investor has not made any representations or warranties, either express or implied, under this Agreement or any of the other Transaction Documents or otherwise, nor has any of Clean Technologies, the Company or the Project Company relied on any representation or warranty not expressly made in this Agreement or the Transaction Documents.

(y) Intellectual Property. Bloom has full legal title and ownership or right to use, the patents, patent rights, other patent applications, permits, licenses, trade secrets, trademarks, trademark rights, service marks, trade names or trade name rights or franchises, domain names, copyrights, inventions and intellectual property rights (the “IP Rights”) necessary to conduct its Systems-related business as now operated and the business proposed to be operated in connection with the Transaction Documents. Bloom has full legal title and ownership of the patents and patent applications listed on Schedule 3.1(y). Schedule 3.l(y)

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contains a complete list of patents and pending and provisional patent applications of Bloom. Neither Clean Technologies nor Bloom has any reason to believe, and neither Bloom nor any of its Affiliates has received any notice (which is material to Bloom’s or its Affiliates’ ability to perform their obligations under the Transaction Documents) that the conduct of its Systems-related business as now operated and the business proposed to be operated in connection with the Transaction Documents conflicts with, violates, infringes upon or misappropriates, or will conflict with, infringe upon or misappropriate, the valid IP Rights of any other Person. Except for the agreements listed in Schedule 3.l(y), Bloom has not entered into any new license agreements or other agreements whereby it has transferred, assigned or encumbered any part of its IP Rights or any IP Rights received from third parties, since July 9, 2010. Bloom has not entered into any new government contracts concerning IP Rights, or provided any proposals to any Governmental Authority (including; without limitation, the U.S. Department of Defense) concerning IP Rights, since July 9, 2010.

(z) Disclosure. None of the statements, documents, certificates or other items prepared or supplied by Bloom, Clean Technologies, the Company, the Project Company or any of their Affiliates with respect to the transactions contemplated hereby, taken as a whole, contains an untrue statement of a material fact or omits to state a material fact necessary to make the statements contained therein not misleading in light of the circumstances under which such statements were made.

(aa) Disqualified Person. Assuming Investor is not a Disqualified Person, neither Clean Technologies, the Company nor the Project Company is a Disqualified Person.

(bb) Systems. As of the date on which a System is delivered to the Project Company under the MESPA, none of the following activities has been completed with respect to such System: (1) obtaining the necessary licenses and permits for the operation of the System and sale of power generated by the System, (2) completion of critical tests necessary for proper operation of such System, (3) synchronization of such System onto the electric distribution and transmission system of the relevant utility, and (4) the commencement of daily operation of such System.

(cc) Separateness. The Company and the Project Company have at all times and in all respects been maintained as separate and distinct entities.

(dd) IE Report. All of the statements, documents, certificates, information or other items provided by Bloom, Clean Technologies, the Company, the Project Company or any of their Affiliates to the Independent Engineer in connection with the preparation of the Independent Engineer Report are true and accurate in all material respects and do not omit to state a material fact necessary to make the statements contained therein not misleading in light of the circumstances under which such statements were made.

(ee) Grant Safe Harbor. Each portion of the Project for which a Grant application will be filed will contain equipment or Systems purchased pursuant to the bill of sale and agreement between Bloom and the Project Company effective as of December 30, 2011 in an amount equal to at least 5% of the estimated total cost of such portion of the Project.

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(ff) Systems Requirements. (i) None of the Systems has been Placed in Service and (ii) the Systems to be purchased with proceeds of the Initial Funding Payment meet the requirements of Section 48 of the Code including that (A) each System has an electricity-only generation efficiency greater than 30 percent, (B) the Grant or any Alternative Tax Program (if elected pursuant to Section 7.5(b)(i) of the Company LLC Agreement) with respect to each System is not expected to be limited by Section 48(c)(l)(B); but if the Grant or any Alternative Tax Program is so limited, such limitation has been accounted for in computing the amount of Investor’s Capital Contribution as described in Section 2.2 hereof; and (C) each System is a “fuel cell power plant” within the meaning of Section 48(c)(l) of the Code.

(gg) Letter Agreement. Bloom is in compliance with the Letter Agreement (including, if so required by the State of Delaware, posting the security referred to in the Letter Agreement upon or prior to the Commencement of Operation of the first System).

(hh) Red Lion Site. There are no impediments that are reasonably likely to have a material adverse effect on the ability of any party hereto to establish transmission, interconnection and delivery of the Red Lion Site Systems’ Energy to the PJM Grid by the Guaranteed Initial Delivery Date.

3.2 Representations and Warranties of Clean Technologies on each Subsequent Funding Date. Clean Technologies (i) makes each of the representations and warranties in Section 3.1 (except for those provided in clauses (e), (f) and (ff)) to Investor as of, and shall deliver any updates to the Schedules in connection therewith at least five (5) days prior to each Subsequent Funding Date; provided that no representation in Section 3.1(y) shall be made on any Subsequent Funding Date with respect to the Systems-related business “as now operated” or as to any matter described on Schedule 3.1(y) and (ii) represents and warrants to Investor as of each Subsequent Funding Date as follows:

(a) Commencement of Operations. For any Systems for which Subsequent Funding Payments are sought to pay the [***]% Progress Payments for such Systems, such Systems have achieved Commencement of Operations (as defined in the MESPA); and

(b) System Requirements. (i) Solely with respect to the portion of any Subsequent Funding Payment used to pay any [***]% Progress Payments, none of the Systems to be purchased with the proceeds of such Subsequent Funding Payment has been Placed in Service, (ii) solely with respect to the portion of any Subsequent Funding Payment used to pay any [***]% Progress Payments, the Systems to be purchased with the proceeds of such Subsequent Funding Payment have achieved Commencement of Operations (as defined in the MESPA) and (iii) that the Systems to be purchased with proceeds of the Subsequent Funding Payment meet the requirements of Section 48 of the Code including that (A) each System has an electricity-only generation efficiency greater than 30 percent, (B) the Grant or any Alternative Tax Program (if elected pursuant to Section 7.5(b)(i) of the Company LLC Agreement) with respect to each System is not expected to be limited by Section 48(c)(l )(B), but if the Grant or any Alternative Tax Program is so limited, such limitation has been accounted for in computing the amount of Investor’s Capital Contribution as described in Section 2.2 hereof; and (C) each System, is a “fuel cell power plant” within the meaning of Section 48(c)(l) of the Code.

[***] Confidential Treatment Requested

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3.3 Representations and Warranties of Investor on the Execution Date and the Initial Funding Date. Investor represents and warrants to Clean Technologies on the Execution Date and the Initial Funding Date as follows:

(a) Organization, Good Standing, Etc. It is a corporation duly incorporated, validly existing and in good standing under the laws of the jurisdiction of its incorporation, and has the corporate power and authority to own, lease and operate its properties and to carry on its business as being conducted on the date hereof in each jurisdiction where the character of its property or nature of its activities makes such a qualification necessary.

(b) Authority. It has the requisite power and authority to enter into the Transaction Documents to which it is a party, to perform its obligations under such agreements, and to consummate the transactions contemplated therein. The execution and delivery by it of each Transaction Document to which it is a party, and the consummation by it of the transactions contemplated thereunder, have been duly authorized by all necessary company action. Each such Transaction Document has been duly executed and delivered by it. This Agreement (assuming due authorization, execution and delivery by Clean Technologies, the Company and the Project Company) constitutes, and upon execution and delivery by Investor of the other Transaction Documents to which it is a party, the Transaction Documents will constitute, the valid and binding obligations of Investor, enforceable against it in accordance with their respective terms, subject as to enforceability to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting enforcement of creditors’ rights and remedies generally and to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).

(c) No Conflicts. The execution and delivery by Investor of the Transaction Documents to which it is a party do not, and the performance by it of its obligations under such agreements will not, (i) violate any Applicable Law, (ii) conflict with or cause a breach of any provision in the charter, bylaws or other organizational document of Investor, (iii) cause a breach of, constitute a default under, cause the acceleration of, create in any party the right to accelerate, terminate, modify or cancel, or require any authorization, consent, waiver or approval under any contract, license, instrument, decree, judgment or other arrangement to which Investor is a party or under which it is bound or to which any of its assets is subject (or result in the imposition of a Lien upon any such assets), except (in the case of clause (i) and (iii) of this Section 3.3(c)) for any that would not reasonably be expected to have a material adverse effect on the ability of Investor to execute and deliver and perform its obligations under the Transaction Documents to which it is a party.

(d) Absence of Litigation. It is not subject to any outstanding injunction, judgment, order, decree, ruling or charge or, to Investor’s knowledge, is not threatened with being made a party to any action, suit, proceeding, hearing or investigation of, in, or before any Governmental Authority or before any arbitrator that would adversely affect its ability to complete the transactions contemplated in the Transaction Documents to which it is a party.

(e) Accredited Investor. It is an “Accredited Investor” as such term is defined in Regulation D under the Securities Act of 1933, as amended (the “Securities Act”). It has had a reasonable opportunity to ask questions of and receive answers from Clean Technologies and its

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Affiliates concerning Clean Technologies, the Class B Membership Interests, the Company and the Project Company. Investor understands that the Class B Membership Interests have not been registered under the Securities Act in reliance on an exemption therefrom, and that Clean Technologies is under no obligation to register the membership interests. Investor will not sell, hypothecate or otherwise transfer the membership interests without registering or qualifying them under the Securities Act and applicable state securities laws or any other Applicable Laws unless the transfer is exempted from registration or qualification under such laws. Investor is acquiring the Class B Membership Interests for its own account and not for the account of any other Person and not with a view to distribution or resale to others.

(f) Information and Investment Intent. Investor recognizes that investment in the Class B Membership Interests involves substantial risks. It acknowledges that any financial projections that may have been provided to it are based on assumptions of future operating results based on assumptions about certain events (many of which are beyond the control of Clean Technologies, the Company or the Project Company). It understands that no assurances or representations can be given that the actual results of the operations of Clean Technologies, the Company or the Project Company will conform to the projected results for any period. Investor has relied solely on its own legal, tax and financial advisers for its evaluation of an investment in the Class B Membership Interests and not on the advice of Clean Technologies, the Company or the Project Company or any of their respective legal, tax or financial advisers.

(g) Acknowledgement. Except with respect to the representations and warranties expressly made by Clean Technologies, the Company or the Project Company in this Agreement or the other Transaction Documents, Investor acknowledges that none of Clean Technologies, the Company or the Project Company has made any representation or warranty, nor has Investor relied on any representation or warranty, with respect to Investor’s, the Company’s or the Project Company’s eligibility to claim tax credits or receive the Grant, RECs or other environmental attributes, the depreciation allowances for the Systems, whether the Systems qualify for tax credits or the Grant, or the eligibility of any Member to receive an allocation of such benefits from the Company, and Investor agrees that it will not bring any claim against Clean Technologies, the Company or the Project Company relating to Investor’s, the Company’s or the Project Company’s eligibility to claim tax credits or receive the Grant (except in connection with a breach by Clean Technologies, the Class A Member, the Managing Member, the Company or the Project Company of this Agreement or of its respective obligations under the Company LLC Agreement or the Project Company LLC Agreement that prevent eligibility for the Grant), RECs or other environmental attributes. Investor specifically acknowledges that, except with respect to the representations and warranties expressly made by Clean Technologies, the Company or the Project Company in this Agreement or the Transaction Documents, no representation or warranty has been made, and that Investor has not relied on any representation or warranty about the accuracy of any projections, estimates or budgets, future revenues, future results from operations, future cash flows, the future condition of the Systems or any assets of the Project Company, the future financial condition of the Project Company.

(h) PUHCA. It either is not a holding company under PUHCA or, if it is a holding company, is exempt from FERC access to books and records regulation pursuant to Section 366.3(a) of FERC’s regulations under PUHCA.

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(i) FPA. It is not a “public utility” under the FPA, and does not have any non- passive ownership interests in any entity that owns or controls electricity generation or transmission facilities in the U.S.

(j) Disqualified Person. It is not a Disqualified Person.

3.4 Representations and Warranties of Investor on each Subsequent Funding Date. Investor makes each of the representations and warranties in Section 3.3 to Clean Technologies on and as of each Subsequent Funding Date.

ARTICLE 4

CERTAIN COVENANTS

4.1 Confidentiality. The confidentiality provisions contained in the Letter of Intent dated September 14, 2011 among Bloom, Credit Suisse Securities (USA) LLC and HSBC Securities (USA) Inc. shall remain in effect until the Initial Funding Date (other than with respect to any obligations of HSBC Securities (USA) Inc. which shall not be affected hereby), if it occurs, and, thereafter, the provisions of Section 11.12 of the Company LLC Agreement shall apply with respect to the confidentiality obligations of the Parties. If the Initial Funding Date does not occur, the confidentiality provisions contained in the Letter of Intent dated September 14, 2011 among Bloom, Credit Suisse Securities (USA) LLC and HSBC Securities (USA) Inc. shall remain in effect in accordance with its terms.

4.2 Access to Information. From the date hereof and continuing until the earlier of the termination of this Agreement or the Initial Funding Date, Clean Technologies, on not less than three Business Days prior written notice by Investor to Clean Technologies, will (i) give Investor’s counsel, financial advisors, auditors and other authorized representatives reasonable access during normal business hours to the offices, properties, employees and personnel, books and records of the Company and the Project Company and (ii) furnish to Investor’s counsel , financial advisors, auditors, and other authorized representatives such financial and operating data and other information as such persons may reasonably request, and (iii) instruct Clean Technologies’ employees to cooperate with Investor in an investigation of the business of the Company and the Project Company, it being acknowledged and agreed that Investor shall use good faith efforts to coordinate the processes described in the foregoing clauses (i), (ii) and (iii). All information supplied to Investor pursuant to this Section 4.2 shall be held in confidence by Investor, its counsel, financial advisors, auditors and other authorized representatives in accordance with the provisions of Section 4.1.

4.3 Regulatory Matters. From the date hereof and continuing until the earlier of the termination of this Agreement and the Initial Funding Date, or to the extent relating to Subsequent Funding, the Subsequent Funding Date:

(a) In connection with the transactions contemplated by this Agreement , Clean Technologies shall cause the Company to cause the Project Company to file (i) any application required to be filed by it with FERC pursuant to Section 203 of the FPA, (ii) any applications, reports or other filings required under any state or local Applicable Laws relating to the ownership and control of the Systems by the Project Company, and (iii) any further filings that may be necessary, proper or advisable in connection with the matters referred to in clauses (i) and (ii) above. Each of Clean Technologies and Mehetia shall make their respective required filings under any other Applicable Laws.

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(b) In connection with the transactions contemplated by this Agreement, Clean Technologies and Investor shall, and shall cause their respective Subsidiaries to: (i) cooperate with each other in connection with the making of all filings, notifications and any other material actions pursuant to this Section 4.3, including, subject to Applicable Laws, by permitting counsel for the other Parties to review in advance, and consider in good faith the views of the other Parties in connection with, any proposed written communication to any Governmental Authority addressing the terms of this Agreement or the Company LLC Agreement; (ii) furnish to the other Parties such information and assistance as such Parties may reasonably request in connection with (x) the preparation of any submissions to, or agency proceedings by, any Governmental Authority, or (y) obtaining any consents, approvals or waivers required by any Governmental Authority; and (iii) use their commercially reasonable efforts to cause the conditions to the Initial Funding in Section 2.5 (in the case of Clean Technologies) and Section 2.6 (in the case of Investor) to be satisfied and, if applicable, to cause the conditions to each Subsequent Funding in Section 2.7 (in the case of Clean Technologies) and Section 2.8 (in the case of Investor) to be satisfied.

(c) Clean Technologies shall cause the Company to cause the Project Company to file a Notice of Exempt Wholesale Generator Status prior to the installation of the first System.

(d) Nothing in this section shall (i) limit Investor’s or Clean Technologies’ right to terminate this Agreement pursuant to Section 5.1(a) so long as such Party has complied in all material respects with its obligations under this section, or (ii) require any Party to amend this Agreement or to waive or forbear from exercising any of its rights or remedies under this Agreement.

4.4 System Manufacturing. Clean Technologies shall promptly inform Investor if it or Bloom becomes aware of any substantive reason why the manufacturing of Systems in accordance with the Tariffs shall not commence, or if commenced, shall cease before 20 MW of Systems for the Project are manufactured and shipped from such Delaware facility.

4.5 Site Preparation Costs. Clean Technologies shall cause all Site Preparation Costs (as defined in the QFCP-RC Tariff) to be funded by Persons other than Investor.

ARTICLE 5

TERMINATION

5.1 Termination. Without limiting Clean Technologies’ or Investor’s ability to exercise any right or remedy to which it is entitled hereunder or under any of the Transaction Documents, this Agreement shall be terminated (in the case of clause (a)) and may be terminated (in the case of clause (b) prior to the Initial Funding Date):

(a) without further action by Clean Technologies or Investor, if the Initial Funding has not been consummated by the close of business on the Initial Funding Termination Date;

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(b) by the mutual written consent of Clean Technologies and Investor;

(c) by Investor, at any time prior to the Initial Funding Date, by written notice to Clean Technologies, if Bloom or any of its Subsidiaries becomes subject to a Bankruptcy;

(d) by Clean Technologies, at any time prior to the Initial Funding Date, by written notice to Investor, if Investor or Credit Suisse Guarantor becomes subject to a Bankruptcy; or

(e) by Investor on the one hand, or by Clean Technologies on the other hand, upon a material breach of this Agreement by the other party, provided that the non-breaching party provides notice to the breaching party setting forth the details of such breach and the breaching party fails to cure the alleged breach within 30 days after receipt of such notice.

5.2 Procedure and Effect of Termination. If this Agreement is terminated pursuant to Section 5.1, then this Agreement shall become void and of no effect with no liability on the part of any Party, except that (i) the agreements contained in Section 4.1, this Section 5.2, Article 7 and the Confidentiality Agreement shall survive the termination and (ii) no such termination shall relieve any Party of any liability or damages resulting from any breach by that Party of this Agreement or affect the rights of the other Party to indemnification for such breach pursuant to Article 6 of this Agreement (which shall survive termination hereof in the case of any breach).

ARTICLE 6

INDEMNIFICATION

6.1 Indemnification.

(a) Clean Technologies agrees to indemnify, defend and hold harmless the Investor Indemnified Parties from and against any and all Investor Indemnified Costs arising out of or relating to this Agreement; provided, however, except with respect to Investor Indemnified Costs (t) resulting from fraud or willful misconduct, (u) resulting from failure to pay any amount due to Investor Indemnified Parties under the Transaction Documents, (v) resulting from a Third Party Claim, (w) resulting from the failure to enforce a Material Contract with an Affiliate of the Indemnifying Party, (x) resulting from Project Company (or any of the Systems) not qualifying for (or becoming disqualified under) the REPS Act or the Tariffs as a result of any act or omission by Bloom or any Affiliate of Bloom (including, without limitation, (i) Bloom failing to achieve commercial operation (as defined in the QFCP-RC Tariff) of 5 MW of Systems by March 31, 2013 (unless such date has been extended in accordance with the QFCP-RC Tariff), (ii) Bloom failing to achieve commercial operation (as defined in the QFCP-RC Tariff) of 30 MW of Systems, of which at least 20 MW of Systems were actually manufactured by Bloom in the State of Delaware by September 30, 2014 (unless such date has been extended in accordance with the QFCP-RC Tariff), (iii) Bloom failing to be manufacturing fuel cells capable of being powered by renewable fuels from a permanent manufacturing facility located in the State of Delaware as of the date of Commencement of Operations (as defined in the MESPA) of the full

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nameplate capacity of the Portfolio, or (iv) any of the acts or omissions set forth in Section 4.3 of the MESPA), (y) resulting from Bloom failing to be in compliance with the Letter Agreement (including, if so required by the State of Delaware, posting the security referred to in the Letter Agreement upon or prior to the Commencement of Operation of the first System) or (z) resulting from any surcharges pursuant to the Tariffs being deemed a tax under Delaware law, in no event will Clean Technologies’ aggregate obligation (including any prior indemnity payments by Clean Technologies under this Agreement or under the Company LLC Agreement) to indemnify the Indemnified Parties hereunder exceed one hundred percent (100%) of the sum of the Funding Payments of Investor made to date.

(b) Investor agrees to indemnify, defend and hold harmless the Clean Technologies Indemnified Parties from and against any and all Clean Technologies Indemnified Costs arising out of or relating to this Agreement; provided, however, except with respect to Clean Technologies Indemnified Costs (w) resulting from fraud or willful misconduct, (x) resulting from failure to pay any amount due to Clean Technologies Indemnified Parties under the Transaction Documents, (y) resulting from a Third Party Claim or (z) resulting from the failure to enforce a Material Contract with an Affiliate of the Indemnifying Party, in no event will Investor’s aggregate obligation (including any prior indemnity payments by Investor under this Agreement or under the Company LLC Agreement) to indemnify the Clean Technologies Indemnified Parties hereunder exceed one hundred percent (100%) of the sum of the Funding Payments of Investor made to date.

(c) Other than with respect to Indemnified Costs resulting from Third Party Claims, no claim for indemnification may be made with respect to any Indemnified Costs until the aggregate amount of such costs for which indemnification is (or previously has been) sought by the Indemnified Party under all Transaction Documents exceeds $[***] and once such threshold amount of claim has been reached, the relevant Indemnified Party and its Affiliates shall have the right to be indemnified only to the extent the amount of Indemnified Costs claimed exceed such threshold amount. Claims for indemnification under this Agreement and the other Transaction Documents shall not be duplicative of one another and shall not allow for duplicative recoveries.

6.2 Direct Claims. In any case in which an Indemnified Party seeks indemnification under Section 6.1 that is not subject to Section 6.3 because no Third Party Claim is involved, the Indemnified Party shall promptly notify the Indemnifying Party in writing of any amounts that the Indemnified Party claims are subject to indemnification under the terms of this Article 6. The failure of the Indemnified Party to exercise promptness in such notification shall riot amount to a waiver of such claim, except for the extent the resulting delay materially and adversely prejudices the position of the Indemnifying Party with respect to such claim.

6.3 Third Party Claims. An Indemnified Party shall give written notice to the Indemnifying Party within 10 days after it has actual knowledge of commencement or assertion of any Third Party Claim in respect of which the Indemnified Party may seek indemnification under Section 6.1. Such notice shall state the nature and basis of such Third Party Claim and the events and the amounts thereof to the extent known. Any failure to so notify the Indemnifying Party shall not relieve the Indemnifying Party from any liability that the Indemnifying Party may have to the Indemnified Party under this Article 6, except to the extent the failure to give such

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notice materially and adversely prejudices the Indemnifying Party. In case any such action, proceeding or claim is brought against an Indemnified Party, so long as it has acknowledged in writing to the Indemnified Party that it is liable for such Third Party Claim pursuant to this Section 6.3, the Indemnifying Party shall be entitled to participate in and, unless in the reasonable judgment of the Indemnified Party a conflict of interests between it and the Indemnifying Party may exist in respect of such Third Party Claim or such Third Party Claim entails a material risk of criminal penalties or civil fines or non monetary sanctions being imposed on the Indemnified Party or a risk of materially adversely affecting the Indemnified Party’s business (a “Third Party Penalty Claim”), to assume the defense thereof, with counsel selected by the Indemnifying Party and reasonably satisfactory to the Indemnified Party, and after notice from the Indemnifying Party to the Indemnified Party of its election so to assume the defense thereof, the Indemnifying Party shall not be liable to the Indemnified Party for any legal or other expenses subsequently incurred by the latter in connection with the defense thereof other than reasonable costs of investigation or defending such portion of such Third Party Penalty Claim; provided nothing contained herein shalt permit Clean Technologies to control or participate in any Tax contest or dispute involving Investor or any Affiliate of Investor, or permit Investor to control or participate in any Tax contest or dispute involving any Affiliate of Clean Technologies other than the Company and the Project Company; and, provided, further, the Parties agree that the handling of any Tax contests involving the Company will be governed by Section 7.7 of the Company LLC Agreement. In the event that (i) the Indemnifying Party advises an Indemnified Party that the Indemnifying Party will not contest a claim for indemnification hereunder, (ii) the Indemnifying Party fails, within 30 days of receipt of any indemnification notice to notify, in writing, such Indemnified Party of its election, to defend, settle or compromise, at its sole cost and expense, any such Third Party Claim (or discontinues its defense at any time after it commences such defense) or (iii) in the reasonable judgment of the Indemnified Party, a conflict of interests between it and the Indemnifying Party exists in respect of such Third Party Claim or the action or claim is a Third Party Penalty Claim, then the Indemnified Party may, at its option, defend, settle or otherwise compromise or pay such action or claim or Third Party Claim in each case, at the sole cost and expense of the Indemnifying Party. In any event, unless and until the Indemnifying Party elects in writing to assume and does so assume the defense of any such claim, proceeding or action, the Indemnifying Party shall be liable for the Indemnified Party’s reasonable costs and expenses arising out of the defense, settlement or compromise of any such action, claim or proceeding. The Indemnified Party shall cooperate to the extent commercially reasonable with the indemnifying Party in connection with any negotiation or defense of any such action or claim by the Indemnifying Party. The Indemnifying Party shall keep the Indemnified Party fully apprised at all times as to the status of the defense or any settlement negotiations with respect thereto. If the Indemnifying Party elects to defend any such action or claim, then the Indemnified Party shall be entitled to participate in such defense with counsel of its choice at its sole cost and expense unless otherwise specified herein; provided that any such participation of the Indemnified Party shall be at the Indemnifying Party’s sole cost and expense to the extent such participation relates to a Third Party Penalty Claim. If the Indemnifying Party does not assume such defense, the Indemnified Party shall keep the Indemnifying Party apprised at all times as to the status of the defense; provided, however, that the failure to keep the Indemnifying Party so informed shall not affect the obligations of the Indemnifying Party hereunder. The Indemnifying Party shall not be liable for any settlement of any action, claim or proceeding effected without its written consent; provided,

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however, that the Indemnifying Party shall not unreasonably withhold, delay or condition any such consent. Notwithstanding anything in this Section 6.3 to the contrary, the Indemnifying Party shall not, without the Indemnified Party’s prior written consent, (i) settle or compromise any claim or consent to entry of judgment in respect thereof which involves any condition other than payment of money by the Indemnified Party, (ii) settle or compromise any claim or consent to entry of judgment in respect thereof without first demonstrating to Indemnified Party the ability to pay such claim or judgment, or (iii) settle or compromise any claim or consent to entry of judgment in respect thereof that does not include, as an unconditional term thereof, the giving by the claimant or the plaintiff to the Indemnified Party, a full and complete release from all liability in respect of such claim.

6.4 No Duplication. Any liability for indemnification under this Article 6 shall be determined without duplication of recovery. Without limiting the generality of the prior sentence, if a statement of facts, condition or event constitutes a breach of more than one representation, warranty, covenant or agreement which is subject to the indemnification obligation in Section 6.1, only one recovery of Indemnified Costs per Indemnified Party shall be allowed.

6.5 Sole Remedy. Except in the case of fraud, willful misconduct or failure to pay, and except for claims brought under Section 6.6, Section 6.7, Section 6.8, Section 6.9 or Section 9.12 of the Company LLC Agreement, the enforcement of the claims of the Parties under this Article 6 are the sole and exclusive remedies that a Party shall have under this Agreement or any other Transaction Document for the recovery of Indemnified Costs; provided, however, that notwithstanding anything to the contrary in this Agreement, each Party hereby reserves all equitable remedies.

6.6 Survival. All representations, warranties, covenants and obligations made or undertaken by a Party in this Agreement or in any other Transaction Document are material, have been relied upon by the other Parties and shall survive until the final date for any assertion of claims as forth in Section 6.7, if and as applicable, or as otherwise provided in the Transaction Documents.

6.7 Final Date for Assertion of Indemnity Claims. All claims by an Indemnified Party for indemnification pursuant to this Article 6 resulting from breaches of representations or warranties in (i) Section 3.1 and Section 3.3 shall be forever barred unless the other party is notified within eighteen (18) months after the earlier to occur of the Initial Funding Date and the Initial Funding Termination Date, and (ii) Section 3.2 or Section 3.4 shall be forever barred unless the other party is notified within eighteen (18) months after the Subsequent Funding Date on which such representation or warranty was made; provided, that notwithstanding the foregoing, the representations in Section 3.l(g), Section 3.l(t), Section 3.l(aa), Section 3.1(bb), Section 3.l(ee) and Section 3.1(ff) (and the corresponding representations made in Section 3.2), shall survive until that date which is 60 days after the applicable statute of limitations expires and the representations in Section 3.l(a), Section 3.1(b), Section 3.1(e) and Section 3.1(f) (and the corresponding representations made in Section 3.2), shall survive forever; and provided further that if written notice of a claim for indemnification has been given by an Indemnified Party on or prior to the last day of the respective foregoing period, then the obligation of the other party to indemnify such Indemnified Party pursuant to this Article 6 shall survive with respect to such claim until such claim is finally resolved.

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6.8 Mitigation and Limitations on Indemnified Costs. Notwithstanding anything to the contrary contained herein:

(a) Reasonable Steps to Mitigate. Each Indemnified Party will take, at the Indemnifying Party’s own reasonable cost and expense, all reasonable commercial steps identified by Indemnifying Party to the Indemnified Parties to mitigate all Indemnified Costs (other than any such Indemnified Costs that are Taxes), which steps may include availing itself of any defenses, limitations, rights of contribution, claims against third Persons and other rights at law or equity. The Indemnified Parties will provide such evidence and documentation of the nature and extent of the Indemnified Costs as may be reasonably requested by the Indemnifying Party.

(b) Net of Insurance Benefits. All Indemnified Costs shall be net of insurance recoveries from insurance policies of the Project Company (including under the existing title policies) to the extent that any proceeds of such policies, less any costs, expenses or premiums incurred by the Project Company in connection therewith, are distributed by the Project Company to the Company and are in tum distributed by the Company to the Indemnified Party; provided, however, such amount shall account for any costs or expenses incurred by the Indemnified Party in connection with obtaining insurance proceeds with respect to any breach or nonperformance hereunder.

(c) No Consequential Damages. Indemnified Costs shall not include, and an Indemnifying Party shall have no obligation to indemnify any Indemnified Party for or in respect of, any punitive, consequential or exemplary damages of any nature including but not limited to damages for lost profits or revenues or the loss or use of such profits or revenue, loss by reason of plant shutdown or inability to operate at rated capacity, increased operating expenses of plant or equipment, increased costs of purchasing or providing equipment, materials, labor, services, costs of replacement, power or capital, debt service fees or penalties, inventory or use charges, damages to reputation, damages for lost opportunities, or claims of the Project Company’s customers, members or affiliates, regardless of whether said claim is based upon contract, warranty, tort (including negligence and strict liability) or other theory of law unless payable by such Indemnified Party as part of a Third Party Claim; provided, however, that the lost profits or revenues (and the loss or use thereof) language set forth in this Section 6.8(c) shall not be interpreted to exclude from Indemnified Costs any damages, losses, claims, liabilities, demands charges, suits, Taxes, penalties, costs or expenses that would otherwise be included within the definition of Indemnified Costs because they result from a reduction in the profits of the Project Company, the Company, or both.

6.9 Payment of Indemnification Claims. All claims for indemnification shall be paid by Indemnifying Party in immediately available funds in U.S. dollars. Any undisputed portion of an indemnification claim shall be paid promptly by the Indemnifying Party to the Indemnified Parties involved. An Indemnifying Party may dispute any portion of an indemnification claim, provided, however, that such disputed indemnification claim shall be paid promptly by the Indemnifying Party to the Indemnified Party together with interest at a market rate upon the final determination of the payable amount of the claim (if any) by a court of competent jurisdiction.

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6.10 Repayment; Subrogation. If the amount of any Indemnified Costs, at any time after the making of an indemnity payment in respect thereof, is reduced by recovery, settlement or otherwise under any insurance coverage (excluding any proceeds from self insurance or flow through insurance policies) or under any claim, recovery, settlement or payment by or against any other entity, the amount of such reduction, less any costs, expenses or premiums incurred in connection therewith, must promptly be repaid by the Indemnified Party to the Indemnifying Party net of any Taxes imposed upon the Indemnified Party in respect of such amounts, but taking into account any Tax benefit the Indemnified Party receives as a result of such repayment. Upon making any indemnity payment (other than any indemnity payment relating to Taxes), the Indemnifying Party will, to the extent of such indemnity payment, be subrogated to all rights of the Indemnified Party against any third party, except third parties that provide insurance coverage to the Indemnified Party or its Affiliates, in respect of the Indemnified Costs to which the indemnity payment relates. Without limiting the generality or effect of any other provision hereof, each such Indemnified Party and the Indemnifying Party shall duly execute upon request all instruments reasonably necessary to evidence and perfect the above described subrogation rights, and otherwise cooperate in the prosecution of such claims at the direction of the Indemnifying Party. Nothing in this Section 6.10 will be construed to require any Party to obtain or maintain any insurance coverage.

ARTICLE 7

GENERAL PROVISIONS

7.1 Exhibits and Schedules. All Exhibits and Schedules are incorporated herein by reference.

7.2 Disclosure Schedules. Any matter disclosed in any section of the Schedules shall be deemed disclosed for all purposes and all sections of the Schedules to the extent it is readily apparent from a reading of the disclosure that such disclosure is applicable to such other sections. At any time prior to a Funding, Clean Technologies may supplement or amend a Schedule to this Agreement solely with respect to such Funding by providing such supplement or amendment to Investor at least five (5) days prior to such Funding, it being understood that should, in the opinion of Investor, any such supplement or amendment to a Schedule to this Agreement be deemed to materially adversely affect the Company, the Project Company or Investor’s investment in the Company, Investor shall have the right to withhold its Subsequent Funding Payment; provided that if Investor goes ahead and makes the Subsequent Funding Payment, the representations and warranties subject to such Schedule shall be deemed to be qualified by such Schedule as so supplemented or amended as it relates to such Subsequent Funding but not any future Subsequent Fundings.

7.3 Amendment, Modification and Waiver. This Agreement may not be amended or modified except by an instrument in writing signed by each of the Parties to this Agreement. Any failure of Clean Technologies to comply with any obligation, covenant, agreement, or condition contained herein may be waived only if set forth in an instrument in writing signed by Investor, and any failure of Investor to comply with any obligation, covenant, agreement or

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condition contained herein may be waived only if set forth in an instrument in writing signed by Clean Technologies, but any such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any other failure.

7.4 Severability. If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any rule of Applicable Law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated herein are not affected in any manner materially adverse to any Party.

7.5 Expenses. Clean Technologies and Mehetia will be responsible for paying all of their own respective reasonable legal and consultants’ costs, fees and expenses incurred by itself and its Affiliates in connection with the transactions contemplated by this Agreement and the other Transaction Documents in connection with the execution thereof and any Funding.

7.6 Parties in Interest. This Agreement shall be binding upon and, except as provided below, inure solely to the benefit of each Party and their successors and assigns, and nothing in this Agreement, express or implied, is intended to confer upon any other Person (other than the Investor Indemnified Parties as provided in Article 6) any rights or remedies of any nature whatsoever under or by reason of this Agreement.

7.7 Notices. All notices and other communications hereunder shall be in writing and shall be deemed given if delivered personally, by a nationally recognized overnight courier, by facsimile, or mailed by registered or certified mail (return receipt requested) to the Parties at the following addresses (or at such other address for a Party as shall be specified by like notice):

(a) If to Clean Technologies, to:

Clean Technologies II, LLC

c/o Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, CA 94089-1137

Attention: [***]

Telephone: [***]

Facsimile: [***]

(b) If to the Company, to:

Diamond State Generation Holdings, LLC

c/o Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, CA 94089-1137

Attention: [***]

Telephone: [***]

Facsimile: [***]

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(c) If to Project Company, to:

Diamond State Generation Partners, LLC

c/o Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, CA 94089-1137

Attention: [***]

Telephone: [***]

Facsimile: [***]

(d) If to Mehetia, to:

Mehetia Inc.

Eleven Madison Avenue

New York, NY 10010

Attention: [***]

Telephone: [***]

Facsimile: [***]

with a copy to:

Credit Suisse Securities (USA) LLC

One Madison Avenue

New York, NY 10010

Attention: [***]

Telephone: [***]

Facsimile: [***]

and with a copy, which will not constitute notice, to:

McDermott Will & Emery LLP

340 Madison Avenue

New York, NY 10173

Attention: [***]

Telephone: [***]

Facsimile: [***]

Unless otherwise provided herein, any offer, acceptance, election, approval, consent, certification, request, waiver, notice or other communication required or permitted to be given hereunder (collectively referred to as a “Notice”), shall be in writing and delivered (a) in person, (b) by registered or certified mail with postage prepaid and return receipt requested, (c) by recognized overnight courier service with charges prepaid or (d) by facsimile transmission, directed to the intended recipient at the address of such Member listed in this Section 7.7 or at such other address as any Member hereafter may designate lo the others in accordance with a Notice under this Section 7.7. A Notice or other communication will be deemed delivered on the earliest to occur of (i) its actual receipt when delivered in person, (ii) the fifth Business Day

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following its deposit in registered or certified mail, with postage prepaid, and return receipt requested, (iii) the second Business Day following its deposit with a recognized overnight courier service, (iv) the date of receipt of a facsimile or, if such date of receipt is not a Business Day, the next Business Day following such date of receipt, provided the sender can and does provide evidence of successful transmission. Any Notice or other communication received on a day that is not a Business Day or later than 5:00 p.m. on a Business Day shall be deemed to be received on the next Business Day.

7.8 Counterparts. This Agreement may be executed and delivered (including by facsimile transmission or “portable document format”) in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Party, it being understood that all Parties need not sign the same counterpart. Signatures of the Parties transmitted by facsimile or electronic mail shall be deemed to be their original signatures for all purposes.

7.9 Entire Agreement. This Agreement (together with the other Transaction Documents) constitutes the. entire agreement of the Parties and supersedes all prior agreements, letters of intent and understandings, both written and oral, among the Parties with respect to the subject matter hereof.

7.10 Governing Law; Choice of Forum; Waiver of Jury Trial. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS THEY APPLY TO CONTRACTS PERFORMED IN THAT STATE, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, WHICH SHALL APPLY TO THIS AGREEMENT). THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSNE JURISDICTION OF ANY STATE OR FEDERAL COURT IN NEW YORK COUNTY, NEW YORK WITH RESPECT TO ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WANES TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING TO A DISPUTE AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO.

7.11 Public Announcements. Except for statements made or press releases issued (i) pursuant to the Securities Act or the Securities Exchange Act of 1934, (ii) pursuant to any listing agreement with any national securities exchange or the Financial Industry Regulatory Authority, Inc., or other regulatory authority or self-regulatory authority, or (iii) as otherwise required by Applicable Law, neither Clean Technologies nor Investor shall issue, or permit any of their respective Affiliates to issue, any press release or otherwise make any public statements with respect to this Agreement or the transactions contemplated hereby without the prior written consent of the other Parties. Subject to any requirements of Applicable Law, Clean Technologies and Investor will be given the opportunity to review in advance, upon the request of Clean Technologies or Investor, as the case may be’, all information relating to the transactions contemplated by the Transaction Documents that appear in any filing made in connection with the transactions contemplated hereby or thereby, other than any filing to be made by Investor to a regulator thereof.

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7.12 Assignment. This Agreement and all of the provisions hereof will be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. This Agreement may only be assigned to the same extent (and only by and to the same Persons) that membership interests in the Company are assignable pursuant to the terms of the Company LLC Agreement. Any attempted assignment of this Agreement other than in strict accordance with this section and the terms of the Company LLC Agreement shall be null and void ab initio and of no force or effect.

7.13 Relationship of Parties. This Agreement does not constitute a joint venture, association or partnership among the Parties. No express or implied term, provision or condition of this Agreement shall create, or shall be deemed to create, an agency, joint venture, partnership or any fiduciary relationship among the Parties.

[Remainder of page intentionally left blank. Signature pages to follow.]

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IN WITNESS WHEREOF, each Party has caused this Equity Capital Contribution Agreement to be signed on its behalf as of the date first written above.

CLEAN TECHNOLOGIES II, LLC

By:

Name:

Title:

[Signature Page to the Equity Capital Contribution Agreement]

DIAMOND STATE GENERATION PARTNERS, LLC

By:

Name:

Title:

[Signature Page to the Equity Capital Contribution Agreement]

DIAMOND STATE GENERATION HOLDINGS, LLC

By:

Name:

Title:

[Signature Page to the Equity Capital Contribution Agreement]

MEHETIA INC.

By:

Name:

Title:

[Signature Page to the Equity Capital Contribution Agreement]

ANNEX 1 TO ECCA

AND COMPANY LLC AGREEMENT DEFINITIONS

“1940 Investment Company Act” means the Investment Company Act of 1940, as amended.

“[***]% Progress Payment” means, for any System, the initial payment by Project Company of [***]% of the purchase price for such System as contemplated by the MESPA.

“[***]% Progress Payment” means, for any System, the final payment by Project Company of [***]% of the purchase price for such System as contemplated by the MESPA.

“Acceptable Credit Party” means a commercial bank or other financial institution which maintains an office or corresponding office in the United States, whose long-term unsecured debt is rated “A-” or higher by S&P and “A3” or higher by Moody’s and which has a tangible net worth of at least $1,000,000,000.

“Accountant’s Certificate” means the independent accountant’s certification attesting to accuracy of all costs as required pursuant to the Guidance.

“Accounting Firm” means any of Deloitte Touche Tohmatsu, Ernst & Young, KPMG International, PricewaterhouseCoopers or any nationally-recognized Affiliate thereof, chosen by the Tax Matters Partner or otherwise reasonably approved by Class Majority Vote.

“Act” means the Delaware Limited Liability Company Act, Delaware Code Ann. 6, Sections 18-101, et seq. and any successor statute, as the same may be amended from time to time.

“Adjusted Capital Account” means the Capital Account of a Member (a) increased by the amount of potential deficit that the Member is deemed obligated to restore, calculated as described in the last sentence of Treasury Regulation Section l.704-2(g)(l) and the last sentence of Treasury Regulation Section l.704-2(i)(5), and (b) decreased by expected items described in Treasury Regulation Section l.704-l (b)(2)(ii)(d)(4), (5) and (6).

“Administrative Services Agreement” means the Administrative Services Agreement, dated as of the Initial Funding Date, among the Company, the Project Company and Bloom in the form attached as Exhibit C to the ECCA.

“Administrator” means Bloom or any replacement administrator under a Administrative Services Agreement. The Administrator is a “manager” of the Company within the meaning of the Act.

“Affiliate” means, with respect to any Person, any other Person controlling, controlled by or under common control with such first Person. For purposes of this definition, the term “control” (and correlative terms) means (l) the ownership of 50% or more of the equity interest i11 a Person, or (2) the power, whether by contract, equity ownership or otherwise, to direct or cause the direction of the policies or management of a Person. The Company shall be deemed to

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be an Affiliate of Clean Technologies prior to the Initial Funding (for purposes of representations and warranties), but shall not be deemed to be an Affiliate of any Member from and after the Initial Funding.

“Agreement” means the Company LLC Agreement if used in the Company LLC Agreement or the ECCA if used in the ECCA.

“Alternative Tax Program” means, if the Grant is unavailable, any successor cash grant, cash-based subsidy, tax refund or refundable credit program or, if none of the foregoing is available, the ITC.

“Annual Budget” is defined in Section 7.l(b) of the Company LLC Agreement.

“Applicable Laws” means all laws (including common law), constitutions, statutes, rules, regulations, ordinances, judgments, settlements, orders, decrees, injunctions, and writs of any Governmental Authority, in each case, having jurisdiction over Bloom, Clean Technologies, Mehetia, Credit Suisse Guarantor, the Administrator, the Company, the Project Company or the Systems, as applicable.

“Appraisal Method” means one appraiser shall be appointed by the holders of a majority of the Class A Membership Interests and one appraiser shall be appointed by the holders of a majority of the Class B Membership Interests, in each case, within fifteen (15) days of invocation of this procedure, which appraisers shall attempt to agree upon the fair market value of the Class B Membership Interests. If either holders of the Class A Membership Interests or holders of the Class B Membership Interests do not appoint their respective appraiser within five (5) days after the end of such fifteen ( 15) day period, the determination of the appraiser appointed by the other Person (if so appointed within such period) shall be conclusive and binding on the Members. If the appraisers appointed by the holders of Class A Membership Interests and the holders of Class B Membership Interests are unable to agree upon the fair market value of the Class B Membership Interests within thirty (30) days after the appointment of the second of such appraisers, the two appraisers shall appoint a third appraiser. In such case, the average of the determinations of the three appraisers shall be conclusive and binding on the Members, unless the determination of any of the appraisers differs from the middle determination by more than twice the amount by which the remaining determination differs from the middle determination, in which case the most disparate appraisal shall be excluded, and the average of the remaining two determinations shall be conclusive and binding on the Members.

“Bankruptcy” of a Person means the occurrence of any of the following events: (i) the filing by such Person of a voluntary case or the seeking of relief under any chapter of Title 11 of the United States Code, as now constituted or hereafter amended (the “Bankruptcy Code”), (ii) the making by such Person of a general assignment for the benefit of its creditors, (iii) the admission in writing by such Person of its inability to pay its debts as they mature, (iv) the filing by such Person of an application for, or consent to, the appointment of any receiver or a permanent or interim trustee of such Person or of all or any portion of its property, including the appointment or authorization of a trustee, receiver or agent under applicable law or under a contract to take charge of its property for the purposes of enforcing a lien against such property or for the purpose of general administration of such property for the benefit of its creditors,

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(v) the filing by such Person of a petition seeking a reorganization of its financial affairs or to take advantage of any bankruptcy, reorganization, insolvency, readjustment of debt, dissolution or liquidation law or statute, or an answer admitting the material allegations of a petition filed against it in any proceeding under any such law or statute, (vi) an involuntary case is commenced against such Person by the filing of a petition under any chapter of Title 11 of the Code and within 60 days after the filing thereof either the petition is not dismissed or the order for relief is not stayed or dismissed, (vii) an order, judgment or decree is entered appointing a receiver or a permanent or interim trustee of such Person or of all or any portion of its property, including the entry of an order, judgment or decree appointing or authorizing’ a trustee, receiver or agent to take charge of the property of such Person for the purpose of enforcing a lien against such property or for the purpose of general administration of such property for the benefit of the creditors of such Person, and such order, judgment or decree shall continue unstayed and in effect for a period of 60 days, or (viii) an order, judgment or decree is entered, without the approval or consent of such Person, approving or authorizing the reorganization, insolvency, readjustment of debt, dissolution or liquidation of such Person under any such law or statute, and such order, judgment or decree shall continue unstayed and in effect for a period of 60 days. The foregoing definition of “Bankruptcy” is intended to replace and shall supersede the definition of “Bankruptcy” set forth in Sections 18 101(1) and 18 304 of the Act.

“Base Case Model” means the financial model attached as Annex III to the ECCA and as Exhibit F to the Company LLC Agreement.

“Bloom” means Bloom Energy Corporation, a Delaware corporation.

“Bloom Guaranty” means the Guaranty made by Bloom for the benefit of Investor, dated on or about the date hereof.

“Brookside Site” means the Site described in the DDOT Site Lease.

“Business Day” means any day other than (i) a Saturday or Sunday or (ii) a day on which commercial banks in New York City are authorized or required to be closed.

“Capital Account” means an account for each Member calculated as described in Section 4.2(b) of the Company LLC Agreement and used to distribute assets at liquidation as described in Section 10.2 of the Company LLC Agreement.

“Capital Contribution” means, with respect to any Member, the amount of money and the initial Gross Asset Value of any property contributed to the Company with respect to the Membership Interests in the Company held or purchased by such Member.

“Capital Contributions Account” is defined in Section 4.3(c) of the Company LLC Agreement.

“Cause” means fraud, gross negligence or willful misconduct of the Managing Member, solely in that capacity.

“Certificate of Formation” has the meaning in the preliminary statements of the Company LLC Agreement.

3

“Change of Control” means with respect to an entity, an event in which a Person or Persons who prior to a transaction or series of transactions, possessed, whether directly or indirectly, legally or beneficially:

(a) 50% or more of the equity, capital or profits interests of such entity; or

(b) Control of such entity;

and as a result of a consummation of any transaction or series of transactions (including any merger or consolidation}, such Person or Persons fails to maintain, whether 4irectly or indirectly, legally or beneficially, either of the elements of control listed in (a) or (b) above.

“Claims” is defined in Section 3.6(a) of the Company LLC Agreement.

“Class A Member” means a Member holding one or more Class A Membership Interests.

“Class A Membership Interests” means membership interests in the Company that are held initially by Clean Technologies and have the rights described in the Company LLC Agreement.

“Class A Recapture Event” means an event or occurrence of any fact or circumstance that causes a Recapture Event that is not a Class B Recapture Event.

“Class B Member” means a Member holding one or more Class B Membership Interests.

“Class B Member CC Maximum Amount” means, for the Class B Member, an amount not to exceed the lesser of (i) $[***] and (ii) such amount that makes such Class B Member’s actual or required net investment (Capital Contributions less actual pre-tax cash distributions from the Company to the Class B Member made and received to date) equal $[***].

“Class B Membership Interests” means the membership interests in the Company that are initially held by Mehetia and having the rights described in the Company LLC Agreement.

“Class B Recapture Event” means (a) an event or occurrence of any fact or circumstance that causes a denial or recapture of all or a portion of a Grant that is directly attributable to (i) a breach of the representation made by a Class B Member under Section 3.11(c) of the Company LLC Agreement, (ii) a breach of the covenant made by a Class B Member under Section 3.12(f) of the Company LLC Agreement or (iii) any Transfer by a Class B Member or an Affiliate of a Class B Member prohibited by Sections 9.1, 9.3(e) or 9.4(c) of the Company LLC Agreement that causes the Company or Project Company to become a Disqualified Person, or (b) any act or omission by a Class B Member (excluding voting for a Major Decision), including any Transfer by a Class B Member or its Class B Membership Interests or a change in ownership of a Class B Member, that results in a recapture of the ITC or refundable credit under an Alternative Tax Program if an ITC or such refundable credit is elected pursuant to Section 7.5(b)(i) of the Company LLC Agreement and claimed by such Class B Member with respect to the Systems.

“Class Majority Vote” is defined in Section 3.2(f) of the Company LLC Agreement.

[***] Confidential Treatment Requested

4

“Clean Technologies” is defined in the preamble to the ECCA.

“Clean Technologies Indemnified Costs” means, with respect to any Class A Member, the following:

(a) with respect to any indemnification, defense or hold harmless obligations under the Company LLC Agreement or the ECCA of Investor or Investor Guarantor, any and all damages, losses, claims, liabilities, demands, charges, suits, Taxes, penalties, costs, and reasonable expenses (including court costs and reasonable attorneys’ fees and expenses of one law firm for all Clean Technologies Indemnified Parties) incurred by such Clean Technologies Indemnified Parties, including with respect to Third Party Claims, resulting from or relating to any breach or default or misrepresentation by Investor (as itself or as a Class B Member, as applicable) or Investor Guarantor, of any representation, warranty, covenant, indemnity or agreement under the ECCA or any other Transaction Document, including any claim for fraud or willful misconduct on the part of Investor or Investor Guarantor relating to the ECCA or any other Transaction Document; and

(b) with respect to any indemnification, defense or hold harmless obligations under the Company LLC Agreement or the ECCA (if applicable) of any Class B Member not covered under the preceding clause (a), any and all damages, losses, claims, liabilities, demands, charges, suits, Taxes, penalties, costs, and reasonable expenses (including court costs and reasonable attorneys’ fees and expenses of one law firm for all Clean Technologies Indemnified Parties) incurred by such Clean Technologies Indemnified Parties, including with respect to Third Party Claims, resulting from or relating to (i) any breach or default or misrepresentation by Class B Member or its Affiliate, as applicable, of any representation, warranty, covenant, indemnity or agreement under the ECCA or any other Transaction Document or (ii) any claim for fraud or willful misconduct on the part of Class B Member or its Affiliate relating to the ECCA or any other Transaction Document.

“Clean Technologies Indemnified Parties” means Clean Technologies and any person to whom Clean Technologies transfers any portion of its Class A Membership Interests in accordance with Article IX of the Company LLC Agreement, and each of their respective Affiliates (other than the Company or the Project Company) and each of their respective shareholders, partners members, officers, directors, employees, agents, and other representatives, and their respective successors and assigns.

“Code” means the Internal Revenue Code of 1986, as amended from time to time.

“Company” is defined in the preliminary statements to the ECCA.

“Company Distributable Cash” means, as of any date, all cash, cash equivalents and liquid investments (excluding Capital Contributions, Permitted Investments and any cash received in respect of the Grant) held by the Company as of such date less all reasonable reserves that, in the reasonable judgment of the Managing Member, are necessary or appropriate for the

5

operation of the Company consistently with the Prudent Operator Standard. Reasonable reserves shall consist of any combination of the following reserves as reasonably determined by the Managing Member, without duplication: (i) necessary for payment of expenses included in the annual budget of the Company, (ii) necessary to prevent or mitigate an emergency situation, (iii)established with the prior written consent of the Members (by Class Majority Vote), (iv) necessary to allow the Company to meet expenses that are clearly identified and expected with reasonable certainty to become due, but that are not included in the annual budget of the Company, (v) necessary to ensure sufficient spare parts or the payment of operational and maintenance costs for each of the Systems, and (vi) one or more additional reserves not referred to in the preceding clauses of this definition of “Company Distributable Cash” that do not, together with the reserves reserved pursuant to clause (vi) of the definition of Project Company Distributable Cash, in the aggregate exceed $[***].

“Company LLC Agreement” means the Amended and Restated Limited Liability Company Agreement of the Company, by and between Clean Technologies and Mehetia, substantially in the form of Exhibit D to the ECCA and dated as of the Initial Funding Date, as the same may be amended, supplemented or replaced from time to time.

“Company Minimum Gain” means the amount of minimum gain there is in connection with nonrecourse liabilities of the Company, calculated in the manner described in Treasury Regulation Sections 1.704-2(b)(2) and 1.704-2(d).

“Confidential Information” is defined in Section 11.12(a) of the Company LLC Agreement.

“Consult” or “Consultation” means to confer with, and reasonably consider and take into account the reasonable suggestions, comments or opinions of, another Person.

“Control” or “Controlled by” means the possession, directly or indirectly, of either of the following:

(i) in the case of a corporation, more than 50% of the outstanding voting securities thereof; (ii) in the case of a limited liability company, partnership, limited partnership or joint venture, the right to more than 50% of the distributions (including liquidating distributions) therefrom; (iii) in the case of a trust or estate, including a business trust, more than 50% of the beneficial interest therein; and (iv) in the case of any other entity, more than 50% of the economic or beneficial interest therein; or in the case of any entity, the power or authority, through ownership of voting securities, by contract or otherwise, to exercise a controlling influence over the management of the entity.

“Control Agreement” means the Control Agreement to be entered into on or before the Initial Funding Date among Mehetia, Clean Technologies, the Company (or the Project Company) and the control agent party thereto, as the same may be amended from time to time.

“Credit Agreement” means the Credit Agreement to be entered into on or before the Initial Funding Date among Project Company, RBS Securities Inc., The Royal Bank of Scotland pie, as administrative agent and collateral agent, and the Lenders, as the same may be amended from time to time.

[***] Confidential Treatment Requested

6

“Credit Documents” means the Credit Agreement and all other documents executed or delivered in connection with the Credit Agreement, including, without limitation, the Interparty Agreement.

“Credit Suisse Guarantor” means Credit Suisse (USA), Inc.

“Credit Suisse Guaranty” means the Guaranty made by Credit Suisse Guarantor for the benefit of Clean Technologies, dated on or about the date hereof.

“CT Funding Amount’; means, on the Initial Funding Date or on any Subsequent Funding Date, an amount that is equal to the required Progress Contribution less (i) the applicable Loan Proceeds of the Lenders and (ii) the applicable Subsequent Funding Payment of the Investor.

“DDOT” means the Delaware Department of Transportation.

“DDOT Site Lease” means a Lease Agreement between DDOT and the Project Company to be entered into on or prior to the Initial Funding Date, as it may be amended to extend the term or otherwise.

“December Capital Contribution” means the Capital Contribution in the amount of [***] made by Clean Technologies to the Company on December 30, 2011 pursuant to the Capital Contribution Agreement dated December 30, 2011 among Bloom, Clean Technologies, the Company and the Project Company.

“Deposit Contribution” is defined in Section 2.2(b) of the ECCA.

“Depreciation” means for each Fiscal Year or part thereof, an amount equal to the depreciation, amortization, or other cost recovery deduction allowable for United States federal income tax purposes with respect to an asset for such Fiscal Year or part thereof, except that if the Gross Asset Value of an asset differs from its adjusted basis for United States federal income tax purposes at the beginning of such Fiscal Year, the depreciation, amortization, or other cost recovery deduction for such Fiscal Year or part thereof shall be an amount which bears the same ratio to such Gross Asset Value as the United States federal income tax depreciation, amortization, or other cost recovery deduction for such Fiscal Year or part thereof bears to such adjusted tax basis. If such asset has a zero adjusted tax basis, the depreciation, amortization ,or other cost recovery deduction for each taxable year shall be determined under a method reasonably selected by the Managing Member and agreed to by Members representing a Class Majority Vote.

“Designated Transfers” is defined in Section 9.9 of the Company LLC Agreement.

“Disqualified Person” means (a) any federal, state or local government (or any political subdivision, agency or instrumentality thereof); (b) any organization described in Section 501(c) of the Code and exempt from tax under Section 501{a) of the Code; (c) any entity referenced in Section 54(j){4) of the Code; {d) any foreign person or entity as defined in Section 168{h)(2)(C) of the Code unless the exception under Section 168{h}(2)(B) of the Code applies with respect to income from the Project for that person; and {e) any partnership or other pass-through entity

[***] Confidential Treatment Requested

7

(including a single-member disregarded entity), other than a real estate investment trust as defined in Section 856(a} of the Code, any direct or indirect partner (or other holder of an equity or profits interest) of which is described in clauses (a) – (d); provided that a taxable C corporation, any of whose shareholders are ineligible to receive a Grant by virtue of being described in clauses (a) – (d) above will not be considered a Disqualified Person. Notwithstanding the above, a Person will not be treated as a Disqualified Person if it is demonstrated to the satisfaction of the Members that a Class A Recapture Event or Class B Recapture Event, as applicable, will not occur as a result of such Person owning a direct or indirect interest in the Company or Project Company; and provided, further that if and to the extent that Section 1603 of division B of the American Recovery and Reinvestment Act of 2009 is amended after the date of the Agreement , the definition of “Disqualified Person” under the Agreement shall be interpreted to conform to such amendment and any Treasury guidance with respect thereto.

“Distribution Date” means, in respect of every month commencing the month following the Initial Funding Date, the date that falls on the last Business Day of such month.

“Dollars” or “$”means the lawful currency of the United States of America.

“DPL” means Delmarva Power & Light Company, a DPSC regulated utility company.

“DPL Agreements” means the service applications between the Project Company and DPL with respect to the REPS Act and the Tariffs, whereby DPL shall (a) serve as the agent for collection of amounts due from Project Company (if any) and for disbursement of amounts due to Project Company under the QFCP-RC Tariff and (b) sell to Project Company natural gas under the Gas Tariff.

“DPL Site Lease” means a Lease Agreement between DPL and the Project Company to be entered into on or prior to the Initial Funding Date.

“DPSC” means the Delaware Public Service Commission, the Governmental Authority charged with regulating DPL and issuing the Tariffs.

“ECCA” means the Equity Capital Contribution Agreement with respect to the Company dated as of March 16, 2012 among Clean Technologies, the Company, the Project Company and Mehetia and all schedules and exhibits thereto.

“Effective Date” is defined in Section 11.16 of the Company LLC Agreement. “Energy” is defined in the MESPA.

“Encumbrance” means any charge, claim, community property interest, condition, equitable interest, lien, option, pledge, mortgage, security interest, right of first refusal or restriction of any kind, including any restriction on use, voting, transfer, receipt of income or exercise of any other attribute of ownership.

“Environmental Reports” means (a) the Phase I Environmental Site Assessment: Proposed Fuel Cell Facility (Brookside Site) prepared by Terracon Consultants, Inc., dated November 15, 2011, and (b) the Phase I Environmental Site Assessment: Proposed Fuel Cell Facility (Red Lion Site) prepared by Terracon Consultants, Inc., dated November 15, 2011.

8

“Environmental Laws” means all Applicable Laws pertaining to the environment, human health, safety and natural resources, including, but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. § 9601 et seq.), and the Superfund Amendments and Reauthorization Act of 1986, the Resource Conservation and Recovery Act of 1976 (42 U.S.C. §§ 6901 et seq.), and the Hazardous and Solid Waste Amendments Act of 1984, the Clean Air Act (42 U.S.C. §§ 7401 et seq.), the Federal Water Pollution Control Act (also known as the Clean Water Act) (33 U.S.C. §§ 1251 et seq.), the Toxic Substances Control Act (15 U.S.C.§§ 2601 et seq.), the Safe Drinking Water Act (42 U.S.C. §§ 300f et seq.), the Endangered Species Act (16 U.S.C. §§ 1531 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. §§ 1801 et seq.), and any similar or analogous state and local statutes or regulations promulgated thereunder and decisional law of any Governmental Authority, as each of the foregoing may amended or supplemented from time to time in the future, in each case to the extent applicable with respect to the property or operation to which application of the term “Environmental Laws” relates.

“Equity Commitment Amount” means, with respect to Clean Technologies, $[***] plus the Gross Asset Value of the membership interests in the Project Company transferred to the Company by Clean Technologies as shown in Schedule 4.2(b) to the Company LLC Agreement, and with respect to Mehetia, $[***], subject to the limitation that at no time will the actual or required net investment (Capital Contributions less actual pre-tax cash distributions from the Company to Mehetia, as applicable made and received to date) by Mehetia exceed $[***].

“Equity Contribution” is defined in Section 4.3 of the Company LLC Agreement.

“Equity Contribution Date” is defined in Section 4.3 of the Company LLC Agreement.

“Equity Contribution Notice” is defined in Section 4.3 of the Company LLC Agreement.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

“Execution Date” has the meaning given in the introductory paragraph of the ECCA.

“Exempt Wholesale Generator” means an “exempt wholesale generator” under PUHCA and the implementing regulations of FERC.

“Exhibits” means, in the case of the ECCA, the exhibits attached to the ECCA and in the case of the Company LLC Agreement, the exhibits attached to the Company LLC Agreement.

“Federal Power Act” or “FPA” means the Federal Power Act of 1935, as amended.

“FERC” means the Federal Energy Regulatory Commission and any successor thereto.

“Fiscal Year” is defined in Section 7.9 of the Company LLC Agreement.

“Flip Date” means the last day of the calendar month in which Class B Member achieves an Internal Rate of Return equal to or greater than the Target IRR.

[***] Confidential Treatment Requested

9

“Funding” means the Initial Funding or any Subsequent Funding, as the case may be.

“Funding Date” means the date of any Funding.

“Funding Notice” means a notice in the form of Exhibit I to the ECCA.

“Funding Payment” means, individually or collectively, the Initial Funding Payment and the Subsequent Funding Payments.

“GAAP” means generally accepted accounting principles as recognized by the American Institute of Certified Public Accountants, as in effect from time to time, consistently applied and maintained on a consistent basis for a Person throughout the period indicated and consistent with such Person’s prior financial practice.

“Gas Tariff” means DPL’s Service Classification “LVG-QFCP-RC” filed for gas service applicable to REPS Qualified Fuel Cell Provider Projects and approved by DPSC in Order no. 8062 dated October 18, 2011, as adopted and supplemented by DPSC’s Findings, Opinion and Order No.8079, dated December l, 2011.

“Governmental Approval” means all filings, notifications, orders, certificates, determinations, registrations, permits, licenses, approvals and authorizations with or of any Governmental Authority or other entity pursuant to Applicable Law.

“Governmental Authority” means any governmental department, commission, board, bureau, agency, court or other instrumentality of any country, state, province, county, parish or municipality, jurisdiction, or other political subdivision thereof.

“Grant” means a grant (or a portion thereof) under Section 1603 of the American Recovery and Reinvestment Tax Act of 2009 with respect to a System.

“Grant Application” means a Grant application to be filed with the Treasury under Section 1603 of the American Recovery and Reinvestment Tax Act of 2009 and all related guidance, regulations, notices, promulgations and announcements.

“Gross Asset Value” means, with respect to any asset, the asset’s adjusted tax basis for federal income tax purposes, except as follows:

(a) the initial Gross Asset Value of any asset contributed by a Member to the Company shall be the Gross Fair Market Value of such asset as of the date of contribution; provided that the initial Gross Asset Values of the assets contributed to the Company on the Initial Funding Date shall be shown in Schedule 4.2(b) to the Company LLC Agreement;

(b) the Gross Asset Values of all Company assets shall be adjusted to equal their respective fair market values at the times described in Section 4.2(c) of the Company LLC Agreement;

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(c) the Gross Asset Value of any item of Company assets distributed to any Member shall be adjusted to equal the Gross Fair Market Value of such asset on the date of distribution;

(d) the Gross Asset Values of all Company assets shall be adjusted to reflect any adjustments to the adjusted basis of such assets pursuant to Sections 734(b) or 743(b) of the Code, but only to the extent that such adjustments are required to be taken into account in determining Capital Accounts pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m); provided, however, that Gross Asset Values shall not be adjusted pursuant to this subsection (d) to the extent that the Managing Member determines that an adjustment pursuant to subsection (b) is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this subsection (d); and

(e) if the Gross Asset Value of an asset has been determined or adjusted pursuant to subsection (a), (b) or (d) above, such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into account with respect to such asset.

“Gross Fair Market Value” means, with respect to any asset, the fair market value of the asset as reasonably determined by the Managing Member and agreed to by Members representing a Class Majority Vote.

“Guaranteed Initial Delivery Date” has the meaning set forth in the QFCP-RC Tariff. “Guidance” means the guidance issued on July 9, 2009, by the Treasury for payments for specified energy property in lieu of tax credits under the American Recovery and Reinvestment Act of 2009 (as updated on March 15, 2010 and in April 2011), the Frequently Asked Questions and Answers issued by the Treasury on January 8, 2010 and June 25, 2010, as updated in April 2011, and any other guidance or clarification, addition or supplement thereto issued by the Treasury or any other Governmental Authority.

“Hedge Support” means any letters of credit, guarantees, bonds, surety contracts and other credit support arrangements (and any related reimbursement obligation) to support the payment and performance obligations of the Project Company under any hedge agreement to which the Project Company is a party.

“HSR Act” means the Hart Scott Rodino Antitrust Improvements Act of 1976, as amended and the regulations adopted thereunder.

“Independent Accounting Firm” means an accounting firm that is mutually acceptable to Class A Members holding a majority of the Class A Membership Interests, and Class B Member and if the foregoing Members cannot agree, then one of Deloitte Touche Tohmatsu, Ernst & Young, KPMG International or PricewaterhouseCoopers as chosen by the Managing Member; provided that, any such accounting firm is not the Accounting Firm.

“Independent Engineer” means SAIC Energy, Environment & Infrastructure, LLC.

“Independent Engineer Report” means the report of the Independent Engineer to be dated on or before the Initial Funding Date.

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“Indemnified Costs” means Investor Indemnified Costs or Clean Technologies Indemnified Costs, as the context requires.

“Indemnified Party” means an Investor Indemnified Party or Clean Technologies Indemnified Party, as the context requires.

“Indemnifying Party” means Mehetia or Clean Technologies, as the context requires.

“Initial Funding” is defined in Section 2.3 of the ECCA.

“Initial Funding Date” means the date described in Section 2.3 of the ECCA.

“Initial Funding Payment” is defined in Section 2.2(a) of the ECCA.

“Initial Funding Termination Date” means March 31, 2014 or any later date agreed to by Investor and Clean Technologies.

“Insurance Report” means the Insurance Due Diligence Summary prepared by Moore McNeill, LLC, to be dated on or before the Initial Funding Date.

“Interconnection Point” is defined in the MESPA.

“Internal Rate of Return” means, with respect to Class B Member and at any time of determination, the discount rate that sets A equal to B, where A is the present value of (a) cash (including the proceeds of any Grant, or, if elected pursuant to Section 7.5(b)(i) of the Company LLC Agreement, the proceeds of any similar successor cash program or cash received from an Alternative Tax Program) distributed to Class B Member and, if the ITC is elected pursuant to Section 7.5(b)(i) of the Company LLC Agreement and the Class B Member consents in writing to inclusion of such ITC in its Internal. Rate of Return, the value of any ITC claimed on Systems to the extent allocated to Class B Member assuming a 35% federal income tax rate plus (b) any indemnity payments received by Class B Member that compensate for loss of any item listed in the foregoing clause (a), and B is the present value of the various Capital Contributions made by Class B Member.

“Interparty Agreement” means an Interparty Agreement to be entered into on or before the Initial Funding Date among the Project Company, Company, Clean Technologies, Investor and The Royal Bank of Scotland pie, as the same may be amended from time to time.

“Investor” is defined in the preliminary statements to the ECCA. “Investor Guarantor” means the Credit Suisse Guarantor. “Investor Guaranty” means the Credit Suisse Guaranty.

“Investor Indemnified Costs” means, with respect to Class B Member, the following:

(a) with respect to any indemnification, defense or hold harmless obligations under the Company LLC Agreement or the ECCA of Clean Technologies or its Affiliates, any and all damages, losses, claims, liabilities, demands, charges, suits, Taxes, penalties, costs, and reasonable expenses (including court costs and reasonable attorneys’ fees and expenses of one law firm for all Investor

12

Indemnified Parties) incurred by such Investor Indemnified Parties, including with respect to Third Party Claims, resulting from or relating to (i) any breach or default or misrepresentation by Clean Technologies (as itself or as a Class A Member, Managing Member or Tax Matters Partner) or any Affiliate of Clean Technologies, as applicable, of any representation, warranty, covenant, indemnity or agreement under the ECCA or any other Transaction Document, including (A) in its capacity as Managing Member under the Company LLC Agreement in accordance with the terms thereof and (B) in its capacity as Tax Matters Partner under Section 7.7(b) and Section 7.7(c) of the Company LLC Agreement in accordance with the terms thereof, (ii) any claim for fraud or willful misconduct on the part of Clean Technologies or any Affiliate of Clean Technologies relating to the ECCA or any other Transaction Document, (iii) resulting from Project Company (or any of the Systems) not qualifying for (or becoming disqualified under) the REPS Act or the Tariffs as a result of any act or omission by Bloom or any Affiliate of Bloom (including, without limitation, (A) Bloom failing to achieve commercial operation (as defined in the QFCP-RC Tariff) of 5 MW of Systems by March 31, 2013 (unless such date has been extended in accordance with the QFCP-RC Tariff), (B) Bloom failing to achieve commercial operation (as defined in the QFCP-RC Tariff) of 30 MW of Systems, of which at least 20 MW of Systems were actually manufactured by Bloom in the State of Delaware by September 30, 2014 (unless such date has been extended in accordance with the QFCP-RC Tariff), (C) Bloom failing to be manufacturing fuel cells capable of being powered by renewable fuels from a permanent manufacturing facility located in the State of Delaware as of the date-of Commencement of Operations (as defined in the MESPA) of the full nameplate capacity of the Portfolio, or (D) any of the acts or omissions set forth in Section 4.3 of the MESPA}, (iv) Bloom failing to be in compliance with the Letter Agreement (including, if so required by the State of Delaware, posting the security referred to in the Letter Agreement upon or prior to the Commencement of Operation of the first System) or (v) any surcharges pursuant to the Tariffs being deemed a tax under Delaware law; and

(b) with respect to any indemnification, defense or hold harmless obligations under the Company LLC Agreement or the ECCA (if applicable) of any other Class A Member not covered under the preceding clause (a), any and all damages, losses, claims, liabilities, demands, charges, suits, Taxes, penalties, costs, and reasonable expenses (including court costs and reasonable attorneys’ fees and expenses of one law firm for all Investor Indemnified Parties) incurred by such Investor Indemnified Parties, including with respect to Third Party Claims, resulting from or relating to (i) any breach or default or misrepresentation by such Class A Member or its Affiliate, as applicable, of any representation, warranty, covenant, indemnity or agreement under the ECCA or any other Transaction Document or (ii) any claim for fraud or willful misconduct on the part of such Class A Member or its Affiliate relating to the ECCA or any other Transaction Document.

“Investor Indemnified Parties” means the Mehetia Indemnified Parties.

“IP Rights” is defined in Section 3.1(x) of the ECCA.

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“ITC” means the 30% investment tax credit under Section 48 of the Code. “IRS” means the Internal Revenue Service or any successor agency.

“Knowledge” means, with respect to Clean Technologies, the Company and the Managing Member, the actual knowledge after due inquiry of the senior managers of the Company listed below in the positions set forth next to such person’s name or their successors or replacements in such positions.

Name	Position
[***]	[***]
[***]	[***]
[***]	[***]
[***]	[***]
[***]	[***]
[***]	[***]

“kW” means kilowatt or one thousand watts of Energy.

“Legal Requirement” means any law (including common law), statute, act, decree, ordinance, rule, directive (to the extent having the force of law) order, treaty, code or regulation (including any of the foregoing relating to health or safety matters or any Environmental Law) or any interpretation of any of the foregoing, as enacted, issued or promulgated by any Governmental Authority, including all amendments, modifications, extensions, replacements or re-enactments thereof.

“Lenders” means The Royal Bank of Scotland pie and the various financial institutions party to the Credit Agreement in their capacity as lenders thereunder.

“Letter Agreement” means that certain Letter Agreement dated October 10, 2011 between Bloom and the State of Delaware, as may be amended from time to time.

“Liens” means any liens, pledges, claims, security interests, easements, rights of way, mortgages, deeds of trust, covenants, restrictions, rights of first refusal or defects in title.

“LLC Agreement Termination Date” is defined in Section 2.4 of the Company LLC Agreement.

“Loan Proceeds” is defined in Section 2.7(h) of the ECCA.

[***] Confidential Treatment Requested

14

“Major Decisions” means:

With respect to the Pre-Flip Period, any of the following:

(a) Any sale, lease or other voluntary disposition of assets of the Project Company or Membership Interests in the Project Company with an aggregate fair market value in excess of $[***] during any [***] period, but excluding sales of (i) energy sold under the PJM Agreements or excess energy produced by Systems, (ii) environmental attributes of energy sales (such as renewable energy credits and carbon allowances), (iii) ancillary benefits of energy sales (such as capacity credits) and (iv) surplus or obsolete assets;

(b) The Company or the Project Company taking action to (i) cancel, suspend or terminate any Material Contract, (ii) assign, release or relinquish the rights or obligations of (or any security posted by) any party to, or amend (A) the DPL Agreements, the PJM Agreements, the Credit Agreement, the Interparty Agreement, any Collateral Document (as defined in the Credit Agreement) or any other Credit Document (solely to the extent the amendment of any other such Credit Document could reasonably be expected by the Managing Member to have a Material Adverse Effect on the Class B Members), other than any such assignment or release made in accordance with its express terms, or (B) any other Material Contract if (with respect to this clause (B) only) any of the foregoing items in this clause (ii) could reasonably be expected to have a Material Adverse Effect on the Company or the Project Company, (iii) renew or enter into any replacement Material Contract except to the extent such renewal or replacement is on substantially the same terms as the original Material Contract, (iv) replace the Administrator under the Administrative Services Agreement, (v) replace the manager or operator under the MOMA, or (vi) enter into any new Material Contract; provided that none of the following will be considered a Major Decision: (v) taking any of the actions referred to above in this paragraph (b) in connection with a Material Contract with respect to assets that are excluded from paragraph (a) above, (w) entry into the DPL Agreements or the PJM Agreements, (x) taking any of the actions referred to above in this paragraph (b) if such actions (1) are required by any Governmental Authority or (2) involve agreements or instruments as to which such actions otherwise are permitted under the Company LLC Agreement, (y) the replacement of (I) any permit or (2) any Hedge Support with other Hedge Support that provides up to a comparable amount of credit support with comparable obligations, and (z) the enforcement or management of contracts with suppliers;

(c) The Company adopting, amending or exceeding the Annual Budget for the Project Company, except that the following will not be considered a Major Decision: (i) adoption of an Annual Budget containing an aggregate expense amount for any Fiscal Year that is not more than [***] above the annual spending projected in the Base Case Model for such Fiscal Year or [***] above the aggregate expense amount reflected in the Annual Budget for the previous Fiscal Year, (ii) spending up to [***] of the aggregate expense amount reflected in the Annual Budget for a Fiscal Year and (iii) emergency spending above the [***] limit, except that non-recurring budget items that are not included in the Base Case Model and that are not incurred or expected to be incurred in the Ordinary Course of Business will be excluded when applying the percentages in this paragraph;

[***] Confidential Treatment Requested

15

(d) Approval of any transactions (other than other transactions contemplated by any of the Transaction Documents) between the Company or the Project Company, as the case may be, and any member thereof, the Administrator, or any Affiliates of any member of the Company or the Project Company, other than those entered into on an arm’s length basis;

(e) Any settlement of claims, litigation, arbitration, criminal investigation or criminal proceedings (excluding the payment of undisputed liquidated damages) involving the Company, the Project Company or the Managing Member (only to the extent such investigation or proceeding relates to its actions or failure to act in such capacity) or any of their respective officers, managers or directors except if the settlement is not with any Affiliate of Bloom and, as a result of such settlement, the Company and/or the Project Company would not be obligated to pay more than $[***] in the aggregate;

(f) Change, amend or substitute the insurance required to be maintained by the Company pursuant to the ECCA or the Company LLC Agreement in a manner that would cause such insurance to be materially different from the insurance requirements prescribed therein;

(g) Any action that would cause the Company or the Project Company to engage in any business or activity that is not within the purpose of such entity, as set forth in such entity’s organizational documents, or to change such purpose;

(i) any action that would cause the Company to remove the Managing Member or fill any vacancy for the Managing Member as provided in Section 8.2(c) of the LLC Agreement or any action that would cause the Project Company to remove the manager of the Project Company or fill any vacancy for the manager of the Project Company, (ii) any merger or consolidation of the Company or the Project Company, (iii) the acquisition of all or substantially all of the assets or ownership interests of another Person, (iv) sale of all or substantially all of the assets of the Company or the Project Company and (vi) the taking of any action by the Company or the Project Company described in clauses (i), (ii), (iii), (iv), (v) or (vi) of the definition of “Bankruptcy”;

(h) Granting of any Encumbrance on the assets or rights of the Company or the assets and rights of the Project Company other than Permitted Liens;

(i) Any incurrence or guarantee of indebtedness for borrowed money or capitalized lease obligations in excess of $[***] (other than capital leases) in the aggregate for the Company and the Project Company;

(j) Any issuance or redemption by the Company or Project Company of any Membership Interests or other equity interest of any kind in the Company or Project Company other than any issuance permitted under Section 4.1(c) of the Company LLC Agreement;

[***] Confidential Treatment Requested

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(k) Any amendment or cancellation of the certificate of formation of the Company or the Project Company or amendment of the Project Company LLC Agreement;

(l) The admission of any additional member in the Company or Project Company, other than pursuant to terms of the Company LLC Agreement or Project Company LLC Agreement;

(m) The hiring by the Company or the Project Company of any employees or entering into any bonus, profit sharing, thrift, compensation, option, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund policy or arrangement for the benefit or welfare of any directors, officers or employees of the Company or the Project Company;

(n) Any change in the Company’s or Project Company’s legal form or any recapitalization, liquidation, winding-up or dissolution of the Company or Project Company (except as permitted under the Company LLC Agreement or the Project Company LLC Agreement);

(o) Permitting (i) the possession of property of the Company by any Member, (ii) the assignment, transfer or pledge of rights of the Company in specific property of the Company for other than a Company purpose or other than for the benefit of the Company or (iii) any commingling of the funds of the Company with the funds of any other Person;

(p) Electing that the Company be treated other than as a partnership for United States federal income tax purposes or electing that the Project Company be treated other than as a “disregarded entity” for United States federal income tax purposes;

(q) Amending, or choosing to fail to obtain or, as a result of the breach of its terms, causing the revocation of, any governmental approval required for the operation, ownership, management or maintenance of the Systems or the sale or transmission of electric energy in a manner that would have a Material Adverse Effect or fail to maintain the status of the Company as an Exempt Wholesale Generator or taking any action that would cause the Company to cease to be an Exempt Wholesale Generator or a member of PJM;

(r) Engaging in any speculative financial activities, excluding (i) sales of energy and (ii) other hedge or swap arrangements, renewable energy credit sales, forward contracts and similar transactions and other transactions in effect on the Initial Funding Date or any Subsequent Funding Date, as applicable, for the Systems and replacements therefor, in each case, entered into in the Ordinary Course of Business for the Portfolio;

(s) Lending any funds from the Company to any Person;

17

(t) Engaging in any act that, if taken, would reasonably be expected to cause a Class A Recapture Event;

(u) If a Grant is not available with respect to certain Systems, electing under any Alternative Tax Program pursuant to Section 7.5(b)(i) of the Company LLC Agreement;

(v) Ordering the purchase of a System other than for the Project;

(w) Not pursuing the rights and remedies under any agreement with Bloom or its Affiliates after a failure to cure within the applicable cure period, including, without limitation, the MOMA, the MESPA or the Administrative Services Agreement;

(x) Selling or disposing of any energy calls purchased on or prior to the Initial Funding Date other than at or around their expiration date;

(y) Authorizing or permitting the Company to make a capital contribution to the Project Company except in accordance with Sections 4.3 and 4.4 of the LLC Agreement;

(aa) Making any material tax election, or causing the Company to cause the Project Company to make any material tax election, other than as provided in the Company LLC Agreement;

(bb) Taking any act in contravention of or in breach of the Company LLC Agreement or the organizational documents of the Company or the Project Company;

(cc) Causing the Company or causing the Company to cause the Project Company to change its method of accounting, except as required by GAAP, or taking any action with respect to accounting policies or procedures, unless required by GAAP;

(dd) Making any distribution to any Member or causing any distribution to be made by the Company or the Project Company except as specified in the Company LLC Agreement or Project Company LLC Agreement;

(ee) Causing the Company or causing the Company to cause the Project Company to knowingly take or omit to take any action that would result in a material breach or an event of default, or that would permit or result in the acceleration of any obligation or termination of any right, under any Material Contract;

(ff) Causing the Company or causing the Company to cause the Project Company to form any Person, including any Subsidiaries; and

(gg) Taking any action in violation of, or inconsistent with, the REPS Act or any of the Tariffs, including, without limitation causing the Project Company to sell any electricity other than to PJM.

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With respect to the period following the Flip Date, the matters in paragraph (a) above shall be Major Decisions, except that any such matter will be a Major Decision only with respect to the sale, lease or other voluntary disposition of assets at a price other than for fair market value, and the matters in clauses (g), (o) and (p) shall also be Major Decisions.

“Majority Vote” is defined in Section 3.2(f) of the Company LLC Agreement.

“Managing Member” is defined in Section 8.2Ca) of the Company LLC Agreement.

“Material Adverse Effect” means a material adverse effect on the business, assets, liabilities, financial condition or results of operations of the Project Company, excluding any effect resulting from (a) effects of weather or meteorological events, (b) general industry strikes, work stoppages or other labor disturbances, or (c) the execution or delivery of the Transaction Documents or the transactions contemplated in them or the announcement of such transactions. An adverse effect will be considered “material” under this definition for purposes of the conditions precedent to closing in Sections 2.5, 2.6, 2.7 and 2.8 of the ECCA if it will cause a reduction of at least $[***] in the aggregate, across one or more conditions precedent, in the sum of the net present values of the Grants and Project Company Distributable Cash from the Portfolio through the Flip Date as projected in the Base Case Model. An adverse effect will be considered “material” under this definition for purposes of any post-closing indemnities for breach of representations if it is reasonably likely to cause a reduction of at least $[***] in the aggregate in the sum of the net present values of the Grants and Project Company Distributable Cash from the Portfolio over the period from the Initial Funding Date through the Flip Date as projected in the Base Case Model. The net present value will be calculated by discounting to the Initial Funding Date for the Portfolio, a Grant and Project Company Distributable Cash received through the date of calculation and discounting the remaining Grants and cash through the projected Flip Date in the Base Case Model using the Target IRR as the discount rate.

“Material Contract” means (a) a contract for the sale of electricity or transmission services of a System for a term of more than one year, (b) a contract, lease, indenture or security agreement under which the Company or the Project Company (i) has created, incurred, assumed or guaranteed any indebtedness for borrowed money or obligations under any lease that, in accordance with GAAP, or international financial reporting standards, as applicable, should be capitalized, (ii) has created a mortgage, security interest or other consensual encumbrance on any property with a fair market value of more than $[***] (other than any Permitted Liens), or (iii) has a reimbursement obligation in respect of any letter of credit, guaranty, bond, or other credit or collateral support arrangement required to be maintained by the Project Company under the terms of any contract referred to in clause (a) above, (c) a contract for management, operation or maintenance of the Company, the Project Company or a System that requires payments of more than $[***], (d) a product warranty or repair contract by or with a manufacturer or vendor of equipment owned or leased by the Project Company with a fair market value of more than [***], € any other contract that is expected to require payments by the Company or the Project Company, in the aggregate, of more than $[***] per calendar year and (f) the MESPA, the DPL Agreements, the PJM Agreements, the MOMA, the Site Leases, the Credit Agreement, the Interparty Agreement, the Collateral Documents (as defined in the Credit Agreement), any other Credit Document, the Administrative Services Agreement or any Transaction Document.

[***] Confidential Treatment Requested

19

“MBR Authority” is defined in Section 2.7(n) of the ECCA.

“Mehetia” is defined in the preamble to the ECCA.

“Mehetia Indemnified Parties” means Mehetia and any person to whom Mehetia transfers any portion of its Class B Membership Interests in accordance with Article IX of the Company LLC Agreement, and each of their respective Affiliates and each of their respective shareholders, partners members, officers, directors, employees, agents, and other representatives, and their respective successors and assigns.

“Member” means any Person executing the Company LLC Agreement as of the date of the Company LLC Agreement as a member of the Company or any Person admitted to the Company as a member as provided in the Company LLC Agreement (each in the capacity as a member of the Company), but does not include any Person who has ceased to be a member of the Company.

“Member Loan” means any loan or advance made by (i) a Class B Member to the Company or (ii) the Company to the Project Company, pursuant to Section 4.5 of the Company LLC Agreement.

“Member Nonrecourse Debt” means “partner nonrecourse debt” as defined in Treasury Regulation Section l.704-2(b)(4). An example is where a Member or a person related to the Member makes a loan on a nonrecourse basis to the Company.

“Member Party” is defined in Section 3.6(a) of the Company LLC Agreement. “Membership Interest” means the interest of a Member in the Company, including rights to distributions (liquidating or otherwise), allocations, and to vote, consent or approve, if any.

“MESPA” means the Master Energy Server Purchase Agreement, dated as of the Initial Funding Date, between Bloom and the Project Company.

“Minimum Gain Attributable to Member Nonrecourse Debt” means the amount of minimum gain there is in connection with a Member Nonrecourse Debt, calculated in the manner described in Treasury Regulation Section l.704-2(i)(3).

“MOMA” means the Master Operation and Maintenance Agreement, dated as of the Initial Funding Date, between the Project Company and the Operator, as such agreement may be amended, supplemented or replaced from time to time.

“Moody’s” means Moody’s Investor Service, Inc.

“MW” means megawatt or one million watts of Energy.

“Nonrecourse Deduction” means a deduction for spending that is funded out of nonrecourse borrowing by the Company or that is otherwise attributable to a “nonrecourse liability” of the Company within the meaning of Treasury Regulation Section l.704-2.

“Notice” is defined in Section 11.1 of the Company LLC Agreement.

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“Operations Report” is defined in Section 7.1(a) of the Company LLC Agreement.

“Operator” means Bloom.

“Ordinary Course of Business” means the ordinary conduct of business consistent with past custom and practice (including with respect to quantity and frequency).

“Original Operating Agreement” is defined in the preliminary statements of the Company LLC Agreement.

“Party” means, for purposes of the ECCA, a party to the ECCA and for purposes of the Company LLC Agreement, a party to the Company LLC Agreement.

“Percentage Interest” means the percentage interest shown for a Class A Member or Class B Member, as applicable, in Schedule 4.2(d) of the Company LLC Agreement as updated from time to time.

“Permitted Encumbrance” means Encumbrances provided for under the Transaction Documents, liens for Taxes not yet due and payable for which adequate reserves have been provided in accordance with GAAP and restrictions on transfer of the Membership Interests under any applicable federal, state or foreign securities law.

“Permitted Investments” means any of the following having a maturity of not greater than one year from the date of issuance thereof: (a) readily marketable direct obligations of the government of the United States of America or any agency or instrumentality thereof or obligations unconditionally guaranteed by the full faith and credit of the government of the United States of America, (b) insured certificates of deposit of or time deposits with any commercial bank that is a member of the Federal Reserve System, issues (or the parent of which issues) commercial paper rated as described in clause (c) below, is organized under the laws of the United States or any State thereof and has combined capital and surplus of at least $1,000,000,000.00 or (c) commercial paper issued by any corporation organized under the laws of any State of the United States and rated at least “Prime-1” (or the then equivalent grade) by Moody’s Investors Service, Inc. or “A-1” (or the then equivalent grade) by Standard & Poor’s Corporation.

“Permitted Liens” means (a) Liens for taxes not yet due or that are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP (b) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, employees’, contractors’, operators’ or other similar Liens or charges securing the payment of expenses not yet due and payable that were incurred in the Ordinary Course of Business of the Project Company or for amounts being contested in good faith and by appropriate proceedings, (c) trade contracts or other obligations of a like nature incurred in the Ordinary Course of Business of the Project Company, (d) obligations or duties to any Governmental Authority arising in the Ordinary Course of Business (including under licenses and permits held by the Project Company and under all applicable laws, rules, regulations and orders of any Governmental Authority), (e) obligations or duties under easements, leases or other property rights, (f) Liens arising out of judgments or awards so long as an appeal or proceeding for review is being prosecuted in good faith and for the payment of which adequate reserves in accordance

21

with GAAP, bonds or other security have been provided or are fully covered by insurance, (g) Liens of record and zoning and other land use restrictions that do not impair the value or intended use of a System, (h) security interests granted to satisfy credit support obligations or margin requirements under any existing or subsequently entered into power purchase agreement, power sales agreement, natural gas supply agreement (including the DPL Agreements), or swap or hedge agreement, in each case, in which the Project Company (but not any Affiliate of the Project Company) is the counterparty to such agreement, (i) Permitted Encumbrances, (j) with respect to the Project Company, easements, rights-of-way, restrictions, reservations and other similar encumbrances and exceptions to title existing or incurred in the ordinary course of business that, in the aggregate, do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of Clean Technologies and the Project Company, taken as a whole, (k) Liens created pursuant to any Credit Document and (l) all other encumbrances and exceptions that are incurred in the Ordinary Course of Business of the Portfolio, are not incurred for borrowed money, and do not have a Material Adverse Effect on either the use of any material assets of the Project Company as currently used or the value of any such assets; provided, however, that the foregoing excludes any Liens held by Bloom or its Affiliates.

“Permitted Transfers” is defined in Section 9.5 of the Company LLC Agreement.

“Person” means an individual, corporation, partnership, limited liability company, association, trust, unincorporated organization, or other entity.

“PJM” means PJM Interconnection, LLC, a regional transmission organization.

“PJM Agreements” is defined in the QFCP-RC Tariff.

“PJM Grid” means the PJM electricity transmission grid.

“PJM Market” means the PJM Interchange Energy Market which Project Company is to sell all of its energy, capacity, ancillary services and environmental attributes pursuant to the QFCP-RC Tariff and the PJM Agreements, and any PJM successor market.

“Placed in Service” means with respect to any System, the completion of or the performance of all of the following activities: (1) obtaining the necessary licenses and permits for the operation of the System and sale of Energy, capacity, ancillary services and RECs generated by (or attributable to) the System, (2) completion of critical tests necessary for proper operation of such System, (3) synchronization of such System onto the PJM Grid, and (4) the commencement of daily operation of such System.

“Portfolio” is defined in the preliminary statements of the ECCA.

“Pre-Flip Period” means the period commencing on the Initial Funding Date and ending on the Flip Date.

“Prime Rate” means a rate per annum equal to the lesser of (a) the prime rate published from time to time in The Wall Street Journal, and (b) the maximum rate permitted by Applicable Laws.

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“Pro Rata Shares” means, with respect to (i) any Class A Member, such Class A Member’s Class A Membership Interests divided by the aggregate Class A Membership Interests of all Class A Members or (ii) any Class B Member, such Class B Member’s Class B Membership Interests divided by the aggregate Class B Membership Interests of all Class B Members.

“Progress Contributions” is defined in Section 2.2(b)(ii) of the ECCA.

“Project” is defined in the preliminary statements of the ECCA.

“Project Company” means Diamond State Generation Partners, LLC.

“Project Company Distributable Cash” means, as of any date, all cash, cash equivalents and liquid investments (excluding Capital Contributions, Permitted Investments and any cash received in respect of the Grant) held by the Project Company as of such date less all reasonable reserves that, in the reasonable judgment of the manager of the Project Company, are necessary or appropriate for the operation of the Project Company or the Systems consistently with the Prudent Operator Standard. Reasonable reserves shall consist of any combination of the following reserves as reasonably determined by the manager of the Project Company, without duplication: (i) necessary for payment of expenses included in the Annual Budget, (ii) necessary to prevent or mitigate an emergency situation, (iii) established with the prior written consent of the Members (by Class Majority Vote), (iv) necessary to allow the Project Company to meet expenses that are clearly identified and expected with reasonable certainty to become due, but that are not included in the Annual Budget, (v) necessary to ensure sufficient spare parts or the payment of operational and maintenance costs for each of the Systems and (vi) one or more additional reserves not referred to in the preceding clauses of this definition of “Project Company Distributable Cash” that do not, together with the reserves reserved pursuant to clause (vi) of the definition of Company Distributable Cash, in the aggregate exceed $[***].

“Project Company LLC Agreement” means the Amended and Restated Limited Liability Company Agreement of the Project Company, substantially in the form of Exhibit E to the ECCA, and dated as of the Initial Funding Date, as the same may be amended, supplemented or replaced from time to time.

“Projected Contribution Schedule” means the projected schedule of Capital Contributions to be made by Clean Technologies and Investor at each Funding attached to the ECCA as Annex II.

“Prudent Operator Standard” means that a Person will (i) perform its duties in compliance with the requirements of the Material Contracts, (ii) perform the duties in accordance with commercially reasonable applicable fuel cell industry standards (A) taking into account through the Flip Date the need to maintain qualification for a Grant (or if unavailable, the Alternative Tax Program) and to avoid any Class A Recapture Event and (B) that the Portfolio must qualify for and remain qualified to receive service under the QFCP-RC Tariff, and (iii) use sufficient and properly trained and skilled personnel.

“PUHCA” means the Public Utility Holding Company Act of 2005 and FERC’s implementing regulations.

[***] Confidential Treatment Requested

23

“Purchase Option” is defined in Section 9.7 of the Company LLC Agreement. “Purchase Option Date” is defined in Section 9.7 of the Company LLC Agreement.

“Purchase Option Price” means the greater of (i) the fair market value of the Class B Membership Interests on the Purchase Option Date as determined by agreement between Class B Member transferring its Class B Membership Interests and the Class A Members and (ii) an amount sufficient to cause Class B Member to achieve an Internal Rate of Return equal to [***]%; provided, however, that should Class B Member transferring its Class B Membership Interests and the Class A Members fail to agree on such fair market value within 30 days of the date on which the Purchase Option Exercise Notice is provided, such fair market value shall be determined by the Appraisal Method which shall be then automatically invoked unless all of the Members otherwise agree in writing.

“Purchase Option Exercise Notice” is defined in Section 9.7 of the Company LLC Agreement.

“QFCP-RC Tariff” means DPL’s Service Classification “QFCP-RC” for REPS Qualified Fuel Cell Provider Projects as approved by DPSC in Order no. 8062 dated October 18, 2011, as adopted and supplemented by DPSC’s Findings, Opinion and Order No. 8079, dated December l, 2011.

“Quarter” means a calendar quarter.

“Qualified Transferee” means, with respect to any proposed Transfer, (A) an entity that (i) has (x) owned or operated for a period of at least three (3) years (within the then most recent four year period), and at the time of such Transfer continues to own and operate, solid oxide fuel cell power generating systems or (y) engaged a Person who has owned or operated for a period of at least three (3) years (within the then most recent four year period), and at the time of such Transfer continues to own and operate, solid oxide fuel cell power generating systems, and (ii) either (x) has a credit rating of “BBB-” or higher by S&P and “Baa3” or higher by Moody’s, or (y) has annual revenues of not less than $5,000,000 and a tangible net worth of at least $200,000,000 or (B) such other entity with respect to which the consent of Investor has been obtained.

“Recapture Claim” means a written notice provided by the Class A Members to the Company and Class B Member with respect to Recapture Damages caused by a Class B Recapture Event or by Class B Member to the Company and the Class A Members with respect to Recapture Damages caused by a Class A Recapture Event.

“Recapture Damages” means the amount of (i) any portion of any payment required to be made to the United States of America (or any agency or instrumentality thereof), as applicable, resulting from all or any portion of the Grant or any successor grant program or cash-based subsidy being “recaptured” or denied that is paid by Class B Member, in the case of a Class A Recapture Event, or by the Class A Members, in the case of a Class B Recapture Event, and (ii) with respect to a Member if the Grant, any successor grant program or cash-based subsidy is unavailable with respect to any System, such Members’ share of any payment required to be made by such Member to the United States of America (or any agency or instrumentality thereof) resulting from the recapture or denial of all or any portion of any refundable tax credit or ITC with respect to such System.

[***] Confidential Treatment Requested

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“Recapture Event” means an event that results in denial or recapture of the Grant, or any Alternative Tax Program, or a portion thereof, by Treasury or any other Governmental Authority.

“Recapture Period” means, with respect to any System, the period from the date on which the System is placed in service for federal income tax purposes until the 5th anniversary of the date the System is placed in service for federal income tax purposes.

“RECs” means any credits, credit certificates, green tags or similar environmental or green energy attributes (such as those for greenhouse reduction or the generation of green power or renewable energy) created by a governmental agency or independent certification board or group generally recognized in the electric power generation industry, and generated by or associated with the System or electricity produced therefrom, but excluding the Grants and ITC.

“Red Lion Site” means the Site described in the DPL Site Lease. “Refund Notice” is defined in Section 2.2(g) of the ECCA. “Refund Payment Date” is defined in Section 2.2(g) of the ECCA

“Representatives” means, with respect to any Person, the managing member(s), the officers, directors, employees, representatives or agents (including investment bankers, financial advisors, attorneys, accountants, brokers and other advisors) of such Person, to the extent that such officer, director, employee, representative or agent of such Person is acting in his or her capacity as an officer, director, employee, representative or agent of such Person.

“REPS Act” means the Renewable Energy Portfolio Standards Act, as amended most recently by S.B. 124, enacted July 10, 2011 (Title 26, Chap. 1, section 351 et seq. of the Code of the State of Delaware).

“Required Ratings” means a long-term senior unsecured credit rating, long-term local issuer credit rating or insurer financial strength rating of at least A- by Standard & Poor’s Corporation or A3 by Moody’s Investors Service, Inc. or, if either agency is not then in the business of providing ratings, equivalent ratings from any other entity that is then a nationally recognized statistical rating organization.

“Sale Notice” is defined in Section 9.8(a) of the Company LLC Agreement.

“Sale Option” is defined in Section 9.8(a) of the Company LLC Agreement.

“Sale Option Date” is defined in Section 9.8(a) of the Company LLC Agreement.

“Sale Price” means the fair market value of the Class B Membership Interests on the Sale Option Date as determined by agreement between Class B Member transferring its Class B Membership Interests and the Class A Member; provided, however, that should Class B Member transferring its Class B Membership Interests and the Class A Member fail to agree on such fair market value within 30 days of the date on which the Sale Notice is provided, such fair market value shall be determined by the Appraisal Method which shall be then automatically invoked unless otherwise agreed by all of the Members in writing.

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“S&P” means Standard and Poor’s Corporation.

“Schedules” means, in the case of the ECCA, the schedules attached to the ECCA and in the case of the Company LLC Agreement, the schedules attached to the Company LLC Agreement.

“Section 203 Order” means the order issued by FERC authorizing the Company under Section 203(a)(l) of the FPA to issue the Class B Membership Interests to Mehetia.

“Securities Act” is defined in Section 3.3(e) of the ECCA.

“Site” is defined in the MESPA.

“Site Leases” means, collectively, the DPL Site Lease and the DDOT Site Lease.

“Subsequent Funding” is defined in Section 2.4 of the ECCA.

“Subsequent Funding Date” is defined in Section 2.4 of the ECCA.

“Subsequent Funding Payment” is defined in Section 2.2(b) of the ECCA.

“Subsequent Funding Termination Date” means March 31, 2014 or any later date agreed to by Investor and Clean Technologies.

“Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, joint venture or other entity of which such Person (either alone or through or together with any other Person pursuant to any agreement, arrangement, contract or other commitment) owns, directly or indirectly, 50% or more of the stock or other equity interests the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such corporation or other legal entity.

“System” means each proprietary solid oxide fuel cell power generating unit including the integrated assembly of mounting assemblies, metering, transformers, disconnects, switches, wiring devices and wiring interconnected with the PJM Grid and connected to DPL as the supplier of natural gas to fuel the System.

“Target IRR” means a pre-tax Internal Rate of Return of [***]%.

“Target IRR Notice” is defined in Section 7.1(e) of the Company LLC Agreement.

“Tariffs” means the QFCP-RC Tariff and the Gas Tariff.

“Tax” (and, with correlative meaning, “Taxes” and “Taxable”) means:

(a) any taxes, customs, duties, charges, fees, levies, penalties or other assessments, fees and other governmental charges imposed by any Governmental Authority, including, but not limited to, income, profits, gross receipts, net proceeds,

[***] Confidential Treatment Requested

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windfall profit, severance, property, personal property (tangible and intangible) production, sales, use, leasing or lease, license, excise, duty, franchise, capital stock, net worth, employment, occupation, payroll, withholding, social security (or similar), unemployment, disability, payroll, fuel, excess profits, occupational, premium, severance, estimated, alternative or add-on minimum, ad valorem, value added, turnover, transfer, stamp, or environmental tax, or any other tax, custom, duty, fee, levy or other like assessment or charge of any kind whatsoever, together with any interest, penalty, addition to tax, or additional amount attributable thereto; and

(b) any liability for the payment of amounts with respect to payment of a type described in clause (a), including as a result of being a member of an affiliated, consolidated, combined or unitary group, as a result of succeeding to such liability as a result of merger, conversion or asset transfer or as a result of any obligation under any tax sharing arrangement or tax indemnity agreement.

“Tax Matters Partner” is defined in Section 7.7(a) of the Company LLC Agreement.

“Tax Returns” means any return, report, statement, information return or other document (including any amendments thereto and any related or supporting information) filed or required to be filed with any Governmental Authority in connection with the determination, assessment, collection or administration of any Taxes or the administration of any laws, regulations or administrative requirements relating to any Taxes, including after the Funding any IRS Schedule K-1 issued to Members by the Company, information return, claim for refund, amended return or declaration of estimated Tax.

“Third Party Claim” means any action, proceeding, demand or claim by a third party (it being understood that any Affiliate of a Member shall not be deemed to be a third party) excluding any claim relating to the recapture, loss, or denial of all or a portion of a Grant that is already provided for in Section 6.6, Section 6.7, Section 6.8 and Section 6.9 of the Company LLC Agreement.

“Third Party Penalty Claim” is defined in Section 9.14 of the Company LLC Agreement. “Tracking Model” means the Base Case Model updated to reflect actual results of the Company, but with the assumptions and conventions in Section 6.5 of the Company LLC Agreement remaining unchanged.

“Transaction Documents” means the Company LLC Agreement, the Project Company LLC Agreement, the ECCA, the Administrative Services Agreement, the MESPA, the MOMA, the Credit Suisse Guaranty, the Bloom Guaranty and each of the other documents required to be delivered on the Execution Date, individually and collectively, and, if any Initial Funding or Subsequent Funding shall have occurred, each document required to be delivered on the Initial Funding Date or a Subsequent Funding Date, individually and collectively.

“Transfer” is defined in Section 9.1 of the Company LLC Agreement.

“Treasury” means the United States Department of the Treasury.

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“Treasury Regulations” means the regulations promulgated under the Code, by the Treasury, as such regulations may be amended from time to time. All references herein to specific sections of the regulations shall be deemed also to refer to any corresponding provisions of succeeding regulations, and any reference to temporary regulations shall be deemed also to refer to any corresponding provisions of final regulations.

“UCC” means the Uniform Commercial Code, as the same may be in effect in the State of New York or any other applicable jurisdiction.

OTHER DEFINITIONAL PROVISIONS

All terms in the ECCA and the Company LLC Agreement, as applicable, shall have the defined meanings when used in any certificate or other document made or delivered pursuant thereto unless otherwise defined therein.

As used in the ECCA and the Company LLC Agreement and in any certificate or other documents made or delivered pursuant thereto, accounting terms not defined in the ECCA or the Company LLC Agreement or in any such certificate or other document, and accounting terms partly defined in the ECCA or the Company LLC Agreement or in any such certificate or other document to the extent not defined, shall have the respective meanings given to them under GAAP. To the extent that the definitions of accounting terms in the ECCA or the Company LLC Agreement or in any such certificate or other document are inconsistent with the meanings of such terms under GAAP, the definitions contained in the ECCA or the Company LLC Agreement or in any such certificate or other document shall control.

The words “hereof”, “herein”, “hereunder”, and words of similar import when used in the ECCA and the Company LLC Agreement shall refer to the ECCA or the Company LLC Agreement, as the case may be, as a whole and not to any particular provision of the ECCA or the Company LLC Agreement. Section references contained in the ECCA and the Company LLC Agreement are references to Sections in the ECCA or the Company LLC Agreement, as applicable, unless otherwise specified. The term “including” shall mean “including without limitation”.

The definitions contained in the ECCA and the Company LLC Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms.

Any agreement, instrument or statute defined or referred to herein or in any instrument or certificate delivered in connection herewith means such agreement, instrument or statute as from time to time amended, modified or supplemented and includes (in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein.

Any references to a Person are also to its permitted successors and assigns.

All Article and Section titles or captions contained in the ECCA or the Company LLC Agreement, as applicable, or in any Exhibit or Schedule referred to therein and the table of contents of the ECCA and the Company LLC Agreement are for convenience only and shall not be deemed a part of the ECCA or the Company LLC Agreement, as the case may be, or affect

28

the meaning or interpretation of the ECCA or the Company LLC Agreement, as applicable. Unless otherwise specified, all references in the ECCA or the Company LLC Agreement to numbered Articles and Sections are to Articles and Sections of the ECCA or the Company LLC Agreement, as applicable, and all references herein to Schedules or Exhibits are to Schedules and Exhibits to the ECCA or the Company LLC Agreement, as applicable.

Unless otherwise specified, all references contained in the ECCA or the Company LLC Agreement, in any Exhibit or Schedule referred to therein or in any instrument or document delivered pursuant thereto to dollars or “$” shall mean United States dollars.

The Parties to the ECCA have participated jointly in the negotiation and drafting of the ECCA. The Parties to the Company LLC Agreement have participated jointly in the negotiation and drafting of the Company LLC Agreement. In the event an ambiguity or question of intent or interpretation arises, the ECCA and the Company LLC Agreement shall be construed as if drafted jointly by the respective Parties thereto and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of the ECCA or the Company LLC Agreement, as the case may be.

29

ANNEX II

PROJECTED CONTRIBUTION SCHEDULE

1

ECCA

Annex II:

Projected Contribution Schedule for Systems 1-58

Quarter	Clean technologies II, LLC(1)		Mehetia Inc.
[***]		[***]		[***]
[***]		[***]		[***]
[***]		[***]		[***]
[***]		[***]		[***]
[***]		[***]		[***]
[***]		[***]		[***]
[***]		[***]		[***]
[***]		[***]		[***]

(1) Clean Technologies II, LLC contributed [***] in [***], of which $[***] was applied towards Systems [***], with the remaining to be applied towards Systems [***]. Note: Projected Contribution Schedule for Systems [***] TBD. Mehetia Inc.’s aggregate contribution for [***] Systems not to exceed [***]. Clean Technologies II, LLC’s aggregate contribution for [***] Systems must equal balance of purchase price of each System not funded by Mehetia Inc. or the Lenders.

[***] Confidential Treatment Requested

1

ANNEX III

BASE CASE MODEL

[***]

[Base Case Model Spreadsheet Redacted]

[***] Confidential Treatment Requested

1

SCHEDULES to ECCA

(Initial Funding)

1

SCHEDULE 3.1(d)

LITIGATION

None.

Schedule 3.1(d) - 1

SCHEDULE 3.1(g)

TAXES

None.

Schedule 3.1(g) - 1

SCHEDULE 3.1(h)

FINANCIAL STATEMENTS

Diamond State Generation Holdings, LLC

Unaudited Consolidated Balance Sheet

	Diamond State Generation Holdings, LLC		Diamond State Generation Partners, LLC		Diamond State Generation Holdings, LLC Consolidated
[***]		[***]		[***]		[***]
[***]		[***]		[***]		[***]
[***]		[***]		[***]		[***]
[***]		[***]		[***]		[***]
[***]		[***]		[***]		[***]
[***]		[***]		[***]		[***]

[***] Confidential Treatment Requested

Schedule 3.1(h) - 1

Diamond State Generation Partners, LLC

Unaudited Balance Sheet & Income Statement

Initial Investment

Cash Investment

Inventory Acquisition

Return of Equity

[***]

[

***]

[

***]

[

***]

[

***]

[

***]

[***]

[

***]

[

***]

[

***]

[

***]

[

***]

[***]

[

***]

[

***]

[

***]

[

***]

[

***]

[***]

[

***]

[

***]

[

***]

[

***]

[

***]

[***]

[

***]

[

***]

[

***]

[

***]

[

***]

[***]

[

***]

[

***]

[

***]

[

***]

[

***]

[***]

[

***]

[

***]

[

***]

[

***]

[

***]

[***]

[

***]

[

***]

[

***]

[

***]

[

***]

[***]

[

***]

[

***]

[

***]

[

***]

[

***]

[***]

[

***]

[

***]

[

***]

[

***]

[

***]

[***] Confidential Treatment Requested

Schedule 3.1(h) - 2

SCHEDULE 3.1(j)

GOVERNMENTAL APPROVALS AND FILINGS

1. Order from FERC granting Project Company MBR Authority required prior to the Project Company selling electric energy (including test energy) capacity or ancillary services from the Project.

2. Notice of Self-Certification of Exempt Wholesale Generator Status, filed March 15, 2012, in Docket No. EG12-44-000.

Schedule 3.1(j) - 1

SCHEDULE 3.1(k)

ENVIRONMENTAL MATTERS

None.

Schedule 3.1(k) - 1

SCHEDULE 3.1(l)

PERMITS

Brookside Site

Permit	Issuing Authority	Status
National Pollutant Discharge Elimination System (“NPDES”) Permit	Delaware Department of Natural Resources and Environmental Control (“DNREC”)	Approved
Air Permit	DNREC	Approved
Stormwater Review and Engineering Approval	New Castle County/DNREC	Completed
Planning Dept. and Site Plan Approval	New Castle County	Approved
Feasibility Study	PJM	Completed
Generation Interconnection Facilities Study Report	PJM	Completed

Red Lion Site

Permit	Issuing Authority	Status
Underground Injection Control Permit (to discharge waste water from water treatment plant)	DNREC	Application in progress
Waiving of 100 foot well restriction on the deed	Delaware City Refining Co.	Applied for, DBR working on it
Building Occupancy Permit	New Castle County	Cannot apply until after County inspections completed
Gas permit for building	New Castle County	Will be submitted by building contractor
System Impact Study	PJM	In progress
Transmission line right of way (route TBD)	DPL	Not applied for, waiting on PJM Interconnection Services Agreement to be completed
Building Permit	New Castle County	Not issued until after contractor selected and pre-construction meeting held with NCC

Schedule 3.1(1) - 1

DNREC Coastal Zone Permit	DNREC	Hearing scheduled for 3/6/2012
DNREC well permit	DNREC	Submitted 11/19/2011 but not yet approved
Record Minor	New Castle County	Submitted 12/21/2011 but not yet approved
Air Permit (Operating & Construction)	DNREC	To be issued in connection with Coastal Zone Permit
Stormwater Review and Engineering Approval	New Castle County	Approved
Planning Dept. and Site Plan Approval	New Castle County	Approved
Record Plan	New Castle County	To be recorded
DDOT Entrance Permit	DDOT	Design approved but permit will be issued as soon as DPL approves Site Remediation Estimate
NPDES Permit (construction)	DNREC	Completed
NPDES Permit (operation)	DNREC	In progress
Fire marshal Review	State of Delaware	Completed
Feasibility Study	PJM	Completed
Wetlands Review	New Castle County	Completed

Schedule 3.1(1) - 2

SCHEDULE 3.1(m)

INSURANCE

Please see attached.

Schedule 3.1(m) - 1

Insurance Services  |  Risk Management  |  Employee Benefits        

Diamond State Generation Partners, LLC

Revised Insurance Program Chart: Closing — Initial Funding as of 4/13/12

Falvey (Lloyds), A XV

Hartford, A XV

DSGP	Bloom Energy	DSGP
Transit/Cargo Stock	Transit/Cargo Stock	PROPERTY POLICY
(12/30/11-12/30/12)	(7/10/11-7/11/12)	(4/13/12-4/13/12)
Expeditors, Milpitas, CA and Moffett Filed, CA Blanket Location Limit: $17,000,000 Earthquake/Flood/Wind Sub Limit: $5,000,000 Transit Limit: $2,500,000	Installation Limits: $15,000,000 Earthquake/Flood/Wind Sub Limit: $5,000,000 Transit Limit: $3,000,000	Brookside, DE Location Property Limit: $27,876,383 Includes Installation Business Income Incl. EE Limit $2,095,098 Earthquake Limit for Brookside site: $25M Flood Limit for Brookside site: $10,000,000 Wind Limit for Brookside site: Policy Limits Dependent Business Income Limit: $5M
$50,000 PD; 2.5% TIV subject to $50,000 minimum for Earthquake, Flood & Wind; 72 Hour Waiting Period for Earthquake	$50,000 PD; 5% TIV subject to $100,000 minimum for Earthquake, Flood & Wind; 72 Hour Waiting Period for Earthquake	$50,000 PD; 14 Day Deductible for BI-EE & Dependent BI; 72 Hour Waiting Period for BI-EE & Depend BI; $1000,000 Flood, Earthquake & Wind

www.wsndco.com CA License 032999=8 DR License 812979

Schedule 3.1(m) - 2

SCHEDULE 3.1(n)

REAL PROPERTY

1. Lease Agreement between Delaware Department of Transportation and Diamond State Generation Partners, LLC, dated as of July 31, 2011.

2. Lease Agreement between Delmarva Power & Light Company and Diamond State Generation Partners, LLC, dated as of February 10, 2012.

Schedule 3.1(n) - 1

SCHEDULE 3.1(o)

PERSONAL PROPERTY

	Citibank
		Account #
[***]	[***]		[	***]
	[***]		[	***]
[***]	[***]		[	***]

[***] Confidential Treatment Requested

Schedule 3.1(o) - 1

SCHEDULE 3.1(p)

LIENS

None.

Schedule 3.1(p) - 1

SCHEDULE 3.1(q)

MATERIAL CONTRACTS

1. Lease Agreement between Delaware Department of Transportation and Diamond State Generation Partners, LLC, dated as of July 31, 2011.

2. Lease Agreement between Delmarva Power & Light Company and Diamond State Generation Partners, LLC, dated as of February 10, 2012.

3. Delmarva Power & Light Company’s Service Classification “QFCP-RC” for REPS Qualified Fuel Cell Provider Projects as approved by the Delaware Public Service Commission in accordance with the REPS Act on October 18, 2011.

4. Delmarva Power & Light Company’s Service Classification “LVG-QFCP-RC” filed for gas service applicable to REPS Qualified Fuel Cell Provider Projects and approved by the Delaware Public Service Commission in Order No. 8062 dated October 18, 2011.

5. Service Application and Agreement to Comply with Obligations dated as of June 28, 2011 between the Diamond State Generation Partners, LLC and Delmarva Power & Light Company.

6. Bill of Sale and Agreement effective as of December 30, 2011 between Bloom Energy Corporation and Diamond State Generation Partners, LLC.

7. Capital Contribution Agreement dated December 30, 2011, among Bloom Energy Corporation, Clean Technologies II, LLC, Diamond State Generation Holdings, LLC, and Diamond State Generation Partners, LLC.

8. Facilities Study Agreement dated November 23, 2011 between Diamond State Generation Partners, LLC and PJM.

9. System Impact Study Agreement dated August 29, 2011 between Diamond State Generation Partners, LLC and PJM.

10. Credit Agreement, dated March 22, 2012, among Diamond State Generation Partners, LLC, RBS Securities Inc., The Royal Bank of Scotland plc, as administrative agent and collateral agent, and the Lenders.

11. Security Agreement, dated March 22, 2012, between Diamond State Generation Partners, LLC and The Royal Bank of Scotland plc, as collateral agent.

12. Pledge and Security Agreement, dated March 22, 2012, among Diamond State Generation Holdings, LLC, Diamond State Generation Partners, LLC and The Royal Bank of Scotland plc, as collateral agent.

13. Depositary Agreement, dated March 22, 2012, among Diamond State Generation Partners, LLC and The Royal Bank of Scotland plc, as administrative agent, collateral agent, and Wilmington Trust, N.A., as depositary.

Schedule 3.1(q) - 1

14. Interparty Agreement, dated as of April 13, 2012, among Mehetia Inc., Diamond State Generation Partners, LLC, Diamond State Generation Holdings, LLC, Clean Technologies II, LLC, and The Royal Bank of Scotland plc, as administrative agent and collateral agent.

15. Cash Grant Indemnity Agreement, dated as of April 13, 2012, by Mehetia Inc. in favor of Diamond State Generation Partners, LLC, and The Royal Bank of Scotland plc, as collateral agent.

16. Cash Grant Indemnity Agreement, dated as of April 13, 2012, by Bloom Energy Corporation in favor of Diamond State Generation Partners, LLC, and The Royal Bank of Scotland plc, as collateral agent.

Defaults under any Material Contract or any of the Transaction Documents

None.

Schedule 3.1(q) - 2

SCHEDULE 3.1(s)

AFFILIATE TRANSACTIONS

1. Assignment Agreement (with respect to the Agreement for Construction Management Services dated September 15, 2011 between Diamond State Generation Partners, LLC and Hill International, Inc.), dated as of March 15, 2012, by and between Diamond State Generation Partners, LLC and Bloom Energy Corporation.

Schedule 3.1(s) - 1

SCHEDULE 3.1(y)

INTELLECTUAL PROPERTY

Geography	Serial No.	Patent Number
AU	2006201407
BR	P10601582-4
CN	200610077861.5	ZL200610077861.5
CN	200680024042.2	ZL200680024042.2
CN	200880011738.0
CN	200880019306.4
CN	20088010539.6
CN	200880115166.0
CN	200980105333.8
CN	200980145976.5
DE	102006020097.7
DE	602004028720.2	162091
EP	3742806.7
EP	4758024.6	1620911
EP	4759269.6
EP	4783630.9
EP	4817021.1
EP	4821588.3
EP	5723852.9
EP	05759486.3
EP	6759276.6
EP	6788269.6
EP	6800263.3
EP	6800264.1
EP	6800265.8
EP	7007696.3
EP	7716860.7
EP	7754708.1
EP	7811636.5
EP	8780322.7
EP	09712742.7
EP	10797787.8

Schedule 3.1(q) - 1

Fl	4758024.6	1620911
FR	06/03994
FR	06/03998
GB	4758024.6	1620911
IN	1093/KOLN/P/2004	233867
IN	1585/KOLNP/2011
IN	1746/KOLNP/2005	226743
IN	176/KOLNP/2007
IN	2055/KOLNP/2005	226430
IN	2082/KOLNP/2006
IN	243/KOLNP/2010
IN	2816/KOLNP/2010
IN	3010/KOLNP/2006
IN	311/KOLNP/2008
IN	3286/KOLNP/2008
IN	329/KOLNP/2008
IN	343/KOLNP/2008
IN	366/KOLNP/2008
IN	4257/KOLNP/2007
IN	4399/KOLNP/2008
IN	576/KOL/2007
IN	652/KOLNP/2006	230333
IN	692/KOLNP/2006	226485
IN	820/GHE/2006
IN	852/CHENP/2012
IN	861/KOLNP/2009
JP	2003-570412
JP	2006-130431
JP	2008-511221
JP	2008-524021
JP	2008-524022
JP	2008-524023
JP	2008-524024
JP	2008-552342
JP	2010-518237
JP	2010-547715
KR	2004-7013022

Schedule 3.1(q) - 2

PCT	PCT/US03/04808
PCT	PCT/US03/04989
PCT	PCT/US03/13151
PCT	PCT/US03/29127
PCT	PCT/US04/08741
PCT	PCT/US04/08742
PCT	PCT/US04/08745
PCT	PCT/US04/10818
PCT	PCT/US04/13895
PCT	PCT/US04/27347
PCT	PCT/US04/29458
PCT	PCT/US04/41082
PCT	PCT/US05/06164
PCT	PCT/US05/10671
PCT	PCT/US05/29747
PCT	PCT/US05/32138
PCT	PCT/US06/17655
PCT	PCT/US06/28612
PCT	PCT/US06/28613
PCT	PCT/US06/28614
PCT	PCT/US06/28615
PCT	PCT/US06/37459
PCT	PCT/US07/01584
PCT	PCT/US07/01779
PCT	PCT/US07/19887
PCT	PCT/US07/19888
PCT	PCT/US07/21597
PCT	PCT/US07/21630
PCT	PCT/US07/24457
PCT	PCT/US07/25727
PCT	PCT/US07/25785
PCT	PCT/US07/06373
PCT	PCT/US07/08224
PCT	PCT/US07/08225
PCT	PCT/US07/19155
PCT	PCT/US07/19156
PCT	PCT/US08/000413

Schedule 3.1(q) - 3

PCT	PCT/US08/01162
PCT	PCT/US08/01367
PCT	PCT/US08/02114
PCT	PCT/US08/02411
PCT	PCT/US08/04216
PCT	PCT/US08/04600
PCT	PCT/US08/04710
PCT	PCT/US08/05516
PCT	PCT/US08/05517
PCT	PCT/US08/06993
PCT	PCT/US08/07360
PCT	PCT/US08/08951
PCT	PCT/US08/09069
PCT	PCT/US08/12671
PCT	PCT/US08/01814
PCT	PCT/US08/02410
PCT	PCT/US08/84027
PCT	PCT/US09/00991
PCT	PCT/US09/34367
PCT	PCT/US09/65095
PCT	PCT/US10/27899
PCT	PCT/US10/41179
PCT	PCT/US10/41221
PCT	PCT/US10/41238
PCT	PCT/US10/42316
PCT	PCT/US10/45182
PCT	PCT/US10/47540
PCT	PCT/US10/50577
PCT	PCT/US11/21664
PCT	PCT/US11/47976
PCT	PCT/US11/57440
PCT	PCT/US11/60604
PCT	PCT/US11/62328
PCT	PCT/US12/20356
TW	98124907
TW	98139664
TW	099108262

Schedule 3.1(q) - 4

TW	99126983
TW	99129535
TW	100102963
TW	100129273
TW	100138524
TW	100141483
TW	100144017
TW	101100717
TW	099122589
US	10/299,863	6,854,688
US	10/300,021	7,067,208
US	10/368,348	7,255,956
US	10/368,425
US	10/368,493	7,045,237
US	10/369,103
US	10/369,133	7,135,248
US	10/369,322	7,144,651
US	10/394,202	7,045,238
US	10/394,203	6,924,053
US	10/428,804	6,908,702
US	10/446,704	7,482,078
US	10/465,636	7,201,979
US	10/635,446	6,821,663
US	10/653,240	7,364,810
US	10/658,275	7,150,927
US	10/822,707
US	10/853,194
US	10/866,238	7,575,822
US	11/002,681	7,422,810
US	11/028,506
US	11/076,102
US	11/095,552	7,514,166
US	11/100,489	7,524,572
US	11/124,120
US	11/124,817	7,858,256
US	11/125,267	7,700,210
US	11/138,292

Schedule 3.1(q) - 5

US	11/188,118
US	11/188,120	7,591,880
US	11/188,123	7,520,916
US	11/207,018
US	11/221,983
US	11/236,737	7,785,744
US	11/274,928	8,097,374
US	11/276,717	7,713,649
US	11/326,400
US	11/384,426
US	11/389,282
US	11/404,760	7,599,760
US	11/432,503	7,572,530
US	11/433,582	7,781,912
US	11/436,537
US	11/457,016
US	11/491,487
US	11/491,488	8,101,307
US	11/522,976
US	11/524,241	7,846,600
US	11/526,029	7,968,245
US	11/594,797	7,887,971
US	11/641,942	7,393,603
US	11/656,006
US	11/656,445	8,071,248
US	11/656,563
US	11/703,152
US	11/707,070
US	11/711,625
US	11/717,774	7,878,280
US	11/730,255	7,833,668
US	11/730,256	7,883,803
US	11/730,529	7,704,617
US	11/730,540
US	11/730,541	7,883,813
US	11/730,555	7,951,509
US	11/785,034

Schedule 3.1(q) - 6

US	11/797,707	7,974,106
US	11897,708	7,705,490
US	11/802,006
US	11/896,487
US	11/898,065
US	11/905,051
US	11/905,477
US	11/907,204
US	11/907,205
US	11/984,605
US	11/987,220
US	12/000,924	7,951,496
US	12/005,344	7,781,112
US	12/010,884	8,110,319
US	12/071,396
US	12/078,926
US	12/081124
US	12/149,488
US	12/149,816
US	12/149,984
US	12/155,367	7,846,599
US	12/213,088
US	12/219,684
US	12/222,294
US	12/222,295
US	12/222,712	7,704,618
US	12/222,736
US	12/225,915
US	12/230,486	8,071,241
US	12/268,585
US	12/289,510
US	12/29,2151	8,067,129
US	12/292,078
US	12/379,299
US	12/379,310
US	12/379,618
US	12/382,173	7,931,997

Schedule 3.1(q) - 7

US	12/402,423	8,097,378
US	12/457,982
US	12/458,171
US	12/458,172
US	12/458,173
US	12/458,341	8,071,246
US	12/458,342
US	12/458,355
US	12/458,356
US	12/461,413
US	12/507,670
US	12/535,971
US	121585,627
US	12/591,464
US	12/591,872
US	12/591,986
US	12/659,742
US	12/659,899
US	12/759395
US	12/765,208
US	12/765,732	7,901,814
US	12/765213	8,057,944
US	12/766,711
US	12/850,885
US	12/873,935
US	12/889,776
US	12/892,582
US	12/986,291	8,053,136
US	13/009,085
US	13/020,598
US	13/033,990
US	13/154,888
US	13/211,903
US	13/242,194
US	13/268,233
US	13/269,006
US	13/279,921

Schedule 3.1(q) - 8

US	13/282,899
US	13/286,749
US	13/295,527
US	13/306,511
US	13/339,860
US	13/344,077
US	13/344,232
US	13/344,304
US	13/344,364
US	60/357,636
US	60/377,199
US	60/420,259
US	60/461,190
US	60/537,899
US	60/552,202
US	60/602,891
US	60/608,902
US	60/660,515
US	60/664,294
US	60/666,304
US	60/698,468
US	60/701,976
US	60/701,977
US	60/760,933
US	60/782,268
US	60/788,042
US	60/788,043
US	60/788,044
US	60/792,614
US	60/808,113
US	60/809,395
US	60/816,878
US	60/842,361
US	60/852,396
US	60/853,443
US	60/861,444
US	60/861,708

Schedule 3.1(q) - 9

US	60/875,825
US	60/887,398
US	60/901,638
US	60/907,524
US	60/907,706
US	60/924,874
US	60/929,161
US	60/935,092
US	60/935,471
US	60/996,352
US	61/000,891
US	61/064,143
US	61/064,144
US	61/064,566
US	61/129,620
US	61/129,621
US	61/129,622
US	61/129,623
US	61/129,759
US	61/129,838
US	61/129,882
US	61/136,091
US	61/193,596
US	61/193377
US	61/202,639
US	61/202,683
US	61/202,876
US	61/272,056
US	61/272,227
US	61/272,494
US	61/282528
US	61/298,468
US	61/374,424
US	61/386,257
US	61/406,265
US	61/413,629
US	61/418,043

Schedule 3.1(q) - 10

US	61/430,255
US	61/467,444
US	61/478,697
US	61/494,397
US	61/496,143
US	61/501,367
US	61/501,382
US	61/501,599
US	61/501,604
US	61/501,607
US	61/501,610
US	61/501,613
US	61/511,305
US	61/535,121
US	61/539,045
US	61/560,893
US	61/561,344
US	61/600,102
US	61/600,132
US	61/600,171
Israel	207645
TRADEMARKS
Country	Application Serial Number / Registration Number	Mark
US	Reg. No. 3,532,547	GRID TO GO
US	Reg. No. 3,677,943	ENERGY SAVER
US	Reg. No. 3,673,390	BLOOM ENERGY
US	Reg. No. 3,362,904	BLOOMENERGY
CTM	Serial No. 8889891	BLOOM ENERGY
US	Serial No. 77/943,428	BLOOM BOX
US	Serial No. 77/950,803	BLOOM ENERGY
US	Serial No. 85/266,176	BLOOM ELECTRONS
US	Reg. No. 3,620,161	POWDER TO POWDER
US	Serial No. 77/388,058	BE

Schedule 3.1(q) - 11

US	Reg. No. 3,213,856	ION AMERICA
US	Serial No. 85/546,516	THE BLOOM FOUNDATION
US	Serial No. 85/546,526	THE BLOOM ENERGY FOUNDATION
US	Serial No. 85/546532	BLOOM ENERGY MY ENERGY

Agreements entered into since July 9, 2010:

1. Trademark Co-Existence Agreement, dated July 1, 2011, between Bloom and Bloom Engineering Company.

Schedule 3.1(q) - 12

EX-10

Exhibit 10.36

EXECUTION VERSION

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

FIRST AMENDMENT TO THE

EQUITY CAPITAL CONTRIBUTION AGREEMENT

WITH RESPECT TO

DIAMOND STATE GENERATION HOLDINGS, LLC

THIS FIRST AMENDMENT TO THE EQUITY CAPITAL CONTRIBUTION AGREEMENT WITH RESPECT TO DIAMOND STATE GENERATION HOLDINGS, LLC, (this “Amendment”), is executed as of April 13, 2012, by and among Mehetia Inc., a Delaware corporation (“Mehetia”), Clean Technologies II, LLC, a Delaware limited liability company (“Clean Technologies”), Diamond State Generation Holdings, LLC, a Delaware limited liability company (the “Company”), and Diamond State Generation Partners, LLC, a Delaware limited liability company (the “Project Company”). Each of the foregoing entities shall be referred to individually herein as a “Party” and collectively as the “Parties”.

RECITALS

A. WHEREAS, the Parties executed that certain Equity Capital Contribution Agreement with respect to Diamond State Generation Holdings, LLC, dated as of March 16, 2012 (the “Contribution Agreement”).

B. WHEREAS, the Parties desire to amend the Contribution Agreement as more fully set forth in this Amendment.

NOW, THEREFORE, in consideration of the mutual covenants set forth in this Amendment, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree to amend the Contribution Agreement as follows:

AGREEMENT

1. Amendments.

1.1 Section 2.2(a). Section 2.2(a) of the Contribution Agreement is deleted in its entirety and replaced with the following:

“Subject to the terms and conditions in this Agreement, Investor will make a Capital Contribution on the Initial Funding Date in the amount set forth in the Projected Contribution Schedule for the quarter “Q1 ‘12” (an “Initial Funding Payment”). Subject to the terms and conditions in this Agreement, Clean Technologies will make a Capital Contribution on or before the Initial Funding Date in the amount set forth in the Projected Contribution Schedule for the quarter “Q1 ‘12”; provided, Clean Technologies may defer making $[***] of such Capital Contribution (which amount is to be used by the Project Company to pay the cost of the IDC LC (as defined in the Credit Agreement) required under the Credit Agreement to cover interest payments during construction of the Project) until the IDC LC (as defined in the Credit Agreement) is required to be in place, at which time Clean Technologies shall make such Capital Contribution.”

[***] Confidential Treatment Requested

[Signature Page to First Amendment to ECCA]

1.2. Section 2.2(b). Section 2.2(b) of the Contribution Agreement is amended by adding the text “or before” after the word “on” that appears in the sixth line of the last paragraph of such subsection.

1.3. Section 2.2(g). Section 2.2(g) of the Contribution Agreement is deleted in its entirety and replaced with the following:

“Notwithstanding anything contained herein to the contrary, in the event the Initial Funding occurs but any of the conditions set forth in Sections 2.7(v), (w), (x), (y) and (aa) have not been satisfied by the 4ate on which Clean Technologies provides notice of the first Subsequent Funding Date following the Initial Funding Date, Investor may, at its option, provide Clean Technologies not less than 10 written notice (the “Refund Notice”) that it desires to receive a refund of the Initial Funding Payment made by Investor. Upon receipt of such notice Clean Technologies shall have 10 to pay or cause such amount to be paid to Investor (such date, the “Refund Payment Date”). Upon the giving of the Refund Notice to Clean Technologies, Investor shall have no further obligation to make any Funding Payment until all of the conditions in Section 2.5 and Section 2.7 are satisfied. If all of the conditions in Section 2.5 and Section 2.7 are satisfied, Clean Technologies may by not less than 10 Business Days’ written notice to Investor again require (subject to the terms and conditions of this Agreement) Investor to make a Capital Contribution of the Initial Funding Payment and any Subsequent Funding Payments, as provided under this Agreement.”

1.4. Section 2.3. Section 2.3 of the Contribution Agreement is amended by deleting the text “on the Initial Funding Date by Clean Technologies of the CT Funding Amount” that appears in such section and replacing such text with “to be made on or before the Initial Funding Date by Clean Technologies pursuant to the last sentence of Section 2.2(a).”

1.5. Section 2.5(h). Section 2.5(h) of the Contribution Agreement is amended by deleting the text “the audited” that appears in such subsection and replacing it with the text “an unaudited”.

1.6. Section 2.5(r). Section 2.5(r) of the Contribution Agreement is deleted in its entirety and replaced with the following:

“Clean Technologies shall, prior to or simultaneously with the Initial Funding, make a Capital Contribution to the Company as required by Section 2.2(a), other than amounts that may be deferred as provided therein;”

1.7. Section 2.5(cc). Section 2.5(cc) of the Contribution Agreement is deleted in its entirety and replaced with the following:

“Project Company has entered into the Site Lees, each Site Lease having such terms and conditions reasonably satisfactory to Investor (except that the DDOT Site Lease shall be subject to amendment as set forth in Section 2.7(x));”.

2

1.8. Section 2.7(i). Section 2.7(i) of the Contribution Agreement is amended by deleting the text “or DPL Agreements” that appears in such subsection.

1.9. Section 2.7(y). Section 2.7(y) of the Contribution Agreement is amended by deleting the text “and” that appears after the “;” in such subsection.

1.10. Section 2.7(z). Section 2.7(z) of the Contribution Agreement is amended by deleting the “.” that appears in such subsection and replacing it with “;”.

1.11. Section 2.7(aa). The following is inserted into the Contribution Agreement as a new Section 2.7(aa):

“Project Company has received either (i) an owner’s ALTA extended coverage policy of title insurance (2006 form) issued by a title insurance company and in a form and substance acceptable to Investor, which policy shall insure that Project Company’s leasehold interest at each Site is free and clear of all defects and encumbrances, except Permitted Liens, and shall contain such endorsements as are reasonably requested by Investor, or (ii) the unconditional and irrevocable commitment of the title insurance company to issue such a policy, in each case in a coverage amount equal to the amount reasonably acceptable to Investor; and”

1.12. Section 2.7(bb). The following is inserted into the Contribution Agreement as a new Section 2.7(bb):

“Investor has received the audited financial report of Bloom as of its most recent fiscal year end.”

1.13. Annex I of the Contribution Agreement is amended by deleting the definition of “CT Funding Amount” contained therein and replacing it with the following:

““CT Funding Amount” means on any Subsequent Funding Date, an amount that is equal to the required Progress Contribution less (i) the applicable Loan Proceeds of the Lenders and (ii) the applicable Subsequent Funding Payment of the Investor.”

1.14. Exhibit I of the Contribution Agreement is deleted in its entirety and replaced with Exhibit I attached to this Amendment.

2. Ratification. The Contribution Agreement, as amended hereby, is in all respects ratified and confirmed and shall be and remain in full force and effect. All references to the Contribution Agreement in any other document or instrument shall be deemed to mean such Contribution Agreement as amended by this Amendment.

3

3. Amendments. No amendment, modification, termination or waiver of any provision of this Amendment shall be effective unless the same shall be in writing and duly executed by both Parties.

4. Enforceability. This Amendment shall be enforceable by and binding upon and shall inure to the benefit of the Parties hereto and their respective successors and assigns.

5. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of New York, without regard to principles of conflicts of law (other than Section 5-1401 of the New York General Obligations Law, which shall apply to this Amendment).

6. Counterparts and Facsimile Execution. This Amendment may be executed and delivered (including by facsimile transmission or “portable document format”) in one or more counterparts, all of which shall be considered one and the same and shall become effective when one or more counterparts” have been signed by each of the Parties and delivered to the other Party, it being understood that all Parties need not sign the same counterpart. Signatures of the Parties transmitted by facsimile or electronic mail shall be deemed to be their original signatures for all purposes.

7. Severability. If any term or other provision of this Amendment is invalid, illegal, or incapable of being enforced by any rule of Applicable Law, or public policy, all other conditions and provisions of this Amendment shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated herein are not affected in any manner materially adverse to any Party.

[Remainder of page intentionally left blank. Signature page follows.]

4

This Amendment is executed as of the date first set forth above.

MEHETIA INC.
By:
	Name:
	Title:
CLEAN TECHNOLOGIES II, LLC
By:
	Name:
	Title:
DIAMOND STATE GENERATION HOLDINGS, LLC
By:
	Name:
	Title:
DIAMOND STATE GENERATION PARTNERS, LLC
By:
	Name:
	Title:

[Signature Page to First Amendment to ECCA]

EXHIBIT I

FORM OF FUNDING NOTICE

                , 20    ¹

Mehetia Inc.

Eleven Madison Avenue

New York, NY 10010

Attn: [***]

Re: Funding Notice

Ladies and Gentlemen:

Reference is made to that certain Equity Capital Contribution Agreement (as amended, the “ECCA”) made and entered into as of March 16, 2012, and as amended by the First Amendment to the Equity Capital Contribution Agreement with respect to Diamond State Generation Holdings, LLC dated as of April 13, 2012, by and among Mehetia Inc., a Delaware corporation (“Mehetia”), Clean Technologies II, LLC, a Delaware limited liability company (“Clean Technologies”), Diamond State Generation Holdings, LLC, a Delaware limited liability company (the “Company”), and Diamond State Generation Partners, LLC, a Delaware limited liability company (the “Project Company”). All capitalized terms, unless otherwise defined herein, shall have the meanings ascribed to them in the ECCA.

Pursuant to Section 2.7(r) of the ECCA, the Company hereby delivers to Mehetia this notice and certifies as follows as of Mehetia’s Subsequent Funding Date (unless notified to the contrary prior to Mehetia’s Subsequent Funding Date):

(1) (i) all conditions precedent in Section 2.5 and Section 2.7 (other than in Section 2.5(aa)) of the ECCA continue to be satisfied and (ii) there have been no material adverse changes from the circumstances addressed in the due diligence reports delivered to Mehetia under Sections 2.5(a) and (b) of the ECCA;

(2) Mehetia will receive an officer’s certificate from Clean Technologies as of the Subsequent Funding Date certifying that each of the representations and warranties of Clean Technologies in Section 3.2 of the ECCA is (i) true and correct in all material respects as of such Funding Date, except to the extent that any such representation or warranty shall have been expressly made only as of an earlier date in which case such representation and warranty was true and correct in all material respects as of such earlier date or (ii) if and to the extent such representations and warranties are qualified by the words “material”, “Material Adverse Effect” or similar qualification, true and correct, as qualified, as of such Funding Date (or such earlier date, as applicable);

(3) the net equity investment in the Company by Mehetia (meaning the aggregate Capital Contributions of Mehetia including the Subsequent Funding contemplated herein, less actual pre-tax cash distributions received by Mehetia from the Company), collectively, does not exceed [***]

¹  To be delivered at least [***] prior to the applicable Subsequent Funding Date.

[***] Confidential Treatment Requested

(4) no material ongoing breach exists by Clean Technologies, the Company, Project Company, Bloom, the Managing Member, DPL or PJM under any of the SPA, the MOMA, the DPL Agreements, the PJM Agreements, the Administrative Services Agreement, the Company LLC Agreement, the Project Company LLC Agreement, the Credit Documents, the ECCA or any other Transaction Document or Material Contract, as applicable, and each of the MESPA, the MOMA, the DPL Agreements, the PJM Agreements, the Administrative Services Agreement, the Company LLC Agreement, the Project Company LLC Agreement, the Credit Documents, the ECCA and any other Transaction Document or Material Contract is in full force and effect;

(5) attached hereto as Attachment 1 are invoices, purchase or supply agreements, or other evidence of delivery and related agreements and documents demonstrating that a Grant is expected to be available for Systems that will be funded by this proposed Subsequent Funding because the Capital Contribution by Clean Technologies has been used by Project Company to incur Project costs that will allow the portions of the Project for which a Grant application will be filed and for which such costs are incurred to meet the 5% “safe harbor” for Grant eligibility under the Guidance, and both Bloom and Project Company have used commercially reasonable efforts to satisfy this requirement;²

(6) attached hereto as Attachment 2, are one or more Equity Contribution Notices delivered to the Company by the Project Company which relate to the Capital Contributions requested by this Funding Notice;

(7) the Grant program has not been repealed and none of the applications for the Grant that have been filed with respect to any Systems prior to this proposed Subsequent Funding have been rejected or denied on grounds that suggest Systems to be paid for with this proposed Subsequent Funding are ineligible for a Grant or are eligible for a Grant that is less by more than a de minims amount than the applied for amount, and no notification from the Treasury requesting additional information related to eligibility for a Grant with respect to any previously filed application has been received that, in each such case, has been the subject of a response that is not to the reasonable satisfaction of Mehetia;³

(8) Clean Technologies will make its corresponding CT Funding Amount in the amount of $[●] to the Company prior to, or simultaneously with Mehetia’s Subsequent Funding;

(9) with respect to the Systems for which this notice requests a portion of a Subsequent Funding Payment that will be used to pay any’[***] % Progress Payments, (i) with respect to Subsequent Fundings for the first [***] Systems, Mehetia has received confirmation that the amount of loan proceeds from the Lenders pursuant to the manner of calculation ‘set forth in the Base Case Model have either been funded to the Project Company or the administrative agent under the Credit Agreement has in writing confirmed to Mehetia that all conditions precedent to

²  Not to be included if an Alternative Tax Program has been elected under Section 7.5(b)(i) of the ECCA.

³  Not to be included if an Alternative Tax Program has been elected under Section 7.5(b)(i) of the ECCA.

[***] Confidential Treatment Requested

2

such funding have been satisfied or waived and the Lenders are prepared to make such funding contemporaneous with Project Company’s drawdown of such Progress Contribution from the Company and (ii) with respect to Subsequent Fundings for the remaining Systems, Mehetia has received confirmation that the loan proceeds agreed to in writing by the parties to the ECCA and the Lenders and then reflected in an updated Base Case Model have either been funded to the Project Company or the administrative agent under the Credit Agreement has in writing confirmed to Mehetia that all conditions precedent to such funding have been satisfied or waived and the Lenders are prepared to make such funding contemporaneous with Project Company’s drawdown of such Progress Contribution from the Company;

(10) no breach exists under the Bloom Guaranty and the Bloom Guaranty, the REPS Act and the Tariffs are in full force and effect and there are no pending proceedings challenging the same in any respect material to the parties hereto;

(11) Project Company has received payment under the QFCP-RC Tariff and the PJM Agreements for all sales of energy, capacity, ancillary services and environmental attributes up to the date of the Subsequent Funding as well as reimbursement for fuel in accordance with the DPL Agreements (except, in each case, for amounts for which payment is not yet due);

(12) the Initial Funding Payment, any prior Subsequent Funding Payments and any prior CT Funding Amounts have been contributed by Company to Project Company in accordance with the Company LLC Agreement, and not more than $[***] of such amount is unspent by Project Company;

(13) [Include if funding is for Systems beyond the first 10MW of Portfolio capacity: the Systems being funded under this proposed Subsequent Funding are being manufactured by Bloom in Delaware];

(14) Project Company (i) has entered into all PJM Agreements, DPL Agreements and all other agreements and made all filings and other arrangements necessary for the transmission, interconnection and delivery of the Portfolio’s energy to the PJM Grid and (ii) is a PJM member (or has contracted with a market participant in PJM to perform its PJM obligations and such market participant has entered into all required PJM Agreements and is in compliance therewith);

(15) Project Company has obtained all necessary authorizations from FERC to sell the Portfolio’s energy at market-based rates as contemplated by the QFCP-RC Tariff and is in compliance with such authorization and Mehetia was provided with the proposed market-based rate filing at least 30 days in advance of the filing;

(16) Project Company is an Exempt Wholesale Generator;

(17) attached hereto as Attachment 3 are all reports and notices produced or received by Project Company (and not previously provided to Mehetia) in accordance with the Tariffs;

(18) Bloom [is proceeding to prepare][has prepared] a permanent facility in Delaware for manufacturing by Bloom of at least 20 MW of Systems so that all the Systems shall be considered to have been manufactured in Delaware under the REPS Act;

[***] Confidential Treatment Requested

3

(19) the Section 203 Order has been issued;

(20) [Include if funding is for first Subsequent Funding for any Systems to be installed at the Red Lion Site: Mehetia has received in form and substance satisfactory to Mehetia (i) a system impact study for the Project interconnection for the Red Lion Site from PJM and such study does not identify any material impediments that are reasonably likely to have an adverse effect on the ability of any party hereto to execute and deliver all agreements necessary for the transmission, interconnection and delivery of the Red Lion Site Systems’ Energy to the PJM Grid by the Guaranteed Initial Delivery Date, (ii) evidence reasonably satisfactory to Mehetia that PJM has waived the requirement for a facilities study with respect to the Red Lion Site, (iii) an executed copy of an interconnection services agreement among the Project Company, PJM and DPL with respect to the Red Lion Site, which agreement has been filed with FERC if required and (iv) an executed copy of a construction services agreement among the Project Company, DPL and ‘PJM with respect to the Red Lion Site;]

(21) [Include if funding is for first Subsequent Funding for any Systems to be installed at the Red Lion Site: the Project Company has obtained all permits required (if any) under the Delaware Coastal Zone Act;]

(22) Mehetia has received inform and substance reasonably satisfactory to Mehetia an executed copy of a wholesale market participation agreement among Project Company, DPL and PJM with respect to the Brookside Site;

(23) Mehetia has received, in form and substance reasonably satisfactory to Mehetia, an executed copy of an interconnection agreement between the Project Company and DPL with respect to the Brookside Site;

(24) Mehetia has received an executed copy of an amendment to the DDOT Site Lease, amending the term of such lease so that the term of such lease is at least 21 years commencing from the date of “commercial operation” (as defined in the QFCP-RC Tariff) of the last System to be installed at such Site;

(25) Mehetia has received an executed copy of the Gas Service Agreement between the Project Company and DPL required pursuant to the Gas Tariff;

(26) Project Company has received either (i) owner’s ALTA extended coverage policy of title insurance (2006 form) issued by a title insurance company and in a form and substance acceptable to Mehetia, which policy shall insure that Project Company’s leasehold interest at each Site is free and clear of all defects and encumbrances, except Permitted Liens, and shall contain such endorsements as are reasonably requested by Mehetia, or (ii) the unconditional and irrevocable commitment of the title insurance company to issue such a policy, in each case in a coverage amount equal to the amount reasonably acceptable to Mehetia; and

(27) Mehetia has received the audited financial report of Bloom as of its most recent fiscal year end.

4

Mehetia is therefore hereby requested to make a Subsequent Funding Payment in accordance with the terms of the ECCA on [                , 20    ] in the amount of $[            ] to the account of the Company as set forth below:

Holder Name:	Diamond State Generation Holdings, LLC
Bank Name:
Account Number:
ABA Number:

Sincerely,
DIAMOND STATE GENERATION HOLDINGS, LLC
By:	Clean Technologies II, LLC, as Managing Member
By:
	Name:
	Title:

5

Attachment 1

to Funding Notice

Attachment 2

to Funding Notice

Attachment 3

to Funding Notice

EX-10

Exhibit 10.37

EXECUTION VERSION

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

ADMINISTRATIVE SERVICES AGREEMENT

by and between

BLOOM ENERGY CORPORATION,

DIAMOND STATE GENERATION HOLDINGS, LLC

and

DIAMOND STATE GENERATION PARTNERS, LLC

Dated as of April 13, 2012

ARTICLE I	DEFINITIONS AND USAGE	1
Section 1.01	Definitions	1
ARTICLE II	RESPONSIBILITIES	5
Section 2.01	Administrator’s Responsibilities	5
Section 2.02	Separateness	11
Section 2.03	Operating Budget	11
ARTICLE III	STANDARD OF PERFORMANCE	12
Section 3.01	Standard of Performance	12
Section 3.02	No Liability	12
ARTICLE IV	COMPENSATION AND PAYMENT	13
Section 4.01	Administration Fee; Expenses	13
Section 4.02	Billing and Payment	14
Section 4.03	Records	14
ARTICLE V	DELAYS	14
Section 5.01	Conditions	14
Section 5.02	Mitigation of Delay	15
ARTICLE VI	DISPUTE RESOLUTION	15
Section 6.01	Procedure	15
ARTICLE VII	COMMENCEMENT AND TERMINATION	15
Section 7.01	Term	15
Section 7.02	Resignation of Administrator; Termination After Specified Transfer	16
Section 7.03	Early Termination	16
Section 7.04	Replacement of Agreement	16
ARTICLE VIII	DEFAULT	16
Section 8.01	Event of Default	16
Section 8.02	Bankruptcy	17
Section 8.03	Remedies	17
ARTICLE IX	INDEMNIFICATION AND LIMITATION OF DAMAGES	18
Section 9.01	Indemnification	18
Section 9.02	Aggregate Liability	19
Section 9.03	Supremacy	19
Section 9.04	Insurance	19
ARTICLE X	REPRESENTATIONS AND WARRANTIES	19
Section 10.01	Representations and Warranties	19
ARTICLE XI	MISCELLANEOUS	20
Section 11.01	Assignment	20
Section 11.02	Authorization	20
Section 11.03	Governing Law, Jurisdiction, Venue	20

i

Section 11.04	Independent Contractor	21
Section 11.05	Notice	21
Section 11.06	Usage	22
Section 11.07	Entire Agreement	22
Section 11.08	Amendment	22
Section 11.09	Confidential Information	22
Section 11.10	Third Party Beneficiaries	23
Section 11.11	Discharge of Obligations	23
Section 11.12	Severability	23
Section 11.13	Binding Effect	23
Section 11.14	Right of Offset	23
Section 11.15	No Liens	23
EXHIBITS:
EXHIBIT A	Insurance Requirements

ii

ADMINISTRATIVE SERVICES AGREEMENT

THIS ADMINISTRATIVE SERVICES AGREEMENT (the “Agreement”) is made as of this 13th day of April, 2012, by and among DIAMOND STATE GENERATION HOLDINGS, LLC, a Delaware limited liability company (the “Company”), DIAMOND STATE GENERATION PARTNERS, LLC, a Delaware limited liability company (the “Project Company”) and BLOOM ENERGY CORPORATION, a Delaware corporation (the “Administrator”).

PRELIMINARY STATEMENTS

The Company owns 100% of the issued and outstanding membership interests in the Project Company.

Through its ownership of the Project Company, the Company will own an indirect 100% interest in the Portfolio (as defined below).

Concurrently herewith, Clean Technologies II, LLC (“Clean Technologies”) and Mehetia Inc. are entering into that certain Amended and Restated Limited Liability Company Agreement of Diamond State Generation Holdings, LLC (the “Company LLC Agreement”).

The Members of the Company have agreed in the Company LLC Agreement to enter into this Agreement to delegate day-to-day management of the Company to the Administrator, so that in conjunction with the services to be provided by Bloom Energy Corporation under the MESPA and the MOMA, the Administrator shall be deemed a “Qualified Fuel Cell Provider” (as defined in the REPS Act) (“Qualified Fuel Cell Provider”) and the Portfolio shall be deemed a “Qualified Fuel Cell Provider Project” (as defined in the REPS Act) (“Qualified Fuel Cell Provider Project”).

The Company, as sole member of the Project Company (“Sole Member”), has also agreed in the Project Company LLC Agreement to cause the Project Company to delegate day-to-day management of the Project Company to the Administrator.

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein, the parties, intending to be legally bound, agree as follows:

ARTICLE I

DEFINITIONS AND USAGE

Section 1.01 Definitions. Unless the context requires otherwise or this Agreement expressly provides otherwise, capitalized terms used in this Agreement have the following meanings and capitalized terms not defined in this Agreement have the meanings given to such terms in Annex I to the Company LLC Agreement:

“Accounting Firm” means any of Deloitte Touche Tohmatsu, Ernst & Young, KPMG International, PricewaterhouseCoopers or any nationally-recognized Affiliate thereof, chosen by the Tax Matters Partner or otherwise approved by Class Majority Vote.

“Administrator” is defined in the Preamble.

“Administration Fee” is defined in Section 4.01(a).

“Agreement” is defined in the Preamble.

“Bloom System” or “Bloom Systems” is defined in the MESPA.

“BOF” is defined in the MESPA.

“Calendar Year” means the calendar year beginning January 1 and ending on December 31, and in the case of the initial Calendar Year, the period beginning on the Initial Funding Date and ending on December 31, 2012.

“Clean Technologies” is defined in the Preliminary Statements.

“Commencement of Operations” is defined in the MESPA.

“Company” is defined in the Preamble.

“Company LLC Agreement” is defined in the Preliminary Statements.

“Credit Documents” has the meaning set forth in the ECCA.

“Documentation” means all written invoices, receipts, billing statements, payment notices, wire receipt and payment notifications, bank statements and other similar written evidence of (i) amounts payable by the Company or the Project Company to any Person and (ii) amounts received or receivable by the Company or the Project Company from any Person, in each case in connection with the Company, Project Company or Portfolio.

“DPL” means Delmarva Power & Light Company, an investor owned utility company regulated by the DPSC.

“DPL Agreements” is defined in the MESPA.

“DPSC” means the Delaware Public Service Commission.

“ECCA” means the Equity Capital Contribution Agreement with respect to the Company, among Clean Technologies II, LLC, the Company, the Project Company and Mehetia Inc., dated as of March 16, 2012.

“Electrical Interconnection Facilities” is defined in the MESPA.

“Emergency Expenditure” is defined in Section 4.01(b).

“Event of Default” is defined in Section 8.01.

“Excluded Expenses” is defined in Section 4.01(b).

2

“Facility” means the Bloom Systems and the BOF at a Site.

“Gas Tariff” means DPL’s Service Classification “LVG-QFCP-RC” filed for gas service applicable to REPS Qualified Fuel Cell Provider Projects and approved by DPSC in Order no. 8062 dated October 18, 2011, as adopted and supplemented by DPSC’s Findings, Opinion and Order No. 8079, dated December 1, 2011.

“kW” means kilowatt.

“Losses” is defined in Section 9.01(a).

“MESPA” means the Master Energy Server Purchase Agreement between the Project Company and the Seller, dated as of April 13, 2012, as such agreement may be amended, supplemented, or replaced from time to time.

“MOMA” means the Master Operations and Maintenance Agreement between the Project Company and the Operator, dated as of April 13, 2012, as such agreement may be amended, supplemented, or replaced from time to time.

“MW” means megawatt.

“Nonreimbursable Services” shall consist of the following services to be provided with respect to the Company and the Project Company, as applicable: (a) supervision and monitoring of the Service Providers and Seller, (b) bookkeeping and record keeping, (c) overall coordination of the day-to-day operation of the Portfolio and Project Company (including the overall coordination of the performance of the Services), (d) preparing a draft operating budget for the Project Company for consideration and approval by the Managing Member, (e) reporting to and communication with the Managing Member or the Sole Member, as applicable, regarding matters subject to the supervision of the Administrator under this Agreement, (f) preparation and submittal of (i) Documentation, and, in the case of an Emergency Expenditure, oral notification, necessary in order to remit funds of the Company or the Project Company for payment of the Company’s or Project Company’s expenses and (ii) other Documentation necessary to perform the obligations hereunder, (g) depositing funds into the accounts maintained on behalf of the Company and the Project Company pursuant to Section 2.01(w) hereof, (h) payment of the Company’s and Project Company’s expenses, (i) the making of distributions in accordance with the provisions hereof and the Company LLC Agreement or the Project Company LLC Agreement, (j) preparation and submittal of capital contribution draw requests for either the Company or the Project Company, as contemplated by the Company LLC Agreement or the Project Company LLC Agreement, as applicable, (k) preparation and submittal of purchase orders and other work on behalf of the Project Company in connection with ordering Bloom Systems under the MESPA, receiving and accepting, on behalf of the Project Company, title to and all incidents of ownership of those Bloom Systems, as well as such Bloom Systems and parts purchased by the Project Company pursuant to that certain Bill of Sale and Agreement between Project Company and Bloom effective as of December 30, 2011, (l) interacting and communicating with Operator on behalf of the Project Company under the MOMA, (m) interacting and communicating with Seller on behalf of the Project Company under the MESPA, (n) interacting and communicating with, and submitting reports to, DPL on behalf of the Project

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Company in connection with or as required under the DPL Agreements and the Tariffs, including without limitation monthly “Actual Heat Rate” (as defined in the QFCP-RC Tariff) performance, all data necessary for DPL to submit to the DPSC the monthly QFCP-RC Tariff pursuant to QFCP-RC Tariff Section F. and the invoice required under QFCP-RC Tariff Section H.2., (o) interacting and communicating with the Department of Treasury or the IRS on behalf of Project Company in connection with the Project Company’s application for the Grant or an Alternative Tax Program in connection with Bloom Systems, including filing any applications, information or other materials in connection therewith; (p) causing the insurance and related obligations required under Section 8.4 of the Company LLC Agreement to be obtained and maintained; (q) using commercially reasonable efforts to cause the Project Company to discharge its obligation to comply with the QFCP-RC Tariff; (r) interacting and communicating, on behalf of the Project Company, with DPL in connection with the Project Company’s development of “Site Preparation Costs” (as defined in the QFCP-RC Tariff); (s) interacting and communicating, on behalf of the Project Company, with PJM under the PJM Agreements; and (t) interacting and communicating, on behalf of the Project Company, with the Lender as required under the Credit Documents.

“Operator” means Bloom Energy Corporation, in its capacity as operator under the MOMA, and its permitted successors and assigns.

“Permits” is defined in the MESPA.

“PJM” means PJM Interconnection, LLC, a regional transmission organization.

“PJM Agreements” is defined in the QFCP-RC Tariff.

“PJM Grid” means the system of transmission lines, distribution lines and associated facilities that have been placed under PJM’s operational control.

“Portfolio” is defined in the MESPA.

“Project Company” is defined in the Preamble.

“Project Company LLC Agreement” means the limited liability company agreement of the Project Company, dated as of April 13, 2012 as such agreement may be amended, supplemented, or replaced from time to time.

“Qualified Fuel Cell Provider” is defined in the recitals.

“Qualified Fuel Cell Provider Project” is defined in the recitals.

“QFCP-RC Tariff” means DPL’s Service Classification “QFCP-RC” for REPS Qualified Fuel Cell Provider Projects as approved by DPSC in Order no. 8062 dated October 18, 2011, as adopted and supplemented by DPSC’s Findings, Opinion and Order No. 8079, dated December 1, 2011.

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“REPS Act” means the Renewable Energy Portfolio Standards Act, as amended by S.B. 124, enacted July 10, 2011 (Title 26, Chap. 1, section 351 et seq. of the Code of the State of Delaware).

“Seller” means Bloom Energy Corporation, in its capacity as seller under the MESPA.

“Service Provider” means each third party hired by the Company or the Project Company to perform fiscal, administrative or other services for the Company or the Project Company, including the Operator.

“Services” means the responsibilities of the Administrator under Article II.

“Site” is defined in the MESPA.

“Sole Member” is defined in the recitals.

“Tariffs” means the QFCP-RC Tariff and the Gas Tariff.

“Term” is defined in Section 7.01.

ARTICLE II

RESPONSIBILITIES

Section 2.01 Administrator’s Responsibilities. During the Term, the Administrator shall provide the following Services on behalf of the Company and the Project Company:

(a) Supervise and monitor, in accordance with the Prudent Operator Standard, (i) the Service Providers with respect to their performance of services for the Project Company, including maintenance, diagnostic, warranty and remedial obligations thereof (including performance by the Operator of its obligations under the MOMA), and (ii) the Seller with respect to its installation of the Facilities and the sale of Bloom Systems to the Project Company, including warranty and remedial obligations thereof;

(b) Where necessary or desirable, at the Company’s or the Project Company’s sole expense, as applicable, (i) subject to Section 4.01(c), taking of such actions as are necessary to enforce each Service Provider’s or Seller’s compliance with its obligations to the Company or Project Company and (ii) subject to Section 4.01(c) and the requirement that Major Decisions require the authorization of the Members as provided in the Company LLC Agreement, hiring, firing and/or replacing any Service Provider;

(c) Supervise and monitor (i) the installation of the Facilities and the purchase of Bloom Systems by Project Company under the MESPA and (ii) (and, with respect to such activities that are not required to be performed by the Operator under the MOMA, causing to be performed) day-to-day operations, maintenance and repair activities with respect to the Facilities, including planned and unplanned maintenance and repairs to the Facilities and coordinate all such activities with those of the Operator, the Seller, DPL and PJM, as applicable, including, without limitation, outages, unavailability, etc. and represent the Project Company in local community relations (including assisting in the coordination of public statements regarding the Project Company and the Company); provided, however, that the Administrator shall not be permitted to hire any employees on behalf of the Company or the Project Company;

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(d) (i) Prepare and promptly pay, or cause to be paid, on behalf of the Project Company, all expenses incurred by the Project Company or that are due and payable under Material Contracts to which the Project Company is a party and all other contracts to which the Project Company is party and (ii) subject to the expenditure limitations contained in the Project Company LLC Agreement and the Company LLC Agreement and adopted or implemented by the Sole Member of the Project Company or the Members, as applicable, purchase or lease, at the sole expense (but subject to Section 4.01(c)) of the Project Company, of any materials, supplies and equipment necessary for (A) the performance of the services for the Project Company, (B) operation and maintenance services for the Project Company or (C) the sale of Energy, Capacity and other Products by the Project Company in accordance with the QFCP-RC Tariff (and as such terms are defined in the QFCP-RC Tariff); provided that nothing herein shall imply any duty of the Administrator under any circumstances to expend its own funds in payment of the expenses of the Company or the Project Company;

(e) In accordance with and subject to the provisions of the Company LLC Agreement (i) effect election of a Grant on behalf of the Project Company with respect to the Bloom Systems, or if, based on written instructions from the Managing Member of the Company (and if, for the avoidance of doubt, the consent of the required percentage of Class B Members to claim an Alternative Tax Program other than the Grant has been received by the Managing Member pursuant to the Company LLC Agreement), the Grant is not available with respect to certain Bloom Systems, effect an election under or claim of any Alternative Tax Program with respect to the Bloom Systems, (ii) prepare and file Grant Applications and any post-Grant administrative matters or applications under any Alternative Tax Program on behalf of the Project Company, and (iii) use commercially reasonable efforts to structure the Project Company’s contracts and business affairs in a way that is intended to maximize the number of Bloom Systems that qualify for the Grant or, if based on written instructions from the Managing Member of the Company the Grant is unavailable as described in clause (i) above, an Alternative Tax Program;

(f) Prepare and promptly pay, on behalf of the Company, any amounts required to be paid by the Company under the Material Contracts to which the Company is a party; provided that nothing herein shall imply any duty of the Administrator under any circumstances to expend its own funds in payment of the expenses of the Company;

(g) Maintain major maintenance and other reserves for the Company, the Project Company or the Portfolio from time to time as directed by, and upon terms established by, the Company or the Managing Member or under the Credit Documents;

(h) Remit from funds of the Company or the Project Company amounts in payment of the expenses of the Company or the Project Company, respectively;

(i) In accordance with and subject to the provisions of the Company LLC Agreement, maintain complete and accurate financial books and records of the operations of the Company and the Project Company on an accrual basis in accordance with prudent business practices and GAAP and make such books and records available for inspection and copying

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during normal business hours on its premises, upon reasonable prior notice, by any Member, any designee of a lender to a Member, or any other Person authorized by the Managing Member to inspect or copy such books and records, subject to appropriate confidentiality safeguards;

(j) In accordance with and subject to the provisions of the Company LLC Agreement, maintain at the Company’s and Project Company’s principal office and permit access thereof to the Project Company, the Company and any Member during normal business hours (i) true and full information regarding the status of the financial condition of the Company and the Project Company, including any financial statements that are available, until the statute of limitations expires on any IRS audit of the Company or Project Company tax year to which such information and financial statements relate; (ii) minutes of the proceedings of the Members; (iii) promptly after becoming available, copies of the federal, state, and local income tax returns of the Company and the Project Company for each year (including information to support any Grant application claim); (iv) a current list of the name and last known business, residence or mailing address of each Member of the Company and the Project Company and the Administrator; (v) a copy of the Company LLC Agreement, the Company’s Certificate of Formation, the Project Company LLC Agreement, the Project Company’s Certificate of Formation, and all amendments thereto, together with executed copies of any written powers of attorney pursuant to which the Company LLC Agreement, the Company’s Certificate of Formation, the Project Company LLC Agreement, the Project Company’s Certificate of Formation, and all amendments thereto have been executed and copies of written consents of Members; (vi) true and full information regarding the amount of cash and a description and statement of the agreed value of any other property and services contributed by each Member, and the date upon which each became a Member; (vii) copies of records that would enable a Member to determine the Member’s relative shares of the Company’s distributions and the Member’s relative voting rights; (viii) all records related to the production by and sale of Energy, Capacity and other Products (as such terms are defined in the QFCP-RC Tariff) from the Bloom Systems/Portfolio; and (ix) all statements and documents required by the Guidance (including, but not limited to, invoices, supply agreements and other documents used to establish the 5% safe harbor pursuant to the Guidance, as well as energy production information and financial and accounting records sufficient to demonstrate that the Grant was properly obtained in accordance with the Guidance and any other documents needed to comply with the Guidance rules and annual reporting requirements) and access to records requirements, and documents needed for the completion of annual Portfolio performance reports (including information regarding annual energy production and number of jobs retained) and recapture certification;

(k) Perform on behalf of the Company and Project Company all reporting and other routine management responsibilities reasonably believed by the Administrator to be required under the Material Contracts and other agreements to which the Company or Project Company is a party, including representing the Company and the Project Company in ordinary course business matters with third parties arising thereunder;

(l) Perform on behalf of the Company and the Project Company all routine administrative services reasonably required in connection with maintaining the Company’s and the Project Company’s existence and operations, such as the filing of limited liability company reports;

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(m) Notify the Managing Member, the Members (and Lenders, if applicable) of any variance or anticipated variance in the aggregate expense amount for the Company in any Calendar Year by [***] or more from the amount set forth in the applicable Annual Budget, promptly after learning of such variance or anticipated variance;

(n) (i) Provide such readily available information to the Members as they may reasonably request from time to time and (ii) subject to site rules established by the Company or the Project Company, provide access as reasonably requested for the Members and their personnel and accompanied guests to the Facilities;

(o) Advise the Company and the Project Company to engage Service Providers as reasonably believed by the Administrator to be necessary or desirable, or as instructed by the Managing Member with respect to the Company or the Sole Member of the Project Company with respect to the Project Company, to represent or perform services for the Company or the Project Company which are not being performed by the Operator under the MOMA; provided that, such engagement must not prevent or disqualify the Administrator/Operator from being deemed a Qualified Fuel Cell Provider and the Portfolio being deemed a Qualified Fuel Cell Provider Project in accordance with the REPS Act;

(p) (i) Procure and maintain all required Permits, prepare and submit all filings of any nature which are required to be made thereunder and represent the Company and the Project Company in matters with governmental authorities relating thereto, and (ii) prepare and submit, or cause to be prepared and submitted, all filings and notices of any nature which are required to be made by the Company or the Project Company under the terms of any Permits held by the Company the Project Company or any laws, regulations or ordinances applicable to the Company, Project Company or the Facilities or as required under the ECCA;

(q) Not take any affirmative action as would cause the Company or the Project Company in any material respect to violate any federal, state or local laws and regulations, including Environmental Laws, and to the extent that the Administrator has knowledge of any such existing or prospective violation take, or direct Service Providers to take, commercially reasonable actions, at the sole expense (but subject to Section 4.01(c)) of the Company or the Project Company (unless such existing or prospective violation arises from breach of the Administrator’s duties hereunder), to redress or mitigate any such violation;

(r) (i) Give prompt written notice to the Members and the Company or Member of the Project Company of any litigation, material disputes with governmental authorities, or material force majeure events under the Material Contracts and material losses suffered by the Portfolio promptly after learning of the same, (ii) furnish to the Managing Member and the Members of the Company or the Sole Member of the Project Company, as applicable, or direct a Service Provider to so furnish, copies of all material documents furnished to the Company, the Project Company or the Administrator by any governmental authority or furnished to any governmental authority by the Company or the Project Company, and (iii) provide documents relating to Material Contracts or the Administrator’s responsibilities hereunder reasonably requested by the Lenders, subject to compliance with any applicable confidentiality restrictions;

[***] Confidential Treatment Requested

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(s) Notify the Members within five (5) Business Days of obtaining actual knowledge of any (i) notice of default delivered by a party to a Material Contract to the Project Company, the Administrator or the Managing Member or (ii) default by a party to a Material Contract (other than the Project Company, the Administrator or any Affiliate thereof) under such Material Contract, in the case of either (i) or (ii), which default could reasonably be expected to cause material harm to the Company or the Project Company; provided that, with respect to a notice of default or any default by any party under the Credit Documents, the Administrator shall notify the Members within one (1) Business Day of obtaining actual knowledge thereof;

(t) In accordance with and subject to the provisions of the Company LLC Agreement, submit for approval of the Managing Member (or, if required under the terms of the Company LLC Agreement, for approval by a Majority Vote or Class Majority Vote), a proposed Annual Budget;

(u) Perform and discharge all responsibilities and functions assigned to the Administrator under or pursuant to the Company LLC Agreement as in effect as of the date hereof (or as amended and accepted by the Administrator) in accordance with the terms set forth in the Company LLC Agreement;

(v) Prepare, or cause to be prepared, each of the reports, updated schedules and notices required to be prepared pursuant to the Company LLC Agreement and the Credit Documents and deliver such reports, updated schedules and notices to the Company and any Member or such other Person to whom any such report, schedule or notice is to be provided under the terms of the Company LLC Agreement and Credit Documents within the time periods specified therein;

(w) Maintain, in the name and for the exclusive benefit of the Company or the Project Company, accounts at one or more banks or other financial institutions for the deposit of all funds received by the Company or the Project Company during the Term, and invest such funds in accordance with the investment provisions of the Company LLC Agreement or the Project Company LLC Agreement and the Credit Documents; provided, that nothing herein shall imply any guarantee or undertaking by the Administrator with respect to the collection of amounts due to the Company or the Project Company or return on such investments;

(x) In accordance with and subject to the provisions of the Company LLC Agreement (i) prepare and file or cause to be prepared and filed by an Accounting Firm on behalf of the Company and the Project Company, on a timely basis, all federal, state and local income tax returns and related information and filings required to be filed by the Company and the Project Company or deliver to the Members such tax returns pursuant to the Company LLC Agreement, including each Member’s IRS Form K-1, and (ii) pay out of the Company’s or the Project Company’s funds, as applicable, all taxes and other governmental charges shown to be due thereon before they become delinquent and make all federal, state and local income tax elections in accordance with the provisions of the Company LLC Agreement or the Project Company LLC Agreement, as applicable;

(y) Promptly inform the Company and the Members of any proposed action or decision that arises which constitutes a Major Decision under the Company LLC Agreement and

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not take or permit any such action or decision without the prior required consent of the Members by Class Majority Vote in accordance with the Company LLC Agreement, except, solely with respect to Major Decisions, as is otherwise permitted by the provisions of Section 8.3 of the Company LLC Agreement;

(z) In accordance with and subject to the provisions of the Company LLC Agreement if so instructed by the Tax Matters Partner (i) direct the defense of any claims made by the IRS to the extent that such claims relate to the adjustment of Company items at the Company level, (ii) promptly deliver to each Member a copy of all notices, communications, reports and writings received from the IRS relating to or potentially resulting in an adjustment of Company items, (iii) promptly advise each Member of the substance of any conversations with the IRS in connection therewith and keep the Members advised of all developments with respect to any proposed adjustments that come to its attention; (iv) provide each Member with a draft copy of any correspondence or filing to be submitted by the Company in connection with any administrative or judicial proceedings relating to the determination of Company items at the Company level reasonably in advance of such submission; (v) incorporate all reasonable changes or comments to such correspondence or filing requested by any Member; (vi) provide each Member with a final copy of correspondence or filing; and (vii) provide each Member with notice reasonably in advance of any meetings or conferences with respect to any administrative or judicial proceedings relating to the determination of Company items at the Company level (including any meetings or conferences with counsel or advisors to the Company with respect to such proceedings);

(aa) Prepare (or cause to be prepared) the financial statements required to be prepared pursuant to the Company LLC Agreement or the Project Company LLC Agreement, as applicable, within the time periods specified therein;

(bb) Make distributions out of Company Distributable Cash as provided under the relevant provisions of the Company LLC Agreement or the Project Company LLC Agreement;

(cc) Apply the proceeds of any Member Loan received by the Project Company to effecting a cure of any event of default under the Credit Documents;

(dd) At the Company’s sole expense, cause the Project Company to obtain and maintain insurance meeting the requirements of Exhibit A hereto and all other coverage to be maintained on behalf of the Project Company, the Portfolio and the Material Contracts and as otherwise authorized or directed by the Managing Member;

(ee) Make draws under any working capital facilities or credit facilities for the Company or the Project Company, as applicable, and cause such funds to be deposited into the Company’s or the Project Company’s, as applicable, accounts and in accordance with such working capital facilities’ or credit facilities’ documentation;

(ff) Establish and administer any escrow arrangements to which the Company or the Project Company is a party, including those for the refund of canceled Bloom Systems as provided in the MESPA, as well as any letters of credit, bonds or other similar support instruments posted by the Company or the Project Company relating to the Portfolio;

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(gg) Notify the Managing Member promptly of the receipt of any communication as to any deficiencies in the Company’s or Project Company’s accounting practices from the Accounting Firm, or of the resignation of an Accounting Firm;

(hh) Maintain a register of membership interests of the Company and record therein any (i) transfers of membership interests made in accordance with the terms of the Company LLC Agreement and (ii) security interests of a secured party pursuant to any security interest permitted under the Company LLC Agreement;

(ii) Prepare equity contribution notices (and accompanying documentation) in accordance with the Company LLC Agreement, and deliver them to the Managing Member and each Member of the Company;

(jj) Prepare and submit purchase orders and perform other work on behalf of the Project Company in connection with ordering Bloom Systems under the MESPA, including interacting and communicating with Seller on behalf of the Project Company under the MESPA;

(kk) Upon receipt of a Delivery Notice (as defined in the MESPA) from Seller and confirmation from the Managing Member that the conditions set forth in Section 4.4 of the Company LLC Agreement have been satisfied, deliver notice, as contemplated in Section 2.1(d) of the MESPA, to Seller on behalf of Project Company confirming the Project Company’s continued intent to purchase the System described in the Delivery Notice; and

(ll) Perform such other (i) administrative tasks related to and consistent with the scope of the Services described herein and in the Company LLC Agreement and in the Project Company LLC Agreement, as the Managing Member in respect to the Company and the Sole Member of the Project Company in respect to the Project Company may reasonably request from time to time and (ii) necessary functions or responsibilities, which when taken together with those in the MOMA qualify the Administrator as an Qualified Fuel Cell Provider and the Portfolio as a Qualified Fuel Cell Provider Project.

Section 2.02 Separateness. The Administrator shall maintain its existence separate and distinct from any other Person, including maintaining in full effect its existence, rights and franchises as a corporation under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or will be necessary to protect the validity and enforceability of this Agreement.

Section 2.03 Operating Budget. Administrator shall operate and maintain the Portfolio, or cause the Portfolio to be operated and maintained, within amounts for (a) any Operating Budget Category (as defined in the Credit Documents) not to exceed 110% (on a year-to-date basis) and (b) for all Operating Budget Categories not to exceed 105% (on a year-to-date basis), in each case of the amounts budgeted therefor as set forth in the then-current Annual Operating Budget (as defined in the Credit Documents)

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ARTICLE III

STANDARD OF PERFORMANCE

Section 3.01 Standard of Performance. The Administrator shall perform the Nonreimbursable Services and the Services in accordance with applicable law and the Prudent Operator Standard; provided that the Administrator shall be deemed to have satisfied its duties in respect of any specific matter or circumstance requiring interpretation, application, or enforcement of Material Contracts, by relying conclusively on the advice of qualified legal counsel and/or qualified industry consultants engaged to advise the Project Company with respect to such matter or circumstance; and provided, further, that it shall not be a breach of the Prudent Operator Standard and the Administrator shall not be responsible hereunder for the gross negligence or willful misconduct of, or breach of contract by, any Service Provider engaged by the Administrator pursuant to a contract that requires such Service Provider to perform its duties in accordance with the Prudent Operator Standard and if such Person is sufficiently qualified to perform such duties and the Administrator is diligent in its oversight of such Persons; provided that (i) the immediately foregoing proviso shall not be applicable to any agreement with Clean Technologies or an Affiliate of Clean Technologies (and if such an agreement shall be with Clean Technologies or an Affiliate of Clean Technologies, then the Administrator shall continue to be bound by the Prudent Operator Standard), (ii) the Administrator shall be obligated to administer the agreements to which the Company is a party in accordance with their respective terms, and (iii) the Administrator shall be obligated to enforce the Material Contracts in accordance with their respective terms upon the gross negligence, willful misconduct or breach of contract of the counterparty to any such Material Contract. Without limiting the foregoing, in its performance of the obligations described in the immediately preceding clause (ii), the Administrator may enter into any settlement of claims, litigation or arbitration relating to the agreements described therein unless such settlement constitutes a Major Decision for which approval is first required as provided in Section 8.3 of the Company LLC Agreement. It is understood and agreed by the Company, the Project Company, and the Administrator that the Administrator is not guaranteeing or undertaking, in its capacity as Administrator, to procure any financial or other outcome with respect to the Company or the Portfolio, or providing any guarantees relating to the performance of the Portfolio.

Section 3.02 No Liability. The Administrator shall have no liability under this Agreement for (a) failure to take actions which it is not obligated to take pursuant to this Agreement and as to which it has requested the consent of the Managing Member (and/or the applicable Members where consent of any Members other than or in addition to the Managing Member is required under the Company LLC Agreement) for the Administrator to perform such actions if such consent is not timely given (including actions requiring a variance from the Annual Budget for which a request for variance by the Administrator has been made and not timely approved), or (b) actions taken at the direction of the Managing Member in accordance with the terms of the Company LLC Agreement (and/or the applicable Members where consent of any Members other than or in addition to the Managing Member is required under the Company LLC Agreement), or (c) failure to take actions requiring the expenditure of Company or Project Company funds in accordance with the Annual Budget if such funds are not available (for reasons other than a failure of the Administrator to provide, or cause a third party to provide, the Nonreimbursable Services or Services, as applicable, in accordance with this Agreement).

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ARTICLE IV

COMPENSATION AND PAYMENT

Section 4.01 Administration Fee; Expenses. (a) The annual administration fee owed by the Company to the Administrator for the Services shall be an amount equal to [***] per each [***] kW of Nameplate Capacity with respect to a Bloom System as of the date such Bloom System has achieved Commencement of Operations, and the annual administration fee owed by the Project Company to the Administrator for the Services shall be an amount equal to [***] per each [***] kW of Nameplate Capacity with respect to a Bloom System as of the date such Bloom System has achieved Commencement of Operations (such administrative fees, together, the “Administration Fee”), due in equal monthly installments (pro-rated, if applicable, for the first month after the execution of this Agreement). The parties acknowledge that the Administration Fee is a fair price, negotiated at arms-length, for the Services.

(b) In connection with matters within the Annual Budget, and matters outside of the parameters of the Annual Budget but authorized pursuant to this Section 4.01 the Company will reimburse the Administrator from the Company’s funds for the following expenses (other than any such expenses that constitute Excluded Expenses): (i) all reasonable out-of-pocket expenses of Administrator’s personnel performing work in the capacity as Administrator, (ii) all Emergency Expenditures and (iii) reasonable expenses of unaffiliated third parties (other than any such Persons performing Nonreimbursable Services) which, for the convenience of the Company or the Project Company, perform services by contract with the Administrator rather than directly with the Company or the Project Company, as applicable, provided that the Members have consented to such arrangement. For purposes of this Section 4.01(b), (x) “Excluded Expenses” shall mean costs incurred by Administrator in employing its personnel (other than amounts payable to its personnel as described in clause (i) above), including costs associated with wages, benefits, workers’ compensation insurance and home office expenses and costs incurred to retain Persons to perform Nonreimbursable Services, and (y) an “Emergency Expenditure” shall mean an expense with respect to the Company, the Project Company or the Portfolio that is not included in the Annual Budget and which is incurred, in the reasonable judgment of the Administrator, to avoid or to mitigate a risk of physical injury to any Person or property, or a violation of law and with respect to which there is not a reasonable opportunity to convene a meeting of the Members in order to obtain prior approval of the expense. The Administrator shall give prompt written notice to the Members of any Emergency Expenditure. Notwithstanding any of the foregoing, for the avoidance of doubt, to the extent an obligation of the Administrator is expressly to be performed at the sole expense of the Company or the Project Company, is not in violation of the express terms of this Agreement, and is not a Nonreimbursable Service, the Administrator shall be reimbursed by the Company or the Project Company, as applicable, for any amount (other than Excluded Expenses) expended from its own funds to perform such obligations.

(c) If the Administrator engages any third party to perform any Nonreimbursable Services, it shall be responsible for paying any fees and expenses of such third party and shall not be able to seek reimbursement therefor.

(d) The Administrator shall obtain the Managing Member’s prior written approval before incurring any expenses that collectively exceed the aggregate expense amount provided in the Annual Budget by [***] in any Calendar Year; provided, however, that consent shall not be required (i) as to any Emergency Expenditure, or (ii) for reimbursement of the Administrator for any reasonable expense of an unaffiliated Service Provider (other than a Service Provider

[***] Confidential Treatment Requested

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providing Nonreimbursable Services) that, for the convenience of the Company or the Project Company, performs services by contract with the Administrator rather than directly with the Company or the Project Company.

Section 4.02 Billing and Payment. Within fifteen (15) days following the Administrator’s submission of an invoice to the Managing Member of the Company reflecting (i) any expenses due and payable by the Company or the Project Company (and including invoices and other material identifying and substantiating, in reasonable detail, the nature of such expenses and the basis for reimbursement thereof), and (ii) the monthly portion of the Administration Fee due and payable by the Company or the Project Company, as applicable, (and including invoices and other material identifying and substantiating, in reasonable detail, the nature of such costs and the basis for reimbursement):

(a) The Managing Member of the Company or, as applicable, the Sole Member of the Project Company, shall approve such payment to the Administrator of the (i) expenses and (ii) the portion of the Administration Fee specified in such invoice, less any portion of such expenses and Administration Fee that is disputed in good faith by a Member; provided that any invoiced amount incurred in accordance with the Annual Budget shall be deemed approved and shall be paid unless the Managing Member or Member, as applicable, shall dispute in good faith such payment for reasons unrelated to the Annual Budget; and

(b) The parties shall attempt to resolve any such disputed portion in accordance with Article VI hereof and any amount owed hereunder which remains unpaid more than ten (10) days after the date such amount is due and payable under this Agreement shall accrue interest at the lesser of a monthly rate of one and five-tenths percent (1.5%) or the highest rate permissible by law, with such interest beginning to accrue from the first (1st) day after such amount became due and payable.

Section 4.03 Records. The Administrator shall retain copies of invoices submitted by it under Section 4.02, and of any third party invoices or similar documentation contained or reflected therein, for a minimum period of three (3) years or such longer period as required by applicable law. Records maintained by the Administrator pursuant to this Section 4.03 shall be the property of the Company or the Project Company, as applicable, and shall not be destroyed, unless the Company or the Project Company, as applicable, shall have consented to such destruction in writing or declined in writing to accept possession of the records after the Administrator has advised the Company or the Project Company, as applicable, that the records will be destroyed.

ARTICLE V

DELAYS

Section 5.01 Conditions. If the Administrator becomes aware of any event or circumstance that could prevent its performance of any of its obligations hereunder, the Administrator shall give prompt notice thereof to the Managing Member of the Company or the Sole Member of the Project Company, as applicable.

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Section 5.02 Mitigation of Delay. The Administrator shall attempt in good faith to minimize any such delay in performance of its obligations hereunder, provided, however, that the Administrator shall not be obligated to undertake or perform any actions which are prohibited by contract or any applicable law or that would expose the Administrator to any material risk of liability or to any expense for which the Administrator is entitled to reimbursement or indemnification hereunder and which is not reasonably expected to be promptly reimbursed or indemnified hereunder.

ARTICLE VI

DISPUTE RESOLUTION

Section 6.01 Procedure.

(a) The parties shall attempt, in good faith, to resolve or cure all disputes, controversies or claims relating to this Agreement by mutual agreement in accordance with this Article VI before initiating any legal action or attempting to enforce any rights or remedies hereunder (including termination), at law or in equity (regardless of whether this Article VI is referenced in the provision of this Agreement which is the basis for any such dispute).

(b) If a party hereto believes that a dispute, controversy or claim under this Agreement has arisen, such party shall within ten (10) days after such dispute, controversy or claim arises, give notice thereof to the other affected party or parties hereto and the Managing Member of the Company, with respect to disputes involving the Company, or the Sole Member of the Project Company, with respect to disputes involving the Project Company, which notice shall describe in reasonable detail the basis and specifics of the dispute, controversy or claim. A meeting or conference call shall be held promptly, and in no case later than five (5) days following delivery of such notice, attended by representatives of the parties with decision-making authority regarding the dispute, controversy or claim to attempt in good faith to negotiate a resolution.

(c) If, within twenty-one (21) days following the meeting required pursuant to Section 6.01(b), the affected parties are unable to resolve the dispute, any affected party may pursue whatever rights it has available under this Agreement, at law or in equity.

ARTICLE VII

COMMENCEMENT AND TERMINATION

Section 7.01 Term. Except as otherwise provided in this Agreement, this Agreement shall commence on the date hereof and remain in full force and effect until the date that is twenty-one (21) years and six (6) months following the date on which Commencement of Operations (as defined in the MESPA) occurs for the last System in the Portfolio (the “Term”). In connection with the expiration of the Term or any termination pursuant to Section 7.02, the Administrator shall cooperate with all reasonable requests of the Company or the Project Company, as applicable, in connection with the transition of Services performed by Administrator (including the transferring of the records in Administrator’s possession) to the entity selected by the Company to undertake the Services.

15

Section 7.02 Resignation of Administrator; Termination After Specified Transfer.

(a) The Administrator may resign at any time following the sale of Clean Technologies to a non-Affiliate of Administrator or a Transfer of all Class A Membership Interests held by Clean Technologies or an Affiliate of Clean Technologies made in accordance with the Company LLC Agreement, by giving not less than thirty (30) days prior written notice of such resignation to the Company and the Project Company; provided that Administrator’s resignation shall become effective only upon the appointment of a successor pursuant to the terms of the Company LLC Agreement that assumes (or causes an Affiliate to assume) the duties of the Administrator hereunder or that has engaged a Person that is recognized nationally as having substantial experience managing and operating fuel cell power facilities or if such transferee has engaged such an experienced and recognized company to manage the Company and the Project Company, at substantially the same cost as under this Agreement.

(b) At any time following the sale of Clean Technologies to a non-Affiliate of Administrator or a Transfer of all Class A Membership Interests held by Clean Technologies or an Affiliate of Clean Technologies, the Project Company and the Company may terminate this Agreement by giving not less than one (1) day prior written notice of such termination to the Administrator.

Section 7.03 Early Termination. This Agreement may not be terminated prior to the end of the Term except:

(a) by mutual agreement of the parties; or

(b) pursuant to Section 7.02, 8.02 or 8.03.

Section 7.04 Replacement of Agreement. Notwithstanding anything to the contrary in this Agreement and in furtherance of continuing qualification under the QFCP-RC Tariff, in the event of the early termination of this Agreement pursuant to Section 7.03 hereof, Bloom Energy Corporation agrees to use its best efforts and cooperate with the Company and the Project Company to facilitate the Company and the Project Company entering into a new agreement with a third party administrator governing administrative services to be provided to the Company and the Project Company on terms substantially similar to the terms of this Agreement.

ARTICLE VIII

DEFAULT

Section 8.01 Event of Default. Subject to the provisions of Article VI (Dispute Resolution), each of the following events shall be an event of default (“Event of Default”) under this Agreement regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceeding which has or might have the effect of preventing such party from complying with the terms of this Agreement:

(a) Failure by a party hereto to make any payment required to be made hereunder, if such failure shall continue for twenty (20) days after written notice thereof has been given to the non-paying party; or

16

(b) If there shall occur (i) any failure by the Administrator to comply in any material respect with any term, provision or covenant of this Agreement (other than a failure addressed by another paragraph of this Section 8.01), or (ii) a gross dereliction by the Administrator of its duties under this Agreement, and such failure or act described in clause (i) or (ii) continues for thirty (30) days after receipt by the Administrator of written notice of such breach; or

(c) Failure by the Company or the Project Company to comply in any material respect with any term, provision or covenant of this Agreement (other than a failure addressed by another paragraph of this Section 8.01), and such failure continues for thirty (30) days after receipt by the Company or the Project Company of written notice of such breach.

Section 8.02 Bankruptcy. Subject to the rights or remedies it may have, any party hereto shall have the right to terminate this Agreement, effective immediately, if, at any time, any other party hereto (or, in the case of the Administrator, any Person that Controls the Administrator) shall file a voluntary petition in bankruptcy, or shall be adjudicated bankrupt or insolvent, or shall file any petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute or law relating to bankruptcy, insolvency, or other relief for debtors, whether federal or state, or shall seek, consent to, or acquiesce in the appointment of any trustee, receiver, conservator or liquidator of such party or of all or any substantial part of its properties, or a court of competent jurisdiction shall enter an order, judgment or decree approving a petition filed against such party seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute or law relating to bankruptcy, insolvency or other relief for debtors, whether federal or state, and such party shall consent to or acquiesce in the entry of such order, judgment or decree, or the same shall remain unvacated and unstayed for an aggregate of sixty (60) days from the date or entry thereof, or any trustee, receiver, conservator or liquidator of such party or of all or any substantial part of its properties shall be appointed without the consent of or acquiescence of such party and such appointment shall remain unvacated and unstayed for an aggregate of sixty (60) days. The terms “acquiesce” and “acquiescence”, as used herein, include, but are not limited to, the failure to file a petition or motion to vacate or discharge any order, judgment or decree providing for such appointment within the time specified by law.

Section 8.03 Remedies. If an Event of Default occurs and is continuing hereunder, then this Agreement may be terminated immediately by the non-defaulting party, without obligation to or recourse by the defaulting party. If a termination pursuant Section 8.02 or this Section 8.03 occurs, the terminating party shall have all rights and remedies allowed at law or in equity, subject however, to the specific limitations of liability set forth in Article IX. Any termination of this Agreement by the Administrator for nonpayment or default by the Company or the Project Company, respectively, shall not result in termination of this Agreement by the Administrator as to the Project Company or the Company, respectively, as the case may be; and in such event, the Administrator shall continue performing hereunder for the nondefaulting counterparty.

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ARTICLE IX

INDEMNIFICATION AND LIMITATION OF DAMAGES

Section 9.01 Indemnification.

(a) To the extent not otherwise covered by insurance and to the extent not prohibited by law, the Company and the Project Company each shall indemnify and hold harmless the Administrator, its officers, directors, employees, and Affiliates, from and against all losses, claims, demands, damages, costs, expenses of any nature (including, but not limited to, reasonable attorneys’ fees and disbursements) or liabilities (or actions, suits or proceedings including any inquiry or investigation or claims in respect thereof), judgments, fines, settlements and other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative, arbitral or investigative (collectively, “Losses”) which are being incurred in its capacity as the Administrator and are resulting from or arising out of the Administrator’s performance of its obligations hereunder with respect to the Company or Project Company, respectively; provided, however, that the Administrator shall not have the right to be so indemnified for Losses arising out of or relating to the negligence or willful misconduct of the Administrator, Seller, Operator or any of their Affiliates or their respective subcontractors, or a breach of its or their obligations under this Agreement or other agreement with either the Project Company or the Company or for which any of such Persons are obligated to indemnify the Project Company, the Company or any Member (for the purposes of this Section 9.01(a), the Administrator shall not be deemed to be an “Affiliate” of the Company).

(b) To the extent not otherwise covered by insurance and to the extent not prohibited by law, subject to the specific limitations of liability set forth in this Article IX, the Administrator shall indemnify and hold harmless the Company and the Project Company, its officers, directors, employees and Affiliates from and against all Losses resulting from or arising out of the Administrator’s performance of its obligations hereunder; provided, however, that the Company or the Project Company shall not have the right to be so indemnified for Losses arising out of or relating to the negligence or willful misconduct of the Company or the Project Company, or their respective Affiliates, officers, directors, and employees, if any, or a breach of the Company’s or the Project Company’s obligations under this Agreement (for the purposes of this Section 9.01(b), the Administrator shall not be deemed to be an “Affiliate” of the Company).

(c) Exclusion of Consequential Damages. Neither the Administrator, in such capacity, nor the Company, nor the Project Company, nor any of their officers, members, employees or Affiliates shall be liable for punitive, consequential, special, indirect or exemplary damages of any nature including, but not limited to, damages for lost profits or revenues or the loss or use of such profits or revenues, loss by reason of plant shutdown or inability to operate at rated capacity, increased operating expenses of plant or equipment, increased costs of purchasing or providing equipment, materials, labor, services, costs of replacement power or capital, debt service fees or penalties, inventory or use charges, damages to reputation, damages for lost opportunities, or claims of any of the customers, members or affiliates of the Project Company or the Company, regardless of whether said claim is based upon contract, warranty, tort (including negligence and strict liability) or other theory of law; provided that if (i) the Project Company is unable to claim the Grant, or, if the Grant is not available, the Project Company, the Company or the Members are unable to obtain the benefits of an Alternative Tax Program, (ii) the Grant or any Alternative Tax Benefit is recaptured or (iii) the allocation of the Grant or any Alternative Tax Benefit is deemed to be an item of federal taxable income because a representation or warranty made by the Administrator is false in any respect when made or deemed made or because the Administrator breaches any covenant, obligation or agreement, the amount of the Grant or Alternative Tax Benefit that is lost or recaptured (together with any federal tax

18

detriment suffered by the Class B Members as a result of such loss or recapture) will be recoverable as direct damages and will not constitute consequential, punitive, special, incidental or exemplary damages.

Section 9.02 Aggregate Liability. The aggregate liability of the Administrator under this Agreement shall be limited to the amount of Administration Fees actually paid to the Administrator; provided that such limitation of liability shall not apply to any liability that is the result of gross negligence, fraud or willful misconduct of the Administrator or any action by Administrator that results in loss of QFCP-RC Tariff service.

Section 9.03 Supremacy. The provisions expressed in this Article IX shall prevail over any conflicting or inconsistent provisions contained elsewhere in this Agreement and shall survive termination of this Agreement.

Section 9.04 Insurance. At all times during the Term without cost to the Company or the Project Company, Administrator shall maintain in force the following insurance, which insurance shall not be subject to cancellation, termination or other material adverse changes unless the insurer delivers to the Company and the Project Company written notice of the cancellation, termination or change at least thirty (30) days in advance of the effective date of the cancellation, termination or material adverse change:

(a) Worker’s Compensation Insurance as required by the laws of the state where Administrator’s facilities are located;

(b) Employer’s liability insurance with limits not less than One Million Dollars ($1,000,000); and

(c) Commercial General Liability Insurance, including bodily injury and property damage liability including premises operations, contractual liability endorsements, products liability and completed operations with limits not less than Five Million Dollars ($5,000,000).

Administrator shall cause the Company and the Project Company (and such additional parties as the Company and the Project Company designate in writing) to be named additional insured(s), must be written as primary policy not contributing to or in excess of any policies carried by the Company or the Project Company, and each contain a waiver of subrogation endorsement, in form and substance reasonably satisfactory to the Company and the Project Company, in favor of the Company and the Project Company.

ARTICLE X

REPRESENTATIONS AND WARRANTIES

Section 10.01 Representations and Warranties. Each party hereto represents and warrants, as of the date hereof, as follows:

(a) it is a limited liability company or a corporation, as applicable, duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;

19

(b) it has taken all necessary action to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder;

(c) this Agreement constitutes its legal, valid and binding obligation enforceable against it in accordance with its terms except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights and the enforcement of debtors’ obligations generally, and (ii) general principles of equity, regardless of whether enforcement is pursuant to a proceeding in equity or at law;

(d) the execution, delivery and performance of this Agreement do not violate (i) its constituent documents, (ii) any contract to which it is a party or to which any of its properties are subject, or (iii) any law, rule, regulation, order, writ, judgment, injunction, decree or determination to which it is subject or by which its properties are bound;

(e) no consent, authorization, approval or other action by, and no notice to or filing with, any governmental authority or any other Person is required for the due execution, delivery or performance of, or its ability to perform its obligations under, this Agreement by such party; and

(f) there is no action, suit or proceeding at law or in equity or by or before any governmental authority, arbitral tribunal or other body now pending or threatened against or affecting it or its property, which would reasonably be expected to have a material adverse effect on the transactions contemplated by this Agreement.

ARTICLE XI

MISCELLANEOUS

Section 11.01 Assignment.

(a) The Administrator may not assign its rights and obligations under this Agreement to any third party unless the prior written consent of the Company and the Project Company has been obtained; provided that, notwithstanding the foregoing, the Administrator may assign its rights and obligations under this Agreement to an Affiliate of the Administrator under common control with the Administrator, but only if after such assignment, the assignee shall be deemed the Qualified Fuel Cell Provider and the Portfolio deemed a Qualified Fuel Cell Provider Project.

(b) Neither the Company nor the Project Company may assign its rights and obligations under this Agreement to any third party without the prior written consent of the Administrator.

Section 11.02 Authorization. Except as expressly authorized in writing by the Managing Member with respect to the Company, or the Sole Member of the Project Company with respect to the Project Company, or contemplated under the Services, the Administrator shall not have the right or the obligation to create any obligation or to make any representation on behalf of the Company or Project Company, as applicable.

Section 11.03 Governing Law, Jurisdiction, Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE

20

STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN NEW YORK COUNTY, NEW YORK WITH RESPECT TO ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING TO A DISPUTE AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO.

Section 11.04 Independent Contractor. Nothing contained in this Agreement and no action taken by any party to this Agreement shall be (a) deemed to constitute any party or any of such party’s employees, agents or representatives to be an employee, agent or representative of the other parties hereto; (b) deemed to create any company, partnership, joint venture, association or syndicate among or between the parties; or (c) except as contemplated under the Services, deemed to confer on any party hereto any expressed or implied right, power or authority to enter into any agreement or commitment, express or implied, or to incur any obligation or liability on behalf of the other parties hereto, except as expressly authorized in writing.

Section 11.05 Notice. All notices, requests, consents, demands and other communications (collectively “notices”) required or permitted to be given under this Agreement shall be in writing signed by the party giving such notice and shall be given to each other party hereto at its address or fax number set forth in this Section 11.05 or at such other address or fax number as such party may hereafter specify by notice to the other parties hereto and shall be either delivered personally or sent by fax or registered or certified mail, return receipt requested, postage prepaid, or by a nationally recognized overnight courier service. A notice shall be deemed to have been given (a) when successfully transmitted if given by fax or (b) when delivered, if given by any other means. Notices shall be sent to the following addresses:

To the Administrator:

Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, California 94089

Attn: [***]

Telephone: [***]

Fax: [***]

To the Company:

Diamond State Generation Holdings, LLC

c/o Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, California 94089

Attn: [***]

Telephone: [***]

Fax: [***]

[***] Confidential Treatment Requested

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To the Project Company:

Diamond State Generation Partners, LLC

c/o Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, California 94089

Attn: [***]

Telephone: [***]

Fax: [***]

All of the Members, at their respective addresses as set forth in the Company LLC Agreement or the Project Company LLC Agreement.

Section 11.06 Usage. This Agreement shall be governed by the following rules of usage: (a) a reference in this Agreement to a Person includes, unless the context otherwise requires, such Person’s permitted assignees; (b) a reference in this Agreement to a law, license, or permit includes any amendment, modification or replacement to such law, license or permit; (c) accounting terms used in this Agreement shall have the meanings assigned to them by GAAP; (d) a reference in this Agreement to an article, section, exhibit, schedule or appendix is to an article, section, exhibit, schedule or appendix of this Agreement unless otherwise stated; (e) a reference in this Agreement to any document, instrument or agreement shall be deemed to include all appendices, exhibits, schedules and other attachments thereto and all documents, instruments or agreements issued or executed in substitution thereof, and shall mean such document, instrument or agreement, or replacement thereof, as amended, modified and supplemented from time to time in accordance with its terms and as the same is in effect at any given time; (f) unless otherwise specified, the words “hereof,” “herein” and “hereunder” and words or similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement; and (g) the words “include” and “including” and words of similar import used in this Agreement are not limiting and shall be construed to be followed by the words “without limitation”, whether or not they are in fact followed by such words.

Section 11.07 Entire Agreement. This Agreement (including all appendices and exhibits thereto) constitutes the entire agreement and understanding of the parties hereto with respect to the subject matter hereof and supersedes all prior written and oral agreements and understandings with respect to such subject matter.

Section 11.08 Amendment. Neither this Agreement nor any of the terms hereof may be terminated, amended, supplemented, waived or modified orally, but only by a document in writing signed by all parties. To the extent that this Agreement must be modified in order to maintain service under the Tariffs, the Parties shall exercise their best efforts to amend the Agreement to continue such service.

Section 11.09 Confidential Information. Except as required by applicable law, no party hereto shall, without the prior written consent of the other parties hereto, disclose any confidential information obtained from the first party to any third parties, other than to

[***] Confidential Treatment Requested

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consultants, attorneys, lenders, prospective lenders, investors, prospective investors or to employees who have agreed to keep such information confidential as contemplated by this Agreement and who are reasonably believed to need the information to assist such party with the exercise or performance of any rights and obligations provided to, or imposed upon, such party in such document.

Section 11.10 Third Party Beneficiaries. Except as otherwise expressly stated herein, this Agreement is intended to be solely for the benefit of the parties hereto and their permitted assignees and is not intended to and shall not confer any rights or benefits to the general public or any other third party not a signatory thereto; provided, however, that the Members of the Company are intended beneficiaries of this Agreement (subject to all the limitations hereof applicable to the Company, including Article III and Article IX hereof).

Section 11.11 Discharge of Obligations. With respect to any duties or obligations discharged hereunder by the Administrator, the Administrator may discharge such duties or obligations through the personnel of an Affiliate of the Administrator; provided that, notwithstanding the foregoing, the Administrator shall remain fully liable hereunder for such discharged duties and obligations.

Section 11.12 Severability. Any provision of this Agreement that shall be held to be invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without invalidating the remaining provisions hereof and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The parties shall negotiate in good faith a replacement provision or provisions that are valid and enforceable and that as closely as possible correspond to the spirit and purpose of the invalid or unenforceable provisions and this Agreement as a whole.

Section 11.13 Binding Effect. The terms of this Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their successors and permitted assigns.

Section 11.14 Right of Offset. The Company or the Project Company at its sole respective option is hereby authorized to setoff any amounts owed to the Project Company under the MESPA or the MOMA or owed to the Company or the Project Company under this Agreement, as applicable, against any amounts owed by the Project Company to Bloom Energy Corporation, Seller, Operator or Administrator under the MESPA, the MOMA or this Agreement. The rights provided by this paragraph are in addition to and not in limitation of any other right or remedy (including any right to set-off, counterclaim, or otherwise withhold payment) to which the Company or the Project Company may be entitled (whether by operation of law, contract or otherwise).

Section 11.15 No Liens. To the extent that Administrator has actual knowledge that any of its subcontractors has placed any Lien on a System or the Site for such System, then Administrator shall promptly cause such Liens to be removed or bonded over in a manner reasonably satisfactory to the Company or the Project Company.

[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]

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IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed, this Administrative Services Agreement on the date first set forth above.

BLOOM ENERGY CORPORATION,
a Delaware corporation
By:	/s/ Illegible
	Name:
	Title:

[Signature Page to the Administrative Services Agreement]

DIAMOND STATE GENERATION HOLDINGS, LLC,
a Delaware limited liability company
By:	/s/ William E Brockenborough
	Name:	William E Brockenborough
	Title:	Vice President

[Signature Page to the Administrative Services Agreement]

DIAMOND STATE GENERATION PARTNERS, LLC,
a Delaware limited liability company
By:	/s/ William E Brockenborough
	Name:	William E Brockenborough
	Title:	Vice President

[Signature Page to the Administrative Services Agreement]

EXHIBIT A

Insurance Requirements

1. For the Company

Schedule 8.4 to the Company LLC Agreement is incorporated hereto by reference.

EX-10

Exhibit 10.38

Execution Version

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

DEPOSITARY AGREEMENT

among

DIAMOND STATE GENERATION PARTNERS, LLC,

a Delaware limited liability company,

as the Company

and

DEUTSCHE BANK TRUST COMPANY AMERICAS,

as Collateral Agent

and

DEUTSCHE BANK TRUST COMPANY AMERICAS,

as Depositary

Dated as of March 20, 2013

TABLE OF CONTENTS

				Page
ARTICLE 1. DEFINED TERMS					1
	1.1	Defined Terms			1
	1.2	Undefined Terms			5
	1.3	Rules of Interpretation			5
ARTICLE 2. ESTABLISHMENT AND ADMINISTRATION OF ACCOUNTS					5
	2.1	Establishment of Accounts with Depositary			5
	2.2	Permitted Investments			6
		2.2.1	Directing the Making of Investments		6
		2.2.2	Application of Permitted Investments		7
		2.2.3	Earnings		7
		2.2.4	Liquidation of Investments for Distributions		7
		2.2.5	Value of Permitted Investments		7
		2.2.6	Security Interest		8
	2.3	Books of Account; Statements; Etc.			8
	2.4	Adequate Instruction; Sufficiency of Funds			8
	2.5	Power of Attorney			9
	2.6	Interest			9
	2.7	Actions by Collateral Agent			9
ARTICLE 3. PROJECT ACCOUNTS					9
	3.1	Account Withdrawals, Transfers and Payments			9
		3.1.1	General Procedures		9
		3.1.2	Account Withdrawal Documents		10
		3.1.3	Withdrawal and Transfers		10
	3.2	Construction Escrow Account			10
		3.2.1	Deposits into the Construction Escrow Account		10
		3.2.2	Disbursements from the Construction Escrow Account		11
	3.3	Revenue Account			11
		3.3.1	Deposits into Revenue Account		11
		3.3.2	Disbursements from the Revenue Account		11
	3.4	Operating Account			13
		3.4.1	Deposits into the Operating Account		13
		3.4.2	Disbursements from the Operating Account		13
	3.5	IDC Reserve Account			14
		3.5.1	Deposit into the IDC Reserve Account		14
		3.5.2	Disbursements from the IDC Reserve Account		14

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	3.6	Debt Service Reserve Account		14
		3.6.1	Deposit into the Debt Service Reserve Account	14
		3.6.2	Withdrawals from the Debt Service Reserve Account	14
		3.6.3	Disbursement of Excess Amounts from the Debt Service Reserve Account	15
	3.7	Loss Proceeds Account		15
		3.7.1	Deposit into the Loss Proceeds Account	15
		3.7.2	Withdrawals from the Loss Proceeds Account	15
		3.7.3	Surplus Proceeds	17
	3.8	Distribution Suspense Account		17
		3.8.1	Deposits to the Distribution Suspense Account	17
		3.8.2	Transfers and Payments from the Distribution Suspense Account	17
	3.9	Note Redemption Account		17
		3.9.1	Deposits to the Note Redemption Account	17
		3.9.2	Transfers from the Note Redemption Account	18
	3.10	Cash Grant Account		18
ARTICLE 4. SECURITY AND RELATED PROVISIONS; SECURITIES INTERMEDIARY				18
	4.1	Securities Accounts; Deposit Accounts		18
	4.2	Certain Rights and Powers in Respect of Accounts and Funds		19
		4.2.1	Rights to Accounts	19
		4.2.2	Certain Additional Powers of Collateral Agent and Depositary	19
		4.2.3	Control	20
	4.3	Security Interest; Grant Pursuant to Security Agreement		21
		4.3.1	Acknowledgment	21
	4.4	Perfection; Further Assurances		21
	4.5	Other Liens; Adverse Claim		21
	4.6	Duties and Certain Rights of Depositary		22
		4.6.1	General	22
		4.6.2	Appointment	23
		4.6.3	Negative Pledge	23
		4.6.4	Instructions Upon an Event of Default	23
		4.6.5	Standard of Care	24
		4.6.6	Action Upon Notices; Exercise of Judgment	24
		4.6.7	Indemnification and Liability	24
		4.6.8	Court Orders	25
		4.6.9	Resignation and Termination	26
		4.6.10	Directions and Instructions to the Depositary	26
		4.6.11	Individual Capacity	27
		4.6.12	Duties	27
		4.6.13	Succession	27

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	4.7	Remedies		27
	4.8	Costs, Expenses and Attorneys’ Fees		28
	4.9	Additional Rights of Collateral Agent and Depositary		28
		4.9.1	Actions	28
		4.9.2	No Responsibility for Statements, Etc.	29
		4.9.3	Collateral	29
	4.10	Non-Business Days		29
ARTICLE 5. TERMINATION OF AGREEMENT				29
ARTICLE 6. MISCELLANEOUS				30
	6.1	Notices		30
	6.2	Benefit of Agreement		31
	6.3	Delay and Waiver		32
	6.4	Amendments		32
	6.5	Governing Law		32
	6.6	Consent to Jurisdiction		32
	6.7	WAIVER OF JURY TRIAL		32
	6.8	Severability		33
	6.9	Headings		33
	6.10	Successors and Assigns		33
	6.11	Entire Agreement		33
	6.12	Survival of Agreements		34
	6.13	Counterparts		34
	6.14	Patriot Act		34

EXHIBITS

Exhibit A	Form of Account Withdrawal Instruction
Exhibit B	Form of Account Withdrawal Request
Exhibit C	Note Purchase Agreement

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This DEPOSITARY AGREEMENT, dated as of March 20, 2013 (this “Agreement”), is entered into by and among DIAMOND STATE GENERATION PARTNERS, LLC, a Delaware limited liability company (the “Company”), DEUTSCHE BANK TRUST COMPANY AMERICAS, as collateral agent for the Secured Parties (in such capacity, “Collateral Agent”), and DEUTSCHE BANK TRUST COMPANY AMERICAS, as depositary agent, bank and securities intermediary (in such capacities, “Depositary”).

RECITALS

A. The Company intends to develop, construct, install, finance, own, operate and maintain a portfolio of fuel cell electricity generators with an aggregate capacity of 30 MW, to be located on one or more sites in New Castle County, Delaware (the “Project”).

B. In order to finance the development, construction, installation, testing, operation and use of the Project and the acquisition of certain other assets related thereto, the Company has entered into that certain Note Purchase Agreement, dated as of March 20, 2013, a copy of which is attached hereto as Exhibit C (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Note Purchase Agreement”) with the Purchasers (as defined in the Note Purchase Agreement), pursuant to which, among other things, the Company has issued Notes to the Purchasers in an aggregate principal amount equal to $144,812,500.

C. In order to further secure and support the Company’s obligations to the Purchasers under the Note Purchase Agreement, the Company is entering into this Agreement, pursuant to which, among other things, the Company will grant to Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Accounts and in all financial assets held therein or credited thereto and all proceeds thereof.

D. Depositary has agreed to act as depositary agent, bank and securities intermediary pursuant to the terms of this Agreement.

AGREEMENT

NOW, THEREFORE, in consideration of the promises contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Company hereby agrees with Collateral Agent and Depositary, for the benefit of the Secured Parties, as follows:

ARTICLE 1.

DEFINED TERMS

1.1 Defined Terms. The following terms when used in this Agreement, including its preamble and recitals, shall have the following meanings:

“Account Withdrawal Documents” means, collectively, any Account Withdrawal Request and the Account Withdrawal Instruction related thereto, properly completed by the Company and delivered to Collateral Agent and each Holder in accordance with the applicable provisions of this Agreement.

“Account Withdrawal Instruction” means an instruction letter substantially in the form of Exhibit A hereto delivered by the Company to Collateral Agent for further delivery to Depositary.

“Account Withdrawal Request” means a certificate in the form of Exhibit B hereto signed by a duly authorized representative of the Company and delivered to Collateral Agent and each Holder.

“Accounts” has the meaning set forth in Section 2.1.

“Affiliate” of a specified Person means any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with such Person. For purposes of this definition, “control” means the possession, directly or indirectly (either alone or pursuant to an arrangement or understanding with one or more other Persons), of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” shall have meanings correlative thereto.

“Authorized Signatory” has the meaning given in Section 4.6.10.

“Business Day” means any day other than a Saturday, Sunday or other day on which banks are authorized or required to be closed in the State of New York or the State of Delaware.

“Casualty Event” means the loss, damage or destruction of any part of the Improvements or any personal property related to the Project.

“Collateral” means all property which is subject or is intended to become subject to the security interests or liens granted by any of the Collateral Documents.

“Collateral Agent” has the meaning given in the preamble to this Agreement.

“Collateral Documents” means the collateral security documents entered into for the purpose of providing collateral security for the benefit of the Secured Parties to secure the obligations of the Company under the Note Purchase Agreement and the other Credit Documents.

“Company” has the meaning given in the preamble to this Agreement.

“Conditions to Release of Funds” has the meaning given in Section 3.7.2(b) .

“Construction Escrow Account” means the account designated by that name established by the Company with Depositary pursuant to Section 2.1.

“Debt Service Deficiency” has the meaning given in Section 3.6.2.

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“Debt Service Reserve Account” means the account designated by that name established by the Company with Depositary pursuant to Section 2.1.

“Depositary” has the meaning given in the preamble to this Agreement.

“Distribution Suspense Account” means the account designated by that name established by the Company with Depositary pursuant to Section 2.1.

“Eminent Domain Proceeds” means all proceeds received in respect of any Event of Eminent Domain.

“Forced Outage Replacement RECs” has the meaning given in the Tariff.

“IDC Reserve Account” means the account designated by that name established by the Company with Depositary pursuant to Section 2.1.

“Indemnified Persons” has the meaning given in Section 4.6.7(a) .

“Insurance Proceeds” means all proceeds in respect of any property insurance policy required to be maintained by the Company under the Credit Documents.

“Item” has the meaning given to such term in Section 4.5(b) herein.

“Loss Event” means any Casualty Event or Event of Eminent Domain, as the context requires.

“Loss Proceeds” means, individually and collectively, Insurance Proceeds and Eminent Domain Proceeds.

“Loss Proceeds Account” means the account designated by that name established by the Company with Depositary pursuant to Section 2.1.

“Monthly Date” means the last Business Day of each month.

“Moody’s” means Moody’s Investors Service, Inc.

“Net Available Amount” means, with respect to any Loss Event, the aggregate amount of Loss Proceeds received by the Company or Collateral Agent in respect of such Loss Event, net of reasonable expenses incurred in connection with the collection thereof.

“Note Purchase Agreement” has the meaning given in the recitals to this Agreement.

“Operating Account” means the account designated by that name established by the Company with Depositary pursuant to Section 2.1.

“Permitted Investments” means: (i) marketable securities issued by the U.S. Government and supported by the full faith and credit of the U.S. Treasury, by statute; (ii) marketable debt securities, rated Aaa by Moody’s and/ or AAA by S&P, issued by

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U.S. Government-sponsored enterprises, U. S. Federal agencies, U. S. Federal financing banks, and international institutions whose capital stock has been subscribed for by the United States; (iii) certificates of deposit, time deposits, and bankers acceptances of any bank or trust company incorporated under the laws of the United States or any state, provided that, at the date of acquisition, such investment, and/or the commercial paper or other short term debt obligation of such bank or trust company has a short-term credit rating or ratings from Moody’s and/or S&P, each at least P-1 or A-1; (iv) commercial paper of any corporation incorporated under the laws of the United States or any state thereof which on the date of acquisition is rated by Moody’s and/or S&P, provided each such credit rating is least P-1 and/or A-1; (v) money market mutual funds that are registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, and operated in accordance with Rule 2a-7 and that at the time of such investment are rated Aaa by Moody’s and/or AAAm by S&P, including such funds for which Depositary or an Affiliate provides investment advice or other services; (vi) tax-exempt variable rate commercial paper, tax-exempt adjustable rate option tender bonds, and other tax-exempt bonds or notes issued by municipalities in the United States, having a short-term rating of “MIG-1” or “VMIG-1” or a long term rating of “AA” (Moody’s), or a short-term rating of “A-1” or a long term rating of “AA” (S&P); (vii) repurchase obligations with a term of not more than thirty days, 102 percent collateralized, for underlying securities of the types described in clauses (i) and (ii) above, entered into with any bank or trust company or its respective Affiliate meeting the requirements specified in clause (iii) above; and (viii) maturities on the above securities shall not exceed 365 days and all rating requirements and/or percentage restrictions are based on the time of purchase.

“Project” has the meaning given in the recitals to this Agreement.

“Required Equity Contribution” has the meaning given in the Equity Contribution Agreement.

“Revenue Account” means the account designated by that name established by the Company with Depositary pursuant to Section 2.1.

“S&P” means Standard and Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.

“UCC” means the Uniform Commercial Code as the same may, from time to time, be in effect in the State of New York; provided, however, in the event that, by reason of mandatory provisions of law, any or all of the perfection or priority of the security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York the term “UCC” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such perfection or priority and for purposes of definitions related to such provisions.

“Waterfall Level” means any of the waterfall levels set forth in Section 3.3.2, as the case may be.

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1.2 Undefined Terms. Unless otherwise defined herein, capitalized terms used in this Agreement have the meanings provided in the Note Purchase Agreement.

1.3 Rules of Interpretation. Unless otherwise provided herein, the rules of interpretation set forth in Schedule B to the Note Purchase Agreement shall apply to this Agreement, and are incorporated herein by reference, mutatis mutandis.

ARTICLE 2.

ESTABLISHMENT AND ADMINISTRATION OF ACCOUNTS

2.1 Establishment of Accounts with Depositary.

(a) The Company hereby directs Depositary to establish on or prior to the date hereof and maintain until the termination of this Agreement in accordance with Article 5 or as otherwise expressly set forth herein, at its office located at 60 Wall Street MSNYC 60-2710, New York, NY 10005, Attention: Trust and Agency Services, the following segregated non-interest bearing accounts (each to be referred to herein by the defined term provided, and collectively the “Accounts”), in the name of the Company (as the securities entitlement holder), but under the exclusive dominion and control of Collateral Agent pursuant to the terms of this Agreement:

Name of Account at Depositary	Account Number	Defined Term for Account
[***]	[***]	“Construction Escrow Account”
[***]	[***]	“Revenue Account”
[***]	[***]	“Loss Proceeds Account”
[***]	[***]	“Operating Account”
[***]	[***]	“Distribution Suspense Account”
[***]	[***]	“Debt Service Reserve Account”
[***]	[***]	“IDC Reserve Account”
[***]	[***]	“Note Redemption Account”

[***] Confidential Treatment Requested

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The complete wire instructions for each of the Accounts are as follows:

Deutsche Bank Trust Company Americas

ABA No.: [***]

Account #: [***]

Beneficiary Name: Trust and Securities Services

FFC AC : PORT [        ]

Attention: Anabelle Roa – Diamond State Generation Partners

(b) Depositary shall send copies of all statements and confirmations for the Accounts simultaneously to the Company and Collateral Agent.

2.2 Permitted Investments;

2.2.1 Directing the Making of Investments. Any cash held in Accounts maintained hereunder shall be invested and reinvested in Permitted Investments from time to time by Depositary at the expense and risk of the Company (a) as directed by the Company, so long as Collateral Agent has not notified Depositary that an “Event of Default” under the Note Purchase Agreement has occurred and is continuing or after Collateral Agent has notified Depositary that any such Event of Default no longer exists, and (b) as directed by Collateral Agent, if Collateral Agent has notified Depositary that an Event of Default has occurred and is continuing (and Depositary has had reasonable time, in any event not to exceed 3 Business Days, to act on such notice), until such time, if ever, as Collateral Agent notifies Depositary that any such Event of Default no longer exists; provided, however, that, if the Company fails to so direct Depositary, or if there exists an Event of Default and Collateral Agent fails to so direct Depositary, by 11:00 a.m. on the date on which the term of any Permitted Investment terminates, amounts in respect of such terminating Permitted Investment shall be reinvested in any mutual funds for which Depositary or any Affiliate of Depositary may serve as investment advisor or other service provider. The other parties hereto acknowledge that shares in this mutual fund are not obligations of Deutsche Bank Trust Company Americas or any of its Affiliates, are not deposits and are not insured by the FDIC. Depositary or its Affiliate may be compensated by the mutual fund for services rendered in its capacity as investment advisor, or other service provider, such as provider of shareholder servicing and distribution services, and such compensation is both described in detail in the prospectus for the fund, and is in addition to the compensation, if any, paid to Deutsche Bank Trust Company Americas in its capacity as Depositary hereunder. Depositary’s obligation to invest such amounts is conditioned upon receipt by Depositary from the Company of a valid Form W-9 of the Internal Revenue Service of the United States in accordance with Section 2.2.3. The right to direct the manner of investment includes, but is not limited to, the right (i) to direct Depositary to sell any Permitted Investment or hold it until maturity and (ii) upon any sale at maturity of any Permitted Investment, to direct Depositary to reinvest the proceeds thereof, plus any interest received by Depositary thereon, in Permitted Investments or to hold such proceeds and interest for application pursuant to the terms of this Agreement. Depositary shall have no liability for any loss resulting from any such investment other than any such loss caused solely by Depositary’s willful misconduct or gross negligence. Except as otherwise provided in this Section 2.2, any balances in the Accounts shall remain uninvested.

[***] Confidential Treatment Requested

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2.2.2 Application of Permitted Investments. Permitted Investments purchased in connection herewith and under the provisions of this Agreement by Depositary shall be deemed at all times to be a part of the Account from which funds were withdrawn in order to acquire the Permitted Investment and shall be deemed to constitute funds on deposit in and credited to such Account, and the income or interest earned and gains realized in excess of losses incurred by an Account due to the investment of funds deposited therein shall be credited and retained in the particular Account in respect of which the Permitted Investment was purchased, except as expressly provided by the terms hereof.

2.2.3 Earnings.

(a) For purposes of any income tax payable on account of any income or gain on an investment, such income or gain shall be credited to the Company for tax reporting purposes. Depositary shall provide to the Company a statement with respect to all interest earned on any Account as of the close of each calendar year for which income is earned on the Accounts. The Company shall provide Depositary with its taxpayer identification number, documented, to the extent necessary, by an appropriate executed Form W-9, upon execution of this Agreement. The Form W-9 shall, to the extent necessary, be renewed as required by the Internal Revenue Service of the United States and provided to Depositary.

(b) Any interest, gain or other earnings on, or proceeds of, investments credited to any Account that may be received by Depositary shall be deposited in such Account.

2.2.4 Liquidation of Investments for Distributions. Any direction of an Authorized Signatory of the Company, with respect to the investment or reinvestment of monies held in any Account shall direct investment or reinvestment only in Permitted Investments that shall mature in such amounts and have maturity dates or be subject to redemption at the option of the holder thereof on or prior to maturity as needed for the purposes of transfers into and from such Accounts. Collateral Agent is hereby authorized in any event to direct Depositary to liquidate or direct the liquidation of any Permitted Investment (without regard to maturity date) whenever Collateral Agent deems it necessary in order to make or cause to be made any deposit, transfer or distribution. In furtherance, and not in limitation, but without duplication, of any other indemnity or limitation of liability with respect to Collateral Agent or Depositary contained herein, neither Collateral Agent nor any other Secured Party shall in any way be liable for any losses incurred by the Company, including losses due to early liquidation or market risk, which are a result of Collateral Agent’s exercise of its authority under this provision, other than any such loss arising from Collateral Agent’s willful misconduct or gross negligence. Neither Collateral Agent nor Depositary nor any other Secured Party shall in any event be liable or responsible for any loss, penalty or gain resulting from any investment made hereunder in accordance with the terms of this Agreement.

2.2.5 Value of Permitted Investments. For purposes of this Agreement (including determination of the balance in, or the aggregate amount on deposit in and credited to, any Account), the value of any investment shall be the lesser of (a) the face amount thereof and (b) the fair market value thereof.

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2.2.6 Security Interest. Whenever the Company directs Depositary to purchase a Permitted Investment not represented or evidenced by certificates or instruments capable of possession, the Company shall notify Collateral Agent of such purchase and, upon the request of Collateral Agent, Depositary shall deliver such information in Depositary’s possession to Collateral Agent as may be reasonably necessary to enable Collateral Agent to take all necessary action, including giving confirmations and notices to record Collateral Agent’s interest therein, all as required by the UCC to perfect a first priority security interest for the benefit of Collateral Agent. Without limiting the foregoing, whenever Depositary is instructed to purchase a Permitted Investment which is a certificate of deposit, Depositary shall simultaneously or promptly thereafter notify the issuer of the certificate of deposit as follows: Deutsche Bank Trust Company Americas, as Collateral Agent for the benefit of the Secured Parties, has a security interest and pledge in the certificate(s) of deposit being purchased this day by Deutsche Bank Trust Company Americas, as depositary agent and bailee on behalf of Collateral Agent and the other Secured Parties.

2.3 Books of Account; Statements; Etc. Depositary shall maintain books of account on a cash basis and record therein all deposits into and transfers to and from the Accounts and all investment transactions effected by Depositary pursuant to the terms hereof, and any such recordation shall constitute prima facie evidence of the information recorded. Not later than the 10^th Business Day of each month, commencing with the first month to occur after the date hereof, Depositary shall deliver to Company a statement setting forth the transactions in each Account during the preceding month, including deposits, withdrawals and transfers from and to any Account, and specifying any Permitted Investments and other amounts held in each Account at the close of business on the last Business Day of the preceding month. In addition, Depositary shall promptly respond during normal business hours to requests by Collateral Agent or the Company for information regarding deposits, investments and transfers into, in respect of and among the Accounts. Depositary shall provide access to its on line bank statements and transaction activities reports with respect to each Account subject to Company and Collateral Agent providing any reasonable information to Depositary which is needed to establish such person with access to such on line system.

2.4 Adequate Instruction; Sufficiency of Funds.

2.4.1 In the event that Depositary receives any monies in respect of the Company without adequate instruction as to the Account into which such monies are to be deposited, Depositary shall immediately deposit such monies into the Construction Escrow Account and, after notice from Collateral Agent that the Final Completion Date has occurred, into the Revenue Account, keeping such records as may be necessary to adequately distinguish such monies from other funds held in such Account, and shall immediately thereafter notify the Company and Collateral Agent of the receipt of such monies. At any time that Depositary subsequently receives instructions from the Company and Collateral Agent jointly (unless an Event of Default exists, in which case instructions only from Collateral Agent shall be sufficient) specifying the Account into which any such monies should be deposited, Depositary shall transfer such monies, within one Business Day of receiving such notice, from the Construction Escrow Account or Revenue Account, as the case may be, into the Account(s) that the Company and/or Collateral Agent specified in such subsequent instructions.

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2.4.2 To the extent that there are insufficient funds in the relevant Account to make a transfer or withdrawal directed by an Account Withdrawal Instruction, Depositary shall (i) immediately notify the Company and Collateral Agent of such deficiency and (ii) thereafter, to the extent practicable, unless it promptly receives contrary joint instructions from Collateral Agent and the Company, make such withdrawal or transfer to the extent of such funds.

2.5 Power of Attorney. With respect to the powers and rights granted to Collateral Agent in Article 3, the Company hereby constitutes and appoints Collateral Agent its true and lawful attorney-in-fact to make the direct payments specified therein, and this power of attorney shall be deemed to be a power coupled with an interest and shall be irrevocable. No further direction or authorization from the Company shall be necessary to warrant or permit Collateral Agent to make such direct payments in accordance with the foregoing sentence and Article 3; provided, that Collateral Agent shall have no obligation to make any such payment unless instructed to do so upon the written direction of the Required Holders.

2.6 Interest. Depositary shall credit to each Account all receipts of interest and other income received in respect of the funds held in such Account.

2.7 Actions by Collateral Agent. Collateral Agent shall only be obligated to act hereunder upon the written direction of the Required Holders.

ARTICLE 3.

PROJECT ACCOUNTS

3.1 Account Withdrawals, Transfers and Payments.

3.1.1 General Procedures.

(a) For every withdrawal, transfer or payment from any Account, the Company shall execute and deliver to Collateral Agent and each Holder an Account Withdrawal Request and a proposed Account Withdrawal Instruction related thereto at least seven Business Days prior to the proposed date of a withdrawal, transfer or payment from an Account. The Company shall submit, together with each set of Account Withdrawal Documents, receipts, invoices and any other appropriate documentation or materials reasonably requested by Collateral Agent or any Holder to enable it to confirm the withdrawals and transfers specified in the applicable Account Withdrawal Request and the other matters described therein.

(b) Unless Collateral Agent and the Company have received from the Required Holders a written objection with respect to the Account Withdrawal Documents within three Business Days from the Company’s delivery thereof, Collateral Agent shall sign the applicable Account Withdrawal Instruction and deliver such Account Withdrawal Instruction to Depositary with a copy to the Company. If the Required Holders provide a written objection (within the applicable time period provided in the immediately preceding sentence) to only part of any individual withdrawal, transfer or payment requested in any Account Withdrawal Request, Collateral Agent shall sign the applicable Account Withdrawal Instruction, modified to reflect only the withdrawals, transfers and payments that have not been timely objected to, and deliver such Account

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Withdrawal Instruction to Depositary. The Company shall be permitted to submit a revised set of Account Withdrawal Documents to Collateral Agent and each Holder with respect to any withdrawals, transfers and payments that have been timely objected to.

(c) The Company agrees that Collateral Agent may direct Depositary to transfer any or all sums on deposit in or credited to any Account directly into the accounts identified by the Company in each Account Withdrawal Request without further authorization from the Company; provided that if the Company has notified Collateral Agent that it is contesting a claim for payment in accordance with the applicable Operative Documents, Collateral Agent shall not be entitled to directly pay any amount being contested, except any portion of such amount which is not being contested by the Company.

3.1.2 Account Withdrawal Documents. A set of Account Withdrawal Documents shall be deemed properly delivered by the Company to Collateral Agent and each Holder if such Account Withdrawal Documents have been properly completed and delivered to the Collateral Agent and the Required Holders in accordance with the applicable time requirements set forth herein and not objected by the Required Holders as provided in Section 3.1.1 (b) above. To the extent that any directions to Depositary or any requested actions by Depositary under this Article 3 require actions to be taken by the Company and the Company fails to perform such actions, or if any Account Withdrawal Documents submitted by the Company are incorrect or if an Event of Default has occurred and is continuing or would occur based on the Company’s failure to submit, or to submit accurate and necessary, Account Withdrawal Documents, Collateral Agent may, but is not obligated to, perform such actions by completing and executing an Account Withdrawal Instruction at the direction of the Required Holders and delivering such Account Withdrawal Instruction to Depositary.

3.1.3 Withdrawal and Transfers. Upon receipt before 11:00 A.M. on a Business Day by Depositary of an Account Withdrawal Instruction pursuant to which Collateral Agent directs the withdrawal of funds from any Account, Depositary shall make such withdrawals and shall apply such funds to the uses and in the amounts specified in such Account Withdrawal Instruction as soon as reasonably practicable, and in any event within the next Business Day after receipt of such Account Withdrawal Instruction.

3.2 Construction Escrow Account.

3.2.1 Deposits into the Construction Escrow Account. Commencing on the Closing Date and until the Final Completion Date, the Company shall immediately deposit or cause to be deposited into the Construction Escrow Account each of the following:

(a) all proceeds of the Notes issued under the Note Purchase Agreement other than such proceeds that are applied as of the Closing Date for (i) the repayment of the Debt outstanding under the Existing Financing Agreement, (ii) deposit of an amount equal to the Debt Service Reserve Requirement into the Debt Service Reserve Account, (iii) deposit of the amount set forth in Section 3.5.1 into the IDC Reserve Account, (iv) payment of all fees and costs related to the transactions under the Note Purchase Agreement and the other Credit Documents and (v) payment to the Pledgor of the Permitted Distribution;

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(b) the proceeds of all cash equity contributions made to the Company (as provided in Section 4.2.9(a) and (b) of the Note Purchase Agreement); and

(c) all delay in start-up or business interruption insurance proceeds received by the Company.

3.2.2 Disbursements from the Construction Escrow Account.

(a) The Company shall submit a set of Account Withdrawal Documents to Collateral Agent and each Holder as and when, but no more frequently than one time each month, the Company seeks to withdraw or transfer funds from the Construction Escrow Account, which Account Withdrawal Documents shall be delivered concurrently with the delivery of a Drawdown Certificate by the Company to each Holder and the Independent Engineer pursuant to Section 4.2.1 of the Note Purchase Agreement. The applicable Account Withdrawal Request shall request Collateral Agent to direct Depositary to transfer or apply monies on deposit in the Construction Escrow Account to the account or accounts specified by the Company to pay, to the extent consistent with the then-current Project Budget (including any contingency and subject to any overage permitted by Section 9.14(c) of the Note Purchase Agreement) or otherwise approved or permitted hereunder, Project Costs due and owing.

(b) On the Final Completion Date:

(1) subject to the occurrence of the Final Completion Date, as confirmed to Collateral Agent in writing by the Company, any amounts remaining on deposit in the Construction Escrow Account on the Final Completion Date shall be transferred by Depositary to the account or accounts to be specified by the Company in its sole discretion (including to pay the Final Completion Date Distribution); and

(2) after all the proceeds then on deposit or credited to the Construction Escrow Account shall have been withdrawn or transferred pursuant to the foregoing clause (1) above, Collateral Agent shall direct Depositary to close the Construction Escrow Account.

3.3 Revenue Account.

3.3.1 Deposits into Revenue Account. The Company shall deposit into the Revenue Account all Project Revenues (other than delay in start-up or business interruption insurance proceeds received prior to the Final Completion Date which will be deposited into the Construction Escrow Account pursuant to Section 3.2.1(c)) .

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3.3.2 Disbursements from the Revenue Account.

(a) To cause the withdrawal or transfer of amounts on deposit in the Revenue Account, the Company shall submit to Collateral Agent and each Holder a set of Account Withdrawal Documents at least four Business Days prior to the last Business Day of each calendar month. Unless Collateral Agent and the Company have received from the Required Holders a written objection with respect to the Account Withdrawal Documents within three Business Days from the Company’s delivery thereof, Collateral Agent shall sign the applicable Account Withdrawal Instructions and deliver such Account Withdrawal Instructions to Depositary at least one Business Day prior to the last Business Day of the month in which such Account Withdrawal Documents were submitted or the proposed disbursement date, as applicable.

(b) Prior to the Final Completion Date, amounts on deposit in the Revenue Account shall be applied to the following uses, in the following amounts, at the following times, and in the following order of priority, to the extent funds are available therefor:

(1) On each Monthly Date, to the Operating Account for the payment of all O&M Costs then due and payable or to be due and payable in the ensuing month, subject in all events to a maximum amount determined pursuant to Section 3.3.2(d) .

(2) On each Monthly Date, to the Operating Account for the payment of all reimbursable amounts currently payable to Collateral Agent or Depositary in connection with the Credit Documents.

(3) On each Repayment Date, amounts sufficient to pay principal, all accrued interest and fees on the Notes (provided that, to the extent amounts on deposit in the Revenue Account are insufficient for such purpose, such amounts shall be withdrawn from the IDC Reserve Account in accordance with Section 3.5.2(a)) .

(4) On each Repayment Date, at the Company’s election, to the optional prepayment of the Notes pursuant to Section 8.2 of the Note Purchase Agreement.

(c) On and after the Final Completion Date, amounts on deposit in the Revenue Account shall be applied to the following uses, in the following amounts, at the following times, and in the following order of priority, to the extent funds are available therefor:

(1) On each Monthly Date, to the Operating Account for the payment of all O&M Costs then due and payable or to be due and payable in the ensuing month (other than pursuant to Waterfall Level (6) below), subject in all events to a maximum amount determined pursuant to Section 3.3.2(d); provided, that during a Forced Outage Event, amounts disbursed pursuant to this Waterfall Level (1) shall not exceed [***] per month plus the cost of any Forced Outage Replacement RECs.

[***] Confidential Treatment Requested

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(2) On each Monthly Date, to the payment of all reimbursable amounts currently payable to Collateral Agent or Depositary in connection with the Credit Documents.

(3) On each Repayment Date, to the payment of interest on the Notes, and on other amounts accruing interest under the Credit Documents.

(4) On each Repayment Date, to the scheduled repayment of the principal of the Notes.

(5) On each Repayment Date, to the Debt Service Reserve Account the amount (if any) necessary to fund the Debt Service Reserve Account so that the amount then on deposit in or credited to the Debt Service Reserve Account equals the Debt Service Reserve Requirement at such time.

(6) On each Repayment Date, to the Operating Account for the payment of all O&M Costs then due and payable or to be due and payable in the ensuing month with respect to any System that is not operating at least at [***] of its nameplate capacity.

(7) On each Repayment Date, to any mandatory prepayment of the Notes pursuant to Section 8.1.2 of the Note Purchase Agreement.

(8) On any Repayment Date, if the Distribution Conditions have been satisfied, to the account directed by the Company in the Account Withdrawal Request, free of the Liens of the Collateral Documents, and if the Distribution Conditions have not been satisfied, to the Distribution Suspense Account.

(d) O&M Costs payable at Waterfall Level (1) of Sections 3.3.2(b) and 3.3.2(c) shall not in any event exceed the amounts prescribed by Section 9.14(c) of the Note Purchase Agreement. The Company shall promptly pay all O&M Costs in excess of the foregoing limit from the Distribution Suspense Account.

3.4 Operating Account.

3.4.1 Deposits into the Operating Account. Amounts shall be transferred to the Operating Account as provided in Sections 3.3.2(b)(1) and (2) and 3.3.2(c)(1) and (6).

3.4.2 Disbursements from the Operating Account. The Company shall submit a set of Account Withdrawal Documents to Collateral Agent and each Holder as and when, but no more frequently than one time each month, the Company seeks to withdraw or transfer funds from the Operating Account. The applicable Account Withdrawal Request shall request Collateral Agent to direct Depositary to apply monies on deposit in the Operating Account to pay, to the extent consistent with the then-current Annual Operating Budget (including any contingency and subject to any overage permitted by Section 9.14(c) of the Note Purchase Agreement) or otherwise approved or permitted hereunder, O&M Costs due and owing and reimbursable amounts currently payable to Collateral Agent or Depositary in connection with the Credit Documents.

[***] Confidential Treatment Requested

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3.5 IDC Reserve Account.

3.5.1 Deposit into the IDC Reserve Account. On the Closing Date, the Company shall fund or cause to be funded the IDC Reserve Account in an amount equal to [***].

3.5.2 Disbursements from the IDC Reserve Account.

(a) Prior to the Final Completion Date, Collateral Agent shall direct Depositary, pursuant to an Account Withdrawal Instruction, to withdraw amounts from the IDC Reserve Account to pay principal, all accrued interest and fees on the Notes to the extent that amounts in the Revenue Account are insufficient therefor.

(b) On the Final Completion Date:

(1) subject to the occurrence of the Final Completion Date, as confirmed to Collateral Agent in writing by the Company, any amounts remaining on deposit in the IDC Reserve Account on the Final Completion Date shall be transferred by Depositary to the account or accounts to be specified by the Company in its sole discretion (including to pay the Final Completion Date Distribution); and

(2) after all the proceeds then on deposit or credited to the IDC Reserve Account shall have been withdrawn or transferred pursuant to the foregoing clause (1), Collateral Agent shall direct Depositary to close the IDC Reserve Account.

3.6 Debt Service Reserve Account.

3.6.1 Deposit into the Debt Service Reserve Account. On the Closing Date, the Company shall fund or cause to be funded the Debt Service Reserve Account in an amount equal to the Debt Service Reserve Requirement. If on any Repayment Date, amounts in the Debt Service Reserve Account are below the Debt Service Reserve Requirement, there shall be deposited all amounts in excess of the amounts applied pursuant to Waterfall Levels (1)-(4) of Section 3.3.2(c) in the Debt Service Reserve Account until the balance in the Debt Service Reserve Account is equal to the Debt Service Reserve Requirement.

3.6.2 Withdrawals from the Debt Service Reserve Account. If at any time when amounts are required to be paid pursuant to Waterfall Level (3) and (4) of Section 3.3.2(c), or the Company is required to provide Forced Outage Replacement RECs to DPL under the Tariff during a Forced Outage Event, and insufficient funds are contained in the Revenue Account and Distribution Suspense Account to pay such amounts (a “Debt Service Deficiency”), Collateral Agent shall direct Depositary, pursuant to an Account Withdrawal Instruction, to withdraw from the Debt Service Reserve Account funds deposited in or credited to such Account, in an amount sufficient to pay such amounts.

[***] Confidential Treatment Requested

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3.6.3 Disbursement of Excess Amounts from the Debt Service Reserve Account. At any time the funds on deposit in the Debt Service Reserve Account are greater than (i) the Debt Service Reserve Requirement at such time or (ii) the aggregate remaining principal and interest payments on the Notes, and no Event of Default or Forced Outage Event has occurred and is continuing, Collateral Agent shall direct Depositary to transfer to the Revenue Account any such excess cash as requested by the Company pursuant to an Account Withdrawal Request, to the extent of such excess.

3.7 Loss Proceeds Account.

3.7.1 Deposit into the Loss Proceeds Account. The Company shall deposit, and shall use commercially reasonable efforts to cause third parties that would otherwise make payments directly to the Company to deposit, into the Loss Proceeds Account the Net Available Amount of all Loss Proceeds upon receipt thereof. If Loss Proceeds are received by the Company, the Company shall hold such payments in trust for Depositary and shall promptly remit the Net Available Amount of such Loss Proceeds to Depositary for deposit into the Loss Proceeds Account, in the form received, with any necessary endorsements.

3.7.2 Withdrawals from the Loss Proceeds Account.

(a) If there shall occur any single Loss Event with respect to which the replacement value does not exceed [***], the Net Available Amount of any Loss Proceeds in respect of such Loss Event shall be applied by the Company to the prompt payment of the cost of the repair or restoration of such damage or destruction.

(b) If the Company receives Loss Proceeds relating to a Loss Event in respect of a single Loss Event greater than [***] (as determined by the replacement value of the item of property subject to the Loss Event) and the following conditions have been satisfied or waived by the Required Holders in consultation with the Independent Engineer (the “Conditions to Release of Funds”):

(i) such damage or destruction does not constitute the destruction of all or substantially all of the man-made portion of the Project;

(ii) no Event of Default has occurred and is continuing (other than an Event of Default resulting solely from such damage or destruction) and after giving effect to any proposed repair and restoration, such damage or destruction or proposed repair and restoration will not result in a Default or Event of Default;

(iii) the Company and the Independent Engineer certify, and the Required Holders determine in their reasonable judgment, that repair or restoration of the Project is technically and economically feasible within a one-year period and that a sufficient amount of funds is or will be available to the Company to make such repairs and restorations;

(iv) the Required Holders in consultation with the Independent Engineer reasonably determine that after repair and restoration the Project should be as capable of generating Project Revenues as prior to the casualty and consistent with the Base Case Projections;

[***] Confidential Treatment Requested

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(v) (A) no material Permit is necessary to proceed with the repair and restoration and (B) no material amendment to this Agreement or any of the Operative Documents is necessary for the purpose of effecting the repairs or restorations and (C) no material amendment to this Agreement or any of the Operative Documents is necessary for the purpose of subjecting the repairs or restorations to the Liens of the Collateral Documents, or, if any such is necessary, the Company will be able to obtain such as and when required;

(vi) if requested by the Required Holders, the Holders shall receive an opinion of counsel acceptable to Collateral Agent, at the Company’s expense, opining as to the matters described in clauses (A) and (C) of paragraph (v) above, and such opinion shall also state that that such repairs or restoration will be subject to the Liens of the Collateral Documents; and

(vii) Collateral Agent shall receive such additional title insurance, title insurance endorsements, mechanic’s lien waivers, certificates, opinions or other matters as Required Holders may reasonably request as necessary or appropriate in connection with such repairs or restoration or to preserve or protect the holders of the Notes’ interests hereunder and in the Collateral.

then the Net Available Amount of such Loss Proceeds shall be applied by the Company to the prompt repair or restoration of the Project in accordance with the following procedures:

(i) the Company shall submit a detailed report to Collateral Agent describing the Company’s plan for effectuating repairs or restoration, and such report shall be subject to the review and approval of the Required Holders in consultation with the Independent Engineer (such approval not to be unreasonably withheld).

(ii) from time to time after the Required Holders shall have duly approved the making of such repairs or restoration, Collateral Agent’s release of Loss Proceeds for application toward such repairs or restoration shall be conditioned upon the Company’s request and the presentation to Collateral Agent of a certificate from the Company (i) describing in reasonable detail the nature of the repairs or restoration to be effected with such release, (ii) stating the cost of such repairs or restoration and the specific amount requested to be paid over to or upon the order of the Company and that such amount is requested to pay the cost thereof, (iii) stating that the aggregate amount requested by the Company in respect of such repairs or restoration (when added to any other Loss Proceeds received by the Company in respect of such damage of destruction) does not exceed the cost of such repairs or restoration and that a sufficient amount of funds is or will be available to the Company to repair or restore the Project, and (iv) stating that no Event of Default has occurred and is continuing other than an Event of Default resulting solely from such damage or destruction.

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(c) If the Company receives Loss Proceeds relating to a Loss Event in respect of a single Loss Event greater than [***] (as determined by the replacement value of the item of property subject to the Loss Event) and the Conditions to Release of Funds are not met, then the Net Available Amount of such Loss Proceeds shall be applied to the mandatory prepayment of the Notes pursuant to Section 8.1.2(i) of the Note Purchase Agreement.

3.7.3 Surplus Proceeds. If, after Loss Proceeds have been applied to the repair or restoration of the Project as provided in Section 3.7.2, there remain any excess Loss Proceeds, the Net Available Amount of such Loss Proceeds shall be transferred to the Revenue Account.

3.8 Distribution Suspense Account. Deposits to the Distribution Suspense Account. Amounts shall be deposited in the Distribution Suspense Account from the Revenue Account as provided in Waterfall Level (8) of Section 3.3.2(c).

3.8.2 Transfers and Payments from the Distribution Suspense Account.

(a) Until the funds in the Distribution Suspense Account have been applied as provided in clause (b) below, Collateral Agent shall direct Depositary to withdraw amounts therefrom to pay all fees, charges, costs and other amounts specified in Waterfall Level (1) through Waterfall Level (4) of Section 3.3.2(c), as applicable, in such order, to the extent that amounts in the Revenue Account are insufficient therefor and prior to applying funds from the Debt Service Reserve Account. Funds so applied shall be deemed those last deposited in the Distribution Suspension Account.

(b) Any funds deposited into the Distribution Suspense Account and held in the Distribution Suspense Account until after the fourth Repayment Date following such deposit shall be applied to the prepayment of the Notes in accordance with Section 8.1.2 of the Note Purchase Agreement.

(c) If the Distribution Conditions are satisfied on any Repayment Date after deposit of such funds, all amounts in the Distribution Suspense Account (or any lesser amount elected by the Company) will be released and transferred to the account or accounts specified by the Company for any purpose pursuant to an Account Withdrawal Request. All amounts released and transferred from the Distribution Suspense Account shall be deemed to be released and transferred in the same order as deposited in the Distribution Suspense Account.

3.9 Note Redemption Account.

3.9.1 Deposits to the Note Redemption Account. The Company shall cause the Sponsor to promptly deposit into the Note Redemption Account any Required Equity Contribution to be made pursuant to and in accordance with Sections 2.1 and 2.2 of the Equity Contribution Agreement.

[***] Confidential Treatment Requested

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3.9.2 Transfers from the Note Redemption Account. After any amounts are received in the Note Redemption Account, Collateral Agent shall direct Depositary, pursuant to an Account Withdrawal Instruction, to withdraw amounts from the Note Redemption Account in the amount specified in such Account Withdrawal Instruction and to pay such amount on the Offer Settlement Date to any Holder of the Notes that has accepted an Offer to Repay made by the Company pursuant to, and in the amount required by, Section 8.1.3 of the Note Purchase Agreement.

3.10 Cash Grant Account. If any Cash Grant proceeds are received by the Company, such amount shall be deposited into the Cash Grant Account. The Cash Grant Account shall not be an Account under the terms of this Agreement or the Note Purchase Agreement. Any property on deposit in such account at any time may be distributed to Pledgor without the requirement of Pledgor requesting any such distribution and nothwithstanding that a Default or Event of Default has occurred or is continuing.

ARTICLE 4.

SECURITY AND RELATED PROVISIONS; SECURITIES INTERMEDIARY

4.1 Securities Accounts; Deposit Accounts. Depositary hereby agrees and confirms that Depositary has established the Accounts as set forth and defined in this Agreement. The parties hereto hereby agree that:

(a) each Account is and will be maintained as a “securities account” (as defined in Section 8-501(a) of the UCC), and, to the extent that credit balances not constituting financial assets are credited thereto, as a “deposit account” (as defined in Section 9-102(a)(29) of the UCC);

(b) Depositary is acting in the capacity of “securities intermediary” (as defined in Section 8-102(a)(14) of the UCC) with respect to the Accounts and financial assets deposited therein or credited thereto, and as a “bank” (as defined in Section 9-102(a)(8) of the UCC) with respect to the Accounts and credit balances not constituting financial assets credited thereto;

(c) each item of property (whether cash, cash equivalents, instruments, investments, investment property or any other property, including Permitted Investments) credited to the Accounts shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the UCC;

(d) the Company is the “entitlement holder” (as defined in Section 8-102(a)(7) of the UCC) with respect to the “financial assets” (as defined in Section 8-102(a)(9) of the UCC) credited to the Accounts, and the Company is the “customer” (as defined in Article 9 of the UCC) with respect to any deposit account;

(e) the “securities intermediary’s jurisdiction” (as defined in Section 8-110(e) of the UCC) shall be the State of New York, and the “bank’s jurisdiction” for purposes of Section 9-304 of the UCC shall be the State of New York;

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(f) all securities and other property constituting financial assets credited to the Accounts shall be registered in the name of Depositary or endorsed to Depositary or in blank, and in no case whatsoever will any financial asset credited to an Account be registered in the name of the Company or any Affiliate thereof, payable to the order of the Company or any Affiliate thereof or specially endorsed to the Company or any Affiliate thereof except to the extent that the foregoing have been specially endorsed by Company or such Affiliate to Depositary or in blank;

(g) if there is any conflict between this Agreement and any other agreement relating to the Accounts (if any), the provisions of this Agreement shall control; and

(h) Depositary shall not change the name of or account number for any Account without the prior written consent of Collateral Agent.

4.2 Certain Rights and Powers in Respect of Accounts and Funds.

4.2.1 Rights to Accounts. Until this Agreement is terminated pursuant to Article 5, the Company shall not have any rights or powers with respect to the remittance of amounts credited to, the disbursement of credited amounts out of, or the investment of credited amounts in, Accounts, except to have amounts credited thereto applied in accordance with this Agreement; provided, however, that the parties hereto acknowledge and agree that the foregoing provisions of this Section 4.2.1 shall not be deemed to divest the Company of its respective interest as an “entitlement holder” under the UCC, as provided in this Agreement.

4.2.2 Certain Additional Powers of Collateral Agent and Depositary. Collateral Agent and, where appropriate, Depositary shall have the right, but not the obligation, to: (a) refuse any item for credit to any Account except as required by the terms of this Agreement; and (b) refuse to honor any request for transfer on any Account which is not consistent with this Agreement. If the Company fails to perform any agreement contained herein, Collateral Agent may (but is not obligated to) itself perform, or cause the performance of, such agreement, and the expenses of Collateral Agent incurred in connection therewith shall be payable by the Company upon demand. The Company hereby irrevocably appoints Collateral Agent as the Company’s attorney-in-fact, with full authority in the place and stead of the Company and in the name of the Company otherwise from time to time, if an Event of Default shall have occurred and be continuing, to take any action and to execute any instrument necessary or advisable to accomplish the purposes of this Agreement, including:

(i) to ask, demand, collect, sue for, recover, compromise, receive and give acquittance and receipts for moneys due and to become due under or in respect of any of the Accounts or the proceeds of financial assets held therein or credited thereto;

(ii) to receive, endorse, and collect any drafts or other instruments, documents and chattel paper, in connection with clause (i) above;

(iii) to file any claims or take any action or institute any proceedings necessary for the collection of any of the Accounts or the proceeds of financial assets held therein or credited thereto or otherwise to enforce the rights of Collateral Agent with

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respect to any of the Accounts or the proceeds of financial assets held therein or credited thereto, provided that, with respect to this clause (iii), such rights shall be exercised in accordance with Section 4.7; and

(iv) to perform the affirmative obligations of the Company hereunder.

The Company hereby acknowledges, consents and agrees that the power of attorney granted pursuant to this Section 4.2.2 is irrevocable and coupled with an interest. The powers conferred on Collateral Agent hereunder are solely to protect its interest, on behalf of the Secured Parties, in the Accounts and the proceeds of financial assets held therein or credited thereto and shall not impose any duty on Collateral Agent to exercise any such powers. Except for the reasonable care of any Account in its possession or under its control, as the case may be, the performance of its respective obligations hereunder, the performance of duties of a bank or a securities intermediary under the UCC, as applicable, and the accounting for moneys actually received by it in accordance with the terms hereof, neither Depositary nor Collateral Agent shall have any duty as to any Account or the proceeds of financial assets held therein or credited thereto, or as to the taking of any necessary steps to preserve rights against prior parties or any other rights pertaining to any such Account or proceeds. Each of Depositary and Collateral Agent is required to exercise reasonable care in the custody and preservation of any Account in its possession or under its control (as the case may be); provided, however, that (A) Depositary in any event shall be deemed to have exercised reasonable care in the custody and preservation of any Account if it takes such action for that purpose as Collateral Agent or, at times other than upon the occurrence and during the continuance of any Event of Default, the Company reasonably requests, but, notwithstanding the foregoing, the failure of Depositary to comply with any such request at any time shall not in itself be deemed a failure to exercise reasonable care, and (B) Collateral Agent in any event shall be deemed to have exercised reasonable care in the custody and preservation of any Account if it takes such action for that purpose as the Company reasonably requests at times other than upon the occurrence and during the continuance of any Event of Default, but, notwithstanding the foregoing, the failure of Collateral Agent to comply with any such request at any time shall not in itself be deemed a failure to exercise reasonable care. Nothing in this Section 4.2 shall be construed as limiting Collateral Agent’s maintenance of exclusive dominion and control over the Accounts.

4.2.3 Control

(a) Notwithstanding any other provision of this Agreement or any other agreement, Depositary agrees that it shall comply with all entitlement orders relating to the Accounts originated by Collateral Agent, and with all instructions directing disposition of the funds in the Accounts originated by Collateral Agent, in each case without further consent by the Company or any other Person.

(b) Without limiting the agreement of Depositary contained in Section 4.2.3(a), Collateral Agent agrees with the Company that it will not originate any entitlement order or instruction unless authorized to do so under this Agreement other than pursuant to this Section 4.2.3.

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4.3 Security Interest; Grant Pursuant to Security Agreement. To secure the timely payment in full in cash and performance in full of its obligations under the Note Purchase Agreement, pursuant to the Security Agreement, the Company has assigned, granted, hypothecated and pledged to, and granted a Lien on and a security interest in favor of, Collateral Agent, on behalf of and for the sole and exclusive benefit of the Secured Parties, all the estate, right, title, interest and security entitlements of the Company, whether now owned or hereafter acquired, in all Accounts and in all financial assets held therein or credited thereto and all proceeds thereof, including all rights of the Company to receive moneys due in respect of all Accounts, all claims with respect to any Account, all income or gain earned in respect of the financial assets held in or credited to any Account, and all proceeds receivable or received when any Account is collected, exchanged or otherwise disposed of, whether voluntarily or involuntarily.

4.3.1 Acknowledgment. Depositary hereby acknowledges the security interest in, and the pledge by the Company to Collateral Agent, for the benefit of the Secured Parties, of all of the Company’s security entitlements to the Accounts and all financial assets held therein or credited thereto and all proceeds thereof, and Depositary will so indicate on the records maintained by Depositary with respect to Accounts. Depositary agrees to hold all such security entitlements and financial assets in its custody for the purposes of, and on the terms set forth in, this Agreement.

4.4 Perfection; Further Assurances. The Company agrees that from time to time it shall promptly execute and deliver all instruments and documents, and take all actions, that may be reasonably necessary, or that Collateral Agent may reasonably request, in order to perfect and protect the assignment and security interest granted or intended to be granted hereby or to enable Collateral Agent to exercise and enforce its rights and remedies hereunder with respect to the Accounts, all financial assets held therein or credited thereto and all proceeds thereof. Without limiting the generality of the foregoing, the Company hereby authorizes the filing of such financing or continuation statements, or amendments thereto, and shall execute or deliver such other instruments, endorsements or notices, as may be reasonably necessary or desirable or as Collateral Agent may reasonably request, in order to perfect and preserve the assignments and security interests granted or purported to be granted hereby.

4.5 Other Liens; Adverse Claim. The Company represents and warrants, as of the date hereof, that:

(i) it has not assigned any of its rights under any Accounts except as part of the Collateral;

(ii) it has not executed and is not aware of any effective financing statement, security agreement, control agreement or other instrument similar in effect covering all or any part of the Accounts, except those in favor of Collateral Agent; and

(iii) it has full power and authority to grant a security interest in and assign its right, title and interest in the Accounts and all financial assets held therein or credited thereto and all proceeds thereof hereunder. The Company

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represents, warrants and covenants that it has not granted, and shall not grant, to any Person (other than Collateral Agent) any interest in any of the Accounts and that it has kept, and shall keep, the Accounts free from all other Liens (other than Liens in favor of Collateral Agent and Permitted Liens).

(b) Depositary, to the best of its knowledge without any independent investigation, represents and warrants that it has no knowledge of any Lien on any of the Accounts other than the claims and interest of the parties as provided herein. To the extent that Depositary has or subsequently obtains by agreement, operation of law or otherwise a security interest in any Account or any security entitlement credited thereto, Depositary hereby subordinates to the security interest in the Accounts of Collateral Agent all property credited thereto, all security entitlements with respect to such property and any and all statutory, regulatory, contractual or other rights now or hereafter existing in its favor over or with respect to the Accounts, including (i) any and all contractual rights of pledge, set-off, lien or compensation, (ii) any and all statutory or regulatory rights of pledge, lien, set-off or compensation, (iii) any and all statutory, regulatory, contractual or other rights to put on hold, block transfers from or fail to honor instructions of Collateral Agent with respect to the Accounts, or (iv) any and all statutory or other rights to prohibit or otherwise limit the pledge, assignment, collateral assignment or granting of any type of security interest in the Accounts. Notwithstanding the foregoing, Depositary retains its rights against the Accounts in respect of the payment of Depositary’s customary fees for maintaining the Accounts, all other customary fees, charges and reversals and payment of all amounts due and owing to Depositary (including, without limitation, amounts payable to Depositary pursuant to Sections 4.6.7 and 4.8) hereunder. Such other customary fees, charges and reversals include, without limitation, reimbursement for the reversal of any provisional credits posted by Depositary to an Account for the face amount of any check, draft, money order, instrument, wire transfer or payment order of funds, automated clearing house entry, or other electronic transfer of funds or other item (each an “Item” and collectively “Items”) without regard to the timeliness of return or adjustment of any Item, any adjustments or corrections of any posting or encoding errors, all reasonable fees, charges and costs associated with the preparation, negotiation, and enforcement of this Agreement as well as all fees and charges assessed by Depositary as a result of it agreeing to enter into this Agreement and the ongoing administration of the Accounts.

(c) The financial assets credited to the Accounts shall not be subject to deduction, set-off, banker’s lien, or any other right in favor of any Person other than Collateral Agent and Depositary.

4.6 Duties and Certain Rights of Depositary;

4.6.1 General. The duties of Depositary shall be determined solely by the express provisions of this Agreement and the provisions of the UCC relating to the duties of a securities intermediary or a bank, as applicable, and no implied duties (fiduciary or otherwise), covenants or obligations shall be read into this Agreement against Depositary.

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4.6.2 Appointment. Collateral Agent hereby designates and appoints Deutsche Bank Trust Company Americas to act on its behalf as depositary agent and securities intermediary under this Agreement, and authorizes Depositary to execute, deliver and perform, on behalf of the Secured Parties, this Agreement and to take such actions on behalf of the Secured Parties under the provisions hereof and to exercise such powers and authority and perform such duties as are expressly delegated to Depositary by the terms of this Agreement, together with such other powers and authority as are reasonably incidental thereto. Depositary hereby agrees to act as depositary agent and securities intermediary with respect to the Accounts and pursuant to this Agreement. The other parties hereto hereby acknowledge that Depositary shall act as depositary agent, securities intermediary (as defined in Section 8-102(a)(14)(ii) of the UCC) and, if applicable, as a bank (as defined in Section 9-102(a)(8) of the UCC) with respect to the Accounts and pursuant to this Agreement.

4.6.3 Negative Pledge. Depositary hereby agrees that it shall not grant, subject to the terms of this Agreement, any security interests in the financial assets that it is obligated to maintain under this Agreement. Notwithstanding anything to the contrary, Depositary will not be required to comply with the preceding sentence if Depositary is required by a law, rule, regulation or request of a regulatory authority to grant any security interests in the financial assets that Depositary is obligated to maintain under this Agreement, provided that Depositary shall provide Collateral Agent and the Company with written notice as soon as Depositary becomes aware of any such law, rule, regulation or request of a regulatory authority that would require Depositary to grant any security interests in the financial assets that Depositary is required to maintain under this Agreement. Subject to Section 4.5(b), Depositary hereby waives, to the fullest extent permitted by law, any Lien it may now have or subsequently acquire in respect of any Collateral, any right to apply any Collateral in satisfaction of any claims other than the claims of the Secured Parties in respect of the Liens granted under the Collateral Documents, and any right to set off claims against Collateral other than claims of any Secured Party under the Collateral Documents.

4.6.4 Instructions Upon an Event of Default. Upon the occurrence and during the continuation of an Event of Default, and until such time as Depositary receives notice from Collateral Agent that such Event of Default no longer exists, without limiting Collateral Agent’s or any other Secured Party’s rights or remedies herein or under any of the Collateral Documents, (i) Collateral Agent shall have the right, but not the obligation, to deliver to Depositary an “entitlement order” (within the meaning of Section 8-102(a)(8) of the UCC) or other directions instructing Depositary to administer the Accounts and disburse funds therefrom, and, upon the exercise of such right, Depositary shall comply with any such entitlement order or other directions from Collateral Agent without the further consent of the Company or any other Person, (ii) Depositary shall not accept any instructions or certificates from the Company with respect to the withdrawal or transfer of amounts in the Accounts or otherwise unless directed to do so by Collateral Agent and (iii) Depositary shall execute and deliver (or cause to be executed and delivered) to Collateral Agent all proxies and other instruments as Collateral Agent may reasonably request for the purpose of enabling Collateral Agent (on behalf of the Secured Parties) to exercise any voting or other consensual rights pertaining to the Accounts and the funds and investments therein. The parties hereto agree that until Depositary’s obligations under this Agreement shall terminate in accordance with the terms hereof, Collateral Agent shall have control of each of the Company’s security entitlements with respect to the financial assets

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credited to the Accounts, the Accounts and all funds in any Accounts. Depositary hereby represents that it has not entered into, and agrees that, until the termination of this Agreement, it will not enter into any agreement with any other Person in respect of any of the Accounts pursuant to which it would agree to comply with entitlement orders, other orders or instructions made by such Person.

4.6.5 Standard of Care. Depositary shall exercise at least the level of care it exercises with respect to its own funds and, in all events, reasonable care, in administering and accounting for amounts actually received by Depositary in accordance with the terms hereof and credited to the Accounts and the Permitted Investments purchased with such amounts. In the event Depositary breaches the foregoing standard of care, Collateral Agent and the Company expressly agree that Depositary’s liability shall be limited to actual damages directly caused by such breach and in no event shall Depositary be liable for any incidental, indirect, special, punitive or consequential damages, regardless of whether or not Depositary knew of the likelihood or was made aware of the possibility of such damages.

4.6.6 Action Upon Notices; Exercise of Judgment. Depositary may conclusively and exclusively rely on Collateral Agent or the Company in determining whether a Default or Event of Default under the Note Purchase Agreement has occurred, it being acknowledged and agreed by the parties hereto that if Depositary receives any conflicting notices, entitlement orders, requests, waivers, consents, receipts or other papers or documents hereunder, the applicable notice from Collateral Agent shall control. Depositary shall not be deemed to have knowledge of a Default or Event of Default under the Note Purchase Agreement until it has received written notice thereof from the Company or Collateral Agent. Collateral Agent and Depositary shall each be permitted to conclusively rely and act or refrain from acting, as the case may be, upon any notice, entitlement order, request, waiver, consent, receipt or other paper or document (whether in its original or facsimile form, including portable document format (.pdf)) reasonably believed by it to be signed by Collateral Agent or Depositary, as applicable, the Company or any other authorized Person. Other than in respect of actions or inactions that are specifically required by the terms of this Agreement, the parties hereto acknowledge that any action or direction (or inaction, as the case may be) of Collateral Agent is only upon the proper notice or instruction of the Required Holders. In the event that the Company becomes subject to a voluntary or involuntary proceeding under any Debtor Relief Laws, if Depositary is otherwise served with a court order or other judicial process which Depositary in good faith believes affects any Account, or Depositary is of the opinion that acting upon the instructions of Collateral Agent would result in the violation of any applicable law, rule, regulation or request of a regulatory authority, Depositary may, upon notice to Collateral Agent, cease acting upon the instructions of Collateral Agent and suspend disbursements from the Accounts until such time as Depositary receives a court order or other assurances reasonably satisfactory to Depositary establishing that disbursements from the Accounts may continue.

4.6.7 Indemnification and Liability.

(a) In consideration of the appointment of Depositary, the Company agrees fully to indemnify and hold Depositary and its directors, officers, employees and agents (collectively, the “Indemnified Persons”) harmless from and against any and all claims, losses, liabilities, damages, costs or expenses (including reasonable legal fees and

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expenses) incurred by the Indemnified Person by reason of or resulting from this Agreement or any action (or inaction, as the case may be) taken in connection therewith (including Depositary having accepted such appointment or by reason of its carrying out of any of the terms of this Agreement), and agrees to reimburse the Indemnified Person for all of its expenses, including reasonable fees and expenses of counsel and court costs, incurred by reason of any position or action taken (or omitted) by the Indemnified Person pursuant to this Agreement or in connection with any action brought to interpret or enforce the provisions this Agreement or any part thereof, except to the extent that any such claim, loss, liability, damage, cost or expense results from the Indemnified Person’s own gross negligence or willful misconduct. The above indemnification provisions shall survive any termination of this Agreement including any termination under any bankruptcy or similar law or the earlier resignation or removal of Depositary.

(b) The parties hereto hereby agree that no Indemnified Person shall be liable to such parties for any actions taken by any Indemnified Person pursuant to and in compliance with the terms hereof except in respect of any liability or expenses incurred by the Indemnified Person arising from its gross negligence or willful misconduct. Each of the parties to this Agreement (for itself and any Person claiming through it) hereby releases, waives, discharges, exculpates and covenants not to sue any Indemnified Person for any action taken or omitted under this Agreement except to the extent caused by such Indemnified Person’s gross negligence or willful misconduct. Notwithstanding anything in this Agreement to the contrary, in no event shall Depositary be liable to the Company or to any Secured Party for special, indirect or consequential loss or damage of any kind whatsoever (including lost profits) arising out of this Agreement and the transactions contemplated hereby, even if Depositary has been advised of the likelihood of such loss or damage and regardless of the form of action.

(c) Except for actions expressly required hereunder for which indemnification is provided pursuant to Section 4.6.7(a), each Indemnified Person shall be fully justified in refusing to take or continuing to take any action hereunder unless a confirmation was given satisfactory to Depositary that the indemnities theretofore provided to Depositary remain in effect or that a new indemnity substantially similar to the indemnities provided under the Note Purchase Agreement has been provided. Any Indemnified Person may consult with legal counsel of its own selection in the event of any dispute or question as to the construction of this Agreement or the Indemnified Person’s duties hereunder, and the Indemnified Person shall incur no liability and shall be fully protected in acting in accordance with the advice, written opinion and instructions of such counsel.

4.6.8 Court Orders. Depositary is hereby authorized to obey and comply with all writs, orders, judgments or decrees issued by any court, regulatory authority or administrative agency affecting any money, documents or things held by Depositary. Depositary shall not be liable to any of the parties hereto, their successors, heirs or personal representatives by reason of Depositary’s compliance with such writs, orders, judgments or decrees, notwithstanding that such writ, order, judgment or decree may later be reversed, modified, set aside or vacated.

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4.6.9 Resignation and Termination. Depositary may at any time resign by giving notice to each other party to this Agreement, such resignation to be effective upon the appointment of a successor depositary agent as provided below. Depositary also reserves the right, unilaterally, to terminate this Agreement, such termination to be effective: (i) immediately if Depositary determines (in its sole discretion) that it is (x) obligated to terminate this Agreement or close an Account under statute, rule, regulation, request of a regulatory authority, or any court order or (y) in the event of suspected fraud, bad faith, illegal or suspicious activity in connection with the Accounts. If Depositary exercises its right to unilaterally terminate this Agreement pursuant to this Section 4.6.9, all funds on deposit in the Accounts or credited to the Accounts shall be immediately transferred by Depositary to Collateral Agent. Collateral Agent, at the direction of the Required Holders, may remove Depositary at any time by giving notice to each other party to this Agreement, such removal to be effective upon the appointment of a successor depositary agent as provided below.

(b) In the event of any resignation or removal of Depositary, a successor depositary agent, which shall be a bank or trust company organized under the laws of the United States America, the State of New York or the State of Delaware, having a corporate trust office in the State of New York or the State of Delaware and a capital and surplus of not less than $250,000,000, shall be appointed by the Company after consultation with Collateral Agent. If a successor depositary agent shall not have been appointed and accepted its appointment as depositary agent within 45 days after such notice of resignation of Depositary or such notice of removal of Depositary, Depositary, Collateral Agent or the Company may apply (at the sole cost and expense of the Company) to any court of competent jurisdiction to appoint a successor depositary agent to act until such time, if any, as a successor depositary agent shall have accepted its appointment as provided above. A successor depositary agent so appointed by such court shall immediately and without further act be superseded by any successor depositary agent otherwise appointed as provided above. Any such successor depositary agent shall be capable of acting as a “securities intermediary” (within the meaning of Section 8-102(14) of the UCC) and shall deliver to each party to this Agreement a written instrument accepting such appointment and thereupon such successor depositary agent shall succeed to all the rights and duties of Depositary under this Agreement and shall be entitled to receive the Accounts from the predecessor Depositary.

(c) Upon the replacement of Depositary hereunder, all investments and other amounts held by it or credited to Accounts pursuant to this Agreement shall be transferred to such successor depositary agent. In the event of the resignation or termination of the Depositary, the Depositary shall be entitled to its fees and expenses in accordance with the terms hereof up to the time such resignation or termination becomes effective in accordance with this Section 4.6.9.

4.6.10 Directions and Instructions to the Depositary. Except for the obligations of Depositary expressly required to be performed by it hereunder, Depositary shall not be required to take or omit to take any action, or to give any consent, hereunder unless it shall have been directed to do so by Collateral Agent. All directions or instructions required or permitted to be given by any party to another party hereunder, including any Account Withdrawal Instruction,

26

shall be given in writing and shall be effective only if given in writing. All such directions and instructions given by the Company and Collateral Agent to Depositary pursuant to this Agreement shall be executed by an authorized signatory (each, an “Authorized Signatory”) of the Company or Collateral Agent, as applicable. No person shall be deemed to be an Authorized Signatory of the Company or Collateral Agent unless such person is named on a certificate of incumbency delivered to Depositary on the date hereof or is otherwise named in a notice signed by an Authorized Signatory and delivered by the Company or Collateral Agent, as applicable, to Depositary at any time subsequent to the date hereof in all cases in form reasonably satisfactory to Depositary.

4.6.11 Individual Capacity. Deutsche Bank Trust Company Americas may engage or be interested in any financial or other transactions with any party to this Agreement and may act on, or as depositary, trustee or agent for, any committee or body of holders of obligations of such Persons as freely as if it were not Depositary hereunder.

4.6.12 Duties. Depositary shall act as a depositary agent and securities intermediary only and shall not be responsible or liable in any manner for soliciting any funds or for the sufficiency, correctness, genuineness or validity of any funds or securities deposited with or held by it, except in the case of its gross negligence, willful misconduct or bad faith. In the event of any dispute as to the construction or interpretation of any provision of this Agreement, Depositary shall be entitled to consult with and obtain advice from legal counsel of its own selection in its sole discretion.

4.6.13 Succession. Any entity into which Depositary may be merged or converted or with which it may be consolidated, or any entity resulting from any merger, conversion or consolidation to which Depositary shall be a party, or any entity succeeding to all or substantially all of the corporate trust business of Depositary shall be the successor of Depositary hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.

4.7 Remedies. If an Event of Default shall have occurred and be continuing:

(a) Collateral Agent may exercise in respect of the Accounts, in addition to other rights and remedies provided for herein or otherwise available to it, all the rights and remedies of a secured party under the UCC at that time, including the right to proceed to protect and enforce the rights vested in it by this Agreement, to sell, liquidate or otherwise dispose of any or all of the Accounts, and to cause the Accounts to be sold, liquidated or otherwise disposed of, in each case in such manner as Collateral Agent may elect; and

(b) the proceeds of any financial assets credited to or held in any Account and all cash proceeds received by Collateral Agent in respect of any sale of, collection from or other realization upon all or any part of the Accounts may, then or at any time thereafter, be applied (after payment of any amounts payable to the Depositary pursuant to the terms hereof) in whole or in part by Collateral Agent against all or any part of the Company’s obligations under the Note Purchase Agreement and the other Credit Documents.

27

Any surplus of such amounts or proceeds remaining after payment in full of all the Obligations under the Note Purchase Agreement and the other Credit Documents shall be applied as directed by the Company. No right, power or remedy herein conferred upon or reserved to Collateral Agent or the other Secured Parties is intended to be exclusive of any other right, power or remedy and every such right, power and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right, power and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder or otherwise shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. Resort to any or all security now or hereafter held by Collateral Agent or the other Secured Parties may be taken concurrently or successively and in one or several consolidated or independent judicial actions or lawfully taken non-judicial proceedings, or both.

4.8 Costs, Expenses and Attorneys’ Fees. The Company shall pay to Depositary all reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred by Depositary in connection with (a) any suit or proceeding related to or arising out of this Agreement or the transactions contemplated hereby, (b) the performance by Depositary of any of its agreements or obligations contained herein, (c) any exercise by Depositary of its rights or remedies hereunder or (d) the purchase by Depositary of Permitted Investments as contemplated by Section 2.2 (except in each case, arising out of and to the extent of any breach of Section 4.6.5 by or the gross negligence or willful misconduct of Depositary). The Company shall pay the reasonable costs and expenses of Depositary’s external legal counsel in connection with its review of this Agreement on behalf of Depositary or in connection with Depositary’s performance hereunder.

4.9 Additional Rights of Collateral Agent and Depositary. The following rights stated in this Section 4.9 are in furtherance, and not in limitation, but without duplication, of any other rights of Collateral Agent and Depositary set forth elsewhere in this Agreement.

4.9.1 Actions. Each of Collateral Agent and Depositary may execute any of the trusts or powers, or perform any duties, under this Agreement either directly or through agents, sub-agents or attorneys or a custodian or nominee and neither Collateral Agent nor Depositary shall be responsible for any misconduct or negligence on the part of, or for the supervision of, any such agent, sub-agent, attorney, custodian or nominee appointed with reasonable care by it hereunder. Neither Collateral Agent nor Depositary shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there is reasonable ground for believing that the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured it; and neither Collateral Agent nor Depositary shall be obligated to take any action which in either party’s reasonable judgment would involve it in expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it. Neither Collateral Agent nor Depositary shall be liable for any error of judgment or for any act done or step taken or omitted by it in good faith or for any mistake of fact or law or for anything which Collateral Agent or Depositary may do or refrain from doing in connection herewith, except in the case of its own

28

gross negligence or willful misconduct. Depositary shall have duties only as expressly set forth herein and the duties under the UCC of a bank or a securities intermediary, as applicable. Neither Collateral Agent nor Depositary shall have any liability for losses with respect to Permitted Investments authorized by this Agreement. Nothing herein contained shall be deemed to obligate Depositary to deliver any cash, instruments, documents or any other property referred to herein, unless the same shall have first been received by Depositary pursuant to this Agreement. Depositary shall be under no liability to any party hereto by reason of any failure on the part of any other party hereto or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person’s obligations under any such document. Depositary will incur no liability if, by reason of any provision of any present or future law or regulation thereunder, or by any force majeure event, including natural disaster, act of terrorism, war or other circumstances beyond its reasonable control, Depositary will be prevented or forbidden from doing or performing any act or thing which the terms of this Agreement provide will or may be done or performed.

4.9.2 No Responsibility for Statements, Etc. To the fullest extent permitted by law, neither Collateral Agent nor Depositary nor any of their respective officers, directors, employees, agents, attorneys-in-fact or affiliates shall be responsible in any manner to any of the other Secured Parties for any recitals, statements, representations or warranties made by the Company or any representative thereof or any other Person contained in any other document or in any certificate, report, statement or other document referred to or provided for in, or received by Depositary under or in connection with, any such document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of the Collateral, any document or for any failure of the Company to perform its obligations thereunder. Neither Collateral Agent nor Depositary shall be under any obligation to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, any other agreement or to inspect the properties, books or records of the Company. Depositary shall not be charged with knowledge of any provision of the Note Purchase Agreement.

4.9.3 Collateral. Except as expressly provided hereunder, nothing in this Agreement shall be interpreted as giving Collateral Agent or Depositary responsibility for or any duty concerning the validity, perfection, priority or enforceability of any Lien on any Collateral, or giving Collateral Agent or Depositary any obligation to take any action to procure or maintain such validity, perfection, priority or enforceability.

4.10 Non-Business Days. If Depositary shall be required under this Agreement or pursuant to any directions given by the Company or Collateral Agent to make any withdrawal, disbursement, transfer or payment on a day other than a Business Day, Depositary shall make such withdrawal, disbursement, transfer or payment on the next succeeding Business Day.

ARTICLE 5.

TERMINATION OF AGREEMENT

The rights and powers granted herein to Collateral Agent have been granted in order, among other things, to perfect Collateral Agent’s security interests in the Accounts, are powers coupled with an interest, and will neither be affected by the bankruptcy of the Company or any other Person nor by the lapse of time. Except as otherwise provided herein, the obligations of

29

Depositary hereunder shall continue in effect until the security interests of Collateral Agent in the Accounts have been terminated, and Collateral Agent has notified Depositary of such termination. Failure of Collateral Agent to so notify Depositary shall not affect the rights of the Company hereunder. When the Obligations under the Credit Documents, other than those Obligations which expressly survive the termination of the applicable agreements, of the Company to the Secured Parties have been indefeasibly satisfied in full, all right, title and interest of Collateral Agent in the Accounts shall revert to the Company. At such time, (i) Collateral Agent shall notify Depositary to, and upon such notification Depositary shall, pay any amounts (including Permitted Investments) then remaining in any of the Accounts, minus any amounts due and owing Depositary hereunder, to an account designated by the Company to Depositary, (ii) the Company shall notify all Persons who are expected to make payments to it to remit such payments to the order of the Company and not to the Accounts, and (iii) the Accounts shall be closed. If any funds are received by Collateral Agent or Depositary for deposit in any Account after such Account is closed in accordance with the preceding sentence or the relevant provisions of Article 3, Collateral Agent shall promptly remit or instruct Depositary to remit such funds to (or at the direction of) the Company, in the form received, with any necessary endorsements. No termination of any Secured Party’s interest hereunder shall affect the rights of any other Secured Party hereunder or under any other Credit Document.

ARTICLE 6.

MISCELLANEOUS

6.1 Notices. Each notice, instruction, entitlement order, request or other document delivered hereunder shall be in writing. Each Account Withdrawal Instruction shall be delivered by First Class mail (postage prepaid), in person, or by facsimile to Depositary at the office or to the facsimile number specified in this Section or hereafter provided in writing. For purposes of this Section 6.1, any Account Withdrawal Instruction delivered by email shall be effective only if such Account Withdrawal Instruction is contained in an email transmittal as an executed instrument, in portable document format (.pdf) or otherwise. Any communications between the parties hereto or notices provided herein to be given shall be given to the following addresses:

If to Depositary:	Deutsche Bank Trust Company Americas
	60 Wall Street
	MSNYC 60-2710
	New York, NY 10005
	Attn: [***]
	Telephone: [***]
	Facsimile: [***]
	E-mail: [***]
If to Collateral Agent:	Deutsche Bank Trust Company Americas
	60 Wall Street
	MSNYC 60-2710
	New York, NY 10005
	Attn: [***]
	Telephone: [***]
	Facsimile: [***]
	E-mail: [***]

[***] Confidential Treatment Requested

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If to the Company:	Diamond State Generation Partners, LLC
	1252 Orleans Drive
	Sunnyvale, CA 94089
	Attn: [***]
	Telephone: [***]
	Facsimile: [***]
	E-mail: [***]
If to any Holder:	As provided in the Note Purchase Agreement

Any notice or other communication herein required or permitted to be given shall be in writing, and shall be deemed effective only if given in writing, and shall be considered as properly given (a) if delivered in person, (b) if sent by overnight courier service (including Federal Express, UPS, ETA, and other similar overnight delivery services), (c) if mailed by first class United States Mail, postage prepaid, registered or certified with return receipt requested, (d) if sent by facsimile, with the original sent by other means set forth in this Section 6.1, or (e) other electronic means (including email and Internet or intranet websites) pursuant to procedures approved by Collateral Agent; provided, that the foregoing clause (e) shall not apply to notices if the party to receive the notice has notified Collateral Agent that it is incapable of receiving notices by electronic communication or if no email address is given above or later provided as an approved method of receiving notice for any party. Notices delivered in person or overnight courier service, or mailed by registered or certified mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given upon the sender’s receipt of an acknowledgement from the intended recipient (such as by return facsimile, email or other written acknowledgement). With respect to electronic communications, (i) notices and other communications sent to an email address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return email or other written acknowledgement); provided, that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its email address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.

For the purposes hereof, the address of each party hereto shall be the address specified in this Section, provided, that any party shall have the right to change its address for notice hereunder to any other location within the continental United States by giving of 30 days’ notice to the other parties in the manner set forth above.

6.2 Benefit of Agreement. Nothing in this Agreement, expressed or implied, shall give or be construed to give to any Person other than the parties hereto and the Secured Parties any legal or equitable right, remedy or claim under this Agreement, or under any covenants and provisions of this Agreement, each such covenant and provision being for the sole benefit of the parties hereto and the Secured Parties.

[***] Confidential Treatment Requested

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6.3 Delay and Waiver. No failure or delay by Collateral Agent or Depositary in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of Collateral Agent hereunder are cumulative and are not exclusive of any rights or remedies that it would otherwise have. No waiver of any provision of this Agreement or consent to any departure by the Company therefrom shall in any event be effective unless the same shall be permitted by Section 6.4, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given.

6.4 Amendments. No provision of this Agreement may be waived, amended, supplemented or otherwise modified, except by a written instrument signed by each of the parties hereto.

6.5 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED UNDER, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO CONFLICTS OF LAW (OTHER THAN SECTION 5-1401 AND SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW), EXCEPT AS REQUIRED BY MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE LIEN AND SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR ACCOUNT ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK. REGARDLESS OF ANY PROVISION IN ANY OTHER AGREEMENT, FOR PURPOSES OF THE UCC, THE “SECURITIES INTERMEDIARY’S JURISDICTION” OF DEPOSITARY WITH RESPECT TO THE ACCOUNTS IS THE STATE OF NEW YORK.

6.6 Consent to Jurisdiction. Collateral Agent, Depositary and the Company agree that any legal action or proceeding by or against the Company or with respect to or arising out of this Agreement may be brought in or removed to the courts of the State of New York, in and for the County of New York, or of the United States of America for the Southern District of New York in the Borough of Manhattan, as each of them respectively may elect. By execution and delivery of this Agreement, Collateral Agent, Depositary and the Company accept, for themselves and in respect of their property, generally and unconditionally, the non-exclusive jurisdiction of the aforesaid courts. Collateral Agent, Depositary and the Company irrevocably consent to the service of process out of any of the aforementioned courts in any manner permitted by law. Nothing herein shall affect the right of Collateral Agent or Depositary to bring legal action or proceedings in any other competent jurisdiction. Collateral Agent, Depositary and the Company hereby waive any right to stay or dismiss any action or proceeding under or in connection with this Agreement brought before the foregoing courts on the basis of forum non-conveniens.

6.7 WAIVER OF JURY TRIAL. THE COMPANY, DEPOSITARY AND COLLATERAL AGENT HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF THE COMPANY, DEPOSITARY OR COLLATERAL AGENT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR EACH PARTY TO ENTER INTO THIS AGREEMENT.

32

The scope of this waiver is intended to be all-encompassing of any and all disputes that may be filed in any court and that relate to the subject matter of this transaction, including contract claims, tort claims, breach of duty claims and all other common law and statutory claims. Each party hereto acknowledges that (i) this waiver is a material inducement to enter into a business relationship, (ii) it has already relied on this waiver in entering into this Agreement, and (iii) it will continue to rely on this waiver in their related future dealings. Each party hereto further warrants and represents that it has reviewed this waiver with its legal counsel and that it knowingly and voluntarily waives its jury trial rights following consultation with legal counsel. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 6.7 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.

6.8 Severability. Any provision of this Agreement that is invalid, illegal, prohibited or unenforceable in any respect in any jurisdiction, shall as to such jurisdiction be ineffective to the extent of such invalidity, illegality, prohibition or unenforceability without affecting, invalidating or impairing the validity, legality and enforceability of the remaining provisions hereof; and any such invalidity, illegality, prohibition or unenforceability in any jurisdiction shall not affect, invalidate or impair such provision in any other jurisdiction.

6.9 Headings. Article and Section headings have been inserted in this Agreement as a matter of convenience for reference only and it is agreed that such Article and Section headings are not a part of this Agreement and shall not be used in the interpretation of any provision of this Agreement.

6.10 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, provided that (a) the Company may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of Collateral Agent, and (b) Depositary may only assign or otherwise transfer any of its rights or obligations hereunder in accordance with the terms of this Agreement (including Section 4.6).

6.11 Entire Agreement. This Agreement and any agreement, document or instrument attached hereto or referred to herein among the parties hereto integrate all the terms and conditions mentioned herein or incidental hereto and supersede all oral negotiations and prior writings in respect of the subject matter hereof. In the event of any conflict between the terms, conditions and provisions of this Agreement and any such agreement, document or instrument, the terms, conditions and provisions of this Agreement shall prevail; provided, however, that Depositary shall not be charged with knowledge of any agreement to which it is not a party.

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6.12 Survival of Agreements. All covenants, agreements, representations and warranties made by the Company herein and in the certificates or other instruments delivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement, and shall continue in full force and effect so long as this Agreement has not been terminated in accordance with the terms hereof. The provisions regarding the payment of expenses and indemnification obligations, including Section 4.6.7, shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the termination of this Agreement or any provision hereof or the resignation or removal of Depositary.

6.13 Counterparts. This Agreement and any amendments, waivers, consents or supplements hereto or in connection herewith may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute one and the same instrument. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document.

6.14 Patriot Act. The parties hereto acknowledge that in order to help the United States government fight the funding of terrorism and money laundering activities, pursuant to Federal regulations that became effective on October 1, 2003 (Section 326 of the USA PATRIOT Act) all financial institutions are required to obtain, verify, record and update information that identifies each person establishing a relationship or opening an account. The parties to this Agreement agree that they will provide to Collateral Agent/Depositary such information as it may request, from time to time, in order for Collateral Agent/Depositary to satisfy the requirements of the USA PATRIOT Act, including but not limited to the name, address, tax identification number and other information that will allow it to identify the individual or entity who is establishing the relationship or opening the account and may also ask for formation documents such as articles of incorporation or other identifying documents to be provided.

[SIGNATURE PAGES FOLLOW]

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IN WITNESS WHEREOF, the parties hereto, by their officers duly authorized, intending to be legally bound, have caused this Depositary Agreement to be duly executed and delivered as of the date first above written.

DIAMOND STATE GENERATION PARTNERS, LLC, a Delaware limited liability company as the Company
By:
	Name:	William E. Brockenborough
	Title:	President

Depositary Agreement

DEUTSCHE BANK TRUST COMPANY AMERICAS,
as the Collateral Agent
By:	Deutsche Bank National Trust Company
By:
	Name:	Wanda Camacho
	Title:	Vice President
By:
	Name:	RODNEY GAUGHAN
	Title:	VICE PRESIDENT
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as the Depositary
By:	Deutsche Bank National Trust Company
By:
	Name:	Wanda Camacho
	Title:	Vice President
By:
	Name:	RODNEY GAUGHAN
	Title:	VICE PRESIDENT

Depositary Agreement

EXHIBIT A

to Depositary Agreement

FORM OF ACCOUNT WITHDRAWAL INSTRUCTION

Date: [                ], 201    

Deutsche Bank Trust Company Americas, as Depositary Agent

60 Wall Street

MSNYC 60-2710

New York, NY 10005

Attn: Trust and Agency Services

Facsimile: (732) 578-4593

Telephone: (212) 250-7863

Email:

Re: DIAMOND STATE GENERATION PARTNERS, LLC – Account Withdrawal Instruction

Ladies and Gentlemen:

This Account Withdrawal Instruction is delivered pursuant to the Depositary Agreement, dated as of March 20, 2013 (the “Depositary Agreement”), by and among DIAMOND STATE GENERATION PARTNERS, LLC, a Delaware limited liability company (“Company”), DEUTSCHE BANK TRUST COMPANY AMERICAS, as depositary agent, bank and securities intermediary (in such capacity, “Depositary”), and DEUTSCHE BANK TRUST COMPANY AMERICAS, as Collateral Agent (in such capacity, “Collateral Agent”). Unless otherwise defined herein or unless the context otherwise requires, terms used in this Account Withdrawal Instruction have the meanings provided in the Depositary Agreement.

In this Account Withdrawal Instruction, Depositary is hereby directed to withdraw funds from the following Accounts and apply such funds as provided herein:

Account from which to withdraw/transfer Withdrawal/Transfer
Date Amount to be
withdrawn/transferred Account/Person to be
Transferred to,
including address or
wire transfer
information, as
applicable Purpose

IN WITNESS WHEREOF, this Account Withdrawal Instruction is duly executed and delivered by a duly authorized representative of Collateral Agent as of the date first above written.

DIAMOND STATE GENERATION PARTNERS, LLC, a Delaware limited liability company
as the Company
By:
	Name:
	Title:
ACKNOWLEDGED BY:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as the Collateral Agent
By:	Deutsche Bank National Trust Company
By:
	Name:
	Title:
By:
	Name:
	Title:

2

EXHIBIT B

to Depositary Agreement

FORM OF ACCOUNT WITHDRAWAL REQUEST

Date:                 ,         

DEUTSCHE BANK TRUST COMPANY AMERICAS,

as Collateral Agent

60 Wall Street

MSNYC 60-2710

New York, NY 10005

Attn: Trust and Agency Services

Telephone: (212) 250-7863

Facsimile: (732) 578-4593

E-mail: [                    ]

[name and address information of each Holder to be inserted]

Re: Diamond State Generation Partners, LLC – Account Withdrawal Request

Ladies and Gentlemen:

I,                                         , am a Responsible Officer of Diamond State Generation Partners, LLC, a Delaware limited liability company (“Company”), and am delivering this Account Withdrawal Request pursuant to that certain Depositary Agreement, dated as of March 20, 2013 (as amended, supplemented or otherwise modified from time to time, the “Depositary Agreement”), among Company, you, as Collateral Agent, and Deutsche Bank Trust Company Americas, as Depositary. Unless otherwise defined herein or unless the context otherwise requires, capitalized terms used in this Account Withdrawal Request have the meanings provided in the Depositary Agreement and section references are references to sections of the Depositary Agreement.

In this Account Withdrawal Request, Company requests Collateral Agent to direct Depositary to withdraw funds from the following Accounts and apply such funds as provided herein:

Account from which to withdraw/transfer Withdrawal/Transfer
Date Amount to be
withdrawn/transferred Account/Person to be
Transferred to,
including address or
wire transfer
information, as
applicable Purpose

I have reviewed the provisions of the Depositary Agreement which are relevant to the furnishing of this Account Withdrawal Request and hereby certify, on behalf of Company, in my capacity as [                    ] thereof, and not in my individual capacity, that:

(i) the withdrawals and transfers requested herein comply with the terms and conditions of the Depositary Agreement [and the [list items] to be delivered pursuant thereto in connection with this Account Withdrawal Request are attached hereto as [list exhibits and attach]];

(ii) to the extent that this Account Withdrawal Request evidences, attests or requires compliance with any covenants, representations, warranties or conditions precedent in the Depositary Agreement or in any other Credit Document, I have made such examination or investigation as was reasonably necessary to confirm that such covenants, representations, warranties or conditions have been complied with; and

(iii) no Default or Event of Default has occurred and is continuing.

[Signature page follows]

2

IN WITNESS WHEREOF, I, the [                    ] of Company, have caused this Account Withdrawal Request to be duly executed and delivered as of the date first above written.

DIAMOND STATE GENERATION PARTNERS,
LLC,
a Delaware limited liability company
By:
	Name:
	Title:

3

[EXHIBITS, IF APPLICABLE]

4

EXHIBIT C

to Depositary Agreement

NOTE PURCHASE AGREEMENT

See Execution Version

EX-10

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Exhibit 10.39

EXECUTION VERSION

2012 V PPA HOLDCO, LLC

a Delaware Limited Liability Company

SECOND AMENDED AND RESTATED OPERATING AGREEMENT

Dated as of August 30, 2013

THE SECURITIES (MEMBERSHIP INTERESTS) REPRESENTED BY THIS AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR REGISTERED OR QUALIFIED UNDER ANY SECURITIES OR BLUE SKY LAWS OF ANY STATE OR JURISDICTION. THEREFORE, THE SECURITIES MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED UNTIL A REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR THE APPLICABLE STATE SECURITIES OR BLUE SKY LAWS SHALL HAVE BECOME EFFECTIVE WITH REGARD TO THE PROPOSED TRANSFER OR, IN THE OPINION OF LEGAL COUNSEL ACCEPTABLE TO THE COMPANY, REGISTRATION OR QUALIFICATION UNDER THE SECURITIES ACT OR BLUE SKY LAWS IS NOT REQUIRED IN CONNECTION WITH THE PROPOSED TRANSFER.

2012 V PPA HOLDCO, LLC

SECOND AMENDED AND RESTATED OPERATING AGREEMENT

TABLE OF CONTENTS

			Page
ARTICLE I DEFINITIONS				1
	21.1	Certain Definitions		1
	21.2	Other Definitional Provisions		16
ARTICLE II THE COMPANY				17
	2.1	Continuation of Limited Liability Company		17
	2.2	Name		17
	2.3	Principal Office		17
	2.4	Registered Office; Registered Agent		17
	2.5	Purposes		17
	2.6	Term		18
	2.7	Title to Property		18
	2.8	Units; Certificates of Membership Interest; Applicability of Article 8 of UCC		18
ARTICLE III CAPITAL CONTRIBUTIONS				18
	3.1	Class A Interests; Capital Contributions of the Class A Members		18
	3.2	Class B Interests; Capital Contributions of the Class B Member		18
	3.3	Additional Capital Contributions and Payments		19
	3.4	No Other Required Capital Contributions		19
	3.5	No Right to Return of Capital Contributions		19
ARTICLE IV CAPITAL ACCOUNTS; ALLOCATIONS				20
	4.1	Capital Accounts		20
	4.2	Profits and Losses		21
	4.3	Special Allocations		23
	4.4	Curative Allocations		25
	4.5	Income Tax Allocations		25
	4.6	Other Allocation Rules		26
ARTICLE V DISTRIBUTIONS				27
	5.1	Distributions of Available Cash Flow		27
	5.2	Limitation		28
	5.3	Withholding		28
	5.4	Satisfaction of Certain Obligations Under Article XI		28

ARTICLE VI MANAGEMENT			31
	6.1	Managing Member	31
	6.2	Standard of Care; Required Consents	31
	6.3	Removal of Managing Member	37
	6.4	Indemnification and Exculpation	38
	6.5	Company Reimbursement	38
ARTICLE VII RIGHTS AND RESPONSIBILITIES OF MEMBERS			38
	7.1	General	38
	7.2	Member Voting Rights	38
	7.3	Member Liability	39
	7.4	Withdrawal	39
	7.5	Member Compensation	41
	7.6	Other Ventures	41
	7.7	Confidential Information	41
ARTICLE VIII ADMINISTRATIVE AND TAX MATTERS			44
	8.1	Intent for Income Tax Purposes	44
	8.2	Books and Records	44
	8.3	Information and Access Rights	44
	8.4	Reports	45
	8.5	Permitted Investments	46
	8.6	Tax Elections	47
	8.7	Tax Matters Member and Company Tax Filings	48
	8.8	Financial Accounting	50
	8.9	Legend	50
	8.10	Representations, Warranties and Covenants of the Class B Member	51
	8.11	Representations, Warranties and Covenants of the Class A Member	52
	8.12	Survival	53
	8.13	No Breach of Obligations	53
ARTICLE IX TRANSFERS OF INTERESTS; PURCHASE OPTION; FLIP			53
	9.1	Transfer and Encumbrances of Membership Interests	53
	9.2	Buyout Option	60
	9.3	Purchase Option	61
ARTICLE X DISSOLUTION, LIQUIDATION AND TERMINATION			62
	10.1	Dissolution	62
	10.2	Liquidation and Termination	62
	10.3	[Reserved]	64
	10.4	Termination	65

ARTICLE XI INDEMNIFICATION			65
	11.1	Indemnification of Class A Investor Group by the Class B Member	65
	11.2	Brokers	65
	11.3	Limitation on Liability	66
	11.4	Procedure for Indemnification	67
	11.5	Exclusivity	67
	11.6	No Right of Contribution	67
	11.7	Entire Agreement	68
ARTICLE XII GENERAL PROVISIONS			68
	12.1	Offset	68
	12.2	Notices	68
	12.3	Counterparts	68
	12.4	Governing Law and Severability	68
	12.5	Entire Agreement	69
	12.6	Effect of Waiver or Consent	69
	12.7	Amendment or Modification	69
	12.8	Binding Effect	69
	12.9	Further Assurances	69
	12.10	Jurisdiction; Service of Process	69
	12.11	Limitation on Liability	70

EXHIBITS
Exhibit A	Capital Contributions Made
Exhibit B	Form of Membership Interest Certificate
Exhibit C	Form of Class A Withdrawal Note
Exhibit D	Form of Quarterly Renewable Energy Certificate
Exhibit E	Form of Renewable Energy Monthly Report

2012 V PPA HOLDCO, LLC

SECOND AMENDED AND RESTATED OPERATING AGREEMENT

THIS SECOND AMENDED AND RESTATED OPERATING AGREEMENT, dated as of August 30, 2013 (the “Effective Date”), is made and entered into by and among, FIRSTAR DEVELOPMENT, LLC, a Delaware limited liability company (“Firstar” or the “Class A Equity Investor”), as the Class A Member, and CLEAN TECHNOLOGIES III, LLC, a Delaware limited liability company (the “Class B Equity Investor”), as the Class B Member.

RECITALS

A. 2012 V PPA Holdco, LLC, a Delaware limited liability company (the “Company”), was formed pursuant to the Act on July 12, 2012.

B. Prior to the Effective Date, the Class A Equity Investor and the Class B Equity Investor entered into (i) the Equity Capital Contribution Agreement, dated as of December 21, 2012 (the “Prior ECCA”), and (ii) concurrently with the first Initial Funding Date under the Prior ECCA, the Amended and Restated Operating Agreement of the Company, dated as of January 30, 2013 (the “Prior LLC Agreement”).

C. Pursuant to the Prior ECCA and the Prior LLC Agreement, (i) the Class A Equity Investor made equity capital contributions to the Company and in consideration therefor acquired a membership interest specified as a Class A Interest in the Company and was admitted as a Class A Member of the Company pursuant to the Prior LLC Agreement, and (ii) the Class B Equity Investor made equity contributions to the Company and in consideration therefor the Class B Equity Investor was designated as the Class B Member of the Company.

D. Concurrently herewith, the Class A Equity Investor and the Class B Equity Investor are entering into the Amended and Restated Equity Capital Contribution Agreement, dated as of August 30, 2013 (as may be further amended, amended and restated, supplemented or modified, the “Equity Capital Contribution Agreement”), to set forth their understanding as to, among other things, the additional equity contributions the Class A Equity Investor and the Class B Equity Investor will make to the Company to provide for the payment of Facility Costs and other expenses with respect to the Facilities.

NOW, THEREFORE, in consideration of the premises and the mutual undertakings contained herein, the parties hereto hereby agree, and amend and restate the Prior LLC Agreement in its entirety as follows:

ARTICLE I

DEFINITIONS

1.1 Certain Definitions. Initially capitalized terms not defined in this Agreement shall have the meanings assigned such terms in the Equity Capital Contribution Agreement. The following initially capitalized terms, as and when used in this Agreement, shall have the following meanings:

“Act” means the Delaware Limited Liability Company Act, 6 Del. Code §§ 18 101 et seq., as amended from time to time, and any successor to such Act.

“Active Person” has the meaning set forth in the definition of “Disqualified Transferee” herein.

“Adjusted Capital Account” means, with respect to any Member, the balance, if any, in the Capital Account established and maintained for such Member, as the same is specially computed as of the end of the Taxable Year after crediting such Member’s Capital Account any amounts which such Member is obligated to restore pursuant to Section 10.3 or is deemed obligated to restore pursuant to the penultimate sentences in Treasury Regulations Section 1.704-2(g)(1) and 1.704-2(i)(5).

“Adjusted Maintenance Reserve Amount” means an amount equal to the Initial Maintenance Reserve Amount as adjusted quarterly through the fourth anniversary of the date that the last Facility is Placed in Service (as defined in the MESPA) to reflect (i) an increase in such amount equal to $[***] per kW per quarter for such period, and (ii) a decrease in such amount equal to (A) the amount of the Primary Service Fees (as defined in the MOMA) paid by the Facility Company to the Operator pursuant to the MOMA in the immediately preceding quarterly period and (B) $[***] per kW for parts replacement services performed pursuant to the MESPA and/or MOMA.

“Advisors” has the meaning set forth in Section 7.7(a).

“Affected Member” has the meaning set forth in Section 9.2(b).

“Agreement” means this Second Amended and Restated Operating Agreement, as amended, supplemented or restated from time to time pursuant to the provisions hereof.

“Annual Report” means the report delivered pursuant to Section 8.4(a).

“Appraisal Procedure” means within fifteen (15) days of a party invoking the procedure described in this definition the Class A Members and Class B Members shall engage a Qualified Appraiser, mutually acceptable to the Members, to determine the Fair Market Value of the Class A Interests.

“Available Capital Income Cash Flow” means, with respect to any date of determination, the Available Cash Flow realized or received in respect of any transaction that corresponds to an item of income or gain (but not loss or deduction) realized by the Company under Code sections 702(a)(1) through (7), including for the avoidance of doubt, the repurchase of a System as provided for in any of Sections 3.2(d), 8.3(c), 9.3 or 9.7 of the MESPA.

“Available Cash Flow” means, with respect to any date of determination, the gross cash receipts from Company and Facility Company operations (including sales and dispositions of Company and Facility Company Assets), insurance payments, warranty

[***] Confidential Treatment Requested

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payments, cash previously reserved and all Capital Contributions received from Members, in each case during the period beginning on the date the last cash distribution was made to Members and ending on such date of determination, less the portion thereof used to pay, or establish reserves for, all Company and Facility Company expenses (including amounts due and payable to the Class B Member or any Affiliate under the ASA and debt service obligations under the Financing Documents), and Company Reimbursable Expenses, and after payment of all amounts due under any Class A Withdrawal Note.

“Available PPA Termination Cash Flow” means the Available Cash Flow realized or received in respect of a termination of a Power Purchase Agreement by the PPA Customer upon as provided in Section 2.4 of the MESPA.

“Bid” has the meaning set forth in Section 9.1(d).

“Buyout Event” has the meaning set forth in Section 9.2.

“Buyout Exercise Notice” has the meaning set forth in Section 9.2(c).

“Buyout Price” has the meaning set forth in Section 9.2(d).

“Capital Account” means the capital account established and maintained for a Member pursuant to Section 4.1.

“Capital Contribution” means any cash or the Value of any other property (net of liabilities secured by such property that the Company is considered to assume or take subject to under Code Section 752) that a Member directly or indirectly contributes to the Company pursuant to Article III or has previously contributed to the Company.

“Cash Equivalents” means any of the following having a maturity of not greater than one year from the date of issuance thereof: (a) readily marketable direct obligations of the government of the United States of America or any agency or instrumentality thereof or obligations unconditionally guaranteed by the full faith and credit of the government of the United States of America, (b) insured certificates of deposit of or time deposits with any commercial bank that is a member of the Federal Reserve System, which issues (or the parent of which issues) commercial paper rated as described in clause (c) below, which is organized under the laws of the United States or any State thereof and which has combined capital and surplus of at least $1,000,000,000 or (c) commercial paper issued by any corporation, other than an Affiliate of the Managing Member, organized under the laws of any State of the United States and rated at least “Prime-1” (or the then equivalent grade) by Moody’s Investor Service, Inc. (or any successor thereto) or “A-1” (or the then equivalent grade) by Standard & Poor’s Rating Group, a division of Standard & Poor’s Corporation (or any successor thereto).

“Certified Public Accountant” means a firm of independent public accountants selected from time to time by the Managing Member and approved with the Consent of the Members. The initial Certified Public Accountant is PricewaterhouseCoopers LLP.

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“Change of Member Control” means with respect to any Member, an event (such as a Transfer of voting securities) that causes such Member to cease to be Controlled by such Member’s Member Parent; provided, however, that with respect to a Class A Member or a Class B Member, an event that causes such Member’s Member Parent to be Controlled by another Person shall not constitute a Change of Member Control.

“Claims” means all claims, suits, demands, injunctions, actions, causes of action, assessments, cleanup and remedial obligations, judgments, awards, liabilities, losses (including amounts paid in settlement of claims), damages (including any loss of profits, consequential, punitive, incidental or special damages recovered by any Third Party, but excluding any loss of profits, consequential, punitive, incidental or special damages asserted by any Member or an Affiliate), fines, fees, taxes, penalties, costs and expenses of every kind and character (including litigation costs and reasonable attorneys’ and experts’ fees and expenses, including such fees and expenses at trial and on any appeal).

“Class A Equity Investor” has the meaning set forth in the preamble.

“Class A Flip Point” means January 1 of the calendar year immediately following the year that includes the fifth anniversary of the date the last Facility of the last Tranche achieves Commercial Completion.

“Class A Interest” means a Membership Interest issued pursuant to Section 3.1, which entitles the Holder thereof to receive the distributions of cash and property, allocations of profits and losses and other rights that are accorded Holders of a Class A Interest under this Agreement.

“Class A Investment Balance” means for the Class A Interests, with respect to a Facility, an amount equal to the greater of (a) zero and (b) the balance determined from time to time equal to (i) [***] of the allocable portion of the all Capital Contributions made in respect of that Class A Units for that Facility, minus (ii) [***] of the Qualified Investment for that Facility, minus (iii) the allocable portion of the aggregate cash distributions (including Preferred Distributions) actually made to the Class A Members in respect of that Facility, plus (iv) any ITC Loss Tax Event Liability for that Facility, including any such ITC Loss Tax Event Liability arising from a disposition or cessation of all or any part of the ITC Eligible Property or the Class A Interest under Code Section 50 or Treasury Regulations Sections 1.47-2 or 1.47-6, other than from a Class A ITC Loss Event and except to the extent equivalent Damages have otherwise been paid by the Class B Member as provided herein, which Class A ITC Loss Event occurs, or is to occur, contemporaneously at the time such balance is being determined, plus (v) an amount equal to the product of (1) the Post-Flip Sharing Percentage of the Class A Member, times (2) (A) in the event of a termination of a Power Purchase Agreement as provided in Section 2.4 of the MESPA for the Facility prior to the Class A Flip Point, the excess, if any, of the then Fair Market Value of the Facility over the termination value actually paid by the PPA Customer, (B) in the event of a removal of a System from that Facility as provided in Section 3.2(d) of the MESPA prior to the Class A Flip Point, the

[***] Confidential Treatment Requested

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excess, if any, of the Fair Market Value of that System, over the Purchase Price (as defined in the MESPA) for that System, and (C) in the event of a repurchase of a System from that Facility as provided in any of Sections 3.2(d), 8.3(c), 9.3 or 9.7 of the MESPA or Section 2.5(c) of the MOMA, prior to the Class A Flip Point, the excess, if any, of the amount set forth in clause (a) of the definition of Residual Value within the MESPA, over the amount set forth in clause (b) of the definition of Residual Value within the MESPA, in each case for that System.

“Class A Investor Claim” has the meaning set forth in Section 11.1.

“Class A Investor Group” has the meaning set forth in Section 11.1.

“Class A ITC Loss Event” means an ITC Loss Event that is the result of any of the following: (i) a direct or indirect Transfer of Class A Interests, (ii) the federal income tax classification of the Class A Member or any of its direct or indirect owners (including as a result of the breach of Section 5.12 of the Equity Capital Contribution Agreement), (iii) a change in federal income tax law after the first Initial Funding Date, or (iv) a final determination under a federal income tax audit or administrative or judicial proceeding, to which the Company or the Class A Member is a party, that specifically provides that (A) the Class A Member is not a partner in the Company for federal income tax purposes, (B) for federal income purposes the Company is not classified as a partnership, (C) for federal income tax purposes the Facility Company is not classified as a disregarded entity, or (D) the allocation of items of income, gain, loss, deduction and credit to and among the Class A Members under this Agreement does not have “substantial economic effect” and is not otherwise consistent with the Class A Members’ interests in the Company within the meaning of Code Section 704(b) (for purposes of clarification, this clause (iv)(D) concerns the validity of the allocations and not the amounts that will be allocated or the timing of the allocation), except to the extent such final determination is the result of a breach by a Class B Member, any Affiliate thereof, or the Company of any representations, warranties, covenants made by such Person, or other obligations of such Person, set forth in any Investment Document, or any Principal Facility Document.

“Class A Member” means each Person holding a Class A Interest. As of the Effective Date, the Class A Member means the Class A Equity Investor.

“Class A Member Partial Redemption” has the meaning set forth in Section 7.4(d).

“Class A Member Partial Redemption Amount” has the meaning set forth in Section 7.4(d).

“Class A Member Partial Redemption Event” has the meaning set forth in Section 7.4(d).

“Class A Member Partial Redemption Notice” has the meaning set forth in Section 7.4(d).

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“Class A Member Withdrawal” has the meaning set forth in Section 7.4(b).

“Class A Unit” means a unit representing a Class A Interest having the rights, preferences and designations provided for such class in this Agreement.

“Class A Withdrawal Amount” has the meaning set forth in Section 7.4(b)(i).

“Class A Withdrawal Note” has the meaning set forth in Section 7.4(b)(iii).

“Class A Withdrawal Notice” has the meaning set forth in Section 7.4(b).

“Class B Equity Investor” has the meaning set forth in the preamble.

“Class B Interest” means the Membership Interest issued pursuant to Section 3.2, which entitles the Holder thereof to receive distributions of cash and property, allocations of profits and losses and other rights that are accorded Holders of a Class B Interest under this Agreement.

“Class B ITC Loss Event” means an ITC Loss Event that does not arise as a result of either (a) a Class A ITC Loss Event, or (b) a “disposition” or “cessation” as defined in Treasury Regulation 1.47-2 (including as a result of a default or exercise of remedies under the Financing Documents), unless such disposition or cessation is a result of either (i) a breach by a Class B Member, any Affiliate thereof, or the Company of any representations, warranties, covenants made by such Person, or other obligations of such Person, set forth in any Investment Document, or any Principal Facility Document, or any of Article 4, Article 5 (excluding Section 5.2 thereof, other than to the extent any such failure to pay any sums due under the Credit Agreement is a result of a breach or event otherwise described within this definition of “Class B ITC Loss Event”), or Article 6 of the Credit Agreement, or (iii) the occurrence of an “Event of Default”, as defined in the Financing Agreement, under any of Sections 8.1.11(b), 8.1.16 or 8.1.8 of the Financing Agreement, or (iv) the repair, replacement or refurbishment of a Facility (whether or not permitted under, or made in accordance with, the MESPA).

“Class B Member” means the Person(s) holding a Class B Interest. Initially, and as of the Effective Date, the Class B Member means the Class B Equity Investor.

“Class B Unit” means a unit representing a Class B Interest having the rights, preferences and designations provided for such class in this Agreement.

“Company” has the meaning set forth in the recitals.

“Company Minimum Gain” has the meaning given the term “partnership minimum gain” set forth in Treasury Regulation Section 1.704-2(b)(2) and will be determined as provided in Treasury Regulation Section 1.704-2(d).

“Company Reimbursable Expenses” means all reasonable Third Party costs and expenses (including legal, accounting and auditing fees) incurred either by the Managing

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Member on behalf of the Company or the Company on behalf of the Facility Company, in the performance of duties relating to the Company’s or the Facility Company’s activities or business, in accordance with this Agreement.

“Confidential Information” has the meaning set forth in Section 7.7(a).

“Consent of the Class A Members” means, at any time, the consent or approval of Class A Members who own in the aggregate more than fifty percent (50%) of the Class A Units outstanding at such time.

“Consent of the Class B Members” means, at any time, the consent or approval of Class B Members who own in the aggregate more than fifty percent (50%) of the Class B Units outstanding at such time.

“Consent of the Members” means each of (i) the Consent of the Class A Members and (ii) the Consent of the Class B Members.

“Consistent Return” has the meaning set forth in Section 8.7(c).

“Control”, “Controlled”, and “Controlling” means the possession, directly or indirectly, of any of the following: (i) in the case of a corporation, more than fifty percent (50%) of the outstanding voting securities thereof; (ii) in the case of a limited liability company, partnership, limited partnership or joint venture, the right to more than fifty percent (50%) of the distributions (including liquidating distributions) therefrom; (iii) in the case of a trust or estate, including a business trust, more than fifty percent (50%) of the beneficial interest therein; (iv) in the case of any other entity, more than fifty percent (50%) of the economic or beneficial interest therein; or (v) in the case of any entity, the power or authority, through ownership of voting securities, by contract or otherwise, to exercise a controlling influence over the management of the entity.

“Damages” all claims, actions, causes of action, demands, assessments, losses, damages (including, without limitation, the ITC Loss Tax Event Liability), liabilities, judgments, settlements, taxes, penalties, costs, and expenses (including reasonable attorneys’ fees and expenses, including without limitation, such fees and expenses at trial and on any appeal), of any nature whatsoever.

“Delaware Certificate” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware on July 12, 2012, as amended or restated from time to time.

“Depreciation” means, for each Taxable Year or other period, an amount equal to the depreciation, amortization or other cost recovery deduction allowable with respect to an Asset for such period, except that if the Value of any Asset differs from its adjusted basis for federal income tax purposes at the beginning of such period, Depreciation shall be an amount which bears the same ratio to such beginning Value as the federal income tax depreciation, amortization or other cost recovery deduction for such year or other period bears to such beginning adjusted tax basis; provided, however, that if the federal

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income tax depreciation, amortization or other cost recovery deduction for such year is zero, Depreciation shall be determined with reference to such beginning Value using any method selected by the Managing Member and reasonably acceptable to the Members.

“Distribution Date” shall mean July 1 and January 1 of each year, commencing with the first such date following the Effective Date.

“Disqualified Transferee” means any Person which is, or whose Affiliate is, then (A) a party adverse in any pending or threatened action, suit or proceeding to the Company or any other Member or an Affiliate thereof, if the Company or such Member shall not have consented (in its sole and absolute discretion) to the Transfer to such Person, (B) with respect to any Transfer of a Class A Interest, directly or indirectly engaged in owning, managing, operating, maintaining or developing facilities utilizing fuel cells for the production of electricity for sale to others (an “Active Person”) except for an Affiliate of an Active Person where such Affiliate of an Active Person is an entity regularly involved in making passive investments in such facilities (a “Passive Investor”) if such Passive Investor has certified in a manner reasonably acceptable to the Class B Member that it has in place procedures to prevent its Affiliates which are Active Persons from acquiring confidential information relating to such passive investments; provided, however, that, for the avoidance of doubt, a Person will not be deemed to be an Active Person solely by virtue of owning an interest in a facility similar to the ownership interest of the Class A Members or (C) a Person to whom a Transfer of Membership Interests would cause an ITC Loss Event.

“Effective Date” means the date of this Agreement.

“Equity Capital Contribution Agreement” has the meaning set forth in the recitals.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

“Escrow” has the meaning set forth in Section 5.4(d).

“Escrow Agent” has the meaning set forth in Section 5.4(d).

“Escrowed Funds” has the meaning set forth in Section 5.4(d)(i).

“Exercise Notice” has the meaning set forth in Section 9.3(b).

“Facility Company” means 2012 ESA Project Company, LLC, a Delaware limited liability company (f/k/a 2012 V PPA Project Company, LLC).

“Facility Debt” means non-recourse senior debt of the Facility Company from a lender or group of lenders reasonably satisfactory to Investor.

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“Facility Documents” means, collectively, (i) the Principal Facility Documents or any agreement entered into in replacement or substitution of any such agreement and (ii) any other agreement (including, without limitation, any agreement to sell electricity or renewable energy credits) entered into by the Company or the Facility Company after the Effective Date having a term in excess of one (1) year and providing for payments by or to the Company or the Facility Company in excess of $[***] per year.

“Fair Market Value” means, with respect to any Asset, the price at which such Asset would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell, and both having reasonable knowledge of the relevant facts, and specifically with respect to the Facility or any Membership Interest in the Company, as determined consistently with Section 4.05 of Revenue Procedure 2007-65, including for the avoidance of doubt with respect to the Class A Interest, taking into account the priority of the payment of Preferred Distributions pursuant to this Agreement. For the avoidance of doubt, in determining the Fair Market Value of the Class A Interests, to the extent the “discounted cash flow” method is used, such cash flows shall take into account the expected timing and amount of any Preferred Distributions.

“Firstar” has the meaning set forth in the preamble.

“Fiscal Year” means the calendar year, except that the initial Fiscal Year of the Company commenced on January 30, 2013 and the final Fiscal Year of the Company shall end on the date on which the Company is terminated under Article X.

“GAAP” means United States generally accepted accounting principles consistently applied.

“Holder” means any Member.

“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.

“Indebtedness” means indebtedness for borrowed money and any capital lease of any property as lessee, but expressly does not include short-term (i.e., less than one year in maturity) trade payables or operating leases incurred in the ordinary course of business.

“Initial Maintenance Reserve Amount” means an amount equal to $[***] per kW of each System Placed in Service (as such term is defined in the MESPA).

“IRS” means the Internal Revenue Service and any successor Governmental Authority.

“ITC Loss Event” means either (i) the recapture of all or any portion of the ITC pursuant to Code Section 50(a), or (ii) any disallowance or deferral of, lack of the right to claim, or delay in claiming, all or any portion of the ITC, in each case at the Company level or the level of any individual Class A Member, including by reason of the Qualified Investment not being ITC Eligible Property.

[***] Confidential Treatment Requested

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“ITC Loss Tax Event Liability” means any and all federal income tax detriments suffered by the Class A Member or its Affiliates as the result of an ITC Loss Event, determined assuming a 35% federal income tax rate, and including, without limitation, recomputation of federal income tax, loss of a federal income tax depreciation benefit, other changes in distributive share of tax depreciation or taxable income or loss, plus any penalties, interest or additions to tax relating thereto. For the avoidance of doubt, for purposes of the definition of “Class A Investment Balance herein”, the ITC Loss Tax Event Liability shall be subject to the provisions of Section 11.3(b) herein (treating such detriments as Damages).

“Licenses and Permits” means any filings with, and licenses, permits, approvals and authorizations from, any Governmental Authority, including Environmental Permits.

“Liquidating Events” has the meaning set forth in Section 10.1(a).

“Maintenance Reserve Account” means that certain account, established in the name of the Facility Company, with the Depositary (as such term is defined in the Financing Documents), which account shall be used to maintain the Initial Maintenance Reserve Amount as adjusted from time to time to equal the Adjusted Maintenance Reserve Amount.

“Managing Member” means a Member appointed by the Members pursuant to Article VI to manage the affairs of the Company on their behalf and any other Person hereafter appointed as a successor Managing Member of the Company as provided in Article VI. Pursuant to its appointment by the Members in Section 6.1, the Class B Equity Investor shall be the initial Managing Member of the Company.

“Member” means those Persons who execute the signature page of this Agreement or otherwise agree to be bound hereby and are admitted to the Company as Members pursuant to this Agreement, excluding any Person (i) having solely the status of an assignee or (ii) that has ceased to be a Member.

“Member Parent” means, with respect to a Member, the company or companies, if any, that directly own and Control such Member on the Effective Date or, if applicable, from and after the date of a Change of Member Control in accordance with Section 9.1(b)(iv).

“Member Party” means each Member and its officers, directors, shareholders, Affiliates, employees and agents.

“Member Nonrecourse Debt” has the meaning given the term “partner nonrecourse debt” in Treasury Regulation Section 1.704-2(b)(4).

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“Member Nonrecourse Debt Minimum Gain” has the meaning given the term “partner nonrecourse debt minimum gain” set forth in Treasury Regulation Section 1.704-2(i)(2), and will be computed as provided in Treasury Regulation Section 1.704-2(i)(3).

“Member Nonrecourse Deductions” an amount, with respect to each Member Nonrecourse Debt, equal to the Company Minimum Gain that would result if such Member Nonrecourse Debt were treated as a Nonrecourse Liability, determined in accordance with Treasury Regulation Section 1.704-2(i)(3).

“Membership Interest” as to any Member means the entire limited liability company interest and rights of that Member in the Company, including, without limitation, its right to a share of the profits, losses, deductions and credits of the Company and its right to a distributive share of the Assets of the Company in accordance with the provisions hereof. Membership Interests shall consist of Class A Interests and Class B Interests, each of which shall constitute a separate class of limited liability company interests, but shall not constitute a “series” for purposes of Section 18-215 of the Act.

“Minimum Profits Distribution Amount” means $[***].

“Moody’s” means Moody’s Investor Service, or any successor entity.

“Nonrecourse Deductions” has the meaning given such term in Treasury Regulation Sections 1.704-2(b)(1) and 1.704-2(c).

“Nonrecourse Liability” has the meaning given such term in Treasury Regulation Section 1.704-2(b)(3).

“Obligations” has the meaning given to such term in the Credit Agreement (as defined in the Financing Documents).

“Passive Investor” has the meaning set forth in the definition of “Disqualified Transferee” herein.

“Permitted Investment” has the meaning given to such term in Section 8.5.

“Post-Flip Sharing Percentages” means (a) for the Class A Members as a group [***] and (b) for the Class B Members as a group, [***].

“Preferred Distribution” means a semi-annual distribution to the Class A Member (pro rated for periods of less than a full Semi-Annual Period) of an amount equal to one-half of 2.0% of the paid-in Investor Initial Funding Date Contributions and Investor True Up Funding Contributions beginning at the end of the first Semi-Annual Period after the Effective Date and ending at the Class A Flip Point. For the avoidance of doubt, the amount of the paid-in Investor Initial Funding Date Contributions and Investor True Up Funding Contributions shall not include Transaction Expenses paid by the Investor pursuant to Section 2.2(a) and 2.5(a) of the Equity Capital Contribution Agreement.

[***] Confidential Treatment Requested

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“Prior ECCA” has the meaning set forth in the recitals.

“Prior LLC Agreement” has the meaning set forth in the recitals.

“Profits” and “Losses” means, for each Taxable Year or other period, an amount equal to the Company’s taxable income or loss for such Taxable Year or period, determined in accordance with Code Section 703(a) (for this purpose, all items of income, gain, loss, or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss), with the following adjustments:

(i) Any income of the Company that is exempt from federal income tax and not otherwise taken into account in computing Profits and Losses pursuant to this definition shall be added to such taxable income or loss;

(ii) Any expenditures of the Company described in Code Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant to Treasury Regulation Section 1.704 1(b)(2)(iv)(i), and not otherwise taken into account in computing Profits and Losses pursuant to this definition, shall be subtracted from such taxable income or loss;

(iii) In the event the Value of any Company Asset is adjusted pursuant to subsections (ii) or (iii) in the definition of “Value”, the amount of such adjustment shall be taken into account as gain or loss from the disposition of such Asset for purposes of computing Profits or Losses;

(iv) Gain or loss resulting from any disposition of Company property with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the Value of the property disposed of, notwithstanding that the adjusted tax basis of such property differs from its Value;

(v) In lieu of the depreciation, amortization, and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for such Taxable Year or other period as determined in accordance with the definition of Depreciation;

(vi) To the extent an adjustment to the adjusted tax basis of any Company Asset pursuant to Code Section 734(b) is required, pursuant to Treasury Regulation Section 1.704-(b)(2)(iv)(m)(4), to be taken into account in determining Capital Accounts as a result of a distribution other than in liquidation of a Member’s interest in the Company, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the Asset) or loss (if the adjustment decreases such basis) from the disposition of such Asset and shall be taken into account for purposes of computing Profits or Losses; and

(vii) Notwithstanding any other provision of this definition, any items that are specially allocated pursuant to Sections 4.3, 4.4, 4.5 and 4.6 shall not be taken into account in computing Profits or Losses (i.e., such items of income and gain will otherwise be subtracted from, and such items of loss and deduction will otherwise be added back to, “Profits” or “Losses”).

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“Purchase Option” has the meaning set forth in Section 9.3(a).

“Purchase Option Date” has the meaning set forth in Section 9.3(b).

“Purchase Price” means an amount (payable in United States Dollars) equal to the greater of (i) the Fair Market Value of the Class A Interests as of the exercise date, as determined under the Appraisal Procedure, (ii) the sum of (a) any unpaid Preferred Distributions (whether or not then accrued), as of the relevant Purchase Option Date, and (b) $[***] provided, however, that to the extent attributable to any Facilities for which an ITC Loss Event has occurred, other than from a Class A ITC Loss Event, and for which no Damages have been paid by the Class B Member as provided herein, the amount paid attributable to such Facilities shall not be less than the Class A Investment Balance.

“Purchasing Member” has the meaning set forth in Section 9.2(e).

“Qualified Appraiser” means a nationally recognized third-party appraiser which shall (i) be qualified to appraise independent fuel cell electric generating businesses and/or experienced in such businesses in the general geographic region of the Facilities, (ii) have been engaged in the appraisal or business valuation and consulting business for a period of not less than five years, and (iii) not be associated with any Member or any Affiliate thereof.

“Quarterly Renewable Energy Certificate” means the compliance certificate delivered pursuant to Section 8.4(f) and substantially in the form of Exhibit D attached hereto.

“Regulated Holder” means any holder of the Company’s Securities that is (or that is a Subsidiary of a bank holding company that is) subject to the various provisions of Regulation Y of the Board of Governors of the Federal Reserve Systems, 12 C.F.R., Part 225 (or any successor to Regulation Y).

“Regulatory Allocations” has the meaning set forth in Section 4.4.

“Regulatory Problem” means (i) any set of facts or circumstances wherein it has been asserted by any Governmental Authority, including any governmental regulatory agency (or a Class A Member reasonably believes based on advice of its regulatory counsel or regulators that there is a material risk of such assertion) that such Person (or any bank holding company or other regulated bank entity that controls such Person) is not entitled to hold, or exercise any material right with respect to, all or any portion of the Membership Interests of the Company which such Person holds or (ii) when such Person

[***] Confidential Treatment Requested

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and its Affiliates would own, control or have power (including voting rights) over a greater quantity of Membership Interests of the Company than is permitted under any law or regulation or any requirement of any Governmental Authority applicable to such Person or to which such Person is subject.

“Renewable Energy Monthly Report” means a report delivered pursuant to Section 8.4(g) and substantially in the form of Exhibit E attached hereto.

“Representatives” has the meaning set forth in Section 7.7(a).

“S&P” means Standard & Poor’s Ratings Group, a division of McGraw Hill, Inc., or any successor entity.

“Securities” with respect to any Person, such Person’s capital stock or limited liability company interests or any options, warrants or other Securities which are directly or indirectly convertible into, or exercisable or exchangeable for, such Person’s capital stock or limited liability company interests (whether or not such derivative Securities are issued by the Company). Whenever a reference herein to Securities refers to any derivative Securities, the rights of an Equity Investor shall apply to such derivative Securities and all underlying Securities directly or indirectly issuable upon conversion, exchange or exercise of such derivative Securities.

“Securities Act” means the Securities Act of 1933 or any successor statute, as amended from time to time.

“Semi-Annual Period” means the six-month periods ending each July 1 and January 1; provided that the first Semi-Annual Period shall commence on the Effective Date and end on July 1, 2013.

“Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, joint venture or other entity of which such Person (either alone or through or together with any other Person pursuant to any agreement, arrangement, contract or other commitment) owns, directly or indirectly, 50% or more of the stock or other equity interests the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such corporation or other legal entity.

“Tax Information” has the meaning set forth in Section 7.7(b).

“Tax Matters Member” has the meaning set forth in Section 8.7(a).

“Tax Return” has the meaning set forth in Section 8.7(c).

“Taxable Year” means the taxable year of the Company for federal income tax purposes.

“Terminated Member” has the meaning set forth in Section 9.2(h).

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“Third Party” means a Person other than a Member or an Affiliate of a Member.

“Third Party Payment” has the meaning set forth in Section 5.4(b).

“Transfer” means, as to any Asset (including, without limitation, the Units), a sale, assignment, conveyance, gift, exchange, lease or other disposition or transfer of such Asset, whether effected voluntarily, involuntarily or by operation of Applicable Law (including, a merger, conversion or consolidation in which the Person owning such Asset is not the surviving entity).

“Transfer Notice” has the meaning set forth in Section 9.1(d).

“Transferee” means a Person to which a Transfer is made.

“Transferring Member” means a Person making a Transfer.

“Treasury Regulations” means the regulations promulgated under the Code by the United States Department of Treasury, as such regulations may be amended from time to time. All references herein to specific sections of the regulations shall be deemed also to refer to any corresponding provisions of succeeding regulations, and any reference to temporary regulations shall be deemed also to refer to any corresponding provisions of final regulations.

“True Up Funding Termination Date” means has the meaning given to the term “True Up Funding Date Deadline” in the Equity Capital Contribution Agreement.

“Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to time in the States of Delaware and New York.

“Units” means each of the Class A Units and Class B Units. Upon a Transfer by any Member in accordance with the provisions of this Agreement of any portion of such Member’s Membership Interest, the assignee shall receive from the Transferring Member a number of Units of the relevant class equal to the percentage of the Membership Interest so Transferred multiplied by the total number of Units owned by the Transferring Member immediately prior to the Transfer.

“Value” means, with respect to any Asset of the Company, such Asset’s adjusted basis for federal income tax purposes, except as follows:

(i) The initial Value of any Asset contributed by a Member to the Company shall be the gross Fair Market Value of such Assets, as agreed to by the Members; provided, that the initial Value of the Assets contributed to the Company pursuant to Section 3.2 shall be the Appraised Value of Assets;

(ii) The Value of all Assets of the Company shall be adjusted to equal their respective gross Fair Market Values, as determined by the Members, as provided within Treasury Regulation Section 1.704-1(b)(2)(iv)(f); provided, however, that any such

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adjustments (other than pursuant to the liquidation (as defined for purposes therein) of the Company) shall be made only if the Managing Member reasonably determines, with the Consent of the Members, that such adjustments are necessary or appropriate to reflect the relative economic interests of the Members in the Company; provided, further, however, that no such adjustments shall be made upon any Capital Contribution made pursuant to Section 3.3(a) or (b) hereof;

(iii) The Value of any Asset distributed to any Member shall be the gross Fair Market Value of such Asset on the date of distribution (taking Code Section 7701(g) into account), as the Managing Member shall reasonably determine, with the Consent of the Members;

(iv) The Value of Company Assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such Assets pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m) (consistent with subparagraph (vi) of the definition of “Profits” and “Losses” and Section 4.3(f)); provided, however, that the Value shall not be adjusted pursuant to this clause (iv) to the extent the Members determine that an adjustment pursuant to clause (ii) of this definition is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this clause (iv); and

(v) If the Value of an Asset has been determined or adjusted pursuant to clause (i), (ii) or (iv) of this definition, such Value shall thereafter be adjusted by the Depreciation taken into account with respect to such Asset for purposes of computing Profits and Losses.

1.2 Other Definitional Provisions

(a) Construction. As used herein, singular shall include the plural, the masculine gender shall include the feminine and neuter, feminine gender shall include the masculine and neuter and the neuter gender shall include the masculine and feminine unless the context otherwise indicates.

(b) References. References to Articles and Sections are intended to refer to Articles and Sections of this Agreement, and all references to Exhibits and Schedules are intended to refer to Exhibits and Schedules attached to this Agreement, each of which is made a part of this Agreement for all purposes. Information contained in any Schedule shall be deemed contained in each and every other schedule without requiring repetition thereof. The term “including” means “including, without limitation.” Any date specified for action that is not a Business Day shall mean the first Business Day after such date. Any reference to a Person shall be deemed to include such Person’s permitted successors and assigns. Any reference to any document or documents shall be deemed to refer to such document or documents as amended, amended and restated, modified, supplemented or replaced from time to time. Whenever a Person is to determine that something is “satisfactory to,” “acceptable to,” or “to the satisfaction of” such Person, the determination may not be made in bad faith.

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ARTICLE II

THE COMPANY

21.1 Continuation of Limited Liability Company. The parties hereto hereby continue the Company formed on July 12, 2012, as a limited liability company pursuant to the Act. The rights and obligations of the Members shall be as provided in the Act, except as otherwise expressly provided herein. The Managing Member shall from time to time execute or cause to be executed all such certificates, instruments and other documents, or cause to be done all such filings, as the Managing Member may deem necessary or appropriate to operate, continue or terminate the Company as a limited liability company under the laws of the State of Delaware and to qualify the Company to do business in such states where such qualification is necessary or desirable.

21.2 Name. The name of the Company is, and the business of the Company shall continue to be conducted under the name of 2012 V PPA Holdco, LLC or such other name or names as the Managing Member may designate from time to time, with the Consent of the Members. The Managing Member shall take any action that it determines is required to comply with the Act, assumed name act, fictitious name act, or similar statute in effect in each jurisdiction or political subdivision in which the Company proposes to do business and the Members agree to execute any documents requested by the Managing Member in connection with any such action.

21.3 Principal Office. The Company shall maintain a principal office which shall initially be located at the Class B Equity Investor’s principal place of business, located at 1299 Orleans Drive, Sunnyvale, CA 94089. The Managing Member may change the principal office of the Company from time to time upon written notice to the Members.

21.4 Registered Office; Registered Agent. The name of the registered agent of the Company in the State of Delaware at such address is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, DE 19808. The address of the Company’s registered office in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, DE 19808.

21.5 Purposes. The purpose of the Company is to own the Facility Company, which will develop, own, operate, maintain and repair the Facilities, for the purpose of producing electricity; to cause the Facility Company to sell electricity and renewable energy credits produced by the Facilities; to enter into, comply with, perform its obligations and enforce its rights, and cause the Facility Company to enter into, comply with, perform their obligations and enforce their rights, under this Agreement and the Facility Documents; and to engage in and perform any and all activities necessary, incidental, related or desirable to allow the Facility Company, to produce and sell electricity and renewable energy credits from the Facilities. The Company shall not engage in any activity or own any Assets that are not directly related to the Company’s purpose as set forth in this Section 2.5. The Company shall not allow the Facility Company to engage in any activity or own any Assets other than as required in connection with the Facility Company’s ownership and operation of the Facilities.

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21.6 Term. The Company shall continue in existence until December 31, 2071 unless earlier dissolved and terminated in accordance with this Agreement.

21.7 Title to Property. Title to Company or Facility Company Assets, as applicable, whether tangible or intangible, shall be held in the name of the Company or the Facility Company, as applicable, and no Member, individually, shall have title to or any interest in such property by reason of being a Member. Membership Interests of each Member shall be personal property for all purposes.

21.8 Units; Certificates of Membership Interest; Applicability of Article 8 of UCC. Membership Interests shall be represented by Units, divided into Class A Units (in the case of Class A Interests) and Class B Units (in the case of Class B Interests). The Membership Interests represented by Class A Units and Class B Units shall have the respective rights, preferences and designations ascribed to such Units in this Agreement. The Members hereby specify, acknowledge and agree that all Units (and the Membership Interests represented thereby) are securities governed by Article 8 and all other provisions of the Uniform Commercial Code, and pursuant to the terms of Section 8-103(c) of the Uniform Commercial Code, such interests shall be “securities” for all purposes under such Article 8 and under all other provisions of the Uniform Commercial Code. All Units (and the Membership Interests represented thereby) shall be represented by certificates substantially in the form attached hereto as Exhibit B, shall be recorded in a register thereof maintained by the Company, and shall be subject to such rules for the issuance thereof in compliance with this Agreement, as the Managing Member may from time to time determine; provided, that certificates evidencing the Units (and the Membership Interests represented thereby) which were issued in the forms annexed to the Prior LLC Agreement prior to the date hereof shall continue to be valid.

ARTICLE III

CAPITAL CONTRIBUTIONS AND PAYMENTS

3.1 Class A Interests; Capital Contributions of the Class A Members. On each Initial Funding Date, Firstar shall make the Investor Initial Funding Contribution to be made by it with respect to the applicable Tranche pursuant to the terms and conditions set forth in the Equity Capital Contribution Agreement. In consideration of such Investor Initial Funding Contributions and the Investor True Up Funding Contributions to be made by the Investor pursuant to the Equity Capital Contribution Agreement, Firstar has been issued Class A Units in the amount set forth opposite its name in Exhibit A and has been admitted to the Company as a Class A Member. The Class A Members shall be entitled to the allocations, distributions and other rights as are prescribed for the Class A Members in this Agreement. Each Class A Member’s Capital Account balance as of the Effective Date and each Initial Funding Date thereafter with respect to its Membership Interest shall be as indicated on Exhibit A hereto.

3.2 Class B Interests; Capital Contributions of the Class B Member. On each Initial Funding Date, the Class B Member shall make the Class B Member Initial Funding Date Contribution to be made by it with respect to the applicable Tranche pursuant to the terms and conditions set forth in the Equity Capital Contribution Agreement. In addition, the Class B

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Member shall hold Class B Units in the amount set forth opposite its name in Exhibit A. The Class B Member shall be entitled to the allocations, distributions and other rights as are prescribed for the Class B Member in this Agreement. The Class B Member’s additions to its Capital Account as of the Effective Date and each Initial Funding Date thereafter (and the Class B Member’s Capital Account as of the Effective Date and each Initial Funding Date thereafter) are shown on Exhibit A hereto, which amounts include the Value of property contributed by the Class B Member to the Company prior to and on such dates.

3.3 Additional Capital Contributions and Payments.

(a) On each True Up Funding Date, the Class A Members shall make their respective Capital Contributions to the Company with respect to the applicable Tranche pursuant to the terms and conditions of the Equity Capital Contribution Agreement.

(b) On each True Up Funding Date, the Class B Member shall make its Capital Contribution to the Company and deposit the Initial Maintenance Reserve Amount in the Maintenance Reserve Account with respect to the applicable Tranche pursuant to the terms and conditions of the Equity Capital Contribution Agreement.

(c) The Company shall apply the True Up Funding Date Contributions set forth in clauses (a) and (b) above in accordance with Section 2.6 of the Equity Capital Contribution Agreement, and each Member’s Capital Account shall be adjusted in accordance with Section 4.1

(d) On each Distribution Date prior to the Class A Flip Point, the Class B Member shall make a Capital Contribution to the Company for deposit by the Company in the Maintenance Reserve Account on behalf of the Facility Company in an amount equal to any shortfall in the amount otherwise available to fund and maintain the Adjusted Maintenance Reserve Amount in the Maintenance Reserve Account as of that Distribution Date, except to the extent that such shortfall results from a payment default by a PPA Customer under a Power Purchase Agreement.

3.4 No Other Required Capital Contributions. Except as provided in Sections 3.3, 3.6 and 5.4(b), no Member shall be obligated to make Capital Contributions in excess of the amount of such Member’s required Capital Contribution made on any additional Initial Funding Date or True Up Funding Date.

3.5 No Right to Return of Capital Contributions. Except as otherwise provided in this Agreement, no Member may require a return of its Capital Contributions or the payment of interest thereon from the Company or from another Member.

3.6 Class B Member Capital Contributions in Excess of Appraised Value. Notwithstanding anything else to the contrary within this Agreement or the Equity Capital Contribution Agreement, in the event that the Fair Market Value of Facilities, as determined pursuant to a Subsequent Facility Appraisal, is less than the Purchase Price for such Facilities as determined under the MESPA, then for purposes of this Agreement:

(a) The portion of the Initial Funding Date Contributions and True Up Funding Date Contributions of the Class B Member equal to such excess shall not be treated as a Capital Contributions made by the Class B Member for any purpose under this Agreement, and any return of all or any portion of such amount pursuant to Section 5.1(b) shall not be treated as a distribution, including, in each case, for purposes of calculating and maintaining Capital Accounts.

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(b) The Company shall not treat any such excess amount as having been paid for, or creating any tax basis in, any Facility or another other asset for federal income tax purposes.

(c) The Company shall not take any Depreciation in respect of that excess amount.

ARTICLE IV

CAPITAL ACCOUNTS; ALLOCATIONS

4.1 Capital Accounts. The Company shall maintain for each Member a separate Capital Account in accordance with the rules of Treasury Regulation Section 1.704-l(b)(2)(iv). Each Member’s Capital Account shall be maintained in accordance with the following provisions:

(a) To each Member’s Capital Account there shall be credited the Member’s Capital Contributions, such Member’s distributive share of Profits and items of income and gain under Section 4.2 and any items in the nature of income or gain which are specially allocated to the Member pursuant to Section 4.3, Section 4.4 and Section 10.2(a) and the amount of any Company liabilities assumed by the Member or which are secured by any Company Asset distributed to such Member.

(b) To each Member’s Capital Account there shall be debited the amount of cash and the Value of any Company Asset distributed to such Member pursuant to any provision of this Agreement or the Equity Capital Contribution Agreement, such Member’s distributive share of Losses and items or loss and deduction under Section 4.2 and any items of loss and deduction which are specially allocated to the Member pursuant to Section 4.3, Section 4.4 and Section 10.2(a) and the amount of any liabilities of such Member assumed by the Company or which are secured by any property contributed by such Member to the Company.

(c) In determining the amount of any liability for purposes of the foregoing subsections (a) or (b), there shall be taken into account Code Section 752(c) and any other applicable provisions of the Code and the Treasury Regulations.

(d) In the event any Membership Interest in the Company is transferred in accordance with the terms of this Agreement, the Transferee shall succeed to the Capital Account of the transferor to the extent it relates to the transferred Membership Interest.

This Section 4.1 and the other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Treasury Regulation Section 1.704-1(b)

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and 1.704-2, and will be interpreted and applied in a manner consistent with such Treasury Regulations. The Managing Member also shall make any adjustments that are necessary or appropriate to maintain equality between the Capital Accounts of the Members and the amount of capital reflected on the Company’s balance sheet, as computed for book purposes, in accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(q).

4.2 Profits and Losses. For purposes of maintaining Capital Accounts, after making the allocations provided under Section 4.3, all items of Company income, loss, gain, deduction and credit for any Fiscal Year will be allocated among the Members as follows

(a) General Allocations. Except as provided in the following subsections (b) through (d) of this Section 4.2, Profits and Losses, and constituent items of Company income, gain, loss, and deduction thereof, shall be allocated among the Members for each Fiscal Year or part of a Fiscal Year as follows:

(i) For each Fiscal Year of the Company or portion thereof that ends on or before the first full Fiscal Year of the Company, 99% to the Class A Members, pro rata according to their respective Class A Units and 1% to the Class B Members, pro rata according to their respective Class B Units; and

(ii) Subject to Section 4.2(b), for each Fiscal Year of the Company or portion thereof that ends after the first full Fiscal Year of the Company, to the Members as necessary to produce, as nearly as possible, an Adjusted Capital Account balance for each Member immediately following the end of that Fiscal Year, after adjusting their Capital Accounts for the items described in (4), (5) and (6) of Treasury Regulation section 1.704-1(b)(2)(ii)(d), to equal the amount of hypothetical Available Cash that would be distributed to such Member if (x) each Company Asset were sold immediately after the end of such Fiscal Year or portion thereof for an amount equal to the sum of (i) the Value of the Asset at such time (for the avoidance of doubt without making any adjustment to such Values at such time pursuant to clause (ii) of the definition of “Value” herein), plus (ii) the Company Minimum Gain and Member Nonrecourse Debt Minimum Gain to which the asset is subject at such time, plus (iii) the amount of the basis adjustments that would be made in respect of the Membership Interests pursuant to Code section 50(c) (to the extent not already taken into account pursuant to the Company Minimum Gain under clause (ii)), (y) the Company immediately paid all its remaining liabilities, and (z) the Company liquidated.

(b) Loss Limitation. Except as provided in the following subsections (c) and (d) of this Section 4.2, if, at the end of any for any Fiscal Year of the Company or portion thereof, the Adjusted Capital Account balance of the Class B Members is less than the remaining amount distributable in the future to the Class B Members under Sections 5.1(a)(i) and (b)(i) because Losses (or items of loss and deduction) for any Fiscal Year of the Company or portion thereof could not be allocated to the Class A Members without causing them to have a deficit in their Adjusted Capital Account balances, and consequently such Losses (or items of loss or deduction) were instead allocated to the Class B Members, then any Profits (and items of income or gain)

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that would otherwise be allocated to the Class A Member shall instead be allocated to the Class B Member until the aggregate amount of such Profits (or items of income or gain) so allocated for all periods under this Section 4.2(b) equals the aggregate amount of such Losses (or items of loss or deduction) so allocated to the Class B Member for any Fiscal Years of the Company or portion thereof.

(c) Items in Connection with Liquidation. Except as provided in the following subsections (d) through (e) of this Section 4.2, Profits and Losses and any other items of income, gain, loss or deduction, shall be subject to any special allocation to be made pursuant to Section 10.2(a)(v).

(d) Items in Connection with Class A Member Withdrawal or Class A Member Partial Redemption. 

(i) Upon a Class A Member Withdrawal, Company items of income, gain, loss or deduction and credits for the Taxable Year in which the withdrawal occurs (and, if necessary subsequent Taxable Years) shall be specially allocated, first, so as to cause the Capital Account balance of the Class A Members (after adding back the Class A Member’s distributive share of Company Minimum Gain and Member Nonrecourse Debt Minimum Gain) to equal the Class A Withdrawal Amount. For the period beginning after the Class A Member Withdrawal and all subsequent Taxable Years, any interest accrued on any Class A Withdrawal Note shall be treated as guaranteed payments under Code section 707(c), any other amounts distributed or paid to the Class A Member as the Class A Withdrawal Amount or principal on the Class A Withdrawal Note shall be treated as payments under Code section 736(b), and any subsequent Company items of income, gain, loss and deduction shall be allocated 100% to the Class B Members.

(ii) Upon a Class A Member Partial Redemption, Company items of income or gain that are described in Code sections 702(a)(1) through (7) shall be for the Taxable Year in which the partial withdrawal occurs (and, if necessary subsequent Taxable Years) shall be specially allocated, so as to cause the Adjusted Capital Account balance of the Class A Members to equal at least the Class A Investment Balance in respect of the applicable Company Assets for which the Class B ITC Loss Event occurred. For the period beginning after the Class A Member Partial Redemption and all subsequent Taxable Years, any excess of the Available Cash Flow paid under Section 7.4(d) in respect of the partial redemption of the Class A Interest subject to the Class A Member Partial Redemption over the Adjusted Capital Account balance of the Class A Members in the Class A Interest so redeemed shall be treated as a guaranteed payment under Code section 707(c), any other amounts distributed or paid to the Class A Member shall be treated as a distribution under Code section 731(a) and any subsequent Company items of income, gain, loss and deduction in respect of the applicable Company Assets for which the Class A Member Partial Redemption is made, shall be allocated 100% to the Class B Members.

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(e) Allocation of ITC. It is the intention of the Members that both (i) the allocations provided in Sections 4.2(a)(i) constitute, for purposes of Treasury Regulations Section 1.46-3(f)(2)(i), the ratio in which the Members divide the general profits of the Company (that is, the taxable income of the partnership as described in Code Section 702(a)(8)) regardless of whether the Company has a profit or a loss for its Taxable Year during which the ITC Eligible Property is placed in service for federal income tax purposes, (ii) any temporary allocations made pursuant to Section 4.2(b) serve only to restore the original economic profit and loss arrangement, while maintaining the requirement for such allocation to be respected under Treasury Regulations Section 1.704-1(b)(3) (iii), and therefore, in the aggregate, any such allocations do not reduce the allocation of the general profits to the Class A Members for purposes of Treasury Regulation Section 1.47-6(a)(2)(i)(b), and (iii) accordingly, the relative shares of the Class A Members and the Class B Members of the basis of ITC Eligible Property for purposes of Treasury Regulation Section 1.47-3(f)(2)(i) is 99% to 1%. Further, it is the intention of the Members that, for purposes of Treasury Regulation Section 1.47-6(a)(2)(i)(b), the allocations provided in Sections 4.2(a) through (d) for Fiscal Years or portions thereof beginning after the Class A Flip Point shall not constitute a reduction in the Class A Members’ interest in the general profits of the Company (that is, the taxable income of the Company as described in Code Section 702(a)(8)) below two-thirds of either the Class A Members’ proportionate interest in the general profits of the Company for the Taxable Year in which the ITC Eligible Property was placed in service for federal income tax purposes before the close of the “estimated useful life” of such ITC Eligible Property (treating the “estimated useful life” of the ITC Eligible Property as ending not earlier than the end of the fifth anniversary of its placed in service date for purposes of Code Section 168).

(f) Guaranteed Payments.

(i) For each Taxable Year for which the Company has a Loss, the Company shall accrue for such Taxable Year, as a guaranteed payment for the use of capital of the Class A Members under Code section 707(c), the amount of the Preferred Distribution to be made to the Class a Members for such Taxable Year.

(ii) For the period beginning after the Class A Member Withdrawal or the Class A Member Partial Redemption and all subsequent Taxable Years, any earnings accrued on any Class A Member Withdrawal Amount or Class A Member Partial Redemption Amount shall be treated as a guaranteed payment of the use of the capital of the Class A Members under Code section 707(c), and any other amounts distributed or paid to the Class A Members as the Class A Member Withdrawal Amount or Class A Member Partial Redemption Amount shall be treated as payments under Code section 736 (b).

4.3 Special Allocations. The following special allocations shall be made in the following order:

(a) Company Minimum Gain Chargeback. Notwithstanding the other provisions of this Article IV, except as provided in Treasury Regulation Section 1.704-2(f), if there is a net decrease in Company Minimum Gain during any Taxable Year, each Member shall

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be specially allocated items of Company income and gain for such Taxable Year (and, if necessary, subsequent Taxable Years) in an amount equal to such Member’s share of the net decrease in Company Minimum Gain, determined in accordance with Treasury Regulation Section 1.704-2(g). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Treasury Regulation Sections 1.704-2(f)(6) and 1.704-2(j)(2). This Section 4.3(a) is intended to comply with the minimum gain chargeback requirement in Treasury Regulation Section 1.704-2(f) and shall be interpreted consistently therewith.

(b) Chargeback of Minimum Gain Attributable to Member Nonrecourse Debt. Notwithstanding the other provisions of this Article IV, except as provided in Treasury Regulation Section 1.704-2(i)(4), if there is a net decrease in Member Nonrecourse Debt Minimum Gain attributable to a Member Nonrecourse Debt during any Taxable Year, each Member who has a share of the Member Nonrecourse Debt Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Treasury Regulation Section 1.704-2(i)(5), shall be specially allocated items of Company income and gain for such Taxable Year (and, if necessary, subsequent Taxable Years) in an amount equal to such Member’s share of the net decrease in Member Nonrecourse Debt, determined in accordance with Treasury Regulation Section 1.704-2(i)(4). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Treasury Regulation Sections 1.704-2(i)(4) and 1.704-2(j)(2). This Section 4.3(b) is intended to comply with the partner nonrecourse debt minimum gain chargeback requirement in Treasury Regulation Section 1.704-2(i)(4) and shall be interpreted consistently therewith.

(c) [Intentionally Omitted].

(d) [Intentionally Omitted].

(e) Nonrecourse Deductions. Nonrecourse Deductions for any Taxable Year shall be specially allocated to the Members 99.0% to the Class A Members, pro rata according to their respective Class A Units and 1.0% to the Class B Members pro rata according to their respective Class B Units.

(f) Member Nonrecourse Deductions. Any Member Nonrecourse Deductions for any Taxable Year shall be specially allocated to the Member who bears the economic risk of loss with respect to the Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable in accordance with Treasury Regulation Section 1.704-2(i)(1).

(g) Section 754 Adjustments. If the Company distributes property to a Member in liquidation of the Membership Interest of the Member and there is an adjustment in the adjusted tax basis of Company property under Section 734(b) of the Code, such that the first sentence of Treasury Regulation Section 1.704-1(b)(2)(iv)(m)(4) applies, there will be a corresponding adjustment to the Capital Account of the Member receiving the distribution. If the Company distributes cash to a Member in excess of its outside basis in its Membership Interest,

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leading to an adjustment in the inside basis of the Company property under Section 734(b) of the Code pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m)(2), then solely for purposes of adjusting Capital Accounts of the Members, the adjustment in the inside basis will be treated as gain or loss and be allocated among the Members in accordance with Section 4.2, as in effect at the time of the adjustment. This provision is intended to comply with Treasury Regulation Sections 1.704-1(b)(2)(iv)(m)(2) and (4).

4.4 Curative Allocations. The allocations required under Section 4.3(a) through (e) and (g) (the “Regulatory Allocations”) are intended to comply with certain requirements of the Treasury Regulations. It is the intent of the Members that, to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or with special allocations of other items of Company income, gain, loss or deduction pursuant to this Section 4.4. Therefore, notwithstanding any other provisions of this Article IV, the Regulatory Allocations shall be taken into account in allocating items of income, gain, loss, deduction and credit among the Members such that, to the extent possible, the net amount of allocations of such items and the Regulatory Allocations to each Member shall be equal to the net amount that would have been allocated to each Member if the Regulatory Allocations had not occurred and all Company items were allocated pursuant to Section 4.2 and Section 10.2(a)(v).

4.5 Income Tax Allocations.

(a) Except as otherwise provided in this Section 4.5, for federal, state and local income tax purposes each item of income, gain, loss and deduction of the Company shall be allocated to the Members in the same manner as such items are allocated for book purposes pursuant to this Article IV.

(b) In accordance with Code Section 704(c) and the Treasury Regulations thereunder, income, gain, loss, and deduction with respect to any property contributed to the capital of the Company shall, solely for tax purposes, be allocated among the Members so as to take account of any variation between the adjusted basis of such property to the Company for federal income tax purposes and its initial Value (computed in accordance with the definition of Value) using the remedial allocation method permitted by Treasury Regulation Section 1.704-3(d).

(c) In the event the Value of any Company Asset is adjusted pursuant to subparagraph (ii) of the definition of Value, subsequent allocations of income, gain, loss, and deduction with respect to such Asset shall take account of any variation between the adjusted basis of such Asset for federal income tax purposes and its Value in the same manner as under Code Section 704(c) and the Treasury Regulations thereunder, using the remedial allocation method permitted by Treasury Regulation Section 1.704-3(d).

(d) Any items of loss or deduction attributable to property contributed by a Member shall to the extent of an amount equal to the excess of (i) the federal income tax basis of such property at the time of its contribution over (ii) the Value of such property at such time, be allocated in its entirety to such contributing Member and the tax basis of such property for purposes of computing the amounts of all items allocated to any other Member (including a transferee of the contributing Member) shall be equal to its Value.

(e) Allocations pursuant to this Section 4.5 are solely for federal, state, and local income taxes and shall not affect, or in any way be taken into account in computing, any Member’s Capital Account or share of Profits, Losses, other items, or distributions pursuant to any provision of this Agreement.

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4.6 Other Allocation Rules.

(a) For purposes of determining the Profits, Losses, or any other items allocable to any period, Profits, Losses, and any such other items shall be determined on a daily, monthly, or other basis, as determined by the Managing Member using any permissible method under Code Section 706 and the Treasury Regulations thereunder.

(b) The Members are aware of the income tax consequences of the allocations made by this Article IV and Section 10.2(a) and hereby agree to be bound by the provisions of this Article IV and Section 10.2(a) in reporting their shares of Company income and loss for income tax purposes, unless otherwise required by law or the IRS.

(c) The Company shall not report any portion of the Facility Debt as “recourse” debt for purposes of Code Section 752 or as Member Nonrecourse Debt allocable to the Class B Member. The Company shall allocate 100% of the “excess” Nonrecourse Liabilities of the Company for purposes of Treasury Regulation Section 1.752-3(a)(3) in accordance with how the Base Case Model sets forth that the deductions attributable to such remaining Nonrecourse Liabilities will be allocated among the Members, taking into account the allocations required under Section 4.5 above (provided that such ratio shall be neither greater than 99.0% nor less than 4.95% for the Class A Members in any Fiscal Year).

(d) To the extent permitted by Treasury Regulation Section 1.704-2(h)(3), the Managing Member shall endeavor to treat distributions of Available Cash Flow as having been made from the proceeds of a Nonrecourse Liability or a Member Nonrecourse Debt only to the extent that such distributions would cause or increase a negative Adjusted Capital Account (after taking into account the adjustments provided in Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6)) for any Member.

(e) The Members acknowledge and agree that, for federal and state income tax purposes, the Company shall report (in a manner consistent with the Base Case Model) (i) electrical production as tangible property produced by the Company for purposes of Treasury Regulations Section 1.263A-1(a)(3)(ii), including the required capitalization into the cost of goods sold of cost recovery deductions pursuant to Treasury Regulations Section 1.263A-1(a)(3)(ii)(I), and (ii) that each Power Purchase Agreement is a service contract under Code section 7701(e), and the Company shall prepare the federal income tax returns and its applicable state income tax returns in a manner consistent with such treatment.

4.7 Allocations Effective Date. Consistent with Treasury Regulations Section 1.761-1(c), the provisions of this Article IV shall be effective and apply as of January 1, 2013.

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ARTICLE V

DISTRIBUTIONS

5.1 Distributions of Available Cash Flow. Subject to Article Two of the Equity Capital Contribution Agreement and Section 10.2(a)(iv) and (v), Available Cash Flow shall be distributed for each Semi-Annual Period to the Members, in the following order and priority:

(a) Subject to Sections 5.1(c), prior to the Class A Flip Point:

(i) First, to the Class B Members pro rata in accordance with their respective Class B Units until they have received cumulative distributions under this Section 5.1(a)(i) for all periods on or prior to the Class A Flip Point, equal to the aggregate amount of the Capital Contributions made by the Class B Members on or prior to the Distribution Date, minus their shares of the downward basis adjustments in respect of their allocation of basis of ITC Eligible Property pursuant to Treasury Regulation section 1.704-1(b)(2)(iv)(j) (as provided in Section 4.4(f) herein);

(ii) Second, to the Class A Members pro rata in accordance with their respective Class A Units, until they have received cumulative distributions under this Section 5.1(a)(ii) for all periods on or prior to the Class A Flip Point equal to 99% of the cumulative sum, for all Company Taxable Years that end before the Class A Flip Point and that have positive Code section 702(a)(8) net income (if any), of such cumulative Code section 702(a)(8) income of the Company; and

(iii) Thereafter, to the Class B Members pro rata in accordance with their respective Class B Units.

(b) Subject to Sections 5.1(c), on and after the Class A Flip Point:

(i) First, to the Class A Members and the Class B Members, pro rata in accordance with their respective Post-Flip Sharing Percentages, until the Class B Members have received cumulative distributions under Section 5.1(a)(i) and this Section 5.1(b)(i) for all periods equal to the difference between the aggregate amount of the Capital Contributions made by the Class B Members on or prior to the Distribution Date, minus their shares of the downward basis adjustments in respect of their allocation of basis of ITC Eligible Property pursuant to Treasury Regulation section 1.704-1(b)(2)(iv)(j) (as provided in Section 4.2(e) herein);

(ii) Second, to the Class A Members pro rata in accordance with their respective Class A Units, until they have received cumulative distributions under this Section 5.1(b)(ii) and Section 5.1(a)(ii) for all periods equal the greater of (A) 99% of the cumulative sum, for all Company Taxable Years that end before the Class A Flip Point and that have positive Code section 702(a)(8) net income (if any), of such cumulative Code section 702(a)(8) income of the Company, and (B) the Minimum Profits Distribution Amount; and

(iii) Thereafter, to the Class A Members and the Class B Members, pro rata in accordance with their respective Post-Flip Sharing Percentages.

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Provided, notwithstanding anything to the contrary in the foregoing Section 5.1(a) or (b), the Company shall accrue as a guaranteed payment for capital, and pay on each Distribution Date, prior to making any distribution pursuant to Sections 5.1(a) or (b), any balance of accrued but unpaid Preferred Distributions for prior periods, and, second, the Preferred Distribution that accrued for the current period, in each case to the Class A Members, pro rata, in proportion to their respective Class A Units for the relevant period.

(c) If the aggregate Capital Contributions made by the Class A Member on a True Up Funding Date exceed the applicable Investor Contribution Amount, then 100% of Available Cash Flow shall be distributed 100% to the Class A Member until the Class A Member has received cumulative Available Cash Flow pursuant to this Section 5.1(c) equal to such excess.

5.2 Limitation. The distributions described in this Article V shall be made only from Available Cash Flows and only to the extent that there shall be sufficient Available Cash Flows to enable the Managing Member to make payments in accordance with the terms hereof. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to a Member on account of Membership Interest if such distribution (including a return of Capital Contributions) would violate the Act or any other Applicable Law.

5.3 Withholding. Notwithstanding any other provision of this Agreement, the Company shall comply with any withholding requirements under any Applicable Law and shall remit amounts withheld to, and file required forms with, applicable taxing authorities. To the extent that the Company is required to withhold and pay over any amounts to any taxing authority with respect to distributions or allocations to any Member, the amount withheld shall be treated as a distribution of cash to such Member in the amount of such withholding. In the event of any claimed over withholding, Members shall be limited to an action against the applicable taxing authority. If an amount required to be withheld was not withheld from an actual distribution, the Company may reduce subsequent distributions by the amount of such required withholding and any penalties or interest thereon. Each Member agrees to furnish to the Company such forms or other documentation as is reasonably necessary to assist the Company in determining the extent of, and in fulfilling, its withholding obligations.

5.4 Satisfaction of Certain Obligations Under Article XI. Without limiting the rights and remedies of beneficiaries under the Guaranty:

(a) Upon receipt of a notice of a Class A Investor Claim pursuant to Section 11.1, Section 11.2 or Section 11.3, any Class B Member or its Affiliates shall have the right to cure such asserted breach and no such cure shall be an acknowledgement or agreement as to the existence or amount of such Class A Investor Claim. Within 30 days following receipt of such notice, the Class B Members shall notify the relevant indemnified parties, all other Members and the Company in writing whether the Class B Members agrees with or disputes all or a portion of such Class A Investor Claim, specifying the amount, if any, so agreed to. If the Class B Members do not deliver such notice within the time specified, the Class B Members shall be deemed to have delivered a notice on the 30th day from its receipt of notice of the Class A Investor Claims disputing the entire amount of such Class A Investor Claim.

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(b) To the extent that any Damages result from the Facility Company or the Company being held liable to a Third Party for the payment of any amounts as a result of any breach by Guarantor, the Class B Equity Investor (whether in its capacity as the Class B Member, the Managing Member, the Tax Matters Member or otherwise), the Company, the Facility Company or their respective Affiliates of their respective representations or warranties or covenants or obligations contained in this Agreement, the Equity Capital Contribution Agreement or the ASA (each such payment a “Third Party Payment”), and such Third Party Payment creates an item of deduction or loss or amortizable or depreciable basis for the Company for Capital Account purposes, then, on or before the first cash distribution under Section 5.1 made by the Company after the date on which the Class B Members deliver or are deemed to have delivered their notice under Section 5.4(a), the Class B Members shall make a Capital Contribution to the Company in an amount equal to the full amount of the Third Party Payment (or, if applicable, such lesser amount as shall have been agreed between the Class B Members and the applicable indemnified persons or such amount as shall have been finally determined by a court of competent jurisdiction).

(c) Notwithstanding the provisions of Section 5.1, with respect to any Damages relating to a Class A Investor Claim (other than as to which Section 5.4(b) applies and as to which the Capital Contribution required by Section 5.4(b) has been made or paid into the Escrow), commencing with the first cash distribution under Section 5.1 made by the Company following the date that is thirty (30) days following the date that the Class B Members agree with the Class A Investor Claims, and in each case until the date on which payment in full of the relevant Damages (or, if applicable, such lesser amount as shall have been agreed between the Class B Members and the applicable indemnified Persons or such amount as shall have been finally determined by a court of competent jurisdiction) has been made as hereafter provided in this Section 5.4(c) or as otherwise paid by the Class B Members or any of their Affiliates, (1) any distributions as to which the Class B Members and any of their respective Affiliates would otherwise be entitled hereunder shall not be paid to such Class B Member or such Affiliates until the applicable indemnified Persons shall have received payment in full of such Damages (or, if applicable, such lesser amount as shall have been agreed between the Class B Members and the applicable indemnified Persons or such amount as shall have been finally determined by a court of competent jurisdiction), and (2) all Available Cash Flow otherwise payable to the Class B Members and their respective Affiliates shall be paid over to the applicable indemnified Persons to the extent necessary to pay in full such Damages (or, if applicable, such lesser amount as shall have been agreed between the Class B Members and the applicable indemnified Person or such amount as shall have been finally determined by a court of competent jurisdiction). Upon receipt by the applicable indemnified Persons of the payment in full of such Damages (or, if applicable, such lesser amount as shall have been agreed between the Class B Members and the applicable indemnified Person or such amount as shall have been finally determined by a court of competent jurisdiction), the distributions and Available Cash Flow shall resume being distributed as required by the provisions of Section 5.1, subject to the application of this Section 5.4 to other Class A Investor Claims for Damages and the application of Section 5.5.

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(d) If the Class B Members or their respective Affiliates dispute all or a portion of any Damages in excess of $[***] then any Capital Contributions that the Class B Members or their Affiliates would have to make with respect to any Third Party Payment or for other Damages, and any distributions as to which the Class B Members or their respective Affiliates would otherwise be entitled hereunder, as applicable, in each case up to the amount of such disputed Damages, shall be paid into an escrow (the “Escrow”) maintained at a commercial bank that is a member of the Federal Reserve System organized under the laws of the United States or any state thereof and has a combined capital and surplus of at least $1,000,000,000 (the “Escrow Agent”) pursuant to an escrow agreement in such Escrow Agent’s customary form and providing as follows:

(i) funds paid into such Escrow shall be invested in Cash Equivalents (such escrowed funds together with the earnings thereon being referred to herein as the “Escrowed Funds”);

(ii) Escrowed Funds shall be disbursed by the Escrow Agent as follows:

(A) Upon the Escrow Agent’s receipt of a written notice from the Class B Members or their Affiliates, as applicable, and the applicable indemnified Persons, the Escrow Agent shall disburse Escrowed Funds to the party or parties, and in the amount or amounts, specified in such joint written notice; and

(B) Upon receipt by the Escrow Agent of a judgment or order of a court of competent jurisdiction regarding all matters relating to such Class A Investor Claims, and, if there exists a right of appeal therefrom, the expiration of the time for appealing such judgment or order without appeal of such judgment or order by any party, the Escrow Agent shall disburse the Escrowed Funds as specified in or consistent with such judgment or order.

(iii) The Class B Members or their Affiliates shall pay the Escrow Agent’s fees and charges related to the Escrow unless the amount finally determined to be payable to the indemnified Persons pursuant to subclauses (A) or (B) above is less than 75% of the amount claimed by the indemnified Persons, in which case, the indemnified Persons making the Class A Investor Claims shall bear all of the Escrow Agent’s fees and charges.

(e) Amounts paid or distributed to the indemnified Persons pursuant to this Section 5.4 shall be deemed distributed to the Class B Members and immediately paid by the Class B Members to the applicable indemnified Person. Such amount shall be grossed up and paid on an after-tax basis (assuming the highest marginal federal income tax rates then applicable to corporations and an assumed combined state and local income tax rate of 3.0% for purposes of a gross up).

(f) The Members, for themselves, their Affiliates, successors and permitted assigns, agree that, notwithstanding anything to the contrary herein or in any other agreement, including the Guaranty, (i) except as hereinafter provided, the provisions of this Section 5.4 and Article XI shall be the indemnified Persons’ sole and exclusive means of recovery in respect of this

[***] Confidential Treatment Requested

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Agreement, the Equity Capital Contribution Agreement and the Management Services Agreement for such Damages, and (ii) the indemnified Persons will not bring any action or proceeding, or take any other action, to recover any such Damages except as provided by this Section 5.4 and Article XI.

ARTICLE VI

MANAGEMENT

6.1 Managing Member.

(a) The Class B Equity Investor is hereby appointed by the Members as the initial Managing Member of the Company. Except as provided in Section 6.2 or as otherwise expressly provided herein, the Managing Member shall conduct, direct and exercise control over all activities of the Company, and shall have full power and authority on behalf of the Company to manage and administer the business and affairs of the Company and to do or cause to be done any and all acts considered by the Managing Member to be necessary or appropriate to conduct the business of the Company (including, without limitation, taking all necessary actions to cause the Company to, and to cause the Company to cause the Facility Company to, perform their respective obligations and enforce their respective rights under the Facility Documents to which it is a party and to otherwise carry out their respective purposes) without the need for approval by or any other consent from any Member, including, but not limited to, the authority to bind the Company in making contracts and incurring obligations in the Company’s name in the course of the Company’s business. Except to the extent that a Member is also the Managing Member or authority is delegated from the Managing Member, no Member shall have any authority to bind the Company; provided, that, for the avoidance of doubt, the Class A Members shall have the right to cure certain “Events of Default” under the Financing Documents in accordance therewith and the Interparty Agreement.

(b) Notwithstanding any other provision of this Article VI, in the event of the occurrence of an emergency, the Managing Member will be entitled, without having to obtain the consent of any other Member, to cause the Company to take any action that the Managing Member deems appropriate, consistent with prudent operating practices, in order to protect the interests of the Company or the Facility Company, or as required by Applicable Law (including causing the Facility Company to take any action that the Managing Member deems appropriate, consistent with prudent operating practices). It is agreed that an emergency has occurred when the Managing Member reasonably believes that the interests of the Company or Facility Company could be materially and adversely affected if such action is not taken as soon as possible, including but not limited to act of God, flood, earthquake, lightning, ice and ice storms, hurricanes, tornadoes, other natural disaster or environmental catastrophe, fire, explosion, accident, war, riot, civil disturbance, blockade or act of a public enemy.

6.2 Standard of Care; Required Consents.

(a) In carrying out its duties hereunder, the Managing Member (i) shall cause the Company to cause the Facility Company to operate the Facility and cause the Administrator to operate and manage the Facility, in accordance with the Facility Documents; provided, that, in

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performing such obligations, the Managing Member shall (A) exercise such care, skill and diligence as a reasonably prudent business company of established reputation engaged in the business of generating electricity from fuel cells would exercise in the conduct of its business and for the advancement or protection of its own interests and (B) perform such duties in accordance with applicable fuel cell industry standards, taking into account, prior to the occurrence of the Class A Flip Point, the Applicable Laws with respect to the ITC, and (ii) in instances not involving the operation or management of the Facility, shall act in good faith and in a manner reasonably believed to be in the best interests of the Company.

(b) Notwithstanding any other provision of this Agreement to the contrary, the Managing Member may not take any of the following actions without having first obtained the Consent of the Class A Members (such consent not to be unreasonably withheld or delayed):

(i) Do any act in contravention of this Agreement or of the organizational documents of the Facility Company;

(ii) Cause the Company to engage in any business or activity that is not within the purpose of the Company, as set forth in Section 2.5, or to change such purpose, or cause the Facility Company to engage in any business or activity that is not within the purpose of the organizational documents of the Facility Company or cause the Facility Company to change such purpose;

(iii) Cause the Company to be treated other than as a partnership for United States federal income tax purposes (including by electing under Treasury Regulation Section 301.7701-3 to be classified as an association) or cause the Facility Company to be treated as anything other than a disregarded entity;

(iv) Make any tax election, or cause the Company or the Facility Company to make any tax election, other than as provided herein;

(v) Admit any additional Member to the Company except as permitted under Section 9.1 hereof, or cause any additional member to be admitted to the Facility Company except upon the exercise by the lenders of their rights under the Financing Documents to foreclose on the Facility Company’s membership interests;

(vi) Cause the Company or the Facility Company to permit (A) possession of property of the Company or the Facility Company, as applicable, by any Member (unless such action is taken pursuant to the express terms of the Facility Documents), (B) the assignment, transfer or pledge of rights of the Company or the Facility Company in specific property of the Company or the Facility Company, as applicable, for other than a Company or Facility Company purpose or other than for the benefit of the Company or the Facility Company, or (C) any commingling of the funds of the Company or the Facility Company with the funds of any other Person;

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(vii) Cause the Company or the Facility Company to voluntarily and permanently remove a Facility (or a part of a Facility) from service (other than a removal from service caused by a force majeure event or casualty or pursuant to the terms of Section 2.4 or 9.7 of the MESPA or Section 2.18 or 4.3 of the MOMA);

(viii) Cause the Company or the Facility Company to require the repurchase or reacquisition of a Facility (or part of a Facility) pursuant to the terms of Section 3.2(d), 8.3(c), 8.3(d) or 9.3 of the MESPA or Section 2.5(c), 2.5(d) or 4.1(c) of the MOMA;

(ix) Upon the occurrence and during the continuation of an “Event of Default” under and as defined in the Financing Documents, and prior to the expiration of the applicable Investor Cure Period (as such term is defined in the Interparty Agreement) with respect to such “Event of Default”, causing the Company or the Facility Company to execute or consent to any amendment to any Financing Document that would materially adversely affect the Company, the Facility Company or any Member;

(x) In the case of a foreclosure sale pursuant to the Financing Documents, (A) the purchase, lease or other type of acquisition by Bloom Energy Corporation, or any Subsidiary thereof, of the membership interests in, or any Assets of, the Facility Company (unless the applicable event of default under the Financing Documents giving rise to such foreclosure sale resulted from a default by the Class A Member of a funding obligation under the Equity Capital Contribution Agreement or this Agreement) or (B) the entry by Bloom Energy Corporation, or any Subsidiary thereof, into any agreement with the purchaser of the membership interests in, or any Assets of, the Facility Company which grants Bloom Energy Corporation, or any Subsidiary thereof, operation or control of any Facility (unless the applicable event of default under the Financing Documents giving rise to such foreclosure sale resulted from a default by the Class A Member of a funding obligation under the Equity Capital Contribution Agreement or this Agreement);

(xi) If pursuant to Section 2.4(c) of the Equity Capital Contribution Agreement, the Class A Member has not acknowledged and agreed in writing that no amount is due and payable under the MESPA Initial Invoice, MESPA Final Invoice and/or otherwise under the MESPA from the Facility Company or for other applicable Facility Costs for the relevant Tranche, or that the full amount due and payable under the MESPA Initial Invoice, MESPA Final Invoice and/or otherwise under the MESPA from the Facility Company for the relevant Tranche has been paid, pay any amount from the Account or pledge the Account; or

(xii) Seek any private letter ruling from the IRS relating to the transactions contemplated hereunder.

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(c) The Managing Member shall not take any of the following actions prior to the date that is the earliest of (x) the consummation of a Buyout Event with respect to the Class A Units or the purchase by the Class B Member of the Class A Units pursuant to the Purchase Option, (y) the withdrawal of the Class A Member pursuant to Section 7.4 and (z) five (5) years after the Class A Flip Point, without having first obtained the written Consent of the Class A Members (such consent not to be unreasonably withheld or delayed):

(i) Except as provided in the Financing Documents and the Facility Documents, borrow, or cause the Company or the Facility Company to borrow, any money in the name or on behalf of the Company or the Facility Company, as applicable, in excess of $[***] in the aggregate, or execute and issue promissory notes and other negotiable or non-negotiable instruments and evidences of indebtedness in excess of $[***] in the aggregate, except the Managing Member may borrow, or cause the Company or the Facility Company to borrow money in the name and on behalf of the Company or the Facility Company, as applicable, in such amounts as the Managing Member shall reasonably determine are necessary to preserve and protect the Company’s or the Facility Company’s property upon the occurrence of an accident, catastrophe or similar event or to comply with all applicable environmental laws, ordinances, rules and regulations;

(ii) Except as provided in the Financing Documents and the Facility Documents and except for Permitted Encumbrances, mortgage, pledge, assign in trust or otherwise encumber, or cause the Company or the Facility Company to mortgage, pledge, assign in trust or otherwise encumber, any Company or Facility Company property, or to assign, or cause the Company the Facility Company to assign any monies owing or to be owing to the Company or the Facility Company except to secure the payment of any borrowing permitted hereunder and except for customary liens contained in or arising under any operating agreements, construction contracts and similar agreements executed by or binding on the Company or the Facility Company with respect to amounts not yet due or not yet delinquent (or, if delinquent, that are being contested by the Managing Member, the Company or the Facility Company in good faith and for which adequate reserves have been set aside in accordance with GAAP) or except for statutory liens for amounts not yet due or not yet delinquent (or, if delinquent, that are being contested by the Managing Member, the Company or the Facility Company in good faith and for which adequate reserves have been set aside in accordance with GAAP); provided, that in no event shall the Managing Member mortgage, pledge, assign in trust or otherwise encumber the Company’s right to receive Capital Contributions from the Members;

(iii) Except as provided in the Financing Documents and the Facility Documents, guarantee, or cause the Company or the Facility Company, as applicable, to guarantee, in the name of or on behalf of the Company or the Facility Company, the payment of money or the performance of any contract or other obligation of any person in excess of $[***] in the aggregate;

[***] Confidential Treatment Requested

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(iv) Sell, lease, transfer, assign or distribute any interest in the Facility Company or cause the Company or the Facility Company to sell, lease, transfer, assign or distribute, (i) a Facility or (ii) any Asset or related group of Assets with a Fair Market Value in excess of $[***] in one or a related series of transactions, except, in the case of each of clauses (i) or (ii), pursuant to the Power Purchase Agreements or pursuant to Section 2.4, 3.2(d), 3.6(b), 8.3(c), 8.3(d), 9.3 or 9.7 of the MESPA or Section 2.5(c), 2.5(d), 2.18, 4.1(c) or 4.3 of the MOMA;

(v) Enter into, or cause the Company or the Facility Company to enter into: (A) any amendment, modification, waiver or termination of any Facility Document or any agreement with an Affiliate of the Managing Member; (B) any substitution or replacement of any Facility Document or any agreement with an Affiliate, (C) any additional Facility Document or agreement with an Affiliate, in each case if such amendment, modification, waiver, termination, substitution, replacement or addition could reasonably be expected to have a Material Adverse Effect on the Company;

(vi) Remove the Administrator of the Facilities or appoint a new operator of the Facilities, or cause the Company or the Facility Company to remove the Administrator or to appoint a new operator;

(vii) Make, or cause the Company or the Facility Company to make, any advance payments of compensation or other consideration to the Managing Member or any of its Affiliates;

(viii) Merge or consolidate, or cause the Company or the Facility Company to merge or consolidate, the Company or the Facility Company with any Member or other Person or entity, convert, or cause the Company or the Facility Company to convert, the Company or the Facility Company to a general partnership or other entity, or agree to an exchange of interests with any other Person, or acquire all or substantially all of the Assets or stock of any other Person;

(ix) Compromise or settle, or cause the Company or the Facility Company to compromise or settle, any lawsuit, administrative matter or other dispute where the amount the Company or the Facility Company may recover or might be obligated to pay, as applicable, is in excess of $[***] in the aggregate, or which includes consent to the award of an injunction, specific performance or other equitable relief;

(x) Loan any funds of the Company or the Facility Company to any Person;

(xi) Cause the Company or the Facility Company to hire any employees, enter into or adopt any bonus, profit sharing, thrift, compensation, option, pension, retirement, savings, welfare, deferred compensation,

[***] Confidential Treatment Requested

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employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or employees of the Company or the Facility Company, as the case may be;

(xii) Cause the Company or the Facility Company to change its methods of accounting as in effect on the Effective Date, except as required by GAAP, or take any action, other than reasonable and usual actions in the ordinary course of business or specifically contemplated under the Facility Documents to which it is a party, with respect to accounting policies or procedures, unless required by GAAP;

(xiii) Cause the Company or the Facility Company to take or omit to take any action that would result in a material breach or an event of default, or that would permit or result in the acceleration of any obligation or termination of any right, under any Facility Document;

(xiv) Cause the Company or the Facility Company to consent to or approve any action which requires the consent of the Facility Company that would result in or require an adjustment to the annual operating budget for the Facility Company considered in the aggregate, and not on a line-item basis, in excess of 10% other than the following actions: (A) loan repayments, payments to the DSR Account, mandatory prepayments, retention of working capital reserves and payments to the Distribution Suspense Account, pursuant to the Financing Documents and (B) any deviation from the annual operating budget that is compensated for under the warranty provisions of the MESPA or MOMA.

(xv) Cause the Company or the Facility Company to commingle the Assets of the Facility Company with the Assets of any entity other than the Company or invest any funds of the Facility Company in any investments other than Permitted Investments;

(xvi) Cause the Company or the Facility Company to engage in any speculative energy trading;

(xvii) Enroll any portion of the real property comprising the site of the Facility in the U.S. Department of Agriculture’s Conservation Reserve Program; or

(xviii) Receive (1) any grants from the United States, a state, a political subdivision of a state, or any other Governmental Authority for use in constructing or financing any Facility or with respect to which the Class B Member, the Company, the Facility Company, or any Facility is the beneficiary. (2) any proceeds of any issue of state or local government obligations used to provide financing for any Facility the interest on which is exempt from tax under Code Section 103, (3) any subsidized energy financing (within the meaning of Code Section 45(b)(3)), directly or indirectly, under a federal, state, or local program provided in connection with any Facility.

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Notwithstanding anything contained herein to the contrary, for so long as any indebtedness or Obligations remain outstanding under the Financing Documents, each Member hereby acknowledges that the consent of certain parties to the Financing Documents, such as the Facility Lenders, may be required in connection with the Facility Company taking certain actions.

(d) Notwithstanding any other provision of this Agreement to the contrary, the Managing Member may not take any of the following actions without having first obtained the written Consent of the Members:

(i) Cause the Company or the Facility Company to change its respective legal form, recapitalize, liquidate, wind up or dissolve (other than in accordance with this Agreement), or declare itself Bankrupt; or

(ii) Amend, supplement or otherwise modify Section 2.5 or any of the definitions of capitalized terms used therein.

(e) Prior to the dissolution of the Company under the terms of this Agreement, the Managing Member shall devote such time and effort to the Company’s business as may be necessary to adequately promote the interests of the Company and the mutual interests of the Members.

(f) Notwithstanding any other provision of this Agreement to the contrary, at the written direction of the Class A Member, the Managing Member shall require the repurchase or reacquisition of all or part of a Facility, in each case, pursuant to the terms of Section 3.2(d), 8.3(c), 8.3(d) or 9.3 of the MESPA or Section 2.5(c), 2.5(d) or 4.1(c) of the MOMA.

6.3 Removal of Managing Member.

(a) The Managing Member will be subject to removal as Managing Member upon 30 days’ notice by the Consent of the Class A Members if the Managing Member (x) has engaged in gross negligence, willful misconduct or fraud, or (y) has performed any action or omitted to take any action that is in breach or violation of this Agreement and which could reasonably be expected to cause a Material Adverse Effect on the Company or the Facility Company, or (z) is declared Bankrupt; provided, however, that in the case of clause (y), the Managing Member shall have the opportunity to cure such breach or violation within 30 days of receiving notice of such breach; provided, further, that if such breach or violation cannot be cured within such period, and the Managing Member is proceeding with diligence to cure such breach, the 30-day cure period shall be extended by an additional 60 days, for a total cure period of 90 days.

(b) If the Managing Member is so removed, the Consent of the Members shall be required to elect a successor Managing Member to succeed to all the rights, and to perform all of the obligations, set forth for the Managing Member hereunder. The Member selected as the successor Managing Member shall be an entity that is experienced and reputable in operating fuel cell facilities.

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6.4 Indemnification and Exculpation.

(a) To the fullest extent permitted by Applicable Law, the Managing Member and its respective officers, directors, employees and agents shall be exculpated from, and the Company shall indemnify such Persons from and against, all Claims any of them incur by reason of any act or omission performed or omitted by such Person in a manner reasonably believed to be consistent with its rights and obligations under Applicable Law and this Agreement; provided, however, that this indemnity does not apply to Claims that are attributable to the gross negligence, willful misconduct or fraud of such Person or a breach by the Managing Member or the Class B Member or any Affiliate thereof of its covenants or representations set forth in any Investment Document or any Facility Document.

(b) To the fullest extent permitted by Applicable Law, expenses to be incurred by an indemnified Person under this Section 6.4 shall, from time to time, be advanced by or on behalf of the Company prior to the final disposition of any matter upon receipt by the Company of an undertaking from a Person with sufficient credit capacity to repay such amount if it shall be determined that the indemnified Person is not entitled to be indemnified under this Agreement.

6.5 Company Reimbursement. The Company shall directly pay and reimburse the Managing Member for all Company Reimbursable Expenses incurred from time to time.

ARTICLE VII

RIGHTS AND RESPONSIBILITIES OF MEMBERS

7.1 General. The rights and responsibilities of the Members shall be as provided in the Delaware Certificate, this Agreement and the Act.

7.2 Member Voting Rights. Except as provided in Sections 6.2(b), 6.2(c) and 6.2(d) and as otherwise expressly provided in this Agreement or as required by the Act, the consent of the Members shall not be required and the Managing Member (and not the other Members) shall have all right, power and authority to do for, on behalf of, and in the name of the Company, all things that the Managing Member deems necessary, proper or desirable to carry out its duties and responsibilities. Without limitation of the foregoing, to the extent that the consent of the Members is express required by this Agreement or the Act, except as provided in Sections 6.2(b), 6.2(c) and 6.2(d) or as otherwise expressly provided in this Agreement, the Consent of the Members shall constitute approval by, or the authorization of, any action by or on behalf of the Company that expressly requires a vote, consent, approval or action of or an election by the Members; provided, that, without the prior written approval of each Member adversely affected thereby, no such consent shall (i) modify the limited liability of a Member; (ii) require a Member to provide funds to the Company, by loan, contribution or otherwise (or amend any of the conditions to making any loan or contribution); (iii) alter the interest of any Member in Capital Accounts, Profits, Losses, distributions or Available Cash Flow; or (iv) amend, supplement or otherwise modify Sections 6.2(b), 6.2(c), 6.2(d), or this Section 7.2, or, in each case, any of the definitions of capitalized terms used therein.

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7.3 Member Liability.

(a) To the fullest extent permitted under the Act and under Applicable Law as currently or hereafter in effect, no Member shall have any personal liability whatsoever, whether to the Company or to its creditors for the debts, obligations, expenses or liabilities of the Company, whether arising in contract, tort or otherwise, which shall be solely the debts, obligations or liabilities of the Company, or for any of its losses, in excess of the value of such Member’s Capital Account, except as expressly provided herein.

(b) A Member shall be liable only to make its Capital Contributions as provided herein and in the Equity Capital Contribution Agreement and shall not be required to restore a deficit balance in its Capital Account, except as provided in Section 10.3. The failure of the Company to observe any formalities or requirements relating to the exercise of its powers or management of its business or affairs under this Agreement or the Act shall not be grounds for imposing personal liability on the Members or the Managing Member for liabilities of the Company.

7.4 Withdrawal.

(a) Except as otherwise provided in this Agreement, no Member shall be entitled to: (i) voluntarily withdraw from the Company; (ii) withdraw any part of such Member’s Capital Contributions from the Company; (iii) demand the return of such Member’s Capital Contributions; or (iv) receive property other than cash in return for such Member’s Capital Contribution.

(b) Notwithstanding any other provision of this Agreement, any Class A Member shall have the right, at any time during the six month period after the first anniversary of the Class A Flip Point, to resign and withdraw voluntarily from the Company, in whole but not in part (“Class A Member Withdrawal”), upon giving the Company and all other Members not less than 120 days’ prior written notice of an election to withdraw (the “Class A Withdrawal Notice”) during such period.

(i) Upon delivery of the Class A Withdrawal Notice, the Class A Member will thereafter have the right to receive an amount (payable in United States dollars), in satisfaction of its entire Class A Interest, equal to the lesser of (a) the Fair Market Value of the Class A Interests as of the date of delivery of the Class A Withdrawal Notice, as determined under the Appraisal Procedure, and (b) the sum of (A) any unpaid Preferred Distributions (whether or not then accrued), as of the date of delivery of the Class A Withdrawal Notice, and (B) $2,066,691 (the “Class A Withdrawal Amount”).

(ii) The Class A Withdrawal Amount shall be paid to the Class A Member from 99% of the Available Cash Flow of the Company distributed on each Distribution Date on and after the determination of the Class A Withdrawal Amount until such Class A Withdrawal Amount is paid in full. Any distributions of the Available Cash Flow to the Class A Member between the date the Class A Withdrawal Notice is given and the date the Class A Withdrawal Amount is determined shall be applied toward the Class A Withdrawal Amount.

[***] Confidential Treatment Requested

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(iii) To the extent the payments described in Section 7.4(b)(ii) do not fully pay the Class A Withdrawal Amount within 120 days of the date the Class A Withdrawal Amount is determined, the Company shall issue a note payable to the Class A Member in a principal amount equal to that shortfall, having a five (5) year level monthly amortization at the applicable Federal rate under Section 1274(d) of the Code, and otherwise substantially in the form of Exhibit C (the “Class A Withdrawal Note”). The Class B Members shall pledge their Class B Interests to secure the Class A Withdrawal Note pursuant to a pledge agreement substantially in the same form as the pledge agreement under the Financing Documents.

(iv) Upon the earlier of the payment in full of the Class A Withdrawal Amount under clause (ii) or the issuance of the Class A Withdrawal Note, the Class A Interest of the withdrawing Class A Member shall be canceled and such Class A Member shall be considered to have voluntarily withdrawn for purposes of Section 18-603 of the Act. All reasonable costs associated with the withdrawal of a Class A Member, including but not limited to, legal, accounting, tax preparation and audit costs, shall be borne by the Class B Member.

(c) [Intentionally Omitted].

(d) If either (i) any Facility is repurchased or reacquired pursuant to Section 2.4, 3.2(d), 3.6(b), 8.3(c), 8.3(d), 9.3 or 9.7 of the MESPA or Section 2.5(c), 2.5(d), 2.18, 4.1(c) or 4.3 of the MOMA, or the Class A Member does not give the written acknowledgement and agreement provided in Section 2.4(c) of the Equity Capital Contribution Agreement in respect of a Facility, then notwithstanding any other provision of this Agreement (a “Class A Member Partial Redemption Event”), any Class A Member shall have the right, at any time during the six-month period following such Class A Partial Redemption event, to partially redeem and withdraw voluntarily from the Company, (a “Class A Member Partial Redemption”), upon giving the Company and all other Members prior written notice of an election to withdraw (the “Class A Member Partial Redemption Notice”) during such period. Upon such Class A Member Partial Redemption, the Value of all Assets of the Company shall be adjusted to equal their respective gross Fair Market Values, as determined by the Members pursuant to clause (ii) of the definition of “Value”. Upon delivery of the Class A Member Partial Redemption Notice, the Class A Member will thereafter have the right to receive an amount (payable in United States dollars), in satisfaction of that part of its Class A Interest in Company Assets for which the Class A Partial Redemption Event has occurred, equal to the lesser of (i) the Class A Investment Balance in respect of the applicable Company Assets and (ii) its Adjusted Capital Account balance (the “Class A Member Partial Redemption Amount”). Upon a Class A Member Partial Redemption Event, any and all Available Capital Income Cash Flow and Available PPA Termination Cash Flow shall be retained by the Company and not distributed until the earlier the delivery of the Class A Member Partial Redemption Notice and the end of the six-month period for which that notice may be given. The Class A Member Partial Redemption Amount shall be

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paid to the Class A Member from 99% of the Available Cash Flow of the Company distributed on each Distribution Date on and after the determination of such Class A Member Partial Redemption Amount until such amount is paid in full. Upon the payment in full of the Class A Member Partial Redemption Amount, that portion of the Class A Interest of the withdrawing Class A Member in respect of the applicable Company Assets shall be canceled, such Class A Member shall be considered to have voluntarily partially withdrawn for purposes of Section 18-603 of the Act, and such Class A Member shall have no interest in respect of those Company Assets (including any proceeds therefrom). All reasonable costs associated with the partial withdrawal of a Class A Member, including but not limited to, legal, accounting, tax preparation and audit costs, shall be borne by the Class B Member.

7.5 Member Compensation. No Member shall receive any interest, compensation or drawing with respect to its Capital Contributions or its Capital Account or for services rendered on behalf of the Company or otherwise, in its capacity as a Member, except as otherwise provided in this Agreement or the ASA.

7.6 Other Ventures. Notwithstanding any other provision of this Agreement or any duty existing at law or in equity, the Members (including the Managing Member) and their respective Affiliates at any time and from time to time may engage in and possess interests in other business ventures of any and every type and description, including other business ventures competitive with, or of the same type and description as, the Company and the Facility Company, independently or with others.

7.7 Confidential Information.

(a) With respect to each of the Company and the Members, except to the extent necessary for the exercise of its rights and remedies and the performance of its obligations under this Agreement or otherwise with respect to the Facility Company or the Facility, such Member will not itself use or intentionally disclose (and will not permit the use or disclosure by any of its Affiliates, any of the officers, directors or employees of it or its Affiliates (collectively, “Representatives”), or any of its advisors, counsel and public accountants (collectively, “Advisors”)), directly or indirectly, any of the Facility Documents, this Agreement or other confidential information in respect of the transactions contemplated hereby (“Confidential Information”); provided, that (i) any such Member and its Affiliates, Representatives and Advisors may use and disclose Confidential Information to such Member’s Affiliates, Representatives and Advisors and to any other Member and its Affiliates, Representatives and Advisors, (ii) any such Member and its Affiliates, Representatives and Advisors may use and disclose Confidential Information that (A) has been publicly disclosed or is publicly known (other than by such Member or any of its Affiliates, Representatives or Advisors in breach of this Section 7.7), (B) has come into the possession of such Member or any of its Affiliates, Representatives or Advisors other than in connection with the transactions contemplated by this Agreement, or (C) has been independently developed by such Member or any of its Affiliates, Representatives or Advisors without use of information obtained under this Agreement, (iii) to the extent that that such disclosure is required by law, a subpoena or any other applicable legal process or by a Governmental Authority having jurisdiction over such Member or its Affiliates, such Member may disclose Confidential Information provided that in such case such Member

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shall, unless otherwise prohibited by law, (1) give prompt notice to the other Members that such disclosure is or may be required and (2) cooperate in protecting such confidential or proprietary nature of the Confidential Information which must so be disclosed; provided, that no such notification shall be required in respect of any disclosure to bank, insurance or financial industry regulatory authorities having jurisdiction over such Member or its Affiliates, (iv) disclosures to lenders, potential lenders or other Persons providing financing to the Company or to the Facility Company or to their respective representatives and advisors, any Member or any Affiliate of any Member and potential purchasers of equity interests in the Company, any Member or any Affiliate of any Member are permitted if such Persons have agreed to abide by the terms of this Section 7.7 or have otherwise entered into an agreement with restrictions on disclosure substantially similar to the terms of this Section 7.7 (or in the case of advisors, are otherwise bound by professional or legal obligations of confidentiality), (v) any such Member and its Affiliates, Representatives and Advisors may disclose Confidential Information, and make such filings, as may be required by this Agreement or the Facility Documents, (vi) any Member which is an insurance company or an Affiliate thereof may disclose such information to the National Association of Insurance Commissioners and any rating agency requiring access to its portfolio, (vii) the Class B Equity Investor and its Affiliates, Representatives and Advisors may disclose Confidential Information relating to the Facilities (but not Confidential Information relating to any Member) to lenders, potential lenders or other Persons providing financing to any Person developing or proposing to develop the remaining phases of the Facilities and potential purchasers of equity interests in such Person or potential power or renewable energy credits purchasers from such Persons, or to any Person in connection with the operation of the Facilities, and (viii) any such Member may disclose Confidential Information to the United States Department of Treasury, the IRS or any state taxing authority in connection with any communication regarding the tax consequences of the Facilities, Facility Company’s ownership and operation of the Facilities, Company’s ownership of an interest in the Facility Company or such Member’s ownership of an interest in the Company; provided, that such Member shall, as soon as practicable, notify the Class B Equity Investor of such disclosure, furnish a copy of any written material provided to the IRS or any state taxing authority to the Class B Equity Investor and, if practicable, afford the Class B Equity Investor reasonable opportunity to comment on the proposed disclosure (but for the avoidance of doubt the Class B Equity Investor will not have the right to consent to such proposed disclosure). A Member’s obligations pursuant to this Article VII shall survive the Transfer of its Units. Notwithstanding anything herein to the contrary, the Class B Equity Investor and any of its Affiliates (including Affiliates formed subsequent to the date hereof) may use any operational data with respect to the Facilities for the purpose of researching, analyzing, designing, improving, developing, manufacturing, installing, modifying or operating other fuel cell-powered electric generating facilities, whether similar to or different from the Facilities.

(b) The foregoing obligations shall not apply to the tax treatment or tax structure of the transactions contemplated hereby and each Member (and any employee, representative, or agent of any Member) may disclose to any and all Persons, without limitation of any kind, the tax treatment and tax structure of the transactions contemplated hereby and all other materials of any kind (including opinions or other tax analysis) that are provided to any Member relating to such tax treatment and tax structure (all such information that may be disclosed being the “Tax Information”). However, any such Tax Information is required to be kept confidential

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to the extent necessary to comply with any applicable securities laws. The preceding sentences are intended to cause the transactions contemplated hereby not to be treated as having been offered under conditions of confidentiality for purposes of Sections 1.6011-4(b)(3) and 301.6111-2(a)(2)(ii) (or any successor provision) of the Treasury Regulations issued under the Code and shall be construed in a manner consistent with such purpose. For purposes of this provision, the Tax Information includes only those facts that may be relevant to understanding the purported or claimed U.S. federal income tax treatment or tax structure of the transactions contemplated hereby and, to eliminate any doubt, therefore specifically does not include information that either reveals or standing alone or in the aggregate with other information so disclosed tends of itself to reveal or allow the recipient of the information to ascertain the identity of any Company, any Member or the Class B Equity Investor (or potential member), or any other third parties involved in any of the transactions contemplated hereby or any other potential transactions with any of the foregoing.

(c) Except as otherwise permitted by this Section 7.7, no Member shall include in a press release or otherwise disclose (other than as required to be included in a filing to any bank, insurance or financial industry regulatory authority having jurisdiction over such Member, its affiliates, permitted transferees, any security exchange or the Securities Exchange Commission or as required by Applicable Law) the name of any Member as an equity investor or potential equity investor without the prior written consent of such Member which consent shall not be unreasonably withheld.

(d) If the Company or any subsidiary thereof is required at any time to make any regulatory filing that identifies by name, or otherwise relates specifically to, any Member or any of its Affiliates or permitted transferees, then the Company shall submit (or the Company shall cause its subsidiary to submit) an advance draft of such regulatory filing to such Member or its Affiliate or permitted transferee, as applicable, and each such Member shall cooperate and shall provide such information as is necessary to complete such filing. Such Member (or its Affiliate or permitted transferee, as applicable) shall have the right to provide comments to such regulatory filing as it relates to such Member (or its Affiliate or permitted transferee), and the Company or its subsidiary shall incorporate or accommodate, prior to submitting such filing, such comments.

(e) If any Member is required at any time to make any regulatory filing (other than a filing to any bank, insurance or financial industry regulatory authority having jurisdiction over such Member or its affiliates) that identifies by name, or otherwise relates specifically to, any other Member, then such Member shall submit an advance draft of the relevant portions of such regulatory filing to such other Member. Such other Member shall have the right to provide comments to such regulatory filing as it relates to such other Member, and the Member making such filing shall incorporate or accommodate, prior to submitting such filing, such comments.

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ARTICLE VIII

ADMINISTRATIVE AND TAX MATTERS

8.1 Intent for Income Tax Purposes. The Members intend that the Company be treated as a partnership for federal, state and local income tax purposes and that it be operated in a manner consistent with such treatment, but that the Company not be operated or treated as a “partnership” for any other purpose, including, but not limited to, Section 303 of the Federal Bankruptcy Code, and the provisions of this Agreement may not be construed to suggest otherwise. The Members intend that the Facility Company be treated as a disregarded entity for federal, state and local tax purposes.

8.2 Books and Records. The Company’s books of account shall be prepared and maintained in accordance with generally accepted accounting principles for the type of business of the Company. The Managing Member shall cause to be kept, at the principal place of business of the Company, full and proper ledgers and other books of account of all receipts and disbursements and other financial activities of the Company, including the following documents:

(a) A copy of the certificate of formation of the Company and the Facility Company and all certificates of amendment thereto, together with executed copies of any powers of attorney pursuant to which any certificate has been executed;

(b) Copies of the Company’s and the Facility Company’s federal, state and local income tax or information returns and reports (including any information or reports pertaining to any tax elections made by the Company or the Facility Company), if any, for the six (6) most recent Taxable Years of the Company;

(c) Copies of the Prior LLC Agreement, this Agreement and all amendments thereto;

(d) Copies of the constituent documents in respect of the Facility Company;

(e) Financial statements, including a consolidated balance sheet and consolidated statements of income (or loss), of the Company and its consolidated subsidiaries for, to the extent applicable, each of the six (6) most recent Fiscal Years, including quarterly and monthly internal consolidated financial statements of the Company; and

(f) The Company’s books and records for at least the current and, to the extent applicable, the past three (3) Fiscal Years.

8.3 Information and Access Rights. The Members and their respective agents will have the right, at their sole risk and expense and upon reasonable prior notice to the Managing Member, to inspect the Facilities and all relevant books and records relating thereto and make copies thereof. Any such inspection will be conducted during normal business hours and so as not to unreasonably interfere with the business of the Managing Member.

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8.4 Reports. The Managing Member shall, at the Company’s expense, deliver, or caused to be delivered to each Member, the following reports, information and financial statements at the times indicated below:

(a) Annually, within 120 days after the end of each calendar year (as such dates may be extended or waived by the applicable Members), audited consolidated financial statements and report for the Company and its consolidated subsidiaries, prepared by the Certified Public Accountant, prepared on a GAAP basis effective as of the end of the immediately-preceding year, including a consolidated balance sheet and consolidated statements of income, members’ equity and changes in cash flows (the “Annual Report”) and accompanied by a report of such accounting firm stating that their examination was made in accordance with generally accepted auditing standards and that in their opinion such financial statements and Annual Report of the Company and its consolidated subsidiaries fairly present the Company’s and its consolidated subsidiaries’ cash flows, results of operations and changes in financial position on a GAAP basis;

(b) Within 30 days after the end of each calendar quarter, unaudited quarterly financial statements of the Company and its consolidated subsidiaries for such period and portion of the calendar year then ended, all in reasonable detail and fairly presenting the financial position of the Company and its consolidated subsidiaries, as of the end of such quarter, on a GAAP basis, subject to lack of footnotes and normal year-end adjustments;

(c) Annually, within 120 days after the end of each calendar year, audited consolidated financial statements and report for Guarantor and its consolidated subsidiaries, prepared by an independent national accounting firm selected by Guarantor, prepared on a GAAP basis effective as of the end of the immediately-preceding year, including a consolidated balance sheet and consolidated statements of income, members’ equity and changes in cash flows, in each case accompanied by a report of such accounting firm stating that their examination was made in accordance with generally accepted auditing standards and that in their opinion such financial statements fairly present Guarantor’s and its consolidated subsidiaries cash flows, results of operations and changes in financial position on a GAAP basis;

(d) Within 30 days after the end of each calendar quarter, unaudited quarterly financial statements of the Guarantor and its consolidated subsidiaries for such period and portion of the calendar year then ended, all in reasonable detail and fairly presenting the financial position of the Guarantor and its consolidated subsidiaries, as of the end of such quarter, on a GAAP basis, subject to lack of footnotes and normal year-end adjustments;

(e) Quarterly, within 30 days after the end of each calendar quarter, a report setting forth (1) the kilowatt hours of electricity produced and sold during such quarter from the Facility, (2) the revenues and expenses of the Facility for the most recent available quarter, (3) in the case of the calendar quarters ending after January 31st, the same information set forth in (1) through (2) on a cumulative basis since the beginning of the Fiscal Year, and (4) a quarter and year to date performance versus budget, variance analysis and a short narrative regarding key operating events and issues;

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(f) Quarterly, within 30 days after the end of each calendar quarter, a Quarterly Renewable Energy Certificate for such period, substantially in the form of Exhibit D attached hereto;

(g) Monthly, within 15 days after the end of each calendar month, starting as of the date of the first Funding Date until the date that Commencement of Operations has occurred for each Facility, a Renewable Energy Monthly Report for such month, in the form of Exhibit E attached hereto;

(h) Annually, within 30 days prior to the start of each calendar year, the annual capital and operating budgets for the Company and the Facility Company;

(i) Promptly upon becoming aware of any such event or circumstance, notice of (i) any material litigation pending or, to the knowledge of the Managing Member, threatened against the Facility Company or the Company and (ii) any material event of default under the Facility Documents;

(j) Within 30 days after renewal, copies of policies of insurance maintained by or on behalf of the Company or any of its subsidiaries, including current certificates of insurance; and

(k) Promptly following any request therefor, such other reports and information in the possession of the Managing Member as reasonably requested by the Members and such other reports reasonably requested by and paid for by the requesting Member to the extent external costs are incurred with respect to the preparation of such reports.

8.5 Permitted Investments. All cash of the Company may only be invested and reinvested in one of the following investment alternatives (“Permitted Investments”) (but not directly or indirectly in any “public utility” or “holding company” as defined in the FPA unless any applicable FERC approval has been obtained):

(a) Direct obligations of the United States of America (including obligations issued or held in book-entry form on the books of the Department of the Treasury of the United States of America) or obligations the timely payment of the principal of and interest on which are fully guaranteed by the United States of America;

(b) Obligations, debentures, notes or other evidence of Indebtedness issued or guaranteed by any of the following: Export-Import Bank of the United States, Federal Housing Administration or other agency or instrumentality of the United States;

(c) Interest-bearing demand or time deposits (including certificates of deposit) which are either:

(i) insured by the Federal Deposit Insurance Corporation, or

(ii) held in banks and savings and loan associations, having general obligations rated at least “AA” or equivalent by S&P or Moody’s, or if not so

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rated, secured at all times, in the manner and to the extent provided by law, by collateral security described in clauses (a) or (b) of this definition, of a market value of no less than the amount of moneys so invested;

(d) Obligations of any state of the United States or any agency or instrumentality of any of the foregoing which are rated at least “AA” by S&P or at least “Aa” by Moody’s;

(e) Commercial paper rated (on the date of acquisition thereof) at least A-1 or P-1 or equivalent by S&P or Moody’s, respectively (or an equivalent rating by another nationally recognized credit rating agency of similar standing if neither of such corporations is then in the business of rating commercial paper), maturing not more than 90 days from the date of creation thereof but excluding any such commercial paper issued by any Member or any Affiliate of the Managing Member; or (f) Any other investments agreed to by the Members and the Managing Member.

8.6 Tax Elections. The Managing Member shall make the following federal income tax elections on the appropriate Company tax returns:

(a) To the extent permitted under Code Section 706, to elect the calendar year as the Company’s Taxable Year;

(b) To elect the accrual method of accounting;

(c) To elect to amortize any organizational and start-up expenses of the Company ratably over a period of 180 months as permitted by Code Sections 709(b);

(d) To make any election necessary to claim an ITC equal to at least the ITC Amount;

(e) If a distribution of the Company’s property as described in Section 734 of the Code occurs or a transfer of Membership Interest as described in Section 743 of the Code occurs to elect pursuant to Section 754 of the Code to adjust the basis of the Company’s properties;

(f) To elect out any and all “bonus depreciation” otherwise available in respect of the Facilities under Section 168(k) of the Code;

(g) As shall be directed by the Class A Member in writing to the Managing Member at least one Business Day before such election must be made by the Company:

(i) To elect the straight line method in respect to one or more classes of Company property under Code Section 168 (b)(5), and/or

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(ii) To elect the alternative depreciation system in respect of one or more classes of Company property under Section 168(g)(7) of the Code; and/or

(iii) To elect to exclude any Company property from Code section 168 under Section 168(f)(1) of the Code and use a method of depreciation described in Code Section 168(f)(1)(B); and

(h) To elect under Section 6231(a)(1)(B)(ii) of the Code and the Treasury Regulation thereunder to treat the Company as a partnership to which the provisions of Sections 6221 through 6234 of the Code, inclusive, apply.

(i) To elect to include “advance payments” made to the Project Company in accordance with Treasury Regulation Section 1.451-5(b)(1)(ii) and comply with all associated requirements thereunder, including the reporting obligation set forth in Treasury Regulation Section 1.451-5(d). The Project Company shall treat the amount paid or assigned to the Project Company pursuant to Section 6.8 of the Wal-Mart PPA as such an “advance payment”.

The Managing Member shall make no other tax elections for the Company, except as otherwise provided herein, without the written Consent of the Members, such consent not to be unreasonably withheld; provided, however, that the Managing Member may, subject to the limitation that the Tax Return shall be filed no later than August 1st of the year following the Company’s Taxable Year, elect to extend the time for filing any Company tax return as provided for under the Code and applicable State statutes; and provided, further, however, based upon current Knowledge of the facts pertaining to the transaction as of the date hereof, the Company will not report the transaction to the IRS as a “reportable transaction” pursuant to Code Section 6111, the relevant Treasury Regulations and any other administrative authorities or pronouncements, in each case as they exist on the date hereof (provided, however, that if such facts or law change in a manner affecting the reportability of the transaction, the specific covenant within this proviso shall not be applicable to the Company). Neither the Company nor any Member may make an election for the Company to be excluded from the application of the provisions of subchapter K of chapter 1 of subtitle A of the Code or any similar provisions of any state Applicable Law. No Member, Managing Member, officer or agent of the Company is authorized to, or may, file IRS Form 8832 (or such alternative or successor form) to elect to have the Company or the Facility Company classified as a corporation for federal income tax purposes under Regulation Section 301.7701-3. The Managing Member shall, in addition, affirmatively take such action within its control as may be necessary or required to maintain the status of the Company as a partnership and the Facility Company as a disregarded entity for federal, state and local income tax purposes.

8.7 Tax Matters Member and Company Tax Filings.

(a) The Class B Equity Investor shall be, and so long as it continues to be the Managing Member, shall continue to be, the “tax matters partner” of the Company pursuant to Section 6231(a)(7) of the Code (the “Tax Matters Member”); provided, that if the Class B Equity Investor is no longer the Managing Member, the Person selected as the successor Managing Member pursuant to Section 6.3(b) shall appoint a new Tax Matters Member. At the request of any other Member, the Tax Matters Member shall take such action as may be necessary

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to cause, to the extent possible, such other Member to become a “notice partner” within the meaning of Sections 6231(a)(8) and 6223 of the Code. The Tax Matters Member shall provide the Members all notices and other written communications received by the Tax Matters Member from the IRS or sent by the Tax Matters Member to the IRS, relating to the Company. The Tax Matters Member shall provide the Members with reasonable opportunity to review and comment on any written communications to the IRS. The Tax Matters Member shall provide Members with prompt written notice of all meetings or conferences with the IRS and the Members shall have the right to attend all such meetings and conferences at their expense.

(b) Without the Consent of the Class A Members, the Tax Matters Member shall not (i) commence a judicial action (including filing a petition as contemplated in Section 6226(a) or 6228 of the Code) with respect to a federal income tax matter or appeal any adverse determination of a judicial tribunal; (ii) enter into a settlement agreement with the IRS; (iii) intervene in any action as contemplated by Section 6226(b) of the Code; (iv) file any request contemplated in Section 6227 of the Code; or (v) enter into an agreement extending the period of limitations as contemplated in Section 6229(b)(1)(B) of Code. Subject to the immediately preceding sentence, the Tax Matters Member shall have the right to defend against any proposed adjustments with respect to any “partnership item” (as defined in Section 6231(a)(3) of the Code) in the manner provided, and to the extent consistent with, Sections 6221 through 6223 of the Code and the Treasury Regulations issued thereunder. With respect to any other partnership item of the Company not covered by the two preceding sentences, if any Member intends to file, pursuant to Section 6227 of the Code, a request for an administrative adjustment of any such partnership item of the Company, or to file a petition under Sections 6226, 6228 or other Sections of the Code with respect to any such partnership item or any other tax matter involving the Company, such Member shall, at least [***] days prior to any such filing, notify the other Members of such intent, which notification must include a reasonable description of the contemplated action and the reasons for such action. Any cost or expense incurred by the Tax Matters Member in connection with its duties, including, if relevant, the preparation for or pursuance of administrative or judicial proceedings, shall be paid by the Company.

(c) The Tax Matters Member shall prepare, or cause to be prepared, and timely file (on behalf of the Company) all federal, state and local tax returns required to be filed by the Company. Each Member shall furnish to the Tax Matters Member all pertinent information in its possession relating to the Company’s operations that is reasonably necessary to enable the Company’s tax returns to be timely prepared and filed. The Tax Matters Member shall prepare, or cause to be prepared, the Company’s federal income tax return (including K-1s) (the “Tax Return”) on a basis consistent with this Agreement and the assumptions contained in the Base Case Model, except to the extent such inconsistency is the result of either (x) an ITC Loss Event, or (y) any final determination under a federal income tax audit or administrative or judicial proceeding of such a federal income tax return for a prior period making an adjustment to an item of such federal income tax return (provided that such audit or administrative or judicial proceeding is prosecuted by the Company materially in the manner required by this Section 8.7) (a “Consistent Return”). The Tax Matters Member shall use commercially reasonable efforts to furnish to the Members, by no later than the 120 days following each Taxable Year, the Tax Return proposed to be filed by the Tax Matters Member. The Tax Matters Member shall furnish to the Members reasonable estimates (broken down by item and character of income, loss,

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deduction or credit) prior to the date 75 days after the end of the Taxable Year. In the event that the Tax Matters Member anticipates furnishing to the Members a Tax Return that is not a Consistent Return, the Tax Matters Member shall notify the Members in writing no less than 30 days prior to the date on which it intends to furnish such Tax Return that such Tax Return will not be a Consistent Return, other than inconsistencies solely relating to variances in the anticipated operating results of the Facilities. If a Tax Return is timely objected to by the Class A Members, the Tax Matters Member shall submit such Tax Return, together with copies of all relevant workpapers used in preparation thereof, to a nationally recognized firm (other than the Certified Public Accountant) of independent public accountants or, if related to a legal matter, a law firm, in each case, selected by the Class A Member. The determination of such independent expert, and the Tax Return as completed by such expert, shall be final and binding on the Members, and the Tax Matters Member shall cause such final Tax Return to be filed. The Company shall bear the costs of the preparation and filing of its returns, including the fees of the independent expert. In no event shall any Tax Return be filed later than August 1^st.

(d) The provisions of this Article VIII will survive the termination of the Company or the termination of any Member’s interest in the Company and will remain binding on the Member for the period of time necessary to resolve with the IRS or other federal tax agency any and all federal income tax matters relating to the Company that are subject to Code Sections 6221 through 6233.

8.8 Financial Accounting. Each Member may report the transactions contemplated hereby for financial accounting purposes in such manner as the Member and its accountants may determine appropriate.

8.9 Legend. Until (a) the securities representing ownership of membership interests in the Company are effectively registered under the Securities Act of 1993, as amended, or (b) the holder of such securities delivers to the Company a written opinion of counsel of such holder to the effect that such legend is no longer necessary under the Securities Act of 1933, as amended, the Company will cause each certificate representing its securities to be stamped or otherwise imprinted with the following legend:

THE MEMBERSHIP INTEREST REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAW OF ANY STATE. SUCH MEMBERSHIP INTEREST MAY NOT BE SOLD OR TRANSFERRED UNLESS SUBSEQUENTLY REGISTERED OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE. THIS CERTIFICATE EVIDENCES AN INTEREST IN 2012 V PPA HOLDCO, LLC AND SHALL BE A SECURITY GOVERNED BY ARTICLE 8 OF THE UNIFORM COMMERCIAL CODE AS IN EFFECT FROM TIME TO TIME IN THE STATES OF DELAWARE AND NEW YORK AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OTHER APPLICABLE JURISDICTION.

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8.10 Representations, Warranties and Covenants of the Class B Member. The Class B Member represents and warrants on the Effective Date and covenants as follows:

(a) The Class B Member is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware.

(b) The Class B Member has the full limited liability company right, power and authority to perform its obligations hereunder.

(c) This Agreement is a legal valid and binding obligation of the Class B Member enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and by general equitable principles.

(d) Such Member (or if it is a disregarded entity, or if it and its owner are disregarded entities, its owner or its owner’s owner) is and will remain a United States person within the meaning of Section 7701(a)(30) of the Code and is not, and will not become, subject to withholding under Section 1446 of the Code.

(e) That either (A) no part of the aggregate Capital Contributions made by such Member and used by such Member to acquire any Units, constitutes “plan assets” within the meaning of Department of Labor Reg. §2510.3-101 of any “employee benefit plan” within the meaning of Section 3(3) of ERISA, or other “benefit plan investor” (as defined in U.S. Department of Labor Reg. §§2510.3-101 et seq. or in Section 3(42) of ERISA) or assets allocated to any insurance company separate account or general account in which any such employee benefit plan or benefit plan investor (or related trust) has any interest or (B) the source of the funding used to pay the Capital Contributions made by such Member is an “insurance company general account” within the meaning of Department of Labor Prohibited Transaction Exemption 95-60, issued July 12, 1995, and there is no employee benefit plan, treating as a single plan all plans maintained by the same employer or employee organization, with respect to which the amount of the general account reserves and liabilities for all contracts held by or on behalf of such plan exceeds ten percent (10%) of the total reserves and liabilities of such general account (exclusive of separate account liabilities) plus surplus, as set forth in the National Association of Insurance Commissioners “Annual Statement” filed with such Member’s state of domicile.

(f) The Class B Member is and will remain for federal income tax purposes a corporation (and not an S corporation) that is neither a Disqualified Person nor a disregarded entity; provided, however, if, for federal income tax purposes, a Class B Member is a disregarded entity, then each beneficial owner of such Class B Member (or if such beneficial owner is a partnership or disregarded entity, then each beneficial owner of such partnership or disregarded entity) is and will remain an individual or corporation (and not an S corporation or disregarded entity) that is neither a Disqualified Person nor a disregarded entity for federal income tax purposes.

(g) The Class B Member will not take any action that would cause (or fail to take any action within its reasonable control, and not prohibited under any Financing Document or Principal Facility Document to prevent) (i) the Assets of the Company to become (A) except as

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provided in Section 8.6(g), subject to the alternative depreciation system within the meaning of Section 168(g) of the Code or (B) except as a result of a Class A ITC Loss Event, “tax-exempt use property” within the meaning of Section 168(h) of the Code, or (ii) any portion of the basis of any Facility to be attributable to “qualified rehabilitation expenditures” within the meaning of Section 47 (c)(2)(A) of the Code.

(h) Based upon its Knowledge of the facts pertaining to the transaction as of the date hereof, the Class B Member will not report the transaction to the IRS as a “reportable transaction” pursuant to Code Section 6111, the relevant Treasury Regulations and any other administrative authorities or pronouncements, in each case as they exist on the date hereof; provided, however, that if such facts or law change in a manner affecting the reportability of the transaction, this covenant shall not be applicable.

(i) The Class B Member shall not become either a “related person” with respect to any lender under the Financing Documents for purposes of Treasury Regulation Section 1.752- 4(b).

(j) Prior to the Class A Flip Point, the Company shall not become a “related person” to any purchaser under any power purchase agreement for power delivered from a Facility for purposes of Sections 267 or 707 of the Code, assuming the Company is not a “related person” on account of a relationship with any Class A Member or any Affiliate thereof.

8.11 Representations, Warranties and Covenants of the Class A Member. The Class A Member represents and warrants on the Effective Date and covenants to the Class B Member as follows:

(a) It is an entity duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.

(b) It has the full right, power and authority to perform its obligations hereunder.

(c) This Agreement is a legal valid and binding obligation of such Member enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and by general equitable principles.

(d) It (or if it is a disregarded entity, its owner) is a United States person within the meaning of Section 7701(a)(30) of the Code and is not subject to withholding under Section 1446 of the Code.

(e) That either (A) no part of the aggregate Capital Contributions made by such Member and used by such Member to acquire any Units, constitutes “plan assets” within the meaning of Department of Labor Reg. §2510.3-101 of any “employee benefit plan” within the meaning of Section 3(3) of ERISA, or other “benefit plan investor” (as defined in U.S. Department of Labor Reg. §§2510.3-101 et seq. or in Section 3(42) of ERISA) or assets allocated to any insurance company separate account or general account in which any such employee

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benefit plan or benefit plan investor (or related trust) has any interest or (B) the source of the funding used to pay the Capital Contributions made by such Member is an “insurance company general account” within the meaning of Department of Labor Prohibited Transaction Exemption 95-60, issued July 12, 1995, and there is no employee benefit plan, treating as a single plan all plans maintained by the same employer or employee organization, with respect to which the amount of the general account reserves and liabilities for all contracts held by or on behalf of such plan exceeds ten percent (10%) of the total reserves and liabilities of such general account (exclusive of separate account liabilities) plus surplus, as set forth in the National Association of Insurance Commissioners “Annual Statement” filed with such Member’s state of domicile.

(f) Based upon its Knowledge of the facts pertaining to the transaction as of the date hereof, it will not report the transaction to the IRS as a “reportable transaction” pursuant to Code Section 6111, the relevant Treasury Regulations and any other administrative authorities or pronouncements, in each case as they exist on the date hereof; provided, however, that if such facts or law change in a manner affecting the reportability of the transaction, this covenant shall not be applicable.

8.12 Survival. The representations, warranties and covenants herein shall be continuing agreements of the Members that made them and shall continue until the termination of this Agreement.

8.13 No Breach of Obligations. Notwithstanding anything to the contrary contained herein, in no event shall it be a breach of the Managing Member’s obligations pursuant to this Article VIII to deliver any report, financial statement or Tax Return within the specified timeframes to the extent any failure to comply with such obligations is attributable to either the failure of any Member to grant or object to any consent required pursuant to the terms hereof necessary to enable the Managing Member to comply with such obligations.

ARTICLE IX

TRANSFERS OF INTERESTS; PURCHASE OPTION; FLIP

9.1 Transfer and Encumbrances of Membership Interests.

(a) General Restriction. A Member may not Transfer or create or allow an Encumbrance (other than a Permitted Encumbrance of the type described in clause (n) of such term’s definition) on all or any portion of its Membership Interest, except in strict accordance with this Section 9.1. References in this Agreement to Transfers or Encumbrances of a “Membership Interest” shall also refer to Transfers or Encumbrances of a portion of a Membership Interest. Any attempted Transfer or Encumbrance of any Membership Interest, other than in strict accordance with this Section 9.1, shall be, and is hereby declared, null and void ab initio. The Members agree that a breach of the provisions of this Section 9.1 may cause irreparable injury to the Company and to the other Members for which monetary damages (or other remedy at law) are inadequate in view of (i) the complexities and uncertainties in measuring the actual damages that would be sustained by reason of the failure of a Member to comply with

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such provision and (ii) the uniqueness of the Company’s business and the relationship among the Members. Accordingly, the Members agree that the provisions of this Section 9.1 may be enforced by specific performance.

(b) Transfers of Membership Interests.

(i) General Provision. A Member may not Transfer all or any portion of its Membership Interest except by complying with all of the following requirements:

(A) Requirements. The following rules apply:

(1) No Transfer by the Class B Member may be made at any time without the prior written consent of the Class A Members (such consent not to be unreasonably withheld) prior to the date the last Class B Member True Up Date Contribution has been made. Any Transfer by the Class B Member shall be subject to the provisions of Section 9.1(d), and may not be made to any Disqualified Transferee.

(2) No Transfer by the Class A Member may be made at any time prior to the occurrence of the Class A Flip Point without the prior written consent of the Class B Member (such consent not to be unreasonably withheld). Any Transfer by the Class A Member shall be subject to the provisions of Section 9.1(d), and may not be made to a Disqualified Transferee.

(B) Compliance with Requirements. Any such Transfer must comply with the requirements of Section 9.1(b)(iii) and, if the Transferee is to be admitted as a Member, Section 9.1(b)(ii).

(C) Permitted Transfer, Certain Other Transfer. Anything to the contrary in this Section 9.1 notwithstanding,

(1) the provisions of Sections 9.1(b)(iii)(C)(1), 9.1(b)(iii)(F) or 9.1(b)(iv) shall not apply in connection with Transfer by Members holding Class A Interests at any time following December 31, 2018 where the sum of all distributions under Section 5.1 to all Class A Members is less than the sum of all Capital Contributions made to the Company by the Class B Member, and

(2) the provisions of Section 9.1(d) shall apply with respect to any transfer after the Class A Flip Point if (y) the Class B Members have not exercised the Purchase Option pursuant to Section 9.3 or (z) the Class A Member has not exercised its voluntary withdrawal right pursuant to Section 7.4.

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(ii) Admission of Transferee as a Member. A Transferee has the right to be admitted to the Company as a Member, with the Membership Interest so transferred to such Transferee, only if (A) the Transferring Member making the Transfer has granted the Transferee the Transferring Member’s entire Membership Interest, or, in the case of Transfer of a part of such Member’s Membership Interest, the express right to be so admitted; and (B) such Transfer is effected in strict compliance with this Section 9.1. Any Transferee that has acquired all of the Class B Units then held by the Class B Equity Investor in compliance with the provisions of this Section 9.1 shall become the replacement Managing Member.

(iii) Requirements Applicable to All Transfer and Admissions. In addition to the requirements set forth in Sections 9.1(b)(i) and 9.1(b)(ii), any Transfer of a Membership Interest and any admission of a Transferee as a Member shall also be subject to the following requirements, and such Transfer (and admission, if applicable) shall not be effective unless such requirements are complied with:

(A) Transfer Documents. The following documents must be delivered to the Managing Member and each other Member, and must be reasonably satisfactory, in form and substance, to the Managing Member:

(1) Notice. Written notice not less than ten (10) Business Days prior to the effective date of such Transfer.

(2) Transfer Instrument. An instrument implementing the Transfer.

(3) Ratification of this Agreement. An instrument, executed by the Transferring Member and its Transferee, containing the following information and agreements, to the extent they are not contained in the instrument described in Section 9.1(b)(iii)(A)(2): (1) the notice address of the Transferee; (2) if applicable, the Member Parent of the Transferee; (3) the allocations percentages as to each class of Membership Interest of the Transferring Member after the Transfer by such Transferring Member, and its Transferee (which must total the allocations percentages as to each class of Membership Interest of the Transferring Member before the Transfer); (4) the Transferee’s ratification of this Agreement and its confirmation that the representations and warranties in Article VIII applicable to it are true and correct with respect to it; (5) the Transferee’s ratification of the Facility Documents to which the Transferring Member is a party and agreement to be bound by them to the same extent that the Transferring Member was bound by them prior to the Transfer; (6) in the case of any Transfer of Class B Interests, the Transferee

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assumes the indemnity obligation set forth in Article XI; and (7) representations and warranties by the Transferring Member and its Transferee (aa) that the Transfer and admission is being made in accordance with Applicable Law, and (bb) that the conditions set forth in Sections 9.1(b)(iii)(B) and (C) have been satisfied.

(B) Applicable Laws; Securities Laws. Such Transfer does not violate any provision of Applicable Law, including, without limitation, applicable securities laws.

(C) Tax Consequences.

(1) Termination. If prior to the Class A Flip Point, such Transfer is of, or in respect of, Class B Units, such Transfer will not result in the Company’s termination within the meaning of Section 708 of the Code.

(2) Entity Classification. Such Transfer will not cause the Company to be classified as an entity other than a partnership (or cause the Company to be treated as a publicly traded partnership) for purposes of the Code.

(3) Tax Disqualified Person. If such Transfer is of, or in respect of, Class B Units prior to the Class A Flip Point, such Transfer is not to a Disqualified Person.

(4) Related Person. If such Transfer is of, or in respect of, Class B Units, such Transfer will not result in either (1) the Class B Member being a “related person” with respect to any lender under the Financing Documents for purposes of Treasury Regulation Section 1.752-4(b), or (2) prior to the Class A Flip Point, the Company being a “related person” to any purchaser under any power purchase agreement for power delivered from a Facility for purposes of Sections 267 or 707 of the Code.

(5) Opinion Requirement. The Transferring Member or the Transferee delivers to the Company not later than eight (8) Business Days prior to the effective date of the Transfer, a written opinion of nationally recognized tax counsel reasonably acceptable to the other Members that such Transfer will not cause any of (1) an ITC Loss Event (including, without limitation, from the Class B Member being a “related person” with respect to any lender under the Financing Documents for purposes of Treasury Regulation Section 1.752-4(b)), (2) the Company to be classified as an entity other than a partnership (or cause the Company to be treated as a publicly traded partnership) for purposes of the Code or (3) prior to the Class A Flip Point, the Company being a “related person” to

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any purchaser under any power purchase agreement for power delivered from a Facility for purposes of Sections 267 or 707 of the Code.

For purposes of this Section 9.1(b)(iii)(C), any direct or indirect Transfer of an interest in a Member which would cause any event described in Section 9.1(b)(iii)(C) to occur with respect to a Membership Interest of that Member shall be treated as a Transfer by that Member of its Membership Interest.

(D) Payment of Expenses. The Transferring Member and its Transferee shall pay, or reimburse the Company and each other Member for, all reasonable costs and expenses incurred by the Company and such other Members in connection with the Transfer and admission, on or before the tenth day after the receipt by that Person of the Company’s or such other Member’s invoice for the amount due.

(E) No Release. No Transfer of a Membership Interest shall effect a release of the Transferring Member from any liabilities to the Company or the other Members arising from events occurring prior to or in connection with the Transfer.

(F) Consents and Permits. All permits, consents, approvals and licenses with respect to such Transfer shall have been obtained (including any approval by FERC that the Company, the Facility Company or any party to a Transfer requires).

(G) Investment Company Act. Such Transfer does not require the Company to register as an “investment company” under the Investment Company Act of 1940, as amended.

(iv) Change of Member Control. A Change of Member Control must also comply with the requirements of this Section 9.1 (other than Section 9.1(b)(iii)(A)(2), Section 9.1(b)(iii)(A)(3), Section 9.1(b)(iii)(F) or Section 9.1(d)), for a Transfer of such Member’s interest at such time; provided, however, that this Section 9.1(b)(iv) shall not apply to a Transfer pursuant to Section 9.1(b)(v).

(v) Regulatory Compliance.

(A) Regulatory Compliance Cooperation. In the event that a Class A Member reasonably determines that it has a Regulatory Problem, the Company and the Managing Member agree at the sole cost and expense of such Class A Member to take all such actions as are reasonably requested by such Class A Member in order (I) to effectuate and facilitate any transfer by such Class A Member of any Securities in the Company then held by such Class A Member to any Person designated by such

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Class A Member, as applicable; provided, that Section 9.1(b)(iii) shall be complied with, (II) to permit such Class A Member (or any of its respective Affiliates) to exchange all or any portion of the voting Securities then held by such Person on a share-for-share basis for shares of a class of non-voting Securities of the Company, which non-voting Securities shall be identical in all respects to such voting Securities, except that such new Securities shall be non-voting and shall be convertible on such terms as are requested by such Class A Member into voting Securities and reasonably acceptable to the Company in light of regulatory considerations then prevailing, and (III) to continue and preserve the respective allocation of the voting interests with respect to the Company arising out of such Class A Member’s ownership of voting Securities before the transfers and amendments referred to above (including entering into such additional agreements as are reasonably requested by such Class A Member to permit any Person(s) designated by such Class A Member to exercise any voting power which is relinquished by such Class A Member upon any exchange of voting Securities for nonvoting Securities of the Company); and at the sole cost and expense of such Class A Member, the Company shall enter into such additional agreements, adopt such amendments to this Agreement and other relevant agreements and take such additional actions, in each case as are reasonably requested by such Class A Member in order to effectuate the intent of the foregoing; provided, that any such additional agreements, amendments to this Agreement or other relevant agreements, or other actions shall not have an adverse impact on the Company or any other Member. If a Class A Member is, or elects to transfer Securities of the Company in order to avoid a Regulatory Problem to, a Regulated Holder, the Company and each of the Members agree at the request of such Class A Member that the provisions of this Section 9.1(b)(v) shall be applicable to such Regulated Holder in order to assist such Regulated Holder in complying with Applicable Laws and regulations to which it is subject. In the event a Class A Member has the right to acquire any of the Company’s Securities from the Company or any other Person (as the result of a preemptive offer, pro rata offer or otherwise), and such Class A Member reasonably determines that it has a Regulatory Problem, at such Class A Member’s request, the Company, at the sole cost and expense of such Class A Member, will offer to sell to such Class A Member non-voting Securities (or, if the Company is not the proposed seller, will arrange for the exchange of any voting securities for non-voting securities immediately prior to or simultaneous with such sale) on the same terms as would have existed had such Class A Member acquired the Securities so offered and immediately requested their exchange for non-voting Securities as provided above.

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(B) Related Covenants.

(1) The Company shall provide at least fifteen (15) days prior written notice to a Class A Member of a proposal to distribute voting or equity securities to any Member or to repurchase voting or equity securities from any Member.

(2) If, in connection with a Regulatory Problem, at any time as a result of any repurchase, redemption or conversion of Company Securities or otherwise, a Class A Member shall hold in excess of 4.99% of any class of voting Securities of the Company, the portion of such Class A Member’s Securities of each such class of Securities entitling such Class A Member to in excess of 4.99% of the voting power of such class shall, without further action on the part of the Class A Member or the Company, be deemed to be non-voting Securities.

(c) Encumbrances of Membership Interest. A Member may encumber its Membership Interest if the instrument creating such Encumbrance provides that any Transfer upon foreclosure of such Encumbrance (or Transfer in lieu of such foreclosure) must comply with the requirements of Sections 9.1(b)(i) and 9.1(b)(iii). Any such Encumbrance, and any Transfer upon foreclosure of such Encumbrance (or Transfer in lieu of such foreclosure) that complies with such requirements shall be a Permitted Encumbrance and a permitted transfer pursuant to this Section 9.1.

(d) Right of First Bid. This Section 9.1(d) shall apply to any proposed voluntary Transfer of Membership Interests for cash or other tangible consideration under the conditions specified in Section 9.1(b)(i)(A). The Member proposing to make such a Transfer shall provide written notice of its intention to make a Transfer (a “Transfer Notice”) to the remaining Members holding Membership Interests of the same class as those Membership Interests intended to be Transferred or, in the case of a Transfer of Class A Interests after the Class A Flip Point, to all remaining Members. Upon receipt of a Transfer Notice, the Members entitled to receive the Transfer Notice shall have the right for a period of thirty (30) days to submit to the Transferring Member an unconditional offer to purchase, at the price and on the terms set forth in the notice of such offer (a “Bid”), all, but not less than all, of such Membership Interests in such proportions as the offering Members may agree, or, if they cannot agree, on a pro rata basis. Upon receipt of a proper Bid, the Member intending to Transfer its Membership Interests may, in its sole discretion, accept such Bid by notice to the offering Members within thirty (30) days of receipt of such Bid, whereupon the offering Members shall purchase such Membership Interests within five (5) Business Days following receipt of the acceptance of the Bid (or, in any event if later, the fifth Business Day after the receipt of all applicable regulatory and governmental approvals of the purchase). If the Member intending to Transfer its Membership Interests does not accept the Bid, such Member shall (i) so notify each Member who has submitted a Bid, and (ii) have the right for a period of one hundred and eighty days thereafter (or, in any event, if later, the fifth (5th) Business Day after the receipt of all applicable regulatory and governmental approvals of the purchase) to Transfer such Membership Interests at a price which is higher than the price set forth in the Bid and upon terms no less favorable in any material respect to such Member than the terms contained in the Bid; provided, that such Transfer shall be subject to any other applicable provisions of this Section 9.1.

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9.2 Buyout Option. This Section 9.2 shall apply to any of the following events (each a “Buyout Event”):

(i) a Member becomes Bankrupt;

(ii) a Member dissolves and commences liquidation or winding up;

(iii) there occurs an event (other than a Regulatory Problem resolved pursuant to Section 9.1(b)(v)) that makes it unlawful for the Member to continue to be a Member to the extent such event can reasonably be expected to result in a material adverse effect on any of the other Members or the Company (including, without limitation, dissolution of the Company).

(b) In each case, the Member with respect to whom a Buyout Event has occurred is referred to herein as the “Affected Member”.

(c) If a Buyout Event occurs, then each of the other Members shall have the option to acquire the Membership Interest of the Affected Member (or to cause it to be acquired by a third party designated by the other Members) on an “as is, where is” basis without representations or warranties (other than ownership of the Membership Interests by the Affected Member, that no Encumbrance exists against the Membership Interests of the Affected Member other than those created pursuant to this Agreement and that the sale of such Membership Interests do not require any governmental approvals that have not been obtained or create any conflict with the Affected Member’s organizational documents), expressed or implied (and with the Members exercising such preferential right also being referred to herein as “Purchasing Members”) upon giving the Company and all other Members 60 days’ written notice of an election to exercise its buyout rights pursuant to this Section 9.2 (a “Buyout Exercise Notice”) during such period.    

(d) The purchase price (the “Buyout Price”) for a Membership Interest being purchased pursuant to this Section 9.2 shall be the Fair Market Value of such Membership Interest as to which a Buyout Event has occurred, as determined under the Appraisal Procedure.

(e) If an option to purchase is exercised in accordance with the other provisions of this Section 9.2, the closing of such purchase shall occur on the 60th day after the delivery of the Buyout Exercise Notice (or in any event, if later, the 30th day after the determination of the Fair Market Value pursuant to Section 9.2(d), or the fifth Business Day after the receipt of all applicable regulatory and governmental approvals to the purchase) and shall comply in all material respects with the requirements set forth in Section 9.1(b)(iii). Unless otherwise agreed among the Members, the Buyout Price shall be paid in cash at such closing.

(f) Upon the occurrence of a closing under Section 9.2(e), the following provisions shall apply to the Affected Member (at, and following, such time, a “Terminated Member”):

(i) The Terminated Member shall cease to be a Member immediately upon the occurrence of the closing.

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(ii) The Terminated Member shall no longer be entitled to receive any distributions (including liquidating distributions) or allocations from the Company, and it shall not be entitled to exercise any voting or consent rights or to receive any further information (or access to information) from the Company (other than any required tax information).

(iii) The Terminated Member must pay to the Company, immediately upon the occurrence of the closing, all amounts owed to the Company by such Terminated Member.

(iv) The Terminated Member shall remain obligated for all liabilities it may have under this Agreement or otherwise with respect to the Company that accrue prior to the closing.

(v) The Membership Interest, including the Capital Account balance attributable thereto, of the Terminated Member shall be allocated among the Purchasing Members in the proportion of the total Buyout Price paid by each Purchasing Member.

9.3 Purchase Option.

(a) The Class A Members grant and convey to the Class B Member the exclusive and irrevocable option to purchase, for a period of six months after each of (i) the Class A Flip Point and (ii) the fifth anniversary of the Class A Flip Point, all (but not less than all) of the Class A Units for the Purchase Price upon the terms and conditions set forth herein (the “Purchase Option”).

(b) To exercise the Purchase Option, the Class B Member must deliver written notice (the “Exercise Notice”) of the exercise of the Purchase Option to the Managing Member and the Class A Members, specifying the effective date of the purchase (the “Purchase Option Date”), which such Purchase Option Date shall not be earlier than 120 days after the date of such Exercise Notice. Once the Exercise Notice has been issued, the Purchase Option shall be irrevocable.

(c) Subject to the receipt of any necessary approvals from any Governmental Authority, including, without limitation, the approval, if any, required under the HSR Act, the Class A Members shall convey all of the Class A Units to the Class B Member (or its designee) on an “as is, where is” basis without representations or warranties (other than ownership of the Class A Units by the Class A Members, that no Encumbrance exists against the Class A Units other than those created pursuant to this Agreement and that the sale of such Class A Units do not require any governmental approvals that have not been obtained or create any conflict with the Class A Members organizational documents), expressed or implied. At the closing of the conveyance, (i) the Class B Member shall expressly assume any and all liability of the Class A Members under this Agreement (other than any liability arising out of a breach of this Agreement by the Class A Member prior to such conveyance), (ii) the Class A Member shall expressly release the Company, the Facility Company, the Class B Member, the Managing Member and their respective Affiliates from any liability as a result of the transactions contemplated by this

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Agreement and (iii) the Members shall amend this Agreement to reflect the withdrawal of the Class A Members and the transfer of the Class A Units effective as of the Purchase Option Date. The Purchase Price of the Class A Units shall be payable by wire transfer of immediately available funds at the closing of Purchase Option. The Class A Members shall allocate the Purchase Price among themselves, pro rata, based upon their relative Class A Interests. All reasonable costs associated with the purchase by a Class B Member, including but not limited to, legal, accounting, tax preparation and audit costs, shall be borne by the Class B Member.

ARTICLE X

DISSOLUTION, LIQUIDATION AND TERMINATION

10.1 Dissolution.

(a) The Company will dissolve and its business and affairs will be wound up on the first to occur of the following (the “Liquidating Events”):

(i) The unanimous written consent of the Members;

(ii) Any other event upon the occurrence of which dissolution is required by the Act (which the Act does not allow to be waived by agreement of the Members), unless, to the extent permitted by the Act, Members (other than the Member with respect to which such event occurs) unanimously elect in writing, within 90 days of the date such event described in this Section 10.1(a)(ii) occurs, to continue the business of the Company, in which case the Company will not dissolve;

(iii) The Transfer by the Company of all or substantially all of its Assets;

(iv) [Intentionally Omitted]; or

(v) December 31, 2071, unless such date is extended by the mutual agreement of the Members.

(b) Each Member agrees that, to the fullest extent permitted by Applicable Law, it will not dissolve itself or the Company or withdraw from the Company except as set forth in Section 10.1(a).

10.2 Liquidation and Termination.

(a) On dissolution of the Company, the Managing Member shall act as liquidator or may appoint one or more other Persons as liquidator. The liquidator shall proceed diligently to wind up the affairs of the Company and make final distributions as provided in this Agreement. The costs of liquidation will be borne as a Company expense. Until final distribution, the liquidator shall continue to operate the Company with all of the power and authority of the Managing Member. The steps to be accomplished by the liquidator are as follows:

(i) As promptly as reasonably practicable after dissolution and again after final liquidation, the liquidator shall cause a proper accounting to be made by the Certified Public Accountants of the Company’s and the Facility Company’s Assets, liabilities, and operations through the last day of the calendar month in which the dissolution occurs or the final liquidation is completed, as applicable;

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(ii) The liquidator shall pay from Company funds (x) all of the debts and liabilities of the Company and the Facility Company or otherwise make adequate provision for them (including the establishment of a cash escrow fund for contingent, conditional or unmatured liabilities in such amount and for such term as the liquidator may reasonably determine), and (y) the amount of all accrued, unpaid Preferred Distributions, and the unpaid amount of any Class A Withdrawal Amount or Class A Member Partial Redemption Amount (including any balance of any Class A Withdrawal Note);

(iii) with respect to the remaining Assets of the Company:

(A) the liquidator shall use all commercially reasonable efforts to obtain the best possible price and may sell any or all of the Company’s, and the Facility Company’s Assets (subject to any and all restrictions to which the Company or the Facility Company is subject, including restrictions under Applicable Laws or any Permitted Encumbrances), including to the Members at such price, but in no event lower than the Fair Market Value thereof; and

(B) with respect to all of the Company’s or the Facility Company’s Assets that have not been sold, the Values of such Assets shall be determined pursuant to subparagraph (ii) of the definition of Value;

(iv) After giving effect to all distributions (including those under Section 5.1) and all Capital Contributions (including those under Section 3.1, Section 3.2, Section 3.3, and Section 10.3) for all periods, but subject to Section 10.2(a)(v), all remaining cash and property (including any Available Cash Flow and liquidation proceeds) shall be distributed to the Members as follows:

(A) First, any Available Cash Flow that does not consist of Available Capital Income Cash Flow shall be distributed in the order and priority set forth in Section 5.1(a)(i) and (ii), and then as set forth in Section 5.1(b)(iii); and

(B) Second, any Available Capital Income Cash Flow shall be distributed (I) first to the Class A Members in an amount equal to the excess, if any, of (1) the sum of all Preferred Distributions shown as made

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or paid to the Class A Members in the Base Case Model (including those provided for after the date of liquidation), minus (2) all Preferred Distributions actually made or paid to the Class A Members under Section 5.1 or Section 10.2(a)(ii); (II) second, in an amount equal to any Class A Investment Balance that has not been paid in full to the Class A Member; and (III) thereafter, in the order and priority set forth in Section 5.1(a)(i) and (ii), and then as set forth in Section 5.1(b)(iii).

(v) It is intended that the distributions provided in Section 10.2(a)(iv) will be in accordance with the positive balances (if any) in the final Capital Account balances of the Members, after giving effect to all distributions (including those under Section 5.1) and all Capital Contributions (including those under Section 3.1, Section 3.2, Section 3.3 and Section 10.3) and any allocations to be made under this Section 10.2(a)(v). however, if such distributions would not result in such intention being satisfied, constituent items of income, gain, loss and deduction under Code section 702(a)(1) through (7) will be reallocated among the Members for the year of the liquidation, to the extent permissible under Code section 704(b) (and, if necessary and permissible under Code section 704(b), for prior Company taxable years for which the deadline (determined without extensions) for filing the Company’s federal income tax return has not passed), so as to cause the Capital Account balances to be in the amounts necessary to assure that such result is achieved. For the avoidance of doubt, in no event will any Member be distributed an amount in excess of its positive balance in its Capital Account.

(vi) Any distribution to the Members in respect of their Capital Accounts pursuant to this Section 10.2 shall be made by the end of the Company Taxable Year in which a Liquidating Event occurs (or if later, within 90 days after the date of such Liquidating Event).

(b) The distribution of cash or property to a Member in accordance with the provisions of this Section 10.2 constitutes a complete return to the Member of its Capital Contributions and a complete distribution to the Member on account of its Membership Interest and all the Company’s property and constitutes a compromise to which all Members have consented pursuant to Section 18-502(b) of the Act.

10.3 Deficit Capital Accounts.

(a) Except as provided in this Section 10.3, no Member shall be obligated to contribute cash to restore a deficit in its Capital Account.

(b) Each Class A Member shall have the right by written notice to the Company to elect to undertake an obligation, in the event there is a “liquidation” of a Class A Member’s interest in the Company within the meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(g), after giving effect to all allocations (including, for the avoidance of doubt, such Class A Member’s share of any Company Minimum Gain and Member Nonrecourse Debt Minimum Gain), all distributions and all Capital Contributions for all periods, and that

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Class A Member has a deficit balance in its Capital Account, to contribute to the Company cash in an amount equal to such deficit balance or a limited amount of such deficit balance, as provided by the Class A Member in such notice, by the end of the Taxable Year of the Company during which the liquidation of the Company occurs, or if later, within ninety (90) days after the date of such liquidation. Notwithstanding the foregoing, after such point in time at which the absolute value of a Class A Member’s deficit Capital Account is less than the maximum amount of its deficit restoration obligation, the obligation of such Class A Member to restore that deficit Capital Account shall be adjusted downward (but not increased) at the end of each Taxable Year to an amount equal to the lesser of (A) the dollar amount set forth in the latest of any notice given by such Class A Member, or (B) the absolute value of the deficit (if any) in such Class A Member’s Capital Account at the end of such Taxable Year. Nothing contained in this Agreement shall obligate any Class A Member to issue such a notice. Any such notice given by a Class A Member pursuant hereto shall be deemed to constitute a duly adopted amendment to this Agreement without any further action by any party.

10.4 Termination. On completion of the satisfaction of liabilities and distribution of Assets as provided in this Agreement, the Managing Member (or such other Person or Persons as the Act may require or permit) shall cause the cancellation of the Delaware Certificate and any filings made as provided in Section 2.1 and shall take such other actions as may be necessary to terminate the Company.

ARTICLE XI

11.1 Indemnification of Class A Investor Group by the Class B Member. Subject to the terms and conditions of this Article XI, the Class B Member hereby indemnifies, defends, reimburses and holds harmless each Class A Equity Investor and its respective parent or subsidiary companies, partners and other Affiliates, and their respective officers, directors, employees, attorneys, contractors and agents (collectively, the “Class A Investor Group”), from and against any and all Damages asserted against, resulting to, imposed upon, or incurred by the Class A Investor Group, directly or indirectly, by reason of or resulting from (a) any breach by Guarantor, the Class B Member (whether in its capacity as the Class B Member, the Managing Member, the Tax Matters Member or otherwise), the Company or the Administrator or their Affiliates of their respective representations and warranties or covenants contained in this Agreement, any other Investment Document or the ASA or (b) any Environmental Claim arising from any pre-closing environmental contamination (collectively, “Class A Investor Claims”). To the extent that any such Damages relating to a Class A Investor Claim remain unpaid after such claim has been made therefor pursuant to this Article XI, any distributions otherwise payable to the Class B Member under this Agreement shall be used to satisfy the obligations of Guarantor, the Class B Member, the Company or their Affiliates, as applicable, hereunder in accordance with Section 5.4.

11.2 Brokers. The Class B Equity Investor agrees to indemnify and hold harmless the Class A Investor Group from and against any and all claims, obligations, actions, liabilities, losses, damages, costs or expenses (including court costs and attorneys’ fees) of any kind or character arising out of or resulting from any agreement, arrangement or understanding alleged to have been made by, or on behalf of, the Company or the Administrator or their Affiliates with any broker or finder in connection with this Agreement or the transaction contemplated hereby.

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11.3 Limitation on Liability. The indemnification obligations of the parties hereto pursuant to this Article XI shall be subject to the following limitations:

(a) The amount of Damages required to be paid by any party to indemnify any other party pursuant to this Article XI as a result of any Class A Investor Claim shall be reduced to the extent of any amounts actually received by such other party after the Effective Date pursuant to the terms of the insurance policies (if any) obtained and maintained by the Company, the Facility Company or the Class A Equity Investor or any Affiliate thereof covering such claim. In the event an indemnified party or any of its Affiliates receives insurance proceeds with respect to a Class A Investor Claim for which it previously received indemnification payments, such indemnified party shall promptly pay to the indemnifying party such insurance proceeds to the extent such proceeds and the previously paid indemnification payments, in the aggregate, exceed the amount of the applicable Class A Investor Claim.

(b) Damages paid pursuant to this Article XI shall be grossed-up and paid on an after-tax basis (assuming the highest marginal federal income tax rate then applicable to corporations and a 3.0% state and local income tax rate). In the event an indemnified party is entitled to claim an item of loss or deduction, credit or other tax benefit with respect to the event that gives rise to the receipt of an indemnity payment, such tax benefit shall be taken into account for purposes of determining the amount of Damages and the related indemnification payment and, to the extent payment has been made to an indemnified party prior to the period in which such tax benefit was claimed, the indemnified party shall promptly repay the indemnifying party an amount equal to the present value of such loss or deduction, credit or other tax benefit (in each case, assuming the highest marginal federal income tax rate then applicable to corporations and a 3.0% state and local income tax rate); provided that any such refund shall not exceed the original amount paid.

(c) The indemnification obligations of the parties pursuant to this Agreement shall be limited to actual Damages and shall not include special, incidental, consequential, indirect, punitive, or exemplary Damages (including lost profits and damages for a lost opportunity); provided, that any incidental, consequential, indirect, punitive, or exemplary Damages recovered by a third party (including Governmental Entities) against a Person entitled to indemnity pursuant to this Article XI shall be included in the Damages recoverable under such indemnity; and provided, further, that no ITC Loss Tax Event Liability shall be considered as special, incidental, consequential, indirect, punitive or exemplary damages and shall be included in the Damages recoverable under this indemnity.

(d) No member of the Class A Investor Group may receive compensation for Damages suffered by such Person to the extent that such Damages are attributable to (a) the gross negligence or willful misconduct of such Person or (b) the breach of any representation or warranty by such Person in this Agreement or any other Investment Document to the extent such representation or warranty was false when made.

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11.4 Procedure for Indemnification. After receipt by an indemnified party under Section 11.1, Section 11.2 or Section 11.3 of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party under such Section, give written notice to the indemnifying party of the commencement thereof. The failure to promptly notify the indemnifying party shall not relieve it of any liability that it may have to any indemnified party with respect to such action; provided that, to the extent that any such failure to provide prompt notice is responsible for an increase in the indemnity obligations of the indemnifying party, the indemnifying party shall not be responsible for any such increase. In case any such action shall be brought against an indemnified party and it shall give written notice to the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it may wish, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party. If the indemnifying party elects to assume the defense of such action, the indemnified party shall have the right to employ separate counsel at its own expense and to participate in the defense thereof. If the indemnifying party elects not to assume (or fails to assume) the defense of such action, the indemnified party shall be entitled to assume the defense of such action with counsel of its own choice, at the expense of the indemnifying party. If the action is asserted against both the indemnifying party and the indemnified party and (i) there is a conflict of interests which renders it inappropriate for the same counsel to represent both the indemnifying party and the indemnified party or (ii) such action could reasonably be expected to result in the imposition of criminal liability, the indemnifying party shall be responsible for paying for separate counsel for the indemnified party; provided, however, that if there is more than one indemnified party and it is practical for all such parties to be represented by common counsel, the indemnifying party shall not be responsible for paying for more than one separate firm of attorneys to represent the indemnified parties, regardless of the number of indemnified parties. If the indemnifying party elects to assume the defense of such action, (a) no compromise or settlement thereof may be effected by the indemnifying party without the indemnified party’s written consent (which shall not be unreasonably withheld) unless the sole relief provided is monetary damages that are paid in full by the indemnifying party and (b) the indemnifying party shall have no liability with respect to any compromise or settlement thereof effected without its written consent (which shall not be unreasonably withheld) unless the indemnifying party has failed to defend such indemnified party against such action.

11.5 Exclusivity. Subject to Section 5.4, and without in any way limiting the Guaranty, the parties hereto agree that, in relation to any breach, default, or nonperformance of any representation, warranty, covenant, or agreement made or entered into by Guarantor, the Class B Member (whether in its capacity as the Class B Member, the Managing Member, the Tax Matters Member or otherwise) hereby agrees that pursuant to this Agreement, any other Investment Document, the ASA or any certificate, instrument, or document delivered pursuant hereto or thereto or arising out of the transactions contemplated herein or therein, the only relief and remedy available to the other parties hereto in respect of said breach, default, or nonperformance shall be Damages, but only to the extent properly claimable hereunder and as limited pursuant to this Article XI or otherwise hereunder.

11.6 No Right of Contribution. After the Effective Date, the Company shall have no liability to indemnify the Class B Equity Investor on account of the breach of any representation or warranty or the nonfulfillment of any covenant or agreement of the Company; and the Class B Equity Investor shall not have any right of contribution against the Company.

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11.7 Entire Agreement. Subject to the Guaranty, Article XI of this Agreement constitutes the entire agreement and understanding of the parties with respect to indemnification hereunder.    

ARTICLE XII

GENERAL PROVISIONS

12.1 Offset. Whenever the Company (or another Person on behalf of the Company) is to pay or distribute any sum to any Member, any amounts then owed by such Member or its Affiliate to the Company (as determined in writing to the satisfaction of the other Members) shall be deducted from such sum before payment.

12.2 Notices. All notices, consents, demands, requests or other communications which may be or are required to be given under this Agreement shall be in writing and shall (a) be sent by overnight courier, facsimile or United States mail, addressed to the recipient, postage paid, and registered or certified, return receipt requested, or delivered to the recipient in person and (b) be sent or delivered at the addresses set forth in the Equity Capital Contribution Agreement or such other address as a Member may specify by notice to the Company and the other Members. Any notice, request or consent to the Company must be given to the Managing Member. Notices, consents, demands, requests and other communications shall be deemed effective or served on the date of receipt at the address of the Person to receive it.

12.3 Counterparts. This Agreement may be executed in one or more counterparts, each bearing the signatures of one or more Members. Each such counterpart shall be considered an original and all of such counterparts shall constitute a single agreement binding all the parties as if all had signed a single document. Facsimile signatures shall be accepted as original signatures for purposes of this Agreement.

12.4 Governing Law and Severability. THIS AGREEMENT SHALL BE DEEMED MADE AND PREPARED AND SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF WHICH MAY REQUIRE THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. If any provision of this Agreement shall be contrary to any other Applicable Law, at the present time or in the future, such provision shall be deemed null and void, but this shall not affect the legality of the remaining provisions of this Agreement. This Agreement shall be deemed to be modified and amended so as to be in compliance with Applicable Law and this Agreement shall then be construed in such a way as will best serve the intention of the parties at the time of the execution of this Agreement.

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12.5 Entire Agreement. This Agreement, including any Schedules and Exhibits, together with the other Investment Documents, constitutes the entire agreement among the Members regarding the terms and operations of the Company, except as amended in writing pursuant to the requirements of this Agreement, and supersedes all prior and contemporaneous agreements, statements, understandings and representations of the parties.

12.6 Effect of Waiver or Consent. A waiver or consent, express or implied, to or of any breach or default by any Person in the performance by that Person of its obligations under this Agreement, or any Investment Document is not a consent or waiver to or of any other breach or default in the performance by that Person of the same or any other obligations of that Person under this Agreement, or any Investment Document. Failure on the part of a Person to complain of any act of any Person or to declare any Person in default with respect to its obligations under this Agreement, or any Investment Document, irrespective of how long that failure continues, does not constitute a waiver by that Person of its rights with respect to that default until the applicable statute of limitations period has run.

12.7 Amendment or Modification. Except as otherwise provided herein, this Agreement may be amended or modified from time to time only by a written instrument executed by all Members. Notwithstanding anything contained herein to the contrary, for so long as any indebtedness or Obligations remain outstanding under the Financing Documents, each Member hereby acknowledges that the consent of certain parties to the Financing Documents, such as the Facility Lenders, may be required in connection with the Facility Company taking certain actions. Any such consent shall be obtained in writing from the Facility Lenders and any other required parties to the Financing Documents as and when required pursuant to the terms of the Financing Documents.

12.8 Binding Effect. Subject to the restrictions on Transfers set forth in this Agreement, this Agreement is binding on and inures to the benefit of the Members and their respective legal representatives, permitted successors and permitted assigns.

12.9 Further Assurances. In connection with this Agreement and the transactions contemplated hereby, each Member shall execute and deliver any additional documents and instruments and perform any additional acts that may be necessary or appropriate to effectuate and perform the provisions of this Agreement and those transactions contemplated here, including all filing, recording, publishing and other acts appropriate to comply with all requirements for the operation of a limited liability company under the laws of all jurisdictions where the Company shall conduct business.

12.10 Jurisdiction; Service of Process. Each of the parties hereto hereby irrevocably consents to the non-exclusive jurisdiction of the courts of the State of New York and of any federal court located in the Southern District of New York in connection with any suit, action or other proceeding arising out of or relating to this Agreement or the transactions contemplated hereby; agrees to waive any objection to venue in the State and County of New York; and agrees that, to the extent permitted by law, service of process in connection with any such proceeding may be effected by mailing in the same manner provided in Section 11.2 hereof.

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12.11 Limitation on Liability. NO CLAIMS SHALL BE MADE BY ANY PARTY HERETO OR ANY OF ITS AFFILIATES, DIRECTORS, EMPLOYEES, ATTORNEYS OR AGENTS AGAINST ANY OTHER PARTY HERETO OR ANY OF ITS AFFILIATES, DIRECTORS, EMPLOYEES, ATTORNEYS OR AGENTS FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (WHETHER OR NOT THE CLAIM THEREFORE IS BASED ON CONTRACT, TORT, DUTY IMPOSED BY LAW OR OTHERWISE), IN CONNECTION WITH, ARISING OUT OF OR IN ANY WAY RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR THE OTHER INVESTMENT DOCUMENTS OR ANY ACT OR OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH; AND EACH PARTY HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE UPON ANY SUCH CLAIM FOR ANY SUCH SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR, PROVIDED, HOWEVER, THAT AT ANY TIME (a) IF AN ITC IS RECAPTURED FROM THE FACILITY COMPANY BECAUSE THE CLASS B MEMBER OR ITS AFFILIATE, OR ANY FACILITY ENTITY BREACHES ANY REPRESENTATION, WARRANTY OR COVENANT, THE VALUE OF THE ITC THAT IS RECAPTURED SHALL NOT CONSTITUTE CONSEQUENTIAL DAMAGES AND (b) IF AN ITC IS RECAPTURED FROM THE FACILITY COMPANY BECAUSE THE INVESTOR OR ITS AFFILIATE BREACHES ANY REPRESENTATION, WARRANTY OR COVENANT, THE VALUE OF THE ITC THAT IS RECAPTURED SHALL NOT CONSTITUTE CONSEQUENTIAL DAMAGES; AND PROVIDED, FURTHER, HOWEVER, THAT AFTER THE CLASS A MEMBER SHALL HAVE ACTUALLY FUNDED ITS INVESTOR FUNDING DATE CONTRIBUTION IN RESPECT OF THE FACILITY COMPANY, IF AN ITC IS RECAPTURED FROM THE FACILITY COMPANY BECAUSE CLASS B MEMBER OR ITS AFFILIATE, OR THE FACILITY COMPANY BREACHES ANY REPRESENTATION, WARRANTY OR COVENANT, OR A FINAL DETERMINATION IS MADE FOR FEDERAL INCOME TAX PURPOSES THAT THE ITC AMOUNT CLAIMED WAS IN EXCESS OF THAT WHICH WAS APPROPRIATE AND CORRECT, ANY FEDERAL TAX DETRIMENT SUFFERED AS RESULT OF SUCH RECAPTURE SHALL NOT CONSTITUTE CONSEQUENTIAL DAMAGES; AND PROVIDED, FURTHER, HOWEVER, THAT AFTER THE CLASS A MEMBER SHALL HAVE ACTUALLY FUNDED ITS INVESTOR FUNDING DATE CONTRIBUTION IN RESPECT OF THE FACILITY COMPANY, IF ITC AMOUNT CLAIMED IS DETERMINED FOR FEDERAL INCOME TAX PURPOSES TO BE IN EXCESS OF THAT WHICH IS APPROPRIATE, ANY FEDERAL TAX DETRIMENT SUFFERED AS RESULT OF SUCH DETERMINATION, SHALL NOT CONSTITUTE CONSEQUENTIAL DAMAGES.

THE OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT ARE OBLIGATIONS OF THE PARTIES ONLY AND NO RECOURSE SHALL BE AVAILABLE UNDER THIS AGREEMENT AGAINST ANY OFFICER, DIRECTOR, MANAGER, MEMBER, PARTNER, OR AFFILIATE OF ANY PARTY.

[SIGNATURE PAGE FOLLOWS]

70

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.

FIRSTAR Development, LLC
By:
Name:	Matthew Ulrich
Title:	Officer
CLEAN TECHNOLOGIES III, LLC
By:
Name:
Title:

Second A&R LLC Operating Agreement of 2012 V PPA Holdco, LLC

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.

FIRSTAR Development, LLC
By:
Name:
Title:
CLEAN TECHNOLOGIES III, LLC
By:
Name:
Title:

Second A&R LLC Operating Agreement of 2012 V PPA Holdco, LLC

EXHIBIT A

EXECUTION DATE CONTRIBUTIONS MADE

	Class A Equity Investor	Capital Contributions			Capital Account Balance			Units	Percentage of Class A Interest Owned
Effective Date	Firstar Development LLC	$	[***	]	$	[***	]	100 Class A Units		100	%

	Class B Equity Investor	Capital Contributions			Capital Account Balance			Units	Percentage of Class B Interest Owned
Effective Date	Clean Technologies III, LLC	$	[***	]	$	[***	]	100 Class B Units		100	%

[***] Confidential Treatment Requested

Exhibit A - Page 1

EXHIBIT B

FORM OF MEMBERSHIP CERTIFICATE

THE MEMBERSHIP INTEREST REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAW OF ANY STATE. SUCH MEMBERSHIP INTEREST MAY NOT BE SOLD OR TRANSFERRED UNLESS SUBSEQUENTLY REGISTERED OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE. THIS CERTIFICATE EVIDENCES AN INTEREST IN 2012 V PPA HOLDCO, LLC AND SHALL BE A SECURITY GOVERNED BY ARTICLE 8 OF THE UNIFORM COMMERCIAL CODE AS IN EFFECT FROM TIME TO TIME IN THE STATES OF DELAWARE AND NEW YORK AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OTHER APPLICABLE JURISDICTION.

CERTIFICATE FOR MEMBERSHIP INTEREST

IN

2012 V PPA HOLDCO, LLC

Certificate No. [A][B] – [    ]

The undersigned, as the Managing Member of 2012 V PPA HOLDCO, LLC, a Delaware limited liability company (the “Company”), hereby certifies that [                    , a                     ], is the holder of a Class [    ] Interest in the Company to the extent and as described in Exhibit A to the Second Amended and Restated Operating Agreement of the Company, effective as of January 1, 2013, as amended and restated from time to time (the “Agreement”) (a copy of which is on file at the principal office of the Company). All capitalized terms not otherwise defined herein have the meanings ascribed to them in the Agreement.

This Certificate is not negotiable or transferable except by operation of law, or as otherwise provided in the Agreement, and any such transfer will be valid only upon delivery of this Certificate, together with an assignment in a form sufficient to convey an interest in a limited liability company pursuant to the Delaware Limited Liability Company Act, as it may be amended and in effect from time to time, or any successor statute thereto, duly executed, to the Transferee Member of the Company.

Dated: [                    ]

CLEAN TECHNOLOGIES III, LLC

By:

Name:

Title:

Exhibit B - Page 1

EXHIBIT C

FORM OF CLASS A WITHDRAWAL NOTE

SECURED PROMISSORY NOTE

(CLASS A WITHDRAWAL NOTE)

THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS.

This Note is issued pursuant to the terms and conditions of Section [7.4][7.8] of that certain Second Amended and Restated Operating Agreement dated as of August 30, 2013 between Clean Technologies III, LLC and Firstar Development LLC with respect to 2012 V PPA HOLDCO, LLC (the “Limited Liability Company Agreement”).

This Note is secured as provided in that certain [INSERT NAME OF PLEDGE AGREEMENT] dated as of the date hereof between 2012 V PPA HOLDCO, LLC and Firstar Development LLC.

$[            ] [Date]

FOR VALUE RECEIVED, 2012 V PPA HOLDCO, LLC, a Delaware limited liability company (the “Company”), hereby promises to pay to the order of Firstar Development LLC, a Delaware limited liability company (the “Class A Member”), the principal sum of [                    ] dollars $[            ], (such amount, the “Borrowing”) on a date that is five (5) years after the date of this Note (the “Maturity Date”), unless sooner paid as provided herein.

The Company also promises to pay interest on the unpaid principal amounts from time to time outstanding hereunder, from the date of the Borrowing until all the Borrowing hereunder have been paid in full. The Borrowing shall bear interest at a rate per annum equal to [INSERT APPLICABLE FEDERAL RATE UNDER SECTION 1274(d) OF THE CODE ], such interest to be payable monthly on the last Business Day of each month (each, a “Payment Date”), together with principal payable for such month as set forth in Schedule 1 hereto, commencing, with respect to the Borrowing, on the last business day of the calendar month immediately following the date of the Borrowing. In addition, all accrued and unpaid interest thereon will be due and payable upon the day that all principal is due and payable (whether on the Maturity Date, by acceleration or otherwise).

Exhibit C - Page 1

Payment of both principal and interest on this Note shall be made by wire transfer to the Class A Member at such bank instructions provided to the Company in lawful money of the United States of America in immediately available funds.

The Company shall have the right to prepay any amount borrowed under this Note in whole or in part at any time, together with interest on the amount prepaid to the date of prepayment, without penalty or premium. Amounts repaid under this Note may not be re-borrowed.

Upon the occurrence of any of the following events, this Note shall become immediately due and payable in full, together with interest accrued thereon:

(a) the Company shall fail to make any payment hereunder when due and payable;

(b) the Company shall become insolvent, or generally fail to pay, or admit in writing its inability to pay, its debts as they become due, or shall voluntarily commence any proceeding or file any petition under any bankruptcy, insolvency or similar federal, state or foreign law or seeking dissolution, liquidation or reorganization or the appointment of a receiver, trustee, custodian or liquidator for it or a substantial portion of its property, assets or business or to effect a plan or other arrangement with its creditors, or shall file any answer admitting the jurisdiction of the court and the material allegations of an involuntary petition filed against it in any bankruptcy, insolvency or similar proceeding, or shall be adjudicated bankrupt, or shall make a general assignment for the benefit of creditors, or shall consent to, or acquiesce in the appointment of, a receiver, trustee, custodian or liquidator for a substantial portion of its property, assets or business, or shall by any act or failure to act indicate its consent to or approval of any of the foregoing, or if any corporate action is taken by the Company for the purpose of effecting any of the foregoing; or

(c) involuntary proceedings or an involuntary petition shall be commenced or filed against the Company under any bankruptcy, insolvency or similar federal, state or foreign law or seeking the dissolution, liquidation or reorganization of it or the appointment of a receiver, trustee, custodian or liquidator for it or of a substantial part of its property, assets or business, and such proceedings or petition shall not be dismissed within sixty (60) days; or any writ, judgment, tax lien, warrant of attachment, execution or similar process shall be issued or levied against a substantial part of its property, assets or business, and such writ, judgment, lien, warrant of attachment, execution or similar process shall not be released, vacated or fully bonded, within sixty (60) days after commencement, filing or levy, as the case may be, or any order for relief shall be entered in any such proceeding; or any winding-up, dissolution, liquidation or reorganization of the Company.

Exhibit C – Page 2

The Company waives any and all right to assert any defense (except for the Company’s performance under this Note), set-off, counterclaim or crossclaim of any nature whatsoever with respect to this Note or the obligations of the Company hereunder in any action or proceeding brought by the Class A Member to collect this Note, or any portion hereof. The Company waives presentment, demand, notice, protest and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Note.

The Company promises to pay all costs and expenses of the Class A Member (including, without limitation, reasonable attorneys’ fees and disbursements) incurred in connection with (i) the enforcement of, or collection of any amounts due under, this Note or (ii) any waiver, extension, amendment or modification of this Note.

This Note shall be binding upon, and shall inure to the benefit of, the Company and the Class A Member and their respective successors and assigns; provided, however, that the Company shall not assign its rights or obligations hereunder without the prior written consent of the Class A Member. This Note may be freely assigned by the Class A Member without the consent of the Company.

This Note may only be modified, amended, or terminated (other than by payment in full) by an agreement in writing signed by the Company and the Class A Member. No waiver of any term, covenant or provision of this Note shall be effective unless given in writing by the Class A Member.

THIS NOTE SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW, BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF LAWS PROVISIONS THEREOF). ALL LEGAL ACTIONS OR PROCEEDINGS BROUGHT AGAINST EITHER PARTY WITH RESPECT TO THIS NOTE MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE COUNTY OF NEW YORK, STATE OF NEW YORK, AND BY EXECUTION AND DELIVERY OF THIS NOTE EACH PARTY ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, THE JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS NOTE. EACH PARTY HEREBY EXPRESSLY AND IRREVOCABLY WAIVES ANY CLAIM OR DEFENSE IN ANY SUCH ACTION OR PROCEEDING BASED ON ANY ALLEGED LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS OR ANY SIMILAR BASIS. EACH PARTY FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF ANY COMPLAINT, SUMMONS, NOTICE OR OTHER PROCESS RELATING TO ANY LEGAL ACTION OR PROCEEDING BY DELIVERY THEREOF TO IT BY HAND OR BY MAIL TO THE ADDRESS SET FORTH IN SECTION 12.2 OF THE LIMITED LIABILITY COMPANY AGREEMENT. NOTHING HEREIN SHALL AFFECT THE RIGHT OF EITHER PARTY TO BRING PROCEEDINGS AGAINST THE OTHER PARTY IN THE COURTS OF ANY OTHER JURISDICTION OR TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW. EACH PARTY HEREBY

Exhibit C – Page 3

IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR COUNTERCLAIM ARISING IN CONNECTION WITH THIS NOTE.

IN WITNESS WHEREOF, the Company has executed this Note as of the day and year first above written.

2012 V PPA HOLDCO, LLC
By:
	Name:
	Title:

Exhibit C – Page 4

SCHEDULE 1

TO CLASS A WITHDRAWAL NOTE

Principal Schedule

Month Amount

Exhibit C – Page 5

EXHIBIT D

FORM OF QUARTERLY RENEWABLE ENERGY CERTIFICATE

(See Attached)

Exhibit D

USBCDC RENEWABLE ENERGY COMPLIANCE CERTIFICATE
Deal Name:		Project ID #:
Fund:		Deal Type	ITC
Compliance Period:	Quarter 4 ending December 31st, 2012

ITC RECAPTURE
Has there been a change in ownership of any system (or turbine)?
If yes, explain:	Yes    ☐	No    ☐
Has any system (or turbine) been taken out of operation?
If yes, explain:	Yes    ☐	No    ☐
OPERATIONS
Has there been a default on a PPA or Lease?
If yes, explain:	Yes    ☐	No    ☐
If PPAs, have systems been generating sufficient power to support the projections that were prepared at closing?
If no, explain:	Yes    ☐	No    ☐
Any major concerns with system operations or maintenance?
If yes, explain:	Yes    ☐	No    ☐
Are there any known substantial negative changes in the financial condition of any PPA or Lease counterparty?
If yes, explain:	Yes    ☐	No    ☐
Are there any known substantial negative changes in the financial condition of the Guarantor(s)?
If yes, explain:	Yes    ☐	No    ☐
Has there been a distribution of Net Cash flows?
If yes, please include report.	Yes    ☐	No    ☐
Has there been a default on any mortgage, taxes, interest or other obligation?
If yes, explain:	Yes    ☐	No    ☐
Has there been a death, dissolution, or Bankruptcy of any Owner as defined in the Operating Agreement?
If yes, explain:	Yes    ☐	No    ☐
Are there any current or pending lawsuits, legal proceedings, or alleged violations of law as defined in the Operating Agreement?
If yes, please include copies.	Yes    ☐	No    ☐
Are there any alleged violations of health, safety, or building codes as defined in the Operating Agreement?
If yes, please include copies.	Yes    ☐	No    ☐
Date the last facility was placed in service (PIS) as defined in transaction documents. Leave blank if not PIS.
	Date

RESERVES (please skip section if not applicable )
Please list reserve accounts and balances:
Bank Name	Account Owner	Purpose of the Account	As of Date	Balance
				$	—
				$	—
				$	—
				$	—
				$	—
				$	—
				$	—
				$	—

REC Revenue (please skip section if not applicable)
REC Revenue status:
Projected REC Revenue to investor:	$	—
Amount of REC applied for:	$	—
REC revenue received:	$	—
Amount transferred to investor:	$	—

LOAN STATUS (please skip section if not applicable)
Please list Loans:
Lender	Borrower	Type of Loan	Original Loan Commitment		As of Date	Current Balance
			$	—		$	—
			$	—		$	—
			$	—		$	—
			$	—		$	—
			$	—		$	—
			$	—		$	—

Are there any monetary defaults?

ATTACHMENTS (Please mark an “ X” below pertaining to items attached.)

Operations & Maintenance Report

Cash Flow Report

Copies of violation of code

Copies of violation of law

Additional comments and/or support

Certification

I hereby certify that l am an authorized signer of the Sponsor and that the above and attached information is true.

X                                                             

Comments:

Please return the completed certificate to usbcdc.renewableenergy@usbank.com no later than [***] days after current period.

[***] Confidential Treatment Requested

EXHIBIT E

FORM OF RENEWABLE ENERGY MONTHLY REPORT

(See Attached)

Exhibit E

Renewable Energy Monthly Report

(ITC)

Fund Name:	As of Date:
Original Fund Amount: $[***]

Instructions:

• Please input the following

• The projected final Placed in Service date for the fund.

• The stage of installation percentage as outlined below

• The total should equal 100%.

• Any additional comments concerning the fund in the notes section.

• The document should be certified by an authorized signor.

• Attach any supporting documents to support installation.

Installation and Milestone Tracking

Projected final Placed in Service date for the fund: mm/dd/yyyy

Stage of Installation	31-Dec Actual			31-Jan Forecast			28-Feb Forecast
		0.00	%		0.00	%		0.00	%
		100.00	%		100.00	%		100.00	%

Notes and Additional Comments

Notes

Certification

X

Signature

usbank.com

[***] Confidential Treatment Requested

EX-10

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Exhibit 10.42

Execution Version

AMENDED AND RESTATED

MASTER ENERGY SERVER PURCHASE AGREEMENT

between

BLOOM ENERGY CORPORATION

as Seller

and

2012 V PPA PROJECT COMPANY, LLC

as Buyer

dated as of December 21, 2012

TABLE OF CONTENTS

ARTICLE I. DEFINITIONS		1
Section 1.1	Definitions	1
Section 1.2	Other Definitional Provisions	14
ARTICLE IA. AMENDED AND RESTATED MASTER ENERGY SERVER PURCHASE AGREEMENT		15
Section 1A.1	Confirmation of Amendment and Restatement	15
ARTICLE II. PURCHASE AND SALE		15
Section 2.1	Purchase Orders	15
Section 2.2	Payment of Purchase Price	16
Section 2.3	Purchase and Sale of Bloom Systems	18
Section 2.4	PPA Termination and Re-Purchase of Bloom Systems	18
ARTICLE III. DELIVERY AND INSTALLATION OF SYSTEMS AND BALANCE OF FACILITIES		19
Section 3.1	Access to Site	19
Section 3.2	Physical Delivery of Bloom Systems	19
Section 3.3	Delivery of Balance of Facility; Installation of Bloom Systems	20
Section 3.4	Commissioning; Commencement of Operations	22
Section 3.5	Insurance	23
Section 3.6	Disposal; Right of First Refusal	23
Section 3.7	Buyer’s Lender	23
Section 3.8	Access; Cooperation	23
Section 3.9	Performance Standards	23
Section 3.10	Appointment of Independent Engineer	24
ARTICLE IIIA. PPA OBLIGATIONS		24
Section 3A.1	Obligations of Seller Related to PPAs	24
Section 3A.2	AT&T PPA	25
Section 3A.3	Wal-Mart PPA	26
ARTICLE IIIB. CORRESPONDING ENTITLEMENTS		27
Section 3B.1	Definition of Corresponding Entitlements	27
Section 3B.2	Rights in Respect of Corresponding Entitlements	27

i

TABLE OF CONTENTS

(continued)

ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF SELLER		28
Section 4.1	Representations and Warranties as to Seller	28
Section 4.2	Representations and Warranties as to Bloom Systems	29
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF BUYER		30
Section 5.1	Organization	30
Section 5.2	Authority	30
Section 5.3	Consents and Approvals; No Violation	30
Section 5.4	Legal Proceedings	30
ARTICLE VI. CONFIDENTIALITY		31
Section 6.1	Confidential Information	31
Section 6.2	Restricted Access	31
Section 6.3	Permitted Disclosures	32
Section 6.4	Publicity	33
Section 6.5	Shortfall Event License	33
ARTICLE VII. LICENSE AND OWNERSHIP; SOFTWARE		33
Section 7.1	IP License To Use	33
Section 7.2	Grant of Third Party Software License	34
Section 7.3	No Software Warranty	35
Section 7.4	Covenant	35
Section 7.5	Representations and Warranties	35
ARTICLE VIII. LIMITED WARRANTY		35
Section 8.1	Portfolio Warranty	35
Section 8.2	[Reserved]	36
Section 8.3	Portfolio Warranty Claims	36
Section 8.4	Disclaimers	39
Section 8.5	Exclusions	39
Section 8.6	Capacity Warranty	40
Section 8.7	Efficiency Warranty	40
Section 8.8	[Reserved]	40
Section 8.9	Indemnification Regarding Performance Under PPAs	41
Section 8.10	No Duplication of Terms	41
Section 8.11	Deemed Delivered Energy	41

ii

TABLE OF CONTENTS

(continued)

ARTICLE IX. EVENTS OF DEFAULT		43
Section 9.1	Seller Default	43
Section 9.2	Buyer Default	44
Section 9.3	Buyer’s Remedies Upon Occurrence of a Seller Default	44
Section 9.4	Seller’s Remedies Upon Occurrence of a Buyer Default	45
Section 9.5	Preservation of Rights	45
Section 9.6	Force Majeure	45
Section 9.7	Termination of PPAs	45
ARTICLE X. INDEMNIFICATION		46
Section 10.1	IP Indemnity	46
Section 10.2	Indemnification of Seller by Buyer	47
Section 10.3	Indemnification of Buyer by Seller	48
Section 10.4	Indemnity Claims Procedure	48
Section 10.5	Limitation of Liability	48
Section 10.6	No Duplication of Claims	49
Section 10.7	Survival	50
ARTICLE XI. MISCELLANEOUS PROVISIONS		50
Section 11.1	Amendment and Modification	50
Section 11.2	Intentionally Deleted	50
Section 11.3	Waiver of Compliance; Consents	50
Section 11.4	Notices	50
Section 11.5	Assignment; Subcontractors	51
Section 11.6	Dispute Resolution	52
Section 11.7	Governing Law, Jurisdiction, Venue	52
Section 11.8	Counterparts	52
Section 11.9	Interpretation	53
Section 11.10	Entire Agreement	53
Section 11.11	Construction of Agreement	53
Section 11.12	Severability	53
Section 11.13	[Reserved]	53
Section 11.14	Further Assurances	53

iii

TABLE OF CONTENTS

(continued)

Section 11.15	Independent Contractors	54
Section 11.16	Limitation on Export	54
Section 11.17	Time of Essence	54
Section 11.18	No Rights in Third Parties	54
Section 11.19	Co-ordination with Operator under O&M Agreement	54

ANNEXES
Annex A	Minimum Power Product Example Calculation
Annex B	Insurance
Annex C	Capacity Warranty Claim Example Calculation and Amounts Payable
EXHIBITS
Exhibit A	Form of Purchase Order
Exhibit B	Form of Bill of Sale
Exhibit C	[Reserved]
Exhibit D	Form of Certification of Installation
Exhibit E	Form of Independent Engineer Certification of Commissioning

iv

AMENDED AND RESTATED MASTER ENERGY SERVER PURCHASE AGREEMENT

This AMENDED AND RESTATED MASTER ENERGY SERVER PURCHASE AGREEMENT (this “Agreement”), dated as of December 21, 2012 (the “Agreement Date”), is entered into by and between BLOOM ENERGY CORPORATION, a Delaware corporation (“Seller”), and 2012 V PPA PROJECT COMPANY, LLC, a Delaware limited liability company (“Buyer”). Seller and Buyer are referred to in this Agreement individually, as a “Party” and, collectively, as the “Parties”.

RECITALS

WHEREAS, Seller is in the business of designing, constructing and installing on-site solid oxide fuel cell power generating systems capable of being powered by renewable fuels;

WHEREAS, Buyer is a company formed at the direction of Seller for the purpose of purchasing and owning Bloom Systems for the generation of electricity and sale of electricity and capacity generated by the Bloom Systems; and

WHEREAS, Buyer desires to purchase, and Seller desires to sell, Bloom Systems which will have an aggregate Baseload Capacity of up to 7.2 MW, and which Bloom Systems will be installed in certain Facilities in California when and as the conditions to such installation are met as provided in this Agreement.

WHEREAS, Buyer and Seller previously entered into that certain Master Energy Server Purchase Agreement, dated as of August 23, 2012 (“Existing MESPA”), and now wish to amend and restate that agreement as set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements hereinafter set forth, and intending to be legally bound hereby, the Parties agree as follows:

AGREEMENT

ARTICLE I.

DEFINITIONS

Section 1.1 Definitions. As used in this Agreement, capitalized terms not otherwise defined shall have the meanings set forth below:

“Actual kWh” means the actual energy output in kWh produced by each Bloom System and aggregated together.

“Administrative Services Agreement” means the Administrative Services Agreement dated as of the Agreement Date among Seller, Buyer and 2012 V PPA HoldCo, LLC, a Delaware limited liability company.

“Affiliate” of any Person means a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person specified, provided that neither Buyer’s Lender nor the Class A Member shall be considered an Affiliate of either Party.

“Agreement” is defined in the preamble.

“Agreement Date” is defined in the preamble.

“Appraisal Procedure” means within fifteen (15) days of a Party invoking the procedure described in this definition the Buyer and the Seller shall engage a Qualified Appraiser, mutually acceptable to them, to determine the Fair Market Value of a Bloom System.

“AT&T” means Pacific Bell Telephone Company a California corporation.

“AT&T Fleet” means all Bloom Systems owned by Buyer and purchased under this Agreement for installation pursuant to the AT&T PPA that have been Placed in Service.

“AT&T PPA” means that certain Power Purchase Agreement by and between Buyer and AT&T, dated as of June 29, 2012, as amended by the First Amendment thereto, dated September 26, 2012, and as superseded by that certain Energy System Use Agreement, dated as of December 19, 2012, and as may be further amended from time to time.

“Baseload Capacity” means, with respect to a Bloom System, the “Baseload Capacity” set forth on the applicable specification sheet provided by the manufacturer of such Bloom System.

“Bill of Sale” means a bill of sale in substantially the form attached hereto as Exhibit B.

“Bloom Systems” means all on-site solid oxide fuel cell power generating systems capable of being powered by renewable fuels designed, constructed and installed by Seller which will have an aggregate Baseload Capacity of up to 7.2 MW and which will be installed in the Facilities, and “Bloom System” means each such system.

“Bloom System Purchase Conditions” means for a relevant Bloom System that the Bloom System has not been Placed in Service, including specifically because the events described in clauses (2), (3), (4), (5)(a)(i) and 5(b)(i) of the definition of Placed in Service have not occurred, and that Commencement of Operations is reasonably expected to occur within thirty (30) days following Delivery.

2

“BOF” means, for each Site, the Electrical Interconnection Facilities, the natural gas supply facilities, the water supply facilities, the data communications facilities, the foundations for the Bloom Systems, and any other ancillary facilities and equipment installed in connection with the Facility at each Site and all other things ancillary to the Bloom Systems and required on or in the vicinity of the Site which are necessary to achieve Commencement of Operations at each such Site.

“BOF Work” is defined in Section 3.3(a).

“Business Day” means a day other than a Saturday, Sunday or other day on which banks in New York, New York, or San Francisco, California, are authorized or required to close.

“Buyer” is defined in the preamble.

“Buyer Default” is defined in Section 9.2.

“Buyer Indemnitee” is defined in Section 10.3.

“Buyer’s Lender” means PE12GVVC (Bloom PPA) Ltd., an Alberta limited liability corporation, and PE12PXVC (Bloom PPA) Ltd., an Alberta limited liability corporation, any trustee or agent acting on their behalf, and their permitted successors and assigns as referred to in the Loan Agreement.

“Calendar Quarter” means each period of three months ending on March 31, June 30, September 30, and December 31.

“Capacity Warranty” is the Quarterly Capacity Warranty and the One-Year Capacity Warranty as defined in Section 8.6.

“Capacity Warranty Period” means the Quarterly Capacity Warranty Period or the One-Year Capacity Warranty Period, as applicable.

“Claiming Party” is defined in Section 9.6.

“Class A Member” has the meaning set forth in the Holdco LLC Agreement.

“Code” means the Internal Revenue Code of 1986, as amended.

“Commencement of Operations” means, with respect to any Facility, the completion and the performance of all of the following activities:

(a) each Bloom System comprising such Facility has been Delivered;

(b) each Bloom System comprising such Facility has been Placed in Service;

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(c) each Bloom System comprising such Facility (i) has been attached to the load at the applicable Site and (ii) is performing at the Warranty Specifications (measured over a 24 hour period and on a Facility-specific basis and not over the Look Back Period or on a Portfolio-specific basis as referenced in the definition of Warranty Specifications; provided that for this purpose the percentage in “Minimum Power Product” shall be deemed to be 100% rather than 85%.

(d) Seller has performed and successfully completed all necessary acts under the applicable Interconnection Agreement (including performance testing) and has obtained permission from the applicable Person granting Buyer permission to interconnect such Facility with the distribution or transmission facilities of the Transmitting Utility;

(e) Seller shall have furnished a written certification, in the form attached hereto as Exhibit D from Seller addressed to Buyer with a copy to the Independent Engineer certifying, without any qualification, that Seller has installed each Bloom System comprising such Facility in accordance with the Performance Standards;

(f) Seller shall have provided to the Independent Engineer, on behalf of Buyer, all Documentation reasonably required by the Independent Engineer for the Bloom System to achieve commercial operation; and

(g) Seller shall have furnished a written certification from the Independent Engineer in the form of Exhibit E addressed to Buyer and to Buyer’s Lender certifying, without any qualification, that (i) such Facility’s installation and commissioning requirements pursuant to this Agreement have been successfully completed, (ii) such Facility has achieved commercial operation, (iii) Seller has installed all BOF Work necessary for the operation of such Facility, and (iv) each of the requirements set out in paragraphs (a) to (f) of this definition have been satisfied.

“Confidential Information” is defined in Section 6.1.

“Corresponding Entitlement” is defined in Section 3B.1.

“DDP (Incoterms 2010)” means Delivered Duty Paid (DDP) as such term is used in the International Rules for the Interpretation of Trade Terms (identified as “INCOTERMS® 2010”) as prepared by the International Chamber of Commerce.

“Deemed Delivered Energy” is defined in Section 8.11(a).

“Delivery” is defined in Section 2.3.

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“Delivery Date” means, with respect to each Bloom System, the date of Delivery as described in Section 2.3.

“Documentation” means all documentation, including testing, engineering, specification and operation and maintenance manuals, training materials, drawings, reports, standards, schematics, directions, samples and patterns in computer and readable form, which is necessary to meet the requirements of Section 3.4.

“ECCA” means that certain Equity Capital Contribution Agreement between Firstar Development, LLC and Clean Technologies III, LLC, dated as of the Agreement Date.

“Efficiency” means the quotient of E/F, where E = the electricity produced by the applicable Fleet, Facility or Bloom System, measured in BTUs (British Thermal Units) at a conversion rate of 3,412 BTUs per kWh, and F = the fuel consumed by such Fleet, Facility or Bloom System, as applicable, measured in BTUs on a lower heating value basis.

“Efficiency Warranty” has the meaning provided in Section 8.7.

“Efficiency Warranty Period” has the meaning provided in Section 8.7.

“Electrical Interconnection Facilities” means the equipment and facilities required to safely and reliably interconnect a Facility to the transmission system of the Transmitting Utility, including the collection system between each Bloom System, transformers and all switching, metering, communications, control and safety equipment, including the facilities described in any applicable Interconnection Agreement.

“Energy” means three-phase, 60-cycle alternating current electric energy constituting the Actual kWh.

“Existing MESPA” is defined in the recitals.

“Facility” means the Bloom Systems and the BOF at a Site.

“Fair Market Value” means, with respect to any Facility, Bloom System or part thereof, the price at which such asset would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell, and both having reasonable knowledge of the relevant facts, and specifically with respect to the Facility or any portion thereof, as determined consistently with Section 4.05 of Revenue Procedure 2007-65.

“FERC” means the Federal Energy Regulatory Commission and any successor.

“Fleet” means the AT&T Fleet and the Wal-Mart Fleet.

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“Force Majeure Event” means any event or circumstance that (a) prevents a Party from performing its obligations under this Agreement; (b) was not reasonably foreseeable by such Party; (c) was not within the reasonable control of, or the result of the negligence of such Party or a breach of this Agreement by such Party; and (d) such Party is unable to reasonably mitigate, avoid or cause to be avoided with the exercise of due diligence. “Force Majeure Events” shall include failure or interruption of performance due to: an act of God, civil or military authority, war, civil disturbances, terrorist activities, fire, explosions, the external power delivery system (a/k/a the grid) being out of the required specifications or totally failing (a/k/a brownout or blackout), or electric grid curtailment. Force Majeure Event does not include the lack of economic resources of a Party, Seller’s failure to design and construct the Bloom Systems and the BOF so as to meet the respective warranties hereunder, or the gas supplier’s failure to comply with gas delivery, quality or pressure requirements. If an event or circumstance gives rise to a Force Majeure Event as defined herein under this Agreement, but such event or circumstance does not also constitute a ‘Force Majeure Event’ as defined under the AT&T PPA or Wal-Mart PPA or both, as applicable depending on which Facilities are affected, then for the purposes of any rights and obligations of the parties under this Agreement that relate to corresponding rights or obligations under the AT&T PPA or Wal-Mart PPA (as the case may be) such event or circumstance will not constitute a Force Majeure Event under this Agreement.

“Funding Date” means either the Initial Funding Date or the True Up Funding Date, as applicable.

“Governmental Approvals” means (a) any authorizations, consents, approvals, licenses, rulings, permits, tariffs, rates, certifications, variances, orders, judgments, decrees by or with a relevant Governmental Authority and (b) any required notice to, any declaration of, or with, or any registration or filing by, or with, any relevant Governmental Authority.

“Governmental Authority” means any foreign, federal, state, local or other governmental, regulatory or administrative agency, court, commission, department, board, or other governmental subdivision, legislature, rulemaking board, court, tribunal, arbitrating body or other governmental authority.

“Guidance” means the guidance issued on July 9, 2009, by the United States Department of the Treasury for payments for specified energy property in lieu of tax credits under the American Recovery and Reinvestment Act of 2009 (as updated on March 15, 2010 and in April 2011), the Frequently Asked Questions and Answers issued by the United States Department of the Treasury on January 8, 2010 and June 25, 2010, as updated in April 2011, and any other guidance or clarification, addition or supplement thereto issued by the United States Department of the Treasury or any other Governmental Authority.

“Holdco LLC Agreement” means that certain Amended and Restated Operating Agreement of 2012 V PPA Holdco, LLC to be entered into at a later date.

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“Indemnifiable Loss” means any claim, demand, suit, loss, liability, damage, obligation, payment, cost or expense (including the cost and expense of any action, suit, proceeding, assessment, judgment, settlement or compromise relating thereto and reasonable attorneys’ fees and reasonable disbursements in connection therewith).

“Indemnified Party” is defined in Section 10.4.

“Indemnifying Party” is defined in Section 10.4.

“Independent Engineer” means SAIC Energy, Environment & Infrastructure, LLC or such other Person mutually agreed upon by the Parties in writing.

“Initial Funding Date” is defined in the ECCA.

“Intellectual Property” shall mean any or all of the following and all rights therein, whether arising under the laws of the United States or any other jurisdiction (i) all patents and patent applications (and all reissues, divisions, re-examinations, renewals, extensions, provisionals, continuations and continuations-in-part thereof), patent disclosures and inventions (whether patentable or not); (ii) all trade secrets, know-how and confidential and proprietary information; (iii) all copyrights and copyrightable works (including computer programs) and registrations and applications therefor and any renewals, modifications and extensions thereof; (iv) all moral and economic rights of authors and inventors, however denominated, throughout the world; (v) unregistered and registered design rights and any registrations and applications for registration thereof; (vi) trademarks, service marks, trade names, service names, brand names, trade dress, logos, slogans, corporate names, trade styles, domain names and other source or business identifiers, whether registered or not, together with all applications therefor and all extensions and renewals thereof and all goodwill associated therewith; (vii) semiconductor chip “mask” works, and registrations and applications for registration thereof, (viii) database rights; (ix) all other forms of intellectual property, including waivable or assignable rights of publicity or moral rights; and (x) any similar, corresponding or equivalent rights to any of the foregoing anywhere in the world.

“Interconnection Agreement” means an agreement between the PPA Customer (or the Buyer (as required)) and the applicable Transmitting Utility regarding interconnection of a Facility to the transmission or distribution system of such Transmitting Utility.

“Interconnection Point” means, with respect to each Facility, the point at which title and risk of loss with respect to the electricity produced by such Facility passes to the applicable PPA Customer.

“IP Infringement Liability Cap” means the greater of (i) the aggregate Purchase Price of all Bloom Systems; and (ii) any liability cap that limits the Seller’s liability for any infringement of any third party intellectual property which is agreed in writing by the Seller and any other purchaser of a Bloom system at any time after the date of this Agreement.

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“IP License” has the meaning provided in Section 7.1.

“IRS” means the Internal Revenue Service.

“kW” means kilowatt.

“kWh” means kilowatt-hour.

“Legal Requirement” means any law, statute, act, decree, ordinance, rule, directive (to the extent having the force of law), tariff, order, treaty, code or regulation or any interpretation of any of the foregoing, as enacted, issued or promulgated by any Governmental Authority, including all amendments, modifications, extensions, replacements or re-enactments thereof, in each case applicable to or binding upon such Person or any of its properties or to which such Person or any of its property is subject.

“Liens” means any lien, security interest, mortgage, hypothecation, encumbrance or other restriction on title or property interest.

“Loan Agreement” means the agreement between the Buyer and the Buyer’s Lender or thereafter any subsequent, additional or alternative lenders pursuant to which the Buyer’s Lender provides finance or enters into a funding arrangement with Buyer to finance all or part of the costs of the Purchase Price of the Bloom Systems.

“Look Back Period” means, with respect to a Bloom System, each calendar year.

“Maximum Liability” means, with respect to Seller, the aggregate Residual Value of the Portfolio as of such date, and with respect to Buyer, One Million Dollars ($1,000,000); provided that a reduction in the Maximum Liability of Seller shall never result in a requirement for Buyer or any Buyer Indemnitee to return any money to Seller. Maximum Liability will be determined on an aggregate basis between this Agreement and the O&M Agreement.

“Minimum Efficiency Level” means (i) an Efficiency quotient of 45% measured over the Efficiency Warranty Period and (ii) for the purposes of each PPA, an efficiency quotient meeting the requirements under the Wal-Mart PPA and the AT&T PPA (as the case may be) and measured at the times required therein.

“Minimum kWh” means the product of (x) the number of hours in the applicable Capacity Warranty Period minus the number of hours for each Bloom System at the applicable Site or in the Portfolio, as applicable, as of the last day of the applicable Capacity Warranty Period following Commencement of Operations with respect to such Bloom System when each such Bloom System (i) was subject to a Force Majeure Event,

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(ii) was not delivering Energy because of a failure to perform by the applicable PPA Customer, except to the extent caused or contributed to by Seller or its employees, agents, subcontractors or representatives, or (iii) was required by a Legal Requirement (which for this purpose shall include any utility requirement) to be disconnected from the distribution or transmission facilities of the Transmitting Utility or otherwise required not to deliver Energy as the result of a Legal Requirement or action by or a directive from the applicable Transmitting Utility with respect to such Bloom System (e.g., due to a grid event), except to the extent caused or contributed to by Seller or its employees, agents, subcontractors and representatives, and (y) the Minimum Power Product for the applicable Capacity Warranty Period.

“Minimum Power Product” means (1) when this term is used for the Quarterly Capacity Warranty, the aggregate Baseload Capacity of the Bloom Systems incorporated into the applicable Facility for the applicable Capacity Warranty Period multiplied by 80% and (2) when this term is used for the One-Year Capacity Warranty, the aggregate Baseload Capacity of the Bloom Systems in the Portfolio in kW for the applicable Capacity Warranty Period multiplied by 95%. An example of a calculation of the Minimum Power Product is set forth in Annex A.

“MW” means megawatt.

“O&M Agreement” means the Master Operation and Maintenance Agreement, dated on or about the Agreement Date, between Seller and Buyer, providing for the maintenance and extended warranty of the Bloom Systems sold to Buyer under this Agreement.

“One-Year Capacity Warranty” has the meaning provided in Section 8.6.

“One-Year Capacity Warranty Period” means, with respect to a Bloom System, each calendar year following the Commencement of Operations of the Facility into which such Bloom System is incorporated (or, in the case of the calendar year in which delivery of a Bloom System has occurred, the portion of such calendar year commencing on the date such Facility achieved Commencement of Operations).

“One-Year Warranty Cap” has the meaning provided in Section 8.3(d).

“Operator” means the operation and maintenance contractor for the Bloom Systems, which at the date of this Agreement is the “Operator” as defined in the O&M Agreement.

“Party” and “Parties” have the meanings set forth in the preamble.

“Performance Standards” has the meaning provided in Section 3.9.

“Permits” means all Governmental Approvals that are necessary under applicable Legal Requirements, this Agreement, or the O&M Agreement to have been obtained at such time in light of the stage of development of the Portfolio to site, construct, test, operate,

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maintain, repair, lease, own or use each Facility as contemplated in this Agreement or the O&M Agreement, to sell electricity from the Portfolio or for a Party to enter into this Agreement or to consummate any transaction contemplated hereby, in each case in accordance with all applicable Legal Requirements.

“Permitted Liens” means any (a) Liens that are released or otherwise terminated at or prior to the Delivery Date of the encumbered assets; (b) obligations or duties to any Governmental Authority arising in the ordinary course of business (including under licenses and Permits held by Buyer and under all applicable laws, rules, regulations and orders of any Governmental Authority); (c) obligations or duties under easements, leases or other property rights; (d) Liens in favor of Buyer’s Lender; and (e) any other Liens agreed to in writing by Seller and Buyer.

“Person” means any individual, partnership, limited liability company, joint venture, corporation, trust, unincorporated organization, or governmental entity or any department or agency thereof.

“Physical Delivery” means for each Bloom System, physical delivery of such Bloom System to its Site.

“Physical Delivery Date” means for each Bloom System, the date of Physical Delivery.

“Placed in Service” means, with respect to any Bloom System, the completion and performance of all of the following activities: (1) obtaining the necessary licenses and Permits for the operation of such Bloom System and the sale of power generated by the Bloom System in accordance with clause (4) of this definition, (2) completion of critical tests necessary for the proper operation of such Bloom System in accordance with clause (4) of this definition, (3) synchronization of such Bloom System onto the electric distribution and transmission system of the applicable Transmitting Utility, (4) the commencement of regular, continuous, daily operation of such Bloom System, and (5) (a) for each Bloom System that is intended to be part of the AT&T portion of the Portfolio, (i) the Interconnection Notice (under and as defined in the AT&T PPA) has been received by AT&T and the date specified in such Interconnection Notice for the “Commencement of Operations” has occurred, and (ii) the Independent Engineer is reasonably satisfied that AT&T has not disputed “Commencement of Operations” for those Bloom Systems; and (b) for each Bloom System that is intended to be part of the Wal-Mart portion of the Portfolio (i) the Completion Notice (under and as defined in the Wal-Mart PPA) has been received by Wal-Mart and the “Commercial Operation Date” under Section 3.3(c) of the Wal-Mart PPA has occurred and (ii) the Independent Engineer is reasonably satisfied that Wal-Mart has not disputed that such “Commercial Operation Date” has occurred for those Bloom Systems.

“Portfolio” means, on an aggregate basis, all Bloom Systems owned by Buyer that are purchased pursuant to this Agreement and that have been Placed in Service.

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“Portfolio Warranty” is defined in Section 8.1.

“PPA” means each of the AT&T PPA and the Wal-Mart PPA.

“PPA Customer” means each non-Buyer counter-party to a PPA.

“PPA Warranties” has the meaning provided in Section 8.9.

“Prudent Electrical Practices” means those practices, methods, equipment, specifications and standards of safety and performance, as the same may change from time to time, as are commonly used by a significant portion of the grid-tied electrical generation industry operating in the United States as good, safe and prudent engineering practices in connection with the design, construction, operation, maintenance, repair and use of electrical and other equipment, facilities and improvements of such electrical generating facility, including any applicable practices, methods, acts, guidelines, standards and criteria of FERC and all applicable Legal Requirements.

“Purchase Order” means a purchase order for Bloom Systems to be purchased by Buyer in substantially the form of Exhibit A.

“Purchase Price” means a purchase price for each Bloom System, based on the Baseload Capacity for such Bloom System, calculated at $[***] per kW, plus any Taxes for the account of Buyer under Section 2.2(d) in respect of such Bloom System.

“Qualified Appraiser” means a nationally recognized third-party appraiser reasonably acceptable to Buyer and Seller which shall (i) be qualified to appraise power systems similar to the Bloom Systems, and/or experienced in such businesses in the general geographic region of the relevant Facility, (ii) have been engaged in the appraisal or business valuation and consulting business for a period of not less than five years, and (iii) not be associated with either Buyer or Seller or any Affiliate thereof.

“Quarterly Capacity Warranty” has the meaning provided in Section 8.6.

“Quarterly Capacity Warranty Period” means, with respect to a Bloom System, each Calendar Quarter following the Commencement of Operations of the Facility into which such Bloom System is incorporated (or, in the case of the Calendar Quarter in which delivery of a Bloom System has occurred, the portion of such Calendar Quarter commencing on the date such Facility achieved Commencement of Operations).

“Quarterly Warranty Cap” has the meaning provided in Section 8.3(d).

“REC Agreement” means the agreement between the Seller and the Buyer titled REC PURCHASE AND SALE AGREEMENT dated on or around the Agreement Date providing for the sale of renewable energy certificates by the Seller to the Buyer for the purpose of the Seller enabling the Buyer to comply with the Wal-Mart PPA including under Section 5.3(a) of the Wal-Mart PPA.

[***] Confidential Treatment Requested

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“Recoverable Amount” has the meaning provided in Section 3B.2(f).

“Refund Value” means, with respect to any Bloom System (including any Underperforming System), the Residual Value of such Bloom System, as calculated as of the date that Seller becomes obligated to refund such amount to Buyer.

“Representatives” of a Party means such Party’s authorized representatives, including its professional and financial advisors.

“Residual Value” means, for any Bloom System, the greater of (a) the Fair Market Value of that Bloom System (as determined under the Appraisal Procedure if the Buyer and Seller cannot agree as to that Fair Market Value within [***] days), and (b) 100% of the Purchase Price for such Bloom System until the first anniversary of Commencement of Operations of the Facility into which such Bloom System is incorporated, declining by [***] (i.e. [***]) on each anniversary of such date thereafter (for example, on the fifth anniversary of Commencement of Operations, the Residual Value will be [***]% of the Purchase Price).

“Revenue Account” is defined in the Loan Agreement.

“SCADA” means the supervisory control and data acquisition systems.

“Seller” is defined in the preamble.

“Seller Default” is defined in Section 9.1.

“Seller Indemnitee” is defined in Section 10.2.

“Service Provider” means an operation and maintenance contractor appointed by the Operator (as defined in the O&M Agreement) and approved by the Owner (as defined in the O&M Agreement) pursuant to the terms of the O&M Agreement.

“SGIP Proceeds Account” is defined in the Loan Agreement.

“Shortfall Event License” means the Intellectual Property license issued by the Seller to the Buyer titled ‘INTELLECTUAL PROPERTY LICENSE’ and dated on or around the Agreement Date.

“Site” means the parcel of land leased or licensed from a PPA Customer to Buyer under a Site Lease and all easements appurtenant, easements in gross, license agreements and other rights running in favor of Buyer which provide access to the applicable Facility.

[***] Confidential Treatment Requested

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“Site Lease” means an agreement between Buyer and a PPA Customer regarding the lease, license, or similar contractual arrangement providing Buyer with the right of access to a Site for the purposes of performing Buyer’s obligations pursuant to the applicable PPA. If Buyer’s right of access to a Site is contained within a PPA, then the term “Site Lease”, with respect to such Site, shall mean the provisions for access to that Site contained in such PPA.

“Site Preparation Services” means preparing each Site for installation of a Facility, obtaining the required Permits to construct, operate and maintain the Facility, and providing for gas interconnection facilities, the Electrical Interconnection Facilities and any other ancillary facilities and equipment between the Bloom Systems and the applicable Transmitting Utility and otherwise performing the tasks required to prepare each Site for the Facility at the Site to attain Commencement of Operations.

“Software” shall mean all computer software that is necessary for Buyer to own and operate the Systems in compliance with the terms of this Agreement and the PPAs.

“Software License” is defined in Section 7.2.

“Tax” (and, with correlative meaning, “Taxes” and “Taxable”) means:

(i) any taxes, customs, duties, charges, fees, levies, penalties or other assessments imposed by any federal, state, local or foreign taxing authority, including, but not limited to, income, gross receipts, windfall profit, severance, property, production, sales, use, license, excise, franchise, net worth, employment, occupation, payroll, withholding, social security, alternative or add-on minimum, ad valorem, transfer, stamp, or environmental tax, or any other tax, custom, duty, fee, levy or other like assessment or charge of any kind whatsoever, together with any interest, penalty, addition to tax, or additional amount attributable thereto; and

(ii) any liability for the payment of amounts with respect to payment of a type described in clause (i), including as a result of being a member of an affiliated, consolidated, combined or unitary group, as a result of succeeding to such liability as a result of merger, conversion or asset transfer or as a result of any obligation under any tax sharing arrangement or tax indemnity agreement.

“Third Party Claim” means any claim, action, or proceeding made or brought by any Person who is not (a) a Party to this Agreement, or (b) an Affiliate of a Party to this Agreement (and that is not a claim based on breach by the Indemnified Party of its obligations under this Agreement).

“Transaction Documents” means this Agreement, the O&M Agreement, the Administrative Services Agreement, the REC Agreement and the Shortfall Event License.

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“Transmitting Utility” means, with respect to a Facility, the local electric utility company in whose territory the Facility is located.

“True Up Funding Date” is defined in the ECCA.

“Underperforming System” has the meaning set forth in Section 8.3(d).

“Wal-Mart” means Wal-Mart” Stores, Inc.

“Wal-Mart” Fleet” means all Bloom Systems owned by Buyer and purchased under this Agreement for installation pursuant to the Wal-Mart” PPA that have been Placed in Service within a single United States state.

“Wal-Mart” PPA” means that certain Fuel Cell Power & Services Agreement by and between Buyer and Wal-Mart dated as of July 24, 2012, as amended by Amendment No. 1 thereto, dated as of August 24, 2012, and superseded by the Amended and Restated Master Fuel Cell Power & Services Agreement between Buyer and Wal-Mart with respect to the Bloom Systems described herein, dated as of December 11, 2012, and as may be further amended from time to time.

“Warranty Period” means, for each Bloom System, the period beginning on the date of Commencement of Operations of the Facility into which such Bloom System and BOF is incorporated and ending on the first anniversary of such date.

“Warranty Specifications” means the Capacity Warranty and the Efficiency Warranty.

Section 1.2 Other Definitional Provisions.

(a) As used in this Agreement and in any certificate or other documents made or delivered pursuant hereto or thereto, financial and accounting terms not defined in this Agreement or in any such certificate or other document, and financial and accounting terms partly defined in this Agreement or in any such certificate or other document to the extent not defined, will have the respective meanings given to them under GAAP. To the extent that the definitions of financial and accounting terms in this Agreement or in any such certificate or other document are inconsistent with the meanings of such terms under GAAP, the definitions contained in this Agreement or in any such certificate or other document will control.

(b) The words “hereof”, “herein”, “hereunder”, and words of similar import when used in this Agreement will refer to this Agreement as a whole and not to any particular provision of this Agreement. Section references contained in this Agreement are references to Sections in this Agreement unless otherwise specified. The term “including” will mean “including without limitation”.

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(c) The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms.

(d) Any agreement, instrument or statute defined or referred to herein or in any instrument or certificate delivered in connection herewith means (unless otherwise indicated herein) such agreement, instrument or statute as from time to time amended, modified or supplemented and includes (in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein.

(e) Any references to a Person are also to its permitted successors and assigns.

ARTICLE IA.

AMENDED AND RESTATED MASTER ENERGY SERVER PURCHASE AGREEMENT

Section 1A.1 Confirmation of Amendment and Restatement.

(a) This Agreement shall (i) amend and restate the Existing MESPA in its entirety as of the Agreement Date on the terms and subject to conditions set forth herein, and (ii) not constitute a novation of the obligations and liabilities existing under the Existing MESPA.

(b) From and after the Agreement Date, the Existing MESPA and any rights or obligations under the Existing MESPA shall be of no further force or effect and each Party is released from all claims, obligations and liabilities under or in connection with the Existing MESPA.

ARTICLE II.

PURCHASE AND SALE

Section 2.1 Purchase Orders.

(a) Buyer may, from time to time, submit Purchase Orders to Seller for the purchase of Bloom Systems (not to exceed, in the aggregate, 7.2 MW in Baseload Capacity) in accordance with the terms hereof. So long as no Buyer Default has occurred and is continuing hereunder, Seller shall promptly accept each such Purchase Order by countersigning and returning it to Buyer; provided that the failure of Seller to countersign or return to Buyer a Purchase Order shall not invalidate such Purchase Order and Seller shall be obligated to deliver the Bloom System under such Purchase Order as contemplated by this Agreement.

(b) Each Purchase Order shall specify, among other details required by the terms thereof, (i) the aggregate Baseload Capacity of Bloom Systems ordered, (ii) the Sites to which such Bloom System shall be delivered, (iii) the aggregate Baseload Capacity to be delivered to each Site, and (iv) the requested Physical Delivery Date for the Bloom System.

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Section 2.2 Payment of Purchase Price. For each Bloom System for which Buyer has submitted a Purchase Order:

(a) Seller shall invoice Buyer for payment of the Purchase Price for such Bloom System as follows:

(i) upon the Physical Delivery Date of the Bloom System, [***] of the Purchase Price (including 100% of the Taxes included in the Purchase Price) for each Bloom System for which Physical Delivery has occurred; and

(ii) upon Commencement of Operations for the Facility into which each Bloom System is incorporated, [***] of the Purchase Price (excluding all Taxes included in the Purchase Price) for such Bloom System.

(b) [Reserved].

(c) Each invoice shall include the following information for each applicable Bloom System:

(i) the Site on which the Bloom System is installed or will be installed;

(ii) the serial number, Baseload Capacity and purchase order number;

(iii) the Purchase Price, including details of (x) all amounts previously paid towards or credited against the Purchase Price, and (y) all amounts remaining due and payable on the Purchase Price;

(iv) the Physical Delivery Date or expected Physical Delivery Date, as applicable;

(v) the date of Delivery or expected date of Delivery, as applicable;

(vi) for each invoice provided upon Commencement of Operations for a Facility, a copy of the written certification by the Independent Engineer for that Facility as required by paragraph (g) of the definition of ‘Commencement of Operations’; and

(vii) such other information as Buyer may reasonably request.

(d) Buyer shall pay all state and local sales, use or other transfer Taxes required to be paid by Buyer and attributable to the transfer of the Bloom System to

[***] Confidential Treatment Requested

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Buyer, except that Seller shall be responsible for and pay any Taxes arising as a result of any components of such Bloom Systems or any Bloom Systems being acquired from a source outside of the United States.

(e) Payments of the portion of Purchase Price set forth in Section 2.2(a)(i) for a Bloom System may be paid upon or after the date of receipt by Buyer of an invoice pursuant to Section 2.2(a)(i) with respect to a Bloom System and will be due five (5) Business Days following both (i) the next Funding Date for the Bloom System following the receipt by Buyer of an invoice pursuant to Section 2.2(a)(i) with respect to a Bloom System, and (ii) the date of certification to Buyer that on the date of Physical Delivery of the Facility into which such Bloom System is incorporated, the Bloom System Purchase Conditions were true and correct. Interest shall accrue daily on sums not paid when due, at the lesser of a monthly rate of one and five-tenths percent (1.5%) or the highest rate permissible by law on the unpaid balance.

(f) Final payments of the Purchase Price set forth in Section 2.2(a)(ii) may be paid upon or after the date of receipt by Buyer of an invoice pursuant to Section 2.2(a)(ii) with respect to a Bloom System and will be due five (5) Business Days following the latest of (i) the next Funding Date following the receipt by Buyer of an invoice pursuant to Section 2.2(a)(ii) with respect to a Bloom System, (ii) the date of funding of the portion of the final payment of the Purchase Price set forth in Section 2.2(a)(ii) that is to be funded under the Loan Agreement and (iii) the date of certification to Buyer that Commencement of Operations of the Facility into which such Bloom System is incorporated has occurred. Interest shall accrue daily on sums not paid when due, at the lesser of a monthly rate of one and five-tenths percent (1.5%) or the highest rate permissible by law on the unpaid balance.

(g) If Buyer defaults in any payment when due for any Bloom System (other than with respect to amounts being disputed in good faith), Seller may, on not less than five (5) Business Days prior notice to Buyer, at its option and without prejudice to its other remedies, (i) suspend performance of its obligations hereunder for such Bloom System, or defer delivery of such Bloom System to Buyer and (ii) require that (until all such outstanding payment defaults have been cured) the payment of the portion of the Purchase Price for future Bloom Systems required under Section 2.2(a)(ii) above be made immediately prior to the delivery of such Bloom System, but Seller shall not be able to otherwise suspend performance of its obligations hereunder for other Bloom Systems for which no such default exists.

(h) Seller shall promptly pay all subcontractors working on the Bloom Systems delivered and installed under this Agreement. Seller shall discharge any Liens by such subcontractors within thirty (30) days of receiving notice thereof. Seller shall release all Liens in favor of Seller on each Bloom System upon final payment of the Purchase Price for such Bloom System. After receipt of the portion of the Purchase Price for each Bloom System as provided in Section 2.2(a)(i), Seller will issue a statement of

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the balance of the Purchase Price for such Bloom System, being the amount which, once paid to Seller, will cause Seller to release its lien on the Bloom System. Seller hereby agrees that third parties, such as, without limitation, Buyer’s Lenders, may rely on each such statement.

(i) Notwithstanding the foregoing in this Section 2.2 or any other provision of this Agreement to the contrary, if Buyer (a) admits in writing its inability to pay its debts generally as they become due; (b) files a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other applicable law or statute of the United States of America or any State, district or territory thereof; (c) makes an assignment for the benefit of creditors; (d) consents to the appointment of a receiver of the whole or any substantial part of its assets; (e) has a petition in bankruptcy filed against it, and such petition is not dismissed within ninety (90) days after the filing thereof; or if (f) a court of competent jurisdiction enters an order, judgment, or decree appointing a receiver of the whole or any substantial part of Buyer’s assets, and such order, judgment or decree is not vacated or set aside or stayed within ninety (90) days from the date of entry thereof; or (g) under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the whole or any substantial part of Buyer’s assets and such custody or control is not terminated or stayed within ninety (90) days from the date of assumption of such custody or control, then Seller shall have no obligation to deliver any Bloom System hereunder, or if Physical Delivery for a Bloom System has already occurred, Seller shall have the right to require immediate payment of any amount due under Section 2.2(a)(i) and the right to require that the final payment of the Purchase Price for such Bloom System be made promptly (but no earlier than Commencement of Operations of such Bloom System).

Section 2.3 Purchase and Sale of Bloom Systems. Upon the “Delivery Date” for a Bloom System as provided in the invoice described in Section 2.2(a)(i) above, which date in any case may not be earlier than when Physical Delivery occurs, nor any later than the date for which the Bloom System Purchase Conditions for the Bloom System are and remain true and correct, (i) Seller shall have sold, assigned, conveyed, transferred and delivered to Buyer, and Buyer shall have purchased, assumed and acquired from Seller, all of Seller’s right, title and interest in and to such Bloom System, (ii) the sale of such Bloom System shall occur, and (iii) Seller shall provide Buyer with (a) a Bill of Sale evidencing the same and (b) lien waivers from each subcontractor performing BOF Work at the applicable Site, stating that such subcontractor has been paid all amounts owed to it as of the date of the lien waiver (the foregoing being “Delivery”).

Section 2.4 PPA Termination and Re-Purchase of Bloom Systems. Subject to Section 9.7, in the event that (i) a PPA Customer terminates a PPA with respect to a Bloom System prior to its expiration, (ii) the applicable PPA Customer pays Buyer the termination value due under the applicable PPA, and (iii) Buyer has paid all amounts owed by it to Buyer’s Lender under the Loan Agreement in respect of the applicable PPA termination, then Seller shall be obligated to

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purchase from Buyer, and Buyer shall be obligated to sell to Seller, the Bloom System for which the PPA is being terminated for a purchase price of $1.00 in consideration of Seller hereby agreeing to take all responsibilities to the applicable PPA Customer under the relevant PPA and otherwise for relocating, redeploying and paying the PPA Customer any moneys in relation thereto if applicable. The Seller hereby indemnifies Buyer against all claims made by, and liabilities to, the PPA Customer in respect of such Bloom System after such PPA termination. Title to such Bloom System shall transfer to Seller upon the date that Seller pays the purchase price of $1.00 to Buyer.

ARTICLE III.

DELIVERY AND INSTALLATION OF SYSTEMS AND BALANCE OF FACILITIES

Section 3.1 Access to Site. Seller shall be responsible for ascertainment of the suitability of the Sites, the environment around the Sites, the Sites’ soil condition and other ground conditions for construction of the Facilities. As between Seller and Buyer, Seller shall be solely responsible for all Site Preparation Services at Seller’s cost. Seller, as administrator for Buyer pursuant to the Administrative Services Agreement shall provide access to the Sites to permit Seller to deliver and install each Bloom System and the BOF to the Sites and to connect the applicable Facility to the distribution and transmission facilities of the Transmitting Utility, as applicable. If a PPA Customer requires a change in the location of a Site from that specified in a Purchase Order, (a) Buyer shall submit a written notice to Seller setting forth the details of such location change, (b) the Seller shall administer and perform the Site Preparation Services as required for that changed location to the extent required and in accordance with the relevant PPA and (c) to the extent that such PPA Customer pays to Buyer an amount under the applicable PPA in connection with such required change in the location of a Site, Buyer shall pay the same to Seller promptly upon receipt from such PPA Customer.

Section 3.2 Physical Delivery of Bloom Systems.

(a) Physical Delivery of each Bloom System shall occur no more than sixty (60) days after the issuance of the applicable Purchase Order.

(b) Physical Delivery of each Bloom System shall be DDP (Incoterms 2010) to its Site, in accordance with the California Uniform Commercial Code then in effect. Title to each Bloom System shall pass to Buyer upon Seller’s Delivery of such Bloom System, and such title shall be good and marketable and free of all Liens, except as provided in Section 2.2(h). From and after Seller’s Delivery of each Bloom System to Buyer all risk of loss or damage to such Bloom System shall be borne by Buyer.

(c) [Reserved].

(d) To the extent any Facility has not achieved Commencement of Operations within the earlier of six (6) months of the payment of the portion of Purchase Price set forth in Section 2.2(a)(i) for the final Bloom System to be incorporated into such Facility and June 30, 2013, then Buyer shall have the ongoing right for the period from the end of

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that six-month period until the earlier of the date that such Facility has achieved Commencement of Operations and ninety (90) days after the end of that six-month period, to elect that each Bloom System to be incorporated into such Facility be removed from its Site and delivered to Seller at Seller’s expense in an AS IS condition and that Seller promptly (but in no event later than thirty (30) days thereafter) (i) pay the Buyer the excess of the greater of (1) the Purchase Price of the Bloom System and (2) the then Fair Market Value of such Bloom System (as determined by the Appraisal Procedure if the Buyer and Seller cannot agree to such Fair Market Value within ten (10) days), over the remaining Purchase Price to be paid for that Bloom System set forth in Section 2.2(a)(ii), at which time title and risk of loss with respect to such Bloom System shall pass back to Seller, and (ii) restore that portion of the Site which was improved to accept the installation of such removed Bloom System.

Section 3.3 Delivery of Balance of Facility; Installation of Bloom Systems.

(a) Seller shall be responsible for engineering, procuring, constructing, installing and commissioning the BOF, and Seller shall cause each Facility to achieve Commencement of Operations without any compensation or reimbursement by Buyer, other than the Purchase Price under this Agreement, in accordance with the following (collectively, the “BOF Work”):

(i) Seller shall perform and complete all BOF Work in accordance and consistent with the Performance Standards;

(ii) Seller shall cause to be performed any and all studies, reports and applications (in the name of Buyer, if Seller is an Affiliate of Buyer) that are necessary for interconnection to the distribution and transmission facilities of the Transmitting Utility;

(iii) Seller shall perform the BOF Work and act at all times as an independent contractor. Seller shall at all times maintain such supervision, direction and control over its employees, agents, subcontractors and representatives as is consistent with and necessary to preserve its independent contractor status. Seller is permitted to enter into contracts or otherwise hire one or more subcontractors to perform the Seller’s work on its behalf. Each subcontractor must be a reputable, qualified firm with an established record of successful performance in its trade, and shall obtain and maintain such insurance coverages having such terms as set forth in Annex B. Seller shall not be relieved from its obligation to provide the BOF Work if a subcontractor agrees to provide any or all of such BOF Work. No subcontractor is intended to be or will be deemed a third-party beneficiary of this Agreement. Nothing contained herein shall create any contractual relationship between any subcontractor and Buyer or obligate Buyer to pay or cause the payment of any amounts to any subcontractor, including any payment due to any third party. Seller shall not permit any subcontractor to assert any Lien against, or attach any Lien other than a Permitted

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Lien. None of Seller’s employees, subcontractors or any such subcontractor’s employees will be or will be considered to be employees of Buyer. Seller shall be fully responsible to Buyer for the acts and omissions of each such employee or subcontractor. Seller will be fully responsible for the payment of all wages, salaries, benefits and other compensation to its employees and for payment of any Taxes due because of the BOF Work;

(iv) Seller shall, and shall cause each of its subcontractors to, install the Bloom Systems and the BOF at each Site using items that are new and undamaged at the time of such use or installation;

(v) Seller shall install, test, and cause the Commencement of Operations with respect to each Facility as provided in Section 3.4;

(vi) Seller shall pay all amounts owed to its subcontractors and vendors in connection with the performance of the BOF Work on a timely basis and shall hold Buyer harmless against any claims asserted by such subcontractors and vendors;

(vii) Seller shall obtain and maintain, or cause to be obtained and maintained (where required, in the name of the Buyer or each PPA Customer, as the case may be), all Permits necessary to design, install, and commission each Bloom System and to construct, occupy, and operate each Facility and each Site; and

(viii) Seller shall cause BOF Work to be completed in a good and workmanlike manner and in accordance with the Performance Standards, free and clear of all Liens other than Permitted Liens. The BOF Work shall not be considered complete until Seller shall have procured the issuance of a certificate from the Independent Engineer addressed to Seller and Buyer, certifying without qualification, that the BOF has been completed and is available for commercial operation.

(b) Title and risk of loss to each component of such BOF Work for the Site which is not performed and provided on assets owned by a relevant PPA Customer or relevant Transmitting Utility shall pass to Buyer upon the later of the Delivery Date of the first Bloom System at the Site and the date such component is installed as part of the Facility at the Site. For the avoidance of doubt, the passage of title and risk of loss with respect to the Bloom Systems shall have passed to Buyer prior to any Bloom System being Placed in Service. From and after the Commencement of Operations of the Facility of which particular BOF Work is a part, all risk of loss or damage to such BOF Work which is owned by Buyer shall be borne by Buyer.

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Section 3.4 Commissioning; Commencement of Operations.

(a) Upon the occurrence of the Physical Delivery for a Bloom System, Seller shall promptly perform the following:

(i) Seller shall provide installation, inspection, commissioning and start-up for each Bloom System and the BOF at the applicable Site in accordance with the installation manuals provided for such Bloom System and the applicable Site Lease, and in conformance with Prudent Electrical Practices. Without limitation of the foregoing, each Bloom System will be connected by the Seller to the natural gas source, water source and SCADA at the applicable Site and to the applicable Facility’s Electrical Interconnection Facilities;

(ii) Prior to Commencement of Operations of each Facility, Seller shall perform an acceptance test as is required and approved by the Independent Engineer (but not less stringent than the testing applied to its fuel cell power generating systems for any other major customer of Seller) of each Bloom System incorporated into such Facility and the applicable BOF in the presence of the Independent Engineer (if so required by the Independent Engineer), and such Bloom Systems and applicable BOF shall have passed such test as witnessed by the Independent Engineer (if so required by the Independent Engineer). Seller shall provide Buyer and the Independent Engineer reasonable advance written notice of such testing;

(iii) Seller shall cause Commencement of Operations for such Facility to occur. Seller shall promptly certify in writing to Buyer when each Facility achieves Commencement of Operations;

(iv) Seller will provide to Buyer a single line diagram of the installation, electronic system manuals, copies of all relevant design documents, and printed system manuals, in each case relating to such Facility (in paper copy and electronic format). Seller shall deliver to Buyer any other documentation necessary to establish placement in service for purposes of section 48 of the Code or the Guidance;

(v) Until Commencement of Operations of the Facility, Seller shall be responsible for providing physical security of such Facility; and

(vi) If requested by Buyer, Seller shall provide operator training and associated training materials to personnel of Buyer sufficient to instruct Buyer on operation of such Bloom System in conformance with Prudent Electrical Practices.

(b) Seller’s services under this Section 3.4 shall be fully comprehensive of all services, labor, and equipment necessary to complete installation of a fully commissioned and operating Facility in accordance with this Agreement, the applicable PPA, the applicable Interconnection Agreement and the applicable Site Lease.

(c) Seller shall be responsible, at its sole cost and expense, for maintaining and complying with all Permits required to perform its services under this Agreement and Buyer agrees to cooperate with and assist Seller in obtaining such Permits.

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Section 3.5 Insurance. Seller shall maintain the insurance described in Annex B with respect to each Facility until the Facility has achieved Commencement of Operations.

Section 3.6 Disposal; Right of First Refusal.

(a) In the event that Buyer decides to scrap, abandon or otherwise dispose of any Bloom System, Buyer shall notify Seller and Seller shall have the right but not the obligation to obtain title to the Bloom System and remove the Bloom System at Seller’s cost; provided, however, that Seller will not be responsible for remediation of the Site in which the Bloom System was located.

(b) Except as set forth in Section 2.4, in the event that Buyer decides to sell or otherwise transfer title to any Bloom System to a transferee other than a PPA Customer pursuant to a PPA, Buyer shall notify Seller and Seller shall have the right of first refusal to purchase or acquire the Bloom System on the same terms and conditions of such sale. In the event that Seller exercises such right of first refusal, Seller shall, promptly following payment of the purchase price of such Bloom System, remove the Bloom System at Seller’s cost, including the remediation of the Site in which the Bloom System was located in accordance with the terms of the applicable Site Lease.

Section 3.7 Buyer’s Lender. Seller shall furnish Buyer’s Lender such certifications regarding its actions under this Article III as Buyer’s Lender shall reasonably request and shall otherwise cooperate with Buyer’s Lender.

Section 3.8 Access; Cooperation. Seller shall provide to Buyer such other information that is in the possession of Seller or its Affiliates or is reasonably available to Seller regarding the permitting, engineering, construction, or operations of Seller, its subcontractors or the Facilities, and other data concerning Seller, its subcontractors or the Facilities that Buyer may, from time to time, reasonably request in writing, subject to Seller’s obligations of confidentiality to third parties with respect to such information.

Section 3.9 Performance Standards. For the purpose of this Agreement, Seller shall perform under this Agreement in accordance and consistent with each of the following (unless the context requires otherwise): (A) plans and specifications subject to Permits under applicable law and applicable to each Facility; (B) the manufacturer’s recommendations with respect to all equipment and all maintenance and operating manuals or service agreements, whenever furnished or entered into, including any subsequent amendments or replacements thereof, issued by the manufacturer, provided they are consistent with generally accepted practices in the fuel

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cell industry; (C) the requirements of all applicable insurance policies; (D) preserving all rights to any incentive payments, warranties, indemnities or other rights or remedies, and enforcing or assisting with the enforcement of the applicable warranties, making or assisting in making all claims with respect to all insurance policies; (E) all Legal Requirements and Permits/Governmental Approvals; (F) any applicable provisions of the Site Leases, including any landlord rules and regulations; a (G) Prudent Electrical Practices; and (H) the relevant provisions of the O&M Agreement, each Interconnection Agreement, and each PPA (collectively, the “Performance Standards”); provided, however, that meeting the Performance Standards shall not relieve Seller of its other obligations under this Agreement.

Section 3.10 Appointment of Independent Engineer. The Seller and the Buyer will appoint the Independent Engineer effective as from the Agreement Date. The Independent Engineer shall act as independent engineer, reviewer, and certifier as contemplated in this Agreement. The Independent Engineer’s duties will include a duty of care to the Buyer’s Lender. The Independent Engineer will, among other things, witness the commissioning and testing of each Bloom System and the BOF Work pursuant to this Article III. All fees and costs payable in respect of the Independent Engineer (including those incurred in making such appointment) shall be borne by Seller.

ARTICLE IIIA.

PPA OBLIGATIONS

Section 3A.1 Obligations of Seller Related to PPAs.

(a) Notwithstanding any other provision of this Agreement, it is the intention of the Parties and it is agreed that all of Buyer’s obligations under the PPAs that relate to the preparation of each relevant Site and the installation and commissioning of each Facility will be performed by the Seller on behalf of the Buyer as separate obligations of the Seller under this Agreement (which obligations are parallel and equivalent to the obligations of the Buyer under the PPAs). Accordingly, Seller shall perform those obligations under this Agreement in a manner that is consistent with and enables performance of all such obligations of the Buyer under the PPAs.

(b) The Seller shall (i) undertake its obligations in accordance with this Agreement so as to enable Buyer to fulfill its obligations under the PPAs that relate to the preparation of each relevant Site and the installation, commissioning, maintenance and operation of each Facility; and (ii) in performing its obligations under this Agreement, not cause Buyer to be in breach of its obligations under the PPAs in relation to the Bloom Systems and BOF or interfere with, hinder or disrupt Buyer’s performance of its obligations under the PPAs.

(c) The Parties acknowledge that other provisions of this Agreement may contain some of the same obligations of Seller as those under this Article IIIA.

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Section 3A.2 AT&T PPA. Without affecting the generality of Section 3A.1, Seller shall perform on behalf of Buyer all of Buyer’s obligations as they relate to the preparation of each relevant Site and the purchase, installation, commissioning, maintenance and operation of all parts of each Facility under each of the following clauses of the AT&T PPA:

(a) Section 1.2 – requirements for site layout and modifications for installation, as agreed with AT&T

(b) Section 1.3(a) – requirement for the Buyer to relocate the systems to an alternative site;

(c) Section 1.3(c) and (d) – requirements in relation to resale or redeployment of Bloom Systems;

(d) Section 1.4 – requirement for removal of Bloom Systems;

(e) Section 2.3, 5.1 and 5.2 – administration and billing including any SGIP management;

(f) Section 3.2 – metering installation and maintenance obligations;

(g) Sections 3.3 and 4.5 – natural gas interconnection infrastructure obligations;

(h) Section 7.1(a) – health and safety obligations;

(i) Section 9.3 – the requisite standards applicable to installation of the system;

(j) Section 9.4 – the IP infringement warranty given by the Buyer;

(k) Section 12.1(a)(iii) – SGIP and performance warranty;

(l) Section 16.2 – the IP indemnification given by the Buyer;

(m) Section 17 – the insurance requirements applicable to the Buyer;

(n) Section 18.12 – the prohibition on offshore work;

(o) Section 18.14 – the requirements that apply to entry onto property owned or controlled by AT&T

(p) Section 18.16 – the plant and work rules requirements that apply while on the premises of AT&T

(q) Section 18.17 – the method of procedure obligations;

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(r) Section 18.18 – Quality Assurance obligations; and

(s) Section 19.1 – on-site services obligations with respect to Buyer’s personnel.

Section 3A.3 Wal-Mart PPA. Without affecting the generality of Section 3A.1, Seller shall perform on behalf of Buyer all of Buyer’s obligations as they relate to the preparation of each relevant Site and the purchase, installation, commissioning, maintenance and operation of all parts of each Facility under each of the following clauses of the Wal-Mart PPA:

(a) Section 2.2 – requirement for the Buyer to relocate the systems to an alternative site;

(b) Section 2.3 – requirements in relation to redeployment of Bloom Systems;

(c) Section 2.6 – requirement for removal of Bloom Systems;

(d) Section 2.7(j) – natural gas interconnection infrastructure obligations;

(e) Section 3.1 – all installation obligations, including requirements for site layout;

(f) Section 4.3 – metering installation obligations;

(g) Section 5.3(a) – Environmental and Tax Attributes and the provision of all renewable energy certificates (“RECs”), registration or certification of RECS, production data and any other information to satisfy reporting requirements whether to Governmental Authorities, registration bodies or otherwise;

(h) Section 6 – Invoicing including any SGIP management;

(i) Section 7.1(f) – health and safety obligations;

(j) Section 7.1(h) – the IP infringement covenant given by the Buyer;

(k) Section 8.3 – the requisite standards applicable to installation of the system;

(l) Section 17.1 – the IP indemnification given by the Buyer; and

(m) Section 18 – the insurance requirements applicable to the Buyer.

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ARTICLE IIIB.

CORRESPONDING ENTITLEMENTS

Section 3B.1 Definition of Corresponding Entitlements. A “Corresponding Entitlement” is an entitlement, or a claim to an entitlement, of the Seller to the extent:

(a) the Buyer has a claim against AT&T or Wal-mart or an entitlement under an equivalent provision of the AT&T PPA or Wal-Mart PPA, as applicable, based on the same or similar events or circumstances as the Seller’s entitlement or claim; or

(b) the Seller has rights against the Buyer under a warranty or indemnity or specific right to compensation, negotiation, reimbursement or recovery and there is a corresponding warranty or indemnity or specific right to compensation, negotiation, reimbursement or recovery (even if expressed in different terms) in the AT&T PPA or Wal-Mart PPA, as applicable, under which the Buyer has rights.

Section 3B.2 Rights in Respect of Corresponding Entitlements.

(a) The Seller will not be entitled to claim or recover from the Buyer any amount greater than the compensation, relief or remedy payable or allowable from AT&T or Wal-Mart to the Buyer in respect of the Corresponding Entitlement of the Seller.

(b) The Seller must, in relation to any claim by the Seller arising out of or in connection with any Corresponding Entitlement, reasonably cooperate with and assist the Buyer in negotiations and dispute resolutions under the AT&T PPA or Wal-Mart PPA, as applicable.

(c) The Buyer will pursue claims against AT&T or Wal-Mart (as applicable) which relate to Corresponding Entitlements provided the claim embodied in the Corresponding Entitlement is not frivolous, vexatious or trivial. The Buyer may decide not to pursue a genuine Corresponding Entitlement (ie one which is not frivolous, vexatious or trivial) of the Seller, if it agrees to pay the Seller a reasonable settlement in relation to that Corresponding Entitlement.

(d) The Seller indemnifies the Buyer for the Buyer’s costs of pursuing a Corresponding Entitlement including adverse costs awards and judgments or other determinations provided that the Buyer will bear such proportion of such costs as may be reasonably attributed to a Buyer claim which does not form part of a Corresponding Entitlement.

(e) Subject to clause Section 3B.2(f) the Seller will accept in full satisfaction of any Corresponding Entitlement the amount agreed by the Buyer and AT&T or Wal-Mart as applicable, (after due and proper consultation with the Seller which shall be undertaken to determine the Seller’s proper entitlements under this Section 3B) or determined under the AT&T PPA or Wal-Mart PPA, as applicable.

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(f) If any claim by the Buyer under the AT&T PPA or Wal-Mart PPA, as applicable, includes both a claim by the Buyer not referable to the Seller and a claim by the Seller under this Agreement and the aggregate amount recoverable from AT&T or Wal-Mart, as applicable, under the AT&T PPA or Wal-Mart PPA, as applicable, (“Recoverable Amount”) is less than the amount claimed by the Buyer and the Seller, the Parties will seek to agree to that proportion of the Recoverable Amount to which they are entitled, and if the Parties fail to so agree, the determination as to the proportion of the Recoverable Amount to which they are each entitled will be referred to dispute resolution under this Agreement and be determined on the basis of what is fair and reasonable having regard to the proportionality principle stated in this Section 3B.2(f).

(g) The Seller will be bound by the outcome of any binding settlement or determination by dispute resolution under the AT&T PPA or Wal-Mart PPA, as applicable, between the Buyer and AT&T or Wal-Mart as applicable, contemplated under and effected in accordance with the mechanism set out in this Section 3B.2.

ARTICLE IV.

REPRESENTATIONS AND WARRANTIES OF SELLER

Section 4.1 Representations and Warranties as to Seller. Seller represents and warrants to Buyer as of the Agreement Date and as of each Delivery Date as follows:

(a) Incorporation; Qualification. Seller is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own, lease, and operate its business as currently conducted. Seller is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction that its business, as currently being conducted, shall require it to be so qualified, except where the failure to be so qualified would not have a material adverse effect on the Bloom Systems being sold under this Agreement.

(b) Authority. Seller has full corporate power and authority to execute and deliver the Transaction Documents to which it is a party and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Seller of the Transaction Documents to which it is a party and the consummation by Seller of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action required on the part of Seller and the Transaction Documents to which Seller is a party have been duly and validly executed and delivered by Seller. Each of the Transaction Documents to which Seller is a party constitutes the legal, valid and binding agreement of Seller, enforceable against Seller in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).

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(c) Consents and Approvals; No Violation. Neither the execution, delivery and performance of the Transaction Documents to which Seller is a party nor the consummation by Seller of the transactions contemplated hereby and thereby will (i) conflict with or result in any breach of any provision of the certificate of incorporation or bylaws of Seller, (ii) with or without the giving of notice or lapse of time or both, conflict with, result in any violation or breach of, constitute a default under, result in any right to accelerate, result in the creation of any Lien on Seller’s assets, or create any right of termination under the conditions or provisions of any note, bond, mortgage, indenture, material agreement or other instrument or obligation to which Seller is a party or by which it, or any material part of its assets may be bound, in each case that would individually or in the aggregate result in a material adverse effect on the Seller or its ability to perform its obligations hereunder or (iii) constitute violations of any law, regulation, order, judgment or decree applicable to Seller, which violations, individually or in the aggregate, would result in a material adverse effect on the Seller or its ability to perform its obligations hereunder.

(d) Legal Proceedings. There are no pending or, to Seller’s knowledge, threatened claims, disputes, governmental investigations, suits, actions (including non-judicial real or personal property foreclosure actions), arbitrations, legal, administrative or other proceedings of any nature, domestic or foreign, criminal or civil, at law or in equity, by or against Seller that challenge the enforceability of the Transaction Documents to which Seller is a party or the ability of Seller to consummate the transactions contemplated hereby or thereby, in each case, that could reasonably be expected to result in a material adverse effect on Seller or its ability to perform its obligations hereunder.

(e) U.S. Person. Seller is not a “foreign person” within the meaning of Section 1445(b)(2) of the Code.

Section 4.2 Representations and Warranties as to Bloom Systems. Seller represents and warrants to Buyer as of the Delivery Date for each Bloom System solely with respect to such Bloom System, as follows:

(a) Title on Delivery. Seller has good title to each Bloom System and each such Bloom System is free and clear of all Liens other than Permitted Liens. Neither Seller nor any of its subcontractors have placed any Liens on the Sites or the Facilities other than Permitted Liens. To the extent that Seller has actual knowledge that any of its subcontractors has placed any Lien on a Bloom System or a Site, then Seller shall cause such Liens to be removed or bonded over in a manner reasonably satisfactory to Buyer. Buyer and Buyer’s Lender shall be indemnified against such lien claim, unless the applicable Site Lease requires additional or more stringent action, in which case the applicable Site Lease requirements shall control.

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ARTICLE V.

REPRESENTATIONS AND WARRANTIES OF BUYER

Buyer represents and warrants to Seller as of the Agreement Date and as of each Delivery Date, as follows with respect to Buyer:

Section 5.1 Organization. Buyer is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware and has all requisite limited liability company power and authority to own, lease, and operate its business as currently conducted.

Section 5.2 Authority. Buyer has full limited liability company power and authority to execute and deliver the Transaction Documents to which Buyer is a party and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Buyer of the Transaction Documents to which Buyer is a party and the consummation by Buyer of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary limited liability company action required on the part of Buyer and the Transaction Documents to which Buyer is a party have been duly and validly executed and delivered by Buyer. Each of the Transaction Documents to which Buyer is a party constitutes the legal, valid and binding agreement of Buyer, enforceable against Buyer in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).

Section 5.3 Consents and Approvals; No Violation. Neither the execution, delivery and performance by Buyer of the Transaction Documents to which Buyer is a party nor the consummation by Buyer of the transactions contemplated thereby will (a) conflict with or result in any breach of any provision of the Certificate of Formation or the limited liability company agreement of Buyer, or (b) result in a default (or give rise to any right of termination, cancellation or acceleration) under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, material agreement or other instrument or obligation to which Buyer is a party or by which any of its assets are bound, except for such defaults (or rights of termination, cancellation or acceleration) as to which requisite waivers or consents have been obtained or (iii) constitute violations of any law, regulation, order, judgment or decree applicable to Buyer, which violations, individually or in the aggregate, would result in a material adverse effect on Buyer or its ability to perform its obligations hereunder.

Section 5.4 Legal Proceedings. There are no pending or, to Buyer’s knowledge, threatened claims, disputes, governmental investigations, suits, actions (including non-judicial real or personal property foreclosure actions), arbitrations, legal, administrative or other proceedings of any nature, domestic or foreign, criminal or civil, at law or in equity, by or against Buyer that challenges the enforceability the Transaction Documents to which Buyer is a party or the ability of Buyer to consummate the transactions contemplated thereby, in each case, that could reasonably be expected to result in a material adverse effect on Buyer or its ability to perform its obligations hereunder.

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ARTICLE VI.

CONFIDENTIALITY

Section 6.1 Confidential Information. Subject to the other terms of this Article VI the Parties shall, and shall cause their Affiliates and their respective stockholders, members, subsidiaries and Representatives to, hold confidential all information they may have or obtain concerning the Seller and the Buyer and their respective assets, business, operations or prospects or this Agreement (the “Confidential Information”), including all materials and information furnished by Seller in performance of this Agreement, regardless of form conveyed or whether financial or technical in nature, including any trade secrets and proprietary know how and Software whether such information bears a marking indicating that they are proprietary or confidential or not; provided, however, that Confidential Information shall not include information that (x) is or becomes generally available to the public other than as a result of an unauthorized disclosure by a Party or any of its Representatives, (y) is or becomes available to a Party or any of its Representatives on a nonconfidential basis from a source other than the other Party or its Representatives, provided that such source was not and is not bound by any contractual, legal or fiduciary obligation of confidentiality with respect to such information or (z) was or is independently developed or conceived by a Party or its Representatives without reference to the Confidential Information of the other Party.

Section 6.2 Restricted Access.

(a) Buyer agrees that the Bloom Systems themselves contain Seller’s valuable trade secrets. Buyer agrees (i) to restrict the use of such information to matters relating to the Bloom Systems, and (ii) to restrict access to such information as provided in Section 6.3(b).

(b) Seller’s Confidential Information will not be reproduced without Seller’s prior written consent, and following termination of this Agreement all copies of such written information will be returned to Seller upon written request (not to be made while materials are still of use to the operation of a Bloom System and no Buyer Default has occurred and is continuing), unless otherwise agreed by the Parties. Buyer’s Confidential Information will not be reproduced by Seller without Buyer’s prior written consent, and following termination of this Agreement all copies of such written information will be returned to Buyer upon written request or shall be certified by Seller as having been destroyed.

(c) Subject to Article VII and Section 6.2(a) and (b) hereof, the Bloom Systems are offered for sale and are sold by Seller subject to the condition that such sale does not convey any license, expressly or by implication, to manufacture, reverse engineer, duplicate or otherwise copy or reproduce any part of the Bloom Systems, documentation or Software without Seller’s express advance written permission. Subject to Article VII hereof, Buyer agrees not to remove the covering, not to access the interior or to reverse engineer, or cause or knowingly allow any third party to open, access the interior or reverse engineer any Bloom System or Software provided by Seller. Subject

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to Article VII hereof, and anything contemplated pursuant to this Agreement or the O&M Agreement, only Seller or its authorized representatives may open or access the interior of a Bloom System. Notwithstanding the foregoing, and without limitation of the rights set forth in Article VII hereof and in the Shortfall Event License, if any Bloom System is no longer covered by the O&M Agreement or another agreement between Buyer and Seller (or any Affiliate of Seller) regarding the operation and maintenance of such Bloom System, Buyer shall be entitled to maintain, or cause a third party to maintain, such Bloom System, including replacing parts or components as needed or desired; provided that Buyer shall use commercially reasonable efforts to engage a third party to provide such maintenance that is not a competitor of Seller or its Affiliates and is not in litigation or other material dispute with Seller.

Section 6.3 Permitted Disclosures.

(a) Legally Compelled Disclosure. Confidential Information may be disclosed (i) as required or requested to be disclosed by a Party or any of its Affiliates or their respective stockholders, members, subsidiaries or Representatives as a result of any applicable Legal Requirement or rule or regulation of any stock exchange, the Financial Industry Regulatory Authority, Inc. or other regulatory authority or self-regulatory authority having jurisdiction over such Party, (ii) as required or requested by the IRS, the Department of Justice or the Office of the Inspector General in connection with a Bloom System, cash grant, or tax credits relating thereto, including in connection with a request for any private letter ruling, any determination letter or any audit or (iii) as required under any Interconnection Agreement. If a Party becomes compelled by legal or administrative process to disclose any Confidential Information, such Party shall, to the extent permitted by Legal Requirements, provide the other Parties with prompt notice so that the other Parties may seek a protective order or other appropriate remedy or waive compliance with the non-disclosure provisions of this Section 6.3 with respect to the information required to be disclosed. If such protective order or other remedy is not obtained, or such other Parties waive compliance with the non-disclosure provisions of this Section 6.3 with respect to the information required to be disclosed, the first Party shall furnish only that portion of such information that it is advised, by opinion of counsel, is legally required to be furnished and shall exercise reasonable efforts, at the expense of the Party whose Confidential Information is being disclosed, to obtain reliable assurance that confidential treatment will be accorded such information, including, in the case of disclosures to the IRS described in clause (ii) above, to obtain reliable assurance that, to the maximum extent permitted by applicable Legal Requirements, such information will not be made available for public inspection pursuant to Section 6110 of the Code.

(b) Disclosure to Representatives. Notwithstanding the foregoing, and subject always to the restrictions in Section 6.2, a Party may disclose Confidential Information received by it to its actual or potential financing parties and its and their employees, consultants, legal counsel or agents who have a need to know such information; provided that such Party informs each such Person who has access to the Confidential Information

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of the confidential nature of such Confidential Information, the terms of this Agreement, and that such terms apply to them. The Parties shall use commercially reasonable efforts to ensure that each such Person complies with the terms of this Agreement and that any Confidential Information received by such Person is kept confidential.

(c) Other Permitted Disclosures. Nothing herein shall be construed as prohibiting a Party hereunder from using such Confidential Information in connection with (i) any claim against another Party hereunder, (ii) any exercise by a Party hereunder of any of its rights hereunder, (iii) a financing or proposed financing by Seller or Buyer or their respective Affiliates; (iv) a disposition or proposed disposition by Seller or any Affiliate of Seller of all or a portion of such Person’s direct or indirect equity interest in the Buyer, (v) a disposition or proposed disposition by any direct or indirect Affiliate of Buyer of all or a portion of such Person’s equity interests in the Buyer, (vi) a disposition or proposed disposition by Buyer of any Bloom System; or (vii) any disclosure required to be made to a PPA Customer (or otherwise) under a PPA, provided that, in the case of items (iii), (iv), (v) and (vi), the potential financing party or purchaser has entered into a confidentiality agreement with respect to Confidential Information on customary terms used in confidentiality agreements in connection with corporate financings or acquisitions before any such information may be disclosed and such confidentiality agreement has been provided to the non-disclosing Party. No disclosures of Confidential Information shall be made by Buyer in exercise of its rights under Section 3.6(b) until Seller has first had the opportunity to exercise its rights to take or purchase the Bloom System in question.

Section 6.4 Publicity. Notwithstanding the provisions of this Article VI, the Parties shall consult with each other and agree in advance in connection with making public announcements regarding the transactions contemplated by the Transaction Documents.

Section 6.5 Shortfall Event License. If and to the extent the Buyer is entitled to exercise its rights under the Shortfall Event License, nothing contained herein shall limit or otherwise adversely affect the Buyer’s right to disclose the Intellectual Property and other materials licensed thereunder to any sublicensee or subcontractor in accordance with the terms thereof.

ARTICLE VII.

LICENSE AND OWNERSHIP; SOFTWARE

Section 7.1 IP License To Use. Subject to Section 7.2, and the terms of the Shortfall Event License, Seller grants to Buyer a limited (as described herein), non-exclusive, royalty-free, irrevocable (except as described in Article IX hereof), non-transferable (except as described herein) license to use the Intellectual Property contained in the Documentation and the Bloom Systems purchased hereunder (collectively, “Seller’s Intellectual Property”) in conjunction with the purchase and use of each Bloom System in accordance with the terms hereof and each PPA and Interconnection Agreement (the “IP License”); provided, that (a) such license may be transferred to Buyer’s Lender or its designee upon transfer of the Portfolio and underlying

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agreements to such party due to a foreclosure proceeding, deed-in-lieu-of-foreclosure or other similar remedy on account of Buyer’s Lender’s security interest herein and, if transferred to Buyer’s Lender or its designee, such license may be further transferred by such party to any other Person who acquires the Portfolio from Buyer’s Lender or its designee, (b) such license may be transferred by Buyer to any third party Buyer is entitled to engage to maintain any Bloom System pursuant to Section 6.2(c), and (c) such license may be transferred by Buyer to any successor or assign of Buyer permitted pursuant to Section 11.5. Seller shall retain all right, title and ownership of any and all Intellectual Property licensed by Seller hereunder. No right, title or interest in any such Intellectual Property is granted, transferred or otherwise conveyed to Buyer under this Agreement except as otherwise expressly set forth herein. Buyer shall not, except as otherwise provided herein, modify, network, rent, lease, loan, sell, distribute or create derivative works based upon the Seller’s Intellectual Property in whole or part, or cause or knowingly allow any third party to do so.

Section 7.2 Grant of Third Party Software License.

(a) Seller grants to Buyer a limited (as described herein), non-exclusive, royalty-free, irrevocable (except as described in Article IX hereof), non-transferable (except as described herein) license to use the Software (the “Software License”); provided, that (i) such license may be transferred to Buyer’s Lender or its designee upon transfer of the Portfolio and underlying agreements to such party due to a foreclosure proceeding, deed-in-lieu-of-foreclosure or other similar remedy on account of Buyer’s Lender’s security interest herein and, if transferred to Buyer’s Lender or its designee, such license may be further transferred by such party to any other Person who acquires the Portfolio from Buyer’s Lender or its designee, (ii) such license may be transferred by Buyer to any third party Buyer is entitled to engage to maintain any Bloom System pursuant to Section 6.2(c), and (iii) such license may be transferred by Buyer to any successor or assign of Buyer permitted pursuant to Section 11.5. No right, title or interest in any Software provided to Buyer (including all copyrights, patents, trade secrets or other intellectual or intangible property rights of any kind contained therein) is granted, transferred, or otherwise conveyed to Buyer under this Agreement except as expressly set forth herein. Buyer agrees not to reverse engineer or decompile the Software or otherwise use the Software for any purpose other than in connection with the use of the Bloom Systems. Further, Buyer shall not modify, network, rent, lease, loan, sell, distribute or create derivative works based upon the Software in whole or part, or cause or knowingly allow any third party to do so.

(b) All data collected on the Bloom Systems by Seller using the Software and data collected on the Bloom Systems using Seller’s internal proprietary software are the sole property of Seller to be used by Seller in accordance with applicable law, and Seller hereby grants to Buyer a limited, non-exclusive, irrevocable (except as set forth in Article IX hereof), royalty-free license to use the data collected on the Bloom Systems using such Software or the Seller’s internal proprietary software only for purposes of using such Bloom System and administering the Transaction Documents or as required pursuant to the terms of any PPA or Interconnection Agreement, provided the provisions of Article VI on confidentiality are maintained.

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Section 7.3 No Software Warranty. Buyer acknowledges and agrees that the use of the Software is at Buyer’s sole risk. The Software and related documentation are provided “AS IS” and without any warranty of any kind and Seller EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

Section 7.4 Covenant. If Seller grants, bargains, sells, conveys, mortgages, assigns, pledges, warrants or transfers any Intellectual Property or Software that is required (a) for Seller or its Affiliates to perform their respective obligations under the Transaction Documents or (b) for the continued maintenance and operation of the Bloom Systems without a material decrease in performance of the Bloom Systems, Seller shall cause such act or transaction to be subject to the grant of the IP License and Software License under this Agreement and the terms of the Shortfall Event License.

Section 7.5 Representations and Warranties. Seller represents and warrants to Buyer as of the Agreement Date and as of each Delivery Date as follows with respect all Intellectual Property that is required (i) for Seller or its Affiliates to perform their respective obligations under the Transaction Documents, and (ii) for the continued operation of the Bloom Systems in accordance with the Transaction Documents, the PPAs and the Interconnection Agreements without a material decrease in performance of the Bloom Systems:

(a) Seller owns or has the right to use and to authorize Buyer to use all such Intellectual Property; and

(b) Seller and its Affiliates are not infringing on any Intellectual Property of any third party with respect to the actions described in Section 7.5(i) and (ii) and the Bloom Systems do not infringe on any Intellectual Property of any third party.

ARTICLE VIII.

LIMITED WARRANTY

Section 8.1 Portfolio Warranty.

(a) Subject to Section 8.5 below, Seller warrants to Buyer that (i) each Bloom System (other than any Software) and the BOF related to each Bloom System will be free from defects in materials and workmanship at the Commencement of Operations of the Facility into which such Bloom System is incorporated and (ii) the Portfolio, including the BOF related to each Bloom System, will comply with the Warranty Specifications during the Warranty Period and the BOF will not cause the Portfolio to fail to perform in accordance with the Warranty Specifications (collectively, the “Portfolio Warranty”).

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(b) The Portfolio Warranty is not transferable to any third person, including any person who buys a Bloom System from Buyer, without Seller’s prior written consent (which shall not unreasonably be withheld) other than to Buyer’s Lender or its designee (or any assignee of (or purchaser in foreclosure from) Buyer’s Lender) upon transfer of the Portfolio and underlying agreements to such party due to a foreclosure proceeding on account of Buyer’s Lender’s security interest herein and, if transferred to Buyer’s Lender or its designee (or any assignee of (or purchaser in foreclosure from) Buyer’s Lender), such party may freely transfer the Portfolio Warranty.

(c) Any period of time in which the Warranty Specifications are not met shall not extend the Warranty Period.

(d) The Portfolio Warranty shall survive any total or partial termination of this Agreement.

Section 8.2 [Reserved].

Section 8.3 Portfolio Warranty Claims.

(a) If Buyer desires to make a Portfolio Warranty claim during the Warranty Period, Buyer must notify Seller of the defect or other basis for the claim in writing.

(b) In the case of a claim relating to the Quarterly Capacity Warranty or the Efficiency Warranty, then in addition to, and separate from any other right of the Buyer pursuant to this Section 8, upon receipt of a notice under this Section 8.3(b), Seller or its designated subcontractor will promptly (and in any event no later than 90 days following the last day of the quarterly or monthly period, as applicable, to which such claim relates) repair or replace, in Seller’s sole discretion, any Bloom System(s) or any portion of the BOF whose repair or replacement is required in order for the applicable Facility to perform consistent with the Quarterly Capacity Warranty or the Efficiency Warranty, as applicable, provided that any such repair or replacement shall not be expected by Seller to cause any loss of current or future value, remaining useful life or utility of any part of the Bloom System or BOF, as applicable, repaired or replaced below the then current or expected future value, the remaining useful life or utility thereof immediately prior to such repair or replacement (assuming the Bloom System or BOF part, as applicable, was then in the condition when first constructed, normal wear and tear excepted and excepting any loss of value associated with the period of repair or replacement).

(c) Seller may use refurbished parts in the repair and replacement activities described above in Section 8.3(b); provided that (i) any such refurbished parts will have passed the same inspections and tests performed by Seller on its new parts of the same type before such refurbished parts are used in any repair or replacement, and (ii) Seller shall within thirty (30) days of a written request therefor by Buyer, provide a report for any or all Bloom Systems purchased hereunder that lists all components that have been replaced in any individual Bloom System. If repair or replacement is not feasible under

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Section 8.3(b) (as determined by Seller in its sole discretion) and Seller notifies Buyer to such effect, Buyer may require and, if so required, the Seller will repurchase the Bloom System from Buyer on an AS IS basis by paying Buyer the Refund Value of any such Bloom System, as calculated as of the date of such refund, in which case Seller shall take title to such Bloom System upon paying the Refund Value, and such Bloom System shall no longer constitute a portion of the Portfolio. Seller shall make such determination as to the feasibility of repair or replacement as promptly as practicable, but in any event within ninety (90) days after Seller’s receipt of notice of the claim unless the specific nature of the problem requires a longer period in which to make such determination (in which case the Seller must make a determination within a reasonable time) provided such longer period for a determination does not cause any breach of a PPA. In the event that Seller has not completed the repair or replacement of the Bloom System whose repair or replacement is required under Section 8.3(b) within ninety (90) days of the end of the calendar month in which Seller received notice of a claim (or within one hundred twenty (120) days if the specific nature of the problem required a period longer than ninety (90) days in which to determine the feasibility of repair or replacement), or repurchased the Bloom System as contemplated in this Section 8.3(c) in the time period in this Section 8.3(c) then Buyer has the right to require the Seller (in which case the Seller agrees) to procure return of the Bloom System(s) in question to Seller (at Seller’s cost) and Seller will refund to Buyer the Refund Value of such Bloom System, in which case Seller shall be deemed to have taken title to such Bloom Systems upon payment of the Refund Value, and such Bloom Systems shall be deemed to no longer constitute a portion of the Portfolio and shall be removed as described in the previous sentence. If a Bloom System will be removed pursuant to this Section 8.3(c), Seller shall at its sole cost and expense remove the Bloom System and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable Site Lease) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections in the manner required by all Legal Requirements and the applicable Site Lease. The rights and obligations of the Parties under this Section 8.3(c) are in addition to and separate from any other rights of the Buyer under this Section 8.

(d) In the case of a claim relating to the Capacity Warranty for a Quarterly Capacity Warranty Period or a One-Year Capacity Warranty Period, upon receipt of such notice at a time when such Quarterly Capacity Warranty or a One-Year Capacity Warranty is applicable, in addition to and separate from the Seller’s obligations under Sections 8.3(b) and 8.3(c) in respect of the Quarterly Capacity Warranty:

(i) Seller shall make a payment to Buyer in an amount to be calculated pursuant to Section 8.6 within twenty (20) Business Days after such a notice having been given; provided that the cumulative aggregate amount of Seller’s liability shall not exceed:

(A) for all claims under this Section 8.3(d) relating to the Quarterly Capacity Warranty, [***] of the aggregate Purchase Price of all Bloom Systems in the Portfolio during the applicable period (inclusive of any amounts paid or for which a pending claim has been made under the Quarterly Capacity Warranty under the O&M Agreement) (“Quarterly Warranty Cap”); and

[***] Confidential Treatment Requested

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(B) for all claims relating to the One-Year Capacity Warranty, [***] of the aggregate Purchase Price of all Bloom Systems in the Portfolio during the applicable period (inclusive of any amounts paid or for which a pending claim has been made under the One-Year Capacity Warranty under the O&M Agreement) (“One-Year Warranty Cap”).

For the avoidance of doubt:

(C) the Quarterly Warranty Cap and One-Year Warranty Cap are separate caps and if the Seller’s liability is limited by the operation of one of the caps, the Seller’s liability for claims under this Section 8.3(d) to which the other cap applies are not affected;

(D) claims under Section 8.3(d) are intended to compensate for the Buyer’s revenue losses and accordingly claims and payments made under Section 8.9 are not subject to the Quarterly Warranty Cap or One-Year Warranty Cap or count against such caps; and

(E) the Quarterly Warranty Cap and One-Year Warranty Cap do not apply where the Seller is required to repair or replace the Bloom Systems or pay the Refund Value and other amounts incurred to remove the Bloom Systems and ancillary equipment as set out in Sections 8.3(b) or (c) or this Section 8.3(d).

(ii) Either Party may offset any amounts owed to it under this Agreement against any payments required to be made by it under this Agreement, the O&M Agreement or Administrative Services Agreement. Any remaining amounts owed by Seller to Buyer after such offset shall be due and payable in cash, such payment to be paid no later than the third Business Day of the Calendar Quarter immediately following the Calendar Quarter with respect to which such payment arose.

(iii) In the event that Seller has failed to make such cash payment within thirty (30) days after receipt of a claim that is undisputed or resolved against Seller, Buyer may elect to require the Seller (in which case the Seller agrees) to procure return to Seller of a sufficient number of the Bloom Systems that have failed to meet the Capacity Warranty in the applicable Capacity Warranty Period (“Underperforming Systems”) such that the remainder of the Portfolio would have

[***] Confidential Treatment Requested

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satisfied such Capacity Warranty had such returned Underperforming Systems been excluded from the calculation for such Calendar Quarter. With respect to each such returned Underperforming System, Seller shall immediately refund to Buyer the Refund Value of such Underperforming System, and shall promptly remove such returned Underperforming System from the applicable Site and be deemed to have taken title to such Underperforming System upon payment of the Refund Value and the returned Underperforming Systems shall be deemed to no longer constitute a portion of the Portfolio.

(iv) If a Bloom System will be removed pursuant to this Section 8.3(d), Seller shall at its sole cost and expense remove the Bloom System and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable Site Lease) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections in the manner required by all Legal Requirements and the applicable Site Lease. For the avoidance of doubt, Buyer’s return of Underperforming Systems pursuant to this Section 8.3(d) shall not relieve Seller of its obligation to pay to Buyer, or decrease the amount of, the Capacity Warranty payment set forth in this Section 8.3(d) as calculated pursuant to Section 8.6.

Section 8.4 Disclaimers. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THE TRANSACTION DOCUMENTS WITH RESPECT TO THE BLOOM SYSTEMS, NO OTHER WARRANTY OR REPRESENTATION CONCERNING THE BLOOM SYSTEMS IS PROVIDED.

Section 8.5 Exclusions. The Portfolio Warranty shall not cover any obligations on the part of Seller to the extent caused by or arising from (a) the Bloom Systems or BOF being affected by vandalism or other third-party’s actions or omissions occurring after Commencement of Operations (other than to the extent that Seller, Seller’s Affiliate, the Service Provider (as defined in the O&M Agreement) or a subcontractor acting as operator under the O&M Agreement fails to properly protect the Bloom Systems and was required to do so under the Transaction Documents); (b) any failure relating to gas quality or supply in relation to which the Buyer is satisfactorily compensated by the applicable PPA Customer under a PPA or by Seller under Section 8.11 or 8.9; (c) Buyer’s (as opposed to Seller, Seller’s Affiliate, the Service Provider or a subcontractor thereof acting as operator under the O&M Agreement) or a PPA Customer’s (in which case the provisions of Article IIIB apply) removal of any safety devices, (d) any conditions caused by unforeseeable movement in the environment in which the Bloom Systems are installed (provided that normal soil settlement, shifting, subsidence or cracking will not constitute ‘unforeseeable movement’), (e) accidents, abuse, neglect, improper third party testing (unless caused by Seller, Seller’s Affiliate, the Service Provider or a subcontractor thereof acting as operator under the O&M Agreement) or Force Majeure Events, or (f) installation, operation, repair or modification of the Bloom Systems or BOF by anyone other than Seller or Seller’s authorized agents. SELLER SHALL HAVE NO OBLIGATION UNDER THE

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PORTFOLIO WARRANTY AND MAKES NO REPRESENTATION AS TO BLOOM SYSTEMS OR BOF WHICH HAVE BEEN OPENED OR MODIFIED BY BUYER OR ANYONE OTHER THAN SELLER, SELLER’S AFFILIATE, THE SERVICE PROVIDER OR SUBCONTRACTOR, ACTING AS OPERATOR UNDER THE O&M AGREEMENT, ANY PERSON ACTING AS AN OPERATOR UNDER THE O&M AGREEMENT (OR ANY SUCCESSOR AGREEMENT TO THE O&M AGREEMENT) OR ANY OF SUCH PERSON’S REPRESENTATIVES, IN EACH CASE TO THE EXTENT OF ANY DAMAGE OR OTHER NEGATIVE CONSEQUENCE OF SUCH OPENING OR MODIFICATION.

Section 8.6 Capacity Warranty. During the Warranty Period, Seller shall determine (i) within ten (10) Business Days after the end each Calendar Quarter, whether each Facility that has achieved Commencement of Operations has delivered to the applicable Interconnection Point the Minimum kWh during such Capacity Warranty Period and (ii) within ten (10) Business Days after the end of each calendar year, whether the Portfolio has delivered to the applicable Interconnection Points the Minimum kWh during such Capacity Warranty Period (the warranty provided in clause (i), the “Quarterly Capacity Warranty”, and the warranty provided in clause (ii), the “One-Year Capacity Warranty”, and such warranties, collectively, the “Capacity Warranty”). If a Capacity Warranty calculation indicates that the Actual kWh of the applicable Bloom Systems was less than the Minimum kWh during the applicable Capacity Warranty Period, then Seller shall so notify Buyer in writing of the basis of its determination and Buyer may make a claim under Section 8.3 and, upon the making of such claim, Seller shall be required to make a payment under Section 8.3 to Buyer and calculated as indicated in Annex C based on the average tolling rate of the applicable Fleet during the Capacity Warranty Period in order to compensate for the Buyer’s loss of revenue resulting from the failure of the Bloom Systems to achieve the Minimum kWh. For the purposes of avoiding double counting of any kWh shortfalls in calculating Capacity Warranty payments, a claim made in respect of the One-Year Capacity Warranty for a calendar year will be reduced by the total amount paid by the Seller in respect of claims under the Quarterly Capacity Warranty for the Calendar Quarters in that calendar year. If the Seller fails to perform any Capacity Warranty calculation within the periods required by this Section 8.6, the Buyer may perform its own calculations and may make a claim under Section 8.3. Example calculations of the amount to be paid by Seller to Buyer in respect of a claim in respect of either Capacity Warranty are set out in Annex C.

Section 8.7 Efficiency Warranty. During the Warranty Period, Seller shall determine for each full calendar month (the “Efficiency Warranty Period”) within five (5) Business Days after the end of such month whether each Facility that has achieved Commencement of Operations has performed at not less than the Minimum Efficiency Level (the “Efficiency Warranty”). If the Minimum Efficiency Level has not been met during such Efficiency Warranty Period, then Seller shall so notify Buyer in writing of the basis of its determination and Buyer may make a claim under Section 8.3. If the Seller fails to perform any Efficiency Warranty calculation within the periods required by this Section 8.7, the Buyer may perform its own calculations and may make a claim under Section 8.3.

Section 8.8 [Reserved].

[***] Confidential Treatment Requested

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Section 8.9 Indemnification Regarding Performance Under PPAs. Without in any way limiting and in addition to Buyer’s remedies pursuant to Sections 8.3 to 8.7 inclusive, in the event that Buyer incurs any liability to a PPA Customer, whether to reimburse, credit or pay it any amount or otherwise in relation to any performance guarantee, power performance shortfall or any efficiency warranty or cost excess, including pursuant to Sections 5.2(b) or 6.7 of the Wal-Mart PPA or Sections 3.4 or 12.1(a)(iii) of the AT&T PPA (collectively the “PPA Warranties”), Seller shall indemnify and hold Buyer harmless for any such liability, costs and expenses incurred by Buyer pursuant to the Wal-Mart PPA and AT&T PPA for such liabilities described above. In the event either PPA is terminated with respect to any Bloom System as a result of a Seller failure to meet the Warranty Specifications or the PPA Warranties, then (i) Buyer shall have the right to require and the Seller agrees to repurchase the affected Bloom Systems in the manner contemplated in Section 8.3(c) and (ii) Seller shall indemnify and hold Buyer harmless for any amount the Buyer is liable to a PPA Customer in connection with such termination. For the avoidance of doubt, claims, credits, reimbursements and any other payments made under this Section 8.9 are not subject to the Quarterly Warranty Cap or One-Year Warranty Cap or count against such caps. Seller shall make any payment owed to Buyer in respect of the PPA Warranties under this Section 8.9 prior to or concurrently with Buyer’s corresponding payment to a PPA Customer.

Section 8.10 No Duplication of Terms. Notwithstanding anything to the contrary in this Agreement, to the extent that the Portfolio Warranty and indemnity provided in Section 8.9 or any other warranty, guarantee or indemnification provision set forth herein is duplicative of any warranty, guarantee or indemnification coverage provided under the O&M Agreement, the Parties acknowledge and agree that Buyer shall be entitled to make only a single claim under either this Agreement or the O&M Agreement, as applicable, and that limitations of liability set forth in each such agreement are to be calculated on an aggregate basis taking into account all claims for indemnification, warranty or otherwise (if any) made under this Agreement and the O&M Agreement. No payment or performance obligation shall be due from Seller under the Portfolio Warranty or the indemnity provided in Section 8.9 to the extent such payment or performance is received from, or is the subject of a claim accepted and approved by, an insurance provider or other third parties. In the event that Seller has paid an amount under the Portfolio Warranty that relates to an event in respect of which Buyer subsequently also receives an amount from an insurance provider or other third party, Seller is entitled to a refund of the duplicative amount.

Section 8.11 Deemed Delivered Energy.

(a) If, for any reason, other than reasons of a Force Majeure Event or of a curtailment, interruption, or issuance of operational flow orders (OFO) by the delivering pipeline or Local Distribution Company (LDC), Buyer does not receive and use the specified input fuel or receive natural gas at the natural gas taps for the Bloom Systems contemplated in the Wal-Mart PPA in amounts, and with quality and pressure, sufficient to permit Buyer to generate Energy at the Baseload Capacity for such Bloom Systems multiplied by 95% or such failure to meet gas delivery requirements causes damage to

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such Bloom Systems requiring repair or replacement of such Bloom Systems, then Seller shall pay to Buyer any lost revenue that Buyer would have received under the Wal-Mart PPA for Energy that would have been produced by the Bloom Systems but for the failure to meet the gas delivery requirements for the Bloom Systems (including as a result of damage to the Bloom Systems) (“Deemed Delivered Energy”). Buyer shall invoice Seller for amounts due with respect to such Deemed Delivered Energy with respect to each calendar month at the time that Buyer invoices, or would have invoiced, Wal-Mart for such month under the Wal-Mart PPA for such Deemed Delivered Energy, and Seller shall pay such invoices within thirty days after receipt of such invoice. If Buyer recovers or receives any payment or reimbursement from the gas supplier or other third party in relation to an above-described event for which Seller makes a payment under this Section 8.11(a), then such amounts shall be promptly paid to Seller. In addition, if any Bloom System contemplated in the Wal-Mart PPA is damaged and needs to be repaired or replaced as a result of Buyer not receiving and using the specified input fuel, or as a result of the amount, quality or pressure of the natural gas received, Seller shall repair or replace the Bloom System in accordance with Section 8.3(b) as if the damage gave rise to a Portfolio Warranty claim.

(b) In the event (i) Buyer is responsible for gas procurement under Section 4.1(b) of the Wal-Mart PPA, and (ii) Buyer procures more gas than is consumed by the Bloom Systems under the Wal-Mart PPA, then (A) Seller shall reimburse Buyer for any losses Buyer incurs in reselling such excess gas to a third party or in the spot market, and (B) Buyer shall pay to Seller any profits on any such resale. Amounts due by the Parties under subsections (A) and (B) hereof shall be netted against each other and any remaining amounts shall be payable within five (5) Business Days of the first day of each calendar month.

(c) Seller agrees that as part of SGIP management arrangements contemplated under Section 6.8 of the Wal-Mart PPA and managed by Seller pursuant to this Agreement, Seller will ensure that:

(i) all “SGIP Proceeds” (as defined in the Wal-Mart PPA) assigned to the Buyer by Wal-Mart will be deposited directly into the SGIP Proceeds Account;

(ii) each time Buyer invoices Wal-Mart under the Wal-Mart PPA, an amount equivalent to the “Forecasted SGIP Credit” under Section 6.8 of the Wal-Mart PPA that is included on such invoice is paid out of the SGIP Proceeds Account into the Revenue Account at least five (5) Business Days prior to the date Wal-Mart must pay such invoice;

(iii) in the event that the SGIP Proceeds Account does not contain sufficient funds for the full amount of the payment under Section 8.11(c)(ii) to be paid into the Revenue Account, Seller will pay any shortfall into the Revenue Account at least five (5) Business Days prior to the date Wal-Mart must pay the relevant invoice; and

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(iv) in the event that the balance of the SGIP Proceeds Account at any time after the end of the Availability Period (as defined in the Loan Agreement) exceeds the aggregate “Forecasted SGIP Credits” (under Section 6.8 of the Wal-Mart PPA) remaining to be credited, based on generation of Energy at the Baseload Capacity for the Bloom Systems in the Wal-Mart Fleet multiplied by [***] during the remaining term of the Wal-Mart PPA, then such excess shall be transferred from the SGIP Proceeds Account in accordance with Section 7.13.3 of the Loan Agreement.

(d) Claims against Seller made under this Section 8.11 will not be subject to the limitations of liability set forth in Section 10.5. Buyer and Seller shall not have any obligations under this Section 8.11 to the extent such parties have satisfied their similar obligations related to Deemed Energy under Section 2.19 of the O&M Agreement.

ARTICLE IX.

EVENTS OF DEFAULT

Section 9.1 Seller Default. The occurrence at any time of any of the following events shall constitute a “Seller Default”:

(a) Failure to Pay. The failure of Seller to pay any amounts owing to Buyer on or before the day following the date on which such amounts are due and payable under the terms of this Agreement and Seller’s failure to cure each such failure within five (5) Business Days after Seller receives written notice from Buyer of each such failure;

(b) Failure to Perform Other Obligations. Unless due to a Force Majeure Event, the failure of Seller to perform or cause to be performed any other obligation required to be performed by Seller under this Agreement, or the failure of any representation and warranty set forth herein to be true and correct as and when made; provided, however, that if such failure by its nature can be cured, then Seller shall have a period of thirty (30) days after receipt of written notice of such failure to cure the same and a Seller Default shall not be deemed to exist during such period; provided, further, that if Seller commences to cure such failure during such period and is diligently and in good faith attempting to effect such cure, said period shall be extended for sixty (60) additional days;

(c) Failure to Remedy Injunction. The failure of Seller to remedy any injunction that prohibits Buyer’s use of any Bloom System as contemplated by Section 10.1 within sixty (60) days of Seller’s receipt of written notice of Buyer being enjoined therefrom; or

(d) Bankruptcy. If Seller (i) admits in writing its inability to pay its debts generally as they become due; (ii) files a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other applicable law or statute of the United States of America or any State, district or territory thereof; (iii) makes an

[***] Confidential Treatment Requested

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assignment for the benefit of creditors; (iv) consents to the appointment of a receiver of the whole or any substantial part of its assets; (v) has a petition in bankruptcy filed against it, and such petition is not dismissed within sixty (60) days after the filing thereof; or if (vi) a court of competent jurisdiction enters an order, judgment, or decree appointing a receiver of the whole or any substantial part of Seller’s assets, and such order, judgment or decree is not vacated or set aside or stayed within sixty (60) days from the date of entry thereof; or (vii) under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the whole or any substantial part of Seller’s assets and such custody or control is not terminated or stayed within sixty (60) days from the date of assumption of such custody or control.

Section 9.2 Buyer Default. The occurrence at any time of the following events with respect to Buyer shall constitute a “Buyer Default”:

(a) Failure to Pay. The failure of Buyer to pay any amounts owing to Seller on or before the day following the date on which such amounts are due and payable under the terms of this Agreement and Buyer’s failure to cure each such failure within five (5) Business Days after Buyer receives written notice of each such failure; or

(b) Failure to Perform Other Obligations. Unless due to a Force Majeure Event, the failure of Buyer to perform or cause to be performed any obligation required to be performed by Buyer under this Agreement or the failure of any representation and warranty set forth herein to be true and correct as and when made; provided, however, that if such failure by its nature can be cured, then Buyer shall have a period of thirty (30) days after receipt of written notice of such failure to cure the same and a Buyer Default shall not be deemed to exist during such period; provided, further, that if Buyer commences to cure such failure during such period and is diligently and in good faith attempting to effect such cure, said period shall be extended for sixty (60) additional days.

Section 9.3 Buyer’s Remedies Upon Occurrence of a Seller Default. If a Seller Default has occurred under Section 9.1(d), Buyer may terminate this Agreement by written notice, and assert all rights and remedies available to Buyer under Legal Requirements subject to the limitations of liability set forth in Section 10.5. If a Seller Default has occurred under Section 9.1(a), Section 9.1(b) or Section 9.1(c), Buyer may terminate this Agreement only with respect to those Bloom Systems for which such Seller Default has occurred, by written notice, and (i) assert all rights and remedies available to Buyer under Legal Requirements subject to the limitations of liability set forth in Section 10.5, or (ii) require the Seller and, if so required, Seller shall repurchase the relevant Bloom Systems in respect of which this Agreement is being terminated from the Buyer on an AS IS basis by paying the Refund Value of any such Bloom System, calculated as of the date of such refund, in which case Seller shall take title to such Bloom System upon paying the Refund Value, and such Bloom System shall no longer constitute a portion of the Portfolio. If a Bloom System will be removed pursuant to this Section 9.3, Seller shall at its sole cost and expense remove the Bloom System and any other ancillary equipment

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(including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable Site Lease) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections in the manner required by all Legal Requirements and the applicable Site Lease.

Section 9.4 Seller’s Remedies Upon Occurrence of a Buyer Default. If a Buyer Default has occurred Seller may terminate this Agreement only with respect to those Bloom Systems for which a Buyer Default has occurred and remains uncured; provided that if such Buyer Default is a Buyer Default under Section 9.2(a) and has occurred and remains uncured with respect to ten (10) or more Bloom Systems, then Seller may terminate this Agreement with respect to all Bloom Systems not yet paid in full by Buyer by written notice, and assert all rights and remedies available to Seller under Legal Requirements with respect to those Bloom Systems for which a Buyer Default has occurred, subject to the limitations of liability set forth in Section 10.5, including without limitation retaining any prior payments with respect to such Bloom Systems and selling such Bloom Systems to another buyer.

Section 9.5 Preservation of Rights. Termination of this Agreement shall not affect any rights or obligations as between the Parties which may have accrued prior to such termination or which expressly or by implication are intended to survive termination whether resulting from the event giving rise to termination or otherwise, including, without limitation, Article VII.

Section 9.6 Force Majeure. If either Party is rendered wholly or partially unable to perform any of its obligations under this Agreement by reason of a Force Majeure Event, that Party (the “Claiming Party”) will be excused from whatever performance is affected by the Force Majeure Event to the extent so affected; provided, however, that (a) the Claiming Party, within a reasonable time after the occurrence of such Force Majeure Event gives the other Party notice describing the particulars of the occurrence; (b) the suspension of performance shall be of no greater scope and of no longer duration than is reasonably required by the Force Majeure Event; (c) no liability of either Party for an event that arose before the occurrence of the Force Majeure Event shall be excused as a result of the Force Majeure Event; (d) the Claiming Party shall exercise commercially reasonable efforts to correct or cure the event or condition excusing performance and resume performance of all its obligations; and (e) when the Claiming Party is able to resume performance of its obligations under this Agreement, the Claiming Party shall promptly give the other Party notice to that effect and shall promptly resume performance.

Section 9.7 Termination of PPAs.

(a) In the event that a PPA is terminated with respect to a Bloom System, this Agreement is terminated with respect to that Bloom System and any amounts payable to the Seller in respect of such Bloom Systems after the date of termination shall cease to be payable.

(b) In the event that the termination of this Agreement under Section 9.7(a) results from the default of Seller under this Agreement, Seller shall repurchase the relevant Bloom Systems in respect of which this Agreement is being terminated from the

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Buyer on an AS IS basis by paying the Refund Value of any such Bloom System, calculated as of the date of such refund, in which case Seller shall take title to such Bloom System upon paying the Refund Value, and such Bloom System shall no longer constitute a portion of the Portfolio. If a Bloom System will be removed pursuant to this Section 9.7, Seller shall at its sole cost and expense remove (or cause the removal of) the Bloom System and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable Site Lease) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections in the manner required by all Legal Requirements and the applicable Site Lease.

ARTICLE X.

INDEMNIFICATION

Section 10.1 IP Indemnity.

(a) Except as expressly limited below, Seller agrees to indemnify, defend and hold Buyer, its members, and their Affiliates and their respective managers, officers, directors, employees and agents harmless from and against any and all Third Party Claims and Indemnifiable Losses (including in connection with obtaining any Intellectual Property necessary for continuation of completion, operation and maintenance of Bloom Systems purchased by Buyer from Seller), arising from or in connection with any alleged infringement, conflict, violation or misuse of any patents, copyrights, trade secrets or other third party Intellectual Property rights by Bloom Systems purchased by Buyer from Seller (or the use, operation or maintenance thereof) or the exercise of the IP License or the Software License granted pursuant to Sections 7.1 and 7.2 hereunder. Buyer shall give Seller prompt notice of any such claims. Seller shall be entitled to participate in, and, unless in the opinion of counsel for Seller a conflict of interest between the Parties may exist with respect to such claim, assume control of the defense of such claim with counsel reasonably acceptable to the Buyer. Buyer authorizes Seller to settle or defend such claims in its sole discretion on Buyer’s behalf, without imposing any monetary or other obligation or liability on the Buyer and subject to Buyer’s participation rights set forth in this Section 10.1. Buyer shall assist Seller upon reasonable request by Seller and, at Seller’s reasonable expense, in defending any such claim. If Seller does not assume the defense of such claim, or if a conflict precludes Seller from assuming the defense, then Seller shall reimburse Buyer on a monthly basis for Buyer’s reasonable defense expenses of such claim through separate counsel of Buyer’s choice reasonably acceptable to Seller. Even if Seller assumes the defense of such claim, Buyer may, at its sole option, participate in the defense, at Buyer’s expense, without relieving Seller of any of its obligations hereunder. Should Buyer be enjoined from selling or using any Bloom System as a result of such claim, Seller will, at its sole option and discretion, either (i) procure or otherwise obtain for Buyer the right to use or sell the Bloom System; (ii) modify the Bloom System so that it becomes non-infringing but still substantially meets the original functional specifications of the Bloom System (in which event, for the

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avoidance of doubt, all warranties hereunder shall continue to apply unmodified); (iii) upon return of the Bloom System to Seller, as directed by Seller, provide to Buyer a non-infringing Bloom System meeting the functional specifications of the Bloom System, or (iv) when and if none of the first three options is reasonably available to Seller, authorize the return of the Bloom System to Seller and, upon receipt thereof, return to Buyer all monies paid by Buyer to Seller for the cost of the Bloom Systems and BOF, net of any monies paid by Seller to Buyer for any performance guaranties or other warranty claims; provided that Seller shall not elect the option in the preceding clause (i) without the Buyer’s written consent if such election is reasonably expected to materially decrease Buyer’s revenues or materially increase Buyer’s operating expenses.

(b) THIS INDEMNITY SHALL NOT COVER ANY CLAIM:

(i) for Intellectual Property infringement, conflict, violation or misuse arising from or in connection with any combination made by Buyer of any Bloom System with any other product or products or modifications made by or on behalf of Buyer to any part of the Bloom System, unless such combination or modification is (A) in accordance with Seller’s specifications for the Bloom System, or (B) made by or on behalf of or at the written request of Seller where Seller has requested the specific combination or modification giving rise to the claim by Seller; or

(ii) for infringement of any Intellectual Property rights arising in whole or in part from any aspect of the Bloom System which was designed by or requested by the Buyer on a custom basis.

Section 10.2 Indemnification of Seller by Buyer. Buyer shall indemnify, defend and hold harmless Seller, its officers, directors, employees, shareholders, Affiliates and agents (each, a “Seller Indemnitee”) from and against any and all Indemnifiable Losses asserted against or suffered by any Seller Indemnitee arising out of a claim by a third party (other than a claim for Seller Indemnitee’s breach of contract) and in any way relating to, resulting from or arising out of or in connection with any Third Party Claims against a Seller Indemnitee to the extent arising out of or in connection with (a) the negligent or intentional acts or omissions of Buyer or its subcontractors, agents or employees or others under Buyer’s control (excluding any Seller Affiliate) or breach by Buyer of its obligations under the Agreement, or (b) operation of Bloom Systems by any party other than Seller or an Affiliate or subcontractor of Seller after such Bloom Systems have been purchased by Buyer pursuant to this Agreement (but subject to Seller’s warranties, covenants and indemnities under this Agreement and any other Transaction Document to which Seller is a party); provided that Buyer shall have no obligation to indemnify Seller to the extent caused by or arising out of any negligence, fraud or willful misconduct of any Seller Indemnitee or the breach by Seller or any Seller Indemnitee of its covenants and warranties under this Agreement or any other Transaction Document.

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Section 10.3 Indemnification of Buyer by Seller.

(a) Seller shall indemnify, defend and hold harmless Buyer, its members, managers, officers, directors, employees, Affiliates and agents (each, a “Buyer Indemnitee”) from and against any and all Indemnifiable Losses asserted against or suffered by any Buyer Indemnitee arising out of a claim by a third party (other than a claim for Buyer Indemnitee’s breach of contract) and in any way relating to, resulting from or arising out of or in connection with any Third Party Claims against a Buyer Indemnitee to the extent arising out of or in connection with the negligent or intentional acts or omissions of Seller or its subcontractors, agents or employees or others under Seller’s control (other than matters addressed separately in Section 10.1, which shall be governed by the terms thereof) or a breach by Seller of its obligations under the Agreement; provided that, Seller shall have no obligation to indemnify Buyer to the extent caused by or arising out of any negligence, fraud or willful misconduct of a Buyer Indemnitee, the breach by Buyer or any Buyer Indemnitee of its covenants and warranties under this Agreement or the inability to utilize any tax benefits.

(b) Except as otherwise set forth in this Agreement, in the event that Buyer incurs any liability, cost, loss or expense to a PPA Customer (including relating to a breach of a PPA) in relation to the repurchase by or return to Seller of any Bloom System under this Agreement, Seller shall indemnify and hold Buyer harmless for any such liability, cost, loss or expense incurred by Buyer.

Section 10.4 Indemnity Claims Procedure. Except as otherwise provided in Section 10.1, if any indemnifiable claim is brought against a Party (the “Indemnified Party”), then the other Party (the “Indemnifying Party”) shall be entitled to participate in, and, unless in the reasonable opinion of counsel for the Indemnifying Party a conflict of interest between the Parties may exist with respect to such claim, assume the defense of such claim, with counsel reasonably acceptable to the Indemnifying Party. If the Indemnifying Party does not assume the defense of the Indemnified Party, or if a conflict precludes the Indemnifying Party from assuming the defense, then the Indemnifying Party shall reimburse the Indemnified Party on a monthly basis for the Indemnified Party’s reasonable defense expenses through separate counsel of the Indemnified Party’s choice. Even if the Indemnifying Party assumes the defense of the Indemnified Party with acceptable counsel, the Indemnifying Party, at its sole option, may participate in the defense, at its own expense, with counsel of its own choice without relieving the Indemnifying Party of any of its obligations hereunder.

Section 10.5 Limitation of Liability.

(a) Notwithstanding anything to the contrary in this Agreement, in no event shall a Party be liable to the other Party for an amount in excess of the Maximum Liability unless and to the extent such liability is the result of (i) (A) fraud, willful default willful misconduct, or gross negligence of a Party or that Party’s employees, agents, subcontractors (except that for the purposes of this provision, the Seller and its employees, agents and subcontractors will not be deemed to be employees, agents or subcontractors of the Buyer), (B) a Third Party Claim, (C) a claim of Seller against Buyer

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for the Buyer’s failure to pay the Purchase Price for any Bloom System (which amount shall not be included in calculating Buyer’s Maximum Liability), (D) a claim with respect to injury to or death of any person, (E) the Seller’s abandonment to the extent constituting a repudiation of this Agreement in respect of all or any part of the Bloom Systems or BOF, or (F) events or circumstances in respect of which insurance proceeds are available or that would have been available but for a failure by the Seller to maintain, or comply with the terms of, insurance that it is required to obtain and maintain under this Agreement, and any amounts so received will not be included when calculating the Seller’s Maximum Liability; (ii) a claim against Seller under Section 10.1 for which Seller shall not have liability in excess of the IP Infringement Liability Cap; or (iii) a claim against Seller under Section 8.11. Subject always to the Maximum Liability limitations set forth in the preceding sentence, except for damages or amounts specifically provided for in this Agreement or in connection with the indemnification for damages awarded to a third party under a Third Party Claim, damages hereunder are limited to direct damages, and in no event shall a Party be liable to the other Party, and the Parties hereby waive claims, for (x) indirect, punitive, special or consequential damages or loss of profits; provided, however, that the loss of profits language set forth in this Section 10.5(b) shall not be interpreted to exclude from Indemnifiable Losses any claim, demand, suit, loss, liability, damage, obligation, payment, cost or expense (including the cost and expense of any action, suit, proceeding, assessment, judgment, settlement or compromise relating thereto and reasonable attorneys’ fees and reasonable disbursements in connection therewith) that would otherwise be included in the definition of Indemnifiable Losses because they result from a reduction in the profits of Buyer or interest, costs or expenses payable by Buyer to the Buyer’s Lender, and (y) losses or liabilities incurred by the officers, directors, members, managers, partners, shareholders or Affiliates of such Party (unless on behalf of Buyer).

(b) Each Party hereby waives any claim under this Article X irrespective of the legal theory under which it is brought to the extent such claim is covered by the insurance of the claiming Party.

(c) Seller agrees to notify Buyer of the change in the amount of the IP Infringement Liability Cap promptly after it agrees in writing to any liability cap that limits the Seller’s liability for any infringement of any third party intellectual property with any other purchaser of a Bloom system which is greater than the amount of part (i) of the definition of ‘IP Infringement Liability Cap’.

Section 10.6 No Duplication of Claims. Notwithstanding anything to the contrary in this Agreement, the Parties acknowledge and agree that no claiming or indemnified party shall be entitled to a double recovery under the indemnification provisions of this Article X and the indemnification provisions of the O&M Agreement, and the limitations of liability set forth in this Agreement and the O&M Agreement are to be calculated on an aggregate basis taking into account all claims (if any) made under this Agreement and the O&M Agreement.

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Section 10.7 Survival. The Parties’ respective rights and obligations under this Article X, Article VI and Sections 2.4, 3B.1, 3B.2, 4.2 8.9, 8.10, 11.4, 11.6 and 11.7 shall survive any total or partial termination of this Agreement.

ARTICLE XI.

MISCELLANEOUS PROVISIONS

Section 11.1 Amendment and Modification. This Agreement may be amended, modified or supplemented only by written agreement of Buyer and Seller.

Section 11.2 Intentionally Deleted.

Section 11.3 Waiver of Compliance; Consents. Except as otherwise provided in this Agreement, any failure of any of the Parties to comply with any obligation, covenant, agreement or condition herein may be waived by the Party entitled to the benefits thereof only by a written instrument signed by the Party granting such waiver, but any such waiver of such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent failure to comply therewith.

Section 11.4 Notices. All notices and other communications hereunder shall be in writing and shall be deemed given when received if delivered personally or by facsimile transmission with completed transmission acknowledgment or by electronic mail, or when delivered if mailed by overnight delivery via a nationally recognized courier or registered or certified first class mail (return receipt requested), postage prepaid, to the recipient Party at its below address (or at such other address or facsimile number for a Party as shall be specified by like notice; provided, however, that notices of a change of address shall be effective only upon receipt thereof):

To Seller:	Bloom Energy Corporation
	1299 Orleans Drive
	Sunnyvale, CA 94089-1137
	Attention: [***]
	Telephone: [***]
	Fax: [***]
	Email: [***]

[***] Confidential Treatment Requested

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To Buyer:	2012 V PPA Project Company, LLC
	c/o Bloom Energy Corporation
	1299 Orleans Drive
	Sunnyvale, CA 94089-1137
	Attention: [***]
	Telephone: [***]
	Fax: [***]
	Email: [***]
	With a copy to:
	PE12GVVC (Bloom PPA) Ltd. and PE12PXVC (Bloom PPA) Ltd.
	c/o Alberta Investment Management Corporation
	1100 - 10830 Jasper Avenue
	Edmonton, AB T5J 2B3
	Canada
	Attention: [***]
	Email: [***]
	Telephone: [***]
	(for so long as such entities are Buyer’s Lenders)
	With a copy to:
	Firstar Development, LLC
	1307 Washington, Suite 300
	St. Louis, MO 63103
	Attention: [***]
	Telephone: [***]
	Facsimile: [***]
	Email: [***] and
	[***]

Section 11.5 Assignment; Subcontractors. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns (including by operation of law), but neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any Party, whether by operation of law or otherwise, without the prior written consent of the other Party, provided that Buyer may collaterally assign its rights under this Agreement to any party providing debt or equity financing to it without the consent of Seller. Notwithstanding the foregoing sentence, (a) Seller shall be entitled to assign its right, title and interest in and to this Agreement to an Affiliate under common ownership with Seller with the prior consent of Buyer, and (b) Seller shall be entitled to subcontract any of its obligations under this Agreement without consent, provided that such assignment or subcontracting shall not excuse Seller from the obligation to competently perform any subcontracted obligations or any of its other obligations under the Agreement.

[***] Confidential Treatment Requested

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Section 11.6 Dispute Resolution.

(a) In the event a dispute, controversy or claim arises hereunder, including any claim whether in contract, tort (including negligence), strict product liability or otherwise, the aggrieved Party will promptly provide written notification of the dispute to the other Party within ten (10) days after such dispute arises. Thereafter, a meeting shall be held promptly between the Parties, attended by representatives of the Parties with decision-making authority regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute. If the Parties are not successful in resolving a dispute within twenty-one (21) days of such meeting, then, subject to the limitations on remedies set forth in Section 9.3 and Section 9.4 and Article X, either Party may pursue whatever rights it has available under this Agreement, at law or in equity in accordance with Section 11.7 herein.

(b) In the event of any dispute arising out of or relating to this Agreement, each Party hereby consents to service of process made to the addressees set forth in Section 11.4 herein either by overnight delivery by a nationally recognized courier or by certified first class mail, return receipt requested, and hereby acknowledges that service by such means shall constitute valid and lawful service of process against the Party being served.

(c) Each Party hereby agrees that, in the event of any dispute arising out of or relating to this Agreement, it will not oppose the joinder of Operator to such action or proceeding.

Section 11.7 Governing Law, Jurisdiction, Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW OR OTHER PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN NEW YORK COUNTY, NEW YORK WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING TO ANY SUCH DISPUTE AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO.

Section 11.8 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signatures delivered by facsimile (or portable document format) will be considered original signatures, and each Party shall thereafter promptly deliver original signatures to the other Party.

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Section 11.9 Interpretation. The articles, section and schedule headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the Parties and shall not in any way affect the meaning or interpretation of this Agreement.

Section 11.10 Entire Agreement.

(a) The Transaction Documents and the exhibits, schedules, documents, certificates and instruments referred to therein, embody the entire agreement and understanding of the Parties in respect of the transactions contemplated by this Agreement.

(b) Each Party acknowledges that, in agreeing to enter into this Agreement, it has not relied on any representation, warranty, collateral contract or other assurance (except those repeated in this Agreement and any other agreement entered into on the date of this Agreement between the Parties) made by or on behalf of any other Party at any time before the signature of this Agreement. Each Party waives all rights and remedies which, but for this clause (b), might otherwise be available to it in respect of any such representation, warranty, collateral contract or other assurance.

Section 11.11 Construction of Agreement. The terms and provisions of this Agreement represent the results of negotiations between Buyer and Seller, each of which has been represented by counsel of its own choosing, and neither of which has acted under duress or compulsion, whether legal, economic or otherwise. Accordingly, the terms and provisions of this Agreement shall be interpreted and construed in accordance with their usual and customary meanings, and Buyer and Seller hereby waive the application in connection with the interpretation and construction of this Agreement of any rule of law to the effect that ambiguous or conflicting terms or provisions contained in this Agreement shall be interpreted or construed against the Party whose attorney prepared the executed draft or any earlier draft of this Agreement.

Section 11.12 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party.

Section 11.13 [Reserved].

Section 11.14 Further Assurances. Each Party agrees to execute and deliver such additional documents and instruments and to perform such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions, and conditions of this Agreement and the transactions contemplated by this Agreement.

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Section 11.15 Independent Contractors. The Parties acknowledge that, save as expressly set out in this Agreement to the contrary, each Party is entering into this Agreement as an independent contractor and nothing in this Agreement shall be interpreted or applied so as to make the relationship of any of the Parties that of partners, joint ventures or anything other than independent contractors.

Section 11.16 Limitation on Export. Buyer agrees that it will not export, re-export, resell, ship or divert directly or indirectly any Bloom System in any form or technical data or Software furnished hereunder to any country prohibited by the United States Government or any other Governmental Authority, or for which an export license or other Governmental Approval is required, without first obtaining such license or approval.

Section 11.17 Time of Essence. Time is of the essence with respect to all matters contained in this Agreement.

Section 11.18 No Rights in Third Parties. Except as otherwise specified herein, (a) nothing in this Agreement nor any action taken hereunder shall be construed to create any duty, liability or standard of care to any Person that is not a Party, (b) no person that is not a Party shall have any rights or interest, direct or indirect, in this Agreement or the services to be provided hereunder and (c) this Agreement is intended solely for the benefit of the Parties, and the Parties expressly disclaim any intent to create any rights in any third party as a third-party beneficiary to this Agreement or the services to be provided hereunder.

Section 11.19 Co-ordination with Operator under O&M Agreement. Notwithstanding anything else in this Agreement, the Seller bears the risk of, is not entitled to and will not make any claim against the Buyer as a result of, and releases the Buyer from any claim it may have in respect of, any acts or omissions of the Operator (as defined in the O&M Agreement).

[Remainder of page intentionally left blank]

54

IN WITNESS WHEREOF, Buyer and Seller have caused this Master Energy Server Purchase Agreement to be signed by their respective duly authorized officers as of the Agreement Date.

BUYER:		SELLER:
2012 V PPA PROJECT COMPANY, LLC a Delaware limited liability company		BLOOM ENERGY CORPORATION a Delaware corporation
By:		By:
Name:		Name:
Title:		Title:

PPA III - MESPA

Annex A

Minimum Power Product Example Calculation

Sample Quarterly Minimum Power Product Example

Calculation

Assumptions
Number of active Systems	46
Nameplate capacity	200		kW
Quarterly Capacity Warranty	80	%
Quarterly Minimum Power Product Analysis
Minimum Power Product	7,360		kW
Sample One-Year Minimum Power Product Example Calculation
Assumptions
Number of active Systems	46
Nameplate capacity	200		kW
One-Year Capacity Warranty Factor	95	%
One-Year Minimum Power Product Analysis
Minimum Power Product	8,740		kW

Annex B

Insurance

Insurance. At all times during the Term without cost to Buyer, Seller shall maintain in force and effect the following insurance, which insurance shall not be subject to cancellation, termination or other material adverse changes unless the insurer delivers to Buyer written notice of the cancellation, termination or change at least thirty (30) days in advance of the effective date of the cancellation, termination or material adverse change or if notice from the insurer to the Buyer of material adverse change is not available on commercially reasonable terms then the Seller shall provide the Buyer with such notice as soon as reasonably possible after becoming aware of such change:

(a) Worker’s Compensation Insurance as required by the laws of the state where Buyer’s facilities are located;

(b) Employer’s liability insurance with limits at policy inception not less than One Million Dollars ($1,000,000.00);

(c) Commercial General Liability Insurance, including bodily injury and property damage liability (arising from premises, operations, contractual liability endorsements, products liability, or completed operations) with limits not less than Two Million Dollars ($2,000,000.00) at policy inception;

(d) If there is exposure, automobile liability insurance in accordance with prudent industry practice with a limit of not less than $1,000,000 per claim; and

(e) Umbrella liability insurance acting in excess of underlying employers liability, commercial general liability and automobile liability policies with limits not less than Fifteen Million Dollars ($15,000,000.00).

Seller shall cause Buyer to be included as additional insured to all insurance policies required in accordance with the provisions of this Agreement except worker’s compensation. The required insurance must be written as primary policy not contributing to or in excess of any policies carried by the Seller, and each contain a waiver of subrogation , in form and substance reasonably satisfactory to the Buyer, in favor of the Buyer.

The insurances contemplated in this clause are primary. The Parties acknowledge that if a claim is made under any of the insurances contemplated in this Agreement it is their intention that the insurer cannot require the Party first to exhaust indemnities referred to in this Agreement before the insurer’s obligation to perform is mature, subject to the insurer’s later pursuing subrogation, in which event any recovery will be credited by such insurer pro tanto in favor of the policyholder. The general liability and umbrella liability insurances required by this agreement shall provide blanket contractual cover to the full policy limit. Where applicable, each of these insurances will:

(a) be effected with an insurer reasonably acceptable to the Buyer;

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(b) not contain any exclusion, endorsement, amendment or alteration, unless first approved by the Buyer (such approval not to be unreasonably withheld or delayed);

(c) contain a waiver of subrogation in favor of the Buyer;

(d) contain deductibles in accordance with prudent industry practice and approved by the Owner acting reasonably; and

(e) include a provision that such insurance is primary insurance with respect to the interests of the Buyer and Seller and that any other insurance maintained by the Buyer is excess and not contributory insurance with the insurances required under this Agreement.

Seller shall provide Buyer with evidence of compliance with these insurance requirements when requested by Buyer from time to time on a reasonable basis.

Annex C

Capacity Warranty Claim Example Calculation and Amounts Payable

Sample Quarterly Capacity Warranty Claim Example Calculation
Assumptions
Number of Systems		46
Baseload Capacity		200		kW
Hours/Day		24		Hours
Measurement Period		90		Days
Force Majeure Outage in Period (1)				Hours
PPA Customer Outage in Period(1)				Hours
Legal/Grid Outage in Period(1)				Hours
Average Tolling Rate	$	[	***]	/kWh
Quarterly Capacity Warranty analysis
Minimum kWh = ((Measurement Period Days * 24 Hours/Day)				kWh
- Force Majeure Hours
- PPA Customer Outage Hours
- Legal/Grid Outage Hours)
* Minimum Power Product (2)
Actual kWh = Actual generation in Period				kWh
Actual Capacity Factor = Actual kWh/(Minimum kWh/Quarterly Capacity Warranty Factor) * 100				%
Quarterly Capacity Warranty Factor		80	%
Actual Capacity Factor		78	%
Minimum kWh		15,897,600		kWh
Actual kWh		15,500,160		kWh
Underperformance (kWh)		397,440		kWh
Quarterly Capacity Warranty Payment	$	[	***]

Notes:

(1) As described in the “Minimum kWh” definition above.

(2) As calculated per Annex A herein

[***] Confidential Treatment Requested

Sample One-Year Capacity Warranty Claim Example Calculation
Assumptions
Number of Systems	46
Baseload Capacity	200		kW
Hours/Day	24		Hours
Measurement Period	365		Days
Majeure Outage in Period(1)			Hours
PPA Customer Outage in Period(1)			Hours
Legal/Grid Outage in Period(1)			Hours
Average Tolling Rate	[	***]	/kWh
One-Year Capacity Warranty analysis
Minimum kWh = ((Measurement Period Days * 24 Hours/Day)			kWh
- Force Majeure Hours
- PPA Customer Outage Hours
- Legal/Grid Outage Hours)
* Minimum Power Product (2)
Actual kWh = Actual generation in Period			kWh
Actual Capacity Factor = Actual kWh/(Minimum kWh/One-Year Capacity Warranty Factor) * 100			%
One-Year Capacity Warranty	95	%
Actual Output	90	%
Minimum kWh	76,562,400
Actual kWh	72,532,800
Underperformance (kWh)	4,029,600
One-Year Capacity Warranty Payment	[	***]

Notes:

(1) As described in the “Minimum kWh” definition above.

(2) As calculated per Annex A herein

Average Tolling Rate Example Calculation

Assumptions

Installed Capacity	Tolling Rate
2000kW		[***]
1000kW		[***]

Calculation

Average Tolling Rate	= ((2000kW)*([***]/kWh) + (1000kW)*($[***]/kWh)) / (2000kW+1000kW)
	= [***]/kWh

[***] Confidential Treatment Requested

Exhibit A

Form of Purchase Order

PURCHASE ORDER

2012 V PPA Project Company, LLC Page 1 of 1

PO Number:		Supplier Details:
Revision:			Bloom Energy
PO Type:			1252 Orleans Drive
PO Status:			Sunnyvale, CA 94089
			United States
Ship-To Address:	1252 Orleans Drive	Bill-To Address:
	Sunnyvale, CA 94089		1252 Orleans Drive
	United States		Sunnyvale, CA 94089
			United States

Payment terms		Shipping Terms	Freight terms
Net 30
Creation Date	Buyer	Requestor	Vendor Contact
-    -12

Line	Deliver Date	Part Number / Part Description	Quantity	UOM	Unit Price (USD)	Taxable (Y/N)	Total (USD)
1		Ship-To:
Total PO Amount (Exclusive of Tax)

Note to Supplier:

Bloom Energy Standard Terms and Conditions apply.

Exhibit B

Form of Bill of Sale

BILL OF SALE

This BILL OF SALE, dated as of [            ] [    ], 2012 is made by BLOOM ENERGY CORPORATION, a Delaware corporation (“Seller”), to BLOOM ENERGY 2012 V PPA PROJECT COMPANY, LLC, a Delaware limited liability company (“Buyer”), and is delivered pursuant to the Amended and Restated Master Energy Server Purchase Agreement, dated as of [            ] [    ], 2012 (the “MESP Agreement”), between Seller and Buyer, in connection with the transfer of the assets described on Exhibit A attached hereto (the “Purchased System”).

Seller hereby assigns, conveys, sells, delivers, sets over and transfers to Buyer, for the consideration, and on the terms and conditions, set forth in the MESP Agreement, all of Seller’s rights, title and interest in, under and to the Purchased System, and Buyer hereby accepts such assignment .

This Bill of Sale shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.

This Bill of Sale shall be governed by, and construed in accordance with, the laws of the State of California.

[Signature Page Follows]

IN WITNESS WHEREOF, the parties hereto have caused this Bill of Sale to be signed by their respective duly authorized officers as of the date first written above.

SELLER:

BLOOM ENERGY CORPORATION

By:

Name:

Title:

BUYER:

BLOOM ENERGY 2012 V PPA PROJECT COMPANY, LLC

By:

Name:

Title:

EXHIBIT A

Purchased System

Exhibit C

[Reserved]

Exhibit D

Form of Certification of Installation

To:

1. 2012 V PPA PROJECT COMPANY, LLC (Buyer);

2. PE12GVVC (Bloom PPA) Ltd. and PE12PXVC (Bloom PPA) Ltd., ANY TRUSTEE OR AGENT ACTING ON THEIR BEHALF, AND THEIR PERMITTED SUCCESSORS AND ASSIGNS (Buyer’s Lender); and

Copy: [SAIC Energy, Environment & Infrastructure, LLC] (Independent Engineer)

This Certificate is given pursuant to paragraph (e) of the definition of Commencement of Operations in the Master Energy Server Purchase Agreement between the BLOOM ENERGY CORPORATION (Seller) and the Buyer dated [insert] (MESPA).

Terms defined in the MESPA have the same meaning where used in this Certificate.

This certificate is provided in respect of the Site known as [insert Site where Facility is located] (Site).

The Seller hereby certifies that in respect of the Site:

1. each Bloom System comprising the Facility has been installed, commissioned and tested in accordance with the Performance Standards and all other requirements of the MESPA; and

2. All BOF and BOF Work necessary for the operation of the Facility has been installed, commissioned and tested in accordance with the Performance Standards and all other requirements of the MESPA.

This Certificate may be relied upon by the Buyer and the Buyer’s Lender.

Signed for and on behalf of BLOOM ENERGY CORPORATION

By:

Name:

Title:

Exhibit E

Form of Independent Engineer Certification of Commissioning

[Date of Certificate]

To:

1. PE12GVVC (BLOOM PPA) LTD

As Administrative Agent on behalf of the Lenders to the Project Company (Administrative Agent)

2. ALBERTA INVESTMENT MANAGEMENT CORPORATION (Arranger)

3. BLOOM ENERGY CORPORATION (Seller)

4. 2012 V PPA PROJECT COMPANY, LLC (the “Project Company”)

Subject:	Independent Engineer’s Commencement of Operations Certificate
	2012 V PPA Project Company, LLC – PPA IIIa Project

Ladies and Gentlemen:

This certificate (“Certificate”) is being delivered to 2012 V PPA Project Company, LLC, a [Delaware] limited liability company (“Buyer”) on behalf of SAIC Energy, Environment & Infrastructure, LLC (the “Independent Engineer”) as required by clause (g) of the definition of “Commencement of Operations” in the Master Energy Server Purchase Agreement (the “MESPA”), dated as of                 , 2012, between Buyer and Bloom Energy Corporation, a Delaware corporation (“Seller”). Capitalized terms used, but not defined herein, shall have the meanings ascribed to them in the MESPA.

The Independent Engineer hereby makes the following statements as of the date of this Certificate.

1. The installation, commissioning and testing of the              Facility and each of the Bloom Systems listed on Attachment A at the              Facility attached hereto has been successfully completed in accordance with the requirements of the MESPA;

2. Each of the requirements set out in paragraphs (a) to (f) of the definition of Commencement of Operations in the MESPA have been satisfied; and

3. Each such Bloom System and the              Facility has achieved commercial operation as of             ; and

4. Seller has installed all Balance of Facility (“BOF”) Work necessary for the operation of the Facility located at the              Site.

This Certificate was prepared with the understanding and assumption that the information provided to us in relation to this certificate is true, correct and complete. Our review and observations were performed pursuant to the scope of services under our Amended and Restated Professional Services Agreement, dated as of                 , as amended (the “Services Agreement”) with Bloom Energy Corporation, 2012 V PPA Project Company, LLC and the Administrative Agent and with the degree of skill and diligence normally practiced by professional engineers or consultants performing the same or similar services on like projects.

This Certificate is solely for the information of and assistance to the Administrative Agent and the Third Parties in conducting and documenting their investigation of the matters in connection with the Project and is not to be used, circulated, quoted, or otherwise referred to within or without the lending group for any other purpose. SAIC disclaims any obligation to update this Certificate. This Certificate is not intended to, and may not, be relied upon by any party other than the Administrative Agent and the Third Parties.

SAIC ENERGY, ENVIRONMENT & INFRASTRUCTURE, LLC

By:

SAIC Energy, Environment & Infrastructure, LLC
MEDITECH Corporate Center, West Wing, 550 Cochituate Road | Framingham, MA 01701 | tel: 508.935.1600 |  saic.com/EEandl

2012 V PPA Project Company, LLC

December 20, 2012

Page 2 of 3

Name:	Friedrich W. Finger III, P.E.
Title:	Senior Consultant
By:
Name:	Kenneth J. Rush, Jr., P.E.
Title:	Senior Project Manager

2012 V PPA Project Company, LLC

December 20, 2012

Page 3 of 3

ATTACHMENT A

COMPLETED BLOOM SYSTEMS

Serial Numbers:

EX-10

Exhibit 10.44

Execution Version

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

OMNIBUS AMENDMENT TO

MESPA, MOMA, ASA, REC PSA AND

EQUITY CONTRIBUTION TRI-PARTY AGREEMENT

THIS OMNIBUS AMENDMENT TO MESPA, MOMA, ASA, REC PSA AND EQUITY CONTRIBUTION TRI-PARTY AGREEMENT (this “Amendment”), is executed as of August 30, 2013, by and among Bloom Energy Corporation, a Delaware corporation (“Bloom”), 2012 ESA Project Company, LLC (formerly known as 2012 V PPA Project Company, LLC), a Delaware limited liability company (the “Project Company”), and 2012 V PPA Holdco, LLC, a Delaware limited liability company (“Holdco”). Each of the foregoing entities shall be referred to individually herein as a “Party” and collectively as the “Parties”.

RECITALS

A. WHEREAS, Bloom and the Project Company entered into the following documents dated as of December 21, 2012:

(i) Amended and Restated Master Energy Server Purchase Agreement (the “MESPA”);

(ii) Amended and Restated Master Operation and Maintenance Agreement (the “MOMA”); and

(iii) REC Purchase and Sale Agreement (the “REC PSA”).

B. WHEREAS, Bloom, the Project Company and Holdco entered into the following documents dated as of December 21, 2012:

(i) Administrative Services Agreement (the “ASA”); and

(ii) Equity Contribution Tri-Party Agreement (the “Tri-Party Agreement”, and collectively with the MESPA, the MOMA, the REC PSA and the ASA, the “Amended Agreements”, and each an “Amended Agreement”).

C. WHEREAS, Bloom and the Project Company amended the MESPA pursuant to that certain First Amendment to Amended and Restated Master Energy Server Purchase Agreement, dated as of March 27, 2013, and further amended the MESPA and amended the MOMA pursuant to that certain Omnibus Amendment to MESPA, MOMA and Equity Contribution Tri-Party Agreement, dated as of June 27, 2013 (the “First Omnibus Amendment”).

D. WHEREAS, Bloom, the Project Company and Holdco amended the Tri-Party Agreement pursuant to the First Omnibus Amendment.

E. WHEREAS, Bloom and the Project Company desire to amend the MESPA, the MOMA and the REC PSA, and Bloom, the Project Company and Holdco desire to amend the ASA and the Tri-Party Agreement, each as more fully set forth in this Amendment.

NOW, THEREFORE, in consideration of the mutual covenants set forth in this Amendment, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

AGREEMENT

1. Amendments to MESPA and MOMA. Bloom and the Project Company agree to amend the MESPA and MOMA as follows;

a. The definition of “Administrative Services Agreement” in each of the MESPA and the MOMA is deleted in its entirety and replaced with the following text:

“Administrative Services Agreement” means the Administrative Services Agreement dated as of December 21, 2012, and amended by the Omnibus Amendment to MESPA, MOMA, ASA, REC PSA and Equity Contribution Tri-Party Agreement dated as of August 30, 2013, among Bloom Energy Corporation, 2012 ESA Project Company, LLC (formerly known as 2012 V PPA Project Company, LLC) and 2012 V PPA HoldCo, LLC.”

b. The definition of “AT&T PPA” in each of the MESPA and the MOMA is deleted in its entirety and replaced with the following text:

“ AT&T PPA” means, as applicable: (i) that certain Energy System Use Agreement dated as of December 19, 2012, by and between Pacific Bell Telephone Company and 2012 ESA Project Company, LLC (“2012 ESA”), (ii) that certain Energy System Use Agreement No. 20130403.072.C dated as of May 15, 2013, by and between Pacific Bell Telephone Company and 2012 ESA, except to the extent assigned to 2013B ESA Project Company, LLC (“2013B”) pursuant to that certain assignment and assumption agreement dated as of July 5, 2013, by and between 2012 ESA as assignor and 2013B as assignee,

(iii) that certain Energy System Use Agreement No. 20130403.077.C dated as of May 15, 2013, by and between AT&T Corp. and 2012 ESA, (iv) that certain Energy System Use Agreement No. 20130430.072.C dated as of May 15, 2013, by and between Pacific Bell Telephone Company and 2013B, as and to the extent assigned by 2013B to 2012 ESA pursuant to that certain assignment and assumption agreement dated as of July 5, 2013, by and between 2013B as assignor and 2012 ESA as assignee (“Assignment and Assumption Agreement #1”), and (v) that certain Energy System Use Agreement No.

2

20130430.078.C dated as of May 15, 2013, by and between AT&T Corp. and 2013B, as and to the extent assigned by 2013B to 2012 ESA pursuant to Assignment and Assumption Agreement #1; provided, however, that following the execution of Amendment NO. 1 to Energy System Use Agreement No. 20130403.075.C by each of Pacific Bell Telephone Company and 2012 ESA and the execution of Amendment NO. 1 to Energy System Use Agreement No. 20130403.077.C by each of AT&T Corp. and 2012 ESA, “AT&T PPA” will mean collectively (i) that certain Energy System Use Agreement dated as of December 19, 2012, by and between Pacific Bell Telephone Company and 2012 ESA, (ii) that certain Energy System Use Agreement No. 20130403.075.C dated as of May 15, 2013, by and between Pacific Bell Telephone Company and 2012 ESA, as amended by Amendment No. 1 to Energy System Use Agreement No. 20130403.075.C, and (iii) that certain Energy System Use Agreement No. 20130403.077.0 dated as of May 15, 2013, by and between AT&T Corp. and 2012 ESA, as amended by Amendment NO. 1 to Energy System Use Agreement No. 20130403.077.C A reference to ‘the AT&T PPA’ in this Agreement shall be taken to be a reference to ‘an AT&T PPA’, all AT&T PPAs’, ‘the applicable AT&T PPA’ or ‘each AT&T PPA’, as the context requires.”

c. The definition of “Holdco LLC Agreement” in each of the MESPA and the MOMA is deleted in its entirety and replaced with the following text:

““Holdco LLC Agreement” means the Second Amended and Restated Operating Agreement of 2012 V PPA Holdco, LLC, dated as of August 30, 2013, executed by Firstar Development, LLC and Clean Technologies III, LLC.”

2. Amendments to MESPA. Bloom and the Project Company agree to amend the MESPA as follows:

a. The third Recital is deleted in its entirety and replaced with the following text:

“WHEREAS, Buyer desires to purchase and Seller desires to sell, Bloom Systems which will have an aggregate Baseload Capacity of up to 10.2 MW, and which Bloom Systems will be installed in certain Facilities in California and Connecticut when and as the conditions to such installation are met as provided in this Agreement.”

b. The definition of “Bloom System” is amended to replace the text “7.2 MW” that appears in such definition with the text “10.2 MW”.

3

c. The definition of “ECCA” is deleted in its entirety and replaced with the following text:

““ECCA” means that certain Amended and Restated Equity Capital Contribution Agreement between Firstar Development, LLC and Clean Technologies III, LLC, dated as of August 30, 2013.”

d. The definition of “Guidance” is deleted in its entirety.

e. The definition of “O&M Agreement” is deleted in its entirety and replaced with the following text:

“O&M Agreement” means the Amended and Restated Master Operation and Maintenance Agreement, dated December 21, 2012, between Seller and Buyer, and amended by (i) the Omnibus Amendment to MESPA, MOMA and Equity Contribution Tri-Party Agreement dated as of June 27, 2013, and (ii) the Omnibus Amendment to MESPA, MOMA, ASA, REC PSA and Equity Contribution Tri-Party Agreement dated as of August 30, 2013, providing for the maintenance and extended warranty of the Bloom Systems sold to Buyer under this Agreement.”

f. The definition of “REC Agreement” is deleted in its entirety and replaced with the following text:

““REC Agreement” means the REC Purchase and Sale Agreement between the Seller and the Buyer dated as of December 21, 2012, and amended by the Omnibus Amendment to MESPA, MOMA, ASA, REC PSA and Equity Contribution Tri-Party Agreement dated as of August 30, 2013, providing for the sale of renewable energy certificates by the Seller to the Buyer for the purpose of the Seller enabling the Buyer to comply with the Wal-Mart PPA, including under Section 5.3(a) of the Wal-Mart PPA.”

g. Section 2.1(a) is amended to replace the text “7.2 MW” that appears in the first sentence of such Section with the text “10.2 MW”.

h. Section 2.2(e) is deleted in its entirety and replaced with the following text:

“Payments of the portion of Purchase Price set forth in Section 2.2(a)(i) for a Bloom System shall be payable on the date of receipt by Buyer of an invoice pursuant to Section 2.2(a)(i) with respect to such Bloom System and must be paid no later than the date that is five (5) Business Days following both (i) the first Funding Date for such Bloom System following the

4

Physical Delivery of such Bloom System, and (ii) the date of certification to Buyer that on the date of Physical Delivery of such Bloom System, the Bloom System Purchase Conditions were true and correct. Interest shall accrue daily on sums not paid by the latter of the dates set forth in the preceding clauses (i) and (ii), at the lesser of a monthly rate of one and five-tenths percent (1.5%) or the highest rate permissible by law on the unpaid balance.”

i. Section 2.2(f) is deleted in its entirety and replaced with the following text:

“Final payments of the Purchase Price set forth in Section 2.2(a)(ii) shall be payable on the date of receipt by Buyer of an invoice pursuant to Section 2.2(a)(ii) with respect to a Bloom System and must be paid no later than the date that is five (5) Business Days following the latest of (i) the next Funding Date following the receipt by Buyer of an invoice pursuant to Section 2.2(a)(ii) with respect to such Bloom System, (ii) the date of funding of the portion of the final payment of the Purchase Price set forth in Section 2.2(a)(ii) that is to be funded under the Loan Agreement with respect to such Bloom System and (iii) the date of certification to Buyer that Commencement of Operations of the Facility into which such Bloom System is incorporated has occurred. Interest shall accrue daily on sums not paid by the latest of the dates set forth in the preceding clauses (i), (ii) and (iii), at the lesser of a monthly rate of one and five-tenths percent (1.5%) or the highest rate permissible by law on the unpaid balance.”

j. Section 2.3 is deleted in its entirety and replaced with the following text:

“Purchase and Sale of Bloom Systems. Upon the “Delivery Date” for a Bloom System as provided in the invoice described in Section 2.2(a)(i) above, which date in any case may not be earlier than when Physical Delivery occurs, nor any later than the date for which the Bloom System Purchase Conditions for the Bloom System are and remain true and correct, (i) Seller shall have sold, assigned, conveyed, transferred and delivered to Buyer, and Buyer shall have purchased, assumed and acquired from Seller, all of Seller’s right, title and interest in and to such Bloom System, (ii) the sale of such Bloom System shall occur, and (iii) Seller shall provide Buyer with (a) a Bill of Sale evidencing the same, (b) lien waivers from each subcontractor performing BOF Work at the applicable Site, stating that such subcontractor has been paid all amounts owed to it as of the date of the lien waiver and (c) a certification from Seller that on the date of Physical Delivery of such Bloom System, the Bloom System Purchase Conditions were true and correct (the foregoing being “Delivery”).”

5

k. Section 3.2(d) is amended to replace the text “June 30, 2013” that appears therein with the text “March 31, 2014”.

l. Section 3.4(a)(iv) is amended to delete the text “or the Guidance” from the end of that subsection.

3. Amendments to MOMA. Bloom and the Project Company agree to amend the MOMA as follows:

a. The preamble is amended to replace the text “7.2 MW” that appears therein with the text “10.2 MW”.

b. The second “Whereas” clause is amended to replace the text “dated as of the date hereof’ with the text “dated as of December 21, 2012, and amended by (i) the First Amendment to Amended and Restated Master Energy Server Purchase Agreement, dated as of March 27, 2013, (ii) the Omnibus Amendment to MESPA, MOMA and Equity Contribution Tri- Party Agreement dated as of June 27, 2013 and (iii) the Omnibus Amendment to MESPA, MOMA, ASA, REC PSA and Equity Contribution Tri-Party Agreement dated as of August 30,2013”.

c. The table in Exhibit A is deleted in its entirety and replaced with table included in Attachment 1 hereto

d. The table in Exhibit B is deleted in its entirety and replaced with table included in Attachment 2 hereto.

4. Amendments to ASA. Bloom, the Project Company and Holdco agree to amend the ASA as follows:

a. All references to “2012 V PPA Project Company, LLC” are replaced with “2012 ESA Project Company, LLC”.

b. Preliminary Statement “C” is amended by adding the text below prior to the text “the “Company LLC Agreement”” that appears in such Preliminary Statement, and within the parentheses:

“as may be amended, amended and restated, supplemented or modified from time to time,”

c. The definition of “ECCA” is deleted in its entirety and replaced with the following text:

““ECCA” means that certain Amended and Restated Equity Capital Contribution Agreement between Clean Technologies and Investor, dated as of August 30, 2013.”

6

5. Amendments to REC PSA. Bloom and the Project Company agree to amend the REC PSA as follows:

a. All references to “2012 V PPA Project Company, LLC” are replaced with “2012 ESA Project Company, LLC”.

b. The definition of “ASA” is amended by adding the following text before the period in such definition: “as such agreement may be amended, amended and restated, supplemented or modified from time to time”.

c. The definition of ““MESPA” and “MOMA”“ is amended by adding the following text before the period in such definition: “as each such agreement may be amended, amended and restated, supplemented or modified from time to time”.

6. Amendments to Tri-Party Agreement. Bloom, the Project Company and Holdco agree to amend the Tri-Party Agreement as follows:

a. Recital “B” is amended by deleting the text “Equity Capital Contribution Agreement, dated as of the date hereof’ that appears in such Recital and replacing such text with the text “Amended and Restated Equity Capital Contribution Agreement, dated as of August 30, 2013”.

b. The “ECCA” attached as Annex A is replaced with the Amended and Restated Equity Capital Contribution Agreement, dated as of August 30, 2013, by and between Firstar Development, LLC and Clean Technologies III, LLC.

c. The definition of “Credit Agreement” is deleted in its entirety and replaced with the following:

““Credit Agreement” means the Amended and Restated Credit Agreement, dated as of August 30, 2013, among the Project Company, PE12GVVC (Bloom PPA) LTD. and PE12PXVC (Bloom PPA) LTD., as lenders, the Administrative Agent and the Collateral Agent.”

d. Section 2.2(ii)(b) is amended by replacing the text “[***] of the Project Costs” contained therein with the text “[***] kW for all Funded Systems”.

7. Ratification. Each Amended Agreement, as amended hereby, is in all respects ratified and confirmed by each Party that is a party thereto. Each Party hereby confirms that each Amended Agreement, as amended hereby, shall be and remain in full force and effect and that no obligations thereunder are modified by the execution or effectiveness of this Amendment except as provided herein. All references to each Amended Agreement in any other document or instrument shall be deemed to mean such Amended Agreement as amended by this Amendment.

[***] Confidential Treatment Requested

7

8. Amendments. No amendment, modification, termination or waiver of any provision of this Amendment shall be effective unless the same shall be in writing and duly executed by the Parties.

9. Enforceability. This Amendment shall be enforceable by and binding upon and shall inure to the benefit of the Parties hereto and their respective successors and assigns.

10. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of New York, without regard to principles of conflicts of law (other than Section 5-1401 of the New York General Obligations Law, which shall apply to this Amendment).

11. Counterparts and Facsimile Execution. This Amendment may be executed and delivered (including by “portable document format”) in one or more counterparts, all of which shall be considered one and the same and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to each other Party, it being understood that all Parties need not sign the same counterpart. Signatures of the Parties transmitted by electronic mail shall be deemed to be their original signatures for all purposes.

12. Severability. If any term or other provision of this Amendment is invalid, illegal, or incapable of being enforced by any rule of applicable law, or public policy, all other terms and provisions of this Amendment shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated herein are not affected in any manner materially adverse to any Party.

SIGNATURE PAGE FOLLOWS

8

IN WITNESS WHEREOF, each Party has caused this Amendment to be signed on its behalf as of the date first written above.

BLOOM ENERGY CORPORATION
By:
	Name:
	Title
2012 V ESA PROJECT COMPANY, LLC
By:
	Name:
	Title
2012 V PPA HOLDCO, LLC
By:
	Name:
	Title

Signature Page to Omnibus Amendment

ATTACHMENT 1

Calendar Quarters since Commencement of Operations for the applicable Facility	Rate
1 through 4	$[***]kW
5 through 8	$[***]kW
9 through 12	$[***]kW
13 through 16	$[***]kW
17 through 20	$[***]kW
21 through 24	$[***]kW
25 through 28	$[***]kW
29 through 32	$[***]kW
33 through 36	$[***]kW
37 through 40	$[***]kW
41 through 44	$[***]kW
45 through 48	$[***]kW
49 through 52	$[***]kW
53 through 56	$[***]kW
57 through 60	$[***]kW

[***] Confidential Treatment Requested

ATTACHMENT 2

EXHIBIT B

to

MASTER OPERATION AND MAINTENANCE AGREEMENT

FACILITIES

Site No.	PPA Customer	Address	City	State	Size (kW).
1	AT&T	[***]	Compton	CA	[***]
2	AT&T	[***]	Los Angeles	CA	[***]
3	AT&T	[***]	El Segundo	CA	[***]
4	AT&T	[***]	Hawthorne	CA	[***]
5	AT&T	[***]	Riverside	CA	[***]
6	AT&T	[***]	Riverside	CA	[***]
7	Wal-Mart	[***]	Porterville	CA	[***]
8	Wal-Mart	[***]	Torrance	CA	[***]
9	Wal-Mart	[***]	San Diego	CA	[***]
10	Wal-Mart	[***]	South Gate	CA	[***]
11	Wal-Mart	[***]	San Jacinto	CA	[***]
12	Wal-Mart	[***]	Palm Springs	CA	[***]
13	Wal-Mart	[***]	Santa Clarita	CA	[***]
14	Wal-Mart	[***]	Baldwin Park	CA	[***]
15	Wal-Mart	[***]	Lakewood	CA	[***]
16	Wal-Mart	[***]	Palm Desert	CA	[***]
17	Wal-Mart	[***]	Lake Elsinore	CA	[***]
18	Wal-Mart	[***]	Glendora	CA	[***]
19	Wal-Mart	[***]	Hanford	CA	[***]
20	Wal-Mart	[***]	Temecula	CA	[***]
21	Wal-Mart	[***]	Visalia	CA	[***]
22	Wal-Mart	[***]	Pico Rivera	CA	[***]
23	Wal-Mart	[***]	Corona	CA	[***]
24	Wal-Mart	[***]	Apple Valley	CA	[***]
25	AT&T	[***]	Bridgeport	Cr	[***]
26	AT&T	[***]	Los Angeles	CA	[***]
27	AT&T	[***]	Gardena	CA	[***]
28	AT&T	[***]	North Hollywood	CA	[***]
29	AT&T	[***]	Wilmington	CA	[***]
30	AT&T	[***]	Cheshire	CT	[***]
Total					[***]

[***] Confidential Treatment Requested

EX-10

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Exhibit 10.46

EQUITY CONTRIBUTION TRI-PARTY AGREEMENT

This EQUITY CONTRIBUTION TRI-PARTY AGREEMENT, dated as of December December 21, 2012 (this “Agreement”), is entered into by and among 2012 V PPA HOLDCO, LLC, a Delaware limited liability company (“Holdings”), 2012 V PPA PROJECT COMPANY, LLC, a Delaware limited liability company (the “Project Company”), and BLOOM ENERGY CORPORATION, a Delaware corporation (“Bloom”).

RECITALS

A. The Project Company has entered into an Amended and Restated Master Energy Server Purchase Agreement with Bloom, dated as of the date hereof (as amended, amended and restated, supplemented or otherwise modified from time to time, the “MESPA”), pursuant to which the Project Company will purchase from Bloom, subject to the terms and conditions set for therein, on-site fuel cell power generating systems (the “Systems”) to be installed on, together with the relevant ancillary facilities and equipment, certain sites located in California.

B. Holdings owns 100% of the equity interests of the Project Company. In order to finance a portion of the purchase price for the Systems, Clean Technologies III, LLC, a Delaware limited liability company (“Clean Technologies”), and Firstar Development, LLC, a Delaware limited liability company (“Firstar”), have entered into the Equity Capital Contribution Agreement, dated as of the date hereof (as amended, amended and restated, supplemented or otherwise modified from time to time, the “ECCA”), pursuant to which Clean Technologies and Firstar have agreed, subject to the terms and conditions set for therein, to make capital contributions to Holdings so that, among other things, Holdings may pay certain project costs for the benefit of the Project Company.

C. The parties hereto desire to enter into this Agreement to set forth their understanding with respect to the payment by Holdings, on behalf of the Project Company, of amounts owed to Bloom under the MESPA.

AGREEMENT

NOW, THEREFORE, in consideration of the promises contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:

ARTICLE I.

DEFINITIONS

1.1 Unless otherwise defined herein, all capitalized terms used in this Agreement shall have the meanings provided in the ECCA, a copy of which is attached hereto as Annex A.

1.2 Unless otherwise provided herein, the rules of interpretation set forth in Section 1.2 of the ECCA shall apply to this Agreement, including its preamble and recitals, and are incorporated herein by reference.

1.3 “Administrative Agent” means PE12GVVC (Bloom PPA) LTD., as administrative agent under the Credit Agreement.

1.4 “Credit Agreement” means the Credit Agreement, dated as of December 21, 2012, among the Project Company, PE12GVVC (Bloom PPA) LTD. and PE12PXVC (Bloom PPA) LTD., as lenders, the Administrative Agent and the Collateral Agent.

1.5 “Collateral Agent” means Deutsche Bank Trust Company Americas, as collateral agent under the Credit Agreement.

ARTICLE II.

AGREEMENT TO PAY

2.1 Contributions to Holdings. All amounts contributed by Firstar and Clean Technologies to Holdings pursuant to the ECCA (“Equity Contributions to Holdings”) shall be applied by Holdings in the manner set forth in the ECCA. Funds from Equity Contributions to Holdings that are used by Holdings to pay costs or expenses on behalf of the Project Company shall be deemed capital contributions by Holdings to the Project Company and any funds from Equity Contributions to Holdings that are required under the ECCA to be deposited, or are otherwise deposited, into accounts held by Project Company shall also be deemed capital contributions by Holdings to the Project Company (collectively hereinafter called “Equity Contributions to Project Company”).

2.2 Contributions to Project Company. Holdings agrees to (i) fund in full, for the benefit of the Project Company, any reserves required by the Credit Agreement, including amounts required to be paid by Holdings to Project Company for deposit into the Maintenance Reserve Account (as defined in the Credit Agreement), and (ii) ensure that Equity Contributions to Project Company are made, or deemed to be made, so that the total capital contributed to Project Company shall be (a) as required to enable funding to be available under the Credit Agreement; and (b) not less than [***] of the Project Costs (as defined in the Credit Agreement).

2.3 Membership Interests. The Project Company has issued membership interests to Holdings in consideration for, among other things, the Equity Contributions to Project Company including by the capital contributions that Holdings will be deemed to have made to the Project Company by paying certain costs and expenses on behalf of the Project Company and funding certain required reserves of the Project Company, as set forth in the ECCA and as required under this Agreement.

2.4 MESPA Initial Invoice.

2.4.1 Without limiting the obligations of Holdings in Section 2.1 above, Holdings agrees that, upon the receipt by Holdings of an Investor Initial Funding Date Contribution and Class B Member Initial Funding Date Contribution made by Firstar and Clean Technologies, respectively, pursuant to Section 2.2 of the ECCA, Holdings shall promptly pay, on behalf of the Project Company, all amounts due to Bloom from the Project Company under the MESPA Initial Invoice in relation to which such Investor Initial Funding Date Contribution and Class B Member Initial Funding Date Contribution were made, in all cases subject to Holdings having received sufficient funds to pay such amounts due to Bloom.

[***] Confidential Treatment Requested

2.4.2 Holdings shall be liable for, and shall pay, any interest that accrues pursuant to Section 2.2(e) of the MESPA on the amounts due under such MESPA Initial Invoice.

2.4.3 Bloom agrees that, notwithstanding the provisions of Section 2.2(g) of the MESPA, it shall not suspend performance of its obligations under the MESPA on account of the failure of Holdings to pay when due any amount under a MESPA Initial Invoice.

2.4.4 Bloom (i) agrees that Project Company is hereby released from, and (ii) indemnifies the Project Company against, any claim for, or liability in relation to, all amounts owed to Bloom under the MESPA with respect to any MESPA Initial Invoice. Holdings agrees to be responsible for, and liable to Bloom for, such amounts owed to Bloom notwithstanding that as contemplated under section 2.3.1, Holdings may not have received sufficient funds to pay such amounts.

2.5 MESPA Final Invoice.

2.5.1 Without limiting the obligations of Holdings in Section 2.1 above, Holdings agrees that, upon the receipt by Holdings of an Investor True Up Date Funding Contribution and Class B Member True Up Date Funding Contribution made by Firstar and Clean Technologies, respectively, pursuant to Section 2.5 of the ECCA, Holdings shall promptly pay, on behalf of the Project Company, all amounts due to Bloom from the Project Company under the MESPA Final Invoice in relation to which such Investor True Up Date Funding Contribution and Class B Member True Up Date Funding Contribution were made, in all cases subject to Holdings having received sufficient funds to pay such amounts due to Bloom.

2.5.2 Holdings shall be liable for, and shall pay, any interest that accrues pursuant to Section 2.2(f) of the MESPA on the amounts due under such MESPA Final Invoice.

2.5.3 Bloom agrees that, notwithstanding the provisions of Section 2.2(g) of the MESPA, it shall not suspend performance of its obligations under the MESPA on account of the failure of Holdings to pay when due any amount under a MESPA Final Invoice.

2.5.4 Bloom (i) agrees that Project Company is hereby released from, and (ii) indemnifies the Project Company against, any claim for, or liability in relation to, all amounts owed to Bloom under the MESPA with respect to any MESPA Final Invoice which are not amounts to be funded under the Credit Agreement (“Non-Credit Agreement Funding Dues”). Holdings agrees to be responsible for, and liable to Bloom for, the Non-Credit Agreement Funding Dues notwithstanding that as contemplated under Section 2.4.1, Holdings may not have received sufficient funds to pay the Non-Credit Agreement Funding Dues.

2.6 No Waiver. Nothing contained in this Agreement is intended to modify or waive in any way any rights that the Project Company may have, or any obligations that Bloom may have, under the MESPA.

ARTICLE III.

MISCELLANEOUS

3.1 Amendments; Waivers; Consents. This Agreement may not be amended, supplemented or otherwise modified, except in a writing signed by each of the parties hereto.

3.2 Notices. All notices, requests, consents, demands and other communications required or permitted to be given under this Agreement shall be in writing and shall be given to each other party hereto at its address or email address set forth below:

To Bloom:

Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, California 94089

Attn: [***]

Telephone: [***]

Email: [***]

To Holdings:

2012 V PPA Holdco, LLC

c/o Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, California 94089

Attn: [***]

Telephone: [***]

Email: [***]

To the Project Company:

2012 V PPA Project Company, LLC

c/o Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, California 94089

Attn: [***]

Telephone: [***]

Email: [***]

3.3 GOVERNING LAW, JURISDICTION, VENUE. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW OR OTHER PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN NEW YORK COUNTY, NEW YORK WITH RESPECT TO ANY DISPUTE

[***] Confidential Treatment Requested

ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING TO ANY SUCH DISPUTE AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO.

3.4 Severability. The provisions of this Agreement are severable, and if any clause or provision shall be held invalid or unenforceable in whole or in part in any jurisdiction, then such invalidity or unenforceability shall affect only such clause or provision, or part thereof, in such jurisdiction and shall not in any manner affect such clause or provision in any other jurisdiction, or any other clause or provision of this Agreement in any jurisdiction.

3.5 Counterparts. This Agreement and any amendments, waivers, consents or supplements hereto or in connection herewith may be executed in any number of counterparts and by the different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute one and the same agreement. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document.

3.6 Third Party Beneficiaries. This Agreement does not and is not intended to confer any rights or remedies upon any Person other than the parties hereto and the Administrative Agent and the Collateral Agent as third-party beneficiaries.

[Signature Pages Follow]

IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute this Agreement as of the date first above written.

2012 V PPA HOLDCO, LLC

By:

Name:

Title:

2012 V PPA PROJECT COMPANY, LLC

By:

Name:

Title:

BLOOM ENERGY CORPORATION

By:

Name:

Title:

Equity Contribution Tri-Party Agreement

Annex A

ECCA

Execution Version

EQUITY CAPITAL CONTRIBUTION AGREEMENT

between

FIRSTAR DEVELOPMENT, LLC

and

CLEAN TECHNOLOGIES III, LLC

DECEMBER 21, 2012

TABLE OF CONTENTS

		Page
ARTICLE ONE DEFINITIONS AND PRINCIPLES OF INTERPRETATION			1
1.1	Definitions.		1
1.2	Rules of Interpretation.		12
ARTICLE TWO EQUITY CAPITAL CONTRIBUTIONS			13
2.1	Execution Date.		13
2.2	Initial Contributions.		13
2.3	Use of Initial Funding Date Proceeds.		14
2.4	Use of Account Following the True Up Funding Date Deadline.		14
2.5	True Up Date Contributions.		14
2.6	Use of True Up Funding Date Proceeds and Account on True Up Funding Date.		15
2.7	Limits on Investor Funding.		15
ARTICLE THREE REPRESENTATIONS AND WARRANTIES REGARDING THE FACILITY ENTITIES AND EACH FACILITY			15
3.1	Organization and Good Standing.		15
3.2	Authorization, Execution and Enforceability.		16
3.3	No Violation.		16
3.4	Subsidiaries; Non-Related Liabilities.		16
3.5	Members of the Company; Additional Membership Interests.		17
3.6	Warranty of Title; Personal Property.		17
3.7	Facilities; Governmental Approvals.		17
3.8	Employees.		17
3.9	Brokers.		17
3.10	Consents and Approvals.		18
3.11	Compliance with Applicable Law.		18
3.12	Litigation.		18
3.13	Contracts.		18
3.14	Default.		18
3.15	Environmental Matters.		19
3.16	Equipment and Facilities.		19
3.17	Real Property.		19
3.18	PUHCA and FPA Status.		19
3.19	Affiliate Transactions.		20
3.20	Information.		20
3.21	Insurance.		20
3.22	CPUC Regulation.		20
3.23	Taxes.		20
3.24	Tax Representations.		21
3.25	Bankruptcy.		22
3.26	Books and Records.		22
3.27	Executive Order 13224 and the Patriot Act.		22
3.28	Facility Costs.		23
3.29	Commercial Completion.		23

ii

3.30	Financial Statements.	23
ARTICLE FOUR REPRESENTATIONS AND WARRANTIES OF CLASS B MEMBER		23
4.1	Representations and Warranties Regarding the Class B Member.	23
ARTICLE FIVE REPRESENTATIONS AND WARRANTIES OF THE INVESTOR		27
5.1	Organization and Good Standing.	27
5.2	Authorization, Execution and Enforceability.	27
5.3	No Violation.	27
5.4	Consents and Approvals.	27
5.5	Litigation.	27
5.6	Investment Intent; Unregistered Securities.	28
5.7	Accredited Investor.	28
5.8	Regulation D Compliance.	28
5.9	Brokers.	28
5.10	United States Person.	28
5.11	PUHCA and FPA Status.	29
5.12	Disqualified Person.	29
5.13	Bankruptcy.	29
5.14	No Other Representations.	29
ARTICLE SIX CONDITIONS PRECEDENT		29
6.1	Execution Date Conditions Precedent.	29
6.2	Initial Funding Date Conditions Precedent.	30
6.3	Obligations of the Equity Investors and Facility Entities on each Initial Funding Date.	33
6.4	Investor True Up Funding Date Conditions Precedent.	33
6.5	Obligations of the Equity Investors and Facility Entities on each True Up Funding Date.	35
ARTICLE SEVEN GENERAL PROVISIONS		36
7.1	Notices.	36
7.2	No Third Party Beneficiaries.	36
7.3	Amendment and Waiver.	36
7.4	Binding Nature; Assignment.	37
7.5	Governing Law.	37
7.6	Jurisdiction; Service of Process.	37
7.7	Counterparts.	37
7.8	Headings.	37
7.9	Severability.	37
7.10	Entire Agreement.	38
7.11	No Solicitation.	38
7.12	WAIVER OF JURY TRIAL.	38
7.13	Expenses.	38
7.14	Confidentiality.	38
7.15	Post-Execution Date Covenant.	39

iii

7.16	Further Assurances; Amendments to Governmental Approvals and Principal Facility Documents; Reports.	40
7.17	LIMITATIONS OF LIABILITY.	40

iv

LIST OF ANNEXES TO

EQUITY CAPITAL CONTRIBUTION AGREEMENT

Annex 1-A	List of Proposed Facilities and Locations
Annex 1-B	Base Case Model
Annex 2	Insurance Requirements
Annex 3	List of all Contracts
Annex 4	“Knowledge” Persons
Annex 5	Form of Interparty Agreement
Annex 6	Third Party Consents and Approvals
Annex 7	[Reserved]
Annex 8-A	Form of Orrick, Herrington & Sutcliffe LLP Opinion
Annex 8-B	Form of Local Counsel Opinion
Annex 8-C	Form of Permitting Counsel Opinion
Annex 8-D	Form of Delaware counsel Opinion
Annex 8-E	Form of Winston & Strawn LLP Opinion
Annex 9	Forms of Estoppel Certificates (Seller, Operator, Administrator)
Annex 10	[Reserved]
Annex 11	Affiliate Transactions
Annex 12	Tax Matters
Annex 13	Forms of Financing Documents
Annex 14	Form of Amended and Restated Facility Company LLC Agreement
Annex 15-A	Preliminary Form of Exhibit D to Company LLC Agreement (Form of Quarterly Renewable Energy Certificate)
Annex 15-B	Preliminary Form of Exhibit E to Company LLC Agreement (Form of Renewable Energy Monthly Report)

v

EQUITY CAPITAL CONTRIBUTION AGREEMENT

This EQUITY CAPITAL CONTRIBUTION AGREEMENT (the “Agreement”) dated as of December 21, 2012 (the “Execution Date”) entered into by and between Firstar Development, LLC, a Delaware limited liability company (the “Investor”), and Clean Technologies III, LLC, a Delaware limited liability company (the “Class B Member”).

PRELIMINARY STATEMENTS:

1. 2012 V PPA Project Company, LLC, a Delaware limited liability company (the “Facility Company”), has entered into an Amended and Restated Master Energy Server Purchase Agreement with Bloom Energy Corporation (“Seller”), dated as of the date hereof (the “MESPA”), pursuant to which the Facility Company will purchase, subject to the terms and conditions set for therein, on-site fuel cell power generating systems (each a “System”) with an aggregate Baseload Capacity of up to 7.2 MW, to be installed on, together with the relevant “BOF” (as defined in the MESPA), each relevant “Site” (as defined in the MESPA) located in California, as identified more specifically on Annex 1-A attached hereto (each System together with the relevant “BOF” at a “Site”, a “Facility”).

2. 2012 V PPA Holdco, LLC, a Delaware limited liability company (the “Company”), wholly-owns the Facility Company.

3. The Investor desires to make capital contributions to the Company, and the Class B Member and the Facility Company desire that the Investor make such capital contributions, in the manner and subject to the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual agreements, covenants, representations and warranties set forth herein and intending to be legally bound hereby, the Parties (as defined herein) agree as follows:

ARTICLE ONE

DEFINITIONS AND PRINCIPLES OF INTERPRETATION

1.1 Definitions. The following capitalized terms shall have the respective meanings set forth below:

“Account” means that certain account, established in the name of the Company with a financial institution that is reasonably satisfactory to the Investor, which account shall not be pledged, or become pledged, as security for any obligation of the Company, the Facility Company or any other Person.

“Accountants” means Novogradac, or such other firm of independent certified public accountants as may be engaged by the Class B Member with the consent of the Investor to prepare the Cost Allocations (Preliminary), the Cost Allocations (Final) and certain other documents and reports as provided herein.

“Administrator” means Bloom Energy Corporation, or any other Person who may serve as administrator from time to time under the ASA.

“Affiliate” means, with respect to any specified Person, any Person directly or indirectly controlling, controlled by or under common control with such Party. The term “control” (including the terms “controlled by” or “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership, by contract, or otherwise. Any Person shall be deemed to be an Affiliate of any specified Person if such Person owns more than 50% of the voting securities of the specified Person, if the specified Person owns more than 50% of the voting securities of such Person, or if more than 50% of the voting securities of the specified Person and such Person are under common control.

“Agreement” means this Equity Capital Contribution Agreement, as amended from time to time.

“Applicable Law” means any treaty, constitution, law, statute, ordinance, rule, order, decree, regulation or other directive which is legally binding and has been enacted, issued or promulgated by any Governmental Authority.

“Appraisal” means, to the reasonable satisfaction of the Investor, that certain appraisal of Marshall & Stevens, including the following conclusions: (a) the economic useful life of each Facility from the date of its Commercial Completion, (b) the Appraised Value for each Facility as of the Execution Date, and (c) the Appraised Residual Value for each Facility.

“Appraised Residual Value” means the expected Fair Market Value of an Asset, determined without regard to inflation or deflation, on the expected Class A Flip Point (as such term is defined in the Company LLC Agreement).

“Appraised Value” means the Fair Market Value of each Facility, based on the Baseload Capacity for such Facility, calculated on a per kW basis.

“ASA” means the Administrative Services Agreement dated as of the date hereof, by and among the Administrator, the Company and the Facility Company.

“Assets” means, with respect to any Person, all right, title and interest of such Person in land, properties, buildings, improvements, fixtures, foundations, assets and rights of any kind, whether tangible or intangible, real, personal or mixed, including contracts, equipment, systems, books and records, proprietary rights, intellectual property, Governmental Approvals, rights under or pursuant to all warranties, representations and guarantees, cash, accounts receivable, deposits and prepaid expenses.

“AT&T Power Purchase Agreement” means that certain Energy Server Use Agreement dated as of December 19, 2012 by and between AT&T PPA Customer and the Facility Company.

“AT&T PPA Customer” means AT&T Services, Inc.

“Bankruptcy” or “Bankrupt” as to any Person means the filing of a petition for relief as to any such Person as debtor or bankrupt under the Bankruptcy Code or like provision of law (except if

2

such petition is contested by such Person and has been dismissed within sixty (60) days); insolvency of such Person as finally determined by a court proceeding; filing by such Person of a petition or application to accomplish the same or for the appointment of a receiver or a trustee for such Person or a substantial part of its assets; commencement of any proceedings relating to such Person under any other reorganization, arrangement, insolvency, adjustment of debt or liquidation law of any jurisdiction, whether now in existence or hereinafter in effect, either by such Person or by another, provided that if such proceeding is commenced by another, such Person indicates its approval of such proceeding, consents thereto or acquiesces therein, or such proceeding is contested by such Person and has not been finally dismissed within sixty (60) days.

“Bankruptcy Code” means any and all sections and chapters of Title 11 of the United States Code, as in effect from time to time.

“Base Case Model” means the financial model attached hereto as Annex 1-B, as may be revised from time to time pursuant to this Agreement.

“Bill of Sale” has the meaning set forth in the MESPA.

“Bloom Entities” means the Class B Member, the Guarantor, the Company, the Facility Company, the Seller, the Operator and the Administrator.

“Business Day” means any day other than a Saturday, a Sunday or any other day on which banks are authorized to be closed in New York City.

“Casualty Defect” means any destruction by fire, explosion or other casualty or any taking, or pending or threatened (in writing) taking, in condemnation or under the right of eminent domain, of a Facility or any portion thereof, that constitutes or could reasonably be expected to constitute a Material Adverse Effect with respect to such Facility.

“Class A Units” shall have the meaning assigned to such term in the Company LLC Agreement.

“Class B Member” has the meaning set forth in the Preamble hereto.

“Class B Member Initial Funding Date Contribution” has the meaning set forth in Section 2.2(b).

“Class B Member True Up Date Funding Contribution” has the meaning set forth in Section 2.5(b).

“Class B Units” shall have the meaning assigned to such term in the Company LLC Agreement.

“Code” means the Internal Revenue Code of 1986, as amended and any successor federal tax statute.

3

“Commercial Completion” means with respect to a System, that the Facility into which such System is incorporated has achieved Commencement of Operations (as such term is defined in the MESPA).

“Company” has the meaning specified in the Preliminary Statements hereto.

“Company LLC Agreement” shall mean that certain Amended and Restated Operating Agreement of the Company, entered into on or before first Initial Funding Date, as modified or supplemented from time to time.

“Cost Allocation (Final)” means, with respect to a Tranche, a cost allocation as prepared by the Accountants, and delivered with an audit report, detailing Qualified Investment with respect to the Tranche, including, but not limited to, the depreciable basis in the Tranche and the tax basis for the ITC, as set forth in the Base Case Model; provided, however, that in no event shall the tax basis for the ITC be an amount greater than set forth as the fair market value of the Facilities within the Tranche in the Appraisal or Subsequent Facility Appraisal, as applicable to such Tranche.

“Cost Allocation (Preliminary)” means a cost allocation as prepared by the Accountants, and delivered with an audit report, detailing Qualified Investment with respect to all of the Facilities to be funded pursuant to this Agreement, including, but not limited to, the depreciable basis of the Facilities and the tax basis for the ITC, as set forth in the Base Case Model; provided, however, that in no event shall the tax basis for the ITC be an amount greater than set forth as the fair market value of the Facilities in the Appraisal or Subsequent Facility Appraisal.

“Disqualified Person” means (a) the United States, any state or political subdivision thereof, any possession of the United States, or any agency or instrumentality of any of the foregoing, (b) any organization which is exempt from tax imposed by the Code (including any former tax-exempt organization within the meaning of Code Section 168(h)(2)(E) and any tax-exempt controlled entity within the meaning of Code Section 168(h)(6)(F)(iii) if such entity has not made the election provided in Code Section 168(h)(6)(F)(ii)), (c) any Person who is not a United States Person, and (d) any Indian tribal government described in Section 7701(a)(40) of the Code, or (e) any partnership or other pass- through entity, any direct or indirect partner (or other holder of an equity or profits interest) of which is an organization or entity described in clauses (a)-(d); provided, however, that any such Person described in clauses (a) – (d) shall not be considered a Disqualified Person to the extent that (i) the exception under Code Section 168(h)(1)(D) applies with respect to the income from the Facility Company for that Person, (ii) the Person is described within clause (c) of this definition, and the exception under Code Section 168(h)(2)(B)(i) applies with respect to the income from the Facility Company for that Person, or (iii) the Person’s ownership of an Asset for federal income tax purposes, would not result in either the loss, disallowance, reduction or recapture of the ITC or application of Code sections 168(g) or 168(h).

“Encumbrance” means any lien (statutory or otherwise), mortgage, deed of trust, claim, option, lease, easement, charge, pledge, security interest, hypothecation, assignment, use restriction or other encumbrance of any kind or nature whatsoever, whether voluntary or involuntary, choate or inchoate (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement).

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“Environmental Claim” means any demand order, suit, action or proceeding before any Governmental Authority or arbitral body, or any claim, in each such case, brought or made by a third party, relating in any way to any Environmental Law or Environmental Permit.

“Environmental Laws” means all Applicable Laws pertaining to Hazardous Substances, the environment, human health, safety and natural resources, including, but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. § 9601 et seq.) (“CERCLA”) as amended, the Emergency Planning and Community Right to Know Act (42 U.S.C. §§ 11001 et seq.), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. §§ 6901 et seq.) as amended, the Clean Air Act (42 U.S.C. § 7401 et seq.), the Federal Water Pollution Control Act (also known as the Clean Water Act) (33 U.S.C. §§ 1251 et seq.), Rivers and Harbors Act of 1899, as amended (33 U.S.C. § 403), the Toxic Substances Control Act (15 U.S.C. §§ 2601 et seq.), the Safe Drinking Water Act (42 U.S.C. §§ 300f et seq.), the Endangered Species Act (16 U.S.C. §§ 1531 et seq.), the Migratory Bird Treaty Act (16 U.S.C. §§ 703 et seq.), the Bald and Golden Eagle Protection Act (16 U.S.C. §§ 668 et seq.), the Oil Pollution Act of 1990 (33 U.S.C. §§ 2701 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. §§ 5101 et seq.), the National Environmental Policy Act of 1969 (42 U.S. C. §§4321 to 4370h), the National Historic Preservation Act (16 U.S.C §§ 470 et seq.), Title 14 Code of Federal Regulations Part 77 and 49 U.S.C. §44718, and any similar or analogous state and local statutes or regulations promulgated thereunder and decisional law of any Governmental Authority, as each of the foregoing may be amended or supplemented from time to time in the future, in each case to the extent applicable with respect to the property or operation to which application of the term “Environmental Laws” relates.

“Environmental Permits” means all licenses, approvals, consents, permits and other authorizations or registrations required under all Environmental Laws.

“Equity Capital Contributions” means the capital contributions provided to be made pursuant to Article Two.

“Equity Investors” means Class B Member and the Investor and their respective successors and permitted assigns.

“Execution Date” has the meaning provided in the Preamble hereto.

“Execution Date Conditions Precedent” has the meaning set forth in Section 6.1.

“Executive Order 13224” has the meaning set forth in Section 3.27.

“Facility” has the meaning specified in the Preliminary Statements hereto.

“Facility Company” has the meaning specified in the Preliminary Statements hereto.

“Facility Company LLC Agreement” means the Amended and Restated Limited Liability Company Operating Agreement of the Facility Company (substantially in the form attached hereto as Annex 14), to be entered into on the date hereof.

“Facility Costs” means, without duplication, all costs (other than Transaction Expenses) incurred by the Facility Company or the Company in connection with the acquisition, ownership,

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financing, leasing, occupation, construction, design, equipping, installation, testing, start-up, initial operation, and commissioning of the applicable Facility, all of which shall be included in the Base Case Model, including: (a) all amounts payable to third parties under the Principal Facility Documents, (b) all payments required to be made to the interconnection utility and Governmental Authorities, (c) all out-of-pocket fees and expenses of the Facility Company’s consultants, appraisers and engineers, (d) the interest, fees and expenses owing to the Facility Lenders and their agents under the Financing Documents, (e) all out-of-pocket fees and expenses of the Facility Company’s counsel and (f) all Pre-paid Expenses.

“Facility Entities” means the Company and the Facility Company.

“Facility Lenders” means, collectively, PE12GVVC (Bloom PPA) Ltd. and PE12PXVC (Bloom PPA) Ltd., or any other bank or financial institution reasonably acceptable to the Class B Member and the Investor.

“Facility Purchase Conditions” means, with respect to a Facility, that the Facility has not been Placed in Service (as such term is defined in the MESPA), at least in part because (a) the System incorporated in such Facility has not been synchronized onto the electric distribution and transmission system of the applicable Transmitting Utility (as such term is defined in the MESPA), (b) the critical tests necessary for the proper operation of the System incorporated in such Facility have not been completed, (c) the System has not commenced regular, continuous, daily operation, and (d) the System incorporated in such Facility has generated no revenue.

“Fair Market Value” means, with respect to any Asset, the price at which such Asset would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell, and both having reasonable knowledge of the relevant facts, and specifically with respect to a Facility or any Membership Interest in the Company, as determined consistently with Section 4.05 of Revenue Procedure 2007-65.

“FERC” means the Federal Energy Regulatory Commission.

“Financing Documents” means the loan agreement, security agreement, pledge agreement and depositary agreement between the Facility Company and the Facility Lenders and/or their agents substantially in the forms attached hereto as Annex 13, or as otherwise reasonably approved by the Investor, pursuant to which the Facility Lenders provide senior secured debt financing to the Facility Company, and any other material agreement entered into in connection therewith.

“Flow of Funds” means, with respect to each Initial Funding Date and each True Up Funding Date, the funding memorandum to be entered into as of such date, setting forth in detail, all sources and uses of funds to be received and paid on such date, including the exact amounts to be paid on such date and the Persons (and the account information related thereto) to whom such amounts are to be paid, which memorandum shall be reasonably satisfactory to the Equity Investors.

“FPA” means the Federal Power Act, as amended, 16 U.S.C. §§ 791a et seq.

“Governmental Approval” means all permits, licenses, approvals and authorizations of any Governmental Authority.

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“Governmental Authority” means any national, provincial, regional, municipal or local authority, body, agency, ministry, court, judicial or administrative body, taxing authority, regulatory authority or other governmental organization having jurisdiction or effective control over any of the Parties or any Facility.

“Government Official” has the meaning set forth in Section 4.1(k).

“Guaranty” means that certain Guaranty, dated as of the Execution Date, issued by the Guarantor.

“Guarantor” means Bloom Energy Corporation, a Delaware corporation.

“Hazardous Substances” means any hazardous or toxic material, substance or waste, pollutant, contaminant or solid waste as defined under applicable Environmental Laws, including petroleum, petroleum products, asbestos, polychlorinated biphenyls and radioactive materials.

“Independent Engineer” means SAIC Energy, Environment & Infrastructure, LLC.

“Independent Engineer Report” means the report of the Independent Engineer delivered to the Investor on the Execution Date.

“Initial Funding Date” means, with respect to a Tranche, the first Business Day on which the satisfaction or waiver of all of the Initial Funding Date Conditions Precedent for such Tranche occurs.

“Initial Funding Date Conditions Precedent” has the meaning set forth in Section 6.2.

“Initial Funding Date Contribution” means, with respect to the Investor, an Investor Initial Funding Date Contribution, and, with respect to the Class B Member, a Class B Member Initial Funding Date Contribution.

“Initial Maintenance Reserve Amount” means an amount equal to $[***] per kW of each System Placed in Service (as such term is defined in the MESPA).

“Insurance Consultant” means Moore-McNeil, LLC.

“Insurance Report” means a letter from the Insurance Consultant which confirms that the insurance coverages for both the construction and operation periods of the Facility comply with the insurance described in Annex 2.

“Interconnection Agreement” has the meaning set forth in the MESPA.

“Interparty Agreement” means that certain Interparty Agreement, to be entered into as of the Execution Date, among the Facility Company, the Investor and PE12GVVC (Bloom PPA) Ltd., as administrative agent under the Financing Documents (substantially in the form attached hereto as Annex 5).

[***] Confidential Treatment Requested

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“Investment Documents” means this Agreement, the Guaranty, the MESPA, the Company LLC Agreement, the Facility Company LLC Agreement, the ASA and the Interparty Agreement.

“Investor” has the meaning set forth in the Preamble hereto.

“Investor Commitment Amount” means $[***]

“Investor Contribution Amount” means the product of (i) 1.28 multiplied by (ii) ninety-ninth hundreds (0.99) mulitiplied by (the ITC Amount.

“Investor Initial Funding Date Contribution” means 55% of the Investor Contribution Amount, as determined using the ITC Amount provided by the Cost Allocation (Preliminary).

“Investor Interest” means the Investor’s Membership Interest in the Company having the rights, preferences and designations provided for such interest in the Company LLC Agreement.

“Investor True Up Funding Contribution” means for a Tranche, the excess, if any, of the Investor Contribution Amount, as determined using the ITC Amount provided by the Cost Allocation (Final), minus the Investor Initial Funding Date Contribution.

“ITC” means an investment tax credit pursuant to Code Sections 38(b)(1), 46 and 48(a).

“ITC Amount” means an amount that is equal to 30% of the Qualified Investment.

“ITC Eligible Property” means property that is described in Code Sections 48(a)(2)(i)(I) and 48(c).

“Knowledge” means (a) as it applies to the Class B Member, the actual knowledge of those individuals listed on Annex 4, or (b) as to any other Person (other than a natural person), the actual knowledge of the officers of such Person having responsibility for and direct involvement in the transactions contemplated by this Agreement and (c) in respect of any Person who is a natural Person, the actual knowledge of such Person.

“LLC Agreements” means, collectively, the Company LLC Agreement and the Facility Company LLC Agreement.

“Material Adverse Effect” means, for any Person, any material adverse effect on the business, earnings, Assets, results of operations or financial condition of such Person taken as a whole or on its ability to perform its obligations under this Agreement, any other Investment Document or any Principal Facility Document.

“Membership Interest” means, for a limited liability company, the membership interest of a member in such company including, without limitation, its right to a share of the profits, losses, deductions and credits of the company and its right to a distributive share of the Assets of the company in accordance with the provisions of such company’s operating agreement.

“MESPA” has the meaning set forth in the Preliminary Statements.

[***] Confidential Treatment Requested

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“MESPA Final Invoice” means that certain invoice for one or more Facilities delivered pursuant to Section 2.2(a)(ii) of the MESPA.

“MESPA Initial Invoice” means that certain invoice for one or more Facilities delivered pursuant to Section 2.2(a)(i) of the MESPA.

“MOMA” means that certain Amended and Restated Master Operation and Maintenance Agreement dated as of the date hereof, by and between Operator and the Facility Company.

“MW” means megawatt.

“Necessary Approvals” has the meaning set forth in Section 6.2(e).

“Operator” means Bloom Energy Corporation, or any other Person who may serve as operator from time to time under the MOMA.

“Party” means one of the parties to this Agreement, its successors and permitted assigns.

“Patriot Act” has the meaning set forth in Section 3.27.

“Permitted Encumbrances” means (a) liens, security interests, mortgages, hypothecations, encumbrances or other restrictions on title or property interest that are released or otherwise terminated at or prior to the date of delivery of the encumbered assets to the Site; (b) obligations or duties to any Governmental Authority arising in the ordinary course of business (including under licenses and permits held by the Facility Company and under all applicable laws, rules, regulations and orders of any Governmental Authority); (c) obligations or duties under easements, leases or other property rights; (d) liens in favor of the Facility Lenders; (e) liens for taxes not yet due or that are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP; (f) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, employees’, contractors’, operators’ or other similar liens or encumbrances securing the payment of expenses not yet due and payable that were incurred in the ordinary course of business of the Facility Company or for amounts being contested in good faith and by appropriate proceedings; (g) encumbrances created pursuant to the Investment Documents; (h) all other Encumbrances that are incurred in the ordinary course of business of the Facility Company, are not incurred for borrowed money, and do not have a Material Adverse Effect on either the use of any material Assets of the Facility Company or the value of any such Assets; (i) easements, rights-of-way, restrictions, reservations and other similar encumbrances and exceptions to title existing or incurred in the ordinary course of business that, in the aggregate, do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the Facility Company; (j) Encumbrances (including purchase options) created pursuant to the Power Purchase Agreements; (k) trade contracts or other obligations of a like nature incurred in the ordinary course of business of the Facility Company; (l) liens arising out of judgments or awards so long as an appeal or proceeding for review is being prosecuted in good faith and for the payment of which adequate reserves in accordance with GAAP or bonds or other security have been provided or which are fully covered by insurance; (m) liens of record and zoning and other land use restrictions that do not impair the value or intended use of a Facility; (n) restrictions on transfer of membership interests provided for in any Investment Document or under any applicable federal, state or foreign securities law and (o) any other liens agreed to in writing by the parties.

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“Person” means any individual, partnership, joint venture, company, corporation, limited liability company, limited duration company, limited life company, association, trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.

“Plan” means any “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended.

“Power Purchase Agreements” means collectively (i) the AT&T Power Purchase Agreement and (ii) the Wal-Mart Power Purchase Agreement.

“PPA Customers” means collectively (i) the AT&T PPA Customer and (ii) the Wal-Mart PPA Customer.

“Pre-paid Expenses” means, on a True Up Funding Date, $[***] kW for each Facility that is receiving a True Up Funding Date Contribution.

“Principal Facility Documents” means all of the agreements and documents necessary or required to install, operate, maintain, test, repair and/or use the Facilities and described in Annex 3 hereto, including the Power Purchase Agreements, the MOMA, the Site Leases, each Bill of Sale, the Interconnection Agreements, Wal-Mart Gas Supply Agreement, Wal-Mart REC Agreement, agreements evidencing the Facility Company’s claim to the state rebates, subsidies or incentives and the interconnection approval or authorization notice from the applicable utility. Reference to any Principal Facility Document shall include all appendices, annexes, exhibits, riders and schedules thereto.

“Prohibited Payment” has the meaning set forth in Section 4.1(k).

“PUHCA” means the Public Utility Holding Company Act of 2005.

“Qualified Investment” means the cost basis of ITC Eligible Property with respect to a Tranche as determined by the Accountants in the Cost Allocation (Preliminary) or Cost Allocation (Final), as applicable.

“Seller” has the meaning set forth in the Preliminary Statements hereto.

“Site” means the parcel of land leased or licensed from each PPA Customer to the Facility Company under each Site Lease and all easements appurtenant, easement in gross, license agreements and other rights running in favor of Facility Company which provide access to the Facilities.

“Site Leases” means each agreement between Facility Company and a PPA Customer regarding the lease, license, or similar contractual arrangement providing Facility Company with the right of access to, and use of, a Site for the purposes of performing Facility Company’s obligations pursuant to the applicable Power Purchase Agreement. If Facility Company’s right of access to, and

[***] Confidential Treatment Requested

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use of, a Site is contained within a Power Purchase Agreement, then the term “Site Lease”, with respect to such Site, shall mean the provisions for access to, and use of, that Site contained in such Power Purchase Agreement.

“Subsequent Facility Appraisal” has the meaning set forth in the MESPA.

“System” has the meaning set forth in the Preliminary Statements hereto.

“Tax Information” has the meaning set forth in Section 7.14(b).

“Tax Law Change” means (i) a bill passed by either house of the United States Congress, (ii) a bill reported by the United States House Committee on Ways and Means or United States Senate Committee on Finance, (iii) a bill proposed by any member of either the United States House Committee on Ways and Means or United States Senate Committee on Finance, the Speaker of the House of Representatives, the Senate Majority Leader, or the U.S. Department of the Treasury, (iv) the issuance or amendment of proposed, temporary or final Treasury Regulations, (v) any change in the interpretation of the Code or proposed, temporary or final Treasury Regulations by a controlling decision of the United States Tax Court, United States District Court, United States Court of Appeals or United States Supreme Court or (vi) any guidance, notice, announcement or ruling issued by the Treasury, IRS or any other Governmental Authority, that may reasonably have a material impact on one or more federal income tax assumptions or results within or contemplated by the Base Case Model.

“Tax Return” means any return, report, information return, attachment, declaration, election, claim for refund or other document (including any schedule or related or supporting information) filed or supplied or required to be filed or supplied to any taxing authority with respect to Taxes including amendments thereto.

“Taxes” or “Tax” means all taxes, charges, fees, levies, duties, tariffs, imposts, penalties or other assessments imposed by any Governmental Authority or other taxing authority, including, but not limited to, income, excise, ad valorem, real or personal property, sales, use transfer, capital stock, franchise, payroll, withholding, social security, gross receipts, license, stamp, occupation, wage, employment, workers’ compensation or other taxes, including any interest, penalties or additions attributable thereto, that are owed or were paid by the Facility Company or with respect to the Facility Company’s Assets or operations.

“Taxing Authority” means the agency or department of the Governmental Authority responsible for the administration and collection of Taxes.

“Tranche” means one or more Facilities being sold and delivered under the MESPA, as identified in a MESPA Initial Invoice or MESPA Final Invoice, as applicable.

“Transaction” has the meaning provided in Section 7.14.

“Transaction Expenses” means (i) filing and recording fees and transfer and mortgage taxes; (ii) the documented, reasonable fees (including legal fees), expenses and disbursements of the Facility Lenders and their agents, the Company, the Facility Company and the Class B Member; and (iii) the reasonable out-of-pocket expenses and disbursements (including reasonable legal fees and

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disbursements) incurred by the Investor subsequent to August 14, 2012 in connection with this Agreement, in each case, whether or not assumed and payable by the Class B Member or its Affiliate. For the avoidance of doubt, Transaction Expenses shall not include any Facility Costs.

“Transmitting Utility” means, with respect to a Facility, the local electric utility company in whose territory the Facility is located.

“Treasury” means the United States Department of the Treasury.

“True Up Funding Date” means, with respect to a Tranche, the first Business Day on which the satisfaction or waiver of all of the True Up Funding Date Conditions Precedent for such Tranche occurs.

“True Up Funding Date Conditions Precedent” has the meaning set forth in Section 6.4.

“True Up Funding Date Contribution” means, with respect to the Investor, an Investor True Up Funding Date Contribution, and, with respect to the Class B Member, a Class B Member True Up Date Funding Contribution.

“True Up Funding Date Deadline” means the earliest to occur of (a) an “Event of Default” as defined in the Financing Documents, (b) a material breach by Seller under the MESPA, and (c) June 30, 2013.

“United States Person” means a “United States person” as defined in Code Section 7701(a)(30).

“Wal-Mart Gas Supply Agreement” means, collectively, (i) the Base Contract for Sale and Purchase of Natural Gas, dated as of October 12, 2012, between EDF Trading North America, LLC and the Facility Company, (ii) the Special Provisions to the Base Contract for Sale and Purchase of Natural Gas, dated as of October 12, 2012, between EDF Trading North America, LLC and the Facility Company and (iii) the Gas Transaction Confirmation – Revision, dated as of October 17, 2012, between EDF Trading North America, LLC and the Facility Company.

“Wal-Mart Power Purchase Agreement” means that certain Amended and Restated Master Fuel Cell Power & Services Agreement, dated as of December 11, 2012 by and between Wal-Mart PPA Customer and the Facility Company.

“Wal-Mart PPA Customer” means Wal-Mart Stores, Inc.

“Wal-Mart REC Agreement” means any contract entered into from time to time between the Facility Company and Bloom Energy Corporation, a Delaware corporation, for the purchase of renewable energy credits in connection with the Facility Company’s obligations under the Wal-Mart Power Purchase Agreement.

1.2 Rules of Interpretation.

In this Agreement:

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(a) The singular shall include the plural and the masculine shall include the feminine and neuter as the context requires.

(b) References to “Articles,” “Sections,” or “Annexes” shall be to articles, sections or annexes of this Agreement.

(c) Unless otherwise expressly specified, any agreement, contract or document defined or referred to herein (including in any exhibit, schedule or annex hereto) shall mean such agreement, contract or document as the same may be amended, supplemented or otherwise modified from time to time in accordance with this Agreement and (once executed and delivered by the signatories thereto) the LLC Agreements, as applicable.

(d) References to “days” shall mean calendar days, unless otherwise indicated.

(e) The words “herein,” “hereof” and “hereunder” shall refer to this Agreement as a whole and not to any particular section or subsection of this Agreement; the words “include,” “includes” or “including” shall mean “including, but not limited to.”

ARTICLE TWO

EQUITY CAPITAL CONTRIBUTIONS

2.1 Execution Date. Subject to the satisfaction of, or waiver by the Investor and the Class B Member, as applicable, of the Execution Date Conditions Precedent on the Execution Date each of the Investor and the Class B Member shall execute and deliver this Agreement. For the avoidance of doubt, neither the Investor nor the Class B Member shall be required to make any capital contributions pursuant to clauses (a) and (b) of Section 2.2 on the Execution Date.

2.2 Initial Contributions. Subject to the satisfaction of, or waiver by the Investor and the Class B Member, as applicable, of the Initial Funding Date Conditions Precedent for a Tranche on each Initial Funding Date; provided, that the transactions contemplated by clause (c) shall be applicable only on the first Initial Funding Date:

(a) The Investor shall contribute to the Company the Investor Initial Funding Date Contribution;

(b) the Class B Member shall contribute (or shall have already contributed) an amount equal to the aggregate amount of all Facility Costs for the applicable Tranche expected to be due and payable as of the Initial Funding Date less the Investor Initial Funding Date Contribution for such Tranche (the “Class B Member Initial Funding Date Contribution”); and

(c) each of the Investor and the Class B Member agree to execute and deliver the Company LLC Agreement and, simultaneously with the making of the capital contributions pursuant to clauses (a) and (b) of this Section 2.2, the Company shall, and the Class B Member shall cause the Company to, issue Class A Units to the Investor and issue Class B Units to the Class B Member, in each case in accordance with the terms of the Company LLC Agreement.

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2.3 Use of Initial Funding Date Proceeds. On each Initial Funding Date, the Investor Initial Funding Date Contribution and the Class B Member Initial Funding Date Contribution for the relevant Tranche shall be wired to such Persons and the proceeds applied as follows (as provided for in greater detail in the Flow of Funds):

(a) First, to pay, for the benefit of the Facility Company, the MESPA Initial Invoice and any other applicable Facility Costs that are payable on such date for the relevant Tranche; and

(b) Second, any balance to the Account.

2.4 Use of Account Following the True Up Funding Date Deadline. If the satisfaction of, or waiver by, the Investor and the Class B Member, as applicable, of the True Up Funding Date Conditions Precedent for a relevant Tranche do not occur on or before the True Up Funding Date Deadline, all funds in the Account shall be wired to such Persons and the proceeds applied as follows:

(a) First, at the written direction of the Class A Member and in its sole discretion, to pay, for the benefit of the Facility Company, the balance, if any, of the MESPA Initial Invoice and/or MESPA Final Invoice and any other applicable Facility Costs that are due and payable on such date for the relevant Tranche (provided, that for the avoidance of doubt, the Class A Member may determine not to give any such direction);

(b) Second, if the Class A Member acknowledges and agrees in writing that no amount is due and payable under the MESPA Initial Invoice, MESPA Final Invoice and/or otherwise under the MESPA from Seller or for other applicable Facility Costs for the relevant Tranche, or that the full amount due and payable under the MESPA Initial Invoice, MESPA Final Invoice and/or otherwise under the MESPA from Seller and for other applicable Facility Costs for the relevant Tranche have been paid, then any balance shall be distributed solely to the Class B Member; and

(c) Third, if the Class A Member does not acknowledge and agree in writing either that no amount is due and payable under the MESPA Initial Invoice, MESPA Final Invoice and/or otherwise under the MESPA from Seller or for other applicable Facility Costs for the relevant Tranche, or that the full amount due and payable under the MESPA Initial Invoice, MESPA Final Invoice and/or otherwise under the MESPA from Seller for the relevant Tranche has been paid then any balance shall remain in the Account to be distributed or paid as provided in the Company LLC Agreement.

2.5 True Up Date Contributions. Subject to the satisfaction of, or waiver by the Investor and the Class B Member, as applicable, of the True Up Funding Date Conditions Precedent for a Tranche on each True Up Funding Date:

(a) The Investor shall contribute to the Company the Investor True Up Date Funding Contribution; and

(b) The Class B Member shall contribute (or shall have already contributed) an amount equal to the aggregate amount of all Facility Costs for the applicable Tranche expected

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to be due and payable as of or after the True Up Funding Date (including the Initial Maintenance Reserve Amount with respect to each System in such Tranche), less the Investor True Up Date Funding Contribution, and, to the extent applicable, less the proceeds of any loan made pursuant to the Financing Documents applicable to such Tranche (the “Class B Member True Up Date Funding Contribution”).

2.6 Use of True Up Funding Date Proceeds and Account on True Up Funding Date. On each True Up Funding Date, the Investor True Up Funding Date Contribution and the Class B Member True Up Date Funding Contribution and all funds in the Account shall be wired to such Persons and the proceeds applied as follows (as provided for in greater detail in the Flow of Funds):

(a) First, to pay, for the benefit of the Facility Company, the balance, if any, of the MESPA Initial Invoice, the MESPA Final Invoice and any other applicable Facility Costs that are payable on such date for the relevant Tranche;

(b) Second, to fund in full, for the benefit of the Facility Company, any reserves required by the Financing Documents, including the Initial Maintenance Reserve Amount to be deposited into the Maintenance Reserve Account (as defined in the Company LLC Agreement);

(c) Third, an amount equal to the Pre-paid Expenses for the applicable Tranche shall be contributed by the Company to the Facility Company’s “Construction Account” (as such term is defined in the Financing Documents); and

(d) Fourth, any balance shall be distributed solely to the Class B Member and will be treated as a distribution under the “pre-formation expense” safe harbor in Treasury Regulation 1.707-4(d).

2.7 Limits on Investor Funding. Notwithstanding anything contained herein to the contrary, (a) the aggregate amount paid as the Investor Initial Funding Date Contributions and the Investor True Up Funding Date Contributions shall not exceed the Investor Commitment Amount, (b) the Investor shall not be required to make more than one Investor Initial Funding Date Contribution per each thirty (30) day period and (c) the Investor shall not be required to make more than one Investor True Up Funding Date Contribution per each thirty (30) day period.

ARTICLE THREE

REPRESENTATIONS AND WARRANTIES REGARDING THE FACILITY ENTITIES AND EACH FACILITY

The Class B Member represents and warrants to the Investor as follows on each Initial Funding Date and each True Up Funding Date; provided, that any representations and warranties that expressly apply to an Initial Funding Date or a True Up Funding Date shall be made solely as of such Initial Funding Date or True Up Funding Date, as applicable:

3.1 Organization and Good Standing. Each Facility Entity is a limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, with full limited liability company power and authority to carry on its business as such

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business is now conducted and as proposed to be conducted in the Investment Documents and Principal Facility Documents. The Class B Member has previously delivered to the Investor true, correct and complete copies of the Facility Company’s organizational documents, with all amendments thereto, in effect as of the date thereof, and, except as otherwise delivered to the Investor, there have been no changes, amendments, modification or terminations of such organizational documents as of the Initial Funding Date or True Up Funding Date, as applicable.

3.2 Authorization, Execution and Enforceability. Each Facility Entity has full limited liability company power and authority to execute and deliver each Investment Document and each Principal Facility Document to which it is a party and to consummate the transactions contemplated thereunder. The execution and delivery by each Facility Entity of each Investment Document and Principal Facility Document to which it is a party and the consummation by such Facility Entity of the transactions contemplated thereunder, have been duly authorized by all necessary limited liability company action required on the part of such Facility Entity. Each Investment Document and Principal Facility Document to which such Facility Entity is a party has been duly executed and delivered by such Facility Entity. Each Investment Document and Principal Facility Document to which such Facility Entity is a party constitutes the valid and binding obligation of such Facility Entity, enforceable against such Facility Entity in accordance with its terms, except as such enforcement may be limited by (i) bankruptcy, insolvency or similar laws affecting creditors’ rights generally or (ii) general principles of equity, whether considered in a proceeding in equity or at law.

3.3 No Violation. The execution, delivery and performance by each Facility Entity of this Agreement and each Investment Document and Principal Facility Document to which it is a party and the consummation of the transactions contemplated hereunder and thereunder, do not and will not: (a) violate or conflict with any provision of the certificates of formation or operating agreement of such Facility Entity; (b) violate any provision or requirement of any federal, state or local law, statute, judgment, order, writ, injunction, decree, award, rule, or regulation of any Governmental Authority applicable to such Facility Entity to the extent that such violation could be reasonably expected to result in a Material Adverse Effect; (c) violate in any material respect, result in a material breach of, constitute (with due notice or lapse of time or both) a material default or cause any material penalty or right of termination to arise or accrue under, any Investment Document or Principal Facility Document to which such Facility Entity is a party; (d) result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, lease or sublease agreement to which any Facility Entity is bound; (e) violate any judgment, decree or order of any court or arbiter to which any Facility Entity is a party or by which any Facility Entity is bound; or (f) result in the creation or imposition of any Encumbrance on the Assets of any Facility Entity other than Permitted Encumbrances upon any of the Assets of such Facility Entity.

3.4 Subsidiaries; Non-Related Liabilities. The Company directly owns 100% of the Membership Interests in the Facility Company free and clear of all Encumbrances other than Permitted Encumbrances of the type described in clauses (d) and (n) of such term’s definition. The Company has no, and has never had, any Assets or any liabilities which do not arise from or otherwise relate to the ownership or operation of the Facility Company or the ownership or operation of the Facilities. The Facility Company has no, and has never had, any Assets or any liabilities that do not arise from or otherwise relate to the ownership or operation of the Facilities. The Facility Company has no, and has never had any, subsidiaries.

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3.5 Members of the Company; Additional Membership Interests. Immediately prior to the execution and delivery of this Agreement and the Company LLC Agreement, the Class B Member is the sole member of the Company and there have never been any other members or owners of the Company. Upon execution and delivery of the Company LLC Agreement, the Class B Member and the Investor shall hold the respective membership interests in the Company as set forth in the Company LLC Agreement and said interests shall constitute the entire membership interests in the Company. Other than as set forth in this Agreement, the Financing Documents, the Power Purchase Agreements and the Company LLC Agreement, none of the Facility Entities or the Class B Member have any contract, arrangement or commitment to issue or sell any of its membership interests or any interest in the Company, the Facility Company or the Facilities or any securities or obligations convertible into or exchangeable for, or giving any Person any right to acquire from it, any of its membership interests or any interest in the Company, the Facility Company or the Facilities, and no such securities or obligations are issued or outstanding other than as contemplated by this Agreement or the Company LLC Agreement. Upon the execution and delivery of the Company LLC Agreement and payment to the Company of the Investor’s Initial Funding Date Contribution on the first Initial Funding Date, the Class A Units will be validly issued and duly authorized and the Investor will have good title to the Class A Units free and clear of all Encumbrances, other than Permitted Encumbrances of the type described in clause (n) of such term’s definition.

3.6 Warranty of Title; Personal Property. The Facility Company is the sole owner of the Facilities and the Facility Company has good and valid title to all of the Facility Company’s Assets free and clear of all Encumbrances except Permitted Encumbrances. All of the Facility Company’s Assets are considered personal property and not real property under the laws of the State of California.

3.7 Facilities; Governmental Approvals. As of the date this representation is made or confirmed, the Facility Company owns (or holds enforceable leasehold rights or easements to) all necessary properties and has obtained all Governmental Approvals, and holds a license with respect to all intellectual property rights, required as of such date to own any installed Facilities and operate and sell electric power from any operating Facilities in compliance with Applicable Law, and to execute and deliver, and perform obligations as of such date under, the Investment Documents and all Principal Facility Documents to which the Facility Company is a party. Each of the Governmental Approvals obtained as of such date is validly issued, final and in full force and effect and is not subject to any current legal proceeding or to any unsatisfied condition which is reasonably likely to have a Material Adverse Effect on the Facility Company and if there is a specific period for administrative or judicial appeals of such permits, all such appeal periods have expired. The Facility Company is in compliance in all material respects with all applicable Governmental Approvals and no Facility Entity has received written notice from a Governmental Authority of an actual or potential violation of any such Governmental Approval that could reasonably be expected to have a Material Adverse Effect on the Facility Company.

3.8 Employees. None of the Facility Entities has, or has had since the date of its creation, any employees or any applicable Plan.

3.9 Brokers. No broker, finder, investment banker, or other Person is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated hereunder, based upon arrangements made by or on behalf of any Facility Entity for which any Facility Entity or the Investor will be responsible.

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3.10 Consents and Approvals. Except as set forth on Annex 6, each Facility Entity has received all third party consents which are required as of such date for the consummation and performance of the transactions contemplated hereunder by such Facility Entity.

3.11 Compliance with Applicable Law. Each of the Facility Entities, the business and operations of the Facility Entities and, with respect to the Facility Company, the development and construction of the Facilities are and have been, conducted in all respects in compliance with all Applicable Law (except that this representation does not apply to Environmental Laws, which are addressed in Section 3.15, and Taxes, which are addressed in Section 3.23), except to the extent such non-compliance could not reasonably be expected to result in a Material Adverse Effect.

3.12 Litigation. There is no action, suit, claim, investigation or proceeding (including, but not limited to, any arbitration proceeding) of any nature pending or, to the Knowledge of the Class B Member, threatened in writing against any Facility Entity involving, affecting or relating to the transactions contemplated hereunder or any Facility Entity’s ability to complete the transactions contemplated hereunder, or involving the ownership or operation of any Facility, at law or in equity, or before or by any Governmental Authority or arbitral body that in each such case, could be reasonably expected to result in a Material Adverse Effect. No Facility Entity is subject to any order, writ, judgment, award, injunction or decree of any Governmental Authority or arbitral body involving, affecting or relating to the transactions contemplated hereunder or its ability to complete the transactions contemplated hereunder that could be reasonably expected to result in a Material Adverse Effect.

3.13 Contracts. Annex 3 lists each material written contract or agreement (other than Governmental Approvals) to which each Facility Entity is a party. The Facility Company is a party to all contracts that are necessary for it to be a party to as of such date for the ownership, installation, financing and operation of the Facilities. Each contract identified on Annex 3 is in full force and effect and constitutes a valid and binding obligation of the applicable Facility Entity, enforceable against such Facility Entity in accordance with its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency or similar laws affecting creditors’ rights generally or (ii) general principles of equity, whether considered in a proceeding in equity or at law. There are no material disputes or legal proceedings between any Facility Entity and any counterparty to any Principal Facility Document. No Facility Entity (x) owes any indemnity payment to any counterparty to any Principal Facility Document that could be reasonably expected to result in a Material Adverse Effect and (y) has any Knowledge of any event, act, circumstance or condition which constitutes, or, with the passage of time could reasonably be expected to constitute, an event of force majeure under any Principal Facility Document. The consummation of the transactions contemplated by the Investment Documents would not give any party to any Principal Facility Document the right to terminate or alter the terms of such contract or a right to claim damages thereunder.

3.14 Default. None of the Facility Entities nor, to the Knowledge of the Class B Member, any of the other parties to the Principal Facility Documents in effect with respect to the Facilities, is in default under, nor has any event occurred and is continuing which, with notice or the lapse of time or both, would result in a default under, any of such Principal Facility Documents or

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Governmental Approvals, whether caused by a Facility Entity or any other party to any of the Principal Facility Documents or any Governmental Approval, which, in each such case, could be reasonably expected to result in a Material Adverse Effect.

3.15 Environmental Matters.

(a) The Facility Company has not failed to perform or suffered any act which could give rise to, or has otherwise incurred, liability to any person (governmental or not) under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq., or any other Environmental Laws, nor has it received notice of any such liability or any claim therefor, which, in each such case, could be reasonably expected to result in a Material Adverse Effect.

(b) To the Knowledge of Class B Member, there are no existing conditions at any Facility that, individually or collectively, could be reasonably expected to give rise to any liability of the Investor, Company or the Facility Company under any applicable Environmental Law or any applicable standard of conduct under any common law doctrine, including negligence, nuisance or trespass, personal injury or property damage related to or arising out of the presence, Release or exposure to Hazardous Substances, which, in each such case, could be reasonably expected to result in a Material Adverse Effect.

(c) To the Knowledge of Class B Member, there are no existing facts or circumstances that, individually or collectively, could reasonably be expected to result in the revocation of the Environmental Permits, if any, or an order prohibiting, terminating or modifying any Facility’s operations, which, in each such case, could be reasonably expected to have a Material Adverse Effect.

3.16 Equipment and Facilities. The Facility Company owns or leases or, prior to the Initial Funding Date for a Facility, will acquire ownership of or a leasehold interest in or a contractual right to use, all equipment and facilities (other than the applicable System itself and the relevant BOF) necessary for the operation and maintenance of such Facility. There is no Casualty Defect (regardless of whether covered by insurance) in existence with respect to such Facility.

3.17 Real Property. The real property described in the Site Leases is all the real property that is necessary for the construction, installation, operation and maintenance of the Facilities other than those real property interests that can be reasonably expected to be available on commercially reasonable terms as and to the extent required. To the Knowledge of the Class B Member, none of the real property on which the Facilities will be located is subject to any condemnation proceedings, lawsuits, or administrative actions that could be reasonably expected to have a Material Adverse Effect on the transactions contemplated by the Investment Documents and the Principal Facility Documents.

3.18 PUHCA and FPA Status. The Company has received a waiver of the FERC’s regulations under PUHCA regarding accounting, record-retention and reporting requirements of 18 C.F.R. § 366.21 pursuant to the notification procedures in 18 C.F.R. § 366.4(c), as a holding company solely with respect to a single-state holding company system deriving no more than 13 percent of its public-utility company revenues from outside a single state. The Facility Company is not, and following the time that one or more Facilities commences the generation of electric energy for sale will not be, a “public utility” within the meaning of Section 201(e) of the FPA.

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3.19 Affiliate Transactions. Except as listed on Annex 3 and Annex 11, there are no existing contracts between any Facility Entity, on the one hand, and any affiliate of the Class B Member, on the other hand. Each contract, arrangement or agreement between the Class B Member or its Affiliates and the Facility Company or the Company, is on arms’ length terms and conditions, and any compensation provided in such contract, arrangement or agreement is reasonable in relation to the value of the services provided.

3.20 Information. All of the factual information or representations, taken as a whole, furnished in writing by or on behalf of the Facility Entities, the Class B Member or any of their respective Affiliates to the Investor or any of its respective Affiliates, the Independent Engineer, the Accountants or any of the respective consultants of each of the foregoing with respect to any Facility Entity, the Class B Member or any Facility (including the factual information furnished by the Class B Member or any of its Affiliates to the Independent Engineer for the purposes of the Independent Engineer’s certification in connection with the achievement of Commencement of Operations (as such term is defined in the MESPA) with respect to the applicable Facility, and the factual information included within the Base Case Model) (excluding, for the avoidance of doubt, information regarding the identity of the Investor), taken as a whole, was accurate and complete (or, where appropriate, estimated in good faith) in all material respects when furnished and none of such information supplied as of the Initial Funding Date (or, in the case of any such information supplied subsequent to the Initial Funding Date, as of the date such information was supplied), taken as a whole, contained an untrue statement of a material fact or omitted to state any material fact which was necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that no representation or warranty is made with regard to projections or other forward-looking statements provided by or on behalf of the Facility Entities, the Class B Member or any of their respective Affiliates (including the Base Case Model and the assumptions therein) except that, to the Class B Member’s Knowledge, the assumptions in the Base Case Model (other than as to energy production) are reasonable in all material respects.

3.21 Insurance. Insurance policies maintained by the Facility Entities and for the Facilities meet the requirements of Annex 2 and such insurance policies are in full force and effect.

3.22 CPUC Regulation. The Facility Company will not be subject to regulation as a “public utility” or an “electrical corporation” as such terms are defined, respectively, in sections 216 and 218 of the California Public Utilities Code.

3.23 Taxes. None of the Facility Entities is a corporation or has ever been a corporation. None of the Facility Entities, the Class B Member or any Affiliate thereof has filed Internal Revenue Service Form 8832 (or any alternative or successor form) to elect to have, or taken any other action which would result in, any Facility Entity being classified as a corporation for federal income tax purposes under Treasury Regulation Section 301.7701-3. All Tax Returns that were required to be filed have been timely and properly filed. All Tax Returns were true, correct and complete in all material respects as they refer to any Facility Entity or the operations or Assets or any Facility Entity. All Taxes (whether or not shown on any Tax Return) attributable to the operations or Assets of any Facility Entity, or for which the Facility Entity may be liable, that are due and payable

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have been timely and properly paid. Except as disclosed in Annex 12, no Facility Entity has any Taxes which are currently due and payable. No Facility Entity has requested or had requested on its behalf or agreed to any extensions of time within which to file any waivers or comparable consents of the statute of limitation with respect to Taxes and is not currently the subject of any audit or other examination or other administrative or court proceeding with respect to Taxes and none have been threatened in writing. No Facility Entity has received any notice or inquiry from any jurisdiction where Tax Returns have not been filed that Tax Returns may be required. No Facility Entity has any powers of attorney relating to Taxes in effect. No Facility Entity has or has had any tax sharing agreement in effect respect to Taxes.

3.24 Tax Representations.

(a) No Facility Entity has leased any part of any Facility to a Disqualified Person or has taken any other action that results in any Facility becoming “tax-exempt use property” within the meaning of Code Section 168(h).

(b) Each System is a fuel cell power plant that generates at least 0.5 kilowatts of electricity using an electrochemical process and has an electricity-only generation efficiency greater than 30 percent. Each System will function independently of each other Systems to generate electricity for transmission and sale to a PPA Customer and has all the necessary components to convert a fuel into electricity using electrochemical means.

(c) As of the Initial Funding Date, no federal, state, or local tax credit (including the ITC) has been claimed with respect to any property that is part of the applicable Tranche. As of the True Up Funding Date, no federal, state, or local tax credit, except for the ITC, has been claimed with respect to any property that is part of the applicable Tranche. No application has been submitted, nor will be submitted, for a grant provided under Section 1603 of the American Recovery and Reinvestment Tax Act of 2009, as amended by the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010, with respect to any property that is part of any Facility.

(d) No private letter ruling has been, nor will be, obtained for the transactions contemplated hereunder from the IRS.

(e) No Facility will be originally placed in service by the Facility Company or the Company within the meaning of Section 48(b)(2) and (3) of the Code (as in effect on the day before the date of the enactment of the Revenue Reconciliation Act of 1990) before the Initial Funding Date with respect to such Facility. As of the True Up Funding Date, no improvements, modifications or additions (other than ancillary items of equipment of a kind customarily selected and furnished by lessees or owners of property substantially similar to the Facilities) will be required in order to render the applicable Tranche complete for its intended use.

(f) No Facility is comprised of any property that (i) is “used predominately outside of the United States” within the meaning of Code Section 168(g), (ii) is imported property of the kind described in Code Section 168(g)(6), (iii) is “tax-exempt use property” within the meaning of Code Section 168(h), or (iv) is not eligible for an ITC pursuant to Code Section 50(b).

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(g) Each Facility consists of property, materials or parts not used by any person prior to being placed in service as part of the Facility.

(h) The Qualified Investment as set forth on the Cost Allocation (Final) is ITC Eligible Property for federal income tax purposes.

(i) No portion of the real property comprising the site of the Facility is enrolled in the U.S. Department of Agriculture’s Conservation Reserve Program.

(j) No portion of the basis of the Facility is attributable to “qualified rehabilitation expenditures” within the meaning of Section 47(c)(2)(A) of the Code.

(k) No grants have been provided by the United States, a state, a political subdivision of a state, or any other Governmental Authority for use in constructing or financing any Facility or with respect to which the Class B Member, the Company, the Facility Company, or any Facility is the beneficiary. No proceeds of any issue of state or local government obligations have been used to provide financing for any Facility the interest on which is exempt from tax under Code Section 103. No subsidized energy financing (within the meaning of Code Section 45(b)(3)) has been provided, directly or indirectly, under a federal, state, or local program provided in connection with any Facility.

(l) No taxes, fees or other charges imposed by the State of California or of any county, municipal or other local government therein are payable by any of Class B Member, the Company or the Facility Company solely as a result of the execution and delivery of the Principal Facility Documents and Investment Documents to which it is a party and all other instruments delivered in connection with the transactions contemplated thereby, or as a result of performance under any Principal Facility Documents and Investment Documents to which it is a party, in each case except for such taxes, fees and other charges which have been properly accounted for in the Base Case Model.

(m) The Company’s rates for the furnishing or sale of electrical energy from the Facilities have not been established or approved on a rate of return basis, that is, pursuant to an authorization by a regulatory body permitting the Company to collect revenues that cover the Company’s cost of providing goods or services, including a fair return on the Company’s investment in providing such goods or services, where the Company’s costs and investment are determined by use of a uniform system of accounts prescribed by the regulatory body.

3.25 Bankruptcy. No event of Bankruptcy has occurred with respect to any Facility Entity.

3.26 Books and Records. The minute book and membership interest register of the Facility Company is a complete and true copy thereof and has been provided to the Company. All other books, accounts, ledgers and files of the Facility Company are complete in all material respects and have been maintained in accordance with good business practices.

3.27 Executive Order 13224 and the Patriot Act. None of the Bloom Entities or any person or entity that holds any direct or indirect interest in the Facility Company, Company, the Class B Member, or any Facility (other than the Investor or any Affiliate thereof), or is in any way affiliated

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with or will benefit from any of the above, (i) is described in, covered by, or specially designated pursuant to or affiliated with any person or entity described in, covered by, or specially designated pursuant to “Executive Order 13224 Blocking Terrorist Property and a Summary of the Terrorism Sanctions Regulations (Title 31, Part 595 of the U.S. Code of Federal Regulations), Terrorism List Governments Sanctions Regulations (Title 31, Part 596 of the U.S. Code of Federal Regulations), and Foreign Terrorist Organizations Sanctions Regulations (Title 31, Part 597 of U.S. Code of Federal Regulations)” (“Executive Order 13224”), or any other list or designation promulgated by the United States of America or any department or agency thereof of persons or entities transactions with which are blocked or prohibited by any statute, regulation or governmental order and (ii) is, or is reasonably likely to become, a person or entity with which any individual or entity is restricted from doing business under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56, as amended from time to time (the “Patriot Act”) or Executive Order 13224, and any regulations promulgated pursuant thereto.

3.28 Facility Costs. As of the Initial Funding Date, the MESPA Initial Invoice is true, correct and complete, and the Facility Company will have paid, or caused to be paid or otherwise provided for to the reasonable satisfaction of the Investor, the MESPA Initial Invoice and any other applicable Facility Costs, other than those costs or expenses that are to be paid pursuant to Section 2.6. As of the True Up Funding Date, the MESPA Final Invoice is true, correct and complete, and the Facility Company will have paid, or caused to be paid or otherwise provided for to the reasonable satisfaction of the Investor, the MESPA Initial Invoice, the MESPA Final Invoice and any other applicable Facility Costs.

3.29 Commercial Completion. As of the True Up Funding Date, each Facility in the applicable Tranche has achieved Commercial Completion, and, as of the time the Facility Company purchased each such Facility, the Facility Purchase Conditions were true and correct for such Facility.

3.30 Financial Statements. Each of the balance sheets of the Facility Company delivered pursuant to Sections 6.1(k) and 6.2(n) presents fairly in all material respects the financial position of the Facility Company as of the date of such balance sheet.

ARTICLE FOUR

REPRESENTATIONS AND WARRANTIES OF CLASS B MEMBER

4.1 Representations and Warranties Regarding the Class B Member. The Class B Member represents and warrants to the Investor as follows on each Initial Funding Date and each True Up Funding Date:

(a) Organization and Good Standing. The Class B Member is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware, with full limited liability company power and authority to carry on its business as such business is now conducted and as proposed to be conducted in the Investment Documents and Principal Facility Documents.

(b) Authorization, Execution and Enforceability. The Class B Member has full limited liability company power and authority to execute and deliver this Agreement and each

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other Investment Document to which it is a party and to consummate the transactions contemplated hereunder and thereunder. The execution and delivery by it of this Agreement and each other Investment Document to which it is a party and the consummation by it of the transactions contemplated hereunder and thereunder, have been duly authorized by all necessary limited liability company action required on its part. This Agreement and each other Investment Document to which it is a party has been duly executed and delivered by it. This Agreement constitutes the valid and binding obligation of it, enforceable against it in accordance with its respective terms, except as such enforcement may be limited by (i) bankruptcy, insolvency or similar laws affecting creditors’ rights generally or (ii) general principles of equity, whether considered in a proceeding in equity or at law.

(c) No Violation. The execution, delivery and performance of this Agreement and each other Investment Document to which the Class B Member is a party, the consummation of the transactions contemplated hereunder and thereunder do not or will not materially: (a) violate or conflict with any provision of its certificate of formation or operating agreement; (b) violate any provision or requirement of any federal, state or local law, statute, judgment, order, writ, injunction, decree, award, rule, or regulation of any Governmental Authority applicable to the Class B Member to the extent that such violation could be reasonably expected to result in a Material Adverse Effect; (c) violate in any material respect, result in a material breach of, constitute (with due notice or lapse of time or both) a material default or cause any material penalty or right of termination to arise or accrue under, any Principal Facility Document; or (d) result in the creation or imposition of any Encumbrance on its Assets other than a Permitted Encumbrance.

(d) Brokers. No broker, finder, investment banker or other Person is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated hereunder, based upon arrangements made by or on behalf of the Class B Member for which any Facility Entity or the Investor will be responsible.

(e) Consents and Approvals. Except as set forth on Annex 6, the Class B Member has received all third party consents which are required as of such date for the consummation and performance of the transactions contemplated hereunder by the Class B Member.

(f) Litigation. There is no claim, action, suit, investigation or proceeding (including, but not limited to, any arbitration proceeding) of any nature, at law or in equity, pending or, to the Knowledge of the Class B Member, threatened by or against the Class B Member, the Class B Member’s directors, officers, employees, agents, any of the Class B Member’s Affiliates involving, affecting or relating to the transactions contemplated hereunder or the Class B Member’s ability to consummate the transactions contemplated hereunder or involving the ownership or operation of the Facilities, at law or at equity, or before or by any Governmental Authority or arbitral body, in each case, which could be reasonably expected to have a Material Adverse Effect. The Class B Member is not subject to any order, writ, judgment, award, injunction or decree of any Governmental Authority or arbitral body involving, affecting or relating to the transactions contemplated hereunder or the Class B Member’s ability to consummate the transactions contemplated hereunder which could be reasonably expected to have a Material Adverse Effect.

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(g) United States Person. The Class B Member is a United States person not subject to withholding under Section 1446 of the Code.

(h) Disqualified Person. The Class B Member is not a Disqualified Person.

(i) Ownership. The Class B Member directly owns, and will continue to directly own until the first Investor Initial Funding Date Contribution, 100% of the Membership Interests in the Company, free and clear of all Encumbrances other than Permitted Encumbrances.

(j) No Options. Except as set forth herein and in the other Investment Documents and Financing Documents, there are no outstanding options, warrants or other rights (including conversion or preemptive rights, preferential rights to purchase and rights of first refusal) obligating the Class B Member to transfer any rights, interests or properties to any party relating to any applicable Facility Entity or any Facility.

(k) Compliance with Law. The Class B Member, in respect of itself, warrants that in performing its obligations pursuant to this Agreement and the other Investment Documents to which it is a party, that the Class B Member, its officers, directors, employees and agents have not and will not, directly or indirectly, offer, give, make, promise, pay or authorize the offering, giving, making, promising or payment of any Prohibited Payment (as defined below) to any officer or employee of any government, or any department, agency or instrumentality thereof, any public international organization, any person acting in an official capacity on behalf of such government, any candidate for or appointee to a political or government office, or any political party (each a “Government Official”). As used herein the term “Prohibited Payment” means any offer, gift, payment, promise to pay, or authorization of the payment of any money or anything of value, directly or indirectly, to a Government Official, including for the use or benefit of any other person or entity, to the extent that one knows or has reasonable grounds for believing that all or a portion of the money or thing of value which was given or is to be given to such other person or entity, will be paid, offered, promised or given or authorized to be paid by such other person or entity, directly or indirectly, to a Government Official, for the purpose of either (i) influencing any act or decision of the Government Official in his official capacity; (ii) inducing the Government Official to do or omit to do any act in violation of his lawful duty; (iii) securing any improper advantage; or (iv) inducing the Government Official to use his influence with such government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality, in order to assist in obtaining or retaining business or in directing business to any party. The Class B Member further affirms that it shall promptly report to the other parties hereto any Prohibited Payment of which it obtains knowledge with respect to the services performed under this Agreement.

(l) The Class B Member Investment Intent; Unregistered Securities. The Membership Interest in the Company to be held by the Class B Member will be acquired for investment for the Class B Member’s own account, not with a view to the distribution of any part thereof and, without in any way affecting the Class B Member’s right to dispose of such Membership Interests, as permitted by the Company LLC Agreement; the Class B Member has no present intention of selling, granting any participation in, or otherwise distributing the same; the Class B Member understands that the Membership Interests in the Company are characterized as a “restricted security” under federal and state securities laws inasmuch as such securities are being

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acquired in a transaction not involving a public offering and that under such laws and applicable regulations such securities may not be resold in the absence of an effective registration statement covering such Membership Interests in the Company or an exemption from registration under federal and state securities laws.

(m) The Class B Member Accredited Investor. The Class B Member is an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act of 1933, as amended. The Class B Member has such knowledge and experience in financial and business matters that the Class B Member is capable of independently evaluating the risks and merits of acquiring the Membership Interests in the Company; the Class B Member has independently evaluated the risks and merits of acquiring the Membership Interests in the Company and has independently determined that such Membership Interests are a suitable investment for the Class B Member; and the Class B Member has sufficient financial resources to bear the loss of its entire investment in the Membership Interest in the Company.

(n) Regulation D Compliance. Neither the Class B Member nor anyone acting on its behalf has offered any or all of the Membership Interests in the Company or any similar securities for sale to, or solicited any offer to buy any of the same from, or otherwise approached or negotiated in respect thereof with, any person other than the Investor and its Affiliates and not more than thirty-five (35) non-accredited investors, each of which has been offered Membership Interests in the Company in a private sale for investment purposes only. Neither the Class B Member nor anyone acting on its behalf has taken, or will take, any action that would subject the issuance or sale of any or all of the Membership Interests in the Company or any similar securities to the registration requirements of Section 5 of the Securities Act of 1933, as amended.

(o) Bankruptcy. No event of Bankruptcy has occurred with respect to the Class B Member.

(p) Purchase Option. There are no agreements, side letters or other legal arrangements or understandings (written or unwritten, enforceable or unenforceable) between the Class B Member (or any of its Affiliates) and any other Person that requires or compels the exercise of the Purchase Option (as defined in the Company LLC Agreement).

(q) Fees. All fees to be paid to the Class B Member or its Affiliates, as well as the other terms and conditions, under the MESPA, MOMA and the ASA are reasonable in relation to the services actually performed under such agreements.

(r) Related Person. The Class B Member is not a “related person” with respect to any lender under the Financing Documents for purposes of Treasury Regulation Section 1.752- 4(b). Prior to the end of any taxable year of the Company beginning on or before January 1, 2025, any purchaser under any power purchase agreement for power delivered from any Facility is not a “related person” to the Company for purposes of Sections 267 or 707 of the Code, assuming the Company is not a “related person” on account of a relationship with any holder of Class A Units or any Affiliate thereof.

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ARTICLE FIVE

REPRESENTATIONS AND WARRANTIES OF THE INVESTOR

The Investor hereby represents and warrants to the Class B Member as follows on each Initial Funding Date and each True Up Funding Date:

5.1 Organization and Good Standing. It is duly organized, validly existing and in good standing under the laws of the state of its formation, with full power and authority to carry on its business as such business is now conducted and as proposed to be conducted.

5.2 Authorization, Execution and Enforceability. It has full limited liability company power and authority to execute and deliver this Agreement and each other Investment Document to which it is a party, to make its respective Equity Capital Contributions and to consummate the transactions contemplated hereunder and thereunder. The execution and delivery by it of this Agreement and each other Investment Document to which it is a party and the consummation by it of the transactions contemplated hereunder and thereunder, have been duly authorized by all necessary limited liability company action. This Agreement and each other Investment Document to which it is a party has been duly executed and delivered by it. This Agreement and each other Investment Document to which it is a party constitute its valid and binding obligation, enforceable against it in accordance with its respective terms except as such terms may be limited by (i) bankruptcy, insolvency or similar laws affecting creditors’ rights generally or (ii) general principles of equity, whether considered in a proceeding in equity or at law.

5.3 No Violation. The execution, delivery and performance by it of this Agreement and each other Investment Document to which it is a party and the consummation by it of the transactions contemplated hereunder or thereunder do not and will not materially: (a) violate or conflict with any provision of its organizational documents; (b) violate any provision or requirement of any federal, state or local law, statute, judgment, order, writ, injunction, decree, award, rule, or regulation of any Governmental Authority applicable to it; or (c) violate in any material respect, result in a breach of, constitute (with due notice or lapse of time or both) a default, or result in an Encumbrance being created or imposed upon any of the properties or Assets of the Investor, under any material contract to which the Investor is a party or by which its property is bound, which violation, breach, default or Encumbrance would adversely affect the ability of such Investor to perform its obligations under this Agreement and the other Investment Documents to which it is a party.

5.4 Consents and Approvals. There is no requirement applicable to it to make any filing with, or to obtain the consent or approval of any Person as a condition to the consummation of the transactions contemplated hereunder, other than those that have already been obtained. All third-party consent requirements which are a condition to the execution, delivery and performance by the Investor of this Agreement and the other Investment Documents to which it is a party and the consummation of the transactions contemplated hereunder have been satisfied.

5.5 Litigation. There is no claim, action, suit, investigation or proceeding (including, but not limited to, any arbitration proceeding) of any nature, at law or in equity, pending or, to its Knowledge, threatened (in writing) by or against it, its directors, officers, employees, agents of it, or any of its Affiliates involving, affecting or relating to the transactions contemplated hereunder or its

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ability to complete the transactions contemplated hereunder. It is not subject to any order, writ, judgment, award, injunction or decree of any Governmental Authority or arbitral body involving, affecting or relating to the transactions contemplated hereunder or its ability to complete the transactions contemplated hereunder.

5.6 Investment Intent; Unregistered Securities. The Investor Interests to be held by it will be acquired for investment for its own account, not with a view to the distribution of any part thereof and, without in any way affecting its right to dispose of its Membership Interest in the Company as permitted by the Company LLC Agreement, it has no present intention of selling, granting any participation in, or otherwise distributing the same. It understands that the Membership Interests in the Company are characterized as a “restricted security” under federal and state securities laws inasmuch as such securities are being acquired in a transaction not involving a public offering and that under such laws and applicable regulations such securities may not be resold in the absence of an effective registration statement covering such Membership Interests or an exemption from registration under federal and state securities laws.

5.7 Accredited Investor. It is an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act of 1933, as amended. It has such knowledge and experience in financial and business matters that it is capable of independently evaluating the risks and merits of purchasing the Membership Interests in the Company; it has independently evaluated the risks and merits of purchasing the Membership Interests in the Company and has independently determined that the Membership Interests in the Company is a suitable investment for it; and it has sufficient financial resources to bear the loss of its entire investment in the Membership Interests in the Company. It has received all the information it considers necessary or appropriate for deciding whether to make its respective Equity Capital Contributions and acquire its respective Membership Interests in the Company and further represents that it has had an opportunity to ask questions and receive answers from the Class B Member regarding the terms and conditions of the offering of the Membership Interests in the Company and the business, properties, prospects and financial condition of the Facility Entities.

5.8 Regulation D Compliance. Neither the Investor nor anyone acting on its behalf has offered any or all of the Membership Interests in the Company or any similar securities for sale to, or solicited any offer to buy any of the same from, or otherwise approached or negotiated in respect thereof with, any person other than the Class B Member and its Affiliates and not more than thirty-five (35) non-accredited investors, each of which has been offered the Membership Interests in the Company in a private sale for investment purposes only. Neither the Investor nor anyone acting on its behalf has taken, or will take, any action that would subject the issuance or sale of any or all of the Membership Interests in the Company or any similar securities to the registration requirements of Section 5 of the Securities Act of 1933, as amended.

5.9 Brokers. No broker, finder, investment banker, or other person is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated hereunder, based upon arrangements made by or on behalf of it for which the Class B Member or each Facility Entity will be responsible.

5.10 United States Person. It is a United States person not subject to withholding under Section 1446 of the Code.

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5.11 PUHCA and FPA Status. It either is not a holding company under PUHCA or, if it is a holding company, is exempt from FERC access to books and records and is entitled to waivers of accounting, record-retention and reporting requirements pursuant to 18 C.F.R. § 366.3(a) of the FERC’s regulations under PUHCA, and it is not a “public utility” as such term is defined in Section 201(e) of the FPA.

5.12 Disqualified Person. The Investor is not a Disqualified Person.

5.13 Bankruptcy. No event of Bankruptcy has occurred with respect to the Investor.

5.14 No Other Representations. The Investor is not relying on any representations or warranties whatsoever, express, implied, at common law, statutory or otherwise, except for the representations or warranties expressly set out in this Agreement and the other Investment Documents.

ARTICLE SIX

CONDITIONS PRECEDENT

6.1 Execution Date Conditions Precedent.

The obligations of the Investor and the Class B Member to consummate the transactions contemplated by this Agreement on the Execution Date are subject to the satisfaction of or waiver by Investor and the Class B Member, as applicable, of each of the following conditions: (“Execution Date Conditions Precedent”):

(a) the Investor has received fully executed copies of each of the Principal Facility Documents which has been executed and delivered as of such date, each in form and substance reasonably satisfactory to the Investor, and each such Principal Facility Document is in full force and effect;

(b) the Investor has received fully executed copies of this Agreement, the Guaranty, the MESPA, the MOMA, the ASA and the Facility Company LLC Agreement, each in form and substance reasonably satisfactory to the Investor, and each is in full force and effect;

(c) the Investor has received (i) a legal opinion of Orrick, Herrington & Sutcliffe LLP, substantially in the form of Annex 8-A hereto, (ii) a legal opinion of Orrick, Herrington & Sutcliffe LLP, special California counsel, substantially in the form of Annex 8-B hereto, and (iii) a legal opinion of Orrick, Herrington & Sutcliffe LLP, special permitting counsel, substantially in the form of Annex 8-C hereto;

(d) the Investor has received the Insurance Report, in form and substance reasonably satisfactory to it, and a letter executed by the Insurance Consultant permitting the Investor to rely on such Insurance Report, if not addressed to the Investor;

(e) the Investor has received a tax opinion from Winston & Strawn LLP, which opinion shall be in form and substance reasonably satisfactory to it;

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(f) the Investor has received necessary approval from its internal investment committee, board of directors or other governing body to enter into the transactions contemplated hereunder and to make the capital contributions and payments in accordance with Article Two, subject only to the satisfaction or waiver of the conditions set forth in Section 6.2 or Section 6.4, as applicable;

(g) the Investor has received, as applicable, (i) an incumbency certificate dated as of the Execution Date from the Facility Entities, the Class B Member and the Guarantor, (ii) from the Class B Member, on behalf of each Facility Entity, a certificate from an authorized officer dated as of the Execution Date to the effect that to such officer’s Knowledge the conditions set forth in Section 6.1 have been satisfied, (iii) a good standing certificate of the Guarantor, the Class B Member and the Facility Entities, each dated as of a recent date, from the applicable Secretary of State, (iv) resolutions of the Board of Directors, or other equivalent governing body, of the Facility Entities, the Class B Member and the Guarantor authorizing and approving the execution of this Agreement, the other Investment Documents and the transactions contemplated hereunder certified by a secretary or an assistant secretary as of the Execution Date and (v) formation documents certified by a secretary or an assistant secretary as of the Execution Date, in each case, unless otherwise noted, of the Guarantor, the Class B Member and the Facility Entities as are customary for transactions of this type, each of which shall be reasonably satisfactory to the Investor;

(h) the Class B Member shall have delivered to the Investor an affidavit of non-foreign status dated the Execution Date that complies with Section 1445 of the Code;

(i) the Investor has received the Base Case Model, including a compilation report, in form and substance reasonably satisfactory to it;

(j) the Investor has received the annual budget for the Facility Company, and the balance sheet of the Facility Company as of the Execution Date;

(k) the Investor shall have received copies of searches of all financing statements of public record and of judgment, litigation and tax lien records that relate or pertain to the Facilities, the Company and the Facility Company;

(l) the Investor has received the Appraisal, in form and substance reasonably satisfactory to it;

(m) the Investor has received satisfactory evidence of the transfer of the membership interests in the Facility Company from the Class B Member to the Company; and

(n) the Investor has received fully executed copies of the Interparty Agreement and the Financing Documents that have been executed as of such date.

6.2 Initial Funding Date Conditions Precedent.

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The obligations of the Investor and the Class B Member to make an Initial Funding Date Contribution on an Initial Funding Date are subject to the satisfaction of or waiver by Investor and the Class B Member, as applicable, of each of the following conditions with respect to the applicable Tranche to be funded on such Initial Funding Date (“Initial Funding Date Conditions Precedent”):

(a) The Investor has received within not less than seven (7) Business Days’ written notice from the Class B Member of the anticipated Initial Funding Date and at least three (3) Business Days’ notice from the Class B Member of the actual Initial Funding Date (which notice of the actual Initial Funding Date includes the number of Facilities to be funded, the kW of the Facilities to be funded, the location of the Facilities to be funded, the estimated date of Commencement of Operations (as such term is defined in the MESPA) for the Facilities to be funded and a notice from the Class B Member addressed to the Investors specifying in detail the Persons (and the account information with respect thereto) designated to receive the payments set forth in Section 2.3, following receipt of the Investor’s Initial Funding Date Contribution); provided, however, any failure to provide such notice shall affect only the timing of the Initial Funding Date, but shall not affect in any way the obligations of the Equity Investors to make Equity Capital Contributions hereunder subject to the other conditions set forth in this Section 6.2;

(b) with respect to the first Initial Funding Date, the Investor has received fully executed copy of the Company LLC Agreement, in form and substance reasonably satisfactory to the Investor, which is in full force and effect;

(c) no material default caused by any Bloom Entity exists under any of the Principal Facility Documents or under the Investment Documents and to Class B Member’s Knowledge, no material default caused by a party other than a Bloom Entity exists under any of the Principal Facility Documents or under the Investment Documents;

(d) the Investor has received true, correct and complete copies of all of the insurance certificates from the insurance broker with respect to the insurance policies for the Company, the Facility Company and the applicable Tranche that are described in Annex 2, or such other evidence reasonably satisfactory to the Investor that such insurance policies are in full force and effect;

(e) each Facility Entity and each Equity Investor has received all necessary third party consents, waivers, authorizations and approvals required as of such date (“Necessary Approvals”) in connection with the execution, delivery and performance of this Agreement and the transactions contemplated hereunder;

(f) the Facility Company is not subject to regulation as a “public utility” or an “electrical corporation” as such terms are defined, respectively, in sections 216 and 218 of the California Public Utilities Code;

(g) each of the representations and warranties in this Agreement and the other Investment Documents (other than those made as of a later date) is true and correct in all material respects as of the Initial Funding Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date);

(h) no change adverse to any Facility Entity, the PPA Customers, counterparties to the Interconnection Agreements, Seller, Operator or Administrator has occurred

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since August 14, 2012, except to the extent such change does not constitute or could not reasonably be expected to constitute a Material Adverse Effect with respect to any Facility Entity, the PPA Customers, the counterparties to the Interconnection Agreements, Seller, Operator or Administrator;

(i) no Tax Law Change has occurred subsequent to the Execution Date;

(j) the Investor has received reasonably satisfactory evidence that the Class B Member’s Initial Funding Date Contribution has been made or shall be made contemporaneously with the Investor’s Initial Funding Date Contribution;

(k) the Class B Member shall have executed and delivered to the Investor a certificate, dated the Initial Funding Date, certifying the matters set forth in Sections 6.2 and that all amounts then payable to the Seller pursuant to the MESPA have been paid or shall be paid with the proceeds of the Investor Initial Funding Date Contribution and Class B Member Initial Funding Date Contribution to be made on such date;

(l) no election shall have been filed with the IRS to treat any of the Company or the Facility Company as an association taxable as a corporation for federal income tax purposes;

(m) the Investor has received copies of site maps, site plans and design drawings (available at such time) relating to the Facility, in form and substance reasonably satisfactory to the Investor;

(n) the Investor has received the balance sheet of the Facility Company as of the last day of the calendar month immediately preceding the calendar month in which the applicable Initial Funding Date is to occur;

(o) with respect to the first Initial Funding Date, the Investor has received a Cost Allocation (Preliminary) with respect to all of the Facilities to be funded pursuant to this Agreement, in form and substance reasonably satisfactory to it;

(p) in the event the circumstances underlying the Appraisal have materially changed subsequent to the delivery of the Appraisal, and if requested by the Investor, the Investor has received a Subsequent Facility Appraisal, in form and substance reasonably satisfactory to it;

(q) the Investor has received estoppel certificates from the Seller, the Operator and the Administrator relating to the MESPA, the MOMA and the ASA respectively, substantially in the applicable form for each attached hereto as Annex 9 (or such other form as the Class B Member may propose and is reasonably satisfactory to the Investor) dated the Initial Funding Date;

(r) the amounts funded on the Initial Funding Date shall be sufficient to fund all amounts required to be paid (through offset or otherwise) or deposited under Section 2.3, as indicated in the Flow of Funds;

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(s) the Flow of Funds for the Initial Funding Date shall have been executed and delivered by the parties thereto;

(t) except as provided by the Financing Documents and except for Permitted Encumbrances, there are no Encumbrances against the Company, the Facility Company or the Facilities;

(u) the Investor has received reasonably satisfactory evidence that the Guarantor maintains $[***] in cash equivalent investments;

(v) the Investor has received a certificate from the Class B Member certifying to the Investor that the Facility Purchase Conditions are true and correct for each Facility in the applicable Tranche as of such Initial Funding Date and that it is reasonable to expect that Commencement of Operations (as such term is defined in the MESPA) of each Facility in the applicable Tranche will occur no later than thirty (30) days following the Initial Funding Date (such certification to also include include the number of Facilities for which the confirmation is provided, the kW of the Facilities for which the confirmation is provided, the location of the Facilities for which the confirmation is provided and the estimated date of Commencement of Operations (as such term is defined in the MESPA) for the Facilities for which the confirmation is provided) and the Independent Engineer has confirmed the same to the Investor by email;

(w) the Account has been established;

(x) the Investor has received a legal opinion of Morris James LLP, special Delaware counsel, substantially in the form of Annex 8-D hereto;

(y) the Investor has received fully executed copies of the Financing Documents that have been executed as of such date and which have not been previously delivered to the Investor;

(z) the Investor and the Class B Member have completed mutually agreed forms of Exhibits D and E to the Company LLC Agreement, as described on the preliminary forms of such Exhibits D and E attached as Annex 15-A and Annex 15-B hereto.

6.3 Obligations of the Equity Investors and Facility Entities on each Initial Funding Date. On each Initial Funding Date, subject to satisfaction of the conditions set forth in Section 6.2, the Equity Investors shall make capital contributions and deposits and apply funds in accordance with Section 2.3 hereof.

6.4 Investor True Up Funding Date Conditions Precedent. The obligations of the Investor and the Class B Member to make a True Up Funding Date Contribution on a True Up Funding Date are subject to the satisfaction of or waiver by the Investor and the Class B Member of each of the following conditions with respect to the applicable Tranche to be funded on such True Up Funding Date (“True Up Funding Date Conditions Precedent”):

(a) the Investor has received within not less than seven (7) Business Days’ written notice from the Class B Member of the anticipated True Up Funding Date and at least three (3) Business Days’ notice from the Class B Member of the actual True Up Funding Date

[***] Confidential Treatment Requested

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(which notice of the actual True Up Funding Date includes the number of Facilities to be funded, the kW of the Facilities to be funded, the location of the Facilities to be funded, the estimated date of Commencement of Operations (as such term is defined in the MESPA) for the Facilities to be funded and a notice from the Class B Member addressed to the Investors specifying in detail the Persons (and the account information with respect thereto) designated to receive the payments set forth in Section 2.6, following receipt of the Investor’s True Up Funding Date Contribution); provided, however, any failure to provide such notice shall affect only the timing of such True Up Funding Date, but shall not affect in any way the obligations of the Equity Investors to make Equity Capital Contributions hereunder subject to the other conditions set forth in this Section 6.4;

(b) Commercial Completion of each Facility in the applicable Tranche has occurred and the Independent Engineer has confirmed the same to the Investor in writing (such confirmation to include the number of Facilities for which the confirmation is provided, the kW of the Facilities for which the confirmation is provided and the location of the Facilities for which the confirmation is provided) and the applicable Tranche shall be producing electricity in commercial quantities;

(c) the Investor has received fully executed copies of each of the Principal Facility Documents which has been executed and delivered after the Execution Date but prior to the True Up Funding Date, each in form and substance reasonably satisfactory to the Investor, and each such Principal Documents is in full force and effect, and a fully executed copy of each amendment or additional document entered into in accordance with Section 7.16(b);

(d) no material default caused by any Bloom Entity exists under any of the Principal Facility Documents or under the Investment Documents and to Class B Member’s Knowledge, no material default caused by a party other than a Bloom Entity exists under any of the Principal Facility Documents or under the Investment Documents;

(e) each Facility Entity and each Equity Investor has received all Necessary Approvals required as of such date in connection with the purchase, sale, installation and operation of the relevant Facilities that are the subject of the True Up Funding Date Contribution;

(f) each of the representations and warranties in this Agreement and the other Investment Documents (other than those made as of a later date) is true and correct in all material respects as of the True Up Funding Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date);

(g) no Tax Law Change has occurred subsequent to the Initial Funding Date;

(h) the Investor has received reasonably satisfactory evidence that the Class B Member’s True Up Funding Date Contribution with respect to the applicable Tranche to be funded has been made or shall be made contemporaneously with the Investor’s True Up Funding Date Contribution;

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(i) in the event the circumstances underlying the Appraisal have materially changed subsequent to the delivery of the Appraisal, and if requested by the Investor, the Investor has received a Subsequent Facility Appraisal, in form and substance reasonably satisfactory to it;

(j) with respect to the last True Up Funding Date only, the Investor has received an updated Base Case Model, including a compilation report, rerun to reflect actual applicable Facility Costs and all other updated model inputs (including the effect of any Tax Law Change), and such updated Base Case Model shall be in form and substance reasonably satisfactory to the Investor.

(k) the Investor has received a Cost Allocation (Final) with respect to the applicable Tranche to be funded, in form and substance reasonably satisfactory to it;

(l) the amounts funded on the True Up Funding Date shall be sufficient to fund all amounts required to be paid (through offset or otherwise) or deposited under Section 2.6, as indicated in the Flow of Funds, and the Investor shall have received copies of the lien waivers from the Seller in connection with all amounts paid to the Seller thereunder, which, so long as such lien waivers are unconditional, may be dated as of an earlier date

(m) the Flow of Funds for the True Up Funding Date shall have been executed and delivered by the parties thereto;

(n) the Investor has received reasonably satisfactory evidence that the Guarantor continues to maintain $10,000,000 in cash equivalent investments;

(o) except as provided by the Financing Documents and except for Permitted Encumbrances, there are no Encumbrances against the Company, the Facility Company or the Facilities;

(p) funding has occurred, or will occur simultaneously with the True Up Funding Date, with respect to the loan to be made under the Financing Documents with respect to the applicable Tranche;

(q) the Class B Member shall have executed and delivered to the Investor a certificate, dated the True Up Funding Date, certifying the matters set forth in Sections 6.4 and that all amounts then payable to the Seller pursuant to the MESPA have been paid, or shall be paid with the proceeds of the Investor True Up Funding Date Contribution and Class B Member True Up Funding Date Contribution to be made on such date; and

(r) the Investor has received the balance sheet of the Facility Company as of the last day of the calendar month immediately preceding the calendar month in which the applicable True Up Funding Date is to occur.

6.5 Obligations of the Equity Investors and Facility Entities on each True Up Funding Date. On each True Up Funding Date, subject to satisfaction of the conditions set forth in Section 6.4, the Equity Investors shall make capital contributions and deposits and apply funds in accordance with Section 2.6 hereof.

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ARTICLE SEVEN

GENERAL PROVISIONS

7.1 Notices. Any notice or other communication to be given hereunder shall be in writing and shall be delivered by hand (including, without limitation, by express courier against written receipt) or sent by registered prepaid first class mail, facsimile copy or by email transmission to the persons or addresses specified below (or such other Person or address as a Party may previously have notified all other Parties in writing for that purpose). A notice or other communication shall be deemed to have been served when delivered by hand at that address or received by email or facsimile copy (provided the sender can and does provide evidence of successful transmission), or, if sent by registered prepaid first class mail as aforesaid, on the date delivered. Any notice or other communication received on a day that is not a Business Day or later than 5:00 p.m. on a Business Day shall be deemed to be received on the next Business Day. The names and addresses for the service of notices referred to in this Section 7.1 are:

If to the Class B Member, to:

Clean Technologies III, LLC

c/o Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, CA 94089-1137

Attention: [***]

Telephone: [***]

Facsimile: [***]

Email: [***]

If to the Investor, to:

Firstar Development, LLC

1307 Washington, Suite 300

St. Louis, MO 63103

Attention: [***]

Telephone: [***]

Facsimile: [***]

Email: [***] and [***]

Any Party may change the address or number to which notices to such Party are to be delivered by providing notice of such change to each other Party in the manner set forth above.

7.2 No Third Party Beneficiaries. This Agreement is solely for the benefit of the Parties and their respective successors and permitted assigns and this Agreement shall not otherwise be deemed to confer upon or give to any other third party any right, claim, cause of action, or other interest herein.

7.3 Amendment and Waiver. Neither this Agreement nor any term hereof may be changed, amended or terminated orally, but only by written act of the Parties (or, in respect of a

[***] Confidential Treatment Requested

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waiver, the waiving Party or Parties). No failure or delay on the part of a Party hereto in the exercise of any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or of any other right.

7.4 Binding Nature; Assignment. This Agreement shall bind and inure to the benefit of the Parties hereto and their respective successors and legal representatives and permitted assigns. No Party shall assign its rights and obligations under this Agreement, without the prior written consent of the other Parties hereto and any such assignment contrary to the terms hereof shall be null and void and of no force and effect; provided, however, that each of the Parties shall be entitled to assign its rights and obligations under this Agreement to an Affiliate thereof; provided that to the extent the Investor is assigning its rights and obligations under this Agreement to an Affiliate, such Affiliate’s creditworthiness is equal to or better than that of the Investor as of the date hereof and the Investor has provided documentation to the Class B Member that is reasonably acceptable to the Class B Member and evidences such creditworthiness; provided, however, that each Facility Entity may assign its rights under this Agreement to the Facility Lenders as collateral for the obligations of the Facility Company under the Financing Documents.

7.5 Governing Law. THIS AGREEMENT SHALL BE DEEMED MADE AND PREPARED AND SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS THEREOF WHICH MAY REQUIRE THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION (OTHER THAN SECTIONS 5- 1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).

7.6 Jurisdiction; Service of Process. Each of the parties hereto hereby irrevocably consents to the non-exclusive jurisdiction of the courts of the State of New York located in New York County and of the United States District Court for the Southern District of New York in connection with any suit, action or other proceeding arising out of or relating to this Agreement or the transactions contemplated hereby; agrees to waive any objection to venue in the State and County of New York; and agrees that, to the extent permitted by law, service of process in connection with any such proceeding may be effected by mailing in the same manner provided in Section 7.1 hereof.

7.7 Counterparts. This Agreement may be executed in counterparts, each of which shall be an original, but each of which, when taken together, shall constitute one and the same instrument.

7.8 Headings. The section and paragraph headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning and interpretation of this Agreement.

7.9 Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, (provided the substance of the agreement between the Parties is not thereby materially altered) and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by Applicable Law, the Parties hereto hereby waive any provision of law which renders any provision hereof prohibited or unenforceable in any respect.

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7.10 Entire Agreement. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior statements or agreements, whether oral or written, among the Parties with respect to such subject matter.

7.11 No Solicitation. The transaction described in this Agreement has been discussed with a limited number of prospective institutional equity investors. No Equity Investor may solicit, directly or indirectly, whether through an agent or otherwise, the participation of another investor without the prior written approval of the Class B Member.

7.12 WAIVER OF JURY TRIAL. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING TO A DISPUTE AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO.

7.13 Expenses. The Class B Member will cause all Transaction Expenses (other than those that are otherwise expressly assumed and separately payable by the Class B Member or its Affiliate) to be paid no later than thirty (30) days after the submission of the relevant invoice by the Investor to the Class B Member. All Transaction Expenses so paid under this Section 7.13 or otherwise assumed and paid by the Class B Member or its Affiliate shall be treated as Capital Contributions to the Company.

7.14 Confidentiality

(a) . With respect to each of the Facility Entities, the Investor and their respective Affiliates, except to the extent necessary for the exercise of its rights and remedies and the performance of its obligations under this Agreement, such party will not itself use or intentionally disclose (and will not permit the use or disclosure by any of its Affiliates or its advisors, counsel and public accountants (collectively, “advisors”)) of, directly or indirectly, any of the Principal Facility Documents or information furnished thereunder, or the Investment Documents or information furnished thereunder (the “Transaction”) and will use all reasonable efforts to have all such information kept confidential (consistent with its own practices) and not used in any way known to such party to be detrimental to any of the others; provided that (i) any such party and its advisors may use, retain and disclose any such information to its special counsel and public accountants or any Governmental Authority, (ii) any such party and its advisors may use, retain and disclose any such information that has been publicly disclosed (other than by such party or any Affiliate thereof or any of its advisors in breach of this Section 7.14(a)) or has rightfully come into the possession of such party or any Affiliate thereof or any of its advisors other than from another party hereto or a Person acting on such other party’s behalf, (iii) to the extent that any such party or any Affiliate thereof or its advisors is required or requested to disclose any such information as a result of any Applicable Law or may have received a subpoena or other written demand under color of legal right for such information, such party or such Affiliate or advisor may disclose such information, but such party shall first, as soon as practicable upon receipt of such demand or request, furnish a copy thereof to the other parties and, if practicable so long as such party shall not be in violation of such subpoena, demand or request or likely to become liable to any penalty or sanctions thereunder, afford the other parties reasonable

38

opportunity, at any other party’s cost and expense, to obtain a protective order or other reasonably satisfactory assurance of confidential treatment for the information required to be disclosed, (iv) disclosures to lenders, potential lenders or other Persons providing financing to the Facility Entities or any member in any Facility Entity, if such Persons have agreed to abide by the terms of this Section 7.14(a), (v) any such party and its advisors may disclose any such information and make such filings, as may be required by this Agreement, the other Investment Documents or the Principal Facility Documents, (vi) any such party and its Affiliates and advisors may disclose information relating to the Facilities (but not information relating to a member’s equity investment in any Facility Entity) to lenders, potential lenders or other Persons providing financing to any Person developing or proposing to develop the remaining phases of the Facilities and potential purchasers of Membership Interests in such Person if such Persons have agreed to the terms of this Section 7.14(a) and (vii) any such party which is an insurance company or an Affiliate thereof may disclose such information to the National Association of Insurance Commissioners and any rating agency requiring access to its investment portfolio. Notwithstanding anything herein to the contrary, a Party may disclose information to its Affiliates and other advisors in accordance with this Agreement if such Persons have agreed with the other Parties in writing to the terms of this Section 7.14(a) and, additionally, the Class B Member and any of its Affiliates (including entities that become Affiliates subsequent to the date hereof) may use any operational data with respect to the Facilities for the purpose of researching, analyzing, designing, improving, developing, manufacturing, installing, modifying or operating other fuel cell-powered electric generating facilities, whether similar to or different from the Facilities.

(b) Notwithstanding anything to the contrary, the foregoing obligations shall not apply to the tax treatment or tax structure of the Transaction and each party hereto (and any employee, representative, or agent of any party) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all other materials of any kind (including opinions or other tax analyses) that are provided to any party hereto to the extent relating to such tax treatment and tax structure (all such information that may be so disclosed hereunder is hereinafter referred to as the “Tax Information”). For purposes of this Section 7.14(b), the Tax Information includes only those facts that may be relevant to understanding the purported or claimed U.S. federal income tax treatment or tax structure of the Transaction and, to eliminate any doubt, therefore specifically does not include information that either reveals or standing alone or in the aggregate with other information so disclosed tends of itself to reveal or allow the recipient of the information to ascertain the identity of any of the Facility Entities, any member (or potential member) of the Facility Entities, or any other third parties involved in any of the Transaction or any other potential transactions with any of the foregoing. However, any Tax Information is required to be kept confidential to the extent necessary to comply with any applicable securities laws. This Section 7.14(b) is intended to prevent such an investment in the Facility Entities from being treated as “reportable transaction” as a result of it being a transaction offered to a taxpayer under conditions of confidentiality within the meaning of Code Sections 6011, 6111 and 6112 (or any successor provision) and the Treasury Regulations thereunder (as clarified by Notice 2004-80 and Notice 2005-22) and shall be construed in a manner consistent with such purpose.

7.15 Post-Execution Date Covenant.

39

The Class B Member shall deliver to the Investor, no later than three (3) Business Days following the Execution Date, the Independent Engineer Report and a letter executed by the Independent Engineer permitting the Investor to rely on such Independent Engineer Report, if not addressed to the Investor, in each case in form and substance as approved by the Investor on the Execution Date.

7.16 Further Assurances; Amendments to Governmental Approvals and Principal Facility Documents; Reports.

(a) Each Party hereto covenants and agrees promptly to execute, deliver, file, or record such agreements, instruments, certificates and other documents and to do and perform such other and further acts and things as any other Party hereto may reasonably request or as may be otherwise be necessary or proper to consummate the transactions contemplated hereby and to carry out the provisions of this Agreement.

(b) Prior to any True Up Funding Date with respect to a Tranche, the Bloom Entities shall not, without the prior consent of the Investor (such consent not to be unreasonably withheld, delayed or conditioned) (i) waive the provisions of, terminate or materially amend any of the Financing Documents, (ii) waive the provisions of, terminate or materially amend any Governmental Approval in effect as of the Initial Funding Date for such Tranche, (iii) waive the provisions of, terminate or materially amend any of the Principal Facility Documents or (iv) enter into any Principal Facility Document or any additional material project document not in effect on the Initial Funding Date for such Tranche.

(c) Each Party hereto covenants and agrees to promptly deliver the information requested by any other Party in order to allow such party to comply with the Patriot Act, including, without limitation, the names, addresses and other information that will allow the requesting Party to identify the other Party in accordance with the requirements of the Patriot Act.

7.17 LIMITATIONS OF LIABILITY. NO PARTY SHALL BE LIABLE (WHETHER IN CONTRACT, TORT, STRICT LIABILITY, EQUITY, OR OTHERWISE) FOR ANY SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, INCLUDING LOST PROFITS AND ANY OTHER DAMAGES WHICH CANNOT BE READILY ASCERTAINED AND QUANTIFIED, FOR ANY BREACH OF A REPRESENTATION OR WARRANTY UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT IF, AFTER THE INVESTOR SHALL HAVE ACTUALLY FUNDED ITS INVESTOR INITIAL FUNDING DATE CONTRIBUTION IN RESPECT OF THE FACILITY COMPANY, ANY PART OF THE ITC IS LOST, REDUCED, RECAPTURED, DISALLOWED OR NOT CLAIMED BECAUSE CLASS B MEMBER OR ITS AFFILIATE, PERSON WITH A DIRECT OR INDIRECT INTEREST THEREIN OR ANY FACILITY ENTITY BREACHES ANY REPRESENTATION, WARRANTY, COVENANT OR OBLIGATION, ANY FEDERAL TAX DETRIMENTS SUFFERED AS RESULT OF SUCH RECAPTURE, LOSS, REDUCTION, DISALLOWANCE OR INABILITY TO CLAIM (INCLUDING WITHOUT LIMITATION, RECOMPUTATION OF TAX, CHANGE IN DISTRIBUTIVE SHARE OF TAX DEPRECIATION OR TAXABLE INCOME OR LOSS, PENALTIES, INTEREST AND

40

ADDITIONS TO TAX) SHALL NOT CONSTITUTE CONSEQUENTIAL DAMAGES. THE OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT ARE OBLIGATIONS OF THE PARTIES ONLY AND NO RECOURSE SHALL BE AVAILABLE UNDER THIS AGREEMENT AGAINST ANY OFFICER, DIRECTOR, MANAGER, MEMBER, PARTNER, OR AFFILIATE OF ANY PARTY.

[SIGNATURE PAGE FOLLOWS]

41

IN WITNESS WHEREOF, the parties hereto have caused this Equity Capital Contribution Agreement to be duly executed by their respective officers thereunto duly authorized as of the date first set forth above.

FIRSTAR DEVELOPMENT, LLC
By:	/s/ Matthew Ulrich

Name: Matthew Ulrich

Title: Officer

CLEAN TECHNOLOGIES III, LLC

By:

Name:

Title:

EQUITY CAPITAL CONTRIBUTION AGREEMENT (BLOOM)

IN WITNESS WHEREOF, the parties hereto have caused this Equity Capital Contribution Agreement to be duly executed by their respective officers thereunto duly authorized as of the date first set forth above.

FIRSTAR DEVELOPMENT, LLC

By:

Name:

Title:

CLEAN TECHNOLOGIES III, LLC

By:

Name:

Title:

EQUITY CAPITAL CONTRIBUTION AGREEMENT (BLOOM)

ANNEX 1-A

List of Prospective Facilities and Locations

Site No.	PPA Customer	Address	City		State	Size (kW)
1	AT&T	[***]	[***]	[***]	[***]		[***]
2	AT&T	[***]	[***]	[***]	[***]		[***]
3	AT&T	[***]	[***]	[***]	[***]		[***]
4	AT&T	[***]	[***]	[***]	[***]		[***]
5	AT&T	[***]	[***]	[***]	[***]		[***]
6	AT&T	[***]	[***]	[***]	[***]		[***]
7	AT&T	[***]	[***]	[***]	[***]		[***]
8	Wal-Mart	[***]	[***]	[***]	[***]		[***]
9	Wal-Mart	[***]	[***]	[***]	[***]		[***]
10	Wal-Mart	[***]	[***]	[***]	CA   [***]		[***]
11	Wal-Mart	[***]	[***]	[***]	[***]		[***]
12	Wal-Mart	[***]	[***]	[***]	[***]		[***]
13	Wal-Mart	[***]	[***]	[***]	[***]		[***]
14	Wal-Mart	[***]	[***]	[***]	[***]		[***]
15	Wal-Mart	[***]	[***]	[***]	[***]		[***]
16	Wal-Mart	[***]	[***]	[***]	[***]		[***]
17	Wal-Mart	[***]	[***]	[***]	[***]		[***]
18	Wal-Mart	[***]	[***]	[***]	[***]		[***]
19	Wal-Mart	[***]	[***]	[***]	[***]		[***]
20	Wal-Mart	[***]	[***]	[***]	[***]		[***]
21	Wal-Mart	[***]	[***]	[***]	[***]		[***]
22	Wal-Mart	[***]	[***]	[***]	[***]		[***]
23	Wal-Mart	[***]	[***]	[***]	[***]		[***]
24	Wal-Mart	[***]	[***]	[***]	[***]		[***]
25	Wal-Mart	[***]	[***]	[***]	[***]		[***]
26	Wal-Mart	[***]	[***]	[***]	[***]		[***]
Total			[***]	[***]	[***]		[***]

[***] Confidential Treatment Requested

43 EQUITY CAPITAL CONTRIBUTION AGREEMENT (BLOOM)

ANNEX 1-B

Base Case Model

[Provided separately]

44 EQUITY CAPITAL CONTRIBUTION AGREEMENT (BLOOM)

ANNEX 2

Insurance Requirements

[Provided separately]

45 EQUITY CAPITAL CONTRIBUTION AGREEMENT (BLOOM)

ANNEX 3

List of All Contracts

(terms as defined in this Agreement, unless noted otherwise)

1. AT&T Power Purchase Agreement

2. Site Leases

3. Wal-Mart Power Purchase Agreement

4. Wal-Mart Gas Supply Agreement

5. Wal-Mart REC Agreement

6. MESPA

7. MOMA

8. ASA

9. Facility Company LLC Agreement

10. Interparty Agreement

11. Agreement with SAIC Energy, Environment & Infrastructure, LLC for Use of Work Products in connection with PPA III

12. Credit Agreement, dated as of the date hereof, 2012 (the “Credit Agreement”), among the Facility Company, the Facility Lenders, the administrative agent under the Financing Documents and the collateral agent under the Financing Documents

13. Security Agreement (as defined in the Credit Agreement)

14. Pledge Agreement (as defined in the Credit Agreement)

15. Equity Contribution Tri-Party Agreement (as defined in the Credit Agreement)

16. IP License (as defined in the Credit Agreement)

17. IP License Security Agreement (as defined in the Credit Agreement)

46 EQUITY CAPITAL CONTRIBUTION AGREEMENT (BLOOM)

ANNEX 4

“Knowledge” Persons

[***]

[***]

[***]

[***]

[***]

[***] Confidential Treatment Requested

47 EQUITY CAPITAL CONTRIBUTION AGREEMENT (BLOOM)

ANNEX 5

Form of Interparty Agreement

[Executed copy provided separately]

48 EQUITY CAPITAL CONTRIBUTION AGREEMENT (BLOOM)

ANNEX 6

Third Party Consents and Approvals

Governmental Approvals:

Following are the Governmental Approvals and their status required for the execution and performance of this Agreement:

None.

Following are the Governmental Approvals and their status required for the purchase, sale, installation and operation of the Facilities:

Permit	Scope	Status
Building Permits	Authorizes specific construction activities, such as installation of concrete pads	Obtained prior to construction and installation of servers
Planning Commission Approval	Authorizes installation of Facilities	Obtained prior to construction and installation of servers
Air Resources Board Certification	Authorizes use, purchase and sale of equipment installed in Facilities	Order DG-037, covering ES- 5000, dated June 14, 2012; Order DG-036, covering ES- 5700,” dated September 21, 2011; ES-5400 application complete and pending; other certifications to be obtained before equipment is sold or used in California.

49 EQUITY CAPITAL CONTRIBUTION AGREEMENT (BLOOM)

ANNEX 7

[Reserved]

50 EQUITY CAPITAL CONTRIBUTION AGREEMENT (BLOOM)

ANNEX 8

Forms of Opinions

[Executed copies provided separately]

51 EQUITY CAPITAL CONTRIBUTION AGREEMENT (BLOOM)

ANNEX 9

Form of Estoppel Certificate

[to be copies of the consents the Bloom entities are delivering to the lender]

52 EQUITY CAPITAL CONTRIBUTION AGREEMENT (BLOOM)

ANNEX 10

[Reserved]

53 EQUITY CAPITAL CONTRIBUTION AGREEMENT (BLOOM)

ANNEX 11

Affiliate Transactions

(terms as defined in this Agreement, unless noted otherwise)

1. Wal-Mart REC Agreement

2. MESPA

3. MOMA

4. ASA

5. Facility Company LLC Agreement

6. Pledge Agreement (as defined in the Credit Agreement)

7. Equity Contribution Tri-Party Agreement (as defined in the Credit Agreement)

8. IP License (as defined in the Credit Agreement)

9. IP License Security Agreement (as defined in the Credit Agreement)

54 EQUITY CAPITAL CONTRIBUTION AGREEMENT (BLOOM)

ANNEX 12

Tax Matters

None.

55 EQUITY CAPITAL CONTRIBUTION AGREEMENT (BLOOM)

ANNEX 13

Forms of Financing Documents

[Provided separately]

56 EQUITY CAPITAL CONTRIBUTION AGREEMENT (BLOOM)

ANNEX 14

Form of Amended and Restated Facility Company LLC Agreement

[Executed copy provided separately]

57 EQUITY CAPITAL CONTRIBUTION AGREEMENT (BLOOM)

ANNEX 15-A

Preliminary Form of Quarterly Renewable Energy Certificate

[To be in a form similar as the form of quarterly renewable energy certificate that the Investor previous shared with the Class B Member for other renewable energy technologies but adapted to the fuel cell technology and to include also

1. a representation by the Class B Member that the value of non-new parts installed in any System do not exceed 80% of the fair market value in the year of such determination. Such fair market value be determined based on the Appraisal, reducing each year in an equal increment so that the fair market value on the sixth anniversary of the True Up Funding Date shall be 65% of the fair market value of such System as determined pursuant to the Appraisal and

2. a report by the Class B Member as to the value of any component of any System replaced that has at the time of replacement has standard cost in excess of $[***]]

ANNEX 15-B

Preliminary Form of Renewable Energy Monthly Report

[To be in a form similar as the form of renewable energy monthly report that the Investor previous shared with the Class B Member for other renewable energy technologies but adapted to the fuel cell technology.]

[***] Confidential Treatment Requested

58 EQUITY CAPITAL CONTRIBUTION AGREEMENT (BLOOM)

EX-10

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. Exhibit 10.47

Execution Version

AMENDED AND RESTATED

MASTER OPERATION AND MAINTENANCE AGREEMENT

by and between

2012 V PPA PROJECT COMPANY, LLC

and

BLOOM ENERGY CORPORATION

dated as of December 21, 2012

TABLE OF CONTENTS

ARTICLE 1 DEFINITIONS			1
	Section 1.1	Definitions	1
	Section 1.2	Other Definitional Provisions	11
ARTICLE 1A AMENDED AND RESTATED MASTER OPERATION AND MAINTENANCE AGREEMENT			12
	Section 1A.1	Confirmation of Amendment and Restatement	12
ARTICLE 2 FACILITY SERVICES			12
	Section 2.1	In General	12
	Section 2.2	Operation and Maintenance Services	12
	Section 2.3	Service Fees	13
	Section 2.4	Facility Service Warranty	14
	Section 2.5	Facility Service Warranty Claims	15
	Section 2.6	Capacity Warranty	17
	Section 2.7	Efficiency Warranty	18
	Section 2.8	Indemnification Regarding Performance Under PPAs	18
	Section 2.9	Exclusions	18
	Section 2.10	No Duplication of Terms	19
	Section 2.11	Title	19
	Section 2.12	Record-Keeping Documentation	19
	Section 2.13	Remote Monitoring	20
	Section 2.14	Permits	20
	Section 2.15	Performance Standards	20
	Section 2.16	Rights to Deliverables	21
	Section 2.17	Appointment of Service Provider	21
	Section 2.18	PPA Termination and Re-Purchase of Bloom Systems	21
	Section 2.19	Deemed Delivered Energy	22
ARTICLE 3 TERM			23
	Section 3.1	Term	23
ARTICLE 3A PPA OBLIGATIONS			23
	Section 3A.1	Obligations of Operator Related to PPAs	23
	Section 3A.2	AT&T PPA	24
	Section 3A.3	Wal-Mart PPA	24

i

TABLE OF CONTENTS

(continued)

ARTICLE 3B CORRESPONDING ENTITLEMENTS			25
	Section 3B.1	Definition of Corresponding Entitlements	25
	Section 3B.2	Rights in Respect of Corresponding Entitlements	26
ARTICLE 4 TERMINATION			27
	Section 4.1	Default	27
	Section 4.2	Termination of Warranties	28
	Section 4.3	Termination of PPAs	29
ARTICLE 5 DATA ACCESS			29
	Section 5.1	Access to Data and Meters	29
ARTICLE 6 INDEMNITY			30
	Section 6.1	Indemnification of Operator by Owner	30
	Section 6.2	Indemnification of Owner by Operator	30
	Section 6.3	Indemnity Claims Procedure	30
	Section 6.4	No Duplication of Claims	31
	Section 6.5	Waiver	31
ARTICLE 7 LIMITATIONS ON LIABILITY			31
	Section 7.1	Aggregate Limit of Liability	31
	Section 7.2	No Duplication of Claims	32
	Section 7.3	Survival	32
ARTICLE 8 REPRESENTATIONS AND WARRANTIES			33
	Section 8.1	Representations and Warranties of Owner	33
	Section 8.2	Representations and Warranties of Operator	34
ARTICLE 9 MISCELLANEOUS			35
	Section 9.1	Amendment and Modification	35
	Section 9.2	Waiver of Compliance; Consents	35
	Section 9.3	Notices	35
	Section 9.4	Assignment	36
	Section 9.5	Dispute Resolution	36
	Section 9.6	Governing Law, Jurisdiction, Venue	37
	Section 9.7	Counterparts	37
	Section 9.8	Interpretation	37
	Section 9.9	Appendices and Exhibits	37
	Section 9.10	Entire Agreement	37

ii

TABLE OF CONTENTS

(continued)

Section 9.11	Construction of Agreement	38
Section 9.12	Severability	38
Section 9.13	[RESERVED]	38
Section 9.14	Further Assurances	38
Section 9.15	Independent Contractors	38
Section 9.16	No Contract for the Sale of Goods	38
Section 9.17	Time of Essence	38
Section 9.18	Confidentiality	38
Section 9.19	Force Majeure	40
Section 9.20	No Liens	40
Section 9.21	Insurance	40
Section 9.22	Co-ordination with Seller under MESPA	42
Section 9.23	Set-Off	42
Section 9.24	Third Party Beneficiaries	42

Exhibit A	Primary Service Fees
Exhibit B	Facilities
Appendix A	Minimum Power Product Example Calculation
Appendix B	Capacity Warranty Claim Example Calculation and Amounts Payable

iii

AMENDED AND RESTATED

MASTER OPERATION AND MAINTENANCE AGREEMENT

This AMENDED AND RESTATED MASTER OPERATION AND MAINTENANCE AGREEMENT (this “Agreement”), dated as of December 21, 2012, between BLOOM ENERGY CORPORATION, a Delaware corporation (“BE” or, in its capacity as operator hereunder, “Operator”), and 2012 V PPA PROJECT COMPANY, LLC, a Delaware limited liability company (“Owner”) (each, a “Party”, and together, the “Parties”), covers (i) the Portfolio of on-site solid oxide fuel cell power generating systems capable of being powered by renewable fuels, having an aggregate Baseload Capacity of up to 7.2 MW (each a “Bloom System”, and together the “Bloom Systems”) and (ii) the BOF installed by BE pursuant to the MESPA (as defined below), in each case to the extent set forth herein.

WHEREAS, Owner is a company formed at the direction of BE for the purpose of purchasing and owning Bloom Systems for the generation of electricity and sale of electricity and capacity generated by the Bloom Systems;

WHEREAS, Operator has entered into that certain Amended and Restated Master Energy Server Purchase Agreement dated as of the date hereof (the “MESPA”) with Owner, under the terms of which Owner will purchase Bloom Systems and the BOF from BE in order for Owner to provide electricity and capacity generated by the Bloom Systems into the distribution or transmission facilities of the Transmitting Utility; and

WHEREAS, Operator has agreed to provide certain operation and maintenance services to Owner subject to the conditions of this Agreement.

WHEREAS, the Parties previously entered into that certain Master Operation and Maintenance Agreement, dated as of August 23, 2012 (“Existing MOMA”), and now wish to amend and restate that agreement as set forth herein.

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

AGREEMENT

ARTICLE 1

DEFINITIONS

Section 1.1 Definitions. As used in this Agreement, capitalized terms not otherwise defined shall have the meanings set forth below:

“Actual kWh” means the actual energy output in kWh produced by each Bloom System and aggregated together.

“Administrative Services Agreement” means the Administrative Services Agreement dated as of December 21, 2012 among BE, Owner and 2012 V PPA HoldCo, LLC, a Delaware limited liability company.

“Affiliate” of any Person means a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person specified, provided that neither Owner’s Lender nor the Class A Member shall not be considered an Affiliate of either Party.

“Agreement” is defined in the preamble.

“Annual Reports” is defined in Section 2.12.

“Appraisal Procedure” means within fifteen (15) days of a Party invoking the procedure described in this definition the Owner and the Operator shall engage a Qualified Appraiser, mutually acceptable to them, to determine the Fair Market Value of a Bloom System.

“AT&T” means Pacific Bell Telephone Company, a California corporation.

“AT&T Fleet” means all Bloom Systems owned by Owner and purchased under MESPA for installation pursuant to the AT&T PPA that have been Placed in Service.

“AT&T PPA” means that certain Power Purchase Agreement by and between Owner and AT&T dated as of June 29, 2012, as amended by the First Amendment thereto, dated September 26, 2012, and as amended and restated by the Energy System Use Agreement, dated as of December 19, 2012 (Agreement No. 20121102.013), by and between Owner and AT&T, and as may be further amended from time to time.

“Baseload Capacity” means, with respect to a Bloom System, the “Baseload Capacity” set forth on the applicable specification sheet provided by the manufacturer of such Bloom System.

“BE” is defined in the recitals.

“Bloom System” and “Bloom Systems” are defined in the preamble.

“BOF” means, for each Site, the Electrical Interconnection Facilities, the natural gas supply facilities, the water supply facilities, the data communications facilities, the foundations for the Bloom Systems, and any other ancillary facilities and equipment installed in connection with the Facility at each Site and all other things ancillary to the Bloom Systems and required on or in the vicinity of the Site which are necessary to achieve Commencement of Operations at each such Site.

“BOF Work” is defined in the MESPA.

“Business Day” means a day other than a Saturday, Sunday or other day on which banks in New York, New York, or San Francisco, California, are authorized or required to close.

2

“Calendar Quarter” means each period of three months ending on March 31, June 30, September 30, and December 31.

“Capacity Warranty” is the Quarterly Capacity Warranty and the One-Year Capacity Warranty as defined in Section 2.6.

“Capacity Warranty Period” means the Quarterly Capacity Warranty Period or the One- Year Capacity Warranty Period, as applicable.

“Claiming Party” is defined in Section 9.19.

“Class A Member” has the meaning set forth in the Holdco LLC Agreement.

“Code” means the Internal Revenue Code of 1986, as amended.

“Commencement of Operations” means, with respect to any Facility, the completion and the performance of all of the following activities:

(a) each Bloom System comprising such Facility has been Delivered (as defined in the MESPA) and Placed in Service;

(b) each Bloom System comprising such Facility (i) has been attached to the load at the applicable Site and (ii) is performing at the Warranty Specifications (measured over a 24 hour period and on a Facility-specific basis and not over the Look Back Period or on a Portfolio-specific basis as referenced in the definition of Warranty Specifications; provided that for this purpose the percentage in “Minimum Power Product” shall be deemed to be 100% rather than 85%);

(c) BE has performed and successfully completed all necessary acts under the applicable Interconnection Agreement (including performance testing) and has obtained permission from the applicable Person granting Owner permission to interconnect such Facility with the distribution or transmission facilities of the Transmitting Utility;

(d) BE shall have furnished a written certification, pursuant to the MESPA, from BE addressed to Owner with a copy to the Independent Engineer certifying, without any qualification, that BE has installed each Bloom System comprising such Facility in accordance with the Performance Standards;

(e) BE shall have provided to the Independent Engineer, on behalf of Owner, all Documentation (as defined in the MESPA) reasonably required by the Independent Engineer for the Bloom System to achieve commercial operation; and

(f) BE shall have furnished a written certification, pursuant to the MESPA, from the Independent Engineer addressed to Owner and to Owner’s Lender certifying, without any qualification, that (i) such Facility’s installation and commissioning requirements pursuant to the MESPA have been successfully completed, (ii) such Facility has achieved commercial operation, (iii) that BE has installed all BOF Work necessary for the operation of such Facility, and (iv) each of the requirements set out in paragraphs (a) to (e) of this definition have been satisfied.

3

“Confidential Information” is defined in Section 9.18(a).

“Corresponding Entitlement” is defined in Section 3B.1.

“Deemed Delivered Energy” is defined in Section 2.19(a).

“Efficiency” means the quotient of E/F, where E = the electricity produced by the applicable Fleet, Facility or Bloom System, measured in BTUs (British Thermal Units) at a conversion rate of 3,412 BTUs per kWh, and F = the fuel consumed by such Fleet, Facility or Bloom System, as applicable, measured in BTUs on a lower heating value basis.

“Efficiency Warranty” has the meaning provided in Section 2.7.

“Efficiency Warranty Period” has the meaning provided in Section 2.7.

“Electrical Interconnection Facilities” means the equipment and facilities required to safely and reliably interconnect a Facility to the transmission system of the Transmitting Utility, including the collection system between each Bloom System, transformers and all switching, metering, communications, control and safety equipment, including the facilities described in any applicable Interconnection Agreement.

“Energy” means three-phase, 60-cycle alternating current electric energy constituting the Actual kWh.

“Existing MOMA” is defined in the recitals.

“Facility” means the Bloom Systems and the BOF at a Site.

“Facility Meter” means the revenue quality electricity generation meter to be located at the metering point (the proposed location of which is to be identified in the applicable Interconnection Agreement), which Facility Meter shall register all Energy produced by a Facility and delivered to the Interconnection Point.

“Facility Service Warranty” is defined in Section 2.4.

“Facility Services” is defined in Section 2.1.

“Fair Market Value” means, with respect to any Facility, Bloom System or part thereof, the price at which such asset would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell, and both having reasonable knowledge of the relevant facts, and specifically with respect to the Facility or any portion thereof, as determined consistently with Section 4.05 of Revenue Procedure 2007-65.

“FERC” means the Federal Energy Regulatory Commission and any successor thereto.

“Fleet” means the AT&T Fleet and the Wal-Mart Fleet.

4

“Force Majeure Event” means any event or circumstance that (a) prevents a Party from performing its obligations under this Agreement; (b) was not reasonably foreseeable by such Party; (c) was not within the reasonable control of, or the result of the negligence of such Party or a breach of this Agreement by such Party; and (d) such Party is unable to reasonably mitigate, avoid or cause to be avoided with the exercise of due diligence. “Force Majeure Events” shall include failure or interruption of performance due to: an act of God, civil or military authority, war, civil disturbances, terrorist activities, fire, explosions, the external power delivery system (a/k/a the grid) being out of the required specifications or totally failing (a/k/a brownout or blackout), or electric grid curtailment. Force Majeure Event does not include the lack of economic resources of a Party, Operator’s failure to design and construct the Bloom Systems and the BOF so as to meet the respective warranties hereunder, or the gas supplier’s failure to comply with gas delivery, quality or pressure requirements. If an event or circumstance gives rise to a Force Majeure Event as defined herein under this Agreement, but such event or circumstance does not also constitute a ‘Force Majeure Event’ as defined under the AT&T PPA or Wal-Mart PPA or both, as applicable depending on which Facilities are affected, then for the purposes of any rights and obligations of the parties under this Agreement that relate to corresponding rights or obligations under the AT&T PPA or Wal-Mart PPA (as the case may be) such event or circumstance will not constitute a Force Majeure Event under this Agreement.

“Governmental Approvals” means (a) any authorizations, consents, approvals, licenses, rulings, permits, tariffs, rates, certifications, variances, orders, judgments, decrees by or with a relevant Governmental Authority and (b) any required notice to, any declaration of, or with, or any registration or filing by, or with, any relevant Governmental Authority.

“Governmental Authority” means any foreign, federal, state, local or other governmental, regulatory or administrative agency, court, commission, department, board, or other governmental subdivision, legislature, rulemaking board, court, tribunal, arbitrating body or other governmental authority.

“Holdco LLC Agreement” means that certain Amended and Restated Operating Agreement of 2012 V PPA Holdco, LLC to be entered into at a later date.

“Indemnifiable Loss” means any claim, demand, suit, loss, liability, damage, obligation, payment, cost or expense (including the cost and expense of any action, suit, proceeding, assessment, judgment, settlement or compromise relating thereto and reasonable attorneys’ fees and reasonable disbursements in connection therewith).

“Indemnified Party” is defined in Section 6.3.

“Indemnifying Party” is defined in Section 6.3.

“Independent Engineer” means SAIC Energy, Environment & Infrastructure, LLC or such other independent engineer mutually agreed upon by the Parties in writing.

“Intellectual Property” shall mean any or all of the following and all rights therein, whether arising under the laws of the United States or any other jurisdiction (i) all patents and patent applications (and all reissues, divisions, re-examinations, renewals, extensions, provisionals, continuations and continuations-in-part thereof), patent disclosures and inventions

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(whether patentable or not); (ii) all trade secrets, know-how and confidential and proprietary information; (iii) all copyrights and copyrightable works (including computer programs) and registrations and applications therefor and any renewals, modifications and extensions thereof; (iv) all moral and economic rights of authors and inventors, however denominated, throughout the world; (v) unregistered and registered design rights and any registrations and applications for registration thereof; (vi) trademarks, service marks, trade names, service names, brand names, trade dress, logos, slogans, corporate names, trade styles, domain names and other source or business identifiers, whether registered or not, together with all applications therefor and all extensions and renewals thereof and all goodwill associated therewith; (vii) semiconductor chip “mask” works, and registrations and applications for registration thereof, (viii) database rights; (ix) all other forms of intellectual property, including waivable or assignable rights of publicity or moral rights; and (x) any similar, corresponding or equivalent rights to any of the foregoing anywhere in the world.

“Interconnection Agreement” means an agreement between the PPA Customer (or the Owner (as required)) and the applicable Transmitting Utility regarding interconnection of a Facility to the transmission or distribution system of such Transmitting Utility.

“Interconnection Point” means, with respect to each Facility, the point at which title and risk of loss with respect to the electricity produced by such Facility passes to the applicable PPA Customer.

“IRS” means the Internal Revenue Service.

“kW” means kilowatt.

“kWh” means kilowatt-hour.

“Legal Requirement” means any law, statute, act, decree, ordinance, rule, directive (to the extent having the force of law), tariff, order, treaty, code or regulation or any interpretation of any of the foregoing, as enacted, issued or promulgated by any Governmental Authority, including all amendments, modifications, extensions, replacements or re-enactments thereof, in each case applicable to or binding upon such Person or any of its properties or to which such Person or any of its property is subject.

“Liens” means any lien, security interest, mortgage, hypothecation, encumbrance or other restriction on title or property interest.

“Loan Agreement” means the agreement between the Owner and the Owner’s Lender or thereafter any subsequent, additional or alternative lenders pursuant to which the Owner’s Lender provides finance or enters into a funding arrangement with Owner to finance all or part of the costs of the Purchase Price (as defined in the MESPA) of the Bloom Systems.

“Look Back Period” means, with respect to a Bloom System, each calendar year.

“Maintenance Reserve Account” is defined in the Loan Agreement.

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“Maintenance Reserve Account Release Date” means the first date upon which the events specified in Section 7.7.3 of the Loan Agreement occur.

“Maintenance Reserve Account Release Date Balance” means all amounts in the Maintenance Reserve Account as of the Maintenance Reserve Account Release Date.

“Maximum Liability” means, with respect to Operator, the aggregate Residual Value of the Portfolio as of such date, and with respect to Owner, One Million Dollars ($1,000,000); provided that a reduction in the Maximum Liability of Operator shall never result in a requirement for Owner or any Owner Indemnitee to return any money to Operator. Maximum Liability will be determined on an aggregate basis between this Agreement and the MESPA.

“MESPA” is defined in the recitals.

“Minimum Efficiency Level” means (i) an Efficiency quotient of 45%, measured over the Efficiency Warranty Period and (ii) for the purposes of each PPA, an efficiency quotient meeting the requirements under the Wal-Mart PPA and the AT&T PPA (as the case may be) and measured at the times required therein.

“Minimum kWh” means the product of (x) the number of hours in the applicable Capacity Warranty Period minus the number of hours for each Bloom System at the applicable Site or in the Portfolio, as applicable, as of the last day of the applicable Capacity Warranty Period following Commencement of Operations with respect to such Bloom System when each such Bloom System (i) was subject to a Force Majeure Event, (ii) was not delivering Energy because of a failure to perform by the applicable PPA Customer, except to the extent caused or contributed to by Operator or its employees, agents, subcontractors or representatives, or (iii) was required by a Legal Requirement (which for this purpose shall include any utility requirement) to be disconnected from the distribution or transmission facilities of the Transmitting Utility or otherwise required not to deliver Energy as the result of a Legal Requirement or action by or a directive from the applicable Transmitting Utility with respect to such Bloom System (e.g., due to a grid event), except to the extent caused or contributed to by Operator or its employees, agents, subcontractors and representatives, and (y) the Minimum Power Product for the applicable Capacity Warranty Period.

“Minimum Power Product” means (1) when this term is used for the Quarterly Capacity Warranty, the aggregate Baseload Capacity of the Bloom Systems incorporated into the applicable Facility for the applicable Capacity Warranty Period multiplied by 80%, and (2) when this term is used for the One-Year Capacity Warranty, the aggregate Baseload Capacity of the Bloom Systems in the Portfolio in kW for the applicable Capacity Warranty Period multiplied by 95%. An example of a calculation of the Minimum Power Product is set forth in Appendix A.

“MW” means megawatt.

“One-Year Capacity Warranty” is defined in Section 2.6.

“One-Year Capacity Warranty Period” means, with respect to a Bloom System, each calendar year following the Commencement of Operations of the Facility into which such Bloom System is incorporated (or, in the case of the calendar year in which delivery of a Bloom System has occurred, the portion of such calendar year commencing on the date such Facility achieved Commencement of Operations).

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“One-Year Warranty Cap” is defined in Section 2.5(d)(i)(2).

“Operator” is defined in the preamble.

“Operator Default” is defined in Section 4.1(a).

“Operator Indemnitee” is defined in Section 6.1.

“Owner” is defined in the preamble.

“Owner Default” is defined in Section 4.1(b).

“Owner Indemnitee” is defined in Section 6.2.

“Owner’s Lender” means PE12GVVC (Bloom PPA) Ltd., an Alberta limited liability corporation, and PE12PXVC (Bloom PPA) Ltd., an Alberta limited liability corporation, any trustee or agent acting on their behalf, and their permitted successors and assigns as referred to in the Loan Agreement.

“Party” or “Parties” is defined in the preamble.

“Performance Standards” is defined in Section 2.15.

“Permits” means all Governmental Approvals that are necessary under applicable Legal Requirements, this Agreement, or the MESPA to have been obtained at such time in light of the stage of development of the Portfolio to site, construct, test, operate, maintain, repair, lease, own or use each Facility as contemplated in this Agreement or the MESPA, to sell electricity from the Portfolio or for a Party to enter into this Agreement or to consummate any transaction contemplated hereby, in each case in accordance with all applicable Legal Requirements.

“Person” means any individual, partnership, limited liability company, joint venture, corporation, trust, unincorporated organization, or governmental entity or any department or agency thereof.

“Placed in Service” means, with respect to any Bloom System, the completion and performance of all of the following activities: (1) obtaining the necessary licenses and Permits for the operation of such Bloom System and the sale of power generated by the Bloom System in accordance with clause (4) of this definition, (2) completion of critical tests necessary for the proper operation of such Bloom System in accordance with clause (4) of this definition, (3) synchronization of such Bloom System onto the electric distribution and transmission system of the applicable Transmitting Utility, (4) the commencement of regular, continuous, daily operation of such Bloom System, and (5) (a) for each Bloom System that is intended to be part of the AT&T portion of the Portfolio, (i) the Interconnection Notice (under and as defined in the AT&T PPA) has been received by AT&T and the date specified in such Interconnection Notice for the “Commencement of Operations” has occurred, and (ii) the Independent Engineer is

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reasonably satisfied that AT&T has not disputed “Commencement of Operations” for those Bloom Systems; and (b) for each Bloom System that is intended to be part of the Wal-Mart portion of the Portfolio (i) the Completion Notice (under and as defined in the Wal-Mart PPA) has been received by Wal-Mart and the “Commercial Operation Date” under Section 3.3(c) of the Wal-Mart PPA has occurred and (ii) the Independent Engineer is reasonably satisfied that Wal-Mart has not disputed that such “Commercial Operation Date” has occurred for those Bloom Systems.

“Portfolio” means, on an aggregate basis, all Bloom Systems owned by Owner that are purchased pursuant to the MESPA and that have been Placed in Service.

“Power Module” means the power module component of a Bloom System in the Portfolio, including any replacement power module component. For the avoidance of doubt, each Power Module has a rated capacity equal to 33 and 1/3 kW.

“Power Module Replacement Fee Rate” means $[***] per kW.

“Power Module Replacement Fee Maximum” means, at any time, the amount equal to (A) the aggregate Baseload Capacity of the Bloom Systems in the Portfolio in kW, multiplied by (B) the Power Module Replacement Fee Rate.

“PPA” means each of the AT&T PPA and the Wal-Mart PPA.

“PPA Customer” means each non-Owner counter-party to a PPA.

“PPA Warranties” is defined in Section 2.8.

“Primary Service Fees” is defined in Section 2.3(a)(i).

“Prudent Electrical Practices” means those practices, methods, equipment, specifications and standards of safety and performance, as the same may change from time to time, as are commonly used by a significant portion of the grid-tied electrical generation industry operating in the United States as good, safe and prudent engineering practices in connection with the design, construction, operation, maintenance, repair and use of electrical and other equipment, facilities and improvements of such electrical generating facility, including any applicable practices, methods, acts, guidelines, standards and criteria of FERC and all applicable Legal Requirements.

“Purchase Price” is defined in the MESPA.

“Qualified Appraiser” means a nationally recognized third-party appraiser reasonably acceptable to Owner and Operator which shall (i) be qualified to appraise power systems similar to the Bloom Systems, and/or experienced in such businesses in the general geographic region of the relevant Facility, (ii) have been engaged in the appraisal or business valuation and consulting business for a period of not less than five (5) years, and (iii) not be associated with either Owner or Operator or any Affiliate thereof.

“Quarterly Capacity Warranty” is defined in Section 2.6.

[***] Confidential Treatment Requested 9

“Quarterly Capacity Warranty Period” means, with respect to a Bloom System, each Calendar Quarter following the Commencement of Operations of the Facility into which such Bloom System is incorporated (or, in the case of the Calendar Quarter in which delivery of a Bloom System has occurred, the portion of such Calendar Quarter commencing on the date such Facility achieved Commencement of Operations).

“Quarterly Warranty Cap” is defined in Section 2.5(d)(i).

“REC Agreement” is defined in the MESPA.

“Recoverable Amount” is defined in Section 3B.2(f).

“Refund Value” means, with respect to any Bloom System (including any Underperforming System), the Residual Value of such Bloom System, as calculated as of the date that Operator becomes obligated to refund such amount to Owner.

“Representatives” of a Party means such Party’s authorized representatives, including its professional and financial advisors.

“Residual Value” means, for any Bloom System, the greater of (a) the Fair Market Value of that Bloom System (as determined under the Appraisal Procedure if the Owner and Operator cannot agree as to that Fair Market Value within ten (10) days, and (b) 100% of the Purchase Price for such Bloom System until the first anniversary of Commencement of Operations of the Facility into which such Bloom System is incorporated, declining by [***] (i.e. [***]) on each anniversary of such date thereafter. (For example, on the fifth anniversary of Commencement of Operations, the Residual Value will be [***]% of the Purchase Price).

“Revenue Account” is defined in the Loan Agreement.

“Service Fees” is defined in Section 2.3.

“Service Provider” means an operation and maintenance contractor appointed by Operator and approved by Owner pursuant to Section 2.17.

“Service Technicians” is defined in Section 2.2(c).

“SGIP Proceeds Account” is defined in the Loan Agreement.

“Shortfall Event License” is defined in the MESPA.

“Site” means the parcel of land leased or licensed from a PPA Customer to Owner under each Site Lease and all easements appurtenant, easements in gross, license agreements and other rights running in favor of Owner which provide access to each Facility.

“Site Lease” means an agreement between Owner and a PPA Customer regarding the lease, license, or similar contractual arrangement providing Owner with the right of access to a Site for the purposes of performing Owner’s obligations pursuant to the applicable PPA. If Owner’s right of access to a Site is contained within a PPA, then the term “Site Lease”, with respect to such Site, shall mean the provisions for access to that Site contained in such PPA.

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[***] Confidential Treatment Requested

“Term” is defined in Section 3.1.

“Third Party Claim” means any claim, action, or proceeding made or brought by any Person who is not (a) a Party to this Agreement, or (b) an Affiliate of a Party to this Agreement (and that is not a claim based on breach by the Indemnified Party of its obligations under this Agreement).

“Training Materials” is defined in Section 2.16.

“Transaction Documents” means this Agreement, the MESPA, the Administrative Services Agreement, the REC Agreement and the Shortfall Event License.

“Transmitting Utility” means, with respect to a Facility, the local electric utility company in whose territory the Facility is located.

“Underperforming System” is defined in the Section 2.5(d)(iii).

“Wal-Mart” means Wal-Mart Stores, Inc.

“Wal-Mart Fleet” means all Bloom Systems owned by Owner and purchased under the MESPA for installation pursuant to the Wal-Mart PPA that have been Placed in Service within a single United States state.

“Wal-Mart PPA” means that certain Fuel Cell Power & Services Agreement by and between Owner and Wal-Mart dated as of July 24, 2012, as amended by Amendment No. 1 thereto, dated as of August 24, 2012, and superseded by the Amended and Restated Master Fuel Cell Power & Services Agreement between Owner and Wal-Mart with respect to the Bloom Systems described herein, dated as of December 11, 2012, and as may be further amended from time to time.

“Warranty Period” means, for each Bloom System, the period beginning on the day following the date that the “Warranty Period” for such Bloom System under and as defined in the MESPA has expired and ending on the fifteenth (15th) anniversary of the date of Commencement of Operations of the Facility into which such Bloom System is incorporated.

“Warranty Specifications” means the Capacity Warranty and the Efficiency Warranty.

Section 1.2 Other Definitional Provisions.

(a) As used in this Agreement and in any certificate or other documents made or delivered pursuant hereto or thereto, financial and accounting terms not defined in this Agreement or in any such certificate or other document, and financial and accounting terms partly defined in this Agreement or in any such certificate or other document to the extent not defined, will have the respective meanings given to them under GAAP. To the extent that the definitions of financial and accounting terms in this Agreement or in any such certificate or other document are inconsistent with the meanings of such terms under GAAP, the definitions contained in this Agreement or in any such certificate or other document will control.

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(b) The words “hereof,” “herein,” “hereunder,” and words of similar import when used in this Agreement will refer to this Agreement as a whole and not to any particular provision of this Agreement. Section references contained in this Agreement are references to Sections in this Agreement unless otherwise specified. The term “including” will mean “including without limitation.”

(c) The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms.

(d) Any agreement, instrument or statute defined or referred to herein or in any instrument or certificate delivered in connection herewith means (unless otherwise indicated herein) such agreement, instrument or statute as from time to time amended, modified or supplemented and includes (in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein.

(e) Any references to a Person are also to its permitted successors and assigns.

ARTICLE 1A

AMENDED AND RESTATED MASTER OPERATION AND MAINTENANCE AGREEMENT

Section 1A.1 Confirmation of Amendment and Restatement.

(a) This Agreement shall (i) amend and restate the Existing MOMA in its entirety as of the date hereof on the terms and subject to conditions set forth herein, and (ii) not constitute a novation of the obligations and liabilities existing under the Existing MOMA.

(b) From and after the date hereof, the Existing MOMA and any rights or obligations under the Existing MOMA shall be of no further force or effect and each Party is released from all claims, obligations and liabilities under or in connection with the Existing MOMA.

ARTICLE 2

FACILITY SERVICES

Section 2.1 In General. During the Term, Operator shall provide services to Owner so that the Portfolio meets the Warranty Specifications and so that the BOF will not cause the Portfolio to fail to perform in accordance with the Warranty Specifications, as more fully set forth in this Article 2 (such services, collectively, the “Facility Services”). The Facilities covered under this Agreement are set forth in Exhibit B hereto, which may be amended from time to time by written agreement between the Parties.

Section 2.2 Operation and Maintenance Services. Operator is hereby granted the right and authority (and, to the extent necessary to carry out its functions hereunder, a limited power of attorney) and agrees, for the benefit of Owner, to operate safely and reliably each Facility and

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to maintain during the Term in accordance with the terms of this Agreement each such Facility in good condition and repair in accordance with the Warranty Specifications, Performance Standards and Prudent Electrical Practices. During the Term, the specific responsibilities of Operator under this Agreement shall include the following:

(a) Facility Operations. Operator shall ensure that all Facility components are operated and maintained in a manner designed to meet the Warranty Specifications and Performance Standards and as required under this Agreement.

(b) Facility Maintenance. Operator shall perform, or cause to be performed, all scheduled and unscheduled maintenance required on the Facilities in order to meet the Warranty Specifications and Performance Standards. In that regard, Operator’s responsibilities hereunder shall include, without limitation, promptly correcting any Bloom System or BOF malfunctions, either by (i) recalibrating or resetting the malfunctioning Bloom System or BOF, or (ii) subject to Section 2.5(b), repairing or replacing Bloom System or BOF components which are defective, damaged, worn or otherwise in need of repair or replacement.

(c) Personnel. Operator shall ensure that all operations and maintenance functions contemplated by this Section 2.2 are performed by technically competent and qualified personnel (the “Service Technicians”). Operator shall ensure that all Service Technicians: (i) participate in a maintenance training program and receive confirmation of having achieved the requisite level of proficiency for the tasks they are assigned to perform, and (ii) attend periodic “refresher” training programs. The Operator shall at all times retain an operations manager who shall be dedicated to the overall supervision and management of performance of the Operator’s obligations under this Agreement.

(d) Spare Parts. Operator shall establish and maintain an adequate spare parts inventory.

(e) Programs and Procedures. Prior to the date of the Commencement of Operations of the first Facility, Operator shall have adopted and implemented programs and procedures intended to ensure safe and reliable operation of the Facilities.

The rights and obligations in this Section 2.2 are without duplication of the rights and obligations of Owner and Operator as Buyer and Seller, respectively, under, and as defined in, the MESPA.

Section 2.3 Service Fees.

(a) Owner shall compensate Operator for the Facility Services, on a Calendar Quarter basis, by paying Operator the “Service Fees” equal to the sum of:

(i) for each Facility, the “Primary Service Fees” in an amount equal to (A) the rate (in $/kW) specified in Exhibit A hereto for the applicable Calendar Quarter since the applicable Facility achieved Commencement of Operations, multiplied by (B) the aggregate Baseload Capacity (in kW) of the Bloom Systems comprising the applicable Facility, for the applicable Calendar Quarter, plus

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(ii) an amount equal to (A) the Power Module Replacement Fee Rate, multiplied by (B) the aggregate rated capacity (in kW) of Power Modules replaced during the applicable Calendar Quarter, provided, however that aggregate payments made at any time in respect of this Section 2.3(a)(ii) for Power Module replacement shall not exceed the Power Module Replacement Fee Maximum, plus

(iii) upon occurrence of the Maintenance Reserve Account Release Date during the applicable Calendar Quarter, a one-time payment equal to the Maintenance Reserve Account Release Date Balance.

The Service Fees shall be invoiced not later than fifteen (15) days prior to the end of each quarter, and, subject to Sections 2.3(b) and 2.3(c), shall be payable within thirty (30) days of the end of such quarter. Interest shall accrue daily on the Service Fees not paid when due, at the lesser of the monthly rate of one and five-tenths percent (1.5%) or the highest rate permissible by law on such unpaid balance. Subject to Sections 2.3(b) and 2.3(c), Operator shall be under no obligation to provide or perform services hereunder for any Facility for which a Service Fee has not been paid in full within thirty (30) days of invoice.

(b) If the Owner disputes any amount shown in an invoice issued by the Operator in accordance with Section 2.3(a): (i) the Owner must pay the undisputed portion of the invoice amount within the time prescribed by Section 2.3(a), and (ii) liability for the disputed portion of that invoice will be determined in accordance with the dispute resolution procedure set out in Section 9.5.

(c) Any disputed portion of an invoiced amount which was not paid under Section 2.3(c) and is determined as being due to the Operator in accordance with the dispute resolution procedure set out in Section 9.5 must be paid by the Owner within ten (10) days of the determination of the dispute in accordance with the procedure set out in Section 9.5 plus interest calculated in accordance with Section 2.3(a).

(d) In connection with Facility Services for the BOF, Operator shall provide all required labor and all required spare parts at Operator’s cost.

(e) Any payment of moneys under this Section 2.3 is not: (i) evidence of the value of the Facility Services or that the Facility Services have been satisfactorily carried out in accordance with the Agreement, or (ii) an admission of liability, or (iii) approval by the Owner of the Operator’s performance or compliance with the Agreement, but is only to be taken as payment on account.

Section 2.4 Facility Service Warranty. During the Warranty Period, Operator shall perform the services to the Bloom Systems and the BOF necessary for the Portfolio to perform to the Warranty Specifications and the Performance Standards and the BOF will not cause the Portfolio to fail to perform in accordance with the Warranty Specifications (the “Facility Service Warranty”). In the event that Owner desires Operator to service the Bloom Systems and the BOF beyond the Warranty Period, the rate for such time-based services will be quoted by Operator to Owner quarterly for the following quarter, and materials will be invoiced at the retail prices for such materials.

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Section 2.5 Facility Service Warranty Claims.

(a) If Owner desires to make a Facility Service Warranty claim during the Warranty Period, Owner must notify Operator of the defect or other basis for the claim in writing.

(b) In the case of a claim relating to the Quarterly Capacity Warranty or the Efficiency Warranty, then in addition to, and separate from any other right of the Owner pursuant to this Section 2.5, upon receipt of a notice under this Section 2.5(b), Operator (or its designated subcontractor) or the Service Provider (or its designated subcontractor) will promptly (and in any event no later than 90 days following the last day of the quarterly or monthly period, as applicable, to which such claim relates) repair or replace, in Operator’s sole discretion, any Bloom System(s) or any portion of the BOF whose repair or replacement is required in order for the applicable Facility to perform consistent with the Quarterly Capacity Warranty or the Efficiency Warranty, as applicable, provided that any such repair or replacement shall not be expected by Operator to cause any loss of current or future value, remaining useful life or utility of any part of the Bloom System or BOF, as applicable, repaired or replaced below the then current or expected future value, the remaining useful life or utility thereof immediately prior to such repair or replacement (assuming the Bloom System or BOF part, as applicable, was then in the condition when first constructed, normal wear and tear excepted and excepting any loss of value associated with the period of repair or replacement).

(c) Operator may use refurbished parts in such repair or replacement activities described in this Article 2; provided that (i) any such refurbished parts will have passed the same inspections and tests performed by Operator on its new parts of the same type before such refurbished parts are used in any repair or replacement, and (ii) Operator shall within thirty (30) days of a written request therefor by Owner, provide a report for any or all Bloom Systems purchased under the MESPA that lists all components that have been replaced in any individual Bloom System. If repair or replacement is not feasible under Section 2.5 (as determined by Operator in Operator’s sole discretion) and Operator notifies Owner to such effect, Owner may require and, if so required, the Operator will repurchase the Bloom System on an AS-IS basis by paying to Owner the Refund Value of any such Bloom System, as calculated as of the date of such refund, notwithstanding Section 7.1, in which case Operator shall take title to such Bloom System upon paying the Refund Value, and such Bloom System shall no longer constitute a portion of the Portfolio. Operator shall make such determination as to the feasibility of repair or replacement as promptly as practicable, but in any event within 90 days after Operator’s receipt of notice of the claim unless the specific nature of the problem requires a longer period in which to make such determination (in which case the Operator must make a determination within a reasonable time) provided such longer period for a determination does not cause any breach of a PPA. In the event that Operator has not completed the repair or replacement of the Bloom System whose repair or replacement is required under Section 2.5(b) within ninety (90) days of the end of the calendar month in which Operator received notice of a claim (or within one hundred twenty (120) days if the specific nature of the problem required a period longer than ninety (90) days in which to determine the feasibility of repair or replacement) or repurchased the Bloom System as contemplated in this Section 2.5(c) in the time period in this Section 2.5(c), then Owner has the right to require the Operator (in which case the Operator agrees) to procure return of the Bloom System(s) in question to Operator (at Operator’s cost) and Operator will refund to Owner the Refund Value of such Bloom System, in which case Operator shall be

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deemed to have taken title to such Bloom Systems upon payment of the Refund Value and such Bloom Systems shall be deemed to no longer constitute a portion of the Portfolio and shall be removed as described in the previous sentence. If a Bloom System will be removed pursuant to this Section 2.5(c), Operator shall at its sole cost and expense remove the Bloom System and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable Site Lease) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections in the manner required by all Legal Requirements and the applicable Site Lease. The rights and obligations of the Parties under this Section 2.5(c) are in addition to and separate from any other rights of the Owner under this Section 2.5.

(d) In the case of a claim relating to the Capacity Warranty for a One-Year Capacity Warranty Period or a Quarterly Capacity Warranty Period, upon receipt of such notice at a time when such Capacity Warranty is applicable and verification that such One-Year Capacity Warranty or a Quarterly Capacity Warranty is applicable, in addition to and separate from the Operator’s obligations under Sections 2.5(b) and (c) in respect of the Quarterly Capacity Warranty:

(i) Operator shall make a payment to Owner in an amount to be calculated pursuant to Section 2.6 within twenty (20) Business Days after such a notice having been given; provided that the cumulative aggregate amount of Operator’s liability shall not exceed:

(1) for all claims under this Section 2.5(d) relating to the Quarterly Capacity Warranty, [***] ([***]) of the aggregate Purchase Price of all Bloom Systems in the Portfolio during the applicable period (inclusive of any amounts paid or for which a pending claim has been made under the Quarterly Capacity Warranty under the MESPA) (“Quarterly Warranty Cap”); and

(2) for all claims relating to the One-Year Capacity Warranty, [***] ([***]) of the aggregate Purchase Price of all Bloom Systems in the Portfolio during the applicable period (inclusive of any amounts paid or for which a pending claim has been made under the One-Year Capacity Warranty under the MESPA) (“One-Year Warranty Cap”).

For the avoidance of doubt:

(3) the Quarterly Warranty Cap and One-Year Warranty Cap are separate caps and if the Operator’s liability is limited by the operation of one of the caps, the Operator’s liability for claims under this Section 2.5(d) to which the other cap applies are not affected;

(4) claims under Section 2.5(d) are intended to compensate for the Owner’s revenue losses and accordingly claims and payments made under Section 2.8 are not subject to the Quarterly Warranty Cap or One-Year Warranty Cap or count against such caps; and

(5) the Quarterly Warranty Cap and One-Year Warranty Cap do not apply where the Operator is required to repair or replace the Bloom Systems or pay the Refund Value and other amounts incurred to remove the Bloom Systems and ancillary equipment as set out in Sections 2.5(b) or (c) or this Section 2.5(d).

[***] Confidential Treatment Requested 16

(ii) Operator or Owner may offset any amounts owed to it under this Agreement against any payments required to be made by it under this Agreement, the MESPA or Administrative Services Agreement. Any remaining amount owed by Operator to Owner after such offset shall be due and payable in cash, such payment to be paid no later than the third Business Day of the Calendar Quarter immediately following the Calendar Quarter with respect to which such payment arose.

(iii) In the event that Operator has failed to make such cash payment within thirty (30) days after receipt of a claim that is undisputed or resolved against Operator, Owner may elect to require the Operator (in which case Operator agrees) to procure return to Operator of a sufficient number of the Bloom Systems that have failed to meet the Capacity Warranty in the applicable Capacity Warranty Period (“Underperforming Systems”) such that the remainder of the Portfolio would have satisfied such Capacity Warranty had such returned Underperforming Systems been excluded from the calculation for such Calendar Quarter. With respect to each such returned Underperforming System, Operator shall immediately refund to Owner the Refund Value of such Underperforming System, and shall promptly remove such returned Underperforming System from the applicable Site and be deemed to have taken title to such Underperforming System upon payment of the Refund Value and the returned Underperforming Systems shall be deemed to no longer constitute a portion of the Portfolio.

(iv) If a Bloom System will be removed pursuant to this Section 2.5(d), Operator shall at its sole cost and expense remove the Bloom System and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable Site Lease) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections in the manner required by all Legal Requirements and the applicable Site Lease. For the avoidance of doubt, Owner’s return of Underperforming Systems pursuant to this Section 2.5(d) shall not relieve Operator of its obligation to pay to Owner, or decrease the amount of, the Capacity Warranty payment set forth in this Section 2.5(d) as calculated pursuant to Section 2.6.

Section 2.6 Capacity Warranty. During the Warranty Period, Operator shall determine (i) within ten (10) Business Days after the end of each Calendar Quarter, whether each Facility that has achieved Commencement of Operations has delivered to the applicable Interconnection Point the Minimum kWh during such Capacity Warranty Period and (ii) within ten (10) Business Days after the end of each calendar year, whether the Portfolio has delivered to the applicable Interconnection Points the Minimum kWh during such Capacity Warranty Period (the warranty provided in clause (i), the “Quarterly Capacity Warranty”, and the warranty provided in clause (ii), the “One-Year Capacity Warranty”, and such warranties, collectively, the “Capacity Warranty”). If a Capacity Warranty calculation indicates that the Actual kWh of the applicable Bloom Systems was less than the Minimum kWh during such Capacity Warranty Period, then Operator shall so notify Owner in writing of the basis of its determination and Owner may make a claim under Section 2.5 and, upon the making of such claim, Operator shall be required to make a payment under Section 2.5 to Owner and calculated as indicated in Appendix B based on the average tolling rate of the applicable Fleet during the Capacity Warranty Period in order to

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compensate for the Owner’s loss of revenue resulting from the failure of the Bloom Systems to achieve the Minimum kWh. For the purposes of avoiding double counting of any kWh shortfalls in calculating Capacity Warranty payments, a claim made in respect of the One-Year Capacity Warranty for a calendar year will be reduced by the total amount paid by the Operator in respect of claims under the Quarterly Capacity Warranty for the Calendar Quarters in that calendar year. If the Operator fails to perform any Capacity Warranty calculation within the periods required by this Section 2.6, the Owner may perform its own calculations and may make a claim under Section 2.5. Example calculations of the amount to be paid by Operator to Owner in respect of a claim in respect of either Capacity Warranty are set out in Appendix B.

Section 2.7 Efficiency Warranty. During the Warranty Period, Operator shall determine for each full calendar month (the “Efficiency Warranty Period”) within five (5) Business Days after the end of such month whether each Facility that has achieved Commencement of Operations has performed at not less than the Minimum Efficiency Level (the “Efficiency Warranty”). If the Minimum Efficiency Level has not been met during such Efficiency Warranty Period, then Operator shall so notify Owner in writing of the basis of its determination and Owner may make a claim under Section 2.5. If the Operator fails to perform any Efficiency Warranty calculation within the periods required by this Section 2.7, the Owner may perform its own calculations and may make a claim under Section 2.5.

Section 2.8 Indemnification Regarding Performance Under PPAs. Without in any way limiting and in addition to Owner’s remedies pursuant to Section 2.4 to Section 2.7 inclusive, in the event that Owner incurs any liability to a PPA Customer, whether to reimburse, credit or pay it any amount or otherwise in relation to any performance guarantee, power performance shortfall or any efficiency warranty or cost excess, including pursuant to Sections 5.2(b) or 6.7 of the Wal-Mart PPA or Sections 3.4 or 12.1(a)(iii) of the AT&T PPA (collectively, the “PPA Warranties”), Operator shall indemnify and hold Owner harmless for any such liability, costs and expenses incurred by Owner pursuant to the Wal-Mart PPA and AT&T PPA for such liabilities described above. In the event either PPA is terminated with respect to any Bloom System as a result of an Operator failure to meet the Warranty Specifications or the PPA Warranties, then (i) Owner shall have the right to require and the Operator agrees to repurchase the affected Bloom Systems in the manner contemplated in Section 2.5(c) and (ii) Operator shall indemnify and hold Owner harmless for any amount the Owner is liable to a PPA Customer in connection with such termination. For the avoidance of doubt, claims, credits, reimbursements and any other payments made under this Section 2.8 are not subject to the Quarterly Warranty Cap or One-Year Warranty Cap or count against such caps. Operator shall make any payment owed to Owner in respect of the PPA Warranties under this Section 2.8 prior to or concurrently with Owner’s corresponding payment to a PPA Customer.

Section 2.9 Exclusions. The Facility Service Warranty shall not cover any obligations on the part of Operator to the extent caused by or arising from (a) the Bloom Systems or BOF being affected by vandalism or other third-party’s actions or omissions occurring after Commencement of Operations (other than to the extent that Operator, Operator’s Affiliate, the Service Provider or a subcontractor acting as operator under this Agreement fails to properly protect the Bloom Systems and was required to do so under the Transaction Documents), (b) any failure relating to gas quality or supply in relation to which the Owner is satisfactorily compensated by the applicable PPA Customer under a PPA or by Operator under Section 2.8 or

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2.19; (c) Owner’s (as opposed to Operator, Operator’s Affiliate, the Service Provider or a subcontractor thereof acting as operator under this Agreement), or a PPA Customer’s (in which case the provisions of Article 3B apply) removal of any safety devices, (d) any conditions caused by unforeseeable movement in the environment in which the Bloom Systems are installed (provided that normal soil settlement, shifting, subsidence or cracking will not constitute ‘unforeseeable movement’), (e) accidents, abuse, neglect, improper third party testing (unless caused by Operator, Operator’s Affiliate, the Service Provider or a subcontractor thereof acting as operator under this Agreement) or Force Majeure Events, or (f) installation, operation, repair or modification of the Bloom Systems or BOF by anyone other than Operator or Operator’s authorized agents. OPERATOR SHALL HAVE NO OBLIGATION UNDER THE FACILITY SERVICE WARRANTY AND MAKES NO REPRESENTATION AS TO BLOOM SYSTEMS OR BOF WHICH HAVE BEEN OPENED OR MODIFIED BY OWNER OR ANYONE OTHER THAN OPERATOR, OPERATOR’S AFFILIATE, THE SERVICE PROVIDER OR SUBCONTRACTOR, ACTING AS OPERATOR UNDER THIS AGREEMENT, ANY PERSON ACTING AS AN OPERATOR UNDER THIS AGREEMENT (OR ANY SUCCESSOR AGREEMENT TO THIS AGREEMENT) OR ANY OF SUCH PERSON’S REPRESENTATIVES, IN EACH CASE TO THE EXTENT OF ANY DAMAGE OR OTHER NEGATIVE CONSEQUENCE OF SUCH OPENING OR MODIFICATION.

Section 2.10 No Duplication of Terms. Notwithstanding anything to the contrary in this Agreement, to the extent that all or any portion of the Facility Service Warranty and the indemnity provided in Section 2.8 or any other warranty, guarantee or indemnification provision set forth herein is duplicative of any warranty, guarantee or indemnification coverage provided under the MESPA, the Parties acknowledge and agree that Owner shall be entitled to make only a single claim under either this Agreement or the MESPA, as applicable, and that limitations of liability set forth in each such agreement are to be calculated on an aggregate basis taking into account all claims for indemnification, warranty or otherwise (if any) made under this Agreement and the MESPA. No payment or performance obligation shall be due from Operator under the Facility Service Warranty or the indemnity provided in Section 2.8 to the extent such payment or performance is received from, or is the subject of a claim accepted and approved by, an insurance provider or other third parties. In the event that Operator has paid an amount under the Facility Service Warranty that relates to an event in respect of which Owner subsequently also receives an amount from an insurance provider or other third party, Operator is entitled to a refund of the duplicative amount.

Section 2.11 Title. Title to all items, parts, materials and equipment supplied under or pursuant to this Agreement to Owner shall transfer to Owner upon the earlier of: (i) payment by the Owner in respect of such items, parts, materials and equipment, or (ii) installation or inclusion in a Facility.

Section 2.12 Record-Keeping Documentation.

(a) Operator shall ensure that operation, service and maintenance records concerning Operator’s activities hereunder are properly created and maintained at all times during the Term. Such records shall include, but not be limited to, the following:

(i) a separate “Maintenance Specification Log” for each Bloom System in a

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paper or electronic format (with entries made for each inspection, including any discrepancies found during such inspection), a copy of which shall be submitted, in paper or electronic format, to Owner along with the corresponding Annual Reports;

(ii) a Site service report completed in respect of each inspection, repair, replacement, service or other activity or observation made by Operator in connection with its responsibilities hereunder, detailing the nature of the problems detected and the specifics of the problem resolution and submitted to Owner within ten (10) Business Days of the date when a service technician is dispatched to the Site in response to a Bloom System or BOF fault or routine inspection or service; and

(iii) an annual report submitted to Owner within forty-five (45) Business Days after the end of each calendar year (“Annual Report”) containing sufficient information, detail and documentation as may be requested by Owner relating to the operating performance of the Bloom System for the preceding calendar year.

(b) All such records required to be created and maintained pursuant to Section 2.12(a) shall be kept available at the Operator’s office and made available for the Owner’s inspection upon request at all reasonable times. Any documentation prepared by Operator during the Term for the purposes of this Agreement, excluding the Training Materials, shall be directly prepared for Owner’s benefit and immediately become Owner’s property. Any such documentation shall be stored by Operator on behalf of Owner until its final delivery to Owner. Operator may retain a copy of all records related to each Facility in order to comply with its obligations under this Agreement.

Section 2.13 Remote Monitoring. For purposes of determining when repair services are necessary, Operator shall monitor and evaluate the information gathered through remote monitoring of each Facility as well as the maintenance and inspection Site visits.

Section 2.14 Permits.

(a) Operator shall be responsible, at its sole cost and expense, for obtaining, maintaining and complying with all Permits required to perform the Facility Services under this Agreement.

(b) Owner agrees to cooperate with and assist Operator in obtaining all Permits.

Section 2.15 Performance Standards. For the purpose of this Agreement, the Operator shall perform under this Agreement in accordance and consistent with each of the following (unless the context requires otherwise): (A) plans and specifications subject to Permits under applicable law and applicable to each Facility; (B) the manufacturer’s recommendations with respect to all equipment and all maintenance and operating manuals or service agreements, whenever furnished or entered into, including any subsequent amendments or replacements thereof, issued by the manufacturer, provided they are consistent with generally accepted practices in the fuel cell industry; (C) the requirements of all applicable insurance policies; (D) preserving all rights to any incentive payments, warranties, indemnities or other rights or remedies, and enforcing or assisting with the enforcement of the applicable warranties, making or assisting in making all claims with respect to all insurance policies; (E) all Legal

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Requirements and Permits/Governmental Approvals; (F) any applicable provisions of the Site Leases, including any landlord rules and regulations; (G) Prudent Electrical Practices; and (H) the relevant provisions of the MESPA, each Interconnection Agreement and each PPA (collectively, the “Performance Standards”); provided, however, that meeting these requirements shall not relieve Operator of its other obligations under this Agreement.

Section 2.16 Rights to Deliverables. Owner agrees that Operator shall, except as expressly set forth herein, retain all rights, title and interest, including Intellectual Property rights, in any Training Materials provided to Owner in connection with the services performed hereunder. Operator grants to Owner the limited right to use for the Bloom Systems, and to sub-license to its agents the right to use for the Bloom Systems, any Training Materials which are provided under this Agreement, and Owner agrees that upon termination of this Agreement for any reason, Owner shall return all Training Materials, including any copies, to Operator, except that the Owner may retain a copy of all Training Materials if needed in order to operate and maintain all Bloom Systems and BOF following termination of this Agreement. Except to the extent required to use the Training Materials in accordance with the terms hereof, Owner will not make copies nor will it permit its employees, contractors, affiliates, or representatives to make copies of any Training Materials without Operator’s prior written consent, such consent not to be unreasonably withheld or delayed. “Training Materials” means any and all materials, documentation, notebooks, forms, diagrams, manuals and other written materials and tangible objects, describing how to operate and maintain the Facilities, including any corrections, improvements and enhancements which are delivered by Operator to Owner, but excluding any data and reports delivered to Owner.

Section 2.17 Appointment of Service Provider. Operator may appoint an unrelated third party, who is appropriately qualified, licensed, and financially responsible, to operate and maintain the Facilities throughout the Term (a “Service Provider”). Operator shall submit such appointment of any Service Provider to Owner for its prior written approval, which approval shall not be unreasonably withheld or delayed. Operator will procure that the Service Provider enters into a direct agreement in reasonably satisfactory form with Owner and/or Owner’s Lender if requested by Owner or Owner’s Lender. No such appointment nor the approval thereof by Owner, however, shall relieve Operator of any liability, obligation, or responsibility under this Agreement.

Section 2.18 PPA Termination and Re-Purchase of Bloom Systems. Subject to Section 4.3, in the event that (i) a PPA Customer terminates a PPA with respect to a Bloom System prior to its expiration, (ii) the applicable PPA Customer pays Owner the termination value due under the applicable PPA, and (iii) Owner has paid all amounts owed by it to Owner’s Lender under the Loan Agreement in respect of the applicable PPA termination, then BE shall be obligated to purchase from Owner, and Owner shall be obligated to sell to BE, the Bloom System for which the PPA is being terminated for a purchase price of $1.00 in consideration of BE hereby agreeing to take all responsibilities to the applicable PPA Customer under the relevant PPA and otherwise for relocating, redeploying and paying the PPA Customer any moneys in relation thereto. BE hereby indemnifies Owner against all claims made by, and liabilities to, the PPA Customer in respect of such Bloom System after such PPA termination. Title to such Bloom System shall transfer to BE upon the date that BE pays the purchase price of $1.00 to Owner.

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Section 2.19 Deemed Delivered Energy.

(a) If, for any reason, other than reasons of a Force Majeure Event or of a curtailment, interruption, or issuance of operational flow orders (OFO) by the delivering pipeline or Local Distribution Company (LDC), Owner does not receive and use the specified input fuel or receive natural gas at the natural gas taps for the Bloom Systems contemplated in the Wal-Mart PPA in amounts, and with quality and pressure, sufficient to permit Owner to generate Energy at the Baseload Capacity for such Bloom Systems multiplied by 95%, or such failure to meet gas delivery requirements causes damage to such Bloom Systems requiring repair or replacement of such Bloom Systems, then Operator shall pay to Owner any lost revenue that Owner would have received under the Wal-Mart PPA for Energy that would have been produced by the Bloom Systems but for the failure to meet the gas delivery requirements for the Bloom Systems (including as a result of damage to the Bloom Systems) (“Deemed Delivered Energy”). Owner shall invoice Operator for amounts due with respect to such Deemed Delivered Energy with respect to each calendar month at the time that Owner invoices, or would have invoiced, Wal-Mart for such month under the Wal-Mart PPA for such Deemed Delivered Energy, and Operator shall pay such invoices within thirty (30) days after receipt of such invoice. If Owner recovers or receives any payment or reimbursement from the gas supplier or other third party in relation to an above-described event for which Operator makes a payment under this Section 2.19(a), then such amounts shall be promptly paid to Operator. In addition, if any Bloom System contemplated in the Wal-Mart PPA is damaged and needs to be repaired or replaced as a result of Owner not receiving and using the specified input fuel, or as a result of the amount, quality or pressure of the natural gas received, Operator shall repair or replace the Bloom System in accordance with Section 2.5(b) as if the damage gave rise to a Facility Service Warranty claim.

(b) In the event (i) Owner is responsible for gas procurement under Section 4.1(b) of the Wal-Mart PPA, and (ii) Owner procures more gas than is consumed by the Bloom Systems under the Wal-Mart PPA, then (A) Operator shall reimburse Owner for any losses Owner incurs in reselling such excess gas to a third party or in the spot market, and (B) Owner shall pay to Operator any profits on any such resale. Amounts due by the Parties under subsections (A) and (B) hereof shall be netted against each other and any remaining amounts shall be payable within five (5) Business Days of the first day of each calendar month.

(c) Operator agrees that as part of SGIP management arrangements contemplated under Section 6.8 of the Wal-Mart PPA and managed by Operator pursuant to this Agreement, Operator will ensure that:

(i) all “SGIP Proceeds” (as defined in the Wal-Mart PPA) assigned to the Owner by Wal-Mart will be deposited directly into the SGIP Proceeds Account;

(ii) each time Owner invoices Wal-Mart under the Wal-Mart PPA, an amount equivalent to the “Forecasted SGIP Credit” under Section 6.8 of the Wal-Mart PPA that is included on such invoice is paid out of the SGIP Proceeds Account into the Revenue Account at least five (5) Business Days prior to the date Wal-Mart must pay such invoice;

(iii) in the event that the SGIP Proceeds Account does not contain sufficient funds for the full amount of the payment under Section 2.19(c)(ii) to be paid into the Revenue Account, Operator will pay any shortfall into the Revenue Account at least five (5) Business Days prior to the date Wal-Mart must pay the relevant invoice;

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(iv) in the event that the balance of the SGIP Proceeds Account at any time after the end of the Availability Period (as defined in the Loan Agreement) exceeds the aggregate “Forecasted SGIP Credits” (under Section 6.8 of the Wal-Mart PPA) remaining to be credited, based on generation of Energy at the Baseload Capacity for the Bloom Systems in the Wal-Mart Fleet multiplied by 96%, during the remaining term of the Wal-Mart PPA, then such excess shall be transferred from the SGIP Proceeds Account in accordance with Section 7.13.3 of the Loan Agreement.

(d) Claims against Operator made under this Section 2.19 will not be subject to the limitations of liability set forth in Article VII. Owner and Operator shall not have any obligations under this Section 2.19 to the extent such parties have satisfied their similar obligations related to Deemed Energy under Section 8.11 of the MESPA.

ARTICLE 3

TERM

Section 3.1 Term. The term of this Agreement (the “Term”) (a) shall commence on the date of the first Facility achieving Commencement of Operations and (b) shall, unless terminated earlier under Section 4.1 of this Agreement or unless extended by mutual agreement of the Parties, terminate on the date that is the last day of the Warranty Period for the last Facility to achieve Commencement of Operations.

ARTICLE 3A

PPA OBLIGATIONS

Section 3A.1 Obligations of Operator Related to PPAs.

(a) Notwithstanding any other provision of this Agreement, it is the intention of the Parties and it is agreed that all of Owner’s obligations under the PPAs that relate to the operation and maintenance of each Facility will be performed by the Operator on behalf of the Owner as separate obligations of the Operator under this Agreement (which obligations are parallel and equivalent to the obligations of the Owner under the PPAs). Accordingly, Operator shall perform those obligations under this Agreement in a manner that is consistent with and enables performance of all such obligations of the Owner under the PPAs.

(b) The Operator shall (i) undertake its obligations in accordance with this Agreement so as to enable Owner to fulfill its obligations under the PPAs that relate to the operation and maintenance of each Facility; and (ii) in performing its obligations under this Agreement, not cause Owner to be in breach of its obligations under the PPAs in relation to the operation and maintenance of each Facility or interfere with, hinder or disrupt Owner’s performance of its obligations under the PPAs.

(c) The Parties acknowledge that other provisions of this Agreement may contain some of the same obligations of Operator as those under this Article 3A.

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Section 3A.2 AT&T PPA. Without affecting the generality of Section 3A.1, Operator shall perform on behalf of Owner all of Owner’s obligations as they relate to the operation and maintenance of each Facility under each of the following clauses of the AT&T PPA:

(a) Section 1.2 – requirements for site layout and modifications for installation, as agreed with AT&T;

(b) Section 1.3(a) – requirement for the Owner to relocate the Bloom Systems to an alternative site;

(c) Section 1.3(c) and (d) – requirements in relation to resale or redeployment of Bloom Systems;

(d) Section 1.4 – requirement for removal of Bloom Systems;

(e) Section 2.3, 5.1 and 5.2 – administration and billing including any SGIP management;

(f) Section 3.2 – metering installation and maintenance obligations;

(g) Sections 3.3 and 4.5 – natural gas interconnection infrastructure obligations;

(h) Section 7.1(a) – health and safety obligations;

(i) Section 12.1(a)(iii) – SGIP and performance warranty;

(j) Section 16.2 – the IP indemnification given by the Owner;

(k) Section 17 – the insurance requirements applicable to the Owner;

(l) Section 18.12 – the prohibition on offshore work;

(m) Section 18.14 – the requirements that apply to entry onto property owned or controlled by AT&T;

(n) Section 18.16 – the plant and work rules requirements that apply while on the premises of AT&T;

(o) Section 18.17 – the method of procedure obligations;

(p) Section 18.18 – Quality Assurance obligations; and

(q) Section 19.1 – on-site services obligations with respect to Owner’s personnel.

Section 3A.3 Wal-Mart PPA. Without affecting the generality of Section 3A.1, Operator shall perform on behalf of Owner all of Owner’s obligations as they relate to the operation and maintenance of each Facility under each of the following clauses of the Wal-Mart PPA:

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(a) Section 2.2 – requirement for the Owner to relocate the systems to an alternative site;

(b) Section 2.3 – requirements in relation to redeployment of Bloom Systems;

(c) Section 2.6 – requirement for removal of Bloom Systems;

(d) Sections 2.7(j) – natural gas interconnection infrastructure obligations;

(e) Section 4 – all system operations obligations, including all emergency response obligations under Section 4.2(b) and metering maintenance obligations under Section 4.3;

(f) Section 5.1(a) – the requirement for Owner to assist Wal-Mart with reselling or exchanging energy;

(g) Section 5.3(a) – Environmental and Tax Attributes and the provision of all renewable energy certificates (“RECs”), registration or certification of RECS, production data and any other information to satisfy reporting requirements whether to Governmental Authorities, registration bodies or otherwise,

(h) Section 6 – Invoicing including any SGIP management;

(i) Sections 7.1(e) – the requisite standards applicable to operation of the Bloom System;

(j) Section 7.1(f) – health and safety obligations;

(k) Section 7.1(h) – the IP infringement covenant given by the Owner;

(l) Section 17.1 – the IP indemnification given by the Owner; and

(m) Section 18 – the insurance requirements applicable to the Owner.

ARTICLE 3B

CORRESPONDING ENTITLEMENTS

Section 3B.1 Definition of Corresponding Entitlements. A “Corresponding Entitlement” is an entitlement, or a claim to an entitlement, of the Operator to the extent:

(a) the Owner has a claim against AT&T or Wal-Mart or an entitlement under an equivalent provision of the AT&T PPA or Wal-Mart PPA, as applicable, based on the same or similar events or circumstances as the Operator’s entitlement or claim; or

(b) the Operator has rights against the Owner under a warranty or indemnity or specific right to compensation, negotiation, reimbursement or recovery and there is a corresponding warranty or indemnity or specific right to compensation, negotiation, reimbursement or recovery (even if expressed in different terms) in the AT&T PPA or Wal-Mart PPA, as applicable, under which the Owner has rights.

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Section 3B.2 Rights in Respect of Corresponding Entitlements.

(a) The Operator will not be entitled to claim or recover from the Owner any amount greater than the compensation, relief or remedy payable or allowable from AT&T or Wal-Mart to the Owner in respect of the Corresponding Entitlement of the Operator.

(b) The Operator must, in relation to any claim by the Operator arising out of or in connection with any Corresponding Entitlement, reasonably cooperate with and assist the Owner in negotiations and dispute resolutions under the AT&T PPA or Wal-Mart PPA, as applicable.

(c) The Owner will pursue claims against AT&T or Wal-Mart (as applicable) which relate to Corresponding Entitlements provided the claim embodied in the Corresponding Entitlement is not frivolous, vexatious or trivial. The Owner may decide not to pursue a genuine Corresponding Entitlement (i.e., one which is not frivolous, vexatious or trivial) of the Operator, if it agrees to pay the Operator a reasonable settlement in relation to that Corresponding Entitlement.

(d) The Operator indemnifies the Owner for the Owner’s costs of pursuing a Corresponding Entitlement including adverse costs awards and judgments or other determinations provided that the Owner will bear such proportion of such costs as may be reasonably attributed to a Owner claim which does not form part of a Corresponding Entitlement.

(e) Subject to Section 3B.2(f) the Operator will accept in full satisfaction of any Corresponding Entitlement the amount agreed by the Owner and AT&T or Wal-Mart, as applicable, (after due and proper consultation with the Operator which shall be undertaken to determine the Operator’s proper entitlements under this Section 3B) or determined under the AT&T PPA or Wal-Mart PPA, as applicable.

(f) If any claim by the Owner under the AT&T PPA or Wal-Mart PPA, as applicable, includes both a claim by the Owner not referable to the Operator and a claim by the Operator under this Agreement and the aggregate amount recoverable from AT&T or Wal-Mart, as applicable, under the AT&T PPA or Wal-Mart PPA, as applicable, (“Recoverable Amount”) is less than the amount claimed by the Owner and the Operator, the Parties will seek to agree to that the proportion of the Recoverable Amount to which they are entitled, and if the Parties fail to so agree, the determination as to the proportion of the Recoverable Amount to which they are each entitled will be referred to dispute resolution under this Agreement and be determined on the basis of what is fair and reasonable having regard to the proportionality principle stated in this Section 3B.2(f).

(g) The Operator will be bound by the outcome of any binding settlement or determination by dispute resolution under the AT&T PPA or Wal-Mart PPA, as applicable, between the Owner and AT&T or Wal-Mart, as applicable, contemplated under and effected in accordance with the mechanism set out in this Section 3B.2.

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ARTICLE 4

TERMINATION

Section 4.1 Default.

(a) Operator Default. Any of the following shall constitute an “Operator Default”:

(i) If Operator: (a) admits in writing its inability to pay its debts generally as they become due; (b) files a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other applicable law or statute of the United States of America or any State, district or territory thereof; (c) makes an assignment for the benefit of creditors; (d) consents to the appointment of a receiver of the whole or any substantial part of its assets; (e) has a petition in bankruptcy filed against it, and such petition is not dismissed within sixty (60) days after the filing thereof; or if (f) a court of competent jurisdiction enters an order, judgment, or decree appointing a receiver of the whole or any substantial part of Operator’s assets, and such order, judgment or decree is not vacated or set aside or stayed within sixty (60) days from the date of entry thereof; or (g) under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the whole or any substantial part of Operator’s assets and such custody or control is not terminated or stayed within sixty (60) days from the date of assumption of such custody or control;

(ii) unless due to a Force Majeure Event, the failure of Operator to perform or cause to be performed any other obligation required to be performed by Operator under this Agreement, or the failure of any representation and warranty set forth herein to be true and correct in all material respects as and when made; provided, however, that if such failure by its nature can be cured, then Operator shall have a period of thirty (30) days after receipt of written notice of such failure to cure the same and a Operator Default shall not be deemed to exist during such period; provided, further, that if Operator commences to cure such failure during such period and is diligently and in good faith attempting to effect such cure, said period shall be extended for sixty (60) additional days;

(iii) the failure of Operator to pay any amounts owing to Owner on or before the day following the date on which such amounts are due and payable under the terms of this Agreement and Operator’s failure to cure each such failure within five (5) Business Days after Operator receives written notice from Owner of each such failure; or

(iv) a Force Majeure Event occurs which prevents Operator from performing its material obligations under this Agreement for a continuous period of at least one hundred eighty (180) days and Owner reasonably concludes such prevention is not reasonably likely to be remedied within a further period of one hundred eighty (180) days.

(b) Owner Default. Any of the following shall constitute an “Owner Default”:

(i) The failure of Owner to pay any amounts owing to Operator on or before the day following the date on which such amounts are due and payable under the terms of this Agreement and Owner’s failure to cure each such failure within five (5) Business Days after Owner receives written notice from Operator of each such failure; or

(ii) unless due to a Force Majeure Event, the failure of Owner to perform or cause to be performed any other obligation required to be performed by Owner under this Agreement, or the failure of any representation and warranty set forth herein to be true and

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correct in all material respects as and when made; provided, however, that if such failure by its nature can be cured, then Owner shall have a period of thirty (30) days after receipt of written notice of such failure to cure the same and an Owner Default shall not be deemed to exist during such period; provided, further, that if Owner commences to cure such failure during such period and is diligently and in good faith attempting to effect such cure, said period shall be extended for sixty (60) additional days.

(c) Owner’s Remedies Upon Occurrence of a Operator Default. If an Operator Default has occurred under Section 4.1(a)(i), Owner may terminate this Agreement by written notice, and assert all rights and remedies available to Owner under Legal Requirements subject to the limitations of liability set forth in Section 7.1. If an Operator Default has occurred under Section 4.1(a)(ii) or (a)(iii), Owner may terminate this Agreement only with respect to those Bloom Systems for which such Operator Default has occurred and remains uncured, by written notice, and (i) assert all rights and remedies available to Owner under Legal Requirements (other than the termination or suspension of this Agreement in its entirety, except where ten (10) or more Bloom Systems are involved), subject to the limitations of liability set forth in Section 7.1 or (ii) require the Operator and, if so required, Operator shall repurchase the relevant Bloom Systems in respect of which this Agreement is being terminated from the Owner on an AS IS basis by paying the Refund Value of any such Bloom System, calculated as of the date of such refund, in which case Operator shall take title to such Bloom System upon paying the Refund Value, and such Bloom System shall no longer constitute a portion of the Portfolio. If a Bloom System will be removed pursuant to this Section 4.1(c), Operator shall at its sole cost and expense remove the Bloom System and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable Site Lease) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections in the manner required by all Legal Requirements and the applicable Site Lease.

(d) Operator’s Remedies Upon Owner Default. If an Owner Default has occurred under Section 4.1(b)(i) or (b)(ii), Operator may terminate this Agreement only with respect to those Bloom Systems for which such Owner Default has occurred and remains uncured (unless such Owner Default is an Owner Default under Section 4.1(b)(i) and has occurred and remains uncured with respect to ten (10) or more Bloom Systems, in which case Operator may terminate this Agreement with respect to all Bloom Systems) by written notice, and assert all rights and remedies available to Operator under Legal Requirements with respect to those Bloom Systems for which an Owner Default has occurred (other than the termination or suspension of this Agreement in its entirety, except where ten (10) of more Bloom Systems are involved), subject to the limitations of liability set forth in Section 7.1.

(e) Preservation of Rights. Termination of this Agreement shall not affect any rights or obligations as between the Parties which may have accrued prior to such termination or which expressly or by implication are intended to survive termination whether resulting from the event giving rise to termination or otherwise.

Section 4.2 Termination of Warranties. Operator shall be under no obligation for any Facility Service Warranty, Efficiency Warranty or Capacity Warranty for a Bloom System during any period for which such Bloom System’s Service Fees have not been paid in full and

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are not currently subject to dispute pursuant to Section 2.3(c) or Section 2.3(b); provided, that all cure periods, with respect to payment of such Service Fees afforded to Owner, any Affiliate of Owner or Owner’s Lender pursuant to any agreement between any such party and Operator or any Affiliate of Operator, have lapsed.

Section 4.3 Termination of PPAs.

(a) In the event that a PPA is terminated with respect to a Bloom System, this Agreement is terminated with respect to that Bloom System and any amounts payable to Operator in respect of such Bloom Systems after the date of termination shall cease to be payable.

(b) In the event that the termination of this Agreement under Section 4.3(a) results from the default of Operator under this Agreement, Operator shall repurchase the relevant Bloom Systems in respect of which this Agreement is being terminated from the Owner on an AS IS basis by paying the Refund Value of any such Bloom System, calculated as of the date of such refund, in which case BE shall take title to such Bloom System upon paying the Refund Value, and such Bloom System shall no longer constitute a portion of the Portfolio. If a Bloom System will be removed pursuant to this Section 4.3, Operator shall at its sole cost and expense remove (or cause the removal of) the Bloom System and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable Site Lease) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections in the manner required by all Legal Requirements and the applicable Site Lease.

ARTICLE 5

DATA ACCESS

Section 5.1 Access to Data and Meters. Throughout the Term, and thereafter to the extent relevant to calculations necessary for periods prior to the end of the Term and subject to any confidentiality obligation owed to any third party and/or any restrictions on the disclosure of information which may be subject to intellectual property rights restricting disclosure:

(a) Owner shall grant Operator access to all data relating to the electricity production of each Bloom System, it being understood that it is Operator’s responsibility to determine the performance of the Bloom System, and any other calculations as required under this Agreement, and that it is Owner’s responsibility to handle all accounting and invoicing activities; and

(b) Owner shall allow Operator access to all data from all Facility Meters.

Operator shall be entitled to use the foregoing data for its internal purposes and make such data available to third parties for analysis, in each case consistent with Legal Requirements.

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ARTICLE 6

INDEMNITY

Section 6.1 Indemnification of Operator by Owner. Owner shall indemnify, defend and hold harmless Operator, its officers, directors, employees, shareholders, Affiliates and agents (each, a “Operator Indemnitee”) from and against any and all Indemnifiable Losses asserted against or suffered by any Operator Indemnitee arising out of any Third Party Claims against a Operator Indemnitee to the extent arising out of or in connection with (i) Owner’s breach of its representations, warranties or covenants in this Agreement, (ii) the negligent or intentional acts or omissions of Owner or its subcontractors, agents or employees or others under Owner’s control, (iii) a breach by Owner of its obligations hereunder or (iv) operation of Bloom Systems by any party other than Operator or an Affiliate or subcontractor of Operator (but subject to Operator’s warranties, covenants and indemnities under this Agreement and any other Transaction Document to which Operator is a party), provided that Owner shall have no obligation to indemnify Operator to the extent caused by or arising out of any negligence, fraud or willful misconduct of any Operator Indemnitee or the breach by Operator or any Operator Indemnitee of its covenants and warranties under this Agreement or any other Transaction Document.

Section 6.2 Indemnification of Owner by Operator.

(a) Operator shall indemnify, defend and hold harmless Owner, its members, managers, officers, directors, employees, Affiliates and agents (each, an “Owner Indemnitee”) from and against any and all Indemnifiable Losses asserted against or suffered by any Owner Indemnitee arising out of any Third Party Claims against an Owner Indemnitee to the extent arising out of or in connection with (i) Operator’s breach of its representations, warranties or covenants in this Agreement, (ii) the negligent or intentional acts or omissions of Operator or its subcontractors, agents or employees or others under Operator’s control or (iii) a breach by Operator of its obligations hereunder; provided that Operator shall have no obligation to indemnify Owner to the extent caused by or arising out of any negligence, fraud or willful misconduct of any Owner Indemnitee, the breach by Owner or any Owner Indemnitee of its covenants and warranties under this Agreement or the inability to utilize any tax benefits.

(b) Except as otherwise set forth in this Agreement, in the event that Owner incurs any liability, cost, loss or expense to a PPA Customer (including relating to a breach of a PPA) in relation to the repurchase by or return to Operator of any Bloom System under this Agreement, Operator shall indemnify and hold Owner harmless for any such liability, cost, loss or expense incurred by Owner.

Section 6.3 Indemnity Claims Procedure. If any indemnifiable claim is brought against a Party (the “Indemnified Party”), then the other Party (the “Indemnifying Party”) shall be entitled to participate in, and, unless in the reasonable opinion of counsel for the Indemnifying Party a conflict of interest between the Parties may exist with respect to such claim, assume the defense of such claim, with counsel reasonably acceptable to the Indemnifying Party. If the Indemnifying Party does not assume the defense of the Indemnified Party, or if a conflict precludes the Indemnifying Party from assuming the defense, then the Indemnifying Party shall reimburse the Indemnified Party on a monthly basis for the Indemnified Party’s reasonable defense expenses through separate counsel of the Indemnified Party’s choice. Even if the Indemnifying Party assumes the defense of the Indemnified Party with acceptable counsel, the Indemnifying Party, at its sole option, may participate in the defense, at its own expense, with counsel of its own choice without relieving the Indemnifying Party of any of its obligations hereunder.

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Section 6.4 No Duplication of Claims. Notwithstanding anything to the contrary in this Agreement, the Parties acknowledge and agree that no claiming or indemnified party shall be entitled to a double recovery under the indemnification provisions of this Agreement and the indemnification provisions of the MESPA.

Section 6.5 Waiver. Each Party hereby waives any claim under Article 6 irrespective of the legal theory under which it is brought to the extent such claim is covered by the insurance of the claiming Party.

ARTICLE 7

LIMITATIONS ON LIABILITY

Section 7.1 Aggregate Limit of Liability.

(a) Notwithstanding anything to the contrary in this Agreement, in no event shall a Party be liable to the other Party for an aggregate amount in excess of the Maximum Liability; provided that such limitation of liability shall not apply to any liability that is the result of (i) gross negligence, fraud, willful default or willful misconduct of a Party or that Party’s employees, agents, subcontractors (except that for the purposes of this provision, the Operator and its employees, agents and subcontractors will not be deemed to be employees, agents or subcontractors of the Owner), (ii) a Third Party Claim, (iii) the failure to pay the Service Fees (which amount shall not be included in calculating Owner’s Maximum Liability), (iv) a claim with respect to injury to or death of any person, (v) the Operator’s abandonment to the extent constituting a repudiation of this Agreement in respect of all or any part of the Bloom Systems or BOF, or (vi) events or circumstances in respect of which insurance proceeds are available or that would have been available but for a failure by the Operator to maintain, or comply with the terms of, insurance that it is required to obtain and maintain under this Agreement, and any amounts so received will not be included when calculating the Operator’s Maximum Liability. Subject always to the Maximum Liability limitations set forth in the preceding sentence, except for damages or amounts specifically provided for in this Agreement or in connection with the indemnification for damages awarded to a third party under a Third Party Claim, damages hereunder are limited to direct damages, and in no event shall a Party be liable to the other Party, and the Parties hereby waive claims, for (a) indirect, punitive, special or consequential damages or loss of profits; provided, however, that the loss of profits language set forth in this Section 7.1 shall not be interpreted to exclude from Indemnifiable Losses any claim, demand, suit, loss, liability, damage, obligation, payment, cost or expense (including the cost and expense of any action, suit, proceeding, assessment, judgment, settlement or compromise relating thereto and reasonable attorneys’ fees and reasonable disbursements in connection therewith) that would otherwise be included in the definition of Indemnifiable Losses because they result from a reduction in the profits of Owner or interest, cost or expense payable by Owner to the Owner’s Lender and (b) losses or liabilities incurred by the officers, directors, members, managers, partners, shareholders or Affiliates of such Party (unless on behalf of Owner).

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(b) Notwithstanding anything to the contrary provided herein, in no event shall Operator be liable under this Agreement (including with respect to its obligations related to the Facility Service Warranty, the Capacity Warranty or Warranty Specifications) for (i) any failure of or damage to the Bloom Systems or (ii) any obligations on the part of Operator (including internal rate of return or other financial metrics or any obligations to deliver power to Owner or service the Bloom Systems) to the extent caused by or arising from (A) the Bloom Systems or BOF being affected by vandalism or other third-party’s actions or omissions occurring after Commencement of Operations (other than to the extent that Operator, Operator’s Affiliate, the Service Provider or subcontractor acting as operator under this Agreement fails to properly protect the Bloom Systems and was required to do so under the Transaction Documents), (B) any failure relating to gas quality or supply in relation to which the Owner is satisfactorily compensated by the applicable PPA Customer under a PPA or by Operator under Section 2.8 or 2.19; (C) Owner’s (as opposed to Operator, Operator’s Affiliate, the Service Provider or a subcontractor thereof acting as operator under this Agreement) or a PPA Customer’s (in which case the provisions of Article 3B apply) removal of any safety devices, (D) any conditions caused by unforseeable movement in the environment in which the Bloom Systems are installed (provided that normal soil settlement, shifting, subsidence or cracking will not constitute ‘unforseeable movement’), (E) accidents, abuse, neglect, or improper third party testing (unless caused by Operator, Operator’s Affiliate, the Service Provider or a subcontractor thereof acting as operator under this Agreement), (F) Force Majeure Events, (G) installation, operation, repair or modification of the Bloom Systems or BOF by anyone other than Operator or Operator’s authorized agents, OPERATOR SHALL HAVE NO OBLIGATION UNDER THE WARRANTY SPECIFICATIONS, MAKES NO REPRESENTATION AS TO, AND SHALL NOT BE RESPONSIBLE FOR DAMAGE TO, BLOOM SYSTEMS OR BOF WHICH HAVE BEEN OPENED OR MODIFIED BY OWNER OR ANYONE OTHER THAN OPERATOR, OPERATOR’S AFFILIATE, THE SERVICE PROVIDER OR SUBCONTRACTOR, ACTING AS OPERATOR UNDER THIS AGREEMENT, ANY PERSON ACTING AS AN OPERATOR UNDER THIS AGREEMENT (OR ANY SUCCESSOR AGREEMENT TO THIS AGREEMENT) OR ANY OF SUCH PERSON’S REPRESENTATIVES IN EACH CASE TO THE EXTENT OF ANY DAMAGE OR OTHER NEGATIVE CONSEQUENCE OF SUCH OPENING OR MODIFICATION. Except for Owner’s payment of money to Operator, and subject to Section 9.19 hereof, neither Party shall be liable under any circumstance, nor be deemed to be in breach of this Agreement, for any delay or failure in performance or interruption of service resulting from any Force Majeure Event.

Section 7.2 No Duplication of Claims. Notwithstanding anything to the contrary in this Agreement, the Parties acknowledge and agree that the limitations of liability set forth in this Agreement and the MESPA are to be calculated on an aggregate basis taking into account all claims (if any) made under this Agreement and the MESPA.

Section 7.3 Survival. The Parties’ respective rights and obligations under Sections 2.8, 2.10, 2.18, 3B.1, 3B.2, 9.3, 9.5, 9.6 and 9.18, and Articles 6 and 7 shall survive any total or partial termination of this Agreement.

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ARTICLE 8

REPRESENTATIONS AND WARRANTIES

Section 8.1 Representations and Warranties of Owner. Owner represents and warrants to Operator as of the date of the Agreement as follows:

(a) Organization. Owner is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware and has all requisite limited liability company power and authority to own, lease, and operate its business as currently conducted.

(b) Authority. Owner has full limited liability company power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery by Owner of this Agreement and the consummation by Owner of the transactions contemplated hereby have been duly and validly authorized by all necessary limited liability company action required on the part of Owner and this Agreement has been duly and validly executed and delivered by Owner. This Agreement constitutes the legal, valid and binding agreement of Owner, enforceable against Owner in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).

(c) Consents and Approvals; No Violation. Neither the execution, delivery and performance by Owner of this Agreement nor the consummation by Owner of the transactions contemplated hereby will (i) conflict with or result in any breach of any provision of the Certificate of Formation or the limited liability company agreement of Owner, or (ii) result in a default (or give rise to any right of termination, cancellation or acceleration) under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, material agreement or other instrument or obligation to which Owner is a party or by which any of its assets are bound, except for such defaults (or rights of termination, cancellation or acceleration) as to which requisite waivers or consents have been obtained or (iii) constitute violations of any law, regulation, order, judgment or decree applicable to Owner, which violations, individually or in the aggregate, would result in a material adverse effect on Owner or its ability to perform its obligations hereunder.

(d) Legal Proceedings. There are no pending or, to Owner’s knowledge, threatened claims, disputes, governmental investigations, suits, actions (including non-judicial real or personal property foreclosure actions), arbitrations, legal, administrative or other proceedings of any nature, domestic or foreign, criminal or civil, at law or in equity, by or against Owner which challenges the enforceability of this Agreement or the ability of Owner to consummate the transactions contemplated hereby, in each case, that could reasonably be expected to result in a material adverse effect on Owner or its ability to perform its obligations hereunder.

(e) DISCLAIMERS. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 8.1 AND THE OTHER TRANSACTION DOCUMENTS, OWNER EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT.

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Section 8.2 Representations and Warranties of Operator. Operator represents and warrants to Owner as follows as of the date of the Agreement:

(a) Incorporation; Qualification. Operator is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own, lease, and operate its business as currently conducted. Operator is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction that its business, as currently being conducted, shall require it to be so qualified, except where the failure to be so qualified would not have a material adverse effect on Operator’s ability to perform its obligations under this Agreement.

(b) Authority. Operator has full corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated thereby. The execution and delivery by Operator of this Agreement and the consummation by Operator of the transactions contemplated thereby have been duly and validly authorized by all necessary corporate action required on the part of Operator and this Agreement have been duly and validly executed and delivered by Operator. This Agreement constitutes the legal, valid and binding agreement of Operator, enforceable against Operator in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).

(c) Consents and Approvals; No Violation. Neither the execution, delivery and performance of this Agreement nor the consummation by Operator of the transactions contemplated thereby will (i) conflict with or result in any breach of any provision of the certificate of incorporation or bylaws of Operator, (ii) with or without the giving of notice or lapse of time or both, conflict with, result in any violation or breach of, constitute a default under, result in any right to accelerate, result in the creation of any Lien on Operator’s assets, or create any right of termination under the conditions or provisions of any note, bond, mortgage, indenture, material agreement or other instrument or obligation to which Operator is a party or by which it, or any material part of its assets may be bound, in each case that would individually or in the aggregate result in a material adverse effect with respect to Operator or its ability to perform its obligations hereunder; or (iii) constitute violations of any law, regulation, order, judgment or decree applicable to Operator, which violations, individually or in the aggregate, would result in a material adverse effect on Operator or its ability to perform its obligations hereunder.

(d) Legal Proceedings. There are no pending or, to Operator’s knowledge, threatened claims, disputes, governmental investigations, suits, actions (including non-judicial real or personal property foreclosure actions), arbitrations, legal, administrative or other proceedings of any nature, domestic or foreign, criminal or civil, at law or in equity, by or against Operator which challenges the enforceability of this Agreement or the ability of Operator to consummate the transactions contemplated thereby, in each case, that could reasonably be expected to result in a material adverse effect on Operator or its ability to perform its obligations hereunder.

(e) DISCLAIMERS. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS SECTION 8.2 AND THE OTHER TRANSACTION

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DOCUMENTS, OPERATOR EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT.

ARTICLE 9

MISCELLANEOUS

Section 9.1 Amendment and Modification. This Agreement may be amended, modified or supplemented only by written agreement of Owner and Operator.

Section 9.2 Waiver of Compliance; Consents. Except as otherwise provided in this Agreement, any failure of any of the Parties to comply with any obligation, covenant, agreement or condition herein may be waived by the Party entitled to the benefits thereof only by a written instrument signed by the Party granting such waiver, but any such waiver of such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent failure to comply therewith.

Section 9.3 Notices. All notices and other communications hereunder shall be in writing and shall be deemed given when received if delivered personally or by facsimile transmission with completed transmission acknowledgment or by electronic mail, or when delivered if mailed by overnight delivery via a nationally recognized courier or registered or certified first class mail (return receipt requested), postage prepaid, to the recipient Party at its below address (or at such other address or facsimile number for a Party as shall be specified by like notice; provided; however, that notices of a change of address shall be effective only upon receipt thereof):

To Operator:	Bloom Energy Corporation
	1299 Orleans Drive
	Sunnyvale, CA
	94089-1137 Attention:
	[***] Telephone: [***]
	Fax: [***] Email: [***]
To Owner:	2012 V PPA Project Company, LLC
	c/o Bloom Energy Corporation
	1299 Orleans Drive
	Sunnyvale, CA 94089-1137
	Attention: [***] Telephone:
	[***] Fax: [***] Email:
	[***]
With a copy to:	PE12GVVC (Bloom PPA) Ltd. and PE12PXVC (Bloom PPA) Ltd.
	c/o Alberta Investment Management Corporation
	1100 - 10830 Jasper Avenue
	Edmonton, AB T5J 2B3

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[***] Confidential Treatment Requested

	Canada Attention: [***] Email: [***]
	Telephone: [***] (for so long as such entities are Owner’s Lenders)
	Telephone: [***]
With a copy to:	Firstar Development, LLC 1307 Washington, Suite 300
	St. Louis, MO 63103 Attention: [***]
	Telephone: [***] Facsimile: [***] Email: [***]

Section 9.4 Assignment. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns (including by operation of law), but neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any Party, whether by operation of law or otherwise, without the prior written consent of the other Party; provided that Owner may collaterally assign its rights under this Agreement to any party providing debt or equity financing to it without the consent of Operator. Notwithstanding the foregoing sentence, (a) Operator shall be entitled to assign its right, title and interest in and to this Agreement to an Affiliate with the prior consent of Owner, and (b) Operator shall be entitled to subcontract any of its obligations under this Agreement without consent, provided that such assignment or subcontracting shall not excuse Operator from the obligation to competently perform any subcontracted obligations or any of its other obligations under this Agreement.

Section 9.5 Dispute Resolution.

(a) In the event a dispute, controversy or claim arises hereunder, including any claim whether in contract, tort (including negligence), strict product liability or otherwise, the aggrieved Party will promptly provide written notification of the dispute to the other Party within ten (10) days after such dispute arises. Thereafter, a meeting shall be held promptly between the Parties, attended by representatives of the Parties with decision-making authority regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute. If the Parties are not successful in resolving a dispute within twenty-one (21) days of such meeting, then, subject to the limitations on remedies set forth in Section 4.1 and Article 7, either Party may pursue whatever rights it has available under this Agreement, at law or in equity in accordance with Section 9.6.

(b) In the event of any dispute arising out of or relating to this Agreement, each Party hereby consents to service of process made to the addressees set forth in Section 9.3 herein either by overnight delivery by a nationally recognized courier or by certified first class mail, return receipt requested, and hereby acknowledges that service by such means shall constitute valid and lawful service of process against the Party being served.

[***] Confidential Treatment Requested 36

(c) Each Party hereby agrees that, in the event of any dispute arising out of or relating to this Agreement, it will not oppose the joinder of Seller (as defined in the MESPA) or Administrator (as defined in the Administrative Services Agreement) to such action or proceeding.

Section 9.6 Governing Law, Jurisdiction, Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW OR OTHER PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN NEW YORK COUNTY, NEW YORK WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING TO ANY SUCH DISPUTE AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO.

Section 9.7 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signatures delivered by facsimile will be considered original signatures, and each Party shall thereafter promptly deliver original signatures to the other Party.

Section 9.8 Interpretation. The articles, section and schedule headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the Parties and shall not in any way affect the meaning or interpretation of this Agreement.

Section 9.9 Appendices and Exhibits. Except as otherwise provided in this Agreement, all exhibits and appendices referred to herein are intended to be and hereby are specifically made a part of this Agreement.

Section 9.10 Entire Agreement.

(a) The Transaction Documents and the exhibits, schedules, documents, certificates and instruments referred to herein and therein, embody the entire agreement and understanding of the Parties in respect of the transactions contemplated by this Agreement.

(b) Each Party acknowledges that, in agreeing to enter into this Agreement, it has not relied on any representation, warranty, collateral contract or other assurance (except those repeated in this Agreement and any other agreement entered into on the date of this Agreement between the Parties) made by or on behalf of any other Party at any time before the signature of this Agreement. Each Party waives all rights and remedies which, but for this clause (b), might otherwise be available to it in respect of any such representation, warranty, collateral contract or other assurance.

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Section 9.11 Construction of Agreement. The terms and provisions of this Agreement represent the results of negotiations between Owner and Operator, each of which has been represented by counsel of its own choosing, and neither of which has acted under duress or compulsion, whether legal, economic or otherwise. Accordingly, the terms and provisions of this Agreement shall be interpreted and construed in accordance with their usual and customary meanings, and Owner and Operator hereby waive the application in connection with the interpretation and construction of this Agreement of any rule of law to the effect that ambiguous or conflicting terms or provisions contained in this Agreement shall be interpreted or construed against the Party whose attorney prepared the executed draft or any earlier draft of this Agreement.

Section 9.12 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party.

Section 9.13 [RESERVED].

Section 9.14 Further Assurances. Each Party agrees to execute and deliver such additional documents and instruments and to perform such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions, and conditions of this Agreement and the transactions contemplated by this Agreement.

Section 9.15 Independent Contractors. The Parties acknowledge that, save as expressly set out in this Agreement to the contrary, each Party is entering into this Agreement as an independent contractor and nothing in this Agreement shall be interpreted or applied so as to make the relationship of any of the Parties that of partners, joint ventures or anything other than independent contractors.

Section 9.16 No Contract for the Sale of Goods. Both Parties agree that this Agreement relates predominantly to the rendition of services accompanied only by the incidental sale of parts for the Bloom Systems; and therefore, this Agreement is not subject to the Delaware Uniform Commercial Code or any other commercial code for the sale of goods. The Parties expressly disclaim, to the extent permitted under applicable law, any and all provisions of the Uniform Commercial Code of any state or other applicable law relating to the commercial sale of goods.

Section 9.17 Time of Essence. Time is of the essence with respect to all matters contained in this Agreement.

Section 9.18 Confidentiality.

(a) Confidential Information. Subject to the other terms of this Section 9.18, the Parties shall, and shall cause their Affiliates and their respective stockholders, members, subsidiaries and Representatives to, hold confidential all information they may have or obtain concerning Operator and Owner and their respective assets, business, operations or prospects or this Agreement (the “Confidential Information”), including, but not limited to, all software,

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documentation, financial, marketing and nonpublic data with respect to the distribution and transmission facilities of the Transmitting Utility and other business information, all data related to the internal design and performance of the Bloom Systems and any other material or information that is either marked as confidential or disclosed under circumstances that one would reasonably expect it to be confidential. Furthermore, Owner agrees that the Bloom Systems and services performed hereunder contain Operator’s valuable trade secrets, and further, Owner agrees to maintain the secrecy of and not disclose without the express written permission of Operator (such consent not to be unreasonably withheld) any trade secrets which Owner may have received from Operator; provided, however, that Confidential Information shall not include information that (A) is or becomes generally available to the public other than as a result of an unauthorized disclosure by a Party or any of its Representatives or (B) is or becomes available to a Party or any of its Representatives on a nonconfidential basis from a source other than the other Party or its Representatives, provided that such source was not and is not bound by any contractual, legal or fiduciary obligation of confidentiality with respect to such information, or (C) was or is independently developed or conceived by a Party or its Representatives without reference to the Confidential Information of the other Party.

(b) Legally Compelled Disclosure. Confidential Information may be disclosed (A) as required or requested to be disclosed by a Party or any of its Affiliates or their respective stockholders, members, subsidiaries or Representatives as a result of any applicable Legal Requirement or rule or regulation of any stock exchange, the Financial Industry Regulatory Authority, Inc. or other regulatory authority or self-regulatory authority having jurisdiction over such Party, (B) as required or requested by the IRS, the Department of Justice or the Office of the Inspector General in connection with a Bloom System, cash grant, or tax credits relating thereto, including in connection with a request for any private letter ruling, any determination letter or any audit or (C) as required under any Interconnection Agreement. If a Party becomes compelled by legal or administrative process to disclose any Confidential Information, such Party shall, to the extent permitted by Legal Requirements, provide the other Party with prompt notice so that the other Party may seek a protective order or other appropriate remedy or waive compliance with the non-disclosure provisions of this Section 9.18(b) with respect to the information required to be disclosed. If such protective order or other remedy is not obtained, or such other Party waive compliance with the non-disclosure provisions of this Section 9.18(b) with respect to the information required to be disclosed, the first Party shall furnish only that portion of such information that it is advised, by opinion of counsel, is legally required to be furnished and shall exercise reasonable efforts, at the expense of the Party whose Confidential Information is being disclosed, to obtain reliable assurance that confidential treatment will be accorded such information, including, in the case of disclosures to the IRS described in clause (B) above, to obtain reliable assurance that, to the maximum extent permitted by applicable Legal Requirements, such information will not be made available for public inspection pursuant to Section 6110 of the Code.

(c) Disclosure to Representatives. Notwithstanding the foregoing, and subject always to the restrictions in Section 6.2 of the MESPA, a Party may disclose Confidential Information received by it to its actual or potential financing parties and its and their employees, consultants, legal counsel or agents who have a need to know such information; provided that such Party informs each such Person who has access to the Confidential Information of the confidential nature of such Confidential Information, the terms of this Agreement, and that such terms apply

39

to them. The Parties shall use commercially reasonable efforts to ensure that each such Person complies with the terms of this Agreement and that any Confidential Information received by such Person is kept confidential.

(d) Other Permitted Disclosures. Nothing herein shall be construed as prohibiting a Party from using such Confidential Information in connection with (i) any claim against another Party hereunder, (ii) any exercise by a Party of any of its rights hereunder, (iii) a financing or proposed financing by Operator or Owner or their respective Affiliates, (iv) a disposition or proposed disposition by Operator or any Affiliate of Operator of all or a portion of such Person’s direct or indirect equity interest in Operator, (v) a disposition or proposed disposition by any direct or indirect Affiliate of Owner of all or a portion of such Person’s equity interests in Owner, (vi) any disclosure required to be made to a PPA Customer (or otherwise) under a PPA, or (vii) as permitted by Article VII of the MESPA or the Shortfall Event License; provided that, in the case of items (iii), (iv) and (v), the potential financing party or purchaser has entered into a confidentiality agreement with respect to Confidential Information on customary terms used in confidentiality agreements in connection with corporate financings or acquisitions before any such information may be disclosed and such confidentiality agreement has been provided to the non-disclosing Party.

(e) Shortfall Event License. If and to the extent the Owner is entitled to exercise its rights under the Shortfall Event License, nothing contained herein shall limit or otherwise adversely affect the Owner’s right to disclose the Intellectual Property and other materials licensed thereunder to any sublicensee or subcontractor in accordance with the terms thereof.

Section 9.19 Force Majeure. If either Party is rendered wholly or partially unable to perform any of its obligations under this Agreement by reason of a Force Majeure Event, that Party (the “Claiming Party”) will be excused from whatever performance is affected by the Force Majeure Event to the extent so affected; provided, however, that: (i) the Claiming Party, within a reasonable time after the occurrence of such Force Majeure Event gives the other Party notice describing the particulars of the occurrence; (ii) the suspension of performance shall be of no greater scope and of no longer duration than is reasonably required by the Force Majeure Event; (iii) no liability of either Party for an event that arose before the occurrence of the Force Majeure Event shall be excused as a result of the Force Majeure Event; (iv) the Claiming Party shall exercise commercially reasonable efforts to correct or cure the event or condition excusing performance and resume performance of all its obligations; and (v) when the Claiming Party is able to resume performance of its obligations under this Agreement, the Claiming Party shall promptly give the other Party notice to that effect and shall promptly resume performance. The Owner’s obligation to pay the Service Fees to the Operator will be suspended to the extent that the Operator is unable to perform its obligations by reason of a Force Majeure Event.

Section 9.20 No Liens. To the extent that Operator has actual knowledge that any of its subcontractors has placed any Lien on a Bloom System or the Site for such Bloom System, then Operator shall promptly cause such Liens to be removed or bonded over in a manner reasonably satisfactory to Owner.

Section 9.21 Insurance. At all times during the Term without cost to Owner, Operator shall maintain in force and effect the following insurance, which insurance shall not be subject to

40

cancellation, termination or other material adverse changes unless the insurer delivers to Owner written notice of the cancellation, termination or change at least thirty (30) days in advance of the effective date of the cancellation, termination or material adverse change or if notice from the insurer to the Owner of material adverse change is not available on commercially reasonable terms then the Operator shall provide the Owner with such notice as soon as reasonably possible after becoming aware of such change:

(a) Worker’s Compensation Insurance as required by the laws of the state where Owner’s facilities are located;

(b) Employer’s liability insurance with limits at policy inception not less than One Million Dollars ($1,000,000);

(c) Commercial General Liability Insurance, including bodily injury and property damage liability (arising from premises, operations, contractual liability endorsements, products liability, or completed operations) with limits not less than Five Million Dollars ($5,000,000) at policy inception; and

(d) If there is exposure, automobile liability insurance in accordance with prudent industry practice with a limit of not less than $1,000,000 per claim;

(e) Umbrella Liability Insurance acting in excess of underlying employers liability, commercial general liability and automobile liability policies with limits not less than Fifteen Million Dollars ($15,000,000).

Operator shall cause Owner to be included as additional insured to all insurance policies required in accordance with the provisions of this Agreement except worker’s compensation. The required insurance must be written as primary policy not contributing to or in excess of any policies carried by the Owner, and each contain a waiver of subrogation, in form and substance reasonably satisfactory to the Owner, in favor of the Owner.

The insurances contemplated in this clause are primary. The Parties acknowledge that if a claim is made under any of the insurances contemplated in this Agreement it is their intention that the insurer cannot require the Party first to exhaust indemnities referred to in this Agreement before the insurer’s obligation to perform is mature, subject to the insurer’s later pursuing subrogation, in which event any recovery will be credited by such insurer pro tanto in favor of the policyholder. The general liability and umbrella liability insurances required by this agreement shall provide blanket contractual cover to the full policy limit. Where applicable, each of these insurances will:

(a) be effected with an insurer reasonably acceptable to the Owner;

(b) not contain any exclusion, endorsement, amendment or alteration, unless first approved by the Owner (such approval not to be unreasonably withheld or delayed);

(c) contain a waiver of subrogation in favor of the Owner;

41

(d) contain deductibles in accordance with prudent industry practice and approved by the Owner acting reasonably; and

(e) include a provision that such insurance is primary insurance with respect to the interests of the Owner and Operator and that any other insurance maintained by the Owner is excess and not contributory insurance with the insurances required under this Agreement.

Operator shall provide Owner with evidence of compliance with these insurance requirements when requested by Owner from time to time on a reasonable basis.

Section 9.22 Co-ordination with Seller under MESPA

(a) Notwithstanding anything else in this Agreement to the contrary, the Operator bears the risk of, is not entitled to and will not make any claim against the Owner as a result of, and releases the Owner from any claim it may have in respect of, any acts or omissions of the Seller (as defined in the MESPA).

(b) The Operator agrees that all Intellectual Property that the Operator requires to perform the Operator’s obligations under this Agreement shall be derived or obtained by the Operator directly from the Seller (as defined in the MESPA) and the Operator hereby releases the Owner from any and all liability, claims, costs, damages, losses or other expenses relating to any Intellectual Property rights that the Operator may require in order to perform its obligations hereunder.

Section 9.23 Set-Off. Either Party made deduct or setoff from payments to the other Party under the Agreement any amounts: (1) for which the Party must reimburse the other Party, (2) which a Party pays on the other Party’s behalf under the Agreement, or (3) which a Party owes to the other Party under this Agreement or the MESPA for damages for breach of this Agreement or the MESPA, in each case with respect only to amounts that are not in dispute between the Parties under any of the Transaction Documents.

Section 9.24 Third Party Beneficiaries. Except as otherwise expressly stated herein, this Agreement is intended to be solely for the benefit of the Parties hereto and their permitted assignees and is not intended to and shall not confer any rights or benefits to the general public or any other third party not a signatory thereto.

[Signatures follow on next page]

42

IN WITNESS WEREOF, the Parties have executed this Master Operation and Maintenance Agreement as of the date first above written.

BLOOM ENERGY CORPORATION		2012 V PPA PROJECT COMPANY, LLC
By:	/s/ Illegible	By:	/s/ Illegible
	Name: Illegible Title:		Name: Illegible Title:

PPA III - MOMA

EXHIBIT A

to

MASTER OPERATION AND MAINTENANCE AGREEMENT

PRIMARY SERVICE FEES

Calendar Quarters since Commencement of Operations for the applicable Facility	Rate
1 through 4		$[***]/kW
5 through 8		$[***]/kW
9 through 12		$[***]/kW
13 through 16		$[***]/kW
15 through 20		$[***]/kW
21 through 24		$[***]/kW
25 through 28		$[***]/kW
29 through 32		$[***]/kW
33 through 36		$[***]/kW
37 through 40		$[***]/kW
41 through 44		$[***]/kW
45 through 48		$[***]/kW
49 through 52		$[***]/kW
53 through 56		$[***]/kW
57 through 60		$[***]/kW

Exhibit A-1

[***] Confidential Treatment Requested

EXHIBIT B

to

MASTER OPERATION AND MAINTENANCE AGREEMENT

FACILITIES

Site No.	PPA Customer	Address	City	State		Size (kW)
1	AT&T	[***]	Compton		CA		[***]
2	AT&T	[***]	Los Angeles		CA		[***]
3	AT&T	[***]	El Segundo		CA		[***]
4	AT&T	[***]	Hawthorne		CA		[***]
5	AT&T	[***]	Huntington Park		CA		[***]
6	AT&T	[***]	Riverside		CA		[***]
7	AT&T	[***]	Riverside		CA		[***]
8	Wal-Mart	[***]	Porterville		CA		[***]
9	Wal-Mart		Torrance		CA		[***]
10	Wal-Mart	[***]	San Diego		CA		[***]
11	Wal-Mart	[***]	South Gate		CA		[***]
12	Wal-Mart	[***]	San Jacinto		CA		[***]
13	Wal-Mart	[***]	Palm Springs		CA		[***]
14	Wal-Mart	[***]	Santa Clarita		CA		[***]
15	Wal-Mart	[***]	Baldwin Park		CA		[***]
16	Wal-Mart	[***]	Lakewood		CA		[***]
17	Wal-Mart	[***]	Palm Desert		CA		[***]
18	Wal-Mart	[***]	Lake Elsinore		CA		[***]
19	Wal-Mart	[***]	Glendora		CA		[***]
20	Wal-Mart	[***]	Hanford		CA		[***]
21	Wal-Mart	[***]	Temecula		CA		[***]
22	Wal-Mart	[***]	Visalia		CA		[***]
23	Wal-Mart	[***]	Pico Rivera		CA		[***]
24	Wal-Mart	[***]	Corona		CA		[***]
25	Wal-Mart	[***]	Apple Valley		CA		[***]
26	Wal-Mart	[***]	Pomona		CA		[***]
Total							[***]

Exhibit B-1

[***] Confidential Treatment Requested

APPENDIX A

to

MASTER OPERATION AND MAINTENANCE AGREEMENT

Minimum Power Product Example Calculation

Sample Quarterly Minimum Power Product Example

Calculation

Assumptions
Number of active Systems	46
Nameplate capacity	200		kW
Quarterly Capacity Warranty	80	%
Quarterly Minimum Power Product Analysis
Minimum Power Product	7,360		kW

Sample One-Year Minimum Power Product Example

Calculation

Assumptions
Number of active Systems	46
Nameplate capacity	200		kW
One-Year Capacity Warranty Factor	95	%
One-Year Minimum Power Product Analysis
Minimum Power Product	8,740		kW

Appendix A-1

APPENDIX B

to

MASTER OPERATION AND MAINTENANCE AGREEMENT

Capacity Warranty Claim Example Calculation and Amounts Payable

Sample Quarterly Capacity Warranty Claim Example Calculation

Assumptions
Number of Systems	46
Baseload Capacity	200		kW
Hours/Day	24		Hours
Measurement Period	90		Days
Force Majeure Outage in Period (1)			Hours
PPA Customer Outage in Period (1)			Hours
Legal/Grid Outage in Period (1)			Hours
Average Tolling Rate	$	[***]	/kWh
Quarterly Capacity Warranty analysis
Minimum kWh = ((Measurement Period Days * 24 Hours/Day)			kWh
- Force Majeure Hours
- PPA Customer Outage Hours
- Legal/Grid Outage Hours)
* Minimum Power Product (2)
Actual kWh = Actual generation in Period			kWh
Actual Capacity Factor = Actual kWh/(Minimum kWh/Quarterly Capacity Warranty Factor) * 100			%
Quarterly Capacity Warranty Factor	80%
Actual Capacity Factor	78%
Minimum kWh	15,897,600		kWh
Actual kWh	15,500,160		kWh
Underperformance (kWh)	397,440		kWh
Quarterly Capacity Warranty Payment	$[***]

Notes:

(1) As described in the “Minimum kWh” definition above.

(2) As calculated per Annex A herein

Appendix B-1

[***] Confidential Treatment Requested

Sample One-Year Capacity Warranty Claim Example Calculation

Assumptions
Number of Systems	46
Baseload Capacity	200		kW
Hours/Day	24		Hours
Measurement Period	365		Days
Force Majeure Outage in Period (1)			Hours
PPA Customer Outage in Period (1)			Hours
Legal/Grid Outage in Period (1)			Hours
Average Tolling Rate	$[***]		/kWh
One-Year Capacity Warranty analysis
Minimum kWh = ((Measurement Period Days * 24 Hours/Day)			kWh
- Force Majeure Hours
- PPA Customer Outage Hours
- Legal/Grid Outage Hours)
* Minimum Power Product (2)
Actual kWh = Actual generation in Period			kWh
Actual Capacity Factor = Actual kWh/(Minimum kWh/One-Year Capacity Warranty Factor) * 100			%
One-Year Capacity Warranty	95%
Actual Output	90%
Minimum kWh	76,562,400
Actual kWh	72,532,800]
Underperformance (kWh)	4,029,600
One-Year Capacity Warranty Payment	$[	***]

Notes:

(1) As described in the “Minimum kWh” definition above.

(2) As calculated per Annex A herein

Average Tolling Rate Example Calculation

Assumptions
Installed Capacity	Tolling Rate
2000kW		$[***]
1000kW		$[***]

Calculation
Average Tolling Rate	= [***]
	= [***]

Appendix B-2

[***] Confidential Treatment Requested

EX-10

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Exhibit 10.48

Execution Version

AMENDED AND RESTATED

EQUITY CAPITAL CONTRIBUTION AGREEMENT

between

FIRSTAR DEVELOPMENT, LLC

and

CLEAN TECHNOLOGIES III, LLC

August 30, 2013

TABLE OF CONTENTS

		Page
ARTICLE ONE	DEFINITIONS AND PRINCIPLES OF INTERPRETATION	2
1.1           Definitions		2
1.2           Rules of Interpretation		15
ARTICLE TWO	EQUITY CAPITAL CONTRIBUTIONS	16
2.1           Execution Date		16
2.2           Initial Contributions		16
2.3           Use of Initial Funding Date Proceeds		17
2.4           Use of Account Following the True Up Funding Date Deadline		17
2.5           True Up Date Contributions		18
2.6           Use of True Up Funding Date Proceeds and Account on True Up Funding Date		18
2.7           Limits on Investor Funding		19
2.8           Final List of Facilities		19
ARTICLE THREE	REPRESENTATIONS AND WARRANTIES REGARDING THE FACILITY ENTITIES AND EACH FACILITY	19
3.1           Organization and Good Standing		19
3.2           Authorization, Execution and Enforceability		19
3.3           No Violation		20
3.4           Subsidiaries; Non-Related Liabilities		20
3.5           Members of the Company; Additional Membership Interests		20
3.6           Warranty of Title; Personal Property		21
3.7           Facilities; Governmental Approvals		21
3.8           Employees		21
3.9           Brokers		21
3.10         Consents and Approvals		21
3.11         Compliance With Applicable Law		21
3.12         Litigation		22
3.13         Contracts		22
3.14         Default		22
3.15         Environmental Matters		22
3.16         Equipment and Facilities		23
3.17         Real Property		23
3.18         PUHCA and FPA Status		23
3.19         Affiliate Transactions		23
3.20         Information		24
3.21         Insurance		24
3.22         State Regulation		24
3.23         Taxes		24
3.24         Tax Representations		25
3.25         Bankruptcy		27
3.26         Books and Records		27

-i-

TABLE OF CONTENTS

(continued)

		Page
3.27         Executive Order 13224 and the Patriot Act		27
3.28         Facility Costs		27
3.29         Commercial Completion		28
3.30         Financial Statements		28
ARTICLE FOUR	REPRESENTATIONS AND WARRANTIES OF CLASS B MEMBER	28
4.1           Representations and Warranties Regarding the Class B Member		28
ARTICLE FIVE	REPRESENTATIONS AND WARRANTIES OF THE INVESTOR	32
5.1           Organization and Good Standing		32
5.2           Authorization, Execution and Enforceability		32
5.3           No Violation		32
5.4           Consents and Approvals		32
5.5           Litigation		33
5.6           Investment Intent; Unregistered Securities		33
5.7           Accredited Investor		33
5.8           Regulation D Compliance		33
5.9           Brokers		34
5.10         United States Person		34
5.11         PUHCA and FPA Status		34
5.12         Disqualified Person		34
5.13         Bankruptcy		34
5.14         No Other Representations		34
ARTICLE SIX	CONDITIONS PRECEDENT	34
6.1           Execution Date Conditions Precedent		34
6.2           Initial Funding Date Conditions Precedent		36
6.3           Obligations of the Equity Investors and Facility Entities on Each Initial Funding Date		40
6.4           Investor True Up Funding Date Conditions Precedent		41
6.5           Obligations of the Equity Investors and Facility Entities on Each True Up Funding Date		43
ARTICLE SEVEN	GENERAL PROVISIONS	43
7.1           Notices		43
7.2           No Third Party Beneficiaries		44
7.3           Amendment and Waiver		44
7.4           Binding Nature; Assignment		44
7.5           Governing Law		45
7.6           Jurisdiction; Service of Process		45
7.7           Counterparts		45
7.8           Headings		45

-ii-

TABLE OF CONTENTS

(continued)

	Page
7.9           Severability	45
7.10         Entire Agreement	46
7.11         No Solicitation	46
7.12         WAIVER OF JURY TRIAL	46
7.13         Expenses	46
7.14         Confidentiality	46
7.15         Further Assurances; Amendments to Governmental Approvals and Principal Facility Documents; Reports	48
7.16         LIMITATIONS OF LIABILITY	48
7.17         Amendment and Restatement	49

-iii-

LIST OF ANNEXES TO

EQUITY CAPITAL CONTRIBUTION AGREEMENT

Annex 1-A	List of Proposed Facilities and Locations
Annex 1-B	Base Case Model
Annex 2	Insurance Requirements
Annex 3	List of All Contracts
Annex 4	“Knowledge” Persons
Annex 5	Third Party Consents and Approvals
Annex 6	Forms of Estoppel Certificates (Seller, Operator, Administrator)
Annex 7	Affiliate Transactions
Annex 8	Tax Matters
Annex 9	Forms of Financing Documents

-iv-

AMENDED AND RESTATED EQUITY CAPITAL CONTRIBUTION AGREEMENT

This AMENDED AND RESTATED EQUITY CAPITAL CONTRIBUTION AGREEMENT (the “Agreement”) dated as of August 30, 2013 (the “Execution Date”) entered into by and between Firstar Development, LLC, a Delaware limited liability company (the “Investor”), and Clean Technologies III, LLC, a Delaware limited liability company (the “Class B Member”).

PRELIMINARY STATEMENTS:

1. 2012 ESA Project Company, LLC, a Delaware limited liability company (f/k/a 2012 V PPA Project Company, LLC) (the “Facility Company”), has entered into an Amended and Restated Master Energy Server Purchase Agreement with Bloom Energy Corporation (“Seller”), dated as of December 21, 2012, as amended pursuant to (i) the First Amendment to Amended and Restated Master Energy Server Purchase Agreement, dated as of March 27, 2013, (ii) the Omnibus Amendment #1 (as defined below) and (iii) the Omnibus Amendment #2 (as defined below) (as amended, the “MESPA”), pursuant to which the Facility Company has or will purchase, subject to the terms and conditions set for therein, on-site fuel cell power generating systems (each a “System”) with an aggregate Baseload Capacity of up to 10.2 MW, to be installed on, together with the relevant “BOF” (as defined in the MESPA), each relevant “Site” (as defined in the MESPA) located in California and Connecticut, as identified more specifically on Annex 1-A attached hereto (each System together with the relevant “BOF” at a “Site”, a “Facility”).

2. 2012 V PPA Holdco, LLC, a Delaware limited liability company (the “Company”), wholly-owns the Facility Company.

3. The Investor and the Class B Member previously entered into the Equity Capital Contribution Agreement, dated as of December 21, 2012 and the First Amendment to Equity Capital Contribution Agreement, dated as of June 27, 2013 (as amended, the “Original ECCA”).

4. The Investor desires to make capital contributions to the Company, and the Class B Member and the Facility Company desire that the Investor make such capital contributions, and the Investor and the Class B Member desire to amend and restate the Original ECCA, in the manner and subject to the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual agreements, covenants, representations and warranties set forth herein and intending to be legally bound hereby, the Parties (as defined herein) agree as follows:

ARTICLE ONE

DEFINITIONS AND PRINCIPLES OF INTERPRETATION

1.1 Definitions. The following capitalized terms shall have the respective meanings set forth below:

“2013B” means 2013B ESA Project Company, LLC, a Delaware limited liability company.

“Account” means that certain account, established in the name of the Company with a financial institution that is reasonably satisfactory to the Investor, which account shall not be pledged, or become pledged, as security for any obligation of the Company, the Facility Company or any other Person.

“Accountants” means Novogradac, or such other firm of independent certified public accountants as may be engaged by the Class B Member with the consent of the Investor to prepare the Cost Allocations (Preliminary), the Cost Allocations (Final) and certain other documents and reports as provided herein.

“Administrator” means Bloom Energy Corporation, or any other Person who may serve as administrator from time to time under the ASA.

“Affiliate” means, with respect to any specified Person, any Person directly or indirectly controlling, controlled by or under common control with such Party. The term “control” (including the terms “controlled by” or “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership, by contract, or otherwise. Any Person shall be deemed to be an Affiliate of any specified Person if such Person owns more than 50% of the voting securities of the specified Person, if the specified Person owns more than 50% of the voting securities of such Person, or if more than 50% of the voting securities of the specified Person and such Person are under common control.

“Agreement” means this Equity Capital Contribution Agreement, as amended from time to time.

“Applicable Law” means any treaty, constitution, law, statute, ordinance, rule, order, decree, regulation or other directive which is legally binding and has been enacted, issued or promulgated by any Governmental Authority.

“Appraisals” means, to the reasonable satisfaction of the Investor, that certain appraisal of Marshall & Stevens which includes the following conclusions: (a) the economic useful life of each Facility from the date of its Commercial Completion, (b) the Appraised Value for each Facility as of the Execution Date, and (c) the Appraised Residual Value for each Facility, and any supplement to such appraisal.

“Appraised Residual Value” means the expected Fair Market Value of an Asset, determined without regard to inflation or deflation, on the expected Class A Flip Point (as such term is defined in the Company LLC Agreement).

“Appraised Value” means the Fair Market Value of each Facility, based on the Baseload Capacity for such Facility, calculated on a per kW basis.

2

“ASA” means the Administrative Services Agreement dated as of December 21, 2012, by and among the Administrator, the Company and the Facility Company, as amended by the Omnibus Amendment #2.

“Assets” means, with respect to any Person, all right, title and interest of such Person in land, properties, buildings, improvements, fixtures, foundations, assets and rights of any kind, whether tangible or intangible, real, personal or mixed, including contracts, equipment, systems, books and records, proprietary rights, intellectual property, Governmental Approvals, rights under or pursuant to all warranties, representations and guarantees, cash, accounts receivable, deposits and prepaid expenses.

“Assignment and Assumption Agreement #1” means the Assignment and Assumption Agreement, dated as of July 5, 2013, by and between 2013B as assignor and the Facility Company as assignee.

“Assignment and Assumption Agreement #2” means the Assignment and Assumption Agreement, dated as of July 5, 2013, by and between the Facility Company as assignor and 2013B as assignee.

“AT&T Facility” means any Facility with respect to which the applicable PPA Customer is AT&T PPA Customer 1 or AT&T PPA Customer 2.

“AT&T Power Purchase Agreement” means collectively (i) that certain Energy System Use Agreement dated as of December 19, 2012, by and between AT&T PPA Customer 1 and the Facility Company, (ii) that certain Energy System Use Agreement No. 20130403.075.C dated as of May 15, 2013, by and between AT&T PPA Customer 1 and the Facility Company, except to the extent assigned to 2013B pursuant to Assignment and Assumption Agreement #2, (iii) that certain Energy System Use Agreement No. 20130403.077.C dated as of May 15, 2013, by and between AT&T PPA Customer 2 and the Facility Company, (iv) that certain Energy System Use Agreement No. 20130430.072.C dated as of May 15, 2013, by and between AT&T PPA Customer 1 and 2013B, as and to the extent assigned by 2013B to the Facility Company pursuant to Assignment and Assumption Agreement #1, and (v) that certain Energy System Use Agreement No. 20130430.078.C dated as of May 15, 2013, by and between AT&T PPA Customer 2 and 2013B, as and to the extent assigned by 2013B to the Facility Company pursuant to Assignment and Assumption Agreement #1; provided, however, that following the execution of Amendment NO. 1 to Energy System Use Agreement No. 20130403.075.C by each of AT&T PPA Customer 1 and the Facility Company and the execution of Amendment NO. 1 to Energy System Use Agreement No. 20130403.077.C by each of AT&T PPA Customer 2 and the Facility Company, “AT&T Power Purchase Agreement” will mean collectively (i) that certain Energy System Use Agreement dated as of December 19, 2012, by and between AT&T PPA Customer 1 and the Facility Company, (ii) that certain Energy System Use Agreement No. 20130403.075.C dated as of May 15, 2013, by and between AT&T PPA Customer 1 and the Facility Company, as amended by Amendment NO. 1 to Energy System Use Agreement No. 20130403.075.C, and (iii) that certain Energy System Use Agreement No. 20130403.077.C dated as of May 15, 2013, by and between AT&T PPA Customer 2 and the Facility Company, as amended by Amendment NO. 1 to Energy System Use Agreement No. 20130403.077.C.

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“AT&T PPA Customer” means AT&T PPA Customer 1 or AT&T PPA Customer 2, as applicable.

“AT&T PPA Customer 1” means Pacific Bell Telephone Company.

“AT&T PPA Customer 2” means AT&T Corp.

“Bankruptcy” or “Bankrupt” as to any Person means the filing of a petition for relief as to any such Person as debtor or bankrupt under the Bankruptcy Code or like provision of law (except if such petition is contested by such Person and has been dismissed within sixty (60) days); insolvency of such Person as finally determined by a court proceeding; filing by such Person of a petition or application to accomplish the same or for the appointment of a receiver or a trustee for such Person or a substantial part of its assets; commencement of any proceedings relating to such Person under any other reorganization, arrangement, insolvency, adjustment of debt or liquidation law of any jurisdiction, whether now in existence or hereinafter in effect, either by such Person or by another, provided that if such proceeding is commenced by another, such Person indicates its approval of such proceeding, consents thereto or acquiesces therein, or such proceeding is contested by such Person and has not been finally dismissed within sixty (60) days.

“Bankruptcy Code” means any and all sections and chapters of Title 11 of the United States Code, as in effect from time to time.

“Base Case Model” means the financial model attached hereto as Annex 1-B, as may be revised from time to time pursuant to this Agreement.

“Bill of Sale” has the meaning set forth in the MESPA.

“Bloom Entities” means the Class B Member, the Guarantor, the Company, the Facility Company, the Seller, the Operator and the Administrator.

“Business Day” means any day other than a Saturday, a Sunday or any other day on which banks are authorized to be closed in New York City.

“Casualty Defect” means any destruction by fire, explosion or other casualty or any taking, or pending or threatened (in writing) taking, in condemnation or under the right of eminent domain, of a Facility or any portion thereof, that constitutes or could reasonably be expected to constitute a Material Adverse Effect with respect to such Facility.

“Cheshire Facility” means the Facility to be located at 751 Higgins Road, Cheshire, Connecticut.

“Class A Units” shall have the meaning assigned to such term in the Company LLC Agreement.

“Class B Member” has the meaning set forth in the Preamble hereto.

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“Class B Member Initial Funding Date Contribution” has the meaning set forth in Section 2.2(b).

“Class B Member True Up Date Funding Contribution” has the meaning set forth in Section 2.5(b).

“Class B Units” shall have the meaning assigned to such term in the Company LLC Agreement.

“Code” means the Internal Revenue Code of 1986, as amended and any successor federal tax statute.

“Commercial Completion” means with respect to a System, that the Facility into which such System is incorporated has achieved Commencement of Operations (as such term is defined in the MESPA).

“Company” has the meaning specified in the Preliminary Statements hereto.

“Company LLC Agreement” shall mean the Second Amended and Restated Operating Agreement of the Company, dated as of the date hereof.

“Cost Allocation (Final)” means, with respect to a Tranche, a cost allocation as prepared by the Accountants, and delivered with an audit report, detailing Qualified Investment with respect to the Tranche, including, but not limited to, the depreciable basis in the Tranche and the tax basis for the ITC, as set forth in the Base Case Model; provided, however, that in no event shall the tax basis for the ITC be an amount greater than set forth as the fair market value of the Facilities within the Tranche in the applicable Appraisal or Subsequent Facility Appraisal (if any), as applicable to such Tranche.

“Cost Allocation (Preliminary)” means, with respect to a Tranche, a cost allocation as prepared by the Accountants, and delivered with an audit report, detailing Qualified Investment with respect to the Tranche, including, but not limited to, the depreciable basis of the Tranche and the tax basis for the ITC, as set forth in the Base Case Model; provided, however, that in no event shall the tax basis for the ITC be an amount greater than set forth as the fair market value of the Facilities within the Tranche in the applicable Appraisal or Subsequent Facility Appraisal (if any), as applicable to such Tranche.

“Credit Agreement” means that certain Amended and Restated Credit Agreement, dated as of August 30, 2013, among 2012 ESA Project Company, LLC and PE12GVVC (Bloom PPA) Ltd., PE12PXVC (Bloom PPA) Ltd., and the other lenders from time to time party thereto, and PE12GVVC (Bloom PPA) Ltd., as administrative agent, and Deutsche Bank Trust Company Americas, as collateral agent.

“Disqualified Person” means (a) the United States, any state or political subdivision thereof, any possession of the United States, or any agency or instrumentality of any of the foregoing, (b) any organization which is exempt from tax imposed by the Code (including any former tax-exempt organization within the meaning of Code Section 168(h)(2)(E) and any tax-exempt controlled entity within the meaning of Code Section 168(h)(6)(F)(iii) if such entity

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has not made the election provided in Code Section 168(h)(6)(F)(ii)), (c) any Person who is not a United States Person, and (d) any Indian tribal government described in Section 7701(a)(40) of the Code, or (e) any partnership or other pass-through entity, any direct or indirect partner (or other holder of an equity or profits interest) of which is an organization or entity described in clauses (a)-(d); provided, however, that any such Person described in clauses (a) – (d) shall not be considered a Disqualified Person to the extent that (i) the exception under Code Section 168(h)(1)(D) applies with respect to the income from the Facility Company for that Person, (ii) the Person is described within clause (c) of this definition, and the exception under Code Section 168(h)(2)(B)(i) applies with respect to the income from the Facility Company for that Person, or (iii) the Person’s ownership of an Asset for federal income tax purposes, would not result in either the loss, disallowance, reduction or recapture of the ITC or application of Code sections 168(g) or 168(h).

“Encumbrance” means any lien (statutory or otherwise), mortgage, deed of trust, claim, option, lease, easement, charge, pledge, security interest, hypothecation, assignment, use restriction or other encumbrance of any kind or nature whatsoever, whether voluntary or involuntary, choate or inchoate (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement).

“Environmental Claim” means any demand order, suit, action or proceeding before any Governmental Authority or arbitral body, or any claim, in each such case, brought or made by a third party, relating in any way to any Environmental Law or Environmental Permit.

“Environmental Laws” means all Applicable Laws pertaining to Hazardous Substances, the environment, human health, safety and natural resources, including, but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. § 9601 et seq.) (“CERCLA”) as amended, the Emergency Planning and Community Right to Know Act (42 U.S.C. §§ 11001 et seq.), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. §§ 6901 et seq.) as amended, the Clean Air Act (42 U.S.C. § 7401 et seq.), the Federal Water Pollution Control Act (also known as the Clean Water Act) (33 U.S.C. §§ 1251 et seq.), Rivers and Harbors Act of 1899, as amended (33 U.S.C. § 403), the Toxic Substances Control Act (15 U.S.C. §§ 2601 et seq.), the Safe Drinking Water Act (42 U.S.C. §§ 300f et seq.), the Endangered Species Act (16 U.S.C. §§ 1531 et seq.), the Migratory Bird Treaty Act (16 U.S.C. §§ 703 et seq.), the Bald and Golden Eagle Protection Act (16 U.S.C. §§ 668 et seq.), the Oil Pollution Act of 1990 (33 U.S.C. §§ 2701 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. §§ 5101 et seq.), the National Environmental Policy Act of 1969 (42 U.S. C. §§4321 to 4370h), the National Historic Preservation Act (16 U.S.C §§ 470 et seq.), Title 14 Code of Federal Regulations Part 77 and 49 U.S.C. §44718, and any similar or analogous state and local statutes or regulations promulgated thereunder and decisional law of any Governmental Authority, as each of the foregoing may be amended or supplemented from time to time in the future, in each case to the extent applicable with respect to the property or operation to which application of the term “Environmental Laws” relates.

“Environmental Permits” means all licenses, approvals, consents, permits and other authorizations or registrations required under all Environmental Laws.

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“Equity Capital Contributions” means the capital contributions provided to be made pursuant to Article Two.

“Equity Investors” means Class B Member and the Investor and their respective successors and permitted assigns.

“Execution Date” has the meaning provided in the Preamble hereto.

“Execution Date Conditions Precedent” has the meaning set forth in Section 6.1.

“Executive Order 13224” has the meaning set forth in Section 3.27.

“Facility” has the meaning specified in the Preliminary Statements hereto.

“Facility Company” has the meaning specified in the Preliminary Statements hereto.

“Facility Company LLC Agreement” means the Amended and Restated Limited Liability Company Agreement of the Facility Company, dated as of December 21, 2012, as amended by the First Amendment to Amended and Restated Limited Liability Company Agreement, dated as of the date hereof.

“Facility Costs” means, without duplication, all costs (other than Transaction Expenses) incurred by the Facility Company or the Company in connection with the acquisition, ownership, financing, leasing, occupation, construction, design, equipping, installation, testing, start-up, initial operation, and commissioning of the applicable Facility, all of which shall be included in the Base Case Model, including: (a) all amounts payable to third parties under the Principal Facility Documents, (b) all payments required to be made to the interconnection utility and Governmental Authorities, (c) all out-of-pocket fees and expenses of the Facility Company’s consultants, appraisers and engineers, (d) the interest, fees and expenses owing to the Facility Lenders and their agents under the Financing Documents, and (e) all out-of-pocket fees and expenses of the Facility Company’s counsel.

“Facility Entities” means the Company and the Facility Company.

“Facility Lenders” means, collectively, PE12GVVC (Bloom PPA) Ltd. and PE12PXVC (Bloom PPA) Ltd., or any other bank or financial institution reasonably acceptable to the Class B Member and the Investor.

“Facility Purchase Conditions” means, with respect to a Facility, that the Facility has not been Placed in Service (as such term is defined in the MESPA), at least in part because (a) the System incorporated in such Facility has not been synchronized onto the electric distribution and transmission system of the applicable Transmitting Utility (as such term is defined in the MESPA), (b) the critical tests necessary for the proper operation of the System incorporated in such Facility have not been completed, (c) the System has not commenced regular, continuous, daily operation, and (d) the System incorporated in such Facility has generated no revenue.

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“Fair Market Value” means, with respect to any Asset, the price at which such Asset would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell, and both having reasonable knowledge of the relevant facts, and specifically with respect to a Facility or any Membership Interest in the Company, as determined consistently with Section 4.05 of Revenue Procedure 2007-65.

“FERC” means the Federal Energy Regulatory Commission.

“Financing Documents” means the Credit Agreement, security agreement, pledge agreement and depositary agreement between the Facility Company and the Facility Lenders and/or their agents substantially in the forms attached hereto as Annex 9, or as otherwise reasonably approved by the Investor, pursuant to which the Facility Lenders provide senior secured debt financing to the Facility Company, and any other material agreement entered into in connection therewith.

“Flow of Funds” means, with respect to each Initial Funding Date and each True Up Funding Date, the funding memorandum to be entered into as of such date, setting forth in detail, all sources and uses of funds to be received and paid on such date, including the exact amounts to be paid on such date and the Persons (and the account information related thereto) to whom such amounts are to be paid, which memorandum shall be reasonably satisfactory to the Equity Investors.

“FPA” means the Federal Power Act, as amended, 16 U.S.C. §§ 791a et seq.

“Gardena Facility” means the Facility to be located at 17200 Vermont, Gardena, California.

“Governmental Approval” means all permits, licenses, approvals and authorizations of any Governmental Authority.

“Governmental Authority” means any national, provincial, regional, municipal or local authority, body, agency, ministry, court, judicial or administrative body, taxing authority, regulatory authority or other governmental organization having jurisdiction or effective control over any of the Parties or any Facility.

“Government Official” has the meaning set forth in Section 4.1(k).

“Guarantor” means Bloom Energy Corporation, a Delaware corporation.

“Guarantor Account” means the account at U.S. Bank, N.A. funded and maintained in accordance with the Guaranty and governed by the Guarantor Account Agreement.

“Guarantor Account Agreement” means that certain Blocked Account Control Agreement, dated as of August 2, 2013, by and among the Guarantor, the Investor and U.S. Bank National Association, as the “Depositary Bank” thereunder.

“Guaranty” means that certain Amended and Restated Guaranty, dated as of August 2, 2013, issued by the Guarantor.

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“Hazardous Substances” means any hazardous or toxic material, substance or waste, pollutant, contaminant or solid waste as defined under applicable Environmental Laws, including petroleum, petroleum products, asbestos, polychlorinated biphenyls and radioactive materials.

“Independent Engineer” means SAIC Energy, Environment & Infrastructure, LLC.

“Independent Engineer Report” means the report of the Independent Engineer delivered to the Investor on December 28, 2012.

“Initial Funding Date” means, with respect to a Tranche, the first Business Day on which the satisfaction or waiver of all of the Initial Funding Date Conditions Precedent for such Tranche occurs, provided, however, the Initial Funding Date with respect to the Tranche comprised of the Temecula Facility and the Visalia Facility means the first Business Day after June 27, 2013 on which the satisfaction or waiver of all of the Initial Funding Date Conditions Precedent for such Tranche occurs.

“Initial Funding Date Conditions Precedent” has the meaning set forth in Section 6.2.

“Initial Funding Date Contribution” means, with respect to the Investor, an Investor Initial Funding Date Contribution, and, with respect to the Class B Member, a Class B Member Initial Funding Date Contribution.

“Initial Maintenance Reserve Amount” means an amount equal to [***] per kW of each System Placed in Service (as such term is defined in the MESPA).

“Insurance Consultant” means Moore-McNeil, LLC.

“Insurance Report” means a letter from the Insurance Consultant which confirms that the insurance coverages for both the construction and operation periods of the Facility comply with the insurance described in Annex 2.

“Interconnection Agreement” has the meaning set forth in the MESPA.

“Interparty Agreement” means that certain Interparty Agreement, dated as of December 21, 2012, as amended by that certain First Amendment to Interparty Agreement, dated as of the date hereof, among the Facility Company, the Investor and PE12GVVC (Bloom PPA) Ltd., as administrative agent under the Financing Documents.

“Investment Documents” means this Agreement, the Guaranty, the Guarantor Account Agreement, the MESPA, the Company LLC Agreement, the Facility Company LLC Agreement, the ASA and the Interparty Agreement.

“Investor” has the meaning set forth in the Preamble hereto.

“Investor Commitment Amount” means [***]

[***] Confidential Treatment Requested

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“Investor Contribution Amount” [***]

“Investor Initial Funding Date Contribution” means, for a Tranche, [***] of the Investor Contribution Amount, as determined using the ITC Amount provided by the Cost Allocation (Preliminary).

“Investor Interest” means the Investor’s Membership Interest in the Company having the rights, preferences and designations provided for such interest in the Company LLC Agreement.

“Investor True Up Funding Contribution” means for a Tranche, the excess, if any, of the Investor Contribution Amount, as determined using the ITC Amount provided by the Cost Allocation (Final), minus the Investor Initial Funding Date Contribution.

“ITC” means an investment tax credit pursuant to Code Sections 38(b)(1), 46 and 48(a).

“ITC Amount” means an amount that is equal to 30% of the Qualified Investment.

“ITC Eligible Property” means property that is described in Code Sections 48(a)(2)(i)(I) and 48(c).

“Knowledge” means (a) as it applies to the Class B Member, the actual knowledge of those individuals listed on Annex 4, or (b) as to any other Person (other than a natural person), the actual knowledge of the officers of such Person having responsibility for and direct involvement in the transactions contemplated by this Agreement and (c) in respect of any Person who is a natural Person, the actual knowledge of such Person.

“LADWP” means the Los Angeles Department of Water and Power.

“LLC Agreements” means, collectively, the Company LLC Agreement and the Facility Company LLC Agreement.

“LREC Agreement” means each Standard Contract for the Purchase and Sale of Connecticut Class I Renewable Energy Credits from Low and Zero Emission Projects, entered into by and between either the Connecticut Light and Power Company or The United Illuminating Company and the Facility Company (as assignee of BE 2012 A LLC, a Delaware limited liability company (“BE 2012 A”) pursuant to that certain Assignment and Assumption Agreement to be entered into by and between the Facility Company and BE 2012 A).

“Material Adverse Effect” means, for any Person, any material adverse effect on the business, earnings, Assets, results of operations or financial condition of such Person taken as a whole or on its ability to perform its obligations under this Agreement, any other Investment Document or any Principal Facility Document.

“Membership Interest” means, for a limited liability company, the membership interest of a member in such company including, without limitation, its right to a share of the

[***] Confidential Treatment Requested

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profits, losses, deductions and credits of the company and its right to a distributive share of the Assets of the company in accordance with the provisions of such company’s operating agreement.

“MESPA” has the meaning set forth in the Preliminary Statements.

“MESPA Final Invoice” means that certain invoice for one or more Facilities delivered pursuant to Section 2.2(a)(ii) of the MESPA.

“MESPA Initial Invoice” means that certain invoice for one or more Facilities delivered pursuant to Section 2.2(a)(i) of the MESPA.

“MOMA” means that certain Amended and Restated Master Operation and Maintenance Agreement dated as of December 21, 2012, by and between Operator and the Facility Company, as amended by the Omnibus Amendment #1 and the Omnibus Amendment #2.

“MW” means megawatt.

“Necessary Approvals” has the meaning set forth in Section 6.2(e).

“North Hollywood Facility” means the Facility to be located at 11272 Magnolia Boulevard, North Hollywood, California.

“Omnibus Amendment #1” means that certain Omnibus Amendment to MESPA, MOMA and Equity Contribution Tri-Party Agreement, dated as of June 27, 2013, by and among Bloom Energy Corporation, the Facility Company and the Company.

“Omnibus Amendment #2” means that certain Omnibus Amendment to MESPA, MOMA, ASA, REC PSA and Equity Contribution Tri-Party Agreement, dated as of the date hereof, by and among Bloom Energy Corporation, the Facility Company and the Company.

“Operator” means Bloom Energy Corporation, or any other Person who may serve as operator from time to time under the MOMA.

“Original ECCA” has the meaning set forth in the Preliminary Statements.

“Original Company LLC Agreement” means that certain Amended and Restated Operating Agreement of the Company, dated as of January 30, 2013.

“Party” means one of the parties to this Agreement, its successors and permitted assigns.

“Patriot Act” has the meaning set forth in Section 3.27.

“Permitted Encumbrances” means (a) liens, security interests, mortgages, hypothecations, encumbrances or other restrictions on title or property interest that are released or otherwise terminated at or prior to the date of delivery of the encumbered assets to the Site;

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(b) obligations or duties to any Governmental Authority arising in the ordinary course of business (including under licenses and permits held by the Facility Company and under all applicable laws, rules, regulations and orders of any Governmental Authority); (c) obligations or duties under easements, leases or other property rights; (d) liens in favor of the Facility Lenders; (e) liens for taxes not yet due or that are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP; (f) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, employees,’ contractors,’ operators’ or other similar liens or encumbrances securing the payment of expenses not yet due and payable that were incurred in the ordinary course of business of the Facility Company or for amounts being contested in good faith and by appropriate proceedings; (g) encumbrances created pursuant to the Investment Documents; (h) all other Encumbrances that are incurred in the ordinary course of business of the Facility Company, are not incurred for borrowed money, and do not have a Material Adverse Effect on either the use of any material Assets of the Facility Company or the value of any such Assets; (i) easements, rights-of-way, restrictions, reservations and other similar encumbrances and exceptions to title existing or incurred in the ordinary course of business that, in the aggregate, do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the Facility Company; (j) Encumbrances (including purchase options) created pursuant to the Power Purchase Agreements; (k) trade contracts or other obligations of a like nature incurred in the ordinary course of business of the Facility Company; (l) liens arising out of judgments or awards so long as an appeal or proceeding for review is being prosecuted in good faith and for the payment of which adequate reserves in accordance with GAAP or bonds or other security have been provided or which are fully covered by insurance; (m) liens of record and zoning and other land use restrictions that do not impair the value or intended use of a Facility; (n) restrictions on transfer of membership interests provided for in any Investment Document or under any applicable federal, state or foreign securities law and (o) any other liens agreed to in writing by the parties.

“Person” means any individual, partnership, joint venture, company, corporation, limited liability company, limited duration company, limited life company, association, trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.

“Plan” means any “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended.

“Power Purchase Agreements” means collectively (i) the AT&T Power Purchase Agreement and (ii) the Wal-Mart Power Purchase Agreement.

“PPA Customers” means collectively (i) AT&T PPA Customer 1, (ii) AT&T PPA Customer 2 and (iii) the Wal-Mart PPA Customer.

“Principal Facility Documents” means all of the agreements and documents necessary or required to install, operate, maintain, test, repair and/or use the Facilities and described in Annex 3 hereto, including the Power Purchase Agreements, the MOMA, the Site Leases, each Bill of Sale, the Interconnection Agreements, Wal-Mart Gas Supply Agreement, Wal-Mart REC Agreement, agreements evidencing the Facility Company’s claim to the state

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rebates, subsidies or incentives and the interconnection approval or authorization notice from the applicable utility. Reference to any Principal Facility Document shall include all appendices, annexes, exhibits, riders and schedules thereto.

“Prohibited Payment” has the meaning set forth in Section 4.1(k).

“PUHCA” means the Public Utility Holding Company Act of 2005.

“REC PSA” means that certain REC Purchase and Sale Agreement dated as of December 21, 2012, by and between Bloom Energy Corporation and the Facility Company.

“Qualified Investment” means the cost basis of ITC Eligible Property with respect to a Tranche as determined by the Accountants in the Cost Allocation (Preliminary) or Cost Allocation (Final), as applicable.

“Seller” has the meaning set forth in the Preliminary Statements hereto.

“Site” means the parcel of land leased or licensed from each PPA Customer to the Facility Company under each Site Lease and all easements appurtenant, easement in gross, license agreements and other rights running in favor of Facility Company which provide access to the Facilities.

“Site Leases” means each agreement between Facility Company and a PPA Customer regarding the lease, license, or similar contractual arrangement providing Facility Company with the right of access to, and use of, a Site for the purposes of performing Facility Company’s obligations pursuant to the applicable Power Purchase Agreement. If Facility Company’s right of access to, and use of, a Site is contained within a Power Purchase Agreement, then the term “Site Lease”, with respect to such Site, shall mean the provisions for access to, and use of, that Site contained in such Power Purchase Agreement.

“Subsequent Facility Appraisal” means an update by Marshall & Stevens, or any other nationally recognized third-party appraiser mutually acceptable to the Parties, of an Appraisal.

“System” has the meaning set forth in the Preliminary Statements hereto.

“Tax Information” has the meaning set forth in Section 7.14(b).

“Tax Law Change” means (i) a bill passed by either house of the United States Congress, (ii) a bill reported by the United States House Committee on Ways and Means or United States Senate Committee on Finance, (iii) a bill proposed by any member of either the United States House Committee on Ways and Means or United States Senate Committee on Finance, the Speaker of the House of Representatives, the Senate Majority Leader, or the U.S. Department of the Treasury, (iv) the issuance or amendment of proposed, temporary or final Treasury Regulations, (v) any change in the interpretation of the Code or proposed, temporary or final Treasury Regulations by a controlling decision of the United States Tax Court, United States District Court, United States Court of Appeals or United States Supreme Court or (vi) any guidance, notice, announcement or ruling issued by the Treasury, IRS or any other Governmental Authority, that may reasonably have a material impact on one or more federal income tax assumptions or results within or contemplated by the Base Case Model.

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“Tax Return” means any return, report, information return, attachment, declaration, election, claim for refund or other document (including any schedule or related or supporting information) filed or supplied or required to be filed or supplied to any taxing authority with respect to Taxes including amendments thereto.

“Taxes” or “Tax” means all taxes, charges, fees, levies, duties, tariffs, imposts, penalties or other assessments imposed by any Governmental Authority or other taxing authority, including, but not limited to, income, excise, ad valorem, real or personal property, sales, use transfer, capital stock, franchise, payroll, withholding, social security, gross receipts, license, stamp, occupation, wage, employment, workers’ compensation or other taxes, including any interest, penalties or additions attributable thereto, that are owed or were paid by the Facility Company or with respect to the Facility Company’s Assets or operations.

“Taxing Authority” means the agency or department of the Governmental Authority responsible for the administration and collection of Taxes.

“Temecula Facility” means the Facility to be located at [***]

“Tranche” means one or more Facilities collectively for which an Investor Initial Funding Date Contribution or an Investor True Up Funding Contribution, as applicable, is requested.

“Transaction” has the meaning provided in Section 7.14.

“Transaction Expenses” means (i) filing and recording fees and transfer and mortgage taxes; (ii) the documented, reasonable fees (including legal fees), expenses and disbursements of the Facility Lenders and their agents, the Company, the Facility Company and the Class B Member; and (iii) the reasonable out-of-pocket expenses and disbursements (including reasonable legal fees and disbursements) incurred by the Investor subsequent to August 14, 2012 in connection with this Agreement, in each case, whether or not assumed and payable by the Class B Member or its Affiliate. For the avoidance of doubt, Transaction Expenses shall not include any Facility Costs.

“Transmitting Utility” means, with respect to a Facility, the local electric utility company in whose territory the Facility is located.

“Treasury” means the United States Department of the Treasury.

“True Up Funding Date” means, with respect to a Tranche, the first Business Day on which the satisfaction or waiver of all of the True Up Funding Date Conditions Precedent for such Tranche occurs.

“True Up Funding Date Conditions Precedent” has the meaning set forth in Section 6.4.

[***] Confidential Treatment Requested

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“True Up Funding Date Contribution” means, with respect to the Investor, an Investor True Up Funding Contribution, and, with respect to the Class B Member, a Class B Member True Up Date Funding Contribution.

“True Up Funding Date Deadline” means the earliest to occur of (a) an “Event of Default” as defined in the Financing Documents, (b) a material breach by Seller under the MESPA, and (c) March 31, 2014.

“United States Person” means a “United States person” as defined in Code Section 7701(a)(30).

“Visalia Facility” means the Facility to be located at 1819 East Noble Ave, Visalia, California.

“Wal-Mart Gas Supply Agreement” means, collectively, (i) the Base Contract for Sale and Purchase of Natural Gas, dated as of October 12, 2012, between EDF Trading North America, LLC and the Facility Company, (ii) the Special Provisions to the Base Contract for Sale and Purchase of Natural Gas, dated as of October 12, 2012, between EDF Trading North America, LLC and the Facility Company and (iii) the Gas Transaction Confirmation – Revision, dated as of October 17, 2012, between EDF Trading North America, LLC and the Facility Company.

“Wal-Mart Power Purchase Agreement” means that certain Amended and Restated Master Fuel Cell Power & Services Agreement, dated as of December 11, 2012, by and between Wal-Mart PPA Customer and the Facility Company.

“Wal-Mart PPA Customer” means Wal-Mart Stores, Inc.

“Wal-Mart REC Agreement” means any contract entered into from time to time between the Facility Company and Bloom Energy Corporation, a Delaware corporation, for the purchase of renewable energy credits in connection with the Facility Company’s obligations under the Wal-Mart Power Purchase Agreement, including the REC PSA.

“Wilmington Facility” means the Facility to be located at [***]

1.2 Rules of Interpretation. In this Agreement:

(a) The singular shall include the plural and the masculine shall include the feminine and neuter as the context requires.

(b) References to “Articles,” “Sections,” or “Annexes” shall be to articles, sections or annexes of this Agreement.

(c) Unless otherwise expressly specified, any agreement, contract or document defined or referred to herein (including in any exhibit, schedule or annex hereto) shall mean such agreement, contract or document as the same may be amended, amended and restated, supplemented or otherwise modified from time to time in accordance with this Agreement and the LLC Agreements, as applicable.

[***] Confidential Treatment Requested

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(d) References to “days” shall mean calendar days, unless otherwise indicated.

(e) The words “herein,” “hereof” and “hereunder” shall refer to this Agreement as a whole and not to any particular section or subsection of this Agreement; the words “include,” “includes” or “including” shall mean “including, but not limited to.”

ARTICLE TWO

EQUITY CAPITAL CONTRIBUTIONS

2.1 Execution Date. Subject to the satisfaction of, or waiver by the Investor and the Class B Member, as applicable, of the Execution Date Conditions Precedent on the Execution Date each of the Investor and the Class B Member shall execute and deliver this Agreement. For the avoidance of doubt, neither the Investor nor the Class B Member shall be required to make any capital contributions pursuant to clauses (a) and (b) of Section 2.2 on the Execution Date.

2.2 Initial Contributions. Subject to the satisfaction of, or waiver by the Investor and the Class B Member, as applicable, of the Initial Funding Date Conditions Precedent for a Tranche on each Initial Funding Date:

(a) The Investor shall contribute to the Company the Investor Initial Funding Date Contribution; provided that, the Initial Funding Date Contribution with respect to the Tranche comprised of the Gardena Facility, the Cheshire Facility, the North Hollywood Facility, and the Wilmington Facility shall occur in the following three stages:

(i) first, the Investor made an Investor Initial Funding Date Contribution of [***] January 30, 2013 with respect to the Temecula Facility and the Visalia Facility and those proceeds were credited to the following Facilities on June 27, 2013 in the following amounts: [***] to the Gardena Facility, [***] to the Cheshire Facility, [***] to the North Hollywood Facility, and [***] to the Wilmington Facility,

(ii) second, the Investor made an Initial Funding Date Contribution on June 28, 2013 with respect to the following Facilities in the following amounts: [***] to the Gardena Facility, [***] to the Cheshire Facility, [***] to the North Hollywood Facility, and [***] to the Wilmington Facility, and

(iii) finally, following satisfaction of the conditions set forth in Section 6.2, the Investor shall make an Initial Funding Date Contribution with respect to the following Facilities in the following amounts: [***] to the Gardena Facility, [***] to the Cheshire Facility, [***] to the North Hollywood Facility, and [***] to the Wilmington Facility; and [***]

[***] Confidential Treatment Requested

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(b) the Class B Member shall contribute (or shall have already contributed) an amount equal to the aggregate amount of all Facility Costs for the applicable Tranche expected to be due and payable as of the Initial Funding Date less the Investor Initial Funding Date Contribution for such Tranche (the “Class B Member Initial Funding Date Contribution”).

2.3 Use of Initial Funding Date Proceeds. On each Initial Funding Date, the Investor Initial Funding Date Contribution and the Class B Member Initial Funding Date Contribution for the relevant Tranche shall be wired to such Persons and the proceeds applied as follows (as provided for in greater detail in the Flow of Funds):

(a) to pay, for the benefit of the Facility Company, any MESPA Initial Invoice submitted on or prior to such date, and any other applicable Facility Costs that are payable on such date, for the relevant Tranche;

(b) to pay Transaction Expenses that are payable on such date; and

(c) any balance to the Account.

2.4 Use of Account Following the True Up Funding Date Deadline. If the satisfaction of, or waiver by, the Investor and the Class B Member, as applicable, of the True Up Funding Date Conditions Precedent for a relevant Tranche do not occur on or before the True Up Funding Date Deadline, all funds in the Account shall be wired to such Persons and the proceeds applied as follows:

(a) First, without written direction of or any other discretion of the Class A Member, to pay, for the benefit of the Facility Company, the balance, if any, of any MESPA Initial Invoice that is due and payable on such date for the relevant Tranche;

(b) Second, at the written direction of the Class A Member and in its sole discretion, to pay, for the benefit of the Facility Company, any MESPA Final Invoice and any other applicable Facility Costs that are due and payable on such date for the relevant Tranche and any Transaction Expenses that are due and payable on such date (provided, that for the avoidance of doubt, the Class A Member may determine not to give any such direction);

(c) Third, if the Class A Member acknowledges and agrees in writing that no amount is due and payable under any MESPA Initial Invoice, MESPA Final Invoice and/or otherwise under the MESPA from the Facility Company or for other applicable Facility Costs for the relevant Tranche and no Transaction Expenses are due and payable on such date, or that the full amount due and payable under any MESPA Initial Invoice, MESPA Final Invoice and/or otherwise under the MESPA from the Facility Company and for other applicable Facility Costs for the relevant Tranche and the full amount of Transaction Costs due and payable have been paid, then any balance shall be distributed solely to the Class B Member; and

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(d) Fourth, if the Class A Member does not acknowledge and agree in writing either that no amount is due and payable under any MESPA Initial Invoice, MESPA Final Invoice and/or otherwise under the MESPA from the Facility Company or for other applicable Facility Costs for the relevant Tranche, or that the full amount due and payable under any MESPA Initial Invoice, MESPA Final Invoice and/or otherwise under the MESPA from the Facility Company for the relevant Tranche has been paid then any balance shall remain in the Account to be distributed or paid as provided in the Company LLC Agreement.

2.5 True Up Date Contributions. Subject to the satisfaction of, or waiver by the Investor and the Class B Member, as applicable, of the True Up Funding Date Conditions Precedent for a Tranche on each True Up Funding Date:

(a) The Investor shall contribute to the Company the Investor True Up Date Funding Contribution; and

(b) The Class B Member shall contribute (or shall have already contributed) an amount equal to the aggregate amount of all Facility Costs for the applicable Tranche expected to be due and payable as of or after the True Up Funding Date (including the Initial Maintenance Reserve Amount with respect to each System in such Tranche), less the Investor True Up Date Funding Contribution, and, to the extent applicable, less the proceeds of any loan made (or to be made on such True Up Funding Date) pursuant to the Financing Documents applicable to such Tranche (the “Class B Member True Up Date Funding Contribution”).

2.6 Use of True Up Funding Date Proceeds and Account on True Up Funding Date. On each True Up Funding Date, the Investor True Up Funding Contribution and the Class B Member True Up Date Funding Contribution and all funds in the Account for the relevant Tranche shall be wired to such Persons and the proceeds applied as follows (as provided for in greater detail in the Flow of Funds):

(a) First, to pay, for the benefit of the Facility Company, the balance, if any, of the MESPA Initial Invoice, the MESPA Final Invoice and any other applicable Facility Costs that are payable on such date for the relevant Tranche;

(b) Second, to fund in full (i) for the benefit of the Facility Company, any reserves required by the Financing Documents and (ii) the Initial Maintenance Reserve Amount to be deposited into the Maintenance Reserve Account (as defined in the Company LLC Agreement);

(c) Third, to pay Transaction Expenses that are payable on such date; and

(d) Fourth, any balance shall be distributed solely to the Class B Member and will be treated as a distribution under the “pre-formation expense” safe harbor in Treasury Regulation 1.707-4(d).

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2.7 Limits on Investor Funding. Notwithstanding anything contained herein to the contrary, (a) the aggregate amount paid as the Investor Initial Funding Date Contributions and the Investor True Up Funding Contributions shall not exceed the Investor Commitment Amount, (b) the Investor shall not be required to make more than one Investor Initial Funding Date Contribution per each thirty (30) day period and (c) the Investor shall not be required to make more than one Investor True Up Funding Contribution per each thirty (30) day period.

2.8 Final List of Facilities. No later than the True Up Funding Date Deadline: (i) the Facility Company shall use commercially reasonable efforts to amend or otherwise modify Exhibit A (“PREMISES LIST, DESCRIPTION AND APPLICABLE LOCAL UTILITY”) to each Power Purchase Agreement to list all Sites applicable to such Power Purchase Agreement that have been funded by an Investor Initial Funding Date Contribution and/or an Investor True Up Funding Contribution, and no other Sites or Facilities; and (ii) the Class B Member shall provide to the Investor an update to Annex 1-A (List of Proposed Facilities and Locations), which lists all Facilities that have been funded by an Investor Initial Funding Date Contribution and/or an Investor True Up Funding Contribution, and no other Sites or Facilities.

ARTICLE THREE

REPRESENTATIONS AND WARRANTIES REGARDING THE FACILITY ENTITIES AND EACH FACILITY

The Class B Member represents and warrants to the Investor as follows on each Initial Funding Date, June 27, 2013 and each True Up Funding Date; provided, that any representations and warranties that expressly apply to an Initial Funding Date, June 27, 2013 or a True Up Funding Date shall be made solely as of such Initial Funding Date, June 27, 2013 or True Up Funding Date, as applicable:

3.1 Organization and Good Standing. Each Facility Entity is a limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, with full limited liability company power and authority to carry on its business as such business is now conducted and as proposed to be conducted in the Investment Documents and Principal Facility Documents. The Class B Member has previously delivered to the Investor true, correct and complete copies of the Facility Company’s organizational documents, with all amendments thereto, in effect as of the date thereof, and, except as otherwise delivered to the Investor, there have been no changes, amendments, modification or terminations of such organizational documents as of the Initial Funding Date or True Up Funding Date, as applicable.

3.2 Authorization, Execution and Enforceability. Each Facility Entity has full limited liability company power and authority to execute and deliver each Investment Document and each Principal Facility Document to which it is a party and to consummate the transactions contemplated thereunder. The execution and delivery by each Facility Entity of each Investment Document and Principal Facility Document to which it is a party and the consummation by such Facility Entity of the transactions contemplated thereunder, have been duly authorized by all necessary limited liability company action required on the part of such Facility Entity. Each

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Investment Document and Principal Facility Document to which such Facility Entity is a party has been duly executed and delivered by such Facility Entity. Each Investment Document and Principal Facility Document to which such Facility Entity is a party constitutes the valid and binding obligation of such Facility Entity, enforceable against such Facility Entity in accordance with its terms, except as such enforcement may be limited by (i) bankruptcy, insolvency or similar laws affecting creditors’ rights generally or (ii) general principles of equity, whether considered in a proceeding in equity or at law.

3.3 No Violation. The execution, delivery and performance by each Facility Entity of this Agreement and each Investment Document and Principal Facility Document to which it is a party and the consummation of the transactions contemplated hereunder and thereunder, do not and will not: (a) violate or conflict with any provision of the certificates of formation or operating agreement of such Facility Entity; (b) violate any provision or requirement of any federal, state or local law, statute, judgment, order, writ, injunction, decree, award, rule, or regulation of any Governmental Authority applicable to such Facility Entity to the extent that such violation could be reasonably expected to result in a Material Adverse Effect; (c) violate in any material respect, result in a material breach of, constitute (with due notice or lapse of time or both) a material default or cause any material penalty or right of termination to arise or accrue under, any Investment Document or Principal Facility Document to which such Facility Entity is a party; (d) result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, lease or sublease agreement to which any Facility Entity is bound; (e) violate any judgment, decree or order of any court or arbiter to which any Facility Entity is a party or by which any Facility Entity is bound; or (f) result in the creation or imposition of any Encumbrance on the Assets of any Facility Entity other than Permitted Encumbrances upon any of the Assets of such Facility Entity.

3.4 Subsidiaries; Non-Related Liabilities. The Company directly owns 100% of the Membership Interests in the Facility Company free and clear of all Encumbrances other than Permitted Encumbrances of the type described in clauses (d) and (n) of such term’s definition. The Company has no, and has never had, any Assets or any liabilities which do not arise from or otherwise relate to the ownership or operation of the Facility Company or the ownership or operation of the Facilities. The Facility Company has no, and has never had, any Assets or any liabilities that do not arise from or otherwise relate to the ownership or operation of the Facilities. The Facility Company has no, and has never had any, subsidiaries.

3.5 Members of the Company; Additional Membership Interests. Immediately prior to the execution of the Original Company LLC Agreement, the Class B Member was the sole member of the Company and there never were any other members or owners of the Company prior to such date. The Class B Member and the Investor hold the respective membership interests in the Company as set forth in the Company LLC Agreement and said interests constitute the entire membership interests in the Company. Other than as set forth in this Agreement, the Financing Documents, the Power Purchase Agreements and the Company LLC Agreement, none of the Facility Entities or the Class B Member have any contract, arrangement or commitment to issue or sell any of its membership interests or any interest in the Company, the Facility Company or the Facilities or any securities or obligations convertible into or exchangeable for, or giving any Person any right to acquire from it, any of its membership interests or any interest in the Company, the Facility Company or the Facilities, and no such securities or obligations are issued or outstanding other than as contemplated by this Agreement or the Company LLC Agreement.

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3.6 Warranty of Title; Personal Property. The Facility Company is the sole owner of each of the Facilities that has been delivered to a Site and the Facility Company has good and valid title to all of the Facility Company’s Assets free and clear of all Encumbrances except Permitted Encumbrances. All of the Facility Company’s Assets located in the state of California are considered personal property and not real property under the laws of the State of California.

3.7 Facilities; Governmental Approvals. As of the date this representation is made or confirmed, the Facility Company owns (or holds enforceable leasehold rights or easements to) all necessary properties and has obtained all Governmental Approvals, and holds a license with respect to all intellectual property rights, required as of such date to own any installed Facilities and operate and sell electric power from any operating Facilities in compliance with Applicable Law, and to execute and deliver, and perform obligations as of such date under, the Investment Documents and all Principal Facility Documents to which the Facility Company is a party. Each of the Governmental Approvals obtained as of such date is validly issued, final and in full force and effect and is not subject to any current legal proceeding or to any unsatisfied condition which is reasonably likely to have a Material Adverse Effect on the Facility Company and if there is a specific period for administrative or judicial appeals of such permits, all such appeal periods have expired. The Facility Company is in compliance in all material respects with all applicable Governmental Approvals and no Facility Entity has received written notice from a Governmental Authority of an actual or potential violation of any such Governmental Approval that could reasonably be expected to have a Material Adverse Effect on the Facility Company.

3.8 Employees. None of the Facility Entities has, or has had since the date of its creation, any employees or any applicable Plan.

3.9 Brokers. No broker, finder, investment banker, or other Person is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated hereunder, based upon arrangements made by or on behalf of any Facility Entity for which any Facility Entity or the Investor will be responsible.

3.10 Consents and Approvals. Except as set forth on Annex 5, each Facility Entity has received all third party consents which are required as of such date for the consummation and performance of the transactions contemplated hereunder by such Facility Entity.

3.11 Compliance With Applicable Law. Each of the Facility Entities, the business and operations of the Facility Entities and, with respect to the Facility Company, the development and construction of the Facilities are and have been, conducted in all respects in compliance with all Applicable Law (except that this representation does not apply to Environmental Laws, which are addressed in Section 3.15, and Taxes, which are addressed in Section 3.23), except to the extent such non-compliance could not reasonably be expected to result in a Material Adverse Effect.

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3.12 Litigation. There is no action, suit, claim, investigation or proceeding (including, but not limited to, any arbitration proceeding) of any nature pending or, to the Knowledge of the Class B Member, threatened in writing against any Facility Entity involving, affecting or relating to the transactions contemplated hereunder or any Facility Entity’s ability to complete the transactions contemplated hereunder, or involving the ownership or operation of any Facility, at law or in equity, or before or by any Governmental Authority or arbitral body that in each such case, could be reasonably expected to result in a Material Adverse Effect. No Facility Entity is subject to any order, writ, judgment, award, injunction or decree of any Governmental Authority or arbitral body involving, affecting or relating to the transactions contemplated hereunder or its ability to complete the transactions contemplated hereunder that could be reasonably expected to result in a Material Adverse Effect.

3.13 Contracts. Annex 3 lists each material written contract or agreement (other than Governmental Approvals) to which each Facility Entity is a party. The Facility Company is a party to all contracts that are necessary for it to be a party to as of such date for the ownership, installation, financing and operation of the Facilities. Each contract identified on Annex 3 is in full force and effect and constitutes a valid and binding obligation of the applicable Facility Entity, enforceable against such Facility Entity in accordance with its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency or similar laws affecting creditors’ rights generally or (ii) general principles of equity, whether considered in a proceeding in equity or at law. There are no material disputes or legal proceedings between any Facility Entity and any counterparty to any Principal Facility Document. No Facility Entity (x) owes any indemnity payment to any counterparty to any Principal Facility Document that could be reasonably expected to result in a Material Adverse Effect and (y) has any Knowledge of any event, act, circumstance or condition which constitutes, or, with the passage of time could reasonably be expected to constitute, an event of force majeure under any Principal Facility Document. The consummation of the transactions contemplated by the Investment Documents would not give any party to any Principal Facility Document the right to terminate or alter the terms of such contract or a right to claim damages thereunder.

3.14 Default. None of the Facility Entities nor, to the Knowledge of the Class B Member, any of the other parties to the Principal Facility Documents in effect with respect to the Facilities, is in default under, nor has any event occurred and is continuing which, with notice or the lapse of time or both, would result in a default under, any of such Principal Facility Documents or Governmental Approvals, whether caused by a Facility Entity or any other party to any of the Principal Facility Documents or any Governmental Approval, which, in each such case, could be reasonably expected to result in a Material Adverse Effect.

3.15 Environmental Matters.

(a) The Facility Company has not failed to perform or suffered any act which could give rise to, or has otherwise incurred, liability to any person (governmental or not) under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq., or any other Environmental Laws, nor has it received notice of any such liability or any claim therefor, which, in each such case, could be reasonably expected to result in a Material Adverse Effect.

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(b) To the Knowledge of Class B Member, there are no existing conditions at any Facility that, individually or collectively, could be reasonably expected to give rise to any liability of the Investor, Company or the Facility Company under any applicable Environmental Law or any applicable standard of conduct under any common law doctrine, including negligence, nuisance or trespass, personal injury or property damage related to or arising out of the presence, Release or exposure to Hazardous Substances, which, in each such case, could be reasonably expected to result in a Material Adverse Effect.

(c) To the Knowledge of Class B Member, there are no existing facts or circumstances that, individually or collectively, could reasonably be expected to result in the revocation of the Environmental Permits, if any, or an order prohibiting, terminating or modifying any Facility’s operations, which, in each such case, could be reasonably expected to have a Material Adverse Effect.

3.16 Equipment and Facilities. The Facility Company owns or leases or, prior to the Initial Funding Date for a Facility, will acquire ownership of or a leasehold interest in or a contractual right to use, all equipment and facilities (other than the applicable System itself and the relevant BOF) necessary for the operation and maintenance of such Facility. There is no Casualty Defect (regardless of whether covered by insurance) in existence with respect to such Facility.

3.17 Real Property. The real property described in the Site Leases is all the real property that is necessary for the construction, installation, operation and maintenance of the Facilities other than those real property interests that can be reasonably expected to be available on commercially reasonable terms as and to the extent required. To the Knowledge of the Class B Member, none of the real property on which the Facilities will be located is subject to any condemnation proceedings, lawsuits, or administrative actions that could be reasonably expected to have a Material Adverse Effect on the transactions contemplated by the Investment Documents and the Principal Facility Documents.

3.18 PUHCA and FPA Status. The Company has received a waiver of the FERC’s regulations under PUHCA regarding accounting, record-retention and reporting requirements of 18 C.F.R. § 366.21 pursuant to the notification procedures in 18 C.F.R. § 366.4(c), as a holding company solely with respect to a single-state holding company system deriving no more than 13 percent of its public-utility company revenues from outside a single state. The Facility Company is not, and following the time that one or more Facilities commences the generation of electric energy for sale will not be, a “public utility” within the meaning of Section 201(e) of the FPA.

3.19 Affiliate Transactions. Except as listed on Annex 3 and Annex 7, there are no existing contracts between any Facility Entity, on the one hand, and any affiliate of the Class B Member, on the other hand. Each contract, arrangement or agreement between the Class B Member or its Affiliates and the Facility Company or the Company, is on arms’ length terms and conditions, and any compensation provided in such contract, arrangement or agreement is reasonable in relation to the value of the services provided.

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3.20 Information. All of the factual information or representations, taken as a whole, furnished in writing by or on behalf of the Facility Entities, the Class B Member or any of their respective Affiliates to the Investor or any of its respective Affiliates, the Independent Engineer, the Accountants or any of the respective consultants of each of the foregoing with respect to any Facility Entity, the Class B Member or any Facility (including the factual information furnished by the Class B Member or any of its Affiliates to the Independent Engineer for the purposes of the Independent Engineer’s certification in connection with the achievement of Commencement of Operations (as such term is defined in the MESPA) with respect to the applicable Facility, and the factual information included within the Base Case Model) (excluding, for the avoidance of doubt, information regarding the identity of the Investor), taken as a whole, was accurate and complete (or, where appropriate, estimated in good faith) in all material respects when furnished and none of such information supplied as of the Initial Funding Date (or, in the case of any such information supplied subsequent to the Initial Funding Date, as of the date such information was supplied), taken as a whole, contained an untrue statement of a material fact or omitted to state any material fact which was necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that no representation or warranty is made with regard to projections or other forward-looking statements provided by or on behalf of the Facility Entities, the Class B Member or any of their respective Affiliates (including the Base Case Model and the assumptions therein) except that, to the Class B Member’s Knowledge, the assumptions in the Base Case Model (other than as to energy production) are reasonable in all material respects.

3.21 Insurance. Insurance policies maintained by the Facility Entities and for the Facilities meet the requirements of Annex 2 and such insurance policies are in full force and effect.

3.22 State Regulation. The Facility Company will not be subject to regulation as a “public utility” or an “electrical corporation” as such terms are defined, respectively, in sections 216 and 218 of the California Public Utilities Code. The Facility Company will not be subject to regulation as an “electric distribution company”, a “public service company” or an “electric company” as such terms are defined, respectively, in Section 16-1 of the Connecticut General Statutes as amended by Connecticut Public Act 13-298, or a “utility” as defined in Section 16-234 of the Connecticut General Statutes, as amended by Connecticut Public Act 13-298.

3.23 Taxes. None of the Facility Entities is a corporation or has ever been a corporation. None of the Facility Entities, the Class B Member or any Affiliate thereof has filed Internal Revenue Service Form 8832 (or any alternative or successor form) to elect to have, or taken any other action which would result in, any Facility Entity being classified as a corporation for federal income tax purposes under Treasury Regulation Section 301.7701-3. All Tax Returns that were required to be filed have been timely and properly filed. All Tax Returns were true, correct and complete in all material respects as they refer to any Facility Entity or the operations or Assets or any Facility Entity. All Taxes (whether or not shown on any Tax Return) attributable to the operations or Assets of any Facility Entity, or for which the Facility Entity may be liable, that are due and payable have been timely and properly paid. Except as disclosed in Annex 8, no Facility Entity has any Taxes which are currently due and payable. No Facility Entity has requested or had requested on its behalf or agreed to any extensions of time within

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which to file any waivers or comparable consents of the statute of limitation with respect to Taxes and is not currently the subject of any audit or other examination or other administrative or court proceeding with respect to Taxes and none have been threatened in writing. No Facility Entity has received any notice or inquiry from any jurisdiction where Tax Returns have not been filed that Tax Returns may be required. No Facility Entity has any powers of attorney relating to Taxes in effect. No Facility Entity has or has had any tax sharing agreement in effect respect to Taxes.

3.24 Tax Representations.

(a) No Facility Entity has leased any part of any Facility to a Disqualified Person or has taken any other action that results in any Facility becoming “tax-exempt use property” within the meaning of Code Section 168(h).

(b) Each System is a fuel cell power plant that generates at least 0.5 kilowatts of electricity using an electrochemical process and has an electricity-only generation efficiency greater than 30 percent. Each System will function independently of each other Systems to generate electricity for transmission and sale to a PPA Customer and has all the necessary components to convert a fuel into electricity using electrochemical means.

(c) As of the Initial Funding Date, no federal, state, or local tax credit (including the ITC) has been claimed with respect to any property that is part of a Facility in the applicable Tranche (other than the Gardena Facility, the Cheshire Facility, the North Hollywood Facility or the Wilmington Facility). Before the Investor made the contribution described in Section 2.2(a)(ii), no federal, state, or local tax credit (including the ITC) had been claimed with respect to any property that is part of the Gardena Facility, the Cheshire Facility, the North Hollywood Facility or the Wilmington Facility. As of June 27, 2013, no federal, state, or local tax credit (including the ITC) has been claimed with respect to any property that is part of the Temecula Facility or the Visalia Facility. As of the True Up Funding Date, no federal, state, or local tax credit, except for the ITC, has been claimed with respect to any property that is part of the applicable Tranche. No application has been submitted, nor will be submitted, for a grant provided under Section 1603 of the American Recovery and Reinvestment Tax Act of 2009, as amended by the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010, with respect to any property that is part of any Facility.

(d) No private letter ruling has been, nor will be, obtained for the transactions contemplated hereunder from the IRS.

(e) No System or BOF that is part of a Facility (other than the Gardena Facility, the Cheshire Facility, the North Hollywood Facility or the Wilmington Facility) will be originally placed in service by the Facility Company or the Company within the meaning of Section 48(b)(2) and (3) of the Code (as in effect on the day before the date of the enactment of the Revenue Reconciliation Act of 1990) before the Initial Funding Date with respect to such Facility. No System or BOF that is part of the Gardena Facility, the Cheshire Facility, the North Hollywood Facility or the Wilmington Facility

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was originally placed in service by the Facility Company or the Company within the meaning of Section 48(b)(2) and (3) of the Code (as in effect on the day before the date of the enactment of the Revenue Reconciliation Act of 1990) before the Investor made the contribution described in Section 2.2(a)(ii). No System or BOF that is part of the Temecula Facility or the Visalia Facility was originally placed in service by the Facility Company or the Company within the meaning of Section 48(b)(2) and (3) of the Code (as in effect on the day before the date of the enactment of the Revenue Reconciliation Act of 1990) on or before June 27, 2013. As of the True Up Funding Date, no improvements, modifications or additions (other than ancillary items of equipment of a kind customarily selected and furnished by lessees or owners of property substantially similar to the Facilities) will be required in order to render the applicable Tranche complete for its intended use.

(f) No Facility is comprised of any property that (i) is “used predominately outside of the United States” within the meaning of Code Section 168(g), (ii) is imported property of the kind described in Code Section 168(g)(6), (iii) is “tax- exempt use property” within the meaning of Code Section 168(h), or (iv) is not eligible for an ITC pursuant to Code Section 50(b).

(g) Each Facility consists of property, materials or parts not used by any person prior to being placed in service as part of the Facility.

(h) The Qualified Investment as set forth on the Cost Allocation (Final) is ITC Eligible Property for federal income tax purposes.

(i) No portion of the real property comprising the site of the Facility is enrolled in the U.S. Department of Agriculture’s Conservation Reserve Program.

(j) No portion of the basis of the Facility is attributable to “qualified rehabilitation expenditures” within the meaning of Section 47(c)(2)(A) of the Code.

(k) No grants have been provided by the United States, a state, a political subdivision of a state, or any other Governmental Authority for use in constructing or financing any Facility or with respect to which the Class B Member, the Company, the Facility Company, or any Facility is the beneficiary. No proceeds of any issue of state or local government obligations have been used to provide financing for any Facility the interest on which is exempt from tax under Code Section 103. No subsidized energy financing (within the meaning of Code Section 45(b)(3)) has been provided, directly or indirectly, under a federal, state, or local program provided in connection with any Facility.

(l) No taxes, fees or other charges imposed by the State of California, the State of Connecticut or of any county, municipal or other local government therein are payable by any of Class B Member, the Company or the Facility Company solely as a result of the execution and delivery of the Principal Facility Documents and Investment Documents to which it is a party and all other instruments delivered in connection with the transactions contemplated thereby, or as a result of performance under any Principal

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Facility Documents and Investment Documents to which it is a party, in each case except for such taxes, fees and other charges which have been properly accounted for in the Base Case Model.

(m) The Company’s rates for the furnishing or sale of electrical energy from the Facilities have not been established or approved on a rate of return basis, that is, pursuant to an authorization by a regulatory body permitting the Company to collect revenues that cover the Company’s cost of providing goods or services, including a fair return on the Company’s investment in providing such goods or services, where the Company’s costs and investment are determined by use of a uniform system of accounts prescribed by the regulatory body.

(n) No AT&T Power Purchase Agreement for which the Facility is within the service territory of LADWP imposes any greater financial burden as a result of Facility non-performance upon AT&T PPA Customer 1 or AT&T PPA Customer 2, as applicable, than is imposed for any Facility outside such LADWP service territory under any AT&T Power Purchase Agreement.

3.25 Bankruptcy. No event of Bankruptcy has occurred with respect to any Facility Entity.

3.26 Books and Records. The minute book and membership interest register of the Facility Company is a complete and true copy thereof and has been provided to the Company. All other books, accounts, ledgers and files of the Facility Company are complete in all material respects and have been maintained in accordance with good business practices.

3.27 Executive Order 13224 and the Patriot Act. None of the Bloom Entities or any person or entity that holds any direct or indirect interest in the Facility Company, Company, the Class B Member, or any Facility (other than the Investor or any Affiliate thereof), or is in any way affiliated with or will benefit from any of the above, (i) is described in, covered by, or specially designated pursuant to or affiliated with any person or entity described in, covered by, or specially designated pursuant to “Executive Order 13224 Blocking Terrorist Property and a Summary of the Terrorism Sanctions Regulations (Title 31, Part 595 of the U.S. Code of Federal Regulations), Terrorism List Governments Sanctions Regulations (Title 31, Part 596 of the U.S. Code of Federal Regulations), and Foreign Terrorist Organizations Sanctions Regulations (Title 31, Part 597 of U.S. Code of Federal Regulations)” (“Executive Order 13224”), or any other list or designation promulgated by the United States of America or any department or agency thereof of persons or entities transactions with which are blocked or prohibited by any statute, regulation or governmental order and (ii) is, or is reasonably likely to become, a person or entity with which any individual or entity is restricted from doing business under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56, as amended from time to time (the “Patriot Act”) or Executive Order 13224, and any regulations promulgated pursuant thereto.

3.28 Facility Costs. As of an Initial Funding Date, each MESPA Initial Invoice delivered as of such date for the applicable Tranche is true, correct and complete, and the Facility Company will have paid, or caused to be paid or otherwise provided for to the reasonable

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satisfaction of the Investor, such MESPA Initial Invoice and any other applicable Facility Costs, other than those costs or expenses that are to be paid pursuant to Section 2.6. As of a True Up Funding Date, each MESPA Final Invoice delivered as of such date for the applicable Tranche is true, correct and complete, and the Facility Company will have paid, or caused to be paid or otherwise provided for to the reasonable satisfaction of the Investor, the corresponding MESPA Initial Invoice, such MESPA Final Invoice and any other applicable Facility Costs.

3.29 Commercial Completion. As of a True Up Funding Date, each Facility in the applicable Tranche has achieved Commercial Completion. As of the Initial Funding Date for a Facility (other than the Gardena Facility, the Cheshire Facility, the North Hollywood Facility or the Wilmington Facility), the Facility Purchase Conditions were true and correct for such Facility. On and prior to June 27, 2013, the Facility Purchase Conditions were true and correct for the Temecula Facility and the Visalia Facility. On and prior to the Investor making the contribution described in Section 2.2(a)(ii), the Facility Purchase Conditions were true and correct for the Gardena Facility, the Cheshire Facility, the North Hollywood Facility and the Wilmington Facility.

3.30 Financial Statements. Each of the balance sheets of the Facility Company delivered pursuant to Sections 6.1(k) and 6.2(n) presents fairly in all material respects the financial position of the Facility Company as of the date of such balance sheet.

ARTICLE FOUR

REPRESENTATIONS AND WARRANTIES OF CLASS B MEMBER

4.1 Representations and Warranties Regarding the Class B Member. The Class B Member represents and warrants to the Investor as follows on each Initial Funding Date, June 27, 2013 and each True Up Funding Date:

(a) Organization and Good Standing. The Class B Member is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware, with full limited liability company power and authority to carry on its business as such business is now conducted and as proposed to be conducted in the Investment Documents and Principal Facility Documents.

(b) Authorization, Execution and Enforceability. The Class B Member has full limited liability company power and authority to execute and deliver this Agreement and each other Investment Document to which it is a party and to consummate the transactions contemplated hereunder and thereunder. The execution and delivery by it of this Agreement and each other Investment Document to which it is a party and the consummation by it of the transactions contemplated hereunder and thereunder, have been duly authorized by all necessary limited liability company action required on its part. This Agreement and each other Investment Document to which it is a party has been duly executed and delivered by it. This Agreement constitutes the valid and binding obligation of it, enforceable against it in accordance with its respective terms, except as such enforcement may be limited by (i) bankruptcy, insolvency or similar laws affecting creditors’ rights generally or (ii) general principles of equity, whether considered in a proceeding in equity or at law.

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(c) No Violation. The execution, delivery and performance of this Agreement and each other Investment Document to which the Class B Member is a party, the consummation of the transactions contemplated hereunder and thereunder do not or will not materially: (a) violate or conflict with any provision of its certificate of formation or operating agreement; (b) violate any provision or requirement of any federal, state or local law, statute, judgment, order, writ, injunction, decree, award, rule, or regulation of any Governmental Authority applicable to the Class B Member to the extent that such violation could be reasonably expected to result in a Material Adverse Effect; (c) violate in any material respect, result in a material breach of, constitute (with due notice or lapse of time or both) a material default or cause any material penalty or right of termination to arise or accrue under, any Principal Facility Document; or (d) result in the creation or imposition of any Encumbrance on its Assets other than a Permitted Encumbrance.

(d) Brokers. No broker, finder, investment banker or other Person is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated hereunder, based upon arrangements made by or on behalf of the Class B Member for which any Facility Entity or the Investor will be responsible.

(e) Consents and Approvals. Except as set forth on Annex 5, the Class B Member has received all third party consents which are required as of such date for the consummation and performance of the transactions contemplated hereunder by the Class B Member.

(f) Litigation. There is no claim, action, suit, investigation or proceeding (including, but not limited to, any arbitration proceeding) of any nature, at law or in equity, pending or, to the Knowledge of the Class B Member, threatened by or against the Class B Member, the Class B Member’s directors, officers, employees, agents, any of the Class B Member’s Affiliates involving, affecting or relating to the transactions contemplated hereunder or the Class B Member’s ability to consummate the transactions contemplated hereunder or involving the ownership or operation of the Facilities, at law or at equity, or before or by any Governmental Authority or arbitral body, in each case, which could be reasonably expected to have a Material Adverse Effect. The Class B Member is not subject to any order, writ, judgment, award, injunction or decree of any Governmental Authority or arbitral body involving, affecting or relating to the transactions contemplated hereunder or the Class B Member’s ability to consummate the transactions contemplated hereunder which could be reasonably expected to have a Material Adverse Effect.

(g) United States Person. The Class B Member is a United States person not subject to withholding under Section 1446 of the Code.

(h) Disqualified Person. The Class B Member is not a Disqualified Person.

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(i) Ownership. The Class B Member directly owns, and will continue to directly own until the first Investor Initial Funding Date Contribution, 100% of the Membership Interests in the Company, free and clear of all Encumbrances other than Permitted Encumbrances.

(j) No Options. Except as set forth herein and in the other Investment Documents and Financing Documents, there are no outstanding options, warrants or other rights (including conversion or preemptive rights, preferential rights to purchase and rights of first refusal) obligating the Class B Member to transfer any rights, interests or properties to any party relating to any applicable Facility Entity or any Facility.

(k) Compliance with Law. The Class B Member, in respect of itself, warrants that in performing its obligations pursuant to this Agreement and the other Investment Documents to which it is a party, that the Class B Member, its officers, directors, employees and agents have not and will not, directly or indirectly, offer, give, make, promise, pay or authorize the offering, giving, making, promising or payment of any Prohibited Payment (as defined below) to any officer or employee of any government, or any department, agency or instrumentality thereof, any public international organization, any person acting in an official capacity on behalf of such government, any candidate for or appointee to a political or government office, or any political party (each a “Government Official”). As used herein the term “Prohibited Payment” means any offer, gift, payment, promise to pay, or authorization of the payment of any money or anything of value, directly or indirectly, to a Government Official, including for the use or benefit of any other person or entity, to the extent that one knows or has reasonable grounds for believing that all or a portion of the money or thing of value which was given or is to be given to such other person or entity, will be paid, offered, promised or given or authorized to be paid by such other person or entity, directly or indirectly, to a Government Official, for the purpose of either (i) influencing any act or decision of the Government Official in his official capacity; (ii) inducing the Government Official to do or omit to do any act in violation of his lawful duty; (iii) securing any improper advantage; or (iv) inducing the Government Official to use his influence with such government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality, in order to assist in obtaining or retaining business or in directing business to any party. The Class B Member further affirms that it shall promptly report to the other parties hereto any Prohibited Payment of which it obtains knowledge with respect to the services performed under this Agreement.

(l) The Class B Member Investment Intent; Unregistered Securities. The Membership Interest in the Company to be held by the Class B Member will be acquired for investment for the Class B Member’s own account, not with a view to the distribution of any part thereof and, without in any way affecting the Class B Member’s right to dispose of such Membership Interests, as permitted by the Company LLC Agreement; the Class B Member has no present intention of selling, granting any participation in, or otherwise distributing the same; the Class B Member understands that the Membership Interests in the Company are characterized as a “restricted security” under federal and state securities laws inasmuch as such securities are being acquired in a transaction not involving a public offering and that under such laws and applicable

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regulations such securities may not be resold in the absence of an effective registration statement covering such Membership Interests in the Company or an exemption from registration under federal and state securities laws.

(m) The Class B Member Accredited Investor. The Class B Member is an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act of 1933, as amended. The Class B Member has such knowledge and experience in financial and business matters that the Class B Member is capable of independently evaluating the risks and merits of acquiring the Membership Interests in the Company; the Class B Member has independently evaluated the risks and merits of acquiring the Membership Interests in the Company and has independently determined that such Membership Interests are a suitable investment for the Class B Member; and the Class B Member has sufficient financial resources to bear the loss of its entire investment in the Membership Interest in the Company.

(n) Regulation D Compliance. Neither the Class B Member nor anyone acting on its behalf has offered any or all of the Membership Interests in the Company or any similar securities for sale to, or solicited any offer to buy any of the same from, or otherwise approached or negotiated in respect thereof with, any person other than the Investor and its Affiliates and not more than thirty-five (35) non-accredited investors, each of which has been offered Membership Interests in the Company in a private sale for investment purposes only. Neither the Class B Member nor anyone acting on its behalf has taken, or will take, any action that would subject the issuance or sale of any or all of the Membership Interests in the Company or any similar securities to the registration requirements of Section 5 of the Securities Act of 1933, as amended.

(o) Bankruptcy. No event of Bankruptcy has occurred with respect to the Class B Member.

(p) Purchase Option. There are no agreements, side letters or other legal arrangements or understandings (written or unwritten, enforceable or unenforceable) between the Class B Member (or any of its Affiliates) and any other Person that requires or compels the exercise of the Purchase Option (as defined in the Company LLC Agreement).

(q) Fees. All fees to be paid to the Class B Member or its Affiliates, as well as the other terms and conditions, under the MESPA, MOMA and the ASA are reasonable in relation to the services actually performed under such agreements.

(r) Related Person. The Class B Member is not a “related person” with respect to any lender under the Financing Documents for purposes of Treasury Regulation Section 1.752-4(b). Prior to the end of any taxable year of the Company beginning on or before the Class A Flip Point, any purchaser under any power purchase agreement for power delivered from any Facility is not a “related person” to the Company for purposes of Sections 267 or 707 of the Code, assuming the Company is not a “related person” on account of a relationship with any holder of Class A Units or any Affiliate thereof.

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(s) AT&T Power Purchase Agreement Amendment. If AT&T PPA Customer 1 or AT&T PPA Customer 2 and the Facility Company or 2013B, as applicable, have executed an amendment to an AT&T Power Purchase Agreement, the Class B Member has received all third party consents which are required with respect to such amendment.

ARTICLE FIVE

REPRESENTATIONS AND WARRANTIES OF THE INVESTOR

The Investor hereby represents and warrants to the Class B Member as follows on each Initial Funding Date, June 27, 2013 and each True Up Funding Date:

5.1 Organization and Good Standing. It is duly organized, validly existing and in good standing under the laws of the state of its formation, with full power and authority to carry on its business as such business is now conducted and as proposed to be conducted.

5.2 Authorization, Execution and Enforceability. It has full limited liability company power and authority to execute and deliver this Agreement and each other Investment Document to which it is a party, to make its respective Equity Capital Contributions and to consummate the transactions contemplated hereunder and thereunder. The execution and delivery by it of this Agreement and each other Investment Document to which it is a party and the consummation by it of the transactions contemplated hereunder and thereunder, have been duly authorized by all necessary limited liability company action. This Agreement and each other Investment Document to which it is a party has been duly executed and delivered by it. This Agreement and each other Investment Document to which it is a party constitute its valid and binding obligation, enforceable against it in accordance with its respective terms except as such terms may be limited by (i) bankruptcy, insolvency or similar laws affecting creditors’ rights generally or (ii) general principles of equity, whether considered in a proceeding in equity or at law.

5.3 No Violation. The execution, delivery and performance by it of this Agreement and each other Investment Document to which it is a party and the consummation by it of the transactions contemplated hereunder or thereunder do not and will not materially: (a) violate or conflict with any provision of its organizational documents; (b) violate any provision or requirement of any federal, state or local law, statute, judgment, order, writ, injunction, decree, award, rule, or regulation of any Governmental Authority applicable to it; or (c) violate in any material respect, result in a breach of, constitute (with due notice or lapse of time or both) a default, or result in an Encumbrance being created or imposed upon any of the properties or Assets of the Investor, under any material contract to which the Investor is a party or by which its property is bound, which violation, breach, default or Encumbrance would adversely affect the ability of such Investor to perform its obligations under this Agreement and the other Investment Documents to which it is a party.

5.4 Consents and Approvals. There is no requirement applicable to it to make any filing with, or to obtain the consent or approval of any Person as a condition to the consummation of the transactions contemplated hereunder, other than those that have already

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been obtained. All third-party consent requirements which are a condition to the execution, delivery and performance by the Investor of this Agreement and the other Investment Documents to which it is a party and the consummation of the transactions contemplated hereunder have been satisfied.

5.5 Litigation. There is no claim, action, suit, investigation or proceeding (including, but not limited to, any arbitration proceeding) of any nature, at law or in equity, pending or, to its Knowledge, threatened (in writing) by or against it, its directors, officers, employees, agents of it, or any of its Affiliates involving, affecting or relating to the transactions contemplated hereunder or its ability to complete the transactions contemplated hereunder. It is not subject to any order, writ, judgment, award, injunction or decree of any Governmental Authority or arbitral body involving, affecting or relating to the transactions contemplated hereunder or its ability to complete the transactions contemplated hereunder.

5.6 Investment Intent; Unregistered Securities. The Investor Interests to be held by it will be acquired for investment for its own account, not with a view to the distribution of any part thereof and, without in any way affecting its right to dispose of its Membership Interest in the Company as permitted by the Company LLC Agreement, it has no present intention of selling, granting any participation in, or otherwise distributing the same. It understands that the Membership Interests in the Company are characterized as a “restricted security” under federal and state securities laws inasmuch as such securities are being acquired in a transaction not involving a public offering and that under such laws and applicable regulations such securities may not be resold in the absence of an effective registration statement covering such Membership Interests or an exemption from registration under federal and state securities laws.

5.7 Accredited Investor. It is an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act of 1933, as amended. It has such knowledge and experience in financial and business matters that it is capable of independently evaluating the risks and merits of purchasing the Membership Interests in the Company; it has independently evaluated the risks and merits of purchasing the Membership Interests in the Company and has independently determined that the Membership Interests in the Company is a suitable investment for it; and it has sufficient financial resources to bear the loss of its entire investment in the Membership Interests in the Company. It has received all the information it considers necessary or appropriate for deciding whether to make its respective Equity Capital Contributions and acquire its respective Membership Interests in the Company and further represents that it has had an opportunity to ask questions and receive answers from the Class B Member regarding the terms and conditions of the offering of the Membership Interests in the Company and the business, properties, prospects and financial condition of the Facility Entities.

5.8 Regulation D Compliance. Neither the Investor nor anyone acting on its behalf has offered any or all of the Membership Interests in the Company or any similar securities for sale to, or solicited any offer to buy any of the same from, or otherwise approached or negotiated in respect thereof with, any person other than the Class B Member and its Affiliates and not more than thirty-five (35) non-accredited investors, each of which has been offered the Membership Interests in the Company in a private sale for investment purposes only. Neither the

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Investor nor anyone acting on its behalf has taken, or will take, any action that would subject the issuance or sale of any or all of the Membership Interests in the Company or any similar securities to the registration requirements of Section 5 of the Securities Act of 1933, as amended.

5.9 Brokers. No broker, finder, investment banker, or other person is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated hereunder, based upon arrangements made by or on behalf of it for which the Class B Member or each Facility Entity will be responsible.

5.10 United States Person. It is a United States person not subject to withholding under Section 1446 of the Code.

5.11 PUHCA and FPA Status. It either is not a holding company under PUHCA or, if it is a holding company, is exempt from FERC access to books and records and is entitled to waivers of accounting, record-retention and reporting requirements pursuant to 18 C.F.R. § 366.3(a) of the FERC’s regulations under PUHCA, and it is not a “public utility” as such term is defined in Section 201(e) of the FPA.

5.12 Disqualified Person. The Investor is not a Disqualified Person.

5.13 Bankruptcy. No event of Bankruptcy has occurred with respect to the Investor.

5.14 No Other Representations. The Investor is not relying on any representations or warranties whatsoever, express, implied, at common law, statutory or otherwise, except for the representations or warranties expressly set out in this Agreement and the other Investment Documents.

ARTICLE SIX

CONDITIONS PRECEDENT

6.1 Execution Date Conditions Precedent. The obligations of the Investor and the Class B Member to consummate the transactions contemplated by this Agreement on the Execution Date are subject to the satisfaction of or waiver by Investor and the Class B Member, as applicable, of each of the following conditions: (“Execution Date Conditions Precedent”):

(a) the Investor has received fully executed copies of each of the Principal Facility Documents which has been executed and delivered as of such date (including, but not limited to, the documents listed in clauses (ii) and (iii) of the definition of AT&T Power Purchase Agreement), each in form and substance reasonably satisfactory to the Investor, and each such Principal Facility Document is in full force and effect;

(b) the Investor has received fully executed copies of this Agreement, the Company LLC Agreement, the Guaranty and the Guarantor Account Agreement, each in form and substance reasonably satisfactory to the Investor, and each is in full force and effect;

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(c) the Investor has received (i) a legal opinion of Orrick, Herrington & Sutcliffe LLP as to customary corporate matters with respect to the execution and delivery of this Agreement and the other Investment Documents being delivered herewith, and (ii) a legal opinion of Morris James LLP, special Delaware counsel;

(d) the Investor has received a tax opinion from Winston & Strawn LLP, which opinion shall be in form and substance reasonably satisfactory to it;

(e) the Investor has received necessary approval from its internal investment committee, board of directors or other governing body to enter into the transactions contemplated hereunder and to make the capital contributions and payments in accordance with Article Two, subject only to the satisfaction or waiver of the conditions set forth in Section 6.2 or Section 6.4, as applicable;

(f) the Investor has received, as applicable, (i) an incumbency certificate dated as of the Execution Date from the Facility Entities, the Class B Member and the Guarantor, (ii) from the Class B Member, on behalf of each Facility Entity, a certificate from an authorized officer dated as of the Execution Date to the effect that to such officer’s Knowledge the conditions set forth in Section 6.1 have been satisfied, (iii) a good standing certificate of the Guarantor, the Class B Member and the Facility Entities, each dated as of a recent date, from the applicable Secretary of State, (iv) resolutions of the Board of Directors, or other equivalent governing body, of the Facility Entities, the Class B Member and the Guarantor authorizing and approving the execution of this Agreement, the other Investment Documents and the transactions contemplated hereunder certified by a secretary or an assistant secretary as of the Execution Date and (v) formation documents certified by a secretary or an assistant secretary as of the Execution Date, in each case, unless otherwise noted, of the Guarantor, the Class B Member and the Facility Entities as are customary for transactions of this type, each of which shall be reasonably satisfactory to the Investor;

(g) the Investor has received the Base Case Model, including a compilation report, in form and substance reasonably satisfactory to it;

(h) the Investor has received the annual budget for the Facility Company, and the consolidated balance sheet of the Company as of the last day of the month immediately preceding the Execution Date;

(i) the Investor has received copies of searches of all financing statements of public record and of judgment, litigation and tax lien records;

(j) the Investor has received the Appraisal in form and substance reasonably satisfactory to it;

(k) the Investor has received fully executed copies of amendments to the Facility Company LLC Agreement, the Interparty Agreement and the Financing Documents;

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(l) the Investor has received fully executed copy of the Omnibus Amendment #2;

(m) the Investor has received an update to the Independent Engineer Report and a letter executed by the Independent Engineer permitting the Investor to rely on such Independent Engineer Report, if not addressed to the Investor, in each case in form and substance reasonably satisfactory to the Investor;

(n) the Class B Member shall have delivered to the Investor an affidavit of non-foreign status dated the Execution Date that complies with Section 1445 of the Code;

(o) the Investor has received evidence that the Class B Member has, by electronic mail, overnight delivery or registered or certified mail, notified AT&T PPA Customer 1 of the partial assignment to the Facility Company of that certain Energy System Use Agreement No. 20130430.072.C dated as of May 15, 2013, by and between AT&T PPA Customer 1 and 2013B and notified AT&T PPA Customer 2 of the partial assignment to the Facility Company of that certain Energy System Use Agreement No. 20130430.078.C dated as of May 15, 2013, by and between AT&T PPA Customer 2 and 2013B;

(p) the Investor has received evidence that the Class B Member has, by electronic mail, overnight delivery or registered or certified mail to each of AT&T PPA Customer 1 and AT&T PPA Customer 2, submitted a request for clarification that the use of the word “lease” in Exhibit C to each of the AT&T Power Purchase Agreements associated with Facilities in the service territory of LADWP was unintended and/or a mistake and, in connection therewith, a request for an acknowledgment that a corrected Exhibit C will be substituted; and

(q) The Class B Member shall have paid (or caused to be paid) or shall have made arrangements in the manner reasonably satisfactory to the payee for the payment of all outstanding amounts due, as of the Execution Date, and owing to with respect to Transaction Expenses for all services rendered and billed prior to the Execution Date.

6.2 Initial Funding Date Conditions Precedent. The obligations of the Investor and the Class B Member to make an Initial Funding Date Contribution on an Initial Funding Date are subject to the satisfaction of or waiver by Investor and the Class B Member, as applicable, of each of the following conditions with respect to the applicable Tranche to be funded on such Initial Funding Date (“Initial Funding Date Conditions Precedent”):

(a) The Investor has received within not less than seven (7) Business Days’ written notice from the Class B Member of the anticipated Initial Funding Date and at least three (3) Business Days’ notice from the Class B Member of the actual Initial Funding Date (which notice of the actual Initial Funding Date includes the number of Facilities to be funded, the kW of the Facilities to be funded, the location of the Facilities to be funded, the estimated date of Commencement of Operations (as such term is

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defined in the MESPA) for the Facilities to be funded and a notice from the Class B Member addressed to the Investors specifying in detail the Persons (and the account information with respect thereto) designated to receive the payments set forth in Section 2.3, following receipt of the Investor’s Initial Funding Date Contribution); provided, however, any failure to provide such notice shall affect only the timing of the Initial Funding Date, but shall not affect in any way the obligations of the Equity Investors to make Equity Capital Contributions hereunder subject to the other conditions set forth in this Section 6.2;

(b) no material default caused by any Bloom Entity exists under any of the Principal Facility Documents or under the Investment Documents and to Class B Member’s Knowledge, no material default caused by a party other than a Bloom Entity exists under any of the Principal Facility Documents or under the Investment Documents;

(c) the Investor has received true, correct and complete copies of all of the insurance certificates from the insurance broker with respect to the insurance policies for the Company, the Facility Company and the applicable Tranche that are described in Annex 2, or such other evidence reasonably satisfactory to the Investor that such insurance policies are in full force and effect;

(d) each Facility Entity and each Equity Investor has received all necessary third party consents, waivers, authorizations and approvals required as of such date (“Necessary Approvals”) in connection with the execution, delivery and performance of this Agreement and the transactions contemplated hereunder;

(e) the Facility Company is not subject to regulation as (i) a “public utility” or an “electrical corporation” as such terms are defined, respectively, in sections 216 and 218 of the California Public Utilities Code or (ii) an “electric distribution company”, a “public service company” or an “electric company” as such terms are defined, respectively, in Section 16-1 of the Connecticut General Statutes as amended by Connecticut Public Act 13-298, or a “utility” as defined in Section 16-234 of the Connecticut General Statutes, as amended by Connecticut Public Act 13-298;

(f) each of the representations and warranties in this Agreement and the other Investment Documents (other than those made as of a later date) is true and correct in all material respects as of the Initial Funding Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date);

(g) no change adverse to any Facility Entity, the PPA Customers, counterparties to the Interconnection Agreements, Seller, Operator or Administrator has occurred since August 14, 2012, except to the extent such change does not constitute or could not reasonably be expected to constitute a Material Adverse Effect with respect to any Facility Entity, the PPA Customers, the counterparties to the Interconnection Agreements, Seller, Operator or Administrator;

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(h) no Tax Law Change has occurred subsequent to the Execution Date;

(i) the Investor has received reasonably satisfactory evidence that the Class B Member’s Initial Funding Date Contribution has been made or shall be made contemporaneously with the Investor’s Initial Funding Date Contribution;

(j) the Class B Member shall have executed and delivered to the Investor a certificate, dated the Initial Funding Date, certifying the matters set forth in Sections 6.2 and that all amounts then payable to the Seller pursuant to the MESPA have been paid or shall be paid with the proceeds of the Investor Initial Funding Date Contribution and Class B Member Initial Funding Date Contribution to be made on such date;

(k) no election shall have been filed with the IRS to treat any of the Company or the Facility Company as an association taxable as a corporation for federal income tax purposes;

(l) the Investor has received copies of site maps, site plans and design drawings (available at such time) relating to the Facility, in form and substance reasonably satisfactory to the Investor;

(m) the Investor has received the balance sheet of the Facility Company as of the last day of the calendar month immediately preceding the calendar month in which the applicable Initial Funding Date is to occur;

(n) the Investor has received a Cost Allocation (Preliminary) with respect to the applicable Tranche to be funded, in form and substance reasonably satisfactory to it;

(o) the Investor has received either (i) a certification from the Class B Member that the circumstances underlying the Appraisal with respect to the applicable Tranche have not materially changed subsequent to the delivery of such Appraisal, or (ii) in the event the circumstances underlying the Appraisal with respect to the applicable Tranche have materially changed subsequent to the delivery of the Appraisal, and if requested by the Investor, the Investor has received a Subsequent Facility Appraisal, in form and substance reasonably satisfactory to it;

(p) with respect to the first Initial Funding Date, the Investor has received estoppel certificates from the Seller, the Operator and the Administrator relating to the MESPA, the MOMA and the ASA respectively, substantially in the applicable form for each attached hereto as Annex 6 (or such other form as the Class B Member may propose and is reasonably satisfactory to the Investor) dated the first Initial Funding Date;

(q) the amounts funded on the Initial Funding Date shall be sufficient to fund all amounts required to be paid (through offset or otherwise) or deposited under Section 2.3, as indicated in the Flow of Funds;

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(r) the Flow of Funds for the Initial Funding Date shall have been executed and delivered by the parties thereto;

(s) except as provided by the Financing Documents and except for Permitted Encumbrances, there are no Encumbrances against the Company, the Facility Company or the Facilities;

(t) the Investor has received reasonably satisfactory evidence that the Guarantor maintains [***] in cash equivalent investments;

(u) for any Initial Funding Date other than for the Gardena Facility, the Cheshire Facility, the North Hollywood Facility or the Wilmington Facility, the Investor has received a certificate from the Class B Member certifying to the Investor that the Facility Purchase Conditions are true and correct for each Facility in the applicable Tranche as of such Initial Funding Date and that it is reasonable to expect that Commencement of Operations (as such term is defined in the MESPA) of each Facility in the applicable Tranche will occur no later than thirty (30) days following the Initial Funding Date (such certification to also include the number of Facilities for which the confirmation is provided, the kW of the Facilities for which the confirmation is provided, the location of the Facilities for which the confirmation is provided and the estimated date of Commencement of Operations (as such term is defined in the MESPA) for the Facilities for which the confirmation is provided) and the Independent Engineer has confirmed the same to the Investor by email;

(v) the Investor has received fully executed copies of the Financing Documents that have been executed as of such date and which have not been previously delivered to the Investor;

(w) a legal opinion of Orrick, Herrington & Sutcliffe LLP, special California counsel, as to California permitting matters;

(x) with respect to any Initial Funding Date that occurs on or after the date hereof, the Investor has received any agreements, documents and/or other deliverables required to be delivered on or prior to the date of such Initial Funding Date under the Power Purchase Agreements by either the PPA Customers or the Facility Company;

(y) with respect to any Initial Funding Date that occurs on or after the date hereof, the Investor has received (i) evidence reasonably acceptable to the Investor of inclusion of the applicable Facility in the California Self-Generation Incentive Program or the Connecticut Low Emission Renewable Energy Credit Program, as applicable, and (ii) for any Facility located in Connecticut, the LREC Agreement associated with such Facility;

(z) with respect to any Initial Funding Date that occurs on or after the date hereof, the Guarantor has deposited into the Guarantor Account the amount then required to have been deposited, including for the applicable Tranche, in accordance with the Guaranty;

[***] Confidential Treatment Requested

39

(aa) with respect to any Initial Funding Date that occurs more than sixty (60) days after the Execution Date: (i) for an AT&T Facility that is located within the service territory of LADWP, the Facility Company and the applicable AT&T PPA Customer have executed an amendment to the applicable AT&T Power Purchase Agreement that is reasonably acceptable to the Investor which demonstrates such AT&T PPA Customer’s and the Facility Company’s understanding and agreement that the use of the word “lease” in Exhibit C to such AT&T Power Purchase Agreement was unintended and/or a mistake and a corrected Exhibit C is substituted, and (ii) the Facility Company and the applicable AT&T PPA Customer have executed any new Site Lease provided for under Amendment NO. 1 to Energy System Use Agreement No. 20130403.075.C or Amendment NO. 1 to Energy System Use Agreement No. 20130403.077.C, as applicable, in substantially the same form as any original Site Lease entered into pursuant to the applicable AT&T Power Purchase Agreement;

(bb) with respect to an Initial Funding Date for any Facility located in Connecticut, a legal opinion of counsel to the Facility Company covering the enforceability under Connecticut law of Energy System Use Agreement No. 20130403.077.C (as amended by Amendment NO. 1 to Energy System Use Agreement No. 20130403.077.C if such amendment has been executed as of such date) and any Site Lease for an AT&T Facility located in Connecticut provided for under such agreement, and a legal opinion of counsel to the Facility Company covering the permitting of such Facility under Connecticut law, in each case, in form reasonably satisfactory to the Investor;

(cc) with respect to an Initial Funding Date for the Gardena Facility, the Cheshire Facility, the North Hollywood Facility or the Wilmington Facility, the Investor has received with respect to such Facility, a supplement to the Insurance Report and a letter executed by the Insurance Consultant permitting the Investor to rely on such supplement, if not addressed to the Investor; and

(dd) with respect to any Initial Funding Date that occurs more than ten (10) days following the execution of Amendment NO. 1 to Energy System Use Agreement No. 20130403.075.C by each of AT&T PPA Customer 1 and the Facility Company and the execution of Amendment NO. 1 to Energy System Use Agreement No. 20130403.077.C by each of AT&T PPA Customer 2 and the Facility Company, a legal opinion of Orrick, Herrington & Sutcliffe LLP, special California counsel, as to the enforceability of (i) such amendments and (ii) any new Site Lease for an AT&T Facility located in California provided for under either of such amendments.

6.3 Obligations of the Equity Investors and Facility Entities on Each Initial Funding Date. On each Initial Funding Date, subject to satisfaction of the conditions set forth in Section 6.2, the Equity Investors shall make capital contributions and deposits and apply funds in accordance with Section 2.3 hereof.

40

6.4 Investor True Up Funding Date Conditions Precedent. The obligations of the Investor and the Class B Member to make a True Up Funding Date Contribution on a True Up Funding Date are subject to the satisfaction of or waiver by the Investor and the Class B Member of each of the following conditions with respect to the applicable Tranche to be funded on such True Up Funding Date (“True Up Funding Date Conditions Precedent”):

(a) the Investor has received within not less than seven (7) Business Days’ written notice from the Class B Member of the anticipated True Up Funding Date and at least three (3) Business Days’ notice from the Class B Member of the actual True Up Funding Date (which notice of the actual True Up Funding Date includes the number of Facilities to be funded, the kW of the Facilities to be funded, the location of the Facilities to be funded, the estimated date of Commencement of Operations (as such term is defined in the MESPA) for the Facilities to be funded and a notice from the Class B Member addressed to the Investors specifying in detail the Persons (and the account information with respect thereto) designated to receive the payments set forth in Section 2.6, following receipt of the Investor’s True Up Funding Date Contribution); provided, however, any failure to provide such notice shall affect only the timing of such True Up Funding Date, but shall not affect in any way the obligations of the Equity Investors to make Equity Capital Contributions hereunder subject to the other conditions set forth in this Section 6.4;

(b) Commercial Completion of each Facility in the applicable Tranche has occurred and the Independent Engineer has confirmed the same to the Investor in writing (such confirmation to include the number of Facilities for which the confirmation is provided, the kW of the Facilities for which the confirmation is provided and the location of the Facilities for which the confirmation is provided) and the applicable Tranche shall be producing electricity in commercial quantities;

(c) the Investor has received fully executed copies of each of the Principal Facility Documents which has been executed and delivered after the Execution Date but prior to the True Up Funding Date, each in form and substance reasonably satisfactory to the Investor, and each such Principal Documents is in full force and effect, and a fully executed copy of each amendment or additional document entered into in accordance with Section 7.15(b);

(d) no material default caused by any Bloom Entity exists under any of the Principal Facility Documents or under the Investment Documents and to Class B Member’s Knowledge, no material default caused by a party other than a Bloom Entity exists under any of the Principal Facility Documents or under the Investment Documents;

(e) each Facility Entity and each Equity Investor has received all Necessary Approvals required as of such date in connection with the purchase, sale, installation and operation of the relevant Facilities that are the subject of the True Up Funding Date Contribution;

(f) each of the representations and warranties in this Agreement and the other Investment Documents (other than those made as of a later date) is true and correct in all material respects as of the True Up Funding Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date);

41

(g) no Tax Law Change has occurred subsequent to the Initial Funding Date;

(h) the Investor has received reasonably satisfactory evidence that the Class B Member’s True Up Funding Date Contribution with respect to the applicable Tranche to be funded has been made or shall be made contemporaneously with the Investor’s True Up Funding Date Contribution;

(i) the Investor has received either (i) a certification from the Class B Member that the circumstances underlying the Appraisal with respect to the applicable Tranche have not materially changed subsequent to the delivery of such Appraisal, or (ii) in the event the circumstances underlying the Appraisal with respect to the applicable Tranche have materially changed subsequent to the delivery of the Appraisal, and if requested by the Investor, the Investor has received a Subsequent Facility Appraisal, in form and substance reasonably satisfactory to it;

(j) with respect to the last True Up Funding Date only, the Investor has received an updated Base Case Model, including a compilation report, rerun to reflect actual applicable Facility Costs and all other updated model inputs (including the effect of any Tax Law Change), and such updated Base Case Model shall be in form and substance reasonably satisfactory to the Investor;

(k) the Investor has received a Cost Allocation (Final) with respect to the applicable Tranche to be funded, in form and substance reasonably satisfactory to it;

(l) the amounts funded on the True Up Funding Date shall be sufficient to fund all amounts required to be paid (through offset or otherwise) or deposited under Section 2.6, as indicated in the Flow of Funds, and the Investor shall have received copies of the lien waivers from the Seller in connection with all amounts paid to the Seller thereunder, which, so long as such lien waivers are unconditional, may be dated as of an earlier date;

(m) the Flow of Funds for the True Up Funding Date shall have been executed and delivered by the parties thereto;

(n) the Investor has received reasonably satisfactory evidence that the Guarantor continues to maintain $10,000,000 in cash equivalent investments;

(o) except as provided by the Financing Documents and except for Permitted Encumbrances, there are no Encumbrances against the Company, the Facility Company or the Facilities;

(p) funding has occurred, or will occur simultaneously with the True Up Funding Date, with respect to the loan to be made under the Financing Documents with respect to the applicable Tranche, or the Investor has received confirmation from the Facility Lenders that such loan will be made upon the receipt by the applicable parties of the payments or deposits to be made pursuant to clauses (a), (b) and (c) of Section 2.6;

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(q) the Class B Member shall have executed and delivered to the Investor a certificate, dated the True Up Funding Date, certifying the matters set forth in Section 6.4 and that all amounts then payable to the Seller pursuant to the MESPA have been paid, or shall be paid with the proceeds of the Investor True Up Funding Contribution, the Class B Member True Up Funding Date Contribution and the loan to be made under the Financing Documents, in each case, to be made on (or prior to) such date;

(r) the Investor has received the balance sheet of the Facility Company as of the last day of the calendar month immediately preceding the calendar month in which the applicable True Up Funding Date is to occur;

(s) with respect to any True Up Funding Date that occurs on or after the date hereof, the Investor has received the MESPA Final Invoice for each Facility to be funded on such True Up Funding Date;

(t) with respect to any True Up Funding Date that occurs on or after the date hereof, the Investor has received any agreements, documents and/or other deliverables required to be delivered on or prior to the date of such True Up Funding Date under the Power Purchase Agreements by either the PPA Customers or the Facility Company;

(u) with respect to the True Up Funding Date for the Facility to be located at 751 Higgins Road, Cheshire, Connecticut, the Class B Member has provided to the Investor, no later than August 26, 2013, fully executed copies of assignment agreements by which the Facility Company shall be assigned the right to sell Connecticut renewable energy credits produced by the Facility; and

(v) with respect to any True Up Funding Date for an AT&T Facility that is located within the service territory of LADWP, the Facility Company and the applicable AT&T PPA Customer have executed an amendment to the applicable AT&T Power Purchase Agreement that is reasonably acceptable to the Investor which demonstrates such AT&T PPA Customer’s and the Facility Company’s understanding and agreement that the use of the word “lease” in Exhibit C to such AT&T Power Purchase Agreement was unintended and/or a mistake and a corrected Exhibit C is substituted.

6.5 Obligations of the Equity Investors and Facility Entities on Each True Up Funding Date. On each True Up Funding Date, subject to satisfaction of the conditions set forth in Section 6.4, the Equity Investors shall make capital contributions and deposits and apply funds in accordance with Section 2.6 hereof.

ARTICLE SEVEN

GENERAL PROVISIONS

7.1 Notices. Any notice or other communication to be given hereunder shall be in writing and shall be delivered by hand (including, without limitation, by express courier against written receipt) or sent by registered prepaid first class mail, facsimile copy or by email

43

transmission to the persons or addresses specified below (or such other Person or address as a Party may previously have notified all other Parties in writing for that purpose). A notice or other communication shall be deemed to have been served when delivered by hand at that address or received by email or facsimile copy (provided the sender can and does provide evidence of successful transmission), or, if sent by registered prepaid first class mail as aforesaid, on the date delivered. Any notice or other communication received on a day that is not a Business Day or later than 5:00 p.m. on a Business Day shall be deemed to be received on the next Business Day. The names and addresses for the service of notices referred to in this Section 7.1 are:

If to the Class B Member, to:

Clean Technologies III, LLC

c/o Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, CA 94089-1137

Attention: [***]

Telephone: [***]

Facsimile: [***]

Email: [***]

If to the Investor, to:

Firstar Development, LLC

1307 Washington, Suite 300

St. Louis, MO 63103

Attention: [***]

Telephone: [***]

Facsimile: [***]

Email: [***]

Any Party may change the address or number to which notices to such Party are to be delivered by providing notice of such change to each other Party in the manner set forth above.

7.2 No Third Party Beneficiaries. This Agreement is solely for the benefit of the Parties and their respective successors and permitted assigns and this Agreement shall not otherwise be deemed to confer upon or give to any other third party any right, claim, cause of action, or other interest herein.

7.3 Amendment and Waiver. Neither this Agreement nor any term hereof may be changed, amended or terminated orally, but only by written act of the Parties (or, in respect of a waiver, the waiving Party or Parties). No failure or delay on the part of a Party hereto in the exercise of any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or of any other right.

7.4 Binding Nature; Assignment. This Agreement shall bind and inure to the benefit of the Parties hereto and their respective successors and legal representatives and

[***] Confidential Treatment Requested

44

permitted assigns. No Party shall assign its rights and obligations under this Agreement, without the prior written consent of the other Parties hereto and any such assignment contrary to the terms hereof shall be null and void and of no force and effect; provided, however, that each of the Parties shall be entitled to assign its rights and obligations under this Agreement to an Affiliate thereof; provided that to the extent the Investor is assigning its rights and obligations under this Agreement to an Affiliate, such Affiliate’s creditworthiness is equal to or better than that of the Investor as of the date hereof and the Investor has provided documentation to the Class B Member that is reasonably acceptable to the Class B Member and evidences such creditworthiness; provided, however, that each Facility Entity may assign its rights under this Agreement to the Facility Lenders as collateral for the obligations of the Facility Company under the Financing Documents.

7.5 Governing Law. THIS AGREEMENT SHALL BE DEEMED MADE AND PREPARED AND SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS THEREOF WHICH MAY REQUIRE THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).

7.6 Jurisdiction; Service of Process. Each of the parties hereto hereby irrevocably consents to the non-exclusive jurisdiction of the courts of the State of New York located in New York County and of the United States District Court for the Southern District of New York in connection with any suit, action or other proceeding arising out of or relating to this Agreement or the transactions contemplated hereby; agrees to waive any objection to venue in the State and County of New York; and agrees that, to the extent permitted by law, service of process in connection with any such proceeding may be effected by mailing in the same manner provided in Section 7.1 hereof.

7.7 Counterparts. This Agreement may be executed in counterparts, each of which shall be an original, but each of which, when taken together, shall constitute one and the same instrument.

7.8 Headings. The section and paragraph headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning and interpretation of this Agreement.

7.9 Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, (provided the substance of the agreement between the Parties is not thereby materially altered) and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by Applicable Law, the Parties hereto hereby waive any provision of law which renders any provision hereof prohibited or unenforceable in any respect.

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7.10 Entire Agreement. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior statements or agreements, whether oral or written, among the Parties with respect to such subject matter.

7.11 No Solicitation. The transaction described in this Agreement has been discussed with a limited number of prospective institutional equity investors. No Equity Investor may solicit, directly or indirectly, whether through an agent or otherwise, the participation of another investor without the prior written approval of the Class B Member.

7.12 WAIVER OF JURY TRIAL. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING TO A DISPUTE AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO.

7.13 Expenses. The Class B Member will cause all Transaction Expenses (other than those that are paid pursuant to Section 2.3(b), Section 2.6(c) or Section 6.1(q) or otherwise expressly assumed and separately payable by the Class B Member or its Affiliate) to be paid no later than thirty (30) days after the submission of the relevant invoice by the Investor to the Class B Member. All Transaction Expenses so paid under this Section 7.13 or otherwise assumed and paid by the Class B Member or its Affiliate shall be treated as Capital Contributions to the Company. With respect to Transaction Expenses incurred by the Investor after August 14, 2012, the Investor may, in its sole discretion, pay certain of such Transaction Expenses, and if so paid, the Capital Account (as defined in the Company LLC Agreement) of the Investor will increase in an amount equal to the Investor’s payments for such Transaction Expenses.

7.14 Confidentiality.

(a) With respect to each of the Facility Entities, the Investor and their respective Affiliates, except to the extent necessary for the exercise of its rights and remedies and the performance of its obligations under this Agreement, such party will not itself use or intentionally disclose (and will not permit the use or disclosure by any of its Affiliates or its advisors, counsel and public accountants (collectively, “advisors”)) of, directly or indirectly, any of the Principal Facility Documents or information furnished thereunder, or the Investment Documents or information furnished thereunder (the “Transaction”) and will use all reasonable efforts to have all such information kept confidential (consistent with its own practices) and not used in any way known to such party to be detrimental to any of the others; provided that (i) any such party and its advisors may use, retain and disclose any such information to its special counsel and public accountants or any Governmental Authority, (ii) any such party and its advisors may use, retain and disclose any such information that has been publicly disclosed (other than by such party or any Affiliate thereof or any of its advisors in breach of this Section 7.14(a)) or has rightfully come into the possession of such party or any Affiliate thereof or any of its advisors other than from another party hereto or a Person acting on such other party’s behalf, (iii) to the extent that any such party or any Affiliate thereof or its advisors is required or requested to disclose any such information as a result of any Applicable Law or may have received a subpoena or other written demand under color of legal right for such information, such party or such Affiliate or advisor may disclose such

46

information, but such party shall first, as soon as practicable upon receipt of such demand or request, furnish a copy thereof to the other parties and, if practicable so long as such party shall not be in violation of such subpoena, demand or request or likely to become liable to any penalty or sanctions thereunder, afford the other parties reasonable opportunity, at any other party’s cost and expense, to obtain a protective order or other reasonably satisfactory assurance of confidential treatment for the information required to be disclosed, (iv) disclosures to lenders, potential lenders or other Persons providing financing to the Facility Entities or any member in any Facility Entity, if such Persons have agreed to abide by the terms of this Section 7.14(a), (v) any such party and its advisors may disclose any such information and make such filings, as may be required by this Agreement, the other Investment Documents or the Principal Facility Documents, (vi) any such party and its Affiliates and advisors may disclose information relating to the Facilities (but not information relating to a member’s equity investment in any Facility Entity) to lenders, potential lenders or other Persons providing financing to any Person developing or proposing to develop the remaining phases of the Facilities and potential purchasers of Membership Interests in such Person if such Persons have agreed to the terms of this Section 7.14(a) and (vii) any such party which is an insurance company or an Affiliate thereof may disclose such information to the National Association of Insurance Commissioners and any rating agency requiring access to its investment portfolio. Notwithstanding anything herein to the contrary, a Party may disclose information to its Affiliates and other advisors in accordance with this Agreement if such Persons have agreed with the other Parties in writing to the terms of this Section 7.14(a) and, additionally, the Class B Member and any of its Affiliates (including entities that become Affiliates subsequent to the date hereof) may use any operational data with respect to the Facilities for the purpose of researching, analyzing, designing, improving, developing, manufacturing, installing, modifying or operating other fuel cell-powered electric generating facilities, whether similar to or different from the Facilities.

(b) Notwithstanding anything to the contrary, the foregoing obligations shall not apply to the tax treatment or tax structure of the Transaction and each party hereto (and any employee, representative, or agent of any party) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all other materials of any kind (including opinions or other tax analyses) that are provided to any party hereto to the extent relating to such tax treatment and tax structure (all such information that may be so disclosed hereunder is hereinafter referred to as the “Tax Information”). For purposes of this Section 7.14(b), the Tax Information includes only those facts that may be relevant to understanding the purported or claimed U.S. federal income tax treatment or tax structure of the Transaction and, to eliminate any doubt, therefore specifically does not include information that either reveals or standing alone or in the aggregate with other information so disclosed tends of itself to reveal or allow the recipient of the information to ascertain the identity of any of the Facility Entities, any member (or potential member) of the Facility Entities, or any other third parties involved in any of the Transaction or any other potential transactions with any of the foregoing. However, any Tax Information is required to be kept confidential to the extent necessary to comply with any applicable securities laws. This Section 7.14(b) is intended to prevent such an investment in the Facility Entities from being treated as “reportable transaction” as a result of it being a transaction offered to a

47

taxpayer under conditions of confidentiality within the meaning of Code Sections 6011, 6111 and 6112 (or any successor provision) and the Treasury Regulations thereunder (as clarified by Notice 2004-80 and Notice 2005-22) and shall be construed in a manner consistent with such purpose.

7.15 Further Assurances; Amendments to Governmental Approvals and Principal Facility Documents; Reports.

(a) Each Party hereto covenants and agrees promptly to execute, deliver, file, or record such agreements, instruments, certificates and other documents and to do and perform such other and further acts and things as any other Party hereto may reasonably request or as may be otherwise be necessary or proper to consummate the transactions contemplated hereby and to carry out the provisions of this Agreement.

(b) Prior to any True Up Funding Date with respect to a Tranche, the Bloom Entities shall not, without the prior consent of the Investor (such consent not to be unreasonably withheld, delayed or conditioned) (i) waive the provisions of, terminate or materially amend any of the Financing Documents, (ii) waive the provisions of, terminate or materially amend any Governmental Approval in effect as of the Initial Funding Date for such Tranche, (iii) waive the provisions of, terminate or materially amend any of the Principal Facility Documents or (iv) enter into any Principal Facility Document or any additional material project document not in effect on the Initial Funding Date for such Tranche.

(c) Each Party hereto covenants and agrees to promptly deliver the information requested by any other Party in order to allow such party to comply with the Patriot Act, including, without limitation, the names, addresses and other information that will allow the requesting Party to identify the other Party in accordance with the requirements of the Patriot Act.

7.16 LIMITATIONS OF LIABILITY. NO PARTY SHALL BE LIABLE (WHETHER IN CONTRACT, TORT, STRICT LIABILITY, EQUITY, OR OTHERWISE) FOR ANY SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, INCLUDING LOST PROFITS AND ANY OTHER DAMAGES WHICH CANNOT BE READILY ASCERTAINED AND QUANTIFIED, FOR ANY BREACH OF A REPRESENTATION OR WARRANTY UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT IF, AFTER THE INVESTOR SHALL HAVE ACTUALLY FUNDED ITS INVESTOR INITIAL FUNDING DATE CONTRIBUTION IN RESPECT OF THE FACILITY COMPANY, ANY PART OF THE ITC IS LOST, REDUCED, RECAPTURED, DISALLOWED OR NOT CLAIMED BECAUSE CLASS B MEMBER OR ITS AFFILIATE, PERSON WITH A DIRECT OR INDIRECT INTEREST THEREIN OR ANY FACILITY ENTITY BREACHES ANY REPRESENTATION, WARRANTY, COVENANT OR OBLIGATION, ANY FEDERAL TAX DETRIMENTS SUFFERED AS RESULT OF SUCH RECAPTURE, LOSS, REDUCTION, DISALLOWANCE OR INABILITY TO CLAIM (INCLUDING WITHOUT LIMITATION, RECOMPUTATION OF TAX, CHANGE IN DISTRIBUTIVE SHARE OF TAX DEPRECIATION OR TAXABLE INCOME OR LOSS, PENALTIES, INTEREST AND

48

ADDITIONS TO TAX) SHALL NOT CONSTITUTE CONSEQUENTIAL DAMAGES. THE OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT ARE OBLIGATIONS OF THE PARTIES ONLY AND NO RECOURSE SHALL BE AVAILABLE UNDER THIS AGREEMENT AGAINST ANY OFFICER, DIRECTOR, MANAGER, MEMBER, PARTNER, OR AFFILIATE OF ANY PARTY.

7.17 Amendment and Restatement. This Agreement amends and restates the Original ECCA in its entirety as of the Execution Date on the terms and subject to conditions set forth herein, and the Original ECCA is of no further force or effect from and after the Execution Date, except as specifically set forth in this Section 7.17. Notwithstanding the modifications effected by this Agreement of the representations, warranties and covenants of the Class B Member contained in the Original ECCA, Class B Member acknowledges and agrees that any causes of action or other rights created in favor of the Investor and its successors arising prior to the Execution Date out of the representations and warranties of the Class B Member contained in or delivered in connection with the Original ECCA shall survive the execution and delivery of this Agreement for the period of time such causes of action or other rights would have survived under the Original ECCA. All indemnification obligations of the Class B Member arising prior to the Execution Date pursuant to the Original ECCA or the Original Company LLC Agreement (including any arising prior to the Execution Date from a breach of the representations and warranties thereunder) shall survive the amendment and restatement of the Original ECCA or the Original Company LLC Agreement pursuant to this Agreement or the Company LLC Agreement, respectively, for the period of time such indemnification obligations would have survived under the Original ECCA or the Original Company LLC Agreement, as applicable.

[SIGNATURE PAGE FOLLOWS]

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IN WITNESS WHEREOF, the parties hereto have caused this Amended and Restated Equity Capital Contribution Agreement to be duly executed by their respective officers thereunto duly authorized as of the date first set forth above.

FIRSTAR DEVELOPMENT, LLC
By:	/s/ Matthew Ulrich
Name:	Matthew Ulrich
Title:	Officer

CLEAN TECHNOLOGIES III, LLC
By:	/s/ Illegible
Name:	Illegible
Title:

A&R EQUITY CAPITAL CONTRIBUTION AGREEMENT (BLOOM)

IN WITNESS WHEREOF, the parties hereto have caused this Amended and Restated Equity Capital Contribution Agreement to be duly executed by their respective officers thereunto duly authorized as of the date first set forth above.

FIRSTAR DEVELOPMENT, LLC

By:

Name:

Title:

CLEAN TECHNOLOGIES III, LLC

By:

Name:

Title:

A&R EQUITY CAPITAL CONTRIBUTION AGREEMENT (BLOOM)

ANNEX 1-A

List of Prospective Facilities and Locations

Site No.	PPA Customer	Address	City	State	Size (kW)
1	AT&T	[***]	Compton	CA		[***]
2	AT&T	[***]	Los Angeles	CA		[***]
3	AT&T	[***]	El Segundo	CA		[***]
4	AT&T	[***]	Hawthorne	CA		[***]
5	AT&T	[***]	Riverside	CA		[***]
6	AT&T	[***]	Riverside	CA		[***]
7	Wal-Mart	[***]	Porterville	CA		[***]
8	Wal-Mart	[***]	Torrance	CA		[***]
9	Wal-Mart	[***]	San Diego	CA		[***]
10	Wal-Mart	[***]	South Gate	CA		[***]
11	Wal-Mart	[***]	San Jacinto	CA		[***]
12	Wal-Mart	[***]	Palm Springs	CA		[***]
13	Wal-Mart	[***]	Santa Clarita	CA		[***]
14	Wal-Mart	[***]	Baldwin Park	CA		[***]
15	Wal-Mart	[***]	Lakewood	CA		[***]
16	Wal-Mart	[***]	Palm Desert	CA		[***]
17	Wal-Mart	[***]	Lake Elsinore	CA		[***]
18	Wal-Mart	[***]	Glendora	CA		[***]
19	Wal-Mart	[***]	Hanford	CA		[***]
20	Wal-Mart	[***]	Temecula	CA		[***]
21	Wal-Mart	[***]	Visalia	CA		[***]
22	Wal-Mart	[***]	Pico Rivera	CA		[***]
23	Wal-Mart	[***]	Corona	CA		[***]
24	Wal-Mart	[***]	Apple Valley	CA		[***]
25	AT&T	[***]	Bridgeport	CA		[***]
26	AT&T	[***]	Los Angeles	CA		[***]
27	AT&T	[***]	Gardena	CA		[***]
28	AT&T	[***]	North Hollywood	CA		[***]
29	AT&T	[***]	Wilmington	CA		[***]
30	AT&T	[***]	Cheshire	CT		[***]
Total						[***]

Annex 1-A-1

ANNEX 1-B

Base Case Model

[See Attached]

Annex 1-B-1

ANNEX 2

Insurance Requirements

[See Attached]

Annex 2 -1

Insurance Requirements

FIRSTAR DEVELOPMENT, LLC

INSURANCE REQUIREMENTS CHECKLIST

Tax Credit Agreement Insurance Requirements

The insurance coverage set forth below constitutes Tax Credit Investor’s operational coverage requirements through the time of investment maturation with gap and are subject to increase, from time to time, at the written request of the Tax Credit Investor.

Immediately upon ownership, and throughout the term of this Agreement, the Developer shall obtain, and maintain in full force and effect, the following policies of insurance on behalf of the Project and Holding Co.; provided that the coverage amounts set forth below are subject to increase, from time to time, at the written request of the Tax Credit Investor:

1. Commercial Property Insurance: insuring for all risks of physical loss or damage to:

• Flood/Earthquake/Windstorm with limits /deductibles evaluated and approved by Investor on an annual basis

• Mechanical and electrical breakdown including all forms of testing;

• Hail, lighting, strike, riot, vandalism, and malicious mischief;

• All real and personal property of the Project Company whether fixed, in-transit, or stored off-site including warehouse facilities. The limits shall be sufficient to cover the maximum potential loss any one occurrence;

• Extra expense including expediting expense;

• Debris removal;

• Automatic reinstatement of limits except for flood, quake;

Policy shall provide for claims to be paid based upon replacement cost of the lost or damaged property without deduction for depreciation. Limits of policy will be at least the replacement value of the Project (excluding the value of the land, foundations and engineering expenses). The policy shall have a deductible of no greater than $50,000 per occurrence. The policy shall not contain Coinsurance provisions unless Agreed Amount is endorsed. Coverage shall provide for claims to be paid based upon replacement cost of the lost or damaged property without deduction for depreciation. Business Interruption is required in an amount enough to cover gross projected revenues for 12 months OR the longest lead time to repair or replace major equipment; whichever is greater. Contingent Business Income is also required in an amount sufficient to cover contingent related supplier / offtaker losses.

The Project and Holding Co. shall be a Named Insured on the policy. The policy shall include

Annex 2 -2

an endorsement naming Firstar Development, LLC as Additional Insured and, to the extent permitted under the Financing Documents, Loss Payee, and shall allow the Tax Credit Investor to be associated in the adjustment of any claim.

2. Commercial General Liability insurance, insuring for third party claims of legal liability against the Project and Holding Companies and caused by bodily injury, property damage, personal injury or advertising injury, arising out of the ownership or management of fuel cell equipment including the costs to defend such actions brought against the Project and Holding Co. The Project and Holding Co. shall be a Named Insured on the policy. The policy shall include an endorsement adding Firstar Development, LLC as Additional Insured, and shall be primary coverage for the Project and Holding Co., without contribution from other valid insurance policies. Firstar Development, LLC shall be endorsed as Additional Insured using an endorsement approved by the Insurance Consultant. Limits of the policy shall be at least $1 million per occurrence and $2 million in the general aggregate. The Products Completed Operations limit shall be no less than $10 million. The commercial general liability policy shall apply only to this subject project and include a severability of interest clause with no exclusions or limitations on cross liability.

3. Umbrella/Excess Liability insurance, with the Commercial General Liability scheduled as underlying policies. Limits of the policy shall be at least $10 million per occurrence and in the annual aggregate. The Project and Holding Co. shall be a Named Insured on the policy. The policy shall include an endorsement adding Firstar Development, LLC as Additional Insured and shall be primary coverage without contribution from other valid insurance policies.

4. Pollution Legal Liability / Environmental Liability insurance including On-Site and Off-Site Clean-Up, Non-Owned Disposal; and In-Bound and Out-Bound Contingent Transportation shall be provided for no less than $1,000,000 each occurrence and $1,000,000 in the aggregate. The policy shall include Business income and Extra Expense as a result of a covered peril. The maximum deductible / self-insured retention shall be $50,000 or less. The Project and Holding Co. shall be a Named Insured on the policy. The policy shall include an endorsement adding Firstar Development, LLC as Additional Insured and shall be primary coverage without contribution from other valid insurance policies.

5. A Professional Liability (E&O) policy purchased by Bloom Fuel Cells for all design work and defects in an amount of not less than $1 million per occurrence with a max $250,000 deductible. If the policy is written on a claims-made basis, the retroactive date may not be advanced beyond the date of this agreement and coverage shall be maintained in full force and effect for two (2) years after Final Completion, which coverage may be in the form of tail coverage or extended reporting period coverage if agreed to by the Investor.

6. Other forms or types of insurance which the Tax Credit Investor, lender, or other party of interest may now or hereafter require throughout the term of this Agreement (all of which should include an endorsement naming Firstar Development, LLC and any Investment Fund, as additional insureds and with Firstar Development, LIC as loss payee, as its interest may appear.

Annex 2 -3

General Requirements

a. Insurer Ratings. All insurance policies shall be underwritten by companies rated in the latest A.M. Best’s Insurance Rating Guide with a rating of at least A-    , and be in a financial category of at least IX.

b. Policy Copies. The Owner/Partnership shall furnish to the Tax Credit Investor a complete copy of each such policy of insurance required under #1-5 above. If an insurance policy is not available when required, as set forth above, then Certificates of Insurance detailing the policy terms and conditions as noted above shall be provided, but the policies must then be provided within sixty days after closing.

c. Notice of Cancellation. All such policies shall include endorsements requiring at least 30 days prior written notice to the Tax Credit Investor of any cancellation, termination or reduction of coverage therein. Notice of the renewal of any policy shall be made at least 10 days prior to the scheduled date of such renewal, and shall be in the form of endorsement to the policy. Notice to the Tax Credit Investor of any replacement of any policy shall be made at least 10 days prior to such replacement, and shall be in the form of a copy of the replacement policy, or by certificate, as noted above.

d. Renewal Certificates. Prior to renewal, all coverages listed above must be forwarded to Firstar’s insurance consultant for review. Notice of the renewal of any policy shall be made at least 10 days prior to the scheduled date of such renewal, and shall be in the form of Certificates or Policy Copies.

Please forward Certificates/Binders to the following address and direct questions to:

Firstar Development, LLC PO Box 279 San Anselmo, CA 94979 Sam Jensen Traxler & Tong Inc. (415) 331-0580 x205 sam@traxlertong.com

Annex 2 -4

ANNEX 3

List of All Contracts

(terms as defined in this Agreement, unless noted otherwise)

1. AT&T Power Purchase Agreement

2. Site Leases

3. REC PSA

4. Wal-Mart Gas Supply Agreement

5. Wal-Mart REC Agreement

6. MESPA

7. MOMA

8. ASA

9. Facility Company LLC Agreement

10. Agreement with SAIC Energy, Environment & Infrastructure, LLC for Use of Work Products in connection with PPA III

11. Lender Agreement, dated as of December 19, 2012, among the Facility Company, Pacific Bell Telephone Company and PE12GVVC (Bloom PPA) Ltd., as administrative agent

12. Lender Agreement, dated as of December 21, 2012, among the Facility Company, Wal-Mart Stores, Inc. and PE12GVVC (Bloom PPA) Ltd., as administrative agent

13. Consent and Agreement, dated as of December 21, 2012, among the Facility Company, Bloom Energy Corporation and PE12GVVC (Bloom PPA) Ltd., as administrative agent

14. Amended and Restated Credit Agreement, dated as of August 30, 2013 (the “Credit Agreement”), among the Facility Company, the Facility Lenders, the administrative agent under the Financing Documents and the collateral agent under the Financing Documents

15. Security Agreement (as defined in the Credit Agreement)

16. Pledge Agreement (as defined in the Credit Agreement)

17. Equity Contribution Tri-Party Agreement (as defined in the Credit Agreement)

18. IP License (as defined in the Credit Agreement)

19. IP License Security Agreement (as defined in the Credit Agreement)

Annex 3 - 1

20. Interparty Agreement

21. Depositary Agreement (as defined in the Credit Agreement)

22. Indemnity Agreement (as defined in the Credit Agreement)

23. Assignment and Assumption Agreement #1

24. Assignment and Assumption Agreement #2

25. Bills of Sale for Facilities funded prior to the Execution Date.

Annex 3 - 2

ANNEX 4

“Knowledge” Persons

[***]

[***]

[***]

[***]

[***]

[***] Confidential Treatment Requested

Annex 4 - 1

ANNEX 5

Third Party Consents and Approvals

None.

Annex 5 - 1

ANNEX 6

Form of Estoppel Certificate

ESTOPPEL CERTIFICATE

This ESTOPPEL CERTIFICATE (this “Estoppel Certificate”), dated as  of [●], is executed by Bloom Energy Corporation (the “Undersigned”).

A. Firstar Development, LLC, a Delaware limited liability company (the “Investor”) will make certain investments in 2012 V PPA Holdco, LLC (the “Company”), which is the sole member of 2012 V PPA Project Company, LLC (“Facility Company”);

B. The Undersigned, the Company and the Facility Company have entered into that certain Administrative Services Agreement, dated as of December 21, 2012, and amended by that certain Omnibus Amendment to MESPA, MOMA, ASA, REC PSA and Equity Contribution Tri-Party Agreement, dated as of August 30, 2013, (the “ASA”);

C. The Undersigned and the Facility Company have entered into that certain Master Energy Server Purchase Agreement, dated as of December 21, 2012, and amended by (i) that certain First Amendment to Amended and Restated Master Energy Server Purchase Agreement, dated as of March 27, 2013, (ii) that certain Omnibus Amendment to MESPA, MOMA and Equity Contribution Tri-Party Agreement, dated as of June 27, 2013, and (iii) that certain Omnibus Amendment to MESPA, MOMA, ASA, REC PSA and Equity Contribution Tri-Party Agreement, dated as of August 30, 2013, (the “MESPA”);

D. The Undersigned and the Facility Company have entered into that certain Master Operation and Maintenance Agreement, dated as of December 21, 2012, and amended by (i) that certain Omnibus Amendment to MESPA, MOMA and Equity Contribution Tri-Party Agreement, dated as of June 27, 2013, and (ii) that certain Omnibus Amendment to MESPA, MOMA, ASA, REC PSA and Equity Contribution Tri-Party Agreement, dated as of August 30, 2013 (the “MOMA”);

E. The Undersigned and the Facility Company have entered into that certain REC Purchase and Sale Agreement, dated as of December 21, 2012, and amended by that certain Omnibus Amendment to MESPA, MOMA, ASA, REC PSA and Equity Contribution Tri-Party Agreement, dated as of August 30, 2013, (the “REC PSA”, and together with the ASA, the MESPA and the MOMA, the “Agreements”); and

F. The delivery of this Estoppel Certificate by the Undersigned is a condition to the investments by the Investor in the Company.

The Undersigned hereby confirms to the Investor as of the date first written above that:

1. The Undersigned is not in default under any of the Agreements, and to the knowledge of the Undersigned, no default, breach or other event has occurred or circumstances exist that constitute or, with the giving of notice or the passage of time (including during any applicable grace period) or both, would constitute a default under any of the Agreements.

Annex 6 - 1

2. As of the date hereof, (i) each Agreement is the entire agreement between the Undersigned and the Facility Company with respect to the matters set forth therein, and each Agreement is in full force and effect and has not been amended, supplemented or modified since the date of execution thereof (other than as described above), (ii) all of the conditions precedent to the effectiveness of each Agreement as against the Undersigned have been satisfied, (iii) there are no disputes or proceedings between the Undersigned and the Facility Company, (iv) the Undersigned is not aware of any event, act, circumstance or condition constituting an event of force majeure (as defined in the applicable Agreement), (v) each of the Undersigned and the Facility Company does not currently owe any indemnity payments under any of the Agreements and (vi) to the Undersigned’s knowledge there are no facts entitling the Undersigned to any claim, counterclaim, offset or defense against the Facility Company in respect of any of the Agreements.

3. All payments, costs and expenses required to be paid by the Facility Company to the Undersigned under the Agreements as of the date hereof have been paid by or on behalf of the Facility Company.

4. All representations made by the Undersigned under the Agreements are true and correct as of the date hereof.

5. The execution, delivery and performance by the Undersigned of this Estoppel Certificate have been duly authorized by all necessary corporate action and do not and will not require any further consents, filings or approvals that have not been made or obtained or violate any order, judgment, injunction or similar matters or breach any agreement presently in effect with respect to or binding on the Undersigned.

6. This Estoppel Certificate is a legal, valid and binding obligation of the Undersigned, enforceable against the Undersigned in accordance with its terms except as may be limited by bankruptcy, reorganization, insolvency, moratorium and other laws affecting creditors’ rights in general and except to the extent that the availability of equitable remedies is subject to the discretion of the court before which any proceeding therefore may be brought.

7. Except as pursuant to the Security Agreement, dated as of December 21, 2012 between the Facility Company and Deutsche Bank Trust Company Americas, as collateral agent, as amended by that certain Omnibus Amendment No. 1 to Security Agreement and Pledge and Security Agreement, dated as of August 30, 2013, the Undersigned has not received notice of any assignment of the right, title and interest of the Facility Company in, to and under any of the Agreements, nor has the Undersigned assigned any of its right, title and interest or liabilities and obligations in, to and under any of the Agreements.

8. There are no proceedings pending or, to the Undersigned’s present knowledge, threatened against or affecting the Undersigned in any court or by or before any governmental authority or arbitration board or tribunal that could reasonably be expected to have a material adverse effect on the ability of the Undersigned to perform its obligations under, or that purport to affect the legality, validity or enforceability of, any of the Agreements.

Annex 6 - 2

9. This Estoppel Certificate shall be governed by the laws of the State of New York, without regard to principles of conflicts of law.

Executed this [●] day of [●], [●].

Bloom Energy Corporation

By:

Print Name:

Title:

Annex 6 - 3

ANNEX 7

Affiliate Transactions

(terms as defined in this Agreement, unless noted otherwise)

1. REC PSA

2. MESPA

3. MOMA

4. ASA

5. Facility Company LLC Agreement

6. Pledge Agreement (as defined in the Credit Agreement)

7. Equity Contribution Tri-Party Agreement (as defined in the Credit Agreement)

8. IP License (as defined in the Credit Agreement)

9. IP License Security Agreement (as defined in the Credit Agreement)

10. Indemnity Agreement (as defined in the Credit Agreement)

11. Assignment and Assumption Agreement #1

12. Assignment and Assumption Agreement #2

13. Bills of Sale for Facilities funded prior to the Execution Date.

Annex 7 - 1

ANNEX 8

Tax Matters

None.

Annex 8 - 1

ANNEX 9

Fonns of Financing Documents

[See Attached]

Annex 9 - 1

EX-10

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Exhibit 10.49

Execution Version

ADMINISTRATIVE SERVICES AGREEMENT

by and between

BLOOM ENERGY CORPORATION,

2012 V PPA HOLDCO, LLC

and

2012 V PPA PROJECT COMPANY, LLC

Dated as of December 21, 2012

TABLE OF CONTENTS

				Page
ARTICLE I		DEFINITIONS AND USAGE			1
	Section 1.01		Definitions		1
ARTICLE II		RESPONSIBILITIES			5
	Section 2.01		Administrator’s Responsibilities		5
	Section 2.02		Separateness		10
ARTICLE III		STANDARD OF PERFORMANCE			10
	Section 3.01		Standard of Performance		10
	Section 3.02		No Liability		11
	Section 3.03		PPA Obligations		11
ARTICLE IV		REIMBURSEMENT AND PAYMENT			12
	Section 4.01		Reimbursable Expenses		12
	Section 4.02		Billing and Payment		13
	Section 4.03		Records		13
ARTICLE V		DELAYS			14
	Section 5.01		Conditions		14
	Section 5.02		Mitigation of Delay		14
ARTICLE VI		DISPUTE RESOLUTION			14
	Section 6.01		Procedure		14
ARTICLE VII		COMMENCEMENT AND TERMINATION			15
	Section 7.01		Term		15
	Section 7.02		Resignation of Administrator		15
	Section 7.03		Early Termination		15
	Section 7.04		Accrued Fees		15
ARTICLE VIII		DEFAULT			15
	Section 8.01		Events of Default		15
	Section 8.02		Bankruptcy		16
	Section 8.03		Remedies		17
ARTICLE IX		INDEMNIFICATION AND LIMITATION OF DAMAGES			17
	Section 9.01		Indemnification		17
	Section 9.02		Liability		18

i

TABLE OF CONTENTS

(continued)

				Page
	Section 9.03		Supremacy		18
ARTICLE X		REPRESENTATIONS AND WARRANTIES			18
	Section 10.01		Representations and Warranties		18
ARTICLE XI		MISCELLANEOUS			19
	Section 11.01		Assignment		19
	Section 11.02		Authorization		19
	Section 11.03		Governing Law, Jurisdiction, Venue		19
	Section 11.04		Independent Contractor		20
	Section 11.05		Notice		20
	Section 11.06		Usage		21
	Section 11.07		Entire Agreement		22
	Section 11.08		Amendment		22
	Section 11.09		Confidential Information		22
	Section 11.10		Third Party Beneficiaries		23
	Section 11.11		Discharge of Obligations		24
	Section 11.12		Severability		24
	Section 11.13		Binding Effect		24
	Section 11.14		No Liens		24

ii

ADMINISTRATIVE SERVICES AGREEMENT

THIS ADMINISTRATIVE SERVICES AGREEMENT (the “Agreement”) is made as of this 21st day of December, 2012, by and among 2012 V PPA HOLDCO, LLC, a Delaware limited liability company (the “Company”), 2012 V PPA PROJECT COMPANY, LLC, a Delaware limited liability company (the “Project Company”), and BLOOM ENERGY CORPORATION, a Delaware corporation (the “Administrator”). The Company, the Project Company, and the Administrator are sometimes referred to herein individually as a “Party” and collectively as the “Parties”.

PRELIMINARY STATEMENTS

A. The Company owns 100% of the issued and outstanding membership interests in the Project Company.

B. Through its ownership of the Project Company, the Company will own an indirect 100% interest in the Portfolio (as defined below).

C. Concurrently herewith, Clean Technologies III, LLC, a Delaware limited liability company (“Clean Technologies”), and Firstar Development, LLC, a Delaware limited liability company (“Investor”) are entering into that certain Amended and Restated Limited Liability Company Agreement of 2012 V PPA Holdco, LLC (the “Company LLC Agreement”).

D. The Members of the Company have agreed in the Company LLC Agreement to delegate day-to-day management of the Company to the Administrator, in conjunction with the services to be provided by Bloom Energy Corporation under the MESPA and the MOMA.

E. The Company, as sole member of the Project Company (“Sole Member”), has also agreed in the Project Company LLC Agreement to cause the Project Company to delegate day-to-day management of the Project Company to the Administrator.

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein, the parties, intending to be legally bound, agree as follows:

ARTICLE I

DEFINITIONS AND USAGE

Section 1.01 Definitions. Unless the context requires otherwise or this Agreement expressly provides otherwise, capitalized terms used in this Agreement have the following meanings and capitalized terms not defined in this Agreement have the meanings given to such terms in the Company LLC Agreement:

“Accountants” is defined in the ECCA.

“Administration Fee” is defined in Section 4.01(a).

“Administrative Agent” shall have the meaning provided in the Financing Documents.

“Administrator” is defined in the Preamble.

“Affiliate” is defined in the MOMA.

“Agreement” is defined in the Preamble.

“Annual Budget” has the meaning set forth in the Company LLC Agreement.

“Available Cash Flow” has the meaning set forth in the Company LLC Agreement.

“Baseload Capacity” is defined in the MESPA.

“Bloom System” or “Bloom Systems” is defined in the MESPA.

“BOF” is defined in the MESPA.

“Business Day” is defined in the MESPA.

“Calendar Year” means the calendar year beginning January 1 and ending on December 31, and in the case of the initial Calendar Year, the period beginning on the Initial Funding Date and ending on December 31, 2012.

“Clean Technologies” is defined in the Preliminary Statements.

“Code” means the Internal Revenue Code of 1986, as amended.

“Commencement of Operations” is defined in the MESPA.

“Company” is defined in the Preamble.

“Company LLC Agreement” is defined in the Preliminary Statements.

“Confidential Information” is defined in Section 11.09.

“Documentation” means all written invoices, receipts, billing statements, payment notices, wire receipt and payment notifications, bank statements and other similar written evidence of (i) amounts payable by the Company or the Project Company to any Person and (ii) amounts received or receivable by the Company or the Project Company from any Person.

“ECCA” means the Equity Capital Contribution Agreement with respect to the Company, among Clean Technologies and Investor, dated as of December 21, 2012.

“Emergency Expenditure” is defined in Section 4.01(b).

“Environmental Laws” is defined in the ECCA.

“Event of Default” is defined in Section 8.01.

“Excluded Expenses” is defined in Section 4.01(b).

2

“Facility” means the Bloom Systems and the BOF at a Site.

“Financing Documents” is defined in the ECCA.

“Initial Funding Date” is defined in the ECCA.

“Interconnection Agreement” is defined in the MESPA.

“Investment Documents” is defined in the ECCA.

“Investor” is defined in the Preliminary Statements.

“kW” means kilowatt.

“Legal Requirement” is defined in the MESPA.

“Lender” means “Buyer’s Lender” as defined in the MESPA.

“Losses” is defined in Section 9.01(a).

“MESPA” means the Amended and Restated Master Energy Server Purchase Agreement between the Project Company and the Seller, dated as of December 21, 2012, as such agreement may be amended, supplemented, or replaced from time to time.

“MOMA” means the Amended and Restated Master Operations and Maintenance Agreement between the Project Company and the Operator, dated as of December 21, 2012, as such agreement may be amended, supplemented, or replaced from time to time.

“Nonreimbursable Services” shall consist of the following services to be provided with respect to the Company and the Project Company, as applicable: (a) supervision and monitoring of the Service Providers and Seller, (b) bookkeeping and record keeping, (c) overall coordination of the day-to-day operation of the Portfolio and Project Company (including the overall coordination of the performance of the Services and performance by Project Company of all its obligations under the PPAs), (d) preparing a draft operating budget for the Project Company for consideration and approval by the Managing Member, (e) reporting to and communication with the Managing Member or the Sole Member, as applicable, regarding matters subject to the supervision of the Administrator under this Agreement, (f) preparation and submittal of (i) Documentation, and, in the case of an Emergency Expenditure, oral notification, necessary in order to remit funds of the Company or the Project Company for payment of the Company’s or Project Company’s expenses and (ii) other Documentation necessary to perform the obligations hereunder, (g) depositing funds into the accounts maintained on behalf of the Company and the Project Company pursuant to Section 2.01(u) hereof, (h) payment of the Company’s and Project Company’s expenses, (i) the making of distributions from Available Cash Flow in accordance with the provisions hereof and the Company LLC Agreement or the Project Company LLC Agreement, (j) preparation and submittal of capital contribution draw requests for either the Company or the Project Company, as contemplated by the Company LLC Agreement or the Project Company LLC Agreement, as applicable, (k) preparation and submittal of purchase orders and other work on behalf of the Project Company in connection with ordering Bloom

3

Systems under the MESPA and receiving and accepting, on behalf of the Project Company, title to and all incidents of ownership of those Bloom Systems, (l) interacting and communicating with Seller on behalf of the Project Company under the MESPA, (m) interacting and communicating with Operator on behalf of the Project Company under the MOMA, (n) causing the insurance and related obligations required under Section 8.4 of the Company LLC Agreement and Section 9.21 of the MOMA, and otherwise required under the other Principal Facility Documents, to be obtained and maintained; (o) interacting and communicating, on behalf of the Project Company, with the Administrative Agent, (p) audit and tax-related services, and (q) performing all other administrative tasks, as required under the Financing Documents and under the Investment Documents.

“Operator” means the operation and maintenance contractor for the Bloom Systems, which at the date of this Agreement is the “Operator” as defined in the MOMA.

“Party” and “Parties” have the meanings set forth in the Preamble.

“Permits” is defined in the MESPA.

“Person” is defined in the MOMA.

“Portfolio” is defined in the MESPA.

“PPA” is defined in the MESPA.

“PPA Customer” is defined in the MESPA.

“Principal Facility Documents” is defined in the ECCA.

“Project Company” is defined in the Preamble.

“Project Company LLC Agreement” means the limited liability company agreement of the Project Company, dated as of December 21, 2012 as such agreement may be amended, supplemented, or replaced from time to time.

“Prudent Administrative Practices” means performing the Services with the degree of professional skill, care and diligence as that expected of a competent professional manager experienced in carrying out services of the same or similar size, scope and nature of the Services and to the extent required, those practices, methods, specifications and standards of safety and performance, as the same may change from time to time, as are commonly used by a significant portion of the grid-tied electrical generation industry operating in the United States as good, safe and prudent practices in connection with the administration of electrical and other equipment, facilities and improvements of such electrical generating facility and the other services contemplated herein, including any applicable practices, methods, acts, guidelines, standards and criteria of FERC and all applicable Legal Requirements.

“Representative” is defined in the MESPA.

“Seller” means Bloom Energy Corporation, in its capacity as seller under the MESPA.

4

“Service Provider” means each third party hired by the Company or the Project Company to perform fiscal, administrative or other services for the Company or the Project Company, including the Operator.

“Services” means the responsibilities of the Administrator under Article II.

“Site” is defined in the MESPA.

“Sole Member” is defined in the Preliminary Statements.

“Term” is defined in Section 7.01.

“Transmitting Utility” is defined in the MESPA.

ARTICLE II

RESPONSIBILITIES

Section 2.01 Administrator’s Responsibilities. During the Term, the Administrator shall provide the following Services on behalf of the Company and the Project Company:

(a) Supervise and monitor, in accordance with the Prudent Administrative Practices, (i) the Service Providers with respect to their performance of services for the Project Company, including maintenance, diagnostic, warranty and remedial obligations thereof (including performance by the Operator of its obligations under the MOMA), and (ii) the Seller with respect to its installation of the Facilities and the sale of Bloom Systems to the Project Company, including warranty and remedial obligations thereof;

(b) Where necessary or desirable, at the Company’s or the Project Company’s sole expense, as applicable, (i) subject to Section 4.01(c), taking of such actions as are necessary to enforce each Service Provider’s or Seller’s compliance with its obligations to the Company or Project Company and (ii) subject to Section 4.01(c) and in accordance with the Member consent requirements set forth in Section 6.2 of the Company LLC Agreement, hiring, firing and/or replacing any Service Provider;

(c) (i) Supervise and monitor (A) the installation of the Facilities and the purchase of Bloom Systems by Project Company under the MESPA and (B) the day-to-day operations, maintenance and repair activities with respect to the Facilities, including planned and unplanned maintenance and repairs to the Facilities, and coordinate all such activities with those of the Operator and the Seller (and, with respect to such activities that are not required to be performed by the Operator under the MOMA, causing such activities to be performed), and (C) the performance by Project Company of its obligations under the PPAs, and (ii) represent the Company and the Project Company in local community relations (including assisting in the coordination of public statements regarding the Company and the Project Company); provided, however, that the Administrator shall not be permitted to hire any employees on behalf of the Company or the Project Company;

(d) (i) Prepare and promptly pay, or cause to be paid, on behalf of the Project Company, any amounts required to be paid by the Project Company under any contract to which

5

the Company is a party or otherwise and (ii) subject to the expenditure limitations contained in the Project Company LLC Agreement and the Company LLC Agreement and adopted or implemented by the Sole Member or the Members, as applicable, purchase or lease, at the sole expense (but subject to Section 4.01(c)) of the Project Company, any materials, supplies and equipment necessary for (A) the performance of the Services for the Project Company, (B) operation and maintenance services for the Project Company or (C) the sale of energy and environmental attributes from the Bloom Systems; provided that nothing herein shall imply any duty of the Administrator under any circumstances to expend its own funds in payment of the expenses of the Project Company;

(e) Prepare and promptly pay, or cause to be paid, on behalf of the Company, any amounts required to be paid by the Company under any contract to which the Company is a party or otherwise; provided that nothing herein shall imply any duty of the Administrator under any circumstances to expend its own funds in payment of the expenses of the Company;

(f) Maintain major maintenance and other reserves for the Company and the Project Company from time to time as directed by, and upon terms established by, the Managing Member or the Company or under the Financing Documents;

(g) In accordance with and subject to the provisions of the Company LLC Agreement, maintain complete and accurate financial books and records of the operations of the Company and the Project Company on an accrual basis in accordance with prudent business practices and GAAP and make such books and records available for inspection and copying during normal business hours on its premises, upon reasonable prior notice, by any Person authorized under the Company LLC Agreement or by the Managing Member to inspect or copy such books and records, subject to appropriate confidentiality safeguards;

(h) In accordance with and subject to the provisions of the Company LLC Agreement, maintain at the Company’s and Project Company’s principal office (and permit access thereof during normal business hours to any Person authorized under the Company LLC Agreement or by the Managing Member to have such access)(i) true and full information regarding the status of the financial condition of the Company and the Project Company, including any financial statements that are available, until the statute of limitations expires on any IRS audit of the Company or Project Company tax year to which such information and financial statements relate; (ii) minutes of the proceedings of the Members; (iii) promptly after becoming available, copies of the federal, state, and local income tax returns of the Company and the Project Company for each year; (iv) a current list of the name and last known business, residence or mailing address of each member of the Company and the Project Company; (v) a copy of the Company LLC Agreement, the Company’s certificate of formation, the Project Company LLC Agreement, the Project Company’s certificate of formation, and all amendments thereto, and copies of written consents of the members or managers of the Company and the Project Company; (vi) true and full information regarding the amount of cash and a description and statement of the agreed value of any other property and services contributed by each Member, and the date upon which each became a Member; (vii) copies of records that would enable a Member to determine the Member’s relative shares of the Company’s distributions from Available Cash Flow and the Member’s relative voting rights; and (viii) all records related to the production and sale of energy and environmental attributes from the Bloom Systems;

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(i) Perform on behalf of the Company and Project Company all reporting and other routine management responsibilities reasonably believed by the Administrator to be required under the contracts to which the Company or Project Company is a party (including the PPAs), including representing the Company and the Project Company in ordinary course business matters with third parties (including the PPA Customers) arising thereunder;

(j) Perform on behalf of the Company and the Project Company all routine administrative services reasonably required in connection with maintaining the Company’s and the Project Company’s existence and operations, such as the filing of limited liability company reports;

(k) Notify the Managing Member and the Members of any variance or anticipated variance in the aggregate expense amount for the Company in any Calendar Year by [***] or more from the amount set forth in the applicable Annual Budget, promptly after learning of such variance or anticipated variance;

(l) (i) Provide such readily available information to the Members as they may reasonably request from time to time and (ii) subject to site rules established by the Company or the Project Company, provide access as reasonably requested for the Members, and their personnel and accompanied agents or consultants, to the Facilities;

(m) (i) Advise the Company and the Project Company to engage Service Providers as reasonably believed by the Administrator to be necessary or desirable, or (ii) if instructed by the Managing Member with respect to the Company or the Sole Member with respect to the Project Company, perform services for the Company or the Project Company which are not being performed by the Operator under the MOMA;

(n) (i) Procure and maintain all required Permits, prepare and submit all filings of any nature which are required to be made thereunder and represent the Company and the Project Company in matters with governmental authorities relating thereto, and (ii) prepare and submit, or cause to be prepared and submitted, all filings and notices of any nature which are required to be made by the Company or the Project Company under the terms of any Permit held by the Company the Project Company or any laws, regulations or ordinances applicable to the Company, Project Company or the Facilities;

(o) Not take any action or omit to take any action as would cause the Company or the Project Company in any material respect to violate any federal, state or local laws and regulations, including Environmental Laws, and to the extent that the Administrator has knowledge of any such existing or prospective violation take, or direct Service Providers to take, commercially reasonable actions, at the sole expense (but subject to Section 4.01(c)) of the Company or the Project Company (unless such existing or prospective violation arises from breach of the Administrator’s duties hereunder), to redress or mitigate any such violation;

(p) (i) Give prompt written notice to the Members and the Company of any litigation, material disputes with governmental authorities, or material force majeure events under the Principal Facility Documents and material losses suffered by the Project Company promptly after learning of the same, (ii) furnish to the Members and the Company, or direct a Service

[***] Confidential Treatment Requested

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Provider to so furnish, copies of all material documents furnished to the Company, the Project Company or the Administrator by any governmental authority or furnished to any governmental authority by the Company or the Project Company;

(q) Notify the Members within five (5) Business Days of obtaining actual knowledge of any (i) notice of default delivered by a party to a Principal Facility Document to the Project Company, the Administrator or the Managing Member or (ii) material default by a party to a Principal Facility Document (other than the Project Company, the Administrator or any Affiliate thereof) under such Principal Facility Document; provided that, with respect to a notice of default or any material default by any party under the Financing Documents, the Administrator shall notify the Members within one (1) Business Day of obtaining actual knowledge thereof;

(r) In accordance with and subject to the provisions of the Company LLC Agreement, submit for approval of the Managing Member (or, if required under the terms of the Company LLC Agreement, for Consent of the Class A Members), a proposed annual operating budget for the Project Company, which, subject to the provisions of the Company LLC Agreement, would become the Annual Budget;

(s) Perform and discharge all responsibilities and functions assigned to the Administrator under or pursuant to the Company LLC Agreement as in effect as of the date hereof (or as amended and accepted by the Administrator) in accordance with the terms set forth in the Company LLC Agreement;

(t) Prepare, or cause to be prepared, each of the reports, updated schedules and notices required to be prepared pursuant to the Company LLC Agreement and the Financing Documents and deliver such reports, updated schedules and notices to the Company and any Member or such other Person to whom any such report, schedule or notice is to be provided under the terms of the Company LLC Agreement and Financing Documents within the time periods specified therein;

(u) Maintain, in the name and for the exclusive benefit of the Company or the Project Company, accounts at one or more banks or other financial institutions for the deposit of all funds received by the Company or the Project Company during the Term, and invest such funds in accordance with the investment provisions of the Company LLC Agreement or the Project Company LLC Agreement and the Financing Documents, as applicable; provided, that nothing herein shall imply any guarantee or undertaking by the Administrator with respect to the collection of amounts due to the Company or the Project Company or return on such investments;

(v) In accordance with and subject to the provisions of the Company LLC Agreement (i) prepare and file or cause to be prepared and filed by the Accountants on behalf of the Company and the Project Company, on a timely basis, all federal, state and local income tax returns and related information and filings required to be filed by the Company and the Project Company or deliver to the Members such tax returns pursuant to the Company LLC Agreement, including each Member’s IRS Form K-1, and (ii) pay out of the Company’s or the Project Company’s funds, as applicable, all taxes and other governmental charges shown to be due thereon before they become delinquent and make all federal, state and local income tax elections in accordance with the provisions of the Company LLC Agreement or the Project Company LLC Agreement, as applicable;

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(w) Promptly inform the Company and the Members of any proposed action or decision that would require the Consent of the Class A Members or the Consent of the Members, as applicable, under the Company LLC Agreement, and not take or permit any such action or decision without the prior required consent, as applicable, in accordance with the Company LLC Agreement;

(x) In accordance with and subject to the provisions of the Company LLC Agreement, if so instructed by the Tax Matters Member, (i) direct the defense of any claims made by the IRS to the extent that such claims relate to the adjustment of Company items at the Company level, (ii) promptly deliver to each Member a copy of all notices, communications, reports and writings received from the IRS relating to or potentially resulting in an adjustment of Company items, (iii) promptly advise each Member of the substance of any conversations with the IRS in connection therewith and keep the Members advised of all developments with respect to any proposed adjustments that come to its attention; (iv) provide each Member with a draft copy of any correspondence or filing to be submitted by the Company in connection with any administrative or judicial proceedings relating to the determination of Company items at the Company level reasonably in advance of such submission; (v) incorporate all reasonable changes or comments to such correspondence or filing requested by any Member; (vi) provide each Member with a final copy of correspondence or filing; and (vii) provide each Member with notice reasonably in advance of any meetings or conferences with respect to any administrative or judicial proceedings relating to the determination of Company items at the Company level (including any meetings or conferences with counsel or advisors to the Company with respect to such proceedings);

(y) Prepare (or cause to be prepared) the financial statements required to be prepared pursuant to the Company LLC Agreement or the Financing Documents, as applicable, within the time periods specified therein;

(z) Make distributions from Available Cash Flow as provided under the relevant provisions of the Company LLC Agreement;

(aa) [Reserved];

(bb) At the Project Company’s sole expense, obtain and maintain, or cause the Project Company to obtain and maintain, insurance meeting the requirements of the Company LLC Agreement and the Principal Facility Documents;

(cc) Make draws under any working capital facilities or credit facilities for the Company or the Project Company, as applicable, and cause such funds to be deposited into the Company’s or the Project Company’s, as applicable, accounts and in accordance with such working capital facilities’ or credit facilities’ documentation;

(dd) Establish and administer any escrow arrangements to which the Company or the Project Company is a party, including those for the refund of canceled Bloom Systems as provided in the MESPA, as well as any letters of credit, bonds or other similar support instruments posted by the Company or the Project Company;

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(ee) Notify the Members promptly of the receipt of any communication as to any deficiencies in the Company’s or Project Company’s accounting practices from the Accountants, or of the resignation of the Accountants;

(ff) Maintain a register of membership interests of the Company and record therein any (i) transfers of membership interests made in accordance with the terms of the Company LLC Agreement and (ii) security interests of a secured party pursuant to any security interest permitted under the Company LLC Agreement;

(gg) Prepare equity contribution notices (and accompanying documentation) in accordance with the Company LLC Agreement, and deliver them to the Managing Member and each Member of the Company;

(hh) Prepare and submit purchase orders and perform other work on behalf of the Project Company in connection with ordering Bloom Systems under the MESPA, including interacting and communicating with Seller on behalf of the Project Company under the MESPA;

(ii) Perform all other administrative tasks required in relation to and for the Project Company under the Financing Documents and under the Investment Documents;

(jj) Maintain the insurance required to be maintained under Section 9.21 of the MOMA; and

(kk) Perform such other administrative tasks related to and consistent with the scope of the Services described herein and in the Company LLC Agreement and in the Project Company LLC Agreement, as the Managing Member in respect of the Company and the Sole Member in respect of the Project Company may reasonably request from time to time.

Section 2.02 Separateness. The Administrator shall maintain its existence separate and distinct from any other Person, including maintaining in full effect its existence, rights and franchises as a corporation under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or will be necessary to protect the validity and enforceability of this Agreement.

ARTICLE III

STANDARD OF PERFORMANCE

Section 3.01 Standard of Performance. The Administrator shall perform the Services in accordance with applicable law and Prudent Administrative Practices; provided that the Administrator shall be deemed to have satisfied its duties in respect of any specific matter or circumstance requiring interpretation, application, or enforcement of Principal Facility Documents, by relying conclusively on the advice of qualified legal counsel and/or qualified industry consultants engaged to advise the Company or the Project Company with respect to such matter or circumstance; and provided, further, that it shall not be a breach of Prudent Administrative Practices and the Administrator shall not be responsible hereunder for the gross

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negligence or willful misconduct of, or breach of contract by, any Service Provider engaged by the Administrator pursuant to a contract that requires such Service Provider to perform its duties in accordance with Prudent Administrative Practices and if such Person is sufficiently qualified to perform such duties and the Administrator is diligent in its oversight of such Persons; provided that (i) the immediately foregoing proviso shall not be applicable to any agreement with the Administrator or an Affiliate of the Administrator (and if such an agreement shall be with the Administrator or an Affiliate of the Administrator, then the Administrator shall continue to be bound by Prudent Administrative Practices), (ii) the Administrator shall be obligated to administer the agreements to which the Company or the Project Company is a party in accordance with their respective terms, and (iii) the Administrator shall be obligated to enforce or cause the Company or the Project Company, as applicable, to enforce the Principal Facility Documents in accordance with their respective terms upon the gross negligence, willful misconduct or breach of contract of the counterparty to any such Principal Facility Document. Without limiting the foregoing, in its performance of the obligations described in the immediately preceding clause (iii), the Administrator may enter into any settlement of claims, litigation or arbitration relating to the agreements described therein unless such settlement requires the Consent of the Class A Members or the Consent of the Members as provided in Section 6.2 of the Company LLC Agreement. It is understood and agreed by the Company, the Project Company and the Administrator that the Administrator is not guaranteeing or undertaking, in its capacity as Administrator, to procure any financial or other outcome with respect to the Company or the Portfolio, or providing any guarantees relating to the performance of the Portfolio.

Section 3.02 No Liability. The Administrator shall have no liability under this Agreement for (a) failure to take actions which it is not obligated to take pursuant to this Agreement and as to which it has requested the consent of the Managing Member (and/or the applicable Members where consent of any Members other than or in addition to the Managing Member is required under the Company LLC Agreement) for the Administrator to perform such actions if such consent is not timely given (including actions requiring a variance from the Annual Budget for which a request for variance by the Administrator has been made and not timely approved), or (b) actions taken at the direction of the Managing Member in accordance with the terms of the Company LLC Agreement (and/or the applicable Members where consent of any Members other than or in addition to the Managing Member is required under the Company LLC Agreement), or (c) failure to take actions requiring the expenditure of Company or Project Company funds in accordance with the Annual Budget if such funds are not available (for reasons other than a failure of the Administrator to provide, or cause a third party to provide, the Nonreimbursable Services or Services, as applicable, in accordance with this Agreement).

Section 3.03 PPA Obligations. The Administrator shall (i) undertake its obligations in accordance with this Agreement so as to enable Project Company to fulfill its corresponding obligations under the PPAs; and (ii) in performing its obligations under this Agreement, not cause Project Company to be in breach of its obligations under the PPAs in relation to the Bloom Systems or BOF or interfere with, hinder or disrupt Project Company’s performance of its obligations under the PPAs.

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ARTICLE IV

REIMBURSEMENT AND PAYMENT

Section 4.01 Reimbursable Expenses. (a)(i) The annual administration fee owed by the Company to the Administrator for the Services shall be an amount equal to $[***] per each kW of Baseload Capacity with respect to a Bloom System as of the date such Bloom System has achieved Commencement of Operations, and (ii) the annual administration fee owed by the Project Company to the Administrator for the Services shall be an amount equal to $[***] per each kW of Baseload Capacity with respect to a Bloom System as of the date such Bloom System has achieved Commencement of Operations (such administration fees, together, the “Administration Fee”), due in equal monthly installments (pro-rated, if applicable, for the first month after the execution of this Agreement) and in each case increasing by [***] on the first and each subsequent anniversary of the date of this Agreement. The parties acknowledge that the Administration Fee is a fair price, negotiated at arms-length, for the Services.

(b) In connection with matters within the Annual Budget, and matters outside of the parameters of the Annual Budget but authorized pursuant to this Section 4.01, the Company will reimburse the Administrator from the Company’s funds for the following expenses (other than any such expenses that constitute Excluded Expenses): (i) all reasonable out-of-pocket expenses of Administrator’s personnel performing work in the capacity as Administrator, (ii) all Emergency Expenditures and (iii) reasonable expenses of unaffiliated third parties (other than any such Persons performing Nonreimbursable Services) which, for the convenience of the Company or the Project Company, perform services by contract with the Administrator rather than directly with the Company or the Project Company, as applicable, provided that the Members have consented to such arrangement. For purposes of this Section 4.01(b), (x) “Excluded Expenses” shall mean costs incurred by Administrator in employing its personnel (other than amounts payable to its personnel as described in clause (i) above), including costs associated with wages, benefits, workers’ compensation insurance and home office expenses and costs incurred to retain unaffiliated third parties to perform Nonreimbursable Services, and (y) an “Emergency Expenditure” shall mean an expense with respect to the Company, the Project Company or the Portfolio that is not included in the Annual Budget and which is incurred, in the reasonable judgment of the Administrator, to avoid or to mitigate a risk of physical injury to any Person or damage to any property, or a violation of law and with respect to which there is not a reasonable opportunity to convene a meeting of the Members in order to obtain prior approval of the expense. The Administrator shall give prompt written notice to the Members of any Emergency Expenditure. Notwithstanding any of the foregoing, for the avoidance of doubt, to the extent an obligation of the Administrator is expressly to be performed at the sole expense of the Company or the Project Company, is not in violation of the express terms of this Agreement, and is not a Nonreimbursable Service, the Administrator shall be reimbursed by the Company or the Project Company, as applicable, for any amount (other than Excluded Expenses) expended from its own funds to perform such obligations.

(c) If the Administrator engages any third party to perform any Nonreimbursable Services, it shall be responsible for paying any fees and expenses of such third party and shall not be able to seek reimbursement therefor; provided that the Administrator shall not be responsible for paying any fees and expenses of such third party from its own funds (and shall be able to seek reimbursement therefor) if directed by the Members, the Managing Member or the Sole Member, or if otherwise required under the Investment Documents or Principal Facility Documents, to engage any third party to perform any Nonreimbursable Services.

[***] Confidential Treatment Requested

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(d) The Administrator shall obtain the Managing Member’s prior written approval before incurring any expenses that collectively exceed the aggregate expense amount provided in the Annual Budget by 10% in any Calendar Year; provided, however, that consent shall not be required (i) as to any Emergency Expenditure, or (ii) for reimbursement of the Administrator for any reasonable expense of an unaffiliated third party (other than a third party providing Nonreimbursable Services) that, for the convenience of the Company or the Project Company, performs services by contract with the Administrator rather than directly with the Company or the Project Company, as applicable, provided that the Members have consented to such arrangement.

Section 4.02 Billing and Payment. Within fifteen (15) days following the Administrator’s submission of an invoice to the Managing Member reflecting (i) any expenses due and payable by the Company or the Project Company (and including invoices and other material identifying and substantiating, in reasonable detail, the nature of such expenses and the basis for reimbursement thereof), and (ii) the monthly portion of the Administrative Fee due and payable by the Company or the Project Company, as applicable, (and including invoices and other material identifying and substantiating, in reasonable detail, the nature of such costs and the basis for reimbursements):

(a) The Managing Member or, as applicable, the Sole Member, shall approve such payment to the Administrator of (i) the expenses, and (ii) the portion of the Administrative Fee specified in such invoice, less any portion of such expenses and Administrative Fee that is disputed in good faith by a Member; provided that any invoiced amount incurred in accordance with the Annual Budget shall be deemed approved and shall be paid unless the Managing Member or Member, as applicable, shall dispute in good faith such payment for reasons unrelated to the Annual Budget; and

(b) The parties shall attempt to resolve any such disputed portion in accordance with Article VI hereof and any amount owed hereunder which remains unpaid more than ten (10) days after the date such amount is due and payable under this Agreement shall accrue interest at the lesser of a monthly rate of one and five-tenths percent (1.5%) or the highest rate permissible by law, with such interest beginning to accrue from the first (1st) day after such amount became due and payable.

Section 4.03 Records. The Administrator shall retain copies of invoices submitted by it under Section 4.02, and of any third party invoices or similar documentation contained or reflected therein, for a minimum period of three (3) years or such longer period as required by applicable law. Records maintained by the Administrator pursuant to this Section 4.03 shall be the property of the Company or the Project Company, as applicable, and shall not be destroyed, unless the Company or the Project Company, as applicable, shall have consented to such destruction in writing or declined in writing to accept possession of the records after the Administrator has advised the Company or the Project Company, as applicable, that the records will be destroyed.

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ARTICLE V

DELAYS

Section 5.01 Conditions. If the Administrator becomes aware of any event or circumstance that could materially delay or prevent its performance of any of its obligations hereunder, the Administrator shall give prompt notice thereof to the Managing Member or the Sole Member, as applicable.

Section 5.02 Mitigation of Delay. The Administrator shall attempt in good faith to minimize any such delay in or prevention of performance of its obligations hereunder, provided, however, that the Administrator shall not be obligated to undertake or perform any actions which are prohibited by contract or any applicable law or that would expose the Administrator to any material risk of liability or to any expense for which the Administrator is entitled to reimbursement or indemnification hereunder and which is not reasonably expected to be promptly reimbursed or indemnified hereunder.

ARTICLE VI

DISPUTE RESOLUTION

Section 6.01 Procedure.

(a) The parties shall attempt, in good faith, to resolve or cure all disputes, controversies or claims relating to this Agreement by mutual agreement in accordance with this Article VI before initiating any legal action or attempting to enforce any rights or remedies hereunder (including termination), at law or in equity (regardless of whether this Article VI is referenced in the provision of this Agreement which is the basis for any such dispute).

(b) If a party hereto believes that a dispute, controversy or claim under this Agreement has arisen, such party shall within ten (10) days after such dispute, controversy or claim arises, give notice thereof to the other affected party or parties hereto and the Managing Member, with respect to disputes involving the Company, or the Sole Member, with respect to disputes involving the Project Company, which notice shall describe in reasonable detail the basis and specifics of the dispute, controversy or claim. A meeting or conference call shall be held promptly, and in no case later than five (5) days following delivery of such notice, attended by representatives of the parties with decision-making authority regarding the dispute, controversy or claim to attempt in good faith to negotiate a resolution.

(c) If, within twenty-one (21) days following the meeting or conference call required pursuant to Section 6.01(b), the affected parties are unable to resolve the dispute, any affected party may pursue whatever rights it has available under this Agreement, at law or in equity in accordance with Section 11.03 herein and subject to the limitations of liability set forth herein.

(d) In the event of any dispute arising out of or relating to this Agreement, each Party hereby consents to service of process made to the addressees set forth in Section 11.05 herein either by overnight delivery by a nationally recognized courier or by certified first class mail, return receipt requested, and hereby acknowledges that service by such means shall constitute valid and lawful service of process against the Party being served.

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(e) Each Party hereby agrees that, in the event of any dispute arising out of or relating to this Agreement, it will not oppose the joinder of Seller or Operator to such action or proceeding.

ARTICLE VII

COMMENCEMENT AND TERMINATION

Section 7.01 Term. Except as otherwise provided in this Agreement, this Agreement shall commence on the date hereof and remain in full force and effect until the date that is fifteen (15) years following the date on which Commencement of Operations occurs for the last Bloom System in the Portfolio (the “Term”). In connection with the expiration of the Term or any termination pursuant to Section 7.02, the Administrator shall cooperate with all reasonable requests of the Company or the Project Company, as applicable, in connection with the transition of Services performed by Administrator (including the transferring of the records in Administrator’s possession) to the entity selected by the Company or the Project Company, as applicable, to undertake the Services.

Section 7.02 Resignation of Administrator. The Administrator may resign at any time following the sale of Clean Technologies to a non-Affiliate of Administrator or a Transfer of all Class A Interests held by Clean Technologies or an Affiliate of Clean Technologies made in accordance with the Company LLC Agreement, by giving not less than thirty (30) days prior written notice of such resignation to the Company and the Project Company; provided that Administrator’s resignation shall become effective only upon the appointment of a successor pursuant to the terms of the Company LLC Agreement that assumes (or causes an Affiliate to assume) the duties of the Administrator hereunder or that has engaged a Person that is recognized nationally as having substantial experience managing and operating fuel cell power facilities at a cost that is not substantially greater than as under this Agreement.

Section 7.03 Early Termination. This Agreement may not be terminated prior to the end of the Term except:

(a) by mutual agreement of the parties;

(b) pursuant to Section 8.02 or 8.03; or

(c) after the Class A Flip Point (as defined in the Company LLC Agreement), by Project Company, by giving six (6) months’ prior written notice to the Administrator.

Section 7.04 Accrued Fees. If this Agreement is terminated under Section 7.03(c), the Administrator will continue to be entitled to all Administration Fees and other amounts payable to it under this Agreement in respect of the period until the date of termination.

ARTICLE VIII

DEFAULT

Section 8.01 Events of Default. Subject to the provisions of Article VI (Dispute Resolution), each of the following events shall be an event of default (“Event of Default”) under this Agreement regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceeding which has or might have the effect of preventing such party from complying with the terms of this Agreement:

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(a) Failure by a party hereto to make any payment required to be made hereunder, if such failure shall continue for twenty (20) days after written notice thereof has been given to the non-paying party;

(b) If there shall occur (i) any failure by the Administrator to comply in any material respect with any term, provision or covenant of this Agreement (other than a failure addressed by another paragraph of this Section 8.01), or (ii) a gross dereliction by the Administrator of, or gross negligence or fraud by the Administrator in relation to, its duties under this Agreement, and such failure or act described in clause (i) or (ii) continues for thirty (30) days after receipt by the Administrator of written notice of such breach;

(c) Failure by the Company or the Project Company to comply in any material respect with any term, provision or covenant of this Agreement (other than a failure addressed by another paragraph of this Section 8.01), and such failure continues for thirty (30) days after receipt by the Company or the Project Company of written notice of such breach; or

(d) The occurrence of any event of default by the Administrator under the MESPA, MOMA, REC Agreement (as defined in the MESPA), or Shortfall Event License (as defined in the MESPA) which is not cured within any applicable cure period, or the existence of any formal dispute resolution proceeding (including litigation or arbitration proceedings) between the parties to the MESPA, MOMA, REC Agreement (as defined in the MESPA) or Shortfall Event License in respect of the applicable agreement (unless the Administrator can demonstrate to the satisfaction of Project Company that it has put in place measures that allow the Administrator to perform the Services effectively and without any conflict of interest while the dispute resolution proceeding exists).

Section 8.02 Bankruptcy. Subject to the rights or remedies it may have, any party hereto shall have the right to terminate this Agreement, effective immediately, if, at any time, any other party hereto (or, in the case of the Administrator, any Person that Controls the Administrator) shall file a voluntary petition in bankruptcy, or shall be adjudicated bankrupt or insolvent, or shall file any petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute or law relating to bankruptcy, insolvency, or other relief for debtors, whether federal or state, or shall seek, consent to, or acquiesce in the appointment of any trustee, receiver, conservator or liquidator of such party or of all or any substantial part of its properties, or a court of competent jurisdiction shall enter an order, judgment or decree approving a petition filed against such party seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute or law relating to bankruptcy, insolvency or other relief for debtors, whether federal or state, and such party shall consent to or acquiesce in the entry of such order, judgment or decree, or the same shall remain unvacated and unstayed for an aggregate of sixty (60) days from the date or entry thereof, or any trustee, receiver, conservator or liquidator of such party or of all or any substantial part of its properties shall be appointed without the consent of or acquiescence of such party and such appointment shall remain unvacated and unstayed for an aggregate of sixty (60) days. The terms

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“acquiesce” and “acquiescence”, as used herein, include, but are not limited to, the failure to file a petition or motion to vacate or discharge any order, judgment or decree providing for such appointment within the time specified by law.

Section 8.03 Remedies. If an Event of Default occurs and is continuing hereunder, then this Agreement may be terminated immediately by the non-defaulting party, without obligation to or recourse by the defaulting party. If a termination pursuant to Section 8.02 or this Section 8.03 occurs, the terminating party shall have all rights and remedies allowed at law or in equity, subject however, to the specific limitations of liability set forth in Article IX. Any termination of this Agreement by the Administrator for nonpayment or default by the Company or the Project Company, respectively, shall not result in termination of this Agreement by the Administrator as to the Project Company or the Company, respectively, as the case may be; and in such event, the Administrator shall continue performing hereunder for the nondefaulting counterparty.

ARTICLE IX

INDEMNIFICATION AND LIMITATION OF DAMAGES

Section 9.01 Indemnification.

(a) To the extent not otherwise covered by insurance and to the extent not prohibited by law, the Company and the Project Company each shall indemnify and hold harmless the Administrator, its officers, directors, employees, and Affiliates, from and against all losses, claims, demands, damages, costs, expenses of any nature (including, but not limited to, reasonable attorneys’ fees and disbursements) or liabilities (or actions, suits or proceedings including any inquiry or investigation or claims in respect thereof), judgments, fines, settlements and other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative, arbitral or investigative (collectively, “Losses”) which are being incurred in its capacity as the Administrator and are resulting from or arising out of the Administrator’s performance of its obligations hereunder with respect to the Company or Project Company, respectively; provided, however, that the Administrator shall not have the right to be so indemnified for Losses to the extent caused by or arising from the negligence or willful misconduct of the Administrator, Seller, Operator or any of their Affiliates or their respective subcontractors, or a breach of its or their obligations under this Agreement or other agreement with either the Project Company or the Company or for which any of such Persons are obligated to indemnify the Project Company, the Company or any Member (for the purposes of this Section 9.01(a), the Administrator shall not be deemed to be an “Affiliate” of the Company).

(b) To the extent not otherwise covered by insurance and to the extent not prohibited by law, subject to the specific limitations of liability set forth in this Article IX, the Administrator shall indemnify and hold harmless the Company and the Project Company, its officers, directors, employees and Affiliates from and against all Losses resulting from or arising out of the Administrator’s performance of its obligations hereunder; provided, however, that the Company or the Project Company shall not have the right to be so indemnified for Losses to the extent caused by or arising from the negligence or willful misconduct of the Company or the Project Company, or their respective Affiliates, officers, directors, and employees, if any, or a breach of the Company’s or the Project Company’s obligations under this Agreement (for the purposes of this Section 9.01(b), the Administrator shall not be deemed to be an “Affiliate” of the Company).

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(c) Exclusion of Consequential Damages. Neither the Administrator, in such capacity, nor the Company, nor the Project Company, nor any of their officers, members, employees or Affiliates shall be liable for punitive, consequential, special, indirect or exemplary damages of any nature including, but not limited to, damages for lost profits or revenues or the loss or use of such profits or revenues, loss by reason of plant shutdown or inability to operate at rated capacity, increased operating expenses of plant or equipment, increased costs of purchasing or providing equipment, materials, labor, services, costs of replacement power or capital, debt service fees or penalties, inventory or use charges, damages to reputation, damages for lost opportunities, or claims of any of the customers, members or affiliates of the Project Company or the Company, regardless of whether said claim is based upon contract, warranty, tort (including negligence and strict liability) or other theory of law; provided, however, that the indirect damages and loss of profits language set forth in this Section 9.01(c) shall not be interpreted to exclude from Losses any claim, demand, suit, loss, liability, damage, obligation, payment, cost or expense that would otherwise be included in the definition of Losses because they result from interest, cost or expense payable by Project Company to the Lenders.

Section 9.02 Liability. The aggregate liability of the Administrator under this Agreement shall be limited to the amount of the Administrative Fee actually paid to the Administrator; provided such limitation of liability shall not apply to any liability under this Agreement that is the result of gross negligence, fraud or willful misconduct of the Administrator.

Section 9.03 Supremacy. The provisions expressed in this Article IX shall prevail over any conflicting or inconsistent provisions contained elsewhere in this Agreement and shall survive termination of this Agreement.

ARTICLE X

REPRESENTATIONS AND WARRANTIES

Section 10.01 Representations and Warranties. Each party hereto represents and warrants, as of the date hereof, as follows:

(a) it is a limited liability company or a corporation, as applicable, duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;

(b) it has taken all necessary action to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder;

(c) this Agreement constitutes its legal, valid and binding obligation enforceable against it in accordance with its terms except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights and the enforcement of debtors’ obligations generally, and (ii) general principles of equity, regardless of whether enforcement is pursuant to a proceeding in equity or at law;

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(d) the execution, delivery and performance of this Agreement do not violate (i) its constituent documents, (ii) any contract to which it is a party or to which any of its properties are subject, or (iii) any law, rule, regulation, order, writ, judgment, injunction, decree or determination to which it is subject or by which its properties are bound;

(e) no consent, authorization, approval or other action by, and no notice to or filing with, any governmental authority or any other Person is required for the due execution, delivery or performance of this Agreement by such party; and

(f) there is no action, suit or proceeding at law or in equity or by or before any governmental authority, arbitral tribunal or other body now pending or threatened against it, which would reasonably be expected to have a material adverse effect on the transactions contemplated by this Agreement.

ARTICLE XI

MISCELLANEOUS

Section 11.01 Assignment.

(a) The Administrator may not assign its rights and obligations under this Agreement to any third party unless the prior written consent of the Company and the Project Company has been obtained; provided that, notwithstanding the foregoing, the Administrator may assign its rights and obligations under this Agreement to an Affiliate of the Administrator under common control with the Administrator; provided such assignment shall not excuse Administrator from any of its obligations under the Agreement.

(b) Neither the Company nor the Project Company may assign its rights and obligations under this Agreement to any third party without the prior written consent of the Administrator.

(c) Notwithstanding the foregoing clauses (a) and (b), any party hereto may collaterally assign its rights under this Agreement to any party providing debt or equity financing to such party without the consent of the other parties hereto.

Section 11.02 Authorization. Except as expressly authorized in writing by the Managing Member with respect to the Company, or the Sole Member with respect to the Project Company, or contemplated under the Services, the Administrator shall not have the right or the obligation to create any obligation or to make any representation on behalf of the Company or Project Company, as applicable.

Section 11.03 Governing Law, Jurisdiction, Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW OR OTHER PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN NEW YORK COUNTY, NEW YORK WITH RESPECT TO ANY DISPUTE ARISING

19

OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING TO ANY SUCH DISPUTE AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO.

Section 11.04 Independent Contractor. Nothing contained in this Agreement and no action taken by any party to this Agreement shall be (a) deemed to constitute any party or any of such party’s employees, agents or representatives to be an employee, agent or representative of the other parties hereto; (b) deemed to create any company, partnership, joint venture, association or syndicate among or between the parties; or (c) except as contemplated under the Services, deemed to confer on any party hereto any expressed or implied right, power or authority to enter into any agreement or commitment, express or implied, or to incur any obligation or liability on behalf of the other parties hereto, except as expressly authorized in writing.

Section 11.05 Notice. All notices, requests, consents, demands and other communications (collectively “notices”) required or permitted to be given under this Agreement shall be in writing signed by the party giving such notice and shall be given to each other party hereto at its address or email address set forth in this Section 11.05 or at such other address or email address as such party may hereafter specify by notice to the other parties hereto and shall be either delivered personally or sent by email or registered or certified mail, return receipt requested, postage prepaid, or by a nationally recognized overnight courier service. A notice shall be deemed to have been given (a) when successfully transmitted if given by email or (b) when delivered, if given by any other means. Notices shall be sent to the following addresses:

To the Administrator:

Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, California 94089

Attn: [***]

Telephone: [***]

Fax: [***]

Email: [***]

To the Company:

2012 V PPA Holdco, LLC

c/o Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, California 94089-1137

Attn: [***]

Telephone: [***]

Fax: [***]

Email: [***]

[***] Confidential Treatment Requested

20

To the Project Company:

2012 V PPA Project Company, LLC

c/o Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, California 94089-1137

Attn: [***]

Telephone: [***]

Fax: [***]

Email: [***]

With a copy to:

PE12GVVC (Bloom PPA) Ltd. and PE12PXVC (Bloom PPA) Ltd.

c/o Alberta Investment Management Corporation

1100 - 10830 Jasper Avenue

Edmonton, AB T5J 2B3

Canada

Attention: [***]

Email: [***]

Telephone: [***]

(for so long as such entities are Lenders)

With a copy to:

Firstar Development, LLC

1307 Washington, Suite 300

St. Louis, MO 63103

Attention: [***]

Telephone: [***]

Facsimile: [***]

Email: [***] and [***]

Section 11.06 Usage. This Agreement shall be governed by the following rules of usage: (a) a reference in this Agreement to a Person includes, unless the context otherwise requires, such Person’s permitted assignees; (b) a reference in this Agreement to a law, license, or permit includes any amendment, modification or replacement to such law, license or permit; (c) accounting terms used in this Agreement shall have the meanings assigned to them by GAAP; (d) a reference in this Agreement to an article, section, exhibit, schedule or appendix is to an article, section, exhibit, schedule or appendix of this Agreement unless otherwise stated; (e) a reference in this Agreement to any document, instrument or agreement shall be deemed to include all appendices, exhibits, schedules and other attachments thereto and all documents, instruments or agreements issued or executed in substitution thereof, and shall mean such document, instrument or agreement, or replacement thereof, as amended, modified and supplemented from time to time in accordance with its terms and as the same is in effect at any given time; (f) unless otherwise specified, the words “hereof,” “herein” and “hereunder” and

[***] Confidential Treatment Requested

21

words or similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement; and (g) the words “include” and “including” and words of similar import used in this Agreement are not limiting and shall be construed to be followed by the words “without limitation”, whether or not they are in fact followed by such words.

Section 11.07 Entire Agreement. This Agreement (including all appendices and exhibits thereto) constitutes the entire agreement and understanding of the parties hereto with respect to the subject matter hereof and supersedes all prior written and oral agreements and understandings with respect to such subject matter.

Section 11.08 Amendment. Neither this Agreement nor any of the terms hereof may be terminated, amended, supplemented, waived or modified orally, but only by a document in writing signed by all parties.

Section 11.09 Confidential Information. (a) Subject to the other terms of this Section 11.09, the Parties shall, and shall cause their Affiliates and their respective stockholders, members, subsidiaries and Representatives to, hold confidential all information they may have or obtain concerning Administrator, Company, and Project Company and their respective assets, business, operations or prospects or this Agreement (the “Confidential Information”), including, all materials furnished and information furnished by Administrator in performance of this Agreement, regardless of the form conveyed or whether financial or technical in nature, and including but not limited to, any trade secrets and propriety know how, all software, documentation, financial, marketing and nonpublic data with respect to the distribution and transmission facilities of the Transmitting Utility and other business information, all data related to the internal design and performance of the Bloom Systems and any other material or information that is either marked as confidential or disclosed under circumstances that one would reasonably expect it to be confidential. Furthermore, the Company and Project Company agree that the Bloom Systems and services performed hereunder contain Administrator’s valuable trade secrets, and further, Company and Project Company agree to maintain the secrecy of and not disclose without the express written permission of Administrator any trade secrets which the Project Company or Company may have received from Administrator; provided, however, that Confidential Information shall not include information that (A) is or becomes generally available to the public other than as a result of an unauthorized disclosure by a Party or any of its Representatives or (B) is or becomes available to a Party or any of its Representatives on a nonconfidential basis from a source other than the other Party or its Representatives, provided that such source was not and is not bound by any contractual, legal or fiduciary obligation of confidentiality with respect to such information or (C) was or is independently developed or conceived by a Party or its Representatives without reference to the Confidential Information of any other Party.

(b) Confidential Information may be disclosed (A) as required or requested to be disclosed by a Party or any of its Affiliates or their respective stockholders, members, subsidiaries or Representatives as a result of any applicable Legal Requirement or rule or regulation of any stock exchange, the Financial Industry Regulatory Authority, Inc. or other regulatory authority or self-regulatory authority having jurisdiction over such Party, (B) as required or requested by the IRS, the Department of Justice or the Office of the Inspector

22

General in connection with a Bloom System, cash grant, or tax credits relating thereto, including in connection with a request for any private letter ruling, any determination letter or any audit or (C) as required under any Interconnection Agreement or PPA. If a Party becomes compelled by legal or administrative process to disclose any Confidential Information, such Party shall, to the extent permitted by Legal Requirements, provide the other Parties with prompt notice so that the other Parties may seek a protective order or other appropriate remedy or waive compliance with the non-disclosure provisions of this Section 11.09(b) with respect to the information required to be disclosed. If such protective order or other remedy is not obtained, or such other Parties waive compliance with the non-disclosure provisions of this Section 11.09(b) with respect to the information required to be disclosed, the first Party shall furnish only that portion of such information that it is advised, by opinion of counsel, is legally required to be furnished and shall exercise reasonable efforts, at the expense of the Party whose Confidential Information is being disclosed, to obtain reliable assurance that confidential treatment will be accorded such information, including, in the case of disclosures to the IRS described in clause (B) above, to obtain reliable assurance that, to the maximum extent permitted by applicable Legal Requirements, such information will not be made available for public inspection pursuant to Section 6110 of the Code.

(c) Notwithstanding the foregoing, a Party may disclose Confidential Information received by it to its actual or potential financing parties and its and their employees, consultants, legal counsel or agents who have a need to know such information; provided that such Party informs each such Person who has access to the Confidential Information of the confidential nature of such Confidential Information, the terms of this Agreement, and that such terms apply to them. The Parties shall use commercially reasonable efforts to ensure that each such Person complies with the terms of this Agreement and that any Confidential Information received by such Person is kept confidential.

(d) Nothing herein shall be construed as prohibiting a Party from using such Confidential Information in connection with (i) any claim against another Party, (ii) any exercise by a Party of any of its rights hereunder, (iii) a financing or proposed financing by Administrator or the Project Company or Company or their respective Affiliates, (iv) a disposition or proposed disposition by Administrator or any Affiliate of Administrator of all or a portion of such Person’s direct or indirect equity interest in Administrator or (v) a disposition or proposed disposition by any direct or indirect Affiliate of the Company or the Project Company of all or a portion of such Person’s equity interests in the Company or the Project Company, (vi) a disposition or proposed disposition by Project Company of any Bloom System; or (vii) any disclosure required to be made to a PPA Customer (or otherwise) under a PPA; provided that, in the case of items (iii), (iv), (v) and (vi), the potential financing party or purchaser has entered into a confidentiality agreement with respect to Confidential Information on customary terms used in confidentiality agreements in connection with corporate financings or acquisitions before any such information may be disclosed and such confidentiality agreement has been provided to the non-disclosing Party.

Section 11.10 Third Party Beneficiaries. Except as otherwise expressly stated herein, this Agreement is intended to be solely for the benefit of the Parties hereto and their permitted assignees and is not intended to and shall not confer any rights or benefits to the general public or any other third party not a signatory thereto.

23

Section 11.11 Discharge of Obligations. With respect to any duties or obligations discharged hereunder by the Administrator, the Administrator may discharge such duties or obligations through the personnel of an Affiliate of the Administrator; provided that, notwithstanding the foregoing, the Administrator shall remain fully liable hereunder for such discharged duties and obligations.

Section 11.12 Severability. Any provision of this Agreement that shall be held to be invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without invalidating the remaining provisions hereof and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The parties shall negotiate in good faith a replacement provision or provisions that are valid and enforceable and that as closely as possible correspond to the spirit and purpose of the invalid or unenforceable provisions and this Agreement as a whole.

Section 11.13 Binding Effect. The terms of this Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their successors and permitted assigns.

Section 11.14 No Liens. To the extent that Administrator has actual knowledge that any of its subcontractors has placed any lien on a Bloom System or the Site for such System, then Administrator shall promptly cause such liens to be removed or bonded over in a manner reasonably satisfactory to the Company or the Project Company.

[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]

24

IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed this Administrative Services Agreement on the date first set forth above.

BLOOM ENERGY CORPORATION, a Delaware corporation
By:
	Name: Title:

2012 V PPA HOLDCO, LLC, a Delaware limited liability company
By:
	Name: Title:

2012 V PPA PROJECT COMPANY, LLC, a Delaware limited liability company
By:
	Name: Title:

PPA III – ASA

EX-10

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Exhibit 10.50

Execution Version

AMENDED AND RESTATED CREDIT AGREEMENT

dated as of August 30, 2013

among

2012 ESA PROJECT COMPANY, LLC

(Borrower)

And

PE12GVVC (BLOOM PPA) LTD.,

PE12PXVC (BLOOM PPA) LTD.,

and the other Lenders from time to time party hereto,

(Lenders)

And

PE12GVVC (BLOOM PPA) LTD.

(Administrative Agent)

And

DEUTSCHE BANK TRUST COMPANY AMERICAS

(Collateral Agent)

FUEL CELL ELECTRICITY GENERATING POWER PLANTS

TABLE OF CONTENTS

		Page
ARTICLE 1	DEFINITIONS		1
1.1	Definitions		1
1.2	Rules of Interpretation		1
1.3	Accounting Terms; GAAP		2
ARTICLE 2	THE CREDIT FACILITIES		2
2.1	Loan Facilities		2
2.2	Loan Commitments		6
2.3	[Reserved]		7
2.4	Other Payment Terms		7
2.5	Sharing of Payments by Secured Parties		11
2.6	Change of Circumstances		12
2.7	Mitigation Obligations; Replacement of Lenders		13
2.8	Register		14
ARTICLE 3	CONDITIONS PRECEDENT		15
3.1	Conditions Precedent to the Restatement Effective Date		15
3.2	Conditions Precedent to Supplemental Funding Date		18
3.3	Conditions Precedent to Each Borrowing		20
3.4	Determinations Under Section 3.1		25
ARTICLE 4	REPRESENTATIONS AND WARRANTIES		25
4.1	Organization		25
4.2	Authorization; No Conflict		25
4.3	Enforceability		26
4.4	Compliance with Law		26
4.5	Single Purpose, Debt, Contracts, Joint Ventures, Proceeds, Etc		26
4.6	Adverse Change		27
4.7	Investment Company Act		27
4.8	ERISA		27
4.9	Permits		28
4.10	Environmental Matters and Hazardous Substances		28
4.11	Litigation		29

-i-

TABLE OF CONTENTS

(continued)

		Page
4.12	No Labor Disputes; Force Majeure		30
4.13	Operative Documents		30
4.14	Disclosure		30
4.15	Taxes		31
4.16	Governmental Regulation		31
4.17	Regulation U, Etc		32
4.18	Soundness of Disclosures and Assumption		32
4.19	Financial Statements		32
4.20	No Default		33
4.21	Organizational ID Number; Location of Tangible Collateral		33
4.22	Title and Liens		33
4.23	Intellectual Property		33
4.24	Collateral		34
4.25	Sufficiency of Rights		34
4.26	Real Estate		35
4.27	Insurance		35
4.28	Investments		35
4.29	No Recordation, Etc		36
4.30	Solvency		36
4.31	Anti-Terrorism Law		36
ARTICLE 5	AFFIRMATIVE COVENANTS		37
5.1	Use of Proceeds, Equity Contributions and Project Revenues		37
5.2	Payment		37
5.3	Maintenance of Property		37
5.4	Notices		37
5.5	Financial Reporting		40
5.6	Books, Records, Access		41
5.7	Compliance with Laws, Instruments, Applicable Permits, Etc		42
5.8	Reports		42
5.9	Existence, Conduct of Business, Properties, Etc		43

-ii-

TABLE OF CONTENTS

(continued)

		Page
5.10	Debt Service Coverage Ratio		44
5.11	Utility Regulation		44
5.12	Construction of the Projects		44
5.13	Operation and Maintenance of Projects; Operating Budget		44
5.14	Preservation of Rights; Further Assurances		45
5.15	Maintenance of Insurance		46
5.16	Taxes, Other Government Charges and Utility Charges		47
5.17	Event of Eminent Domain		47
5.18	Environmental Laws		48
5.19	Independent Consultants		48
5.20	Partial Completion Buydown		48
5.21	Maintenance Reserve Account		49
5.22	Administrative Services Provider		49
ARTICLE 6	NEGATIVE COVENANTS		49
6.1	Contingent Obligations		49
6.2	Limitations on Liens		49
6.3	Debt		49
6.4	Sale or Lease of Assets		49
6.5	Changes		50
6.6	Restricted Payments		50
6.7	Investments		51
6.8	Transactions With Affiliates		51
6.9	Margin Loan Regulations		51
6.10	Partnerships, Separateness Etc		51
6.11	Dissolution; Merger		51
6.12	Amendments		51
6.13	Name and Location; Fiscal Year		51
6.14	Use of Real Property		52
6.15	Assignment		52
6.16	Accounts		52

-iii-

TABLE OF CONTENTS

(continued)

		Page
6.17	Hazardous Substances		52
6.18	New Project Documents		52
6.19	Assignment By Third Parties		52
6.20	Acquisition of Real Property		52
6.21	ERISA		52
6.22	Lease Obligations		53
6.23	Disputes		53
6.24	Anti-Terrorism Law; Anti-Money Laundering		53
6.25	Embargoed Persons		53
ARTICLE 7	ACCOUNTS		54
7.1	Account Withdrawals, Transfers and Payments		54
7.2	Construction Account		55
7.3	Revenue Account		56
7.4	Operating Account		58
7.5	Debt Service Reserve Account		58
7.6	Distribution Suspense Account		59
7.7	Maintenance Reserve Account		59
7.8	Cash-Substitute LC		60
7.9	Application of Insurance Proceeds		61
7.10	Application of Eminent Domain Proceeds		63
7.11	Proceeds and Accounts		64
7.12	Permitted Investments		64
7.13	SGIP Proceeds Account		64
ARTICLE 8	EVENTS OF DEFAULT; REMEDIES		65
8.1	Events of Default		65
8.2	Remedies		69
ARTICLE 9	SCOPE OF LIABILITY		70
ARTICLE 10	AGENTS; SUBSTITUTION		71
10.1	Appointment and Authority		71
10.2	Rights as a Lender		72

-iv-

TABLE OF CONTENTS

(continued)

		Page
10.3	Exculpatory Provisions		72
10.4	Reliance		73
10.5	Delegation of Duties		74
10.6	Resignation		74
10.7	Non-Reliance		75
10.8	Administrative Agent May File Proofs of Claim		75
10.9	Collateral Matters		76
10.10	Indemnification		76
10.11	Withholding Tax		77
10.12	General Provisions as to Payments		78
10.13	Delivery of Copies to Lenders		78
ARTICLE 11	INDEPENDENT CONSULTANTS		78
11.1	Removal and Fees		78
11.2	Duties		78
11.3	Independent Consultants’ Certificates		79
11.4	Certification of Dates		79
11.5	Professional Services Agreements		79
ARTICLE 12	MISCELLANEOUS		80
12.1	Notices; Signatures		80
12.2	Additional Security; Right to Set-Off		81
12.3	Delay and Waiver		82
12.4	Expenses; Indemnity; Damage Waiver		82
12.5	Entire Agreement		84
12.6	Severability		84
12.7	Headings		85
12.8	Additional Financing, Etc		85
12.9	No Partnership, Etc		85
12.10	[Reserved]		85
12.11	Waiver of Jury Trial		85
12.12	Governing Law, Jurisdiction, Etc		86

-v-

TABLE OF CONTENTS

(continued)

		Page
12.13	Successors and Assigns		86
12.14	Defaulting Lenders		90
12.15	[Reserved]		91
12.16	Counterparts		91
12.17	Survival		92
12.18	Amendments; Waivers		92
12.19	Laws		94
12.20	Assignability as Collateral		94
12.21	Service of Process		94
12.22	Interest Rate Limitation		95
12.23	Confidentiality		95
12.24	Reinstatement		96
12.25	Marshalling; Assets Set Aside		96
12.26	Independence of Covenants		96
12.27	Construction of the Documents		96
12.28	Waiver		97
12.29	The Platform		97
12.30	Agreement of the Secured Parties		98

-vi-

Index of Appendices, Exhibits and Schedules

Appendix A	Loan Commitments
Exhibit A	Definitions
Exhibit B	Form of Note
	Loan Disbursement Procedures
Exhibit C-1	Form of Notice of Borrowing
Exhibit C-2	Form of Drawdown Certificate
	Security-Related Documents
Exhibit D-3	Form of Direct Agreement
	Closing Certificates
Exhibit E-1	Form of Borrower’s Closing Certificate
Exhibit E-2	Form of Credit Party’s Closing Certificate
Exhibit E-3	Form of Borrower’s Solvency Certificate
Exhibit F	Form of Equity Capitalization Certificate
Exhibit G	Form of Owner’s Acknowledgment
Exhibit H	Form of PPA2-C Assignment Agreement
Exhibit I	Form of Account Withdrawal Request
Exhibit J	Replacement Risk Policy Requirements
Exhibit K	Form of Annual Insurance Certificate
Exhibit L	Acknowledgement of Agent for Service of Process
Exhibit M	Form of Assignment and Assumption
Exhibit N	Form of Pacific Bell Telephone Company Direct Agreement
Exhibit O	Form of AT&T Corp. Direct Agreement
Exhibit P	Form of AT&T PPA 2-C Acknowledgment and Consent
Exhibit Q	Sample DSCR Calculation
Exhibit R-1, 2, 3, 4	Forms of U.S. Tax Compliance Certificate
Exhibit S	Form of AT&T Corp. PPA Amendment
Exhibit T	Form of Pacific Bell Telephone Company PPA Amendment
Schedules
Schedule 2.1	Amortization Schedule
Schedule 3.1.14	Litigation
Schedule 3.1.22	Project Budget
Schedule 3.1.23	Project Schedule
Schedule 4.1	Credit Party Jurisdictions and Foreign Qualifications
Schedule 4.10	Hazardous Substances Disclosure
Schedule 4.24	Schedule of Security Filings
Schedule 5.15	Insurance Requirements
Schedule A-1	Base Case Projections

-vii-

This AMENDED AND RESTATED CREDIT AGREEMENT, dated as of August 30, 2013, among 2012 ESA PROJECT COMPANY, LLC (formerly known as 2012 V PPA Project Company, LLC), a Delaware limited liability company, as borrower (“Borrower”), PE12GVVC (BLOOM PPA) LTD. and PE12PXVC (BLOOM PPA) LTD., as lenders (together with the other institutions from time to time party hereto, the “Lenders”), PE12GVVC (BLOOM PPA) LTD., as administrative agent for the Lenders (in such capacity, “Administrative Agent”) and DEUTSCHE BANK TRUST COMPANY AMERICAS, as collateral agent for the Secured Parties referred to herein (in such capacity, “Collateral Agent”).

RECITALS

A. Borrower, the Lenders, Administrative Agent and Collateral Agent are parties to that certain Credit Agreement, dated as of December 21, 2012 (the “Original Agreement”), pursuant to which the Lenders agreed to provide the credit facility described therein to Borrower in connection with Borrower’s development, construction, installation, financing, ownership, operation and maintenance of the AT&T Project (as defined herein) and the Wal-Mart Project (as defined herein).

B. Borrower now desires to develop, construct, install, finance, own, operate and maintain the Supplemental AT&T Project (as defined herein) (the Supplemental AT&T Project, together with the AT&T Project and the Wal-Mart Project, collectively, the “Projects”), and, in connection therewith, has requested that the Lenders increase the size of the Loan Commitments (as defined herein).

C. The Lenders are willing to increase the size of the Loan Commitments upon the terms and subject to the conditions set forth herein and in the other Credit Documents.

AGREEMENT

NOW, THEREFORE, in consideration of the foregoing and the agreements, covenants and promises set forth herein and in the other Credit Documents and in reliance upon the representations and warranties set forth herein and therein, the parties hereto agree to amend and restate the Original Agreement in its entirety, effective as of the Restatement Effective Date, as follows:

ARTICLE 1

DEFINITIONS

1.1 Definitions. For all purposes of the Credit Documents, except as otherwise expressly provided, capitalized terms used in the Credit Documents (including annexes, appendices, exhibits and schedules thereto) shall have the meanings given to such terms in Exhibit A.

1.2 Rules of Interpretation. Except as otherwise expressly provided, the “Rules of Interpretation” set forth in Exhibit A shall apply to the Credit Documents.

1.3 Accounting Terms; GAAP. Except as otherwise expressly provided herein, all terms of an accounting or financial nature shall be construed in accordance with GAAP, as in effect from time to time and as applied by the accounting entity to which they refer; provided, that if Borrower notifies Administrative Agent that Borrower requests an amendment to any provision hereof to eliminate the effect of any change occurring after the Closing Date in GAAP or in the application thereof on the operation of such provision (or if Administrative Agent notifies Borrower that the Required Lenders request an amendment to any provision hereof for such purpose), regardless of whether any such notice is given before or after such change in GAAP or in the application thereof, then such provision shall be interpreted on the basis of GAAP as in effect and applied immediately before such change shall have become effective until such notice shall have been withdrawn or such provision amended in accordance herewith.

ARTICLE 2

THE CREDIT FACILITIES

2.1 Loan Facilities.

2.1.1 Loans.

(a) Availability. Subject to the terms and conditions set forth in this Agreement and in reliance upon the representations and warranties of Borrower set forth herein, each Lender severally agrees to advance to Borrower from time to time during the Availability Period such loans as Borrower may request pursuant to this Section 2.1.1 (individually, a “Loan” and, collectively, the “Loans”), in an aggregate principal amount which, when added to all prior Loans made by such Lender, does not exceed such Lender’s Loan Commitment. The parties hereto hereby agree that the outstanding principal balance of the Loans on the Restatement Effective Date is $20,140,003.01.

(b) Notice of Borrowing; Denominations, Etc. Borrower shall request Loans by delivering to Administrative Agent a notice in the form of Exhibit C-1, appropriately completed in accordance with the instructions contained in such form (“Notice of Borrowing”).

(c) Borrowing Limitations. Borrower shall request no more than a single Borrowing per calendar month. Borrower shall give each Notice of Borrowing to Administrative Agent by 11:00 a.m. on a date that is at least 3 Business Days prior to the requested Borrowing date. Any Notice of Borrowing shall be irrevocable and binding on Borrower. Borrower shall not request a Borrowing unless the aggregate nameplate capacity of System Facilities to which the Borrowing relates equals or exceeds [***] kW.

(d) Principal Payments. Borrower shall repay to Administrative Agent, for the account of each Lender, the aggregate unpaid principal amount of the Loans made by such Lender in installments payable on each Quarterly Date in accordance with the repayment schedule set forth on Schedule 2.1, with any remaining unpaid principal, interest, fees and costs due and payable on the Maturity Date. Borrower may not re-borrow the principal amount of any Loan repaid.

2

[***] Confidential Treatment Requested

2.1.2 Interest Provisions Relating to All Loans.

(a) Interest Rate. Subject to Section 2.4.3, Borrower shall pay interest on the unpaid principal amount of each Loan from the date of Borrowing of such Loan until the repayment thereof at the per annum rate of [***].

(b) Interest Payment Dates. Borrower shall pay accrued interest on the unpaid principal amount of each Loan (i) on each Quarterly Date and (ii) upon the repayment (whether at stated maturity or otherwise, and including any optional prepayments or Mandatory Prepayments) of any Loan on the date of payment thereof in full. Each date on which any such interest payment is due is an “Interest Payment Date”.

(c) Interest Computations . All computations of interest shall be based upon a year of 3 60 days, and shall be payable for the actual days elapsed (including the first day but excluding the last day) in the period for which such interest is payable. Borrower agrees that all computations by Administrative Agent of interest shall be conclusive and binding in the absence of manifest error.

2.1.3 Promissory Notes. The obligation of Borrower to repay the Loans made by a Lender and to pay interest thereon at the rates provided herein shall, upon the request of such Lender, be evidenced by promissory notes in the form of Exhibit B (individually, a “Note” and, collectively, the “Notes”), each payable to such requesting Lender and in the principal amount of such requesting Lender’s Loan Commitment. Borrower authorizes each such requesting Lender to record on the schedule annexed to such Lender’s Note or Notes, the date and amount of each Loan made by such requesting Lender, and each payment or prepayment of principal thereunder and agrees that all such notations shall constitute prima facie evidence of the matters noted absent manifest error; provided, that in the event of any inconsistency between the records or books of Administrative Agent and any Lender’s records or Notes, the records of Administrative Agent shall be conclusive and binding in the absence of manifest error. Borrower further authorizes each such requesting Lender to attach to and make a part of such requesting Lender’s Note or Notes continuations of the schedule attached thereto as necessary. No failure to make any such notations, nor any errors in making any such notations, shall affect the validity of Borrower’s obligations to repay the full unpaid principal amount of the Loans or the duties of Borrower hereunder or thereunder. Upon Termination, the Lenders holding Notes shall promptly mark the applicable Notes cancelled and return such cancelled Notes to Borrower.

2.1.4 Loan Funding.

(a) Notice to Lenders. Administrative Agent shall promptly notify each Lender of the contents of each Notice of Borrowing.

(b) Pro Rata Loans. All Loans shall be made on a pro rata basis by the Lenders in accordance with their respective Proportionate Shares, with each Borrowing to consist of a Loan by each Lender equal to such Lender’s Proportionate Share of such Borrowing.

(c) Lender Funding. Each Lender shall, before 11:00 a.m. on the date of each Borrowing, make available to the account of Administrative Agent most recently designated by it for such purpose, by wire transfer, in immediately available funds in Dollars,

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such Lender’s share of the Loans to be made on such date. The failure of any Lender to make the Loan to be made by it as part of any Borrowing shall not relieve any other Lender of its obligation hereunder to make its Loan on the date of such Loan. No Lender shall be responsible for the failure of any other Lender to make the Loan to be made by such other Lender on the date of any Borrowing.

(d) Funding by Lenders; Presumption by Administrative Agent. Unless Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing that such Lender will not make available to Administrative Agent such Lender’s share of such Borrowing, Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section 2.1.4(c) and may, in reliance upon such assumption, make available to Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to Administrative Agent, then the applicable Lender and Borrower severally agree to pay to Administrative Agent forthwith on demand such corresponding amount with interest thereon, for each day from and including the date such amount is made available to Borrower to but excluding the date of payment to Administrative Agent, at (i) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by Administrative Agent in accordance with banking industry rules on interbank compensation, and (ii) in the case of a payment to be made by Borrower, the interest rate applicable to the Loans. If Borrower and such Lender shall pay such interest to Administrative Agent for the same or an overlapping period, Administrative Agent shall promptly remit to Borrower the amount of such interest paid by Borrower for such period. If such Lender pays its share of the applicable Borrowing to Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by Borrower shall be without prejudice to any claim Borrower may have against a Lender that shall have failed to make such payment to Administrative Agent.

(e) Payments by Borrower; Presumptions by Administrative Agent. Unless Administrative Agent shall have received written notice from Borrower prior to the date on which any payment is due to Administrative Agent for the account of the Lenders hereunder that Borrower will not make such payment, Administrative Agent may assume that Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Lenders the amount due. In such event, if Borrower has not in fact made such payment, then each of the Lenders severally agrees to repay to Administrative Agent forthwith on demand the amount so distributed to such Lender, with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to Administrative Agent, at the greater of the Federal Funds Effective Rate and the rate applicable to the Loans.

(f) Loan Proceeds. No later than 2:00 p.m. on the date specified in each Notice of Borrowing, if the applicable conditions precedent listed in Article 3 have been satisfied or waived in accordance with the terms thereof and, subject to the other provisions of this Section 2.1.4, to the extent Administrative Agent shall have received the appropriate funds from the Lenders, Administrative Agent shall make available the Loans requested in such Notice of Borrowing (or so much thereof as shall have been determined pursuant to Section 3.4) in Dollars and in immediately available funds, and shall deposit or cause to be deposited the proceeds of such Loans into the Construction Account.

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2.1.5 Prepayments.

(a) Terms of All Repayments and Prepayments.

1. Upon the repayment of any Loan (optional or mandatory), Borrower shall pay to Administrative Agent for the account of each Lender which made such Loan (A) all accrued but unpaid interest to the date of such repayment on the amount of such Loan repaid, (B) all accrued but unpaid fees to the date of such repayment relating to the amount of such Loan being repaid and (C) to the extent required by the terms hereof, the applicable Make Whole Amount.

2. All prepayments of Loans shall be applied to reduce the remaining payments required under Section 2.1.1(d) in inverse order of maturity, except that warranty claims or refund claims received under the MESPA or MOMA and prepayment of the Buydown Amount under Section 5.20 shall be applied proportionally to each payment due pursuant to Section 2.1.1(d).

(b) Optional Prepayments. Subject to Section 2.1.5(a) and payment of the applicable Make Whole Amount, Borrower may, at its option, upon three Business Days’ notice to Administrative Agent, prepay any Loans from time to time in part in a minimum amount of $500,000 and integral multiples of $100,000 thereof (if less, the full principal amount of the Loans).

(c) Mandatory Prepayments. In addition to the scheduled repayments pursuant to Section 2.1.1(d), Borrower shall prepay Loans (i) to the extent the aggregate outstanding principal balance of all Loans exceeds the aggregate amount of all Loan Commitments or as required by Section 5.15.2 (Replacement Risk Insurance), 5.20 (Partial Completion Buydown), 6.4 (Sale or Lease of Assets), 7.6.3 (Distribution Suspense Account), 7.9 (Application of Insurance Proceeds), or 7.10 (Application of Eminent Domain Proceeds), (ii) (A) with the cash proceeds of any termination payment received by the Borrower in connection with the partial or full termination of the AT&T Power Purchase Agreement, any Supplemental AT&T Power Purchase Agreement or the Wal-Mart Power Purchase Agreement and (B) with the cash proceeds of any payment of Refund Value received by Borrower from Sponsor pursuant to Sections 8.3(c), 8.3(d), 9.3 or 9.7 of the MESPA or Sections 2.5(c), 2.5(d), 4.1(c) or 4.3 of the MOMA, in the case of each of (A) and (B), in the amount necessary for the principal amount of the Loans remaining after such prepayment to be an amount projected to maintain a DSCR of [***] minimum through the Maturity Date under the Base Case Projections, assuming for purposes of such calculation a reduction in the Project capacity to the actual Project nameplate capacity and that each of the remaining System Facilities (if any) operates during future periods at the same capacity factor as such remaining System Facilities operated during the 12 month period preceding the date of calculation but otherwise changing no assumptions in the Base Case Projections, with any portion of the termination payment or payment of Refund Value, as applicable, remaining after such to be applied in accordance with the provisions of Section 7.3.2(a); and if there are no remaining System Facilities, in an amount equal to the total termination payment or Refund Value, as applicable, received by Borrower, (iii) with cash proceeds of any warranty payment received by Borrower from Sponsor pursuant to Sections 8.3 or 8.6 of the MESPA or Sections 2.5 or 2.6 of the MOMA, in an amount equal to the portion of

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such payment that remains after subtracting (A) any portion of such payment that is required to be applied under Section 7.3.2(a)(1), (2), (3), (5) and (6) to the extent other funds are not then available for such purposes and (B) an amount to be transferred to the Distribution Suspense Account equal to the Preferred Distribution (as defined in the Holdings Operating Agreement) which the Tax Equity Investors are entitled to receive for the then-current year less the amount of any Preferred Distribution for such year previously distributed to the Tax Equity Investors, and (iv) as required by any other provision of the Credit Documents (each such prepayment, a “Mandatory Prepayment”).

(d) Notice of Prepayment. Borrower shall notify Administrative Agent of any prepayment hereunder not later than 11:00 a.m. three (3) Business Days before the date of prepayment. Each such notice shall be irrevocable. Each such notice shall specify the prepayment date and the principal amount of each Loan or portion thereof to be prepaid and, in the case of a Mandatory Prepayment, a reasonably detailed calculation of the amount of such prepayment. If any notice of prepayment is given, the amount specified in such notice shall be due and payable on the date specified therefor, together with accrued interest to the payment date on the principal amount to be prepaid. Upon receipt of any notice of prepayment, Administrative Agent shall promptly advise the Lenders of the contents thereof.

(e) Make Whole Payments. Any prepayment of the Loans under Sections 2.1.5(b) (Optional Prepayments), 5.15.2 (Replacement Risk Insurance), Section 6.4 (Sale or Lease of Assets) (provided that no Make Whole Amount shall be payable with respect to any prepayment of the Loans with the proceeds received by Borrower from the exercise of the purchase option under the Wal-Mart Power Purchase Agreement by Wal-Mart Stores, Inc.) or 7.6.3 (Mandatory Prepayment), shall be accompanied by payment of the Make Whole Amount relating to such prepayment. After the making of any prepayment of the Loans under Section 2.1.5(c)(ii)(A), the remaining cash proceeds received by the Borrower from a termination payment described in Section 2.1.5(c)(ii)(A) shall be applied (i) first, to make distributions to Holdings in an aggregate amount not to exceed the amount of distributions that Holdings is required to make to Tax Equity Investor under Section 5.1.(b) of the Holdings Operating Agreement upon termination of the applicable Power Purchase Agreement, and (ii) second, to pay a prepayment fee to the Administrative Agent, for the account of the Lenders, in the aggregate amount of the lesser of (A) [***] of the cash proceeds remaining after the payment described in clause (i) and (B) the Make Whole Amount relating to such prepayment.

2.2 Loan Commitments.

2.2.1 [Reserved].

2.2.2 Reductions and Cancellations. Borrower may, from time to time upon five (5) Business Days’ notice to Administrative Agent permanently reduce by a minimum amount of $500,000 or an integral multiples of $100,000 in excess thereof, or cancel in their entirety, the Loan Commitments, subject to the provisions of this Section 2.2.2. Borrower may not reduce or cancel the Loan Commitments if, after giving effect to such reduction or cancellation, (a) the aggregate principal amount of all Loans then outstanding would exceed the aggregate amount of all Loan Commitments following the proposed reduction or (b) the Available Funds after any required Mandatory Prepayment (and any Make Whole Amount

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related thereto), would not, in the reasonable judgment of Administrative Agent and the Independent Engineer, equal or exceed the sum of the remaining Project Costs (including budgeted contingency (or the appropriate part thereof).

2.3 [Reserved].

2.4 Other Payment Terms.

2.4.1 Place and Manner. Except as otherwise provided in the Fee Letter or any other provision contained in any of the Credit Documents, Borrower shall make all payments due hereunder to the account of Administrative Agent, to the account designated by Administrative Agent, in Dollars and in immediately available funds not later than 2:00 p.m. on the date on which such payment is due. Any payment made after such time on any day shall be deemed received on the next Business Day after such payment is received. Administrative Agent shall distribute to each Lender each such payment received by Administrative Agent for such Lender to be applied in accordance with the terms of this Agreement, such disbursement to occur on the day such payment is received if received by 2:00 p.m. or if otherwise reasonably possible, or otherwise on the next succeeding Business Day. Upon its acceptance and recording in the Register of any Assignment and Assumption entered into under Section 12.13, from and after the effective date specified therein, Administrative Agent shall make all the payments hereunder and under the Notes in respect of this Agreement interest assigned thereby to the Lender assignee thereunder, and the parties to such Assignment and Assumption shall make all appropriate adjustments in such payments for periods prior to such effective date directly between themselves.

2.4.2 Date. Whenever any payment due hereunder shall fall due on a day other than a Business Day, such payment shall be made on the next succeeding Business Day, and such extension of time shall be included in the computation of interest or fees, as the case may be, without duplication of any interest or fees so paid in the next subsequent calculation of interest or fees payable.

2.4.3 Default Rate. Notwithstanding anything to the contrary herein, upon the occurrence and during the continuation of an Event of Default, the outstanding principal amount of all Loans and, to the extent permitted by applicable Legal Requirements, any due and unpaid interest, fees and other amounts due and payable hereunder, shall thereafter bear interest (including post-petition interest in any proceeding under applicable Debtor Relief Laws) from the date of such Event of Default until the Event of Default is cured or waived, after as well as before judgment, payable upon demand at a rate that is 2% per annum in excess of the interest rate then otherwise payable under this Agreement (the “Default Rate”). Payment or acceptance of the increased rates of interest provided for in this Section is not a permitted alternative to timely payment and shall not constitute a waiver of any Event of Default or otherwise prejudice or limit any rights or remedies of any Secured Party.

2.4.4 Taxes.

(a) Payments Free of Taxes. Any and all payments by or on account of any obligation of Borrower under any Credit Document shall be made without deduction or

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withholding for any Taxes, except as required by applicable law. If any applicable law (as determined in the good faith discretion of an applicable Withholding Agent) requires the deduction or withholding of any Tax from any such payment by a Withholding Agent, then the applicable Withholding Agent shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant Governmental Authority in accordance with applicable law and, if such Tax is an Indemnified Tax, then the sum payable by Borrower shall be increased as necessary so that after such deduction or withholding has been made (including such deductions and withholdings applicable to additional sums payable under this Section) the applicable Recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.

(b) Payment of Other Taxes by Borrower. Borrower shall timely pay to the relevant Governmental Authority in accordance with applicable law, or at the option of Administrative Agent timely reimburse it for the payment of, any Other Taxes.

(c) Indemnification by Borrower. Borrower shall indemnify each Recipient, within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section) payable or paid by such Recipient or required to be withheld or deducted from a payment to such Recipient and any reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to Borrower by a Recipient (with a copy to Administrative Agent), or by Administrative Agent on its own behalf or on behalf of a Recipient, shall be conclusive absent manifest error.

(d) Indemnification by the Lenders. Each Lender shall severally indemnify Administrative Agent, within 10 days after demand therefor, for (i) any Indemnified Taxes attributable to such Lender (but only to the extent that Borrower has not already indemnified Administrative Agent for such Indemnified Taxes and without limiting the obligation of Borrower to do so), (ii) any Taxes attributable to such Lender’s failure to comply with the provisions of Section 12.13.3 relating to the maintenance of a Participant Register and (iii) any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by Administrative Agent in connection with any Credit Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes Administrative Agent to set off and apply any and all amounts at any time owing to such Lender under any Credit Document or otherwise payable by Administrative Agent to the Lender from any other source against any amount due to Administrative Agent under this Section 2.4.4(d).

(e) Evidence of Payments. As soon as practicable after any payment of Taxes by Borrower to a Governmental Authority pursuant to this Section 2.4.4, Borrower shall deliver to Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of the return reporting such payment or other evidence of such payment reasonably satisfactory to Administrative Agent.

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(f) Status of Lenders.

1. Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Credit Document shall deliver to Borrower and Administrative Agent, at the time or times reasonably requested by Borrower or Administrative Agent, such properly completed and executed documentation reasonably requested by Borrower or Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by Borrower or Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by Borrower or Administrative Agent as will enable Borrower or Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 2.4.4(f)(ii)(A), (ii)(B) and (ii)(D) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

2. Without limiting the generality of the foregoing, in the event that Borrower is a U.S. Borrower, any Lender that is a U.S. Person shall deliver to Borrower and Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or Administrative Agent), executed originals of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding Tax;

3. any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower and Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or Administrative Agent), whichever of the following is applicable:

(1) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Credit Document, executed originals of IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Credit Document, IRS Form W-8BEN establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty;

(2) in the case of a Foreign Lender claiming the benefits of Section 892 of the Code, IRS Form W-8EXP;

(3) executed originals of IRS Form W-8ECI;

(4) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate

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substantially in the form of Exhibit R-1 to the effect that such Foreign Lender is not a “bank” within the meaning of Section 881(c)(3)(A) of the Code, a “10 percent shareholder” of Borrower within the meaning of Section 881(c)(3)(B) of the Code, or a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “U.S. Tax Compliance Certificate”) and (y) executed originals of IRS Form W-8BEN or W-8EXP; or

(5) to the extent a Foreign Lender is not the beneficial owner, executed originals of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN, IRS Form W-8EXP, a U.S. Tax Compliance Certificate substantially in the form of Exhibit R-2 or Exhibit R-3, IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit R-4 on behalf of each such direct and indirect partner;

(6) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to Borrower and Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of Borrower or Administrative Agent), executed originals of any other form prescribed by applicable law as a basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable law to permit Borrower or Administrative Agent to determine the withholding or deduction required to be made; and

4. if a payment made to a Lender under any Credit Document would be subject to U.S. federal withholding Tax imposed by FATCA if such Lender were to fail to comply with the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), such Lender shall deliver to Borrower and Administrative Agent at the time or times prescribed by law and at such time or times reasonably requested by Borrower or Administrative Agent such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by Borrower or Administrative Agent as may be necessary for Borrower and Administrative Agent to comply with their obligations under FATCA and to determine that such Lender has complied with such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (D), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify Borrower and Administrative Agent in writing of its legal inability to do so.

(g) Treatment of Certain Refunds. If any party determines, in its sole discretion exercised in good faith, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 2.4.4 (including by the payment of additional amounts pursuant to this Section 2.4.4), it shall pay to the indemnifying party an amount equal to such

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refund (but only to the extent of indemnity payments made under this Section with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this paragraph (g) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this paragraph (g), in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this paragraph (g) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the indemnification payments or additional amounts giving rise to such refund had never been paid. This paragraph shall not be construed to require any indemnified party to make available its Tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

(h) Survival. Each party’s obligations under this Section 2.4.4 shall survive the resignation or replacement of Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the termination of the Loan Commitments and the repayment, satisfaction or discharge of all obligations under any Credit Document.

2.4.5 Application of Payments. Except as otherwise expressly provided in any Credit Document, payments made under the Credit Documents and other amounts received by the Secured Parties under the Credit Documents shall first be applied to any fees, costs, charges or expenses payable to the Secured Parties under the Credit Documents, next to any accrued but unpaid interest then due and owing, then to outstanding principal then due and owing or otherwise to be prepaid, in each case, such application to be made on a pro rata basis among such applicable Persons.

2.5 Sharing of Payments by Secured Parties. If any Secured Party shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of any principal of or interest on any of its Loans, or other obligations hereunder resulting in such Secured Party receiving payment of a proportion of the aggregate amount of its Loans and accrued interest thereon, or other such obligations greater than its pro rata share thereof as provided herein, then the Secured Party receiving such greater proportion shall (a) notify Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans, and such other obligations of the other Secured Parties, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Secured Parties ratably in accordance with the aggregate amount of principal of and accrued interest on their respective Loans and other amounts owing them; provided that:

(a) if any such participations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and

(b) the provisions of this paragraph shall not be construed to apply to (i) any payment made by Borrower pursuant to and in accordance with the express terms of this

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Agreement (including the application of funds arising from the existence of a Defaulting Lender), or (ii) any payment obtained by a Secured Party as consideration for the assignment of or sale of a participation in any of its Loans to any assignee or participant, other than to Borrower (as to which the provisions of this paragraph shall apply).

Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Secured Party acquiring a participation pursuant to the foregoing arrangements may exercise against Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Secured Party were a direct creditor of Borrower in the amount of such participation.

2.6 Change of Circumstances.

2.6.1 Increased Costs. If any Change in Law shall:

(a) impose, modify or deem applicable any reserve, special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender;

(b) subject any Recipient to any Taxes (other than (i) Indemnified Taxes, (ii) Taxes described in clauses (b) through (d) of the definition of Excluded Taxes and (iii) Connection Income Taxes) on its loans, loan principal, letters of credit, commitments, or other obligations, or its deposits, reserves, other liabilities or capital attributable thereto; or

(c) impose on any Lender any other condition, cost or expense (other than Taxes) affecting this Agreement made by such Lender;

and the result of any of the foregoing shall be to increase the cost to such Lender or such other Recipient of making, converting to, continuing or maintaining any Loan or of maintaining its obligation to make any such Loan (or to reduce the amount of any sum received or receivable by such Lender or other Recipient hereunder, whether of principal, interest or any other amount) then, upon request of such Lender or other Recipient, Borrower will pay to such Lender or other Recipient, as the case may be, such additional amount or amounts as will compensate such Lender or other Recipient, as the case may be, for such additional costs incurred or reduction suffered.

2.6.2 Capital Requirements. If any Lender determines that any Change in Law affecting such Lender or any lending office of such Lender or such Lender’s holding company, if any, regarding capital or liquidity requirements, has or would have the effect of reducing the rate of return on such Lender’s capital or on the capital of such Lender’s holding company, if any, as a consequence of this Agreement, the Loan Commitments of such Lender or the Loans made by, such Lender, to a level below that which such Lender or such Lender’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s policies and the policies of such Lender’s holding company with respect to capital adequacy), then within 30 days following delivery of notice from such Lender, Borrower will pay to such Lender such additional amount or amounts as will compensate such Lender or such Lender’s holding company for any such reduction suffered.

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2.6.3 Certificates for Reimbursement. A certificate of a Lender setting forth the amount or amounts necessary to compensate such Lender or its holding company, as the case may be, as specified in Section 2.6.1 or Section 2.6.2 and delivered to Borrower, shall be conclusive absent manifest error. Borrower shall pay such Lender the amount shown as due on any such certificate within 30 days after receipt thereof. No Person purchasing from a Lender a participation in any Loan Commitment (as opposed to an assignment) shall be entitled to any payment from or on behalf of Borrower pursuant to Section 2.6.1 or 2.6.2 which would be in excess of the applicable proportionate amount (based on the Loan Commitments in which such Person is participating) which would then be payable to such Lender if such Lender had not sold a participation in that Loan Commitment.

2.6.4 Delay in Requests. Failure or delay on the part of any Lender to demand compensation pursuant to this Section shall not constitute a waiver of such Lender’s right to demand such compensation; provided that Borrower shall not be required to compensate a Lender pursuant to this Section for any increased costs incurred or reductions suffered more than 12 months prior to the date that such Lender notifies Borrower of the Change in Law giving rise to such increased costs or reductions, and of such Lender’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the 12-month period referred to above shall be extended to include the period of retroactive effect thereof).

2.7 Mitigation Obligations; Replacement of Lenders.

2.7.1 Designation of a Different Lending Office. If any Lender requests compensation under Section 2.6, or requires Borrower to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.4.4, then such Lender shall (at the request of Borrower) use reasonable efforts to designate a different lending office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment (a) would eliminate or reduce amounts payable pursuant to Section 2.6.1 or 2.4.4, as the case may be, in the future, and (b would not subject such Lender to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in connection with any such designation or assignment.

2.7.2 Replacement of Lender. If any Lender requests compensation under Section 2.6.1, or if Borrower is required to pay any Indemnified Taxes or additional amounts to any Lender or any Governmental Authority for the account of any Lender pursuant to Section 2.4.4 and, in each case, such Lender has declined or is unable to designate a different lending office in accordance with Section 2.7.1, or if any Lender is a Defaulting Lender or a Non-Consenting Lender, then Borrower may, at its sole expense and effort, upon notice to such Lender and Administrative Agent, require such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section 12.13.2), all of its interests, rights (other than its existing rights to payments pursuant to Section 2.4.4 or Section 2.6.1 and obligations under this Agreement and the related Credit Documents to an Eligible Assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment); provided that:

(a) Borrower shall have paid to Administrative Agent the assignment fee (if any) specified in Section 12.13.2(d);

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(b) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans, accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Credit Documents (including any amounts under Section 2.7) from the assignee (to the extent of such outstanding principal and accrued interest and fees) or Borrower (in the case of all other amounts);

(c) in the case of any such assignment resulting from a claim for compensation under Section 2.6.1 or payments required to be made pursuant to Section 2.4.4, such assignment will result in a reduction in such compensation or payments thereafter;

(d) such assignment does not conflict with applicable law; and

(e) in the case of any assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver or consent.

A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling Borrower to require such assignment and delegation cease to apply.

2.7.3 Lender Election to Change Lending Office. Upon notice to Administrative Agent, any Lender may designate a Lending Office other than the Lending Office most recently designated to Administrative Agent and may assign all of its interests under the Credit Documents and its Notes (if any) to such Lending Office; provided, that such designation and assignment does not at the time of such designation and assignment increase the reasonably foreseeable liability of Borrower under Section 2.4.4, 2.6.1 or 2.6.2.

2.8 Register. Administrative Agent shall maintain a register (the “Register”) for the recordation of certain information hereunder from time to time. The Register shall be available for inspection by Borrower, or any Secured Party as to its data only, at any reasonable time and from time to time upon reasonable prior notice. Administrative Agent shall record in the Register (a) the Loan Commitments and the Loans from time to time of each Lender, (b) the interest rates applicable to all Loans and the effective dates of all changes thereto, (c) the date and amount of any principal or interest due and payable or to become due and payable from Borrower to each Lender hereunder, each repayment or prepayment in respect of the principal amount of the Loans of each Lender, the amount of any sum received by Administrative Agent hereunder for the account of the Secured Parties and each Secured Party’s share thereof, each Assignment and Assumption, and such other information as Administrative Agent may determine is necessary for the administering of the Loans and this Agreement. Any such recording shall be conclusive and binding in the absence of manifest error, and Borrower, Administrative Agent and the Lenders shall treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement; provided, that neither the failure to make any such recordation, nor any error in such recordation, shall affect any Lender’s Loan Commitment or the Obligations in respect of any applicable Loans or otherwise; and provided, further, that in the event of any inconsistency between the Register and any Secured Party’s records, the Register shall govern absent manifest error.

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ARTICLE 3

CONDITIONS PRECEDENT

3.1 Conditions Precedent to the Restatement Effective Date. The closing and effectiveness of this Agreement and the obligations of the Lenders to make Loans are subject to the prior satisfaction of each of the following conditions unless waived by each Lender in accordance with Section 12.18:

3.1.1 Resolutions. Delivery to Administrative Agent of a copy of one or more resolutions or other authorizations, in form and substance reasonably satisfactory to Administrative Agent, of the Board of Directors or other similar governing body of each Credit Party as of the Restatement Effective Date certified by a Responsible Officer of such Credit Party as being true, complete, in full force and effect on the Restatement Effective Date and not amended, modified, revoked or rescinded, approving and authorizing, among other things, the Borrowings herein provided for, the granting of the Liens under the Collateral Documents, the provision of the guaranties, warranties and indemnities, the contribution of equity to Borrower and the execution, delivery and performance of this Agreement, each other Operative Document and any instruments or agreements required hereunder or thereunder to which such Credit Party is a party.

3.1.2 Incumbency. Delivery to Administrative Agent of a certificate, in form and substance reasonably satisfactory to Administrative Agent, from each Credit Party signed by the appropriate authorized officer or manager of each such Credit Party and dated as of the Restatement Effective Date, as to the incumbency and specimen signature of each natural Person authorized to execute and deliver this Agreement, the other Operative Documents and any instruments or agreements required hereunder or thereunder to which such Credit Party is a party, including various certificates to be delivered by such Credit Party pursuant to this Section 3.1.

3.1.3 Governing Documents. Delivery to Administrative Agent, in each case certified by a Responsible Officer of such Credit Party as being true, correct and complete on the Restatement Effective Date, of (a) copies of the certificate of formation, charter or other state certified constituent documents of each Credit Party, certified as of a recent date by the secretary of state of such Credit Party’s state of organization, (b) copies of the bylaws, limited liability company operating agreement, partnership agreement or other comparable operating documents, as applicable, of each Credit Party and (c) a copy of the ECCA.

3.1.4 Good Standing Certificates. Delivery to Administrative Agent of certificates (in so called “long form” if available) issued by the secretary of state of the state in which each Credit Party and Major Project Participant is formed or incorporated, as applicable, and the secretary of state of the State of California and, with respect to Borrower and those Major Project Participants that are counterparties to a Power Purchase Agreement that includes any Project located in Connecticut, to the State of Connecticut, in each case (a) dated a date reasonably close to the Restatement Effective Date and (b) certifying that such Credit Party is in

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good standing and is qualified to do business in, and has paid all franchise Taxes or similar Taxes due to, such state of formation or incorporation and the State of California and, with respect to Borrower only, the State of Connecticut.

3.1.5 Third Party Approvals. Borrower shall have received all Applicable Permits as of the Restatement Effective Date applicable to any transaction contemplated in any Operative Document as evidenced in a certificate from Borrower to Administrative Agent substantially in the form of the relevant provisions of Exhibit E-1.

3.1.6 Credit Documents and Project Documents. Delivery to Administrative Agent of (a) originals of each Restated Credit Document, all of which shall (i) have been duly authorized, executed and delivered by the Credit Parties party thereto and in form and substance reasonably satisfactory to Administrative Agent and the Lenders, and (ii) be in full force and effect and accompanied by a certificate of Borrower certifying to the foregoing in accordance with Section 3.1.7, provided, that each Note shall conform to all requirements hereof and be delivered to Administrative Agent for the account of, and payable to, each Lender that has requested such Note in accordance with Section 2.1.3, and delivery thereof shall be subject to the return of such Lender’s existing Note for cancellation, (b) a certified list of, and true, correct and complete copies of, each Project Document (other than any Project Document which is immaterial and only incidental to the development, construction, leasing, ownership or operation of the Projects) executed, amended, or amended and restated after the Closing Date and on or prior to the Restatement Effective Date, each in form and substance reasonably satisfactory to the Lenders, all of which shall (x) have been duly authorized, executed and delivered by the parties thereto, and (y) be certified by Borrower as being true, complete and correct and in full force and effect on the Restatement Effective Date in accordance with Section 3.1.7 and (c) each document, certificate, or other deliverable required to be delivered under each Restated Credit Document as of the Restatement Effective Date.

3.1.7 Certificate of Credit Party. Delivery to Administrative Agent of a certificate, dated as of the Restatement Effective Date, duly executed by a Responsible Officer of each Credit Party, in substantially the form of the applicable Exhibit E-1.

3.1.8 Legal Opinions. Delivery to the Administrative Agent of legal opinions of counsel to the Credit Parties, addressed to the Administrative Agent, Collateral Agent and Lenders and in form and substance reasonably satisfactory to the addressees.

3.1.9 [Reserved].

3.1.10 [Reserved].

3.1.11 [Reserved].

3.1.12 [Reserved].

3.1.13 [Reserved].

3.1.14 Absence of Litigation. Except as set forth in Schedule 3.1.14, there are no actions, suits or proceedings by or before any Governmental Authority or arbitrator pending or, to Borrower’s Knowledge, threatened in writing by or against Borrower or any Major Project Participant related to the Projects.

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3.1.15 Payment of Fees. All Taxes, fees and other costs payable in connection with the execution, delivery recordation and filing of the documents and instruments referred to in this Section 3.1 and due on or before the Restatement Effective Date shall have been paid in full or, if and in the manner specifically approved by the Lenders, provided for. Borrower shall have paid (or caused to be paid) or shall have made arrangements in the manner reasonably satisfactory to the payee for the payment of all outstanding amounts due, as of the Restatement Effective Date, and owing to (a) the Secured Parties under any fee or other letter or otherwise pursuant to Section 2.3, and (b) the Secured Parties’ attorneys and consultants (including the Independent Consultants) for all services rendered and billed prior to or on the Restatement Effective Date (to the extent not paid on the Closing Date).

3.1.16 Financial Statements. A certificate from the appropriate Responsible Officer of Sponsor, dated as of the Restatement Effective Date, stating that no material adverse change in the consolidated assets, liabilities, operations or financial condition of Sponsor has occurred from those set forth in the most recent financial statements provided to Administrative Agent. The Borrower, Holdings and the Managing Member shall have no liabilities other than the Obligations and obligations under the Project Documents.

3.1.17 Collateral Requirements. Delivery to Administrative Agent of evidence reasonably satisfactory to Administrative Agent that Borrower or other applicable Lien grantor has taken or caused to be taken all such actions, executed and delivered or caused to be executed and delivered all such agreements, documents and instruments, and made or caused to be made all such filings and recordings that may be necessary or, in the opinion of Administrative Agent, desirable in order to create in favor of Collateral Agent a valid and (upon such filing and recording) perfected first priority Lien in such Person’s rights, title and interest in and to the

Collateral. Such actions shall include delivery to Administrative Agent and Collateral Agent of the Pledge Agreement and the Security Agreement, duly executed by each Credit Party party thereto.

3.1.18 [Reserved].

3.1.19 Anti-Terrorism Compliance. To the extent not previously delivered to each Lender, at least five Business Days prior to the Restatement Effective Date, each Lender shall have received all documentation and other information requested by such Lender, which is required by bank regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the Patriot Act, or pursuant to such Lender’s internal policies.

3.1.20 [Reserved].

3.1.21 Base Case Projections. Delivery to Administrative Agent of the Base Case Projections, in form and substance satisfactory to each Lender.

3.1.22 Project Budget and Drawdown Schedule. Delivery to Administrative Agent of an updated budget and drawdown schedule (the “Project Budget”) for all anticipated

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costs to be incurred in connection with the development, construction, installation, timing and start-up of the Projects, which Project Budget shall be attached hereto as Schedule 3.1.22 prior to the Restatement Effective Date and shall be in form and substance satisfactory to Administrative Agent and the Lenders.

3.1.23 Project Schedule. Delivery to Administrative Agent of the Project Schedule in form and substance satisfactory to the Administrative Agent and which shall be attached hereto as Schedule 3.1.23 prior to the Restatement Effective Date.

3.1.24 Searches. Certified copies of UCC, tax and judgment lien searches, bankruptcy and pending lawsuit searches or equivalent reports or searches, each of a date no less recent than 5 Business Days before the Restatement Effective Date or as otherwise acceptable to Administrative Agent listing all effective financing statements, lien notices or comparable documents that name Borrower or Holdings as debtor and that are filed in those state and county jurisdictions in which any property of such Person is located and the state and county jurisdictions in which such Person is organized or maintains its principal place of business and such other searches that Administrative Agent deems necessary or appropriate, none of which encumber the Collateral covered or intended to be covered by the Collateral Documents (other than Permitted Liens) showing that the security interests created under the Collateral Documents, with respect to the Collateral, are prior to all other financing statements, fixture filings or other security documents wherein the security interest is perfected by filing or recording in respect of the Collateral.

3.2 Conditions Precedent to Supplemental Funding Date. The obligation of each Lender to advance the initial Borrowing hereunder with respect to the Supplemental AT&T Project is subject to the occurrence of the Restatement Effective Date and prior satisfaction (or waiver by Administrative Agent with the consent of all of the Lenders) of each of the following conditions (the date on which each such condition is so satisfied or waived, the “Supplemental Funding Date”):

3.2.1 Supplemental AT&T Power Purchase Agreements and Site Leases. The Borrower, AT&T Corp. and Pacific Bell Telephone Company have entered into (i) amendments to the Supplemental AT&T Power Purchase Agreements in the forms of Exhibits S and T, as applicable, and (ii) Site Leases related thereto in the forms attached to the respective amendments.

3.2.2 Termination of Assignment and Assumption Agreements. The Borrower has delivered to the Administrative Agent an executed termination and release agreement in relation to each Assignment and Assumption Agreement in form and substance reasonably satisfactory to the Administrative Agent.

3.2.3 Legal Opinion. The Administrative Agent has received a legal opinion of counsel to the Borrower, addressed to the Administrative Agent, Collateral Agent and Lenders with respect to amendments to the Supplemental AT&T Power Purchase Agreements, termination of Assignment and Assumption Agreements and such other matters as the Administrative Agent may reasonably request in connection with the Borrower’s execution and delivery of the items described in Sections 3.2.1 and 3.2.2.

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3.2.4 Indemnity Agreement. Borrower shall have entered into the First Amendment to Indemnity Agreement with the Sponsor and the Administrative Agent, upon terms and conditions acceptable to the Lenders, which shall (x) have been duly authorized, executed and delivered by the parties thereto, and (y) be certified by Borrower as being true, complete and correct and in full force and effect on the Supplemental Funding Date.

3.2.5 PPA2-C Assignment. The Administrative Agent has received an executed copy of an assignment agreement, in the form of Exhibit H, between the Borrower and 2013B ESA Project Company, LLC with respect to (i) the Energy System Use Agreement No. 20130403.076.C, dated as of May 15, 2013, between AT&T Corp. and the Borrower, and (ii) the related Site Lease.

3.2.6 PPA2-C Acknowledgment and Consent. The Administrative Agent has received an executed copy of an acknowledgment and consent, in the form of Exhibit P, by and among the Borrower, 2013B ESA Project Company, LLC, the Administrative Agent and AT&T Corp. with respect to (i) the Energy System Use Agreement No. 20130403.076.C, dated as of May 15, 2013, between AT&T Corp. and the Borrower, and (ii) the related Site Lease and Direct Agreement.

3.2.7 Real Property Access and Use Requirements. Evidence reasonably acceptable to the Administrative Agent that the Borrower and each other Major Project Participant have obtained and hold all easements and other rights to access and occupy the applicable real property necessary for the performance in full of such Person’s obligations under the Operative Documents and each Permit then required for the Supplemental AT&T Project by which such Person or its assets are bound and the development, construction and operation of the Supplemental AT&T Project in accordance with the Base Case Projections.

3.2.8 Direct Agreements. Delivery to Administrative Agent of (i) an executed Direct Agreement in the form of Exhibit N, and (ii) an executed Direct Agreement in the form of Exhibit O.

3.2.9 [Reserved].

3.2.10 [Reserved].

3.2.11 [Reserved].

3.2.12 [Reserved].

3.2.13 [Reserved].

3.2.14 Insurance. Insurance for the Supplemental AT&T Project on terms and conditions acceptable to Administrative Agent shall be in full force and effect and Administrative Agent, Collateral Agent and the Insurance Consultant shall have received a certificate from Borrower’s insurance broker(s), dated on or before the Supplemental Funding Date and in form and substance reasonably satisfactory to Administrative Agent, (a) identifying underwriters, type of insurance, insurance limits and policy terms for such insurance, (b) listing any special provisions reasonably requested by Administrative Agent with respect to such

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insurance, (c) describing the insurance obtained for the Supplemental AT&T Project and (d) stating that such insurance is in full force and effect and that all premiums then due thereon have been paid and that, in the opinion of such broker(s), such insurance complies with the terms and conditions set forth on Schedule 5.15.

3.2.15 Solvency Certificate. Delivery to Administrative Agent of a certificate in the form of Exhibit E-3 from an authorized officer of Borrower certifying that Borrower is Solvent as of the Supplemental Funding Date after giving effect to the transactions contemplated hereby.

3.2.16 Certificate of Insurance Consultant. Delivery to Administrative Agent of the Insurance Consultant’s certificate, dated as of the Supplemental Funding Date in form and substance satisfactory to Administrative Agent, together with the Insurance Consultant’s report that (a) summarizes the proposed insurance arrangements for the Supplemental AT&T Project, (b) concludes that such insurance is adequate and customary and (c) is otherwise in form and substance reasonably satisfactory to Administrative Agent and the Lenders, attached thereto.

3.2.17 Certificate of the Independent Engineer. Delivery to Administrative Agent of the Independent Engineer’s certificate with respect to the Supplemental AT&T Project, dated on or before such date, in form and substance acceptable to Administrative Agent.

3.2.18 [Reserved].

3.2.19 [Reserved].

3.2.20 [Reserved].

3.3 Conditions Precedent to Each Borrowing. The obligation of each Lender to advance each Borrowing is subject to the occurrence of the Restatement Effective Date and prior satisfaction (or waiver by Administrative Agent with the consent of all of the Lenders for the Supplemental Funding Date and the Required Lenders for subsequent Borrowings) of each of the following conditions:

3.3.1 Representations and Warranties.

(a) Each representation and warranty of each Credit Party in any of the Credit Documents shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the date of such Borrowing, before and after giving effect to the applicable Borrowing, with the same effect as though made on and as of such date, unless such representation or warranty expressly relates solely to an earlier date; and Borrower shall have certified to the Lenders as to the foregoing.

(b) Each representation and warranty of each Major Project Participant contained in the Operative Documents (other than this Agreement) shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” or the like shall be true and correct in all respects) on and as of the date of such Borrowing, before and after giving effect to the Borrowing, with the same effect as though made on and as of such date, unless such representation and warranty expressly relates solely to an earlier date.

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3.3.2 No Default or Event of Default. No Default or Event of Default shall have occurred and be continuing or will result from the relevant Borrowing.

3.3.3 No Material Adverse Effect. Since the Closing Date, no event, circumstance or condition shall have occurred and be continuing (and Administrative Agent shall have become aware of no such facts or conditions not previously known) that constitutes or could reasonably be expected to result in a Material Adverse Effect.

3.3.4 Additional Documentation. With respect to Additional Project Documents entered into or obtained, transferred or required since the date of the most recent Credit Event, there shall be, if reasonably requested by Administrative Agent, delivery of such matters as are described in Sections 3.1.1 and 3.1.8 from Borrower.

3.3.5 Notice of Borrowing. Borrower shall have delivered a Notice of Borrowing to Administrative Agent in accordance with the procedures specified in Section 2.1.1(a).

3.3.6 Drawdown Certificate and Independent Engineer’s Drawdown Certificate.

(a) At least seven, but not more than fourteen, Business Days prior to the submission of each Notice of Borrowing, Borrower shall have provided Administrative Agent and the Independent Engineer with a duly executed copy of the Drawdown Certificate, dated the date of delivery of such certificate, setting forth the date of the proposed occurrence of such Credit Event and signed by a Responsible Officer of Borrower.

(b) No later than the date of submission of each Notice of Borrowing, the Independent Engineer shall have provided Administrative Agent with a certificate dated the date of delivery of such certificate, confirming that COD has occurred with respect to all of the System Facilities be installed on the Site related the requested Credit Event, substantially in the form of Exhibit E to the MESPA (as in effect on the Restatement Effective Date).

(c) Borrower shall use all reasonable efforts to provide Administrative Agent and the Independent Engineer with drafts of any certificates and other materials to be delivered pursuant to this Section 3.3.6 in advance of the time frames listed above as reasonably requested by Administrative Agent.

3.3.7 Lien Releases. Subject to Borrower’s right to contest Liens as described in the definition of “Permitted Liens,” Borrower shall have delivered (such delivery may be condition upon concurrent receipt of payment by the relevant Person) if applicable, to Administrative Agent duly executed Lien waivers relating to mechanics’ and materialmen’s Liens, in form and substance reasonably satisfactory to the Administrative Agent.

3.3.8 Available Funds. After taking into consideration the making of the applicable Loans, the Administrative Agent (based on consultation with the Independent Engineer) shall have reasonably determined that Available Funds shall not be less than the aggregate unpaid amount required to cause Completion to occur in accordance with all Legal

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Requirements, the MESPA, each other Project Document pursuant to which construction work with respect to the Projects is being performed and the Credit Documents prior to the end of the Availability Period and to pay or provide for all anticipated non construction Project Costs, all as set forth in the current Project Budget.

3.3.9 Utilities. Delivery to Administrative Agent of reasonably satisfactory evidence that all process water, sewer, telephone, waste disposal, electric and all other utility services necessary for the development, construction, ownership and operation of each Project are either contracted for, or readily available on commercially reasonable terms, at such Project.

3.3.10 Legality. No Legal Requirement or any interpretation thereof, exists which would make any Loan, or the securing of any Loan by the Collateral, or any other aspect of the transactions contemplated herein, illegal, or which would subject the Lenders or any of their Affiliates to any penalties, sanctions or fines.

3.3.11 Utility Laws. No Lender will, solely as a result of the transactions contemplated in this Agreement, become subject to or not exempt from regulation as a “public utility” under Section 201(e) of the FPA, an “electric utility company,” a “public utility company” or a “holding company” under Section 1262(5), 1262(14) or 1262(8), respectively, of the Energy Policy Act of 2005, a “public utility” or an “electrical corporation” under Section 216 or 218, respectively, of the California Public Utilities Code, or a “public service company”, an “electric distribution company” or an “electric company” as such terms are defined, respectively, in Section 16-1 of the Connecticut General Statutes as amended by Connecticut Public Act 13-298, or a “utility” as defined in Section 16-234 of the Connecticut General Statutes, as amended by Connecticut Public Act 13-298, except a Lender may become subject to such regulation upon the exercise of remedies under the Credit Documents.

3.3.12 Acceptable Work; No Liens. All work that has been done on each Project has been done in a good and workmanlike manner and in accordance with the MESPA, and there shall not have been filed against any of the Collateral or otherwise filed with or served upon Borrower with respect to such Project or any part thereof, notice of any Lien, claim of Lien or attachment upon or claim affecting the right to receive payment of any of the moneys payable to any of the Persons named on such request which has not been released by payment or bonding or otherwise or which will not be released with the payment of such obligation out of such Loan or non-Loan proceeds, other than Permitted Liens.

3.3.13 Permits.

(a) Delivery to Administrative Agent of a schedule of Permits (“Permit Schedule”), in form and substance reasonably satisfactory to Administrative Agent, of which (i) Part I shall be Permits which are Applicable Permits as the date of such Borrowing with respect to each System Facility being financed with such Borrowing, and (ii) Part II shall be Permits which are expected to become Applicable Permits with respect to each such System Facility after the date of such Borrowing. If requested by the Administrative Agent, Borrower shall also deliver to Administrative Agent copies of each Permit listed in Part I.

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(b) Each Permit on Part I of the Permit Schedule and each Permit which is an Applicable Third Party Permit as of the date of such Borrowing shall (i) have been duly obtained by the Borrower or on behalf of the Project or been assigned in Borrower’s or the applicable third party’s name, (ii) be in full force and effect, (iii) not be subject to any current legal proceeding, and (iv) not be subject to any Unsatisfied Condition that could reasonably be expected to result in material modification or revocation of such Permit, and except as disclosed in the Permit Schedule, all applicable appeal periods with respect to each such Permit shall have expired.

(c) The Permits listed in Part II of the Permit Schedule shall, in Administrative Agent’s reasonable opinion, be timely obtainable (i) on or before the date Borrower requires such Permit, (ii) without delay materially in excess of the time provided therefor in the Project Schedule (if applicable), and (iii) without expense materially in excess of the amounts provided therefor in the Project Budget.

3.3.14 Equity Contribution; Proportional Funding; Debt/Equity Limits.

(a) (i) Cash proceeds of not less than an amount equal to [***]/kW for all Funded Systems shall have been contributed to Holdings by its members pursuant to the ECCA, the Equity Contribution Tri-Party Agreement and the Holdings Operating Agreement, (ii) Holdings shall have contributed an amount of cash proceeds to Borrower, or an amount of cash shall be deemed to have been contributed to the Borrower pursuant to the Equity Contribution Tri-Party Agreement upon payment by Holdings of certain Project Costs of Borrower, sufficient to maintain the ratios described below in clause (b) before and after giving effect to such Credit Event and (iii) Holdings shall have contributed an amount of cash proceeds to Borrower sufficient for Borrower to fund, and Borrower shall have funded, the amounts required under Section 7.7.1(a) with respect to such Borrowing. All of the outstanding Equity of Borrower shall be held beneficially and legally by Holdings. The Equity of Holdings shall be held beneficially and legally as set forth on Exhibit F;

(b) After giving effect to the requested Borrowing, the aggregate principal amount of the Loans shall not exceed
[***]/kW for all Funded Systems so that at all times the equity capital contributed (or deemed contributed pursuant to the ECCA and the Equity Contribution Tri-Party Agreement) to Borrower shall equal or exceed [***]% of aggregate principal amount of all outstanding Loans consistent with the Base Case Projections (so that if, for example, the Base Case Projections indicated that $[***] of equity capital would have been contributed to Borrower for every $1.00 of Loans, such equity to debt ratio would be maintained at a minimum at the time of each Borrowing).

3.3.15 Infrastructure Buildout. For each Funded System, all necessary shared infrastructure on the applicable Site necessary for installation of such Funded System, including without limitation the “BOF Work,” as such term is defined in the MESPA, shall have been completed, as certified by the Independent Engineer in the Independent Engineer’s Drawdown Certificate.

3.3.16 System COD. Each System Facility being financed has achieved COD.

[***] Confidential Treatment Requested

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3.3.17 No Disputes. No Major Project Participant shall have asserted any material breach of any Major Project Document by any other party thereto.

3.3.18 SGIP/LREC. Delivery to Administrative Agent of (a) written evidence reasonably acceptable to Administrative Agent, that each System Facility being financed has received binding confirmation through the California Self – Generation Incentive Program (“SGIP”), as referred to in each of the Power Purchase Agreements, or the Connecticut Low Emission Renewable Energy Credit Program (“LREC”), as referred to in the Supplemental AT&T Power Purchase Agreement identified in clause (a) of the definition thereof, that each such System Facility has been approved to receive the cash rebates, credits, payments and benefits under the SGIP or LREC, as applicable, and the program administrators have reserved funds for incentive payments in respect of each such System Facility and (b) either (i) written confirmation signed by the Customer under the AT&T Power Purchase Agreement or any Supplemental AT&T Power Purchase Agreement (each, an “AT&T Customer”) in a form reasonably acceptable to Administrative Agent that each AT&T System Facility being financed has received firm written commitment through the California Self – Generation Incentive Program or the Connecticut Low Emission Renewable Energy Credit Program as referred to in section 2.3 of the AT&T Power Purchase Agreement or Section 2.3 of such Supplemental AT&T Power Purchase Agreement, as applicable, and that the AT&T Customer confirms and agrees that the AT&T System Facilities cannot at any time thereafter be deleted by the AT&T Customer from the AT&T Power Purchase Agreement or such Supplemental AT&T Power Purchase Agreement, as applicable, under Section 2.3 of the AT&T Power Purchase Agreement or Section 2.3 of such Supplemental AT&T Power Purchase Agreement, as applicable (“AT&T Written SGIP or LREC Confirmation”), or (ii) if Administrative Agent is not satisfied with the form of AT&T Written SGIP or LREC Confirmation or if from reasonable evidence provided by the Borrower and the Sponsor, Administrative Agent is reasonably satisfied that despite the Borrower’s and Sponsor’s best endeavours, an AT&T Written SGIP or LREC Confirmation cannot be provided, an executed and enforceable indemnity from Sponsor in favour of the Borrower and Administrative Agent on behalf of the Secured Parties in a form acceptable to Administrative with respect to any loss or liability that may be incurred by the Borrower and the Secured Parties respectively, in the event the AT&T Customer seeks or is able to, at any time hereafter, enforce termination rights or deletion of the AT&T System Facility under Section 2.3 of the AT&T Power Purchase Agreement or Section 2.3 of such Supplemental AT&T Power Purchase Agreement, as applicable.

3.3.19 Owner’s Acknowledgement. Borrower shall have provided Administrative Agent with an Owner’s Acknowledgment, in the applicable form attached hereto as Exhibit G, duly executed by Wal-Mart Stores, Inc., or the applicable land owner, if not Wal-Mart Stores, Inc., with respect to each System Facility being financed in the Wal-Mart Project.

3.3.20 LREC Agreement. If the proposed Borrowing is with respect to a System Facility to be located in Connecticut, delivery to Administrative Agent of a true, correct and complete copy of the LREC Agreement applicable to such System Facility, in form and substance reasonably satisfactory to the Lenders, and which shall (a) have been duly authorized, executed and delivered by the parties thereto, and (b) be certified by Borrower as being true, complete and correct and in full force and effect as of the date of the Borrowing.

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3.4 Determinations Under Section 3.1. For purposes of determining satisfaction of the conditions set forth in Section 3.1, each Lender shall be deemed to have consented to, approved or accepted or to be satisfied with each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to the Lenders unless Administrative Agent shall have received notice from such Lender prior to the Restatement Effective Date, as notified by Borrower to the Lenders, specifying its objection thereto. Administrative Agent shall promptly notify the Lenders of the actual occurrence of the Restatement Effective Date.

ARTICLE 4

REPRESENTATIONS AND WARRANTIES

Borrower makes the following representations and warranties to and in favor of Administrative Agent, Collateral Agent and the Lenders as of the Restatement Effective Date (unless such representation and warranty expressly relates solely to another time) and, as of the date of each Credit Event (unless such representation and warranty relates solely to another time), all of which shall survive the execution and delivery of this Agreement, the Restatement Effective Date and each Credit Event:

4.1 Organization. Each Credit Party is (a) duly organized, validly existing and in good standing under the laws of its respective jurisdiction as set forth on Schedule 4.1 and (b) is duly qualified as a foreign entity, and is in good standing, in each jurisdiction where its assets are located and wherever necessary to carry out its business, as set forth on Schedule 4.1. Each Credit Party has all requisite power and authority to (i) own or hold under lease and operate the property it purports to own or hold under lease, (ii) carry on its business as now being conducted and as now proposed to be conducted in respect of the Projects, (iii) execute, deliver and perform each Operative Document to which it is a party and (iv) take each action as may be necessary to consummate the transactions contemplated hereunder and thereunder. Holdings is the sole member of Borrower.

4.2 Authorization; No Conflict. The execution, delivery and performance by each Credit Party of the Operative Documents to which it is a party are within its power, authority and legal right and have been duly authorized by all necessary action. Each Credit Party has duly executed and delivered each Operative Document to which it is a party (or such Operative Documents have been duly and validly assigned to such Credit Party and it has authorized the assumption thereof, and has assumed the obligations of the assignor thereunder) and neither such Credit Party’s execution and delivery thereof nor its consummation of the transactions contemplated thereby nor its compliance with the terms thereof (a) does or will contravene the Governing Documents or any other Legal Requirement applicable to or binding on it or any of its properties, (b) does or will contravene or result in any breach of or constitute any default under, or result in or require the creation of any Lien upon any of its property under, any agreement or instrument to which it is a party or by which it or any of its properties may be bound or affected, (c) does or will violate or constitute (with due notice or lapse of time or both) a default under any indenture, credit agreement, loan, lease or other agreement or instrument binding upon it or its properties, or (d) does or will require the consent or approval of any Person, and with respect to any Governmental Authority, does or will require any registration with, or notice to, or any other action of, with or by any applicable Governmental Authority, in each case which has not already

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been obtained and is effective and disclosed to Administrative Agent, by Borrower or any other Person; provided the failure to so obtain a Permit shall not be a breach of this Section 4.2, until such Permit is an Applicable Permit or Applicable Third Party Permit.

4.3 Enforceability. Each of the Operative Documents to which each Credit Party and each Major Project Participant is a party is a legal, valid and binding obligation of such Credit Party and such Major Project Participant, enforceable against it in accordance with its terms. None of the Operative Documents has been amended or modified after the Closing Date except in accordance with this Agreement.

4.4 Compliance with Law. There are no material violations by Borrower, Holdings or Managing Member (or Sponsor to the extent such violation could negatively impact the ability of the Sponsor to perform its obligations under the Project Documents) of any Legal Requirement (including Hazardous Substance Laws). Except as otherwise have been delivered to Administrative Agent, no notices of any material violation of any Legal Requirement (including Hazardous Substance Laws) relating to any Project or any Site have been issued, entered or received by any Credit Party. The execution, delivery and performance of any of the Operative Documents, and the consummation of any of the transactions contemplated thereby, does not and will not (a) contravene or violate any Legal Requirements applicable to any Credit Party or Major Project Participant or contractual obligation of any of them (provided, to the extent relating to Legal Requirements applicable to or contractual obligations of Major Project Participants other than Borrower or any of its Affiliates, the representations set forth in this sentence are to Borrower’s Knowledge), (b) other Operative Document, or (c) result in or require the creation or imposition of any Lien (other than Liens created by the Operative Documents) on any of the Collateral or other assets of the Credit Parties.

4.5 Single Purpose, Debt, Contracts, Joint Ventures, Proceeds, Etc.

4.5.1 Borrower has not conducted any business other than the business contemplated by the Operative Documents or otherwise related to the development, construction, installation and financing of the Projects prior to the Closing Date, does not have any outstanding Debt or other material liabilities other than pursuant to or allowed by the Operative Documents, and the Borrower is not a party to or bound by any material contract other than the Credit Documents and the Major Project Documents to which it is a party.

4.5.2 Neither Borrower, Holdings nor Managing Member is a general partner or a limited partner in any general or limited partnership or a joint venturer in any joint venture.

4.5.3 Borrower does not have any Subsidiaries and Holdings’ only Subsidiary is Borrower.

4.5.4 The proceeds of each Loan received by Borrower prior to, or concurrently with, the date on which this representation and warranty is made or deemed made has been or will be used solely in accordance with, and solely for the purposes contemplated by, Section 5.1.

4.5.5 Borrower has no obligation to any Person in respect of any finder’s, broker’s or investment banking fee with respect to the Operative Documents or the transactions contemplated thereby or under any other agreement, document or instrument with any Person, other than fees payable under this Agreement and the Fee Letter.

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4.5.6 No proceeds of any Loan will be used to acquire any equity security of a class that is registered pursuant to Section 12 of the Exchange Act.

4.5.7 Holdings has not and will not conduct any business or engage in any activity other than the ownership of the equity interests in Borrower and activities incidental thereto.

4.6 Adverse Change.

4.6.1 As of the Closing Date, there is no fact or circumstance known to Borrower which has had or could reasonably be expected to have a Material Adverse Effect which has not been disclosed to Administrative Agent or the Lenders (as of such date) by or on behalf of Borrower on or prior to the Closing Date in connection with the transactions contemplated hereby.

4.6.2 As of any date after the Closing Date, since the Closing Date, no event, circumstance or condition shall have occurred and be continuing that constitutes or could reasonably be expected to have a Material Adverse Effect.

4.7 Investment Company Act. No Credit Party is an “investment company” or a company “controlled by” an “investment company,” each within the meaning of, or subject to regulation under, the Investment Company Act of 1940, as amended.

4.8 ERISA. Either (a) there are no ERISA Plans or Multiemployer Plans for any Credit Party or any ERISA Affiliate or (b) (i) each Credit Party and each ERISA Affiliate has fulfilled its obligations (if any) under the applicable minimum funding standards of ERISA and the Code for each ERISA Plan, (ii) each such ERISA Plan is in compliance in all material respects with the currently applicable provisions of ERISA, the Code and other Governmental Rules, (iii) neither any Credit Party nor any ERISA Affiliate has any liability to the PBGC or an ERISA Plan or Multiemployer Plan under Title IV of ERISA (other than liability for premiums due in the ordinary course), (iv) each such ERISA Plan that is intended to qualify under Section 401(a) of the Code has received a favorable determination or opinion letter from the Internal Revenue Service, or the remedial amendment period with respect thereto has not yet expired, or an application for such letter is currently being processed by the Internal Revenue Service with respect thereto, and nothing has occurred which could reasonably be expected to cause the loss of such qualification, (v) no Credit Party or any ERISA Affiliate has incurred, or reasonably expects to incur, any liability (and no event has occurred which with the giving of notice under Section 4219 of ERISA, would result in such liability) under Section 4201 or 4243 of ERISA. None of any Credit Party’s assets constitute assets of an employee benefit plan within the meaning of 29 C.F.R. Section 2510.3-101, (vi) there has not occurred a Reportable Event with respect to any ERISA Plan, (vii) no Credit Party or any ERISA Affiliate has experienced a complete or partial withdrawal from a Multiemployer Plan or has received notification that a Multiemployer Plan is in reorganization (within the meaning of Section 4241 of ERISA) or insolvent (within the meaning of Section 4245 of ERISA), (viii) the PBGC has not

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instituted any proceedings to terminate any ERISA Plan or Multiemployer Plan and has not taken action to appoint a trustee of any ERISA Plan under Section 4042 of ERISA, (ix) there has not occurred any event which could give rise to a lien in favor of the IRS or the PBGC pursuant to ERISA or the Code under any ERISA Plan, (x) no ERISA Plan is in “critical” or “endangered” status within the meaning of ERISA or the Code, (xi) no Credit Party or any ERISA Affiliate has filed notice of intent to terminate an ERISA Plan under Section 4041 of ERISA, and (xii) no Credit Party or ERISA Affiliate has applied for a minimum funding waiver under Section 412 of the Code with respect to an ERISA Plan. Borrower does not maintain, nor has it at any point of its existence maintained, any employee-benefit plans that were subject to Title IV of ERISA.

4.9 Permits.

4.9.1 All Applicable Permits and Applicable Third Party Permits have been issued and are in full force and effect and not subject to current legal proceedings or to any Unsatisfied Condition that could reasonably be expected to result in material modification or revocation of such Applicable Permit or Applicable Third Party Permit, and all applicable appeal periods with respect thereto have expired. Borrower is in compliance in all material respects with all Applicable Permits that have been issued and no Affiliated Project Participant or, to Borrower’s Knowledge, any other Person is in material violation of any issued Applicable Third Party Permit under which such Person is the permittee.

4.9.2 With respect to any of the Permits which are not yet Applicable Permits or Applicable Third Party Permits, no fact or circumstance exists which makes it likely that any such Permit will not be timely obtainable by Borrower or the applicable Person (a) prior to the time that it becomes an Applicable Permit or Applicable Third Party Permit, as applicable, (b) without delay materially in excess of the time periods thereof in the Project Schedule (if applicable), (c) without expense materially in excess of the amounts provided therefor in the then-current Project Budget and (d) without being inconsistent in any material respect with any of the Operative Documents.

4.9.3 The Applicable Permits and the Applicable Third Party Permits are not subject to any restriction, condition, limitation or other provision that could reasonably be expected to have a Material Adverse Effect.

4.10 Environmental Matters and Hazardous Substances. Except as set forth in Schedule 4.1.0: (a) Borrower, with respect to each Site, is not and has not in the past been in violation of any Hazardous Substance Law which violation could reasonably be expected (i) to result in a material liability to, or material Environmental Claims against, Borrower or its properties and assets, (ii) to result in an inability of Borrower to perform its obligations under the Operative Documents, or (iii) to materially interfere with the continuing operation of the applicable Project; (b) Borrower has not Released, threatened to Release, generated, manufactured, produced or stored in, on, under, or about any Site, or transported thereto or therefrom, any Hazardous Substances that could reasonably be expected to subject any Secured Party to liability, or Borrower to material liability, under any Hazardous Substance Law; (c) to Borrower’s Knowledge there are no underground storage tanks, whether operative or temporarily or permanently closed, located on any Site; (d) to Borrower’s Knowledge there are no Hazardous Substances used, stored or present at or on any Site, except in compliance with Hazardous

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Substance Laws and other Legal Requirements; (e) to Borrower’s Knowledge there is no condition, circumstance, action, activity or event that could reasonably be expected to be, or result in, a material violation by Borrower of any Hazardous Substance Law, or to result in liability to any Secured Party or material liability to Borrower under any Hazardous Substance Law or any other material Environmental Claims against Borrower or any Secured Party.

4.10.1 Except as set forth on Schedules 4.10 or 4.11, with respect to each Site, (a) as of the Restatement Effective Date, there was no pending or to Borrower’s Knowledge threatened in writing action, suit or proceeding under any Hazardous Substance Law by any Governmental Authority or any other Person to which Borrower is or will be named as a party, and (b) as of any date after the Restatement Effective Date, there is no pending or, to Borrower’s Knowledge, threatened action, suit or proceeding by any Governmental Authority or any other Person under any Hazardous Substance Law which could reasonably be expected to have a Material Adverse Effect.

4.10.2 With respect to each Site, (a) there is no consent or other decree, consent order, administrative or other order, or other administrative or judicial requirements outstanding under any Hazardous Substance Law which adversely affects the Borrower’s activities as contemplated by the Operative Documents, and (b) Borrower has not received or is aware of any claim or notice of violation, alleged violation, non-compliance, liability or potential liability under any Hazardous Substance Law, nor does Borrower have Knowledge or reason to believe that any such action is being contemplated, considered or threatened.

4.10.3 To Borrower’s Knowledge there are no past violations that have not been finally resolved or existing violations of any Hazardous Substances Laws by any Person affecting any Site.

4.10.4 As of the Restatement Effective Date, there are no environmental reports, investigations, studies, audits, reviews or other analyses conducted by or which are in the possession of or known to Borrower in relation to the use, storage or presence of Hazardous Substances at or on any Site.

4.11 Litigation.

4.11.1 As of the Restatement Effective Date, except as set forth in Schedules 4.11, no action, litigation, suit, proceeding or investigation before or by any court, arbitrator or other Governmental Authority is pending or, to Borrower’s Knowledge, threatened by or against Borrower or any other Credit Party or, to Borrower’s Knowledge, any Major Project Participant as relates to the Projects, or any of their respective properties that relate to the Projects.

4.11.2 As of the Restatement Effective Date, there is no order, judgment or decree having been issued by any Governmental Authority that, solely as a result of the installation, construction, development, acquisition, ownership or operation of any Project by Borrower, the sale of electricity therefrom by Borrower or the entering into and performance of any Operative Document or any transaction contemplated hereby or thereby, could reasonably be expected to cause or deem any Secured Party or Borrower or any Affiliate of any of them to be

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subject to, or not exempted from, regulation as a “public utility” under Section 201(e) of the FPA, an “electric utility company,” a “public-utility company” or a “holding company” under Section 1262(5), 1262(14) or 1262(8), respectively, of the Energy Policy Act of 2005, a “public utility” or an “electrical corporation” under Section 216 or 218, respectively, of the California Public Utilities Code, or a “public service company”, an “electric distribution company” or an “electric company” as such terms are defined, respectively, in Section 16-1 of the Connecticut General Statutes as amended by Connecticut Public Act 13-298, or a “utility” as defined in Section 16-234 of the Connecticut General Statutes, as amended by Connecticut Public Act 13-298.

4.11.3 As of any date after the Restatement Effective Date, (a) there is no pending or, to Borrower’s Knowledge, threatened action, litigation, suit, proceeding or investigation of any kind, including actions or proceedings of or before any Governmental Entity or arbitrator to which Borrower or is a party, or by which Borrower or any of Borrower’s properties that relate to the Projects are bound and (b) there is no pending or, to Borrower’s Knowledge, threatened action, litigation, suit, proceeding or investigation of any kind, including actions or proceedings of or before any Governmental Authority to which any Major Project Participant is a party, or by which any of them or any of their properties that relate to the Projects are bound which, in either case, (i) has not been disclosed by Borrower to Administrative Agent in accordance with, and to the extent required by, Section 5.4, or (ii) which could reasonably be expected to have a Material Adverse Effect.

4.12 No Labor Disputes; Force Majeure. Neither the business nor the properties of Borrower or, to Borrower’s Knowledge, any other Major Project Participant are currently affected by any fire, explosion, accident, strike, “force majeure” (as defined in any Project Document), lockout or other labor dispute, drought, storm, hail, earthquake, embargo, act of God or of the public enemy, or other casualty (whether or not covered by insurance), in each case, which could reasonably be expected to have a Material Adverse Effect.

4.13 Operative Documents.

4.13.1 True, correct and complete copies of all of the Project Documents executed on or prior to such date have been delivered to Administrative Agent by Borrower. Except as has been disclosed to Administrative Agent in writing and as permitted hereunder, none of such Project Documents has been amended, modified or terminated after the Closing Date (other than expiration thereof in accordance with its terms and the Credit Documents) and all such Project Documents are in full force and effect.

4.13.2 Except as disclosed to Administrative Agent in writing, the representations and warranties of the Major Project Participants contained in the Operative Documents (other than this Agreement) are true and correct in all material respects; provided the provisions of this clause 4.13.2 as applied to a Major Project Participant that is not an Affiliate of a Credit Party shall be to Borrower’s Knowledge.

4.14 Disclosure. All of the written information, reports, financial statements, certificates, Notices of Borrowing, exhibits, schedules and other documents furnished to any Secured Party, or to the Independent Engineer, Insurance Consultant, by or on behalf of

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Borrower, in connection with the Projects, this Agreement and the transactions contemplated by the Operative Documents, taken as a whole, did not contain and do not contain any untrue statement of material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were or are made, not misleading as of the date such information was or is furnished to such Secured Party; provided, that to the extent any such information, report, financial statement, certificate, Notice of Borrowing, exhibit, schedule or other document is or was based upon or constitutes a forecast or projection, Borrower represents only that it acted in good faith and utilized assumptions believed to be reasonable at the time made and due care in the preparation of such information, report, financial statement, certificate, Notice of Borrowing, exhibit, schedule or other document.

4.15 Taxes.

4.15.1 All material federal, state and local tax returns, information statements and reports (collectively, “Tax Returns”) required to be filed by Borrower have been timely filed (giving regard to timely extensions) with the appropriate Governmental Authority, and all such Tax Returns are true, complete and correct in all material respects. All Taxes with respect to such Tax Returns required be paid by Borrower have been timely paid to the extent due and payable (other than those Taxes, if any, that it is contesting in good faith by appropriate proceedings in accordance with the requirements of Section 5.16). To the extent any such Taxes are not due, the applicable Credit Party has established cash reserves for the payment thereof to the extent required by GAAP. There are no audits, examinations or other administrative or judicial proceedings ongoing, pending or, to the Knowledge of Borrower, threatened with respect to any such Taxes or Tax Returns of Borrower that have not been fully resolved and there are no assessments, claims, adjustments, or deficiencies with respect to Taxes against Borrower that remain unpaid.

4.15.2 At all times since its formation, each of Holdings and Borrower has been an entity that is disregarded as separate from its owner or a partnership for federal (and where applicable, state) Tax purposes. No IRS Form 8832 has ever been filed with respect to Holdings or Borrower electing to treat such entity as an association taxable as a corporation for U.S. federal income Tax purposes.

4.15.3 Borrower has no liability for the Taxes of any Person (other than Borrower) (a) under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or foreign law), (b) as a transferee or successor, (c) by contract, or (d) otherwise.

4.15.4 Borrower does not intend to treat the Loans (including the incurrence thereof) as being a “reportable transaction” (within the meaning of Treasury Regulation Section 1.6011-4).

4.16 Governmental Regulation.

4.16.1 As of the Restatement Effective Date, Borrower is not subject to regulation as a “public utility” under Section 201(e) of the FPA, a “holding company” under Section 1262(8) of the Energy Policy Act of 2005, an “electric utility company,” a “public utility” or an “electrical corporation” under Section 216 or 218, respectively, of the California

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Public Utilities Code, or a “public service company”, an “electric distribution company” or an “electric company” as such terms are defined, respectively, in Section 16-1 of the Connecticut General Statutes as amended by Connecticut Public Act 13-298, or a “utility” as defined in Section 16-234 of the Connecticut General Statutes, as amended by Connecticut Public Act 13-298.

4.16.2 None of the Secured Parties nor any Affiliate of any of them will, solely as a result of the construction, acquisition, installation, ownership, operation or maintenance of any Project, the sale of electric capacity, energy or ancillary services therefrom, the making of the Loans, or the entering into and performance of any Operative Document in respect of such Project or any transaction contemplated hereby or thereby, be subject to, or not exempt from, regulation as a “public utility” under Section 201(e) of the FPA, an “electric utility company,” a “public-utility company” or a “holding company” under Section 1262(5), 1262(14) or 1262(8), respectively, of the Energy Policy Act of 2005, a “public utility” or an “electrical corporation” under Section 216 or 218, respectively, of the California Public Utilities Code, or a “public service company”, an “electric distribution company” or an “electric company” as such terms are defined, respectively, in Section 16-1 of the Connecticut General Statutes as amended by Connecticut Public Act 13-298, or a “utility” as defined in Section 16-234 of the Connecticut General Statutes, as amended by Connecticut Public Act 13-298, except that the exercise of remedies, as provided for under the Credit Documents, may cause any such Person to be subject to such regulation.

4.17 Regulation U, Etc. Borrower is not engaged principally, or as one of its principal or important activities, in the business of extending credit for the purpose of “buying,” “carrying” or “purchasing” any “margin stock” (each as defined in Regulations T, U or X of the Federal Reserve Board, each as now and from time to time hereafter in effect), and no part of the proceeds of the Loans or the Project Revenues will be used whether directly or indirectly, and whether immediately, incidentally or ultimately, for the purpose of “buying,” “carrying” or “purchasing” any such margin stock or for any other purpose that entails a violation of, or that is inconsistent with, the provisions of the regulations of the Federal Reserve Board, including Regulation T, U or X. No pledge of the membership interests in Holdings or the Borrower pursuant to the Pledge Agreement violates such regulations.

4.18 Soundness of Disclosures and Assumption. Borrower has prepared the Base Case Projections in good faith, and is responsible for developing the assumptions on which the Base Case Projections are based; and such Base Case Projections (a) as of the date delivered, updated or supplemented are based on reasonable assumptions (including as to all legal and factual matters material to the estimates set forth therein) and (b) as of the date delivered, updated or supplemented are consistent in all material respects with the provisions of the Project Documents executed and any Applicable Permits issued on or prior to such date.

4.19 Financial Statements.

4.19.1 In the case of each financial statement of Borrower, Holdings, Managing Member or Sponsor and accompanying financial information delivered by Borrower under the Credit Documents, each such financial statement and financial information has been prepared in conformity with GAAP applied consistently throughout the relevant periods (except as otherwise

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approved and disclosed therein) and fairly presents, in all material respects, the financial position of Borrower, Holdings, Managing Member or Sponsor, as the case may be, as at the respective dates thereof and the results of operations and cash flows of Borrower, Holdings, Managing Member or Sponsor, as the case may be, described therein for each of the periods then ended, subject, in the case of any such unaudited financial statements, to changes resulting from audit and normal year-end adjustments and the absence of footnote disclosure.

4.19.2 Except for the obligations under the Operative Documents to which it is a party and any immaterial contingent obligations or liabilities, Borrower does not (and will not following the Restatement Effective Date) have any contingent obligations (including Contingent Obligations), undisclosed liabilities, unmatured liabilities, contingent liability or liability for Taxes, long-term lease or forward or long-term commitment (including any interest rate or foreign currency swap or exchange transaction or other financial derivative) required to be shown under GAAP that are not reflected in the foregoing financial statements or the notes thereto.

4.19.3 There has been no sale, transfer or other disposition by Borrower of any material part of its business or property, including any Project, and no purchase or other acquisition of any business or property (including equity interests of any Person).

4.20 No Default. No Default or Event of Default has occurred and is continuing.

4.21 Organizational ID Number; Location of Tangible Collateral.

4.21.1 Borrower’s Delaware organizational identification number is 5172260 and Holdings’ Delaware organizational identification number is 5183027.

4.21.2 All of the tangible Collateral is, or when installed pursuant to the Project Documents will be, located on a Site or at Borrower’s address set forth in Section 12.1.1; provided, that equipment may be temporarily removed from a Site from time to time in the ordinary course of business.

4.22 Title and Liens. Borrower has good, legal and valid title to all of the Collateral and all other assets necessary for it to conduct its business or operate the Projects (subject to payment of the Purchase Price (as defined in the MESPA) of the System Facilities), free of all Liens other than Permitted Liens and no such Permitted Lien is prior to the Lien of the Secured Parties except to the extent such priority results from operation of applicable law.

4.23 Intellectual Property.

4.23.1 Borrower owns or has valid and continuing rights to use all licenses, permits, franchises, authorizations, patents, copyrights, service marks, trademarks, trade secrets, trade names and other intellectual property, or rights thereto, that are necessary for the operation of its business, without known conflict with the rights of others. The business, products and services of Borrower do not infringe or misappropriate in any material respect any license, permit, franchise, authorization, patent, copyright, service mark, trademark, trade secret, trade name or other intellectual property right owned by any other Person.

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4.23.2 To the Knowledge of Borrower, there is no violation, infringement or misappropriation by any Person of any right of Borrower with respect to any license, patent, copyright, service mark, trademark, trade secret, trade name or other intellectual property right owned or used by Borrower. There are no pending or threatened claims or proceedings by Borrower against any third party with respect to the foregoing.

4.23.3 There exists no pending or, to the Knowledge of Borrower, threatened claim, litigation, investigation or proceeding against or affecting Borrower contesting its right to sell any product, or the validity or enforceability of or its right to use any intellectual property used in or necessary for the conduct of its business.

4.23.4 Borrower owns no registered patents, copyrights, trademarks or other registered intellectual property, or applications therefor.

4.24 Collateral. The respective liens and security interests granted to Collateral Agent pursuant to the Collateral Documents constitute, as to personal property included in the Collateral, a valid first priority (subject to Permitted Liens that have priority over the Lien and granted to the Collateral Agent resulting from operation of law) security interest and lien under the applicable UCC or other applicable law. The security interest granted to Collateral Agent pursuant to the Collateral Documents in the Collateral consisting of personal property or fixtures has been perfected (i) with respect to any property that can be perfected by filing, upon the filing of financing statements in the filing offices identified in Schedule 4.24, (ii) with respect to any property that can be perfected by control, upon execution of the Depositary Agreement or other applicable control agreement, and (iii) with respect to any certificated securities or any property that can only be perfected by possession, upon Collateral Agent receiving possession thereof, and in each case such security interest will be, as to Collateral perfected under the UCC or otherwise as aforesaid, superior and prior to the rights of all third Persons now existing or hereafter arising whether by way of Lien of any type, assignment or otherwise, except Permitted Liens described in the definition of “Permitted Liens” (other than clause (a)) to the extent prior by operation of law. All such action as is necessary to establish and perfect Collateral Agent’s rights in and to existing Collateral has been taken to the extent Collateral Agent’s security interest can be perfected by filing, including any recording, filing, registration, giving of notice or other similar action (including in the U.S. Patent and Trademark Office and U.S. Copyright Office). As of the Restatement Effective Date, no filing or recordation other than those listed on Schedule 4.24 is necessary to perfect and maintain the perfection and priority of the interest, title or Liens on the Collateral comprising personal property, and on the Restatement Effective Date all such filings or recordings will have been made to the extent Collateral Agent’s security interest can be perfected by filing. Borrower has properly delivered or caused to be delivered, or provided control, to Collateral Agent or Depositary all Collateral that permits perfection of the Lien and security interest described above by possession or control.

4.25 Sufficiency of Rights. Other than those that can be reasonably expected to be commercially available when and as required, the services to be performed, the materials to be supplied and the real property interests and rights granted, or to be granted, pursuant to the Project Documents in effect as of such date:

(a) comprise all of the interests necessary to secure any right material to the acquisition, installation, completion, operation and maintenance of each System Facility and each Project in accordance with all Legal Requirements and in accordance with the Project Schedule, all without reference to any proprietary information not owned by or available to Borrower;

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(b) are sufficient to enable each System Facility and each of the Project as a whole to be located, installed, owned, occupied, operated, maintained and used on the applicable Sites; and

(c) provide adequate ingress and egress from each Site for any reasonable purpose in connection with the operation and maintenance of the applicable Project.

4.26 Real Estate.

4.26.1 Borrower owns and possesses good and valid leasehold interests in or licenses to the Sites, in each case free and clear of all Liens, encumbrances or other exceptions to title, other than Permitted Liens.

4.26.2 With regard to each of the Real Property Documents, (a) each such Real Property Document is valid and effective against Borrower and the counterparties thereto, in accordance with the terms thereof, (b) neither Borrower, nor to Borrower’s Knowledge, any of the counterparties thereto, is in breach or default under such Real Property Document, and (c) no event or circumstance has occurred or exists which, with notice or lapse of time or both, would become a default by Borrower or, to Borrower’s Knowledge, the counterparties thereto under such Real Property Document. No notice of default under any Real Property Document has been delivered to Borrower or, to Borrower’s Knowledge, the counterparties thereto.

4.26.3 Borrower has not received written notice from any Governmental Authority of any pending or threatened proceeding to condemn or take by power of eminent domain or otherwise, by any Governmental Authority, all or any material part of any Site or any interest therein.

4.26.4 None of the Sites is subject to or encumbered by any option, right of first refusal or other contractual right or obligation to sell, assign or dispose of such Site or any interest therein.

4.27 Insurance. All insurance policies then required to be maintained by Borrower, each Affiliated Project Participant and, to Borrower’s Knowledge, each other Major Project Participant pursuant to the terms of any Operative Document are in full force and effect, and all premiums then due and payable have been paid.

4.28 Investments. Other than Permitted Investments, Borrower has not acquired an equity interest in, acquired all or substantially all of the assets of, loaned money, extended credit or made advances to, held Debt or made deposits with (other than deposits or advances in relation to the payment for goods, equipment or services in the ordinary course of business the making of which is expressly contemplated pursuant to the Operative Documents), any Person.

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4.29 No Recordation, Etc. Each Operative Document is in proper legal form under the respective governing laws selected in such Operative Document (a) for the enforcement thereof in such jurisdictions against Borrower and each other party thereto without any further action on the part of Administrative Agent or other Secured Parties, and (b) to ensure the legality, validity, enforceability, priority or admissibility in evidence of any such document it is not necessary that such document or any other document be filed, registered or recorded with, or executed or notarized before, any court or other authority in such jurisdiction or that any registration charge or stamp or similar tax be paid on or in respect of any such document, except for the recordation of the Collateral Documents and filing and recordation of such other documents as specifically contemplated pursuant to this Agreement.

4.30 Solvency. Borrower is Solvent both before and after taking into account the transactions contemplated by the Credit Documents and each Credit Event.

4.31 Anti-Terrorism Law.

(a) Neither Borrower nor, to the best Knowledge of Borrower, any other Credit Party is in violation of (i) any of the foreign assets control regulations of the United States Treasury Department (31 C.F.R., Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto, (ii) Executive Order No. 13,224, 66 Fed. Reg. 49,079 (2001), issued by the President of the United States (Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support Terrorism) (the “Executive Order”) or (iii) the anti-money laundering provisions of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA Patriot Act) Act of 2001, Public Law 107-56 (October 26, 2001) (the “Patriot Act”), amending the Bank Secrecy Act, 31 U.S.C. Section 5311 et seq., and any other laws relating to terrorism or money laundering (collectively, “Anti-Terrorism Laws”).

(b) Borrower is not any of the following: (i) a Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order; (ii) a Person owned or controlled by, or acting for or on behalf of, any person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order; (iii) a Person with which any Lender is prohibited from dealing or otherwise engaging in any transaction by any Anti-Terrorism Law; (iv) a Person that commits, threatens or conspires to commit or supports “terrorism” as defined in the Executive Order; or (v) a Person that is named as a “specially designated national and blocked person” on the most current list published by OFAC at its official website or any replacement website or other replacement official publication of such list.

(c) Borrower does not (i) conduct any business or engage in making or receiving any contribution of funds, goods or services to or for the benefit of any person described in paragraph (b) above, (ii) deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to the Executive Order, or (iii) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law.

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ARTICLE 5

AFFIRMATIVE COVENANTS

5.1 Use of Proceeds, Equity Contributions and Project Revenues.

5.1.1 Proceeds. Unless otherwise applied by Administrative Agent pursuant to any Credit Document, Borrower shall deposit the proceeds of the Loans in the Construction Account and use such proceeds solely to pay Project Costs.

5.1.2 Revenues. Unless otherwise applied by Administrative Agent or Collateral Agent pursuant to any Credit Document, Borrower shall apply any Project Revenues, payments it receives under any equity contributions, Loan proceeds, Insurance Proceeds, Eminent Domain Proceeds, damage payments and other amounts received solely for the purpose, and in the order and manner, provided for in Article 7.

5.2 Payment.

5.2.1 Credit Documents. Borrower shall pay all Obligations according to the terms of this Agreement and the other Credit Documents to which it is a party.

5.2.2 Other Obligations. Borrower shall pay, discharge or otherwise satisfy at or before maturity or before they become delinquent, as the case may be, all of its obligations under the Project Documents of whatever nature and howsoever arising, except such as may be contested in good faith or as to which a bona fide dispute may exist; provided that (i) adequate cash reserves have been established for the payment thereof in the event such dispute were resolved unfavorably to Borrower, or (ii) Administrative Agent is satisfied in its reasonable discretion that non-payment of such obligation pending the resolution of such contest or dispute will not in any way endanger the Projects, impair the Collateral or its value or could reasonably be expected to in a Material Adverse Effect, or (iii) that provision is made to the satisfaction of Administrative Agent in its reasonable discretion for the posting of security (other than the Collateral) for or the bonding of such obligations or the prompt payment thereof in the event that such obligation is payable.

5.3 Maintenance of Property. Other than property disposed of in accordance with Section 6.4, Borrower shall maintain (a) a good and valid leasehold interest in or licenses to each Site, and (b) good, legal, valid and marketable title to all of its other material properties and assets, (including the System Facilities,) in each case free of all Liens other than Permitted Liens. Borrower shall generally keep all property useful and necessary in its business in good working order and condition.

5.4 Notices. Borrower shall promptly upon receipt of or giving notice (or otherwise obtaining Knowledge) of any of the following, give notice to the Administrative Agent of the following (with copies of any underlying notices, papers, files or related documentation), which notice shall be accompanied by a statement of a Responsible Officer setting forth details of the occurrence referred to therein and stating what action Borrower proposes to take with respect thereto, of:

5.4.1 any litigation suit, proceeding or investigation before any court, arbiter or other governmental authority pending or, to Borrower’s Knowledge, threatened against Borrower, or to Borrower’s Knowledge against any Major Project Participant (to the extent relating to the Projects or any Operative Document) such notice to include, if requested in writing by Administrative Agent, copies of all papers filed in such litigation and to be given monthly if any such papers have been filed since the last notice given;

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5.4.2 any dispute or disputes of which Borrower has Knowledge or for which written notice has been received by Borrower which may exist between Borrower or any holder of an Applicable Third Party Permit and any Governmental Authority;

5.4.3 as soon as possible and in any event within three (3) days after the occurrence thereof any Default or Event of Default;

5.4.4 any casualty, damage or loss, whether or not insured, through fire, theft, other hazard or casualty, to any property of Borrower having value in excess of $100,000 to Borrower;

5.4.5 any cancellation, expiration, suspension or material change in the terms, coverage or amounts of any insurance required to be maintained hereunder (including the insurance described in Schedule 5.15);

5.4.6 any contractual obligations that could reasonably be expected to require payments to or by Borrower exceeding $100,000 per year in the aggregate for either Project, not including any obligations under the Credit Documents or the Project Documents or any obligation contemplated in the then-current Annual Operating Budget;

5.4.7 any intentional withholding of compensation to, or any right to withhold compensation claimed by, any Major Project Participant or pursuant to any Major Project Document, other than retention provided by the express terms of any such contracts;

5.4.8 any (a) termination of, or material default of which Borrower has Knowledge or written notice thereof under, any Major Project Document, (b) material Project Document Modification (with copies of all such Project Document Modifications whether or not requiring approval of Administrative Agent or the Required Lenders pursuant to Section 6.12) and (c) without duplication, any material dispute, relating to any of the Projects, between Borrower and any Major Project Participant;

5.4.9 any written claim of events of force majeure under the MESPA or MOMA, or Borrower caused delay under any Major Project Document (including claims therefor regardless of whether Borrower believes such claim has merit) and, to the extent requested by Administrative Agent, copies of invoices or statements which are reasonably available to Borrower under any Major Project Document, certified by a Responsible Officer of Borrower, together with a copy of any supporting documentation, schedule, data or affidavit delivered under such Major Project Document;

5.4.10 any (a) material Release of Hazardous Substances on or from any Site that has resulted or could reasonably be expected to have a Material Adverse Effect or is required to

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be reported to any Governmental Authority under any Hazardous Substance Law, (b) pending or, to Borrower’s Knowledge, threatened, Environmental Claim against Borrower or, to Borrower’s Knowledge, any of its Affiliates, contractors, lessees or any other Persons, arising in connection with their occupying or conducting operations on or at any Site which, if adversely determined, could reasonably be expected to have a Material Adverse Effect, (c) any condition, circumstance, occurrence or event that could reasonably be expected to have a Material Adverse Effect under Hazardous Substance Laws or in the imposition of any Lien or any other restriction on the title, ownership or transferability of any Site, (d) any proposed action to be taken by Borrower that could subject it to any material additional or different requirements or liabilities under Hazardous Substance Laws that could reasonably be expected to have a Material Adverse Effect, or (e) existence of any underground tank not previously disclosed in writing, whether operative or temporarily or permanently closed, located on any Site which adversely affects the Borrower’s activities as contemplated by the Operative Documents;

5.4.11 promptly, but in no event later than (a) 30 days prior to the time any Person will become a member of Borrower or the occurrence of any other change in or transfer of equity interests in Borrower or the sale or other disposition of any assets material to any Project (excluding any sale of any System Facility to Sponsor in accordance with the MESPA or the MOMA, as applicable, and any exercise of the purchase option by Pacific Bell Telephone Company under the AT&T Power Purchase Agreement or by Pacific Bell Telephone Company or AT&T Corp. under any Supplemental AT&T Power Purchase Agreement or by Wal-Mart Stores, Inc. under the Wal-Mart Power Purchase Agreement) and (b) 2 Business Days after receiving notice that the Sponsor is exercising its right to purchase any System Facility in accordance with the MESPA or the MOMA or that Pacific Bell Telephone Company, AT&T Corp. or Wal-Mart Stores, Inc. is exercising its purchase option under the applicable Power Purchase Agreement, notice thereof, which written notice shall identify such Person and such Person’s interest in Borrower or shall describe, in reasonable detail, such other change or transfer;

5.4.12 any proceeding or legislation by any Governmental Authority to expropriate, condemn, confiscate, nationalize or otherwise acquire compulsorily Borrower, all or any portion of the Collateral, or all or any portion of Borrower’s business or assets (whether or not constituting an Event of Default);

5.4.13 promptly, but in no event later than 5 days after the receipt thereof by Borrower, copies of (a) any material modification to, or revocation of, any Applicable Permit received by Borrower after the Closing Date and (b) all material notices relating to any Project received by Borrower from, or delivered by Borrower to, any Governmental Authority;

5.4.14 promptly, but in no event later than 5 days after occurrence thereof, (a) the scheduling of any outage for any System Facility with an anticipated duration in excess of 5 days and (b) any outage for any System Facility (scheduled or otherwise) with a duration in excess of 5 days;

5.4.15 any default or event of default under any contractual obligations of Borrower or (to the extent Borrower has Knowledge thereof) any Major Project Participant, that constitutes or could reasonably be expected, if not cured, to result in a Material Adverse Effect;

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5.4.16 any Lien (other than a Permitted Lien) being granted or established or becoming enforceable over any portion of the Collateral or any other asset of Borrower;

5.4.17 the occurrence of any event, condition or circumstance that would be required to be disclosed in a current report filed by Borrower with the SEC on Form 8-K if Borrower were required to file such reports;

5.4.18 the occurrence of any event, condition, circumstance or change that has constituted or could reasonably be expected to result in, individually or in the aggregate, a Material Adverse Effect;

(a) within 10 days prior to the occurrence of a Reportable Event with respect to any ERISA Plan; (b) promptly, but in no event later than 15 days, after the complete or partial withdrawal of any Credit Party or any ERISA Affiliate from a Multiemployer Plan or receipt by any Credit Party of or notification that a Multiemployer Plan is in reorganization (within the meaning of Section 4241 of ERISA) or insolvent (within the meaning of Section 4245 of ERISA); (c) promptly, but in no event later than five days, after any Credit Party has Knowledge that the PBGC has instituted any proceedings to terminate any ERISA Plan or Multiemployer Plan or has taken action to appoint a trustee of any ERISA Plan under Section 4042 of ERISA; (d) promptly, but in no event later than 10 days, after the occurrence of any event which could give rise to a lien in favor of the IRS or the PBGC pursuant to ERISA or the Code under any ERISA Plan; (e) promptly, but in no event later than 30 days, after any Credit Party has Knowledge that a Multiemployer Plan is in “critical” or “endangered” status within the meaning of ERISA and the Code; (f) promptly, but in no event later than 30 days, after any Credit Party or ERISA Affiliate files a notice of intent to terminate an ERISA Plan under Section 4041 of ERISA and (g) promptly, but in no event later than 10 days prior to the date any Credit Party or any ERISA Affiliate shall apply for a minimum funding waiver under Section 412 of the Code with respect to an ERISA Plan, a description thereof and copies of documents and materials related thereto;

5.4.19 any material modification to the Project Schedule;

5.4.20 any Change of Control; and

5.4.21 any other information relating to Borrower or the Projects that Administrative Agent or any Lender may reasonably request.

5.5 Financial Reporting.

5.5.1 Financial Statements. Borrower shall deliver to Administrative Agent, in form and detail reasonably satisfactory to Administrative Agent, the following:

(a) As soon as practicable and in any event within 90 days after the close of each applicable fiscal year, audited financial statements of Borrower, Holdings, Managing Member and Sponsor (it being acknowledged that such requirement may be satisfied by the delivery of the appropriate report on Form 10-K filed with the SEC), all prepared in accordance with GAAP consistently applied. Such financial statements shall include a statement of equity, a balance sheet as of the close of such year, an income and expense statement,

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reconciliation of capital accounts (where applicable), a statement of cash flow and summary results of hedging and trading activities (in the case of Borrower only), reported on without a “going concern” or like qualification, explanation, limitation or exception, or qualification arising out of the scope of the audit, and certified by an independent certified public accountant of nationally recognized standing selected by the Person (and, except with respect to Sponsor, reasonably acceptable to the Administrative Agent) whose financial statements are being prepared and, for Borrower, by an independent certified public accountants of nationally recognized standing acceptable to Administrative Agent. Such certificate shall not be qualified or limited because of restricted or limited examination by such accountant. The relevant accountant shall also certify that in making the examination necessary for reporting on the foregoing financial statements no knowledge was obtained of any Default or Event of Default, except as disclosed in such certificate; and

(b) As soon as practicable and in any event within 45 days after the end of the first, second and third quarterly accounting periods of its fiscal year (commencing with the first full fiscal quarter ending after the Closing Date), unaudited quarterly financial statements of Borrower, Holdings, Managing Member and Sponsor as of the last day of such quarterly period and the related statements of income, cash flow, and shareholders’ or members’ equity (as applicable) for such quarterly period and (in the case of second and third quarterly periods) for the portion of the fiscal year ending with the last day of such quarterly period, setting forth in each case in comparative form corresponding unaudited figures from the preceding fiscal year (it being acknowledged that such requirement may be satisfied by the delivery of the appropriate report on Form 10-Q filed with the SEC) all prepared in accordance with GAAP consistently applied (subject to changes resulting from audit and normal year-end adjustments and the absence of footnote disclosures).

5.5.2 Certification. Borrower shall cause to be delivered, along with any financial statements of any Credit Party, a certificate signed by the chief financial officer (or equivalent) officer of the applicable Credit Party, certifying that (a) such Responsible Officer has made a review of the transactions and financial condition of such Person during the relevant fiscal period and that such review has not disclosed the existence of any event or condition which constitutes a Default or Event of Default, or if any such event or condition existed or exists, the nature thereof and the corrective actions that such Person has taken or proposes to take with respect thereto, (b) such Person is in compliance with all applicable material provisions of each Operative Document to which such Person is a party or, if such is not the case, stating the nature of such non-compliance and the corrective actions which such Person has taken or proposes to take with respect thereto, and (c) such financial statements are true and correct in all material respects and that no material adverse change in consolidated assets, liabilities, operations, or financial condition of such Person has occurred since the date of the immediately preceding financial statements provided to Administrative Agent or, if a material adverse change has occurred, the nature of such change.

5.6 Books, Records, Access. Borrower shall (a) maintain, or cause to be maintained, adequate books, accounts and records with respect to Borrower and the Projects, in which full and correct entries shall be made of all financial transactions and the assets and business of Borrower, and prepare all financial statements required hereunder, in each case in accordance with GAAP (subject, in the case of unaudited financial statements, to changes resulting from

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audit and normal year-end adjustments and the absence of footnote disclosure) and in compliance with the regulations of any Governmental Authority having jurisdiction thereof; and, (b) subject to requirements of Governmental Rules, safety requirements and existing confidentiality restrictions imposed upon Borrower by any other Person, permit employees or agents of Administrative Agent and Independent Engineer at any reasonable times and upon reasonable prior notice to Borrower, Sponsor or Operator, as applicable, (i) to inspect all of Borrower’s properties, including any Site, (ii) to examine or audit all of Borrower’s books, accounts and records and make copies and memoranda thereof, (iii) to communicate with Borrower’s auditors outside the presence of Borrower, (iv) to discuss the business, operations, properties and financial and other conditions of Borrower with officers and employees of Borrower and with its independent certified public accountants, and (v) to witness any Performance Tests.

5.7 Compliance with Laws, Instruments, Applicable Permits, Etc. Borrower shall promptly comply, or cause compliance, in all material respects with all Legal Requirements (including Legal Requirements and Applicable Permits relating to pollution control, environmental protection, employment practices, terms and conditions of employment, wages and hours, equal employment opportunity or employee benefit plans, ERISA Plans and employee safety, with respect to Borrower or the Projects), and make such alterations to any Project or any Site as may be required for such compliance.

5.8 Reports.

5.8.1 Construction Progress Reports. Borrower shall deliver to Administrative Agent and the Independent Engineer together with delivery of each Drawdown Certificate, progress reports of the construction of each Project, in reasonable detail.

5.8.2 Operating Report. Borrower shall deliver to Administrative Agent within 30 days after the end of each full quarter occurring after the First Funding Date, a summary operating report with respect to the Projects, which shall include, with respect to the period most recently ended (a) a monthly and year-to-date numerical and narrative assessment of (i) compliance with each material category in the then-current Annual Operating Budget (ii) electrical production, capacity, availability and delivery, including any reports delivered under the MESPA and MOMA, (iii) fuel use, including heat rate, (iv) plant and unit availability, (v) distributions to Holdings, debt service payments and balances in the Accounts, (vi) Hot Box Replacement, (vii) material unresolved disputes with contractors, materialmen, suppliers or others and any related claims against Borrower, and (viii) warranty claims under the MESPA or MOMA; and (b) to the extent applicable, a comparison of year-to-date figures to corresponding figures provided in the prior year.

5.8.3 Insurance. As soon as practicable and in any event on the anniversary of each year of the issuance thereof, Borrower shall deliver to Administrative Agent a report in form and substance reasonably satisfactory to Administrative Agent outlining all material insurance coverage maintained as of the date of such report by Borrower and all material insurance coverage planned to be maintained by Borrower in the immediately succeeding calendar year. Together with the delivery of the insurance report required pursuant to this Section, Borrower shall furnish (or cause to be furnished) to Administrative Agent, with a copy

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for each Lender, a certificate executed by the Insurance Consultant substantially in the form of Exhibit K, which such exhibit shall be attached hereto prior to the Initial Funding Date and be in form and substance satisfactory to Administrative Agent, detailing the insurance then maintained by or on behalf of Borrower pursuant to Schedule 5.15 and stating that such insurance is in full force and effect and complies in all material respects with the terms hereof, together with evidence of payment of the premiums then due thereon and a schedule of policy expiration dates.

5.8.4 New Documents. Promptly, but in no event later than 5 Business Days after execution and delivery thereof, Borrower shall deliver to Administrative Agent a copy of each Additional Project Document.

5.8.5 Collateral Updates. Concurrently with any delivery of audited financial statements under Section 5.5.1, Borrower shall provide to Administrative Agent a certificate of a Responsible Officer updating, as relevant, all information required pursuant to the Collateral Documents regarding perfection of Collateral or confirming that there has been no change in such information since the last prior date on which such information was provided.

5.8.6 Management Letters. Promptly after the receipt thereof by Borrower or Holdings, Borrower shall deliver to Administrative Agent a copy of any “management letter” received by Borrower or Holdings from its certified public accountants and the management’s responses thereto.

5.8.7 Governing Documents. Borrower shall promptly provide Administrative Agent copies of any Governing Documents that have been entered into or amended or modified in accordance with the terms hereof and deliver a copy of any notice of default or breach thereof given or received by any Credit Party under any Governing Document within 5 days after such Person gives or receives such notice.

5.8.8 KYC Updates. As requested by Administrative Agent, Borrower shall provide annual updates to all “know your client” information provided to, or reasonably requested by, Administrative Agent.

5.8.9 Additional Information. Borrower shall provide to Administrative Agent promptly upon request such reports, statements, lists of property, accounts, budgets, forecasts and other information concerning Borrower and the Projects and, to the extent reasonably available, the Major Project Participants and at such times as Administrative Agent shall reasonably require, including such reports and information as are reasonably required by the Independent Consultants.

5.9 Existence, Conduct of Business, Properties, Etc. Except as otherwise expressly permitted under this Agreement, (a) each of Borrower and Holdings shall maintain and preserve its existence as a Delaware limited liability company and all material rights, privileges and franchises necessary in the conduct of its business, (b) Borrower shall perform (to the extent not excused by force majeure events under the applicable Major Project Document or the nonperformance of the other party and not subject to a good faith dispute) all of its material contractual obligations under the Major Project Documents, (c) Borrower shall maintain all Applicable Permits, and at or before the time that any Permit becomes an Applicable Permit, obtain such Permit and (d) each of Borrower and Holdings shall otherwise continue to engage in business of the same general type as now conducted by it.

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5.10 Debt Service Coverage Ratio. No later than 10 days after each Quarterly Date, Borrower shall calculate and deliver to Administrative Agent the DSCR for the Calculation Period for such Quarterly Date, calculated as provided in Exhibit Q. The calculations of the DSCR hereunder shall be used in determining the application and distribution of funds pursuant to Sections 6.6 and 7.6.

5.11 Utility Regulation. Borrower shall take or cause to be taken all necessary or appropriate actions so that Holdings, Borrower and the Projects shall not be subject to, or shall be exempt from, regulation as a “public utility” under Section 201(e) of the FPA, a “holding company” under Section 1262(8) of the Energy Policy Act of 2005; provided that Holdings is a “holding company” that is exempt from FERC accounting, record-retention and reporting requirements; or an “electric utility company,” a “public utility” or an “electrical corporation” under Section 216 or 218, respectively, of the California Public Utilities Code; or a “public service company”, an “electric distribution company” or an “electric company” as such terms are defined, respectively, in Section 16-1 of the Connecticut General Statutes as amended by Connecticut Public Act 13-298, or a “utility” as defined in Section 16-234 of the Connecticut General Statutes, as amended by Connecticut Public Act 13-298.

5.12 Construction of the Projects. Borrower shall cause the Projects and each System Facility to be designed, engineered, constructed, developed, installed, equipped, maintained and operated in a good and workmanlike manner and in compliance with all applicable Legal Requirements, Operative Documents, Applicable Permits and Prudent Electrical Practices (as defined in the MESPA).

5.13 Operation and Maintenance of Projects; Operating Budget.

5.13.1 Borrower shall keep the Projects and each System Facility, or cause the same to be kept, in good operating condition consistent with the standard of care set forth in the MOMA, all Applicable Permits and Applicable Third Party Permits, Legal Requirements and the Operative Documents, and make or cause to be made all repairs (structural and non-structural, extraordinary or ordinary) necessary to keep the Projects and each System Facility in such condition.

5.13.2 At least 60 days prior to the expected COD for the first System Facility and thereafter at least 60 days prior to the end of each calendar year, Borrower shall submit an operating plan and a budget, detailed by month, of anticipated revenues and anticipated expenditures under all Waterfall Levels, and anticipated expenditures from and deposit of reserves to, the Accounts, such budget to include Debt Service, estimated dividend payments or other distributions, reserves, all anticipated O&M Costs applicable to the Projects for the ensuing calendar year (or, in the case of the initial Annual Operating Budget, partial calendar year), to the conclusion of the second full calendar year thereafter and the corresponding total operation and maintenance budget amount for the applicable year from the Base Case Projections (each such annual operating plan and budget, including the initial Annual Operating Budget, an “Annual Operating Budget”). Each Annual Operating Budget shall be consistent with the terms of the

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Project Documents and, within 10 Business Days of submittal by Borrower, be subject to the approval of Administrative Agent acting in consultation with the Independent Engineer, such approval not to be unreasonably withheld or delayed.

5.13.3 Borrower shall operate and maintain the Projects, or cause the Projects to be operated and maintained, within amounts for all Operating Budget Categories (not including any Operating Budget Category corresponding to Waterfall Levels (4), (6), (7) or (9)) not to exceed 110% (on a year-to-date basis), in each case of the amounts budgeted therefor as set forth in the then-current Annual Operating Budget as approved or deemed approved by Administrative Agent. Pending approval of any Annual Operating Budget or amendment thereto in accordance with the terms of this Section 5.13.3, Borrower shall use all reasonable efforts to operate and maintain the Projects, or cause the Projects to be operated and maintained, within the then-current Annual Operating Budget (it being acknowledged that if a particular calendar year’s Annual Operating Budget has not been approved by the time periods provided in Section 5.13, then the then-current Annual Operating Budget shall be deemed to be the Annual Operating Budget in effect prior to the delivery of the proposed final Annual Operating Budget pursuant to Section 5.13.2); provided, that the amounts specified therein shall be increased to the extent specified in the Project Documents.

5.14 Preservation of Rights; Further Assurances.

5.14.1 Major Project Documents. Borrower shall maintain in full force and effect, perform the obligations of Borrower under, preserve, protect and defend the material rights of Borrower under and take all reasonable action necessary to enforce its rights and prevent termination (except by expiration in accordance with its terms) of each and every Major Project Document, including prosecution of suits to enforce any material right of Borrower thereunder and enforcement of any material claims with respect thereto.

5.14.2 Preservation of Collateral. From time to time promptly, upon the reasonable request of Administrative Agent, Collateral Agent or any Lender, Borrower shall execute, acknowledge or deliver, or cause the execution, acknowledgment and delivery of, and thereafter register, file or record, or cause to be registered, filed or recorded in an appropriate governmental office, all such notices, statements, instruments and other documents (including any memorandum of lease or other agreement, financing statement, continuation statement, certificate of title or estoppel certificate) supplemental to or confirmatory of the Collateral Documents, relating to the Loans, stating the interest and charges then due and any known Defaults or Events of Default, and take such other steps as may be deemed by Administrative Agent necessary or advisable to render fully valid and enforceable under all applicable laws the rights, liens and priorities of the Secured Parties with respect to all Collateral and other security from time to time furnished under the Credit Documents or intended to be so furnished, or for the continued validity, perfection and priority of the Liens on the Collateral covered thereby subject to no other Liens except as permitted by the applicable Collateral Document, or obtain any consents or waivers as may be necessary or appropriate in connection therewith, in each case in such form and at such times as shall be reasonably requested by Administrative Agent or Collateral Agent, and pay all reasonable fees and expenses (including reasonable attorneys’ fees) incident to compliance with this Section 5.14.2. Upon the exercise by Administrative Agent, Collateral Agent or any Lender of any power, right, privilege or remedy pursuant to any Credit

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Document which requires any consent, approval, registration, qualification or authorization of any Governmental Authority, Borrower shall execute and deliver all applications, certifications, instruments and other documents and papers that Administrative Agent, Collateral Agent or such Lender may require.

5.14.3 Enforcement of Affiliate Agreements. If at any time Borrower is entitled to make a claim or pursue any other remedy under the MESPA, MOMA or Administrative Services Agreement or any other Major Project Document to which Borrower and an Affiliate of Borrower is a party, Borrower shall make a claim thereunder for liquidated damages or, as applicable, to have one or more System Facilities repaired, replaced, or repurchased by Sponsor, or pursue such other remedy, as applicable. Borrower shall otherwise enforce all of its rights under the MESPA, MOMA and Administrative Services Agreement and any other such Major Project Document as diligently as if its counterparty were not an Affiliate.

5.14.4 Further Assurances. Upon the request of Administrative Agent, Borrower shall execute and deliver all documents as shall be reasonably required or that Administrative Agent shall reasonably request in connection with the rights and remedies of Administrative Agent or Collateral Agent (as the case may be) and the Lenders under the Operative Documents, and perform, such other reasonable acts as may be necessary to carry out the intent of the Credit Documents.

5.14.5 Applicable Permits. Borrower shall obtain and maintain in effect all Applicable Permits and use commercially reasonable efforts to cause all other Persons to obtain and maintain all Applicable Third Party Permits.

5.14.6 Power Purchase Agreements – Exhibit A. Borrower shall use commercially reasonable efforts to ensure that by March 31, 2014 for each Power Purchase Agreement, the Exhibit A (“PREMISES LIST, DESCRIPTION AND APPLICABLE LOCAL UTILITY”) for that Power Purchase Agreement lists all Sites applicable to that Power Purchase Agreement that have been funded using proceeds of the Loans and no other sites or facilities, and shall provide evidence of same (in form and substance satisfactory to Administrative Agent) to Administrative Agent by March 31, 2014.

5.15 Maintenance of Insurance.

5.15.1 Generally. Without cost to the Secured Parties, Borrower shall maintain or cause to be maintained on its behalf in effect at all times the types of insurance required pursuant to Schedule 5.15, in the amounts and on the terms and conditions specified therein, from the quality of insurers specified in such Schedule or other insurance companies of recognized responsibility reasonably satisfactory to Administrative Agent.

5.15.2 Replacement Risk Insurance. On or before the 6th anniversary of the COD with respect to the first System Facility to achieve such milestone, Borrower shall obtain from an insurer an offer to provide Borrower with an insurance policy or performance bond to mitigate, to the satisfaction of the Required Lenders, the risk that Sponsor and/or its Affiliates will fail to perform its obligations under the MESPA and/or MOMA to provide replacements for components of the System Facilities, which insurance policy or bond shall meet the

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requirements, and shall be issued by a provider meeting the requirements, set forth in Exhibit J (such policy or bond, the “Replacement Risk Policy”). Administrative Agent shall have 30 days to inform Borrower whether such proposed Replacement Risk Policy is acceptable. If Administrative Agent deems such Replacement Risk Policy acceptable, Borrower shall promptly obtain (and maintain so long as any Obligation is outstanding), at Borrower’s sole cost and expense, such Replacement Risk Policy. Upon such Replacement Risk Policy becoming effective, each of Sponsor and Borrower may terminate the IP License and the IP License Security Agreement. If (a) (i) Borrower fails to obtain and maintain such Replacement Risk Policy as required hereunder and (ii) the Required Lenders have elected to have the Loans prepaid; or (b) within 30 days of a copy of such proposed Replacement Risk Policy being delivered to the Administrative Agent, the Borrower receives written notice from the Administrative Agent that the Required Lenders (i) have determined that the Replacement Risk Policy is unsatisfactory and (ii) have elected to have the Loans prepaid, Borrower shall within 1 Business Day make a Mandatory Prepayment of the Loans and other Obligations in full (together with the applicable Make Whole Amount).

5.16 Taxes, Other Government Charges and Utility Charges. Subject to the second sentence of this Section 5.16, Borrower shall timely file all Tax Returns and pay, or cause to be paid, as and when due and prior to delinquency, all Taxes, assessments and governmental charges of any kind that may at any time be lawfully assessed or levied against or with respect to Borrower or any Project, including sales and use Taxes and real estate Taxes, all utility and other charges incurred in the operation, maintenance, use, occupancy and upkeep of such Project, and all assessments and charges lawfully made by any Governmental Authority for public improvements that may be secured by a Lien on such Project. Borrower may contest in good faith any such Taxes, assessments and other charges and, in such event, may permit the Taxes, assessments or other charges so contested to remain unpaid during any period, including appeals, when Borrower is in good faith contesting the same, so long as (a) reserves to the extent required by GAAP have been established in an amount sufficient to pay any such Taxes, assessments or other charges, accrued interest thereon and potential penalties or other costs relating thereto, or other adequate provision for the payment thereof shall have been made and maintained at all times during such contest, (b) enforcement of the contested Tax, assessment or other charge is effectively stayed for the entire duration of such contest, (c) any Tax, assessment or other charge determined to be due, together with any interest or penalties thereon, is promptly paid after resolution of such contest and (d) such proceedings shall not involve any substantial danger of the sale, forfeiture or loss of, or impairment of the value of any System Facility, Project or any Site, as the case may be, title thereto or any interest therein and shall not interfere in any material respect with the use or disposition of any System Facility, Project or any Site.

5.17 Event of Eminent Domain. If an Event of Eminent Domain shall occur with respect to any Collateral, Borrower shall (a) diligently pursue all its rights to compensation against the relevant Governmental Authority in respect of such Event of Eminent Domain, (b) not, without the consent of the Required Lenders (which consent shall not be unreasonably withheld or delayed), compromise or settle any claim against such Governmental Authority, and (c) pay or apply all Eminent Domain Proceeds in accordance with Section 7.9. Borrower consents to, and agrees not to object to or otherwise impede or impair, the participation of Administrative Agent and/or Collateral Agent in any expropriation proceedings, and Borrower shall from time to time deliver to Administrative Agent and Collateral Agent all documents and instruments requested by it to permit such participation.

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5.18 Environmental Laws. Borrower shall (a) comply with, and ensure compliance by all tenants, licensees and invitees, if any, with all applicable Hazardous Substance Laws and obtain and comply in all material respects with, and maintain, and ensure that all tenants, licensees and invitees obtain and comply in all material respects with, and maintain all Permits required by applicable Hazardous Substance Laws; (b) conduct and complete, or cause to be conducted and completed, all investigations, studies, sampling and testing, and all clean-up, remedial, removal, recovery and other actions required pursuant to Hazardous Substance Laws or otherwise as necessary to prevent itself, any other Credit Party or any Secured Party from incurring any material liability; (c) promptly comply in all material respects with all orders and directives of all Governmental Authorities in respect of Hazardous Substance Laws, except to the extent that the same are being contested in good faith by appropriate proceedings; (d) exercise care, custody and control over each Site and each Project in such manner as not to pose a material or unreasonable hazard to the environment, health or safety in general; and (e) give (and shall cause the Operator and the Sponsor, to the extent applicable, to give) due attention to the protection and conservation of the environment in the implementation of each aspect of each Project, all in accordance with applicable Hazardous Substance Laws, Applicable Permits and Legal Requirements, and good industry practices.

5.19 Independent Consultants. Borrower shall (a) cooperate in all reasonable respects with the Independent Consultants and (b) ensure that each Independent Consultant is provided with all information reasonably requested by such consultant with respect to the financing, construction or operation of the Projects and will exercise due care to ensure that any factual information which it may supply to such consultant is materially accurate in all respects, and not, by omission of information or otherwise, misleading in any material respect at the time such information is provided, to the extent that such consultant relied on such information in preparing its report.

5.20 Partial Completion Buydown. In the event that upon expiration of the Availability Period the Projects in the aggregate consist of less than [***] of nameplate capacity of System Facilities having achieved COD, then Borrower shall within 5 Business Days re-calculate the size of the Loans under the Base Case Projections by (a) reducing the Project capacity assumption therein to the actual Project nameplate capacity, (b) maintaining DSCR at a [***] minimum through the Maturity Date under the base case, and (c) otherwise changing no assumptions in the Base Case Projections. Borrower’s calculations shall be subject to review and approval by the Required Lenders and by the Independent Engineer, provided that Borrower’s calculations shall be deemed approved unless the Administrative Agent notifies the Borrower that the Required Lenders and the Independent Engineer have disapproved such calculations within 10 Business Days of receiving such calculations. If the Administrative Agent notifies the Borrower that the Required Lenders and the Independent Engineer have disapproved such calculations, the Borrower may, within 5 Business Days of receipt of such notice, request to meet and confer with the Required Lenders and the Independent Engineer in order to reach agreement on such calculations. If the Borrower and the Required Lenders and the Independent Engineer are unable to reach agreement during such meeting, or if the Borrower fails to provide such calculations as required hereunder, the Required Lenders may determine the revised size of

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the Loans using their own calculations (such determination must be made in good faith and in consultation with the Independent Engineer and using the same methodology as specified in clauses (a) through (c) above); Borrower agrees that such determination of the Required Lenders will be final and binding on the Borrower, absent manifest error. Any amount by which, after such review and approval or determination, the outstanding amount of the Loans exceeds the revised Loan amount is the “Buydown Amount.” Borrower shall prepay Loans in the aggregate amount of the Buydown Amount within 30 days of notification from Administrative Agent that Borrower’s re-calculation has been approved by Required Lenders (or deemed approved) or notification from Administrative Agent of the Required Lenders’ determination of the revised size of the Loans, as applicable.

5.21 Maintenance Reserve Account. Borrower shall instruct Depositary to establish in the name of Borrower, and Borrower shall fund and maintain, a maintenance reserve account (the “Maintenance Reserve Account”) in accordance with Tax Investor Documents.

5.22 Administrative Services Provider. At any time that Borrower has the right to terminate the Administrative Services Agreement pursuant to the terms thereof, at the request of the Administrative Agent, Borrower shall replace the Administrative Services Provider with a Person not an Affiliate of Borrower and otherwise reasonably acceptable to the Required Lenders.

ARTICLE 6

NEGATIVE COVENANTS

6.1 Contingent Obligations. Borrower shall not become liable as a surety, guarantor, accommodation endorser or otherwise, for or upon the obligation of any other Person or incur any Contingent Obligations; provided, that this Section 6.1 shall not be deemed to prohibit or otherwise limit the occurrence of Permitted Debt.

6.2 Limitations on Liens. Borrower shall not create, assume or suffer to exist any Lien, except Permitted Liens, on the Collateral or any other asset of Borrower, or assign any right to receive income.

6.3 Debt. Borrower shall not incur, create, assume or permit to exist, directly or indirectly, any Debt except Permitted Debt.

6.4 Sale or Lease of Assets. Borrower shall not sell, lease, assign, transfer or otherwise dispose of assets, whether now owned or hereafter acquired, except (a) in the ordinary course of its business and at fair market value and for cash, (b) to the extent that such asset is unnecessary, worn out or no longer useful or usable in connection with the operation or maintenance of the Projects, at fair market value and for cash, or (c) as expressly contemplated by the Operative Documents, including, without limitation, a sale of any System Facility to Sponsor in accordance with the MESPA or the MOMA, as applicable. Upon any such sale, lease, assignment, transfer or other disposition of any such assets, in accordance with the terms of the Credit Documents, all Liens in favor of Collateral Agent relating to such asset shall be released. Borrower shall not enter into any sale and leaseback or synthetic debt transactions. All proceeds received in respect of any sale of any such assets in excess of [***] in the aggregate shall be deposited into the Revenue Account and applied promptly to the Mandatory Prepayment of Loans.

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6.5 Changes. Borrower shall not (a) change the nature of its business or expand its business beyond the business contemplated in the Operative Documents or activities incidental thereto or take any action, whether by acquisition or otherwise, which would constitute or result in any material alteration to the nature of such business; (b) establish, create or acquire any Subsidiaries; or (c) directly or indirectly, change its legal form or any of its Governing Documents (including by the filing or modification of any certificate of designation) or any agreement to which it is a party with respect to its limited liability company interest or otherwise terminate, amend or modify any such Governing Document or agreement or any provision thereof, or enter into any new agreement with respect to its limited liability company interest, other than any such amendments, modifications or changes or such new agreements to which the prior written consent of Administrative Agent and Collateral Agent (if appropriate) has been obtained or which are not adverse in any material respect to the interests of the Lenders.

6.6 Restricted Payments.

6.6.1 Pre-Initial Quarterly Date. Prior to the first Quarterly Date, Borrower shall not directly or indirectly, make or declare or pay any dividend or other distribution (in cash, assets, property, rights, obligations or securities) on, or other payment on account of, any equity interest in Borrower (including any redemption or repurchase of any such equity interest or the funding of any sinking fund or similar reserve with respect to any of the foregoing.

6.6.2 Post-Initial Quarterly Date. From and after the first Quarterly Date, Borrower shall not directly or indirectly, make or declare any distribution (in cash, property, securities, evidences of indebtedness, or obligation) on, or other payment on account of, any Equity Interest in Borrower (whether as a dividend, redemption, sinking fund payment or otherwise), unless the following conditions have been satisfied (the “Distribution Conditions”):

(a) such distribution is made on a Quarterly Date or a date occurring within 30 days after a Quarterly Date;

(b) no Default or Event of Default has occurred and is continuing as of such Quarterly Date or the date of such payment, or will result therefrom;

(c) the amount on deposit in the DSR Account is equal to the DSR Requirement;

(d) the DSCR for the Calculation Period just ending is greater than or equal to [***]; and

(e) the funds necessary to make any such distribution are on deposit in the Revenue Account and available Waterfall Level (9) (ia. te., all previous Waterfall Level applications have been satisfied) or the Distribution Suspense Account as of the Quarterly Date to which the applicable distribution relates.

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6.7 Investments. Borrower shall not (a) make any investments (whether by purchase of stocks, bonds, notes, obligations or other securities, loan, extension of credit, advance or otherwise) other than Permitted Investments or make any capital contribution to any Person; or (b) own any equity interest in, lend money, hold Debt of any Person extend credit or make advances to, or any deposits with (other than deposits or advances in relation to the payment for services in the ordinary course of business), or make deposits with, any Person other than Depositary.

6.8 Transactions With Affiliates. Borrower shall not directly or indirectly enter into any transaction or series of transactions relating to any Project with or for the benefit of an Affiliate without the prior approval of Administrative Agent, except for (a) the Project Documents as in effect on the Restatement Effective Date as amended in compliance with the terms of the Credit Documents and (b) a sale of any System Facility to Sponsor in accordance with the MESPA or the MOMA, as applicable.

6.9 Margin Loan Regulations. Borrower shall not directly or indirectly apply any part of the proceeds of any Loan, any cash equity contributions received by Borrower or other funds or revenues to the “buying,” “carrying” or “purchasing” of any margin stock within the meaning of Regulations T, U or X of the Federal Reserve Board, or any regulations, interpretations or rulings thereunder.

6.10 Partnerships, Separateness Etc. Borrower shall not (a) become a general or limited partner in any partnership or a joint venturer in any joint venture, (b) create and hold stock in any subsidiary, (c) engage in any business other than owning and operating the Projects and related activities, (d) fail to maintain bank accounts and books of account separate from any other Person, (e) fail to cause its liabilities to be readily distinguishable from the liabilities of the Sponsor and the other Affiliates of the Sponsor and any other Person, (f) fail to conduct its business solely in its own name in a manner not misleading to other Persons as to its identity, or (g) fail to make all oral and written communications (if any), including letters, invoices, purchase orders, contracts, statements, and applications solely in its name. Borrower shall not cause Holdings to engage in any business or activity other than the ownership of all of the equity interest of Borrower and activities incidental thereto.

6.11 Dissolution; Merger. Borrower shall not (a) wind up, liquidate or dissolve its affairs, (b) combine, merge or consolidate with or into any other entity, or (c) purchase or otherwise acquire all or substantially all of the assets of any Person.

6.12 Amendments. Borrower shall not amend, modify, supplement or waive, accept, or permit or consent to the termination, amendment, modification, supplement or waiver (including any waiver (or refund) of damages (liquidated or otherwise) payable by any party under any Major Project Document) of, any provision of, or give any material consent (each such termination, amendment, modification, supplement, waiver or consent, inclusive of any applicable change orders, being referred to herein as a “Project Document Modification”) under any of the Major Project Documents.

6.13 Name and Location; Fiscal Year. Unless consented to by Administrative Agent, Borrower shall not change its name, its jurisdiction of organization, the location of its principal place of business, its organization identification number, its fiscal year or, except as required by GAAP, its accounting policies or reporting practices.

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6.14 Use of Real Property. Borrower shall not use, maintain, operate or occupy, or allow the use, maintenance, operation or occupancy of, any portion of a Project or any Site for any purpose (a) which may (i) constitute a public or private nuisance or (ii) make void, voidable, or cancelable, or materially increase the premium of, any insurance policies then in force with respect to all or a portion of such Project, (b) that could reasonably be expected to have a Material Adverse Effect, or (c) that could reasonably be expected to violate any third party easements, rights of way, or other third party property rights over the Sites.

6.15 Assignment. Borrower shall not assign its rights or obligations under any Credit Document or any Project Document to any Person, except pursuant to the Collateral Documents.

6.16 Accounts. Borrower shall not maintain, establish or use any account (other than the Accounts).

6.17 Hazardous Substances. Borrower shall not Release (or suffer the Release) into the environment any Hazardous Substances in violation of any Hazardous Substance Laws, Legal Requirements or Applicable Permits.

6.18 New Project Documents. Borrower shall not enter into or become a party to any Project Document (other than any Replacement Risk Policy meeting the requirements of Exhibit J) providing for the payment by or to or the receipt or provision of goods or services having a value of more than $[***] without (a) obtaining consent from Administrative Agent for Project Documents requiring or reasonably expected to require payments to, or from or the receipt or provision of goods or services with a value of, less than $[***] in the aggregate and consent from the Required Lenders for all other Additional Project Documents, (b) delivering if requested by the Administrative Agent a fully executed Direct Agreement from the counterparty thereto in the form of Exhibit D-3 (or in a form otherwise approved by the Administrative Agent) and (c) providing an executed copy such Project Document to Administrative Agent within five Business Days after execution.

6.19 Assignment By Third Parties. To the extent Borrower’s consent is required under the applicable Major Project Document, without prior consent of the Required Lenders, Borrower shall not consent to the assignment of any obligations, rights or interest under any Major Project Document by any counterparty thereto.

6.20 Acquisition of Real Property. Borrower shall not acquire or lease any real property or other interest in real property (excluding the acquisition of any easements or the acquisition (but not the exercise) of any options to acquire any such interests in real property) other than the Site Leases.

6.21 ERISA. Borrower shall not maintain any employee benefit plans subject to ERISA.

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6.22 Lease Obligations. Borrower shall not create, incur, assume or suffer to exist any obligations as lessee for the rent or hire of any property under any leases other than under the Site Leases.

6.23 Disputes. Borrower shall not agree, authorize or otherwise consent to any proposed settlement, resolution or compromise of any litigation, arbitration or other dispute or proceed with any Person without the prior authorization of Administrative Agent and the Required Lenders if such proposed settlement, resolution or compromise is in respect of (a) a claim of an Affiliate or (b) a claim of a Person other than an Affiliate in an amount of $50,000 or more.

6.24 Anti-Terrorism Law; Anti-Money Laundering.

6.24.1 Borrower shall not directly or indirectly, knowingly (a) conduct any business or engage in making or receiving any contribution of funds, goods or services to or for the benefit of any Person described in Section 4.31, (b) deal in, or otherwise engage in any transaction relating to, any property or interests in property blocked pursuant to the Executive Order or any other Anti-Terrorism Law, or (c) engage in or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate, any of the prohibitions set forth in any Anti-Terrorism Law (and Borrower shall deliver to the Lenders any certification or other evidence requested from time to time by any Lender in its reasonable discretion, confirming Borrower’s compliance with this Section 6.24.1).

6.24.2 Borrower shall not cause or permit any of the funds that are used to repay the Loans to be derived from any unlawful activity with the result that the making of the Loans would be in violation of law.

6.25 Embargoed Persons.

6.25.1 Borrower shall not become a Person whose property or interests in property are blocked or subject to blocking pursuant to Section 1 of the Executive Order, or (b) engage in any dealings or transactions prohibited by Section 2 of the Executive Order, or be otherwise associated with any such Person in any manner violative of such Section 2.

6.25.2 Borrower shall not cause or permit (a) any of the funds or properties that are used to repay the Loans to constitute property of, or be beneficially owned directly or indirectly by, any Person subject to sanctions or trade restrictions under United States law (each, an “Embargoed Person”) that is identified on (1) the “List of Specially Designated Nationals and Blocked Persons” maintained by OFAC or on any other similar list maintained by OFAC pursuant to any authorizing statute including, but not limited to, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701 et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1 et seq., and any executive order or regulation promulgated thereunder, with the result that the investment in the Credit Parties (whether directly or indirectly) is prohibited by law, or the Loans made by the Lenders would be in violation of law, or (2) the Executive Order, any related enabling legislation or any other similar executive orders, or (b) any Embargoed Person to have any direct or indirect interest, of any nature whatsoever in the Project, Borrower and the other Credit Parties, with the result that the investment in the Project or Borrower (whether directly or indirectly) is prohibited by law or the Loans are in violation of law.

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ARTICLE 7

ACCOUNTS

7.1 Account Withdrawals, Transfers and Payments.

7.1.1 General Procedures.

(a) For every withdrawal, transfer or payment from any Account, Borrower shall execute and deliver to Administrative Agent an Account Withdrawal Request and a proposed Account Withdrawal Instruction related thereto. Borrower shall submit, together with each set of Account Withdrawal Documents, receipts, invoices and any other appropriate documentation or materials reasonably requested by Administrative Agent to enable it to confirm the withdrawals and transfers specified in the applicable Account Withdrawal Documents and the other matters described therein.

(b) Upon receipt of such Account Withdrawal Documents, Administrative Agent shall within 5 Business Days review such Account Withdrawal Documents. Administrative Agent (after consulting with Borrower and the Independent Engineer) may elect (i) not to approve part, (and, accordingly, may reduce the amount of, any individual withdrawal, transfer or payment requested in any Account Withdrawal Request) if Administrative Agent reasonably determines that Borrower has not provided all of the documentation contemplated by Section 7.1.1(a) to sufficiently document and support the making of such part of the requested withdrawal, transfer or payment, or (ii) to approve part or the whole of any individual withdrawal, transfer or payment requested in any Account Withdrawal Request but make such withdrawal, transfer or payment requested subject to further reasonable conditions if Administrative Agent determines that Borrower has not met the requirements hereunder for the funding of such requested withdrawal, transfer or payment. If Administrative Agent does not approve (such approval not to be unreasonably withheld) any Account Withdrawal Documents or shall approve any Account Withdrawal Document but subject to certain conditions, Administrative Agent shall promptly so notify Borrower (such notice to specify in reasonable detail the reasons for not approving or for such additional conditions with respect to such Account Withdrawal Documents), and Borrower shall then be permitted to submit a revised set of Account Withdrawal Documents to Administrative Agent or agree to meet such conditions with respect to any Account Withdrawal Document subject to any conditions, as applicable.

(c) If in Administrative Agent’s reasonable determination such Account Withdrawal Documents are consistent with the terms hereof, subject to Administrative Agent’s approval of the amounts and other details provided therein, Administrative Agent shall execute and deliver the applicable Account Withdrawal Instruction to Collateral Agent and Depositary. Borrower agrees that Administrative Agent may direct the Collateral Agent to direct the Depositary to transfer any or all sums on deposit in or credited to any Account directly into the accounts identified by Borrower in each Account Withdrawal Request without further authorization from Borrower; provided that if Borrower has notified Administrative Agent that it

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is contesting a claim for payment in accordance with Section 5.2.2 and the other applicable Operative Documents, Administrative Agent shall not be entitled to directly pay any amount being contested, except any portion of such amount which is not being contested by Borrower.

7.1.2 Account Withdrawal Documents. A set of Account Withdrawal Documents shall be deemed properly delivered by Borrower to Administrative Agent if such Account Withdrawal Documents have been properly completed to the satisfaction of Administrative Agent and delivered in accordance with the applicable time requirements set forth herein. Unless specifically stated herein, all Account Withdrawal Instructions are to be completed by Borrower and submitted to Administrative Agent for approval and signature and then forwarded by Administrative Agent to Collateral Agent to direct Depositary in accordance with the applicable time requirements set forth herein. To the extent that any directions to Depositary or any requested actions by Depositary under this Article 7 require actions to be taken by Borrower and Borrower fails to perform such actions, or if any Account Withdrawal Documents submitted by Borrower are incorrect or if an Event of Default has occurred and is continuing or would occur based on Borrower’s failure to submit, or to submit accurate and necessary, Account Withdrawal Instructions, Administrative Agent is entitled to perform such actions by completing and executing an Account Withdrawal Instruction and delivering such Account Withdrawal Instruction to the Collateral Agent to direct the Depositary.

7.1.3 Repayment of Loans in Full. In connection with any anticipated repayment in full of the Loans and termination or reduction of the Loan Commitments, Borrower may submit a set of Account Withdrawal Documents to Administrative Agent requesting Administrative Agent to direct the Collateral Agent to direct the Depositary to transfer or apply all remaining monies in the Accounts to the repayment of the Loans on the anticipated date thereof. After approving a set of Account Withdrawal Documents (or any revision thereof), Administrative Agent shall execute and deliver to the Collateral Agent to direct the Depositary the applicable Account Withdrawal Instruction within 2 Business Days of Administrative Agent’s receipt of such Account Withdrawal Request.

7.1.4 Administrative Agent is hereby granted an irrevocable power of attorney (coupled with an interest) with full power of substitution to exercise the rights provided under this Section 7 and Section 8 hereof in Borrower’s name, place and stead; provided, that such power of attorney shall be exercisable only upon the occurrence and during the continuance of an Event of Default.

7.2 Construction Account.

7.2.1 Deposits into the Construction Account. Borrower or the applicable disbursing or receiving Person shall immediately deposit or cause to be deposited into the Construction Account each of the following:

(a) the proceeds of all Loans, less (i) for Systems funded prior to the date hereof, [***] of the proceeds of each Loan, and (ii) for Systems funded on or after the date hereof, $[***]/kW for all Funded Systems, which amount in each such case shall be deposited into the DSR Account;

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(b) except (i) as provided in Section 7.7.1(a) and (ii) with respect to any deemed equity contributions resulting from the payment by Holdings of O&M Costs on behalf of the Borrower pursuant to the ECCA and the Equity Contribution Tri-Party Agreement, the proceeds of all cash equity contributions made to or for the benefit of Borrower; and

(c) during the Availability Period, all delay in start-up or business interruption Insurance Proceeds.

7.2.2 Disbursements from the Construction Account.

(a) Borrower shall submit a set of Account Withdrawal Documents to Administrative Agent as and when, but no more frequently than 1 time each month, Borrower seeks to withdraw or transfer funds from the Construction Account, which Account Withdrawal Documents shall be delivered to Administrative Agent at least 1 Business Day before the date of the requested disbursement. The applicable Account Withdrawal Request shall request Administrative Agent to direct the Collateral Agent to direct Depositary to transfer or apply monies on deposit in the Construction Account only to the account or accounts specified by Borrower to Administrative Agent, to pay, to the extent consistent with the then-current Project Budget or otherwise approved or permitted hereunder, Project Costs due and owing.

(b) On the last day of the Availability Period:

1. Administrative Agent shall direct Depositary, pursuant to an Account Withdrawal Instruction completed by Borrower and submitted to Administrative Agent for approval and signature, to withdraw any amounts then on deposit in or credited to the Construction Account and transfer such amounts to the Revenue Account; and

2. after all of the proceeds then on deposit in or credited to the Construction Account shall have been withdrawn and transferred pursuant to the foregoing clause (i), Administrative Agent shall direct the Collateral Agent to direct Depositary to close the Construction Account.

7.3 Revenue Account.

7.3.1 Deposits into Revenue Account. Borrower or the applicable disbursing or receiving Person shall deposit into the Revenue Account all Project Revenues (other than delay in start-up or business interruption Insurance Proceeds received prior to the Availability Period).

7.3.2 Disbursements from the Revenue Account. To cause withdrawal or transfer of amounts on deposit in the Revenue Account, Borrower shall submit to Administrative Agent a set of Account Withdrawal Documents at least 4 Business Days prior to each Quarterly Date. The applicable Account Withdrawal Request shall require Administrative Agent’s countersignature evidencing Administrative Agent’s concurrence that the requested transfers are consistent with the terms hereof. After approving a set of Account Withdrawal Documents (or any revision thereof as contemplated by Section 7.1), Administrative Agent shall execute and deliver to the Collateral Agent and Depositary the applicable Account Withdrawal Instruction at least 1 Business Day prior to the last Business Day of the month in which such Account Withdrawal Documents were submitted or the proposed disbursement date, as applicable.

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(a) Amounts on deposit in the Revenue Account shall be applied to the following uses, in the following amounts, at the following times, and in the following order of priority, to the extent funds are available therefor; provided that no portion of the Prepaid Expense Amount may be released from the Revenue Account except, on each Quarterly Date, the amount that was budgeted to pay O&M Costs which are due in the following calendar quarter pursuant to the Annual Operating Budget covering such quarter:

1. (i) On each Quarterly Date, to the Operating Account for the payment of all O&M Costs then due and payable or to be due and payable in the ensuing quarter, and

(ii) Beginning on the fourth Quarterly Date after each System Facility has been placed in Service and on each Quarterly Date thereafter, to the Maintenance Reserve Account in an amount equal to $[***] per KW of each System Facility that has been Placed in Service (as defined in the MESPA) with respect to which the fuel cell power modules have not been replaced, subject in all events to a maximum amount determined pursuant to Section 7.3.2(b), and

(iii) Beginning on the first Monthly Date following the Closing Date and on each Monthly Date thereafter, to the SGIP Proceeds Account, all cash proceeds received in respect of the Self Generation Incentive Program (as defined in the Wal-Mart Power Purchase Agreement) assigned to the Borrower under the Wal-Mart Power Purchase Agreement.

2. On each Quarterly Date, to the payment of all reimbursable amounts currently payable to Administrative Agent, Collateral Agent or Depositary in connection with the Credit Documents.

3. On each Quarterly Date, to the payment of interest on the Loans, and on other amounts accruing interest under the Credit Documents, in each case currently payable.

4. On each Quarterly Date during the Availability Period, at Borrower’s election, to prepayment of principal of the Loans, in any amount so elected by Borrower (subject to prepayment requirements, including the Make Whole Payment if payable, set forth in Article 2).

5. On each Quarterly Date, to the scheduled repayment of the principal of Loans then due.

6. On each Quarterly Date, to the DSR Account pursuant to Section 7.5 to the extent the DSR Requirement has not been satisfied.

7. On each Quarterly Date, to any Mandatory Prepayment then due.

8. On each Quarterly Date, to the retention of prudent working capital reserves (as reasonably determined by Borrower) in the Revenue Account.

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9. On each Quarterly Date or within 30 days thereafter, if the Distribution Conditions have been satisfied, to the account directed by Borrower in the Account Withdrawal Request, free of the Liens of the Collateral Documents, and if the Distribution Conditions have not been satisfied, to the Distribution Suspense Account. If the calculations necessary to determine whether the Distribution Conditions have been satisfied cannot be performed until after the Quarterly Date, Borrower may so indicate on the Account Withdrawal Request and then, within 25 days after the Quarterly Date, submit a supplement to the Account Withdrawal Request indicating whether the Distribution Conditions have or have not been satisfied, whereupon the first sentence of this Waterfall Level (9) shall be effected.

(b) O&M Costs payable at Waterfall Level (1) shall not in any event exceed the amounts prescribed by Section 5.13.3. Borrower shall promptly pay all O&M Costs in excess of the foregoing limit.

7.4 Operating Account.

7.4.1 Deposits into the Operating Account. Amounts shall be transferred to the Operating Account as provided in Section 7.3.2(a) and Waterfall Level (1).

7.4.2 Disbursements from the Operating Account. Borrower shall submit a set of Account Withdrawal Documents to Administrative Agent as and when, but no more frequently than 1 time each month Borrower seeks to withdraw or transfer funds from the Operating Account. The applicable Account Withdrawal Request shall request Administrative Agent to direct the Collateral Agent to direct Depositary to apply monies on deposit in the Operating Account to pay, to the extent consistent with the then-current O&M Budget or otherwise approved or permitted hereunder, O&M Costs due and owing.

7.5 Debt Service Reserve Account.

7.5.1 Deposit to the DSR Account. Amounts shall be transferred to the DSR Account as provided in Section 7.2.1(a) until the amount on deposit in the DSR Account is equal to $[***] (as may be reduced pursuant to Section 7.5.2, the “DSR Requirement”). The stated amount of any applicable Cash-Substitute LC shall be considered a deposit in the DSR Account for purposes of this Section 7.5.1. If on any Quarterly Date amounts in the DSR Account are below the DSR Requirement, there shall be deposited all amounts in excess of the amounts applied pursuant to Waterfall Levels (1)-(5) in the DSR Account until the balance in the DSR Account is equal to the DSR Requirement.

7.5.2 Withdrawals from the DSR Account. If at any time when amounts are required to be paid pursuant to Waterfall Level (2) through Waterfall Level (7), and insufficient funds are contained in the Revenue Account and Distribution Suspense Account to pay such amounts, Administrative Agent shall direct the Collateral Agent to direct Depositary, pursuant to an Account Withdrawal Instruction, to withdraw from the DSR Account funds deposited in or credited to such Account, or Administrative Agent shall direct Collateral Agent to draw upon any applicable Cash-Substitute LC in an amount sufficient to pay such amounts.

[***] Confidential Treatment Requested

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7.6 Distribution Suspense Account.

7.6.1 Deposits to the Distribution Suspense Account. Amounts shall be deposited in the Distribution Suspense Account from the Revenue Account if so specified in Waterfall Level (9).

7.6.2 Withdrawals from the Distribution Suspension Account for Costs. Until the funds in the Distribution Suspense Account have been applied as provided in Section 7.6.3, Administrative Agent shall direct Collateral Agent to direct Depositary to withdraw amounts therefrom to pay all fees, charges, costs and other amounts then due and owing specified in Waterfall Level (1) through Waterfall Level (4), as applicable, in such order, to the extent that amounts in the Revenue Account are insufficient therefor and prior to applying funds from the DSR Account any applicable Cash-Substitute LC. Funds so applied shall be deemed those last deposited in the Distribution Suspension Account.

7.6.3 Mandatory Prepayment. Any funds deposited to the Distribution Suspense Account shall be applied to the Mandatory Prepayment of Loans, pursuant to an Account Withdrawal Request, after such funds shall have been held in the Distribution Suspense Account until the 4th Quarterly Date following deposit. Notwithstanding the foregoing, upon receipt of notice from Borrower, Administrative Agent shall direct Collateral Agent to direct Depositary to withdraw any and all amounts specified in such notice and on deposit in or credited to the Distribution Suspense Account and apply such amounts to the prepayment of the Loans in accordance with Section 2.1.5(b). If the Distribution Conditions are satisfied on any Quarterly Date after deposit of such funds, all amounts in the Distribution Suspense Account shall be released with and to the same destination as other funds as provided in Waterfall Level (9).

7.7 Maintenance Reserve Account.

7.7.1 Deposits into the Maintenance Reserve Account. Borrower or the applicable disbursing or receiving Person shall immediately deposit or cause to be deposited into the Maintenance Reserve Account each of the following:

(a) on or prior to the date of each Borrowing, proceeds of cash equity contributions made to or for the benefit of Borrower in an amount equal to at least $[***] per KW of each System Facility that is Placed in Service (as defined in the MESPA) and funded with proceeds of such Borrowing; and

(b) amounts transferred from the Revenue Account pursuant to Waterfall Level (1)(B).

7.7.2 Disbursements from the Maintenance Reserve Account. On each of the first three Quarterly Dates after a System Facility has been Placed in Service, Borrower shall submit a set of Account Withdrawal Documents to Administrative Agent, which Account Withdrawal Documents shall request Administrative Agent to direct Collateral Agent to direct Depositary to withdraw and transfer monies in the Maintenance Reserve Account to the Operating Account for the payment of all amounts due and payable under the MOMA or to be due and payable in the ensuing quarter, subject in all events to a maximum amount determined pursuant to Section 7.3.2(b). Thereafter, if at any time amounts are required to be paid to the Sponsor under the MOMA for fuel cell power module replacements, Borrower shall submit a set of Account

[***] Confidential Treatment Requested

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Withdrawal Documents to Administrative Agent, which Account Withdrawal Documents shall request Administrative Agent to direct Collateral Agent to direct Depositary to apply monies on deposit in the Maintenance Reserve Account to pay to the Sponsor $[***] per KW of each such fuel cell power module that is being replaced; provided that, if insufficient funds are contained in the Maintenance Reserve Account to pay such amounts in full, Administrative Agent shall direct Collateral Agent to direct Depositary, pursuant to an Account Withdrawal Instruction, to withdraw first, from the Revenue Account, and second, from the Distribution Suspense Account, funds on deposited in such Accounts in an amount sufficient to pay such amounts.

7.7.3 Release of Funds from Maintenance Reserve Account. All amounts remaining in the Maintenance Reserve Account (which for the avoidance of doubt shall include interest earned on that amount net of account fees (if any)) shall be disbursed to Sponsor in the amount required be paid to the Sponsor under the MOMA (subject to receipt by Borrower of an invoice from Sponsor for such amounts) after all fuel cell power modules in all System Facilities comprising the Projects have been replaced at least once since their original installation.

7.7.4 Disbursements from Maintenance Reserve Account after an Event of Default. Upon the occurrence and during the continuation of an Event of Default under Section 8.1.1, Administrative Agent shall direct Collateral Agent to direct Depositary to withdraw amounts from the Maintenance Reserve Account and apply such amounts to pay all fees, charges, costs and other amounts then due and owing specified in Waterfall Levels (2), (3) and (5), as applicable, in such order, to the extent amounts in the Revenue Account, the DSR Account and the Distribution Suspense Account and any applicable Cash-Substitute LC are in sufficient therefor.

7.8 Cash-Substitute LC.

7.8.1 Issuance. Borrower shall have the right (but not the obligation) to replace any or all of the amounts on deposit in or credited to the DSR Account or Distribution Suspense Account with funds available to be drawn under a Qualified Letter of Credit, in form and substance reasonably satisfactory to Administrative Agent (as amended, modified, supplemented, reissued or extended from time to time, a “Cash-Substitute LC”). Each Cash-Substitute LC shall (i) name the Collateral Agent as the beneficiary thereof, and (ii) permit Collateral Agent to draw under the Cash-Substitute LC in a manner consistent with the applicable provisions of Section 7.5 or 7.6, as the case may be. For all purposes of this Agreement, the stated amount of a Cash-Substitute LC shall be deemed on deposit in cash in the applicable Account. All amounts drawn under a Cash-Substitute LC shall reduce the stated amount thereof to the extent of such draw, and only the reduced stated amount thereof shall be deemed to be on deposit in the applicable Account.

7.8.2 Ordinary Course Draws. To the extent that Borrower elects to replace any amounts on deposit in or credited to an Account with funds available to be drawn under a Cash-Substitute LC and an amount is required to be withdrawn from the applicable Account, Borrower shall request such withdrawal pursuant to an Account Withdrawal Request, provided that if Borrower fails to make such request, the Collateral Agent, at the direction of Administrative Agent may draw the Cash-Substitute LC on its own volition and either deposit the draw proceeds in the applicable Account or apply the draw proceeds as provided herein. Cash available on deposit in the applicable Account shall be used prior to any draw hereunder by Administrative Agent.

[***] Confidential Treatment Requested

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7.8.3 Draw Upon Event of Default. Upon the occurrence and during the continuation of an Event of Default, Collateral Agent at the request of Administrative Agent, at the direction of the Required Lenders, shall make a draw under any Cash-Substitute LC in any amount up to the full stated amount thereof. Upon receipt of the proceeds of any such draw, Collateral Agent at the request of Administrative Agent shall promptly deposit, or shall cause to be deposited, all proceeds of any such draw in the applicable Account with Depositary.

7.8.4 Draw Upon Non-Renewal or Issuer Downgrade. If no agreement for a renewal or replacement of any Cash-Substitute LC, which renewed or replacement Cash-Substitute LC shall have the same stated amount as the original Cash Substitute LC (as may be reduced to the extent of previous draws) and shall otherwise comply with the requirements hereunder, has been made 30 days prior to the expiration of the Cash-Substitute LC, or within 30 days after the Cash-Substitute LC ceases being a Qualified Letter of Credit, Collateral Agent, at the direction of Administrative Agent is hereby irrevocably authorized and directed to make a draw under the Cash-Substitute LC for an amount equal to the full stated amount of such Cash-Substitute LC and to transfer the proceeds of such draw to the Depositary. Upon receipt of the proceeds of any such draw, Administrative Agent shall promptly direct Collateral Agent to direct Depositary to deposit all proceeds of any such draw in the applicable Account.

7.8.5 Excess Funds. In the event that the amount on deposit in or credited to the DSR Account, together with the then-current stated amount of any applicable Cash-Substitute LC, exceeds the amount of funds then required to be on deposit in or credited to the applicable Account, then (a) Borrower shall be permitted to reduce the then-current stated amount of the Cash-Substitute LC in an amount equal to the amount of such excess and (b) if after giving effect to the foregoing clause (a) the amount on deposit in or credited to the applicable Account continues to exceed the amount of funds then required to be on deposit in or credited to such Account, then, if requested by Borrower, Administrative Agent shall direct the Collateral Agent to direct the Depositary to cause all such excess amounts to be deposited into the Revenue Account.

7.9 Application of Insurance Proceeds.

7.9.1 Insurance Proceeds. Borrower shall notify Administrative Agent of any casualty if so required by Section 5.4.4 and keep Administrative Agent timely apprised the reasonable detail of related insurance claim proceedings. All proceeds of any property or casualty insurance policy maintained by Borrower hereunder (“Insurance Proceeds”) shall be deposited into an account established by Borrower at Depositary for the purpose (“Insurance Proceeds Account”) and applied as provided in this Section, including any amounts paid by the insurers directly to Administrative Agent (as loss payee) and Administrative Agent shall deposit such Insurance Proceeds into the Insurance Proceeds Account to be applied as provided in this Section. If paid to Borrower, such Insurance Proceeds shall be received in trust for Secured Parties, shall be segregated from other funds of Borrower, and shall be forthwith deposited into the Insurance Proceeds Account in the same form as received (with any necessary endorsement).

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7.9.2 Application of Insurance Proceeds. If there shall occur any single Casualty Event with respect to which the replacement value of the item of Property subject to the Casualty Event does not exceed $1,000,000, any Insurance Proceeds in respect of such Casualty Event shall be applied by Borrower to the cost of the repair or restoration of such damage or destruction. Unless each of the following conditions is satisfied or waived by Administrative Agent, all Insurance Proceeds relating to a Casualty Event in respect of a single Casualty Event greater than $1,000,000 (as determined by the replacement value of the item of Property subject to the Casualty Event) shall be applied to the Mandatory Prepayment of Loans:

(a) such damage or destruction does not constitute the destruction of all or substantially all of the applicable Project;

(b) no Event of Default has occurred and is continuing and after giving effect to any proposed repair and restoration, such damage or destruction or proposed repair and restoration will not result in a Default or Event of Default;

(c) Borrower and the Independent Engineer certify, and Administrative Agent determines in its reasonable judgment, that repair or restoration of such Project is technically and economically feasible within a three month period and that a sufficient amount of funds is or will be available to Borrower to make such repairs and restorations;

(d) Administrative Agent in consultation with the Independent Engineer determines that after repair and restoration such Project should be as capable of generating Project Revenues as prior to the casualty and consistent with the Base Case Projections;

(e) no material Permit is necessary to proceed with the repair and restoration and no material amendment to this Agreement or any of the Operative Documents and no other instrument, is necessary for the purpose of effecting the repairs or restorations or subjecting the repairs or restorations to the Liens of the Collateral Documents or, if any such permit, amendment or instrument, as applicable, is necessary, the Administrative Agent and the Independent Engineer have determined that the Borrower will be able to obtain such as and when required;

(f) if requested by Administrative Agent, the Lenders shall receive an opinion in form and substance and from counsel acceptable to Administrative Agent opining as to the matters described in paragraph (e) above, and such opinion shall also state that such repairs or restoration will be subject to the Liens of the Collateral Documents at the same level of priority as the other Collateral; and

(g) Administrative Agent shall receive such mechanic’s lien waivers, certificates, opinions or other waivers, documents or agreement as it may reasonably request as necessary or appropriate in connection with such repairs or restoration or to preserve or protect the Lenders’ interests hereunder and in the Collateral.

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7.9.3 Restoration. If the conditions in Section 7.9.2 have been met, then such Insurance Proceeds shall be applied by Borrower to the prompt repair or restoration of the applicable Project in accordance with the following procedures:

(a) Borrower shall submit a detailed report to Administrative Agent describing Borrower’s plan for effectuating repairs or restoration, and such report shall be subject to the review and approval of Administrative Agent in consultation with the Independent Engineer.

(b) From time to time after Administrative Agent shall have approved the making of such repairs or restoration, Administrative Agent’s authorization to release Insurance Proceeds for application toward such repairs or restoration shall be conditioned upon Borrower’s request and the presentation to Administrative Agent of all documents, certificates and information with respect to such Insurance Proceeds which would be required pursuant to Section 3.3 for a Borrowing under this Agreement, including a certificate from Borrower (i) describing in reasonable detail the nature of the repairs or restoration to be effected with such release, (ii) stating the cost of such repairs or restoration and the specific amount requested to be paid over to or upon the order of Borrower and that such amount is requested to pay the cost thereof, (iii) stating that the aggregate amount requested by Borrower in respect of such repairs or restoration (when added to any other Insurance Proceeds received by Borrower in respect of such damage of destruction) does not exceed the cost of such repairs or restoration and that a sufficient amount of funds is or will be available to Borrower to repair or restore such Project, and (iv) certifying that no Event of Default has occurred and is continuing other than an Event of Default resulting solely from such damage or destruction.

7.9.4 Account Withdrawal Documents. To cause withdrawal or transfer of amounts on deposit in the Insurance Proceeds Account, Borrower shall submit to Administrative Agent a set of Account Withdrawal Documents. The applicable Account Withdrawal Request shall request Administrative Agent to direct Collateral Agent to direct Depositary to transfer or apply monies on deposit in the Insurance Proceeds Account in compliance with Section 7.9.3. After approving a set of Account Withdrawal Documents (or any revision thereof), Administrative Agent shall promptly execute and deliver to Collateral Agent and Depositary the applicable Account Withdrawal Instruction.

7.9.5 Surplus Proceeds. If, after Insurance Proceeds have been applied to the repair or restoration of a Project as provided in Section 7.9.3, there remain any excess Insurance Proceeds, such Insurance Proceeds shall be transferred to the Revenue Account and applied to the Mandatory Prepayment of Loans.

7.9.6 Insurance Proceeds in an Event of Default. If a Default or Event of Default shall have occurred and be continuing, then any provisions of this Section 7.9 to the contrary notwithstanding, the Insurance Proceeds (including any Permitted Investments made with such proceeds, which shall be liquidated in such manner as Administrative Agent shall deem reasonable and prudent under the circumstances) may be applied by Administrative Agent (a) to curing such Default or Event of Default, and any Insurance Proceeds remaining thereafter shall be applied as provided in this Section 7.9.6 or (b) toward payment of the Obligations, in connection with exercise of Administrative Agent’s remedies pursuant to Article 8.

7.10 Application of Eminent Domain Proceeds. All proceeds received in respect of any Eminent Domain (“Eminent Domain Proceeds”) shall be subject to the same treatment as Insurance Proceeds as provided in Section 7.9, provided, that if the conditions set forth in

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Section 7.9.2 are satisfied or waived, but no or insufficient replacement property is available for such restoration, then such Eminent Domain Proceeds shall be deposited into the Revenue Account and applied promptly to the Mandatory Prepayment of Loans.

7.11 Proceeds and Accounts. Borrower shall not have any rights or powers with respect to any monies or accounts or Account except to have funds on deposit therein applied in accordance with this Agreement and as set forth in the Depositary Agreement. Administrative Agent is hereby authorized to reduce to cash any Permitted Investment (without regard to maturity) in order to make any application required by any section of this Article 7 or otherwise pursuant to the Credit Documents. Upon the occurrence of an Event of Default, Collateral Agent shall have all rights and powers with respect to Insurance Proceeds, Eminent Domain Proceeds and Accounts as it has with respect to any other Collateral and may (and the Administrative Agent may, to the extent authorized hereby) apply Insurance Proceeds, Eminent Domain Proceeds and Accounts to the payment of interest, principal, fees, costs, charges or other Obligations due or payable to the Secured Parties in such order as Collateral Agent or Administrative Agent, as the case may be, may elect pursuant to the terms of the Credit Documents.

7.12 Permitted Investments. Administrative Agent may, but shall not be obligated to, invest all amounts held in the Accounts or as Insurance Proceeds or Eminent Domain Proceeds only in Permitted Investments as directed by and at the expense and risk of Borrower

7.13 SGIP Proceeds Account.

7.13.1 Deposits into the SGIP Proceeds Account. Borrower or the applicable disbursing or receiving Person shall immediately deposit or cause to be deposited into the SGIP Proceeds Account amounts transferred from the Revenue Account pursuant to Waterfall Level (1)(C).

7.13.2 Disbursements from the SGIP Proceeds Account. Each time that Borrower sends an invoice under the Wal-Mart Power Purchase Agreement, Borrower shall submit a set of Account Withdrawal Documents to Administrative Agent, which Account Withdrawal Documents shall request Administrative Agent to direct Collateral Agent to direct Depositary to apply an amount on deposit in the SGIP Proceeds Account equal to the “Forecasted SGIP Credit” under Section 6.8 of the Wal-Mart Power Purchase Agreement that is included, allocated, credited or otherwise referable to the Fuel Cell Services payment (as defined in the Wal-Mart Power Purchase Agreement) on such invoice into the Revenue Account.

7.13.3 Release of Funds from SGIP Proceeds Account. In the event that the balance of the SGIP Proceeds Account at any time after the end of the Availability Period exceeds the aggregate “Forecasted SGIP Credits” (under Section 6.8 of the Wal-Mart Power Purchase Agreement) remaining to be credited, based on generation of energy at the baseload capacity for System Facilities in the Wal-Mart Project multiplied by [***], during the remaining term of the Wal-Mart Power Purchase Agreement, then the Administrative Agent shall direct Collateral Agent to direct Depositary to transfer such excess to the Revenue Account.

[***] Confidential Treatment Requested

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ARTICLE 8

EVENTS OF DEFAULT; REMEDIES

8.1 Events of Default. The occurrence of any of the following events shall constitute an event of default (each, an “Event of Default”) hereunder:

8.1.1 Failure to Make Payments. Borrower shall fail to pay, in accordance with the terms of this Agreement (a) any principal on any Loan on the date that such sum is due or (b) any interest on any Loan or any other amount payable hereinafter within 3 days after the date such sum is due.

8.1.2 Bankruptcy; Insolvency. Any Bankruptcy Event shall occur with respect to any Major Project Participant so long it shall have any material outstanding or unperformed obligations under any Operative Document to which it is a party.

8.1.3 Defaults Under Other Debt. Borrower shall default for a period beyond any applicable grace period (not to exceed 30 days) (a) in the payment of any principal, interest or other amount due under any agreement or instrument involving Debt (other than the Debt hereunder) and the aggregate principal amount of any such agreement or instrument equals or exceeds $500,000, (b) in the observance or performance of any other agreement or condition relating to such Debt or contained in any agreement or instrument evidencing, securing or relating thereto, or any other event shall occur or condition exist, the effect of which default, event or condition is to cause, or to permit any holder of such Debt (or a trustee or agent of such holder or beneficiary) to cause, such Debt to become or be declared due and payable prior to its stated maturity or the stated maturity of any underlying obligation, as the case may be (upon the giving or receiving of notice, lapse of time, both, or otherwise) or (c) any such Debt shall be declared to be due and payable, or required to be prepaid or redeemed (other than by a regularly scheduled required prepayment or redemption), purchased or defeased, or an offer to prepay, redeem, purchase or defease such Debt shall be required to be made, in each case prior to the stated maturity thereof.

8.1.4 Judgments. A final judgment or order for the payment of money shall be entered against Borrower in the amount of $500,000 or more individually or in the aggregate, other than, in each case, a judgment or order, (i) which is fully covered by insurance and the insurer has been notified of, and has admitted in writing the claim made for the payment of, the amount of such judgment or order, (ii) which is vacated, stayed, discharged within 30 days after its entry. Any non-monetary judgment or order shall be entered against Borrower that could reasonably be expected to have a Material Adverse Effect other than a judgment or order which is discharged within 30 days after its entry.

8.1.5 ERISA. If any Credit Party or any ERISA Affiliate should establish, maintain, contribute to or become obligated to contribute to any ERISA Plan and (a) a Reportable Event (under Section 4043(b) or (c) of ERISA for which notice to the PBGC is not waived) shall have occurred with respect to any ERISA Plan and, within 30 days after the reporting of such Reportable Event to Administrative Agent by Borrower (or Administrative Agent otherwise obtaining knowledge of such event) and the furnishing of such information as Administrative Agent may reasonably request with respect thereto, Administrative Agent shall

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have notified Borrower that (i) Administrative Agent or Required Lenders has made a determination that, on the basis of such Reportable Event, there are reasonable grounds for the termination of such ERISA Plan by the PBGC or for the PBGC to ask for the appointment by the appropriate United States District Court of a trustee to administer such ERISA Plan and (ii) as a result thereof, an Event of Default exists hereunder; or (b) a trustee shall be appointed by a United States District Court to administer any ERISA Plan; or (c) the PBGC shall institute proceedings to terminate or administer any ERISA Plan; or (d) a complete or partial withdrawal by Borrower or any ERISA Affiliate from any Multiemployer Plan shall have occurred and, within 30 days after the reporting of any such occurrence to Administrative Agent by Borrower (or Administrative Agent otherwise obtaining knowledge of such event) and the furnishing of such information as Administrative Agent or Required Lenders may reasonably request with respect thereto, Administrative Agent shall have notified Borrower that Administrative Agent has made a determination that, on the basis of such occurrence, a Default or Event of Default exists hereunder; provided, that any of the events described in this Section 8.1.5 shall not result in an Event of Default unless they result in joint liability to Borrower and all ERISA Affiliates in excess of $500,000.

8.1.6 Ownership of Projects. Borrower shall cease to be the sole owner of the Projects, except for any System Facilities sold to (i) Sponsor in accordance with the MESPA or the MOMA, as applicable, (ii) Pacific Bell Telephone Company in accordance with the AT&T Power Purchase Agreement, (iii) Pacific Bell Telephone Company or AT&T Corp. under any Supplemental AT&T Power Purchase Agreement or (iv) Wal-Mart Stores, Inc. in accordance with the Wal-Mart Power Purchase Agreement.

8.1.7 Breach of Terms of Agreement.

(a) Defaults Without Cure Periods. Borrower shall fail to perform or observe any of the covenants set forth in Section 5.1, 5.4, 5.9(a), 5.14.5 or 5.15.1 or Article 6 of this Agreement.

(b) Defaults With 15 Day Cure Periods. Borrower shall fail to perform or observe any of the covenants set forth in Article 5 of this Agreement (other than in Sections of such Articles specifically listed in Section 8.1.7(a)), and such failure shall continue unremedied for a period of 15 days after the earlier of Borrower (i) becoming aware thereof or (ii) receiving notice thereof from Administrative Agent.

(c) Other Defaults. Any Credit Party shall fail to perform or observe any of the agreements set forth herein or in any Credit Document not otherwise specifically provided for in Section 8.1.7(a), Section 8.1.7(b) or elsewhere in this Article 8, and such failure shall continue unremedied for a period of 30 days after the earlier of Borrower becomes aware thereof or receives notice thereof from Administrative Agent; provided, that, if (i) such failure does not consist principally of the failure to pay money and cannot be cured within such 30 day period, (ii) such failure is susceptible of cure within 90 days, (iii) such Credit Party is proceeding with diligence and in good faith to cure such failure, (iv) the existence of such failure has not had and could not, after considering the nature of the cure, be reasonably expected to have a Material Adverse Effect, and (v) Administrative Agent shall have received an officer’s certificate signed by a Responsible Officer to the effect of clauses (i), (ii), (iii) and (iv) above and stating what

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action such Credit Party is taking to cure such failure, then such 30-day cure period shall be extended to such date, not to exceed a total of 90 days, as shall be necessary for such Credit Party diligently to cure such failure.

8.1.8 Loss of Collateral. (a) All or any material portion of the Collateral is damaged, seized or appropriated without appropriate Insurance Proceeds or without fair value being paid therefor so as to allow replacement of such Collateral or prepayment of Loans as provided herein and to allow Borrower to continue satisfying its obligations hereunder and under the other Operative Documents, or (b) any Person other than Collateral Agent attaches or institutes proceedings to attach all or any material part of the Collateral, and any such proceeding or attachment or any judgment Lien against any such Collateral (i) remains unlifted, unstayed or undischarged for a period of 30 days.

8.1.9 Abandonment. At any time Borrower shall announce that (i) it is abandoning any Project or any material portion thereof or (ii) any Project or any material portion thereof shall be abandoned or operation thereof shall be suspended for a period of more than 30 consecutive days for any reason (other than force majeure); provided, that none of (A) scheduled maintenance of such Project, (B) repairs to such Project, whether or not scheduled, or (C) a scheduled outage of such Project, shall constitute abandonment or suspension of such Project, so long as Borrower is diligently attempting to end such suspension.

8.1.10 Security. Any of the Collateral Documents, once executed and delivered, shall fail to provide to Collateral Agent the Liens, first priority security interest (subject as to priority to Permitted Liens to the extent expressly permitted hereby), rights, titles, interest, remedies permitted by law, powers or privileges intended to be created thereby (including the priority intended to be created thereby) or, except in accordance with its terms, cease to be in full force and effect, or the first priority or validity thereof or the applicability thereof to the Loans, the Notes (if any) or any other Obligations purported to be secured or guaranteed thereby or any part thereof shall be disaffirmed, challenged or sought to be invalidated by or on behalf of Borrower or any Affiliate of Borrower.

8.1.11 Loss of or Failure to Obtain Applicable Permits.

(a) Borrower shall fail to obtain any Permit on or before the date that such Permit becomes an Applicable Permit with respect to a Project, and such failure shall continue for 45 days after such date.

(b) Any Applicable Permit shall be materially modified (other than modifications contemplated in a Project Document requested by Borrower), revoked, canceled or not renewed by the issuing agency or other Governmental Authority having jurisdiction (or otherwise ceases to be in full force and effect) and within 45 days thereafter Borrower is not able to demonstrate to the reasonable satisfaction of the Required Lenders that after giving effect to such modification, revocation, cancellation, failure to renew, or failure to maintain in full force and effect, such Permit is no longer an Applicable Permit.

8.1.12 Credit Document Matters. At any time after the execution and delivery thereof, (a) any Credit Document or any material provision hereof or thereof (i) ceases to be in

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full force and effect or to be valid and binding on any party thereto other than a Secured Party (other than by reason of the satisfaction in full of the Obligations or any termination of a Credit Document in accordance with the terms hereof or thereof), or is assigned or otherwise transferred (except as otherwise required or expressly permitted hereunder or thereunder) or is prematurely terminated by any party thereto (other than a Secured Party), (ii) is or becomes invalid, illegal or unenforceable, or any party hereto or thereto (other than a Secured Party) repudiates or disavows or takes any action to challenge the validity or enforceability of such agreement, (iii) is declared null and void by a Governmental Authority of competent jurisdiction, or (iv) fails to or ceases to provide the rights, powers and privileges purported to be created thereby or hereby, or (b) any authorization or approval by any Governmental Authority necessary to enable any Credit Party to comply with or perform its obligations or otherwise perform in accordance with the terms of the Credit Documents shall be revoked, withdrawn or withheld, or shall otherwise fail to be issued or remain in full force and effect.

8.1.13 Misstatements; Omissions. Any representation or warranty made or deemed made by any Credit Party in any Credit Document to which such Person is a party, or in any separate statement, certificate or document delivered to any Secured Party under any Credit Document to which such Person is a party, proves to have been untrue, false or misleading in any material respect as of the time made, deemed made, confirmed or furnished.

8.1.14 Project Document Matters.

(a) Borrower Defaults. Borrower shall be in breach of, or in default of, any material obligation under a Major Project Document that is not otherwise waived by the counterparty of such Major Project Document and such breach or default shall not be remediable or, if remediable, shall continue unremedied for the lesser of (i) a period of 30 days or (ii) such period of time under such Major Project Document which Borrower has available to it in which to remedy such breach or default.

(b) Third Party Defaults. Any Person other than Borrower shall be in breach of, in default under a material obligation under, or repudiate or disavow, a Major Project Document and such breach or default shall not be remediable or, if remediable, shall continue unremedied for a period beyond the applicable grace period.

(c) Termination. At any time after the execution and delivery thereof, (a) any Major Project Document or any material provision hereof or thereof (i) ceases to be in full force and effect or to be valid and binding on any party thereto (other than by reason of the satisfaction of performance of such agreement or provision or any other any termination thereof in accordance with the terms thereof), or is assigned or otherwise transferred (except as otherwise required or expressly permitted hereunder or thereunder) or is prematurely terminated by any party thereto, (ii) is or becomes invalid, illegal or unenforceable, or any party hereto or thereto repudiates or disavows or takes any action to challenge the validity or enforceability of such agreement, (iii) is declared null and void by a Governmental Authority of competent jurisdiction or written notice is given by any Governmental Authority or applicable counterparty contesting the validity or enforcement thereof, or (iv) fails to or ceases to provide the rights, powers and privileges purported to be created thereby or hereby.

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8.1.15 Change of Control. (a) There shall be any Change of Control or (b) Sponsor or an Affiliate of Sponsor shall cease being Borrower’s counterparty under either the MESPA, MOMA or, except as contemplated by Section 5.22, Administrative Services Agreement, whether or not permitted by any such agreement.

8.1.16 Eminent Domain. There shall have occurred any act or series of acts attributable to any Governmental Authority which (a) in the reasonable judgment of Administrative Agent has the effect of depriving the Secured Parties of their fundamental rights as secured creditors in respect of any Collateral, (b) confiscates, expropriates, nationalizes or otherwise acquires compulsorily the ownership or control by the Borrower of all or any material part of any Project, or (c) in the reasonable judgment of Administrative Agent has the effect of materially impairing the value of any Major Project Document, and, in each case, such act or series of acts continues uncured for 60 days or more.

8.2 REMEDIES. Upon the occurrence and during the continuation of an Event of Default, the Administrative Agent may (and at the direction of Required Lender shall), without further notice of default, presentment or demand for payment, protest or notice of non-payment or dishonor, or other notices or demands of any kind, all such notices and demands (other than notices required by the Credit Documents) being waived, exercise any or all of the following rights and remedies, in any combination or order, in addition to such other rights or remedies as the Secured Parties may have hereunder, under the Collateral Documents or at law or in equity:

8.2.1 No Further Loans. Declare all Loan Commitments cancelled, and Administrative Agent and the Lenders shall not be obligated to continue any Loans, make any additional Loans, or make any payments, or permit the making of payments, from any Account or any Insurance Proceeds or Eminent Domain Proceeds or other funds held by the Depository, Administrative Agent or Collateral Agent or any Lender under the Credit Documents or on behalf of Borrower; provided, that in the case of an Event of Default occurring under Section 8.1.2 with respect to Borrower, all such Loan Commitments shall be cancelled and terminated without further act of any Secured Party.

8.2.2 Cure by Agents. Without any obligation to do so, make disbursements or Loans to or on behalf of Borrower or disburse amounts from the Construction Account or any other Account to cure (a) any Default or Event of Default and (b) any default and render any performance under any Project Document as the Required Lenders in their sole discretion may consider necessary or appropriate, whether to preserve and protect the Collateral or the Secured Parties’ interests therein or for any other reason. All sums so expended through new Loans, together with interest on such total amount at the Default Rate (but in no event shall the rate exceed the maximum lawful rate), shall be repaid by Borrower to Administrative Agent or Collateral Agent, as the case may be, on demand and shall be secured by the Credit Documents, notwithstanding that such expenditures may, together with amounts advanced under this Agreement, exceed the aggregate amount of the Loan Commitments.

8.2.3 Acceleration. Declare and make all or any portion of the Obligations (including the Make Whole Amount), immediately due and payable and require Borrower immediately, without presentment, demand, protest or other notice of any kind, all of which Borrower hereby expressly waives, to pay Administrative Agent or the Secured Parties an

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amount in immediately available funds equal to the aggregate amount of any outstanding Obligations; provided, that, in the event of an Event of Default occurring under Section 8.1.2 with respect to Borrower, all such amounts shall become immediately due and payable and all Loan Commitments shall terminate without further act of any Secured Party.

8.2.4 Cash Collateral. Apply or execute upon any amounts on deposit in any Account or any Insurance Proceeds or Eminent Domain Proceeds, Cash Collateral, proceeds of foreclosing or otherwise realizing upon Collateral, or any other moneys of Borrower on deposit with any Secured Party in the manner provided the Credit Documents, in the UCC and other relevant statutes and decisions and interpretations thereunder with respect to cash collateral. Without limiting the foregoing, each of Administrative Agent and Collateral Agent shall have all rights and powers with respect to Insurance Proceeds, Eminent Domain Proceeds, Cash Collateral, the Accounts and the contents of the Accounts as it has with respect to any other Collateral and may apply, or cause the application of, such amounts to the payment of interest, principal, fees, costs, charges or other amounts due or payable to any Secured Party with respect to the Loans in such order as the Required Lenders may elect in their sole discretion.

8.2.5 Possession of Projects. Enter into possession of the Projects and perform any and all work and labor necessary to operate and maintain the Projects, and all sums expended by Administrative Agent, Collateral Agent or Depositary in so doing, together with interest on such total amount at the Default Rate, shall be repaid by Borrower to Administrative Agent, Collateral Agent or Depositary, as the case may be, upon demand and shall be secured by the Credit Documents, notwithstanding that such expenditures may, together with amounts advanced under this Agreement, exceed the aggregate amount of the Loan Commitments.

8.2.6 Remedies Under Credit Documents. Exercise any and all rights and remedies available to it under any of the Credit Documents, including judicial or non-judicial foreclosure or public or private sale of any of the Collateral pursuant to the Collateral Documents.

ARTICLE 9

SCOPE OF LIABILITY

Except as set forth in this Article 9, notwithstanding anything in any Credit Document to the contrary, the Secured Parties shall have no recourse or claims against Holdings, Sponsor or any of their respective Affiliates (other than Borrower), shareholders, officers, directors or employees (collectively, the “Nonrecourse Persons”) with respect to the Obligations and the Secured Parties’ recourse against any Nonrecourse Person shall be limited to the Collateral, the Projects, all Project Revenues, all Loan proceeds, Insurance Proceeds, Eminent Domain Proceeds, and all income or revenues of the foregoing as and to the extent provided for herein and in the Collateral Documents (which, for the avoidance of doubt, excludes the payments allowed to any Nonrecourse Person pursuant to the terms of any Credit Documents); provided, that the foregoing provision of this Article 9 shall not in any way (a) constitute a waiver, release or discharge of any of the indebtedness, or of any of the terms, covenants, conditions, or provisions of any Credit Document (and the same shall continue, but without personal liability to the Nonrecourse Persons, until fully paid, discharged, observed, or performed) or otherwise relieve any such Person from its obligations under the Credit

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Documents to which it is a party or shall preclude, restrict, reduce, limit or otherwise affect the rights, powers and remedies of the Secured Parties to enforce (or cause to be enforced) such obligations against such Person or such Person’s properties to the extent permitted by any Credit Document to which it is a party; (b) limit, reduce, restrict or otherwise affect the right of any Secured Party (or any assignee, beneficiary or successor to any of them) to name Borrower or any other Person as a defendant in any action or suit for a judicial foreclosure or for the exercise of any other remedy under or with respect to any Credit Document, or for injunction or specific performance, so long as no judgment in the nature of a deficiency judgment shall be enforced against any Nonrecourse Person, except as set forth in this Article 9; (c) limit, reduce, restrict or otherwise affect any right or remedy of any Secured Party (or any assignee or beneficiary thereof or successor thereto) with respect to, and each of the Nonrecourse Persons shall remain fully liable to the extent that it would otherwise be liable for its own actions with respect to, any fraud, willful misrepresentation (which shall not include innocent or negligent misrepresentation), or misappropriation of Project Revenues, Loan proceeds, Insurance Proceeds, Eminent Domain Proceeds or any other earnings, revenues, rents, issues, profits or proceeds from or of the Collateral, that should or would have been paid as provided herein or paid or delivered to any Secured Party (or any assignee or beneficiary thereof or successor thereto) towards any payment required under any other Credit Document; (d) affect or diminish or constitute a waiver, release or discharge of any specific written obligation, covenant, representation, or agreement in respect of the transactions contemplated by the Operative Documents made by any of the Nonrecourse Persons or any security granted by the Nonrecourse Persons in support of the obligations of such Persons under any Collateral Document (or as security for the obligations of Borrower), including Holdings’ obligations, covenants, representations and agreements under the Pledge Agreement; nor (e) limit the liability of (i) any Person who is a party to any Project Document or has issued any certificate or other statement in connection therewith with respect to such liability as may arise solely by reason of the terms and conditions of such Project Document (but subject to any limitation of liability in such Project Document), certificate or statement, or (ii) any Person rendering a legal opinion pursuant to this Agreement, in each case under this clause (e) relating solely to such liability of such Person as may arise under such referenced agreement, instrument or opinion. The limitations on recourse set forth in this Article 9 shall survive Termination.

ARTICLE 10

AGENTS; SUBSTITUTION

10.1 Appointment and Authority.

10.1.1 Each of the Secured Parties hereby irrevocably appoints PE12GVVC (Bloom PPA) Ltd. as Administrative Agent and Deutsche Bank Trust Company Americas as Collateral Agent hereunder, in each case to act on its behalf and under the other Credit Documents and authorizes Administrative Agent and Collateral Agent to take such actions on its behalf and to exercise such powers as are delegated to Administrative Agent and Collateral Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Secured Parties, and neither Borrower nor any other Credit Party shall have rights as a third-party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other Credit Documents (or any other similar term) with reference to Administrative Agent

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and Collateral Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.

10.1.2 Each of Administrative Agent and Collateral Agent is hereby authorized by the Secured Parties to execute, deliver and perform each of the Credit Documents to which Administrative Agent or Collateral Agent (as the case may be) is or is intended to be a party, and each Secured Party agrees to be bound by all of the agreements of Administrative Agent and Collateral Agent contained in the Credit Documents. Each of Administrative Agent and Collateral Agent is further authorized by the Secured Parties to enter into agreements supplemental hereto for the purpose of curing any technical or minor defect, inconsistency, omission or ambiguity in any Credit Document to which it is a party.

10.2 Rights as a Lender. The Persons serving as Administrative Agent and Collateral Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not Administrative Agent or Collateral Agent, and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as Administrative Agent and Collateral Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for, and generally engage in any kind of business with, Borrower or any Affiliate thereof as if such Person were not Administrative Agent or Collateral Agent hereunder and without any duty to account therefor to the Lenders.

10.3 Exculpatory Provisions.

10.3.1 Administrative Agent and Collateral Agent shall not have any duties or obligations except those expressly set forth herein and in the other Credit Documents. Without limiting the generality of the foregoing, Administrative Agent and Collateral Agent:

(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or Event of Default has occurred and is continuing;

(b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Credit Documents that Administrative Agent or Collateral Agent is required to exercise as directed by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Credit Documents); provided that Administrative Agent and Collateral Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose Administrative Agent or Collateral Agent, as the case may be, to liability or that is contrary to any Credit Document or applicable law, including for the avoidance of doubt any action that may be in violation of the automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law; and

(c) shall not, except as expressly set forth herein and in the other Credit Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as Administrative Agent, Collateral Agent or any of their respective Affiliates in any capacity.

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Notwithstanding anything else to the contrary herein, whenever reference is made in this Agreement to any discretionary action by, consent, designation, specification, requirement or approval of, notice, request or other communication from, or other direction given or action to be undertaken or to be (or not to be) suffered or omitted by the Collateral Agent or to any election, decision, opinion, acceptance, use of judgment, expression of satisfaction or other exercise of discretion, rights or remedies to be made (or not to be made) by the Collateral Agent, it is understood that in all cases the Collateral Agent shall be fully justified in failing or refusing to take any such action under this Agreement if it shall not have received such written instruction, advice or concurrence of the Administrative Agent (acting in accordance with this Agreement and the other Credit Documents), as it deems appropriate. This provision is intended solely for the benefit of the Collateral Agent and its successors and permitted assigns and is not intended to and will not entitle the other parties hereto to any defense, claim or counterclaim, or confer any rights or benefits on any party hereto.

10.3.2 Administrative Agent and Collateral Agent shall not be liable for any action taken or not taken by it (a) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as Administrative Agent or Collateral Agent, as the case may be, shall believe in good faith shall be necessary, under the circumstances as provided in Sections 12.18 and 8.2) or (b) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and non-appealable judgment. Administrative Agent and Collateral Agent shall be deemed not to have knowledge of any Default, Event of Default or Material Adverse Effect unless and until written notice describing such is given to Administrative Agent or Collateral Agent, as the case may be, by Borrower or a Lender.

10.3.3 Administrative Agent and Collateral Agent shall not be responsible for or have any duty to ascertain or inquire into (a) any statement, warranty or representation made in or in connection with any Credit Document, (b) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (c) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (d) the validity, enforceability, effectiveness or genuineness of any Credit Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (e) the value or the sufficiency of any Collateral, or (f) the satisfaction of any condition set forth in Article 3 or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to Administrative Agent or Collateral Agent, as the case may be.

10.4 Reliance. Administrative Agent and Collateral Agent shall be entitled to conclusively rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic

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message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. Administrative Agent and Collateral Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to a Credit Event, that by its terms must be fulfilled to the satisfaction of a Lender, Administrative Agent and Collateral Agent may presume that such condition is satisfactory to such Lender unless Administrative Agent or Collateral Agent shall have received notice to the contrary from such Lender prior to such Credit Event. Administrative Agent and Collateral Agent may consult with legal counsel (who may be counsel for Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

10.5 Delegation of Duties. Administrative Agent and Collateral Agent may perform any and all of their respective duties and exercise their respective rights and powers hereunder or under any other Credit Document by or through any one or more sub-agents appointed by Administrative Agent or Collateral Agent, as the case may be. Administrative Agent, Collateral Agent and any such sub-agent may perform any and all of their respective duties and exercise their respective rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of Administrative Agent, Collateral Agent and any such sub-agent, and shall apply to their respective activities as Administrative Agent and Collateral Agent. Administrative Agent and Collateral Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and non appealable judgment that Administrative Agent or Collateral Agent, as the case may be, acted with gross negligence or willful misconduct in the selection of such sub-agents.

10.6 Resignation.

10.6.1 Administrative Agent or Collateral Agent may at any time give notice of its resignation to the Secured Parties and Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right, in consultation with Borrower, to appoint a successor, which shall be a bank with an office in the United States, or an Affiliate of any such bank with an office in the United States; provided such successor is not a Prohibited Party. If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent or Collateral Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “Resignation Effective Date”), then the retiring Administrative Agent or Collateral Agent, as the case may be, may (but shall not be obligated to), on behalf of the Secured Parties, appoint a successor Administrative Agent or Collateral Agent meeting the qualifications set forth above or, at the Borrower’s expense, petition a court of competent jurisdiction for the appointment of a successor Administrative Agent or Collateral Agent, as applicable. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.

10.6.2 [Reserved]

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10.6.3 With effect from the Resignation Effective Date or the Removal Effective Date (as applicable) (a) the retiring or removed Administrative Agent or Collateral Agent shall be discharged from its duties and obligations hereunder and under the other Credit Documents (except that in the case of any collateral security held by Collateral Agent on behalf of the Secured Parties under any of the Credit Documents, the retiring or removed Collateral Agent shall continue to hold such collateral security until such time as a successor Collateral Agent is appointed) and (b) except for any indemnity payments and outstanding fees owed to the retiring or removed Administrative Agent or Collateral Agent, all payments, communications and determinations provided to be made by, to or through Administrative Agent or Collateral Agent, as the case may be, shall instead be made by or to each Secured Party directly, until such time, if any, as the Required Lenders appoint a successor Administrative Agent or Collateral Agent as provided for above. Upon the acceptance of a successor’s appointment as Administrative Agent or Collateral Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring or removed Administrative Agent or Collateral Agent, as the case may be (other than any rights to indemnity payments owed to the retiring or removed Administrative Agent or Collateral Agent), and the retiring or removed Administrative Agent or Collateral Agent shall be discharged from all of its duties and obligations hereunder or under the other Credit Documents. The fees payable by Borrower to a successor Administrative Agent or Collateral Agent shall be the same as those payable to its predecessor unless otherwise agreed between Borrower and such successor. After the retiring or removed Administrative Agent’s or Collateral Agent’s resignation or removal hereunder and under the other Credit Documents, the provisions of this Article and Section 12.4 shall continue in effect for the benefit of such retiring or removed Administrative Agent and Collateral Agent, their sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent or Collateral Agent was acting as such hereunder. Administrative Agent and Collateral Agent shall have no liability or responsibility for the action or inaction of any successor Administrative Agent or Collateral Agent.

10.7 Non-Reliance. Each Lender acknowledges that it has, independently and without reliance upon Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender also acknowledges that it will, independently and without reliance upon Administrative Agent or any other Lender or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Credit Document or any related agreement or any document furnished hereunder or thereunder.

10.8 Administrative Agent May File Proofs of Claim.

10.8.1 In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Credit Party, Administrative Agent (irrespective of whether the principal of any Loan shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether Administrative Agent shall have made any demand on Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:

(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans and all other Obligations that are owing and unpaid to the Secured Parties under the Credit Documents and to file such other documents as may be necessary or advisable in order to have the claims of the Secured Parties (including any claim for the reasonable compensation, expenses, disbursements and advances of the Secured Parties and their respective agents and counsel and all other amounts due the Secured Parties under Sections 2.3 and 12.4) allowed in such judicial proceeding; and

(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;

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and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Secured Party to make such payments to Administrative Agent and, if Administrative Agent shall consent to the making of such payments directly to the Secured Parties, to pay to Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of Administrative Agent and its agents and counsel, and any other amounts due Administrative Agent hereunder.

10.8.2 Nothing contained herein shall be deemed to authorize Administrative Agent to authorize or consent to or accept or adopt on behalf of any Secured Party any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Secured Party to authorize Administrative Agent to vote in respect of the claim of any Secured Party or in any such proceeding.

10.9 Collateral Matters.

10.9.1 The Secured Parties irrevocably authorize Collateral Agent to release any Lien (at the Borrower’s cost) on any property granted to or held by Collateral Agent under any Collateral Document (a) upon Termination, (b) that is sold or otherwise disposed of or to be sold or otherwise disposed of as part of or in connection with any sale or other disposition permitted under any Credit Document, or (c) if approved, authorized or ratified in accordance herewith.

10.9.2 Collateral Agent shall not be responsible for or have a duty to ascertain or inquire into any representation or warranty regarding the existence, value or collectability of the Collateral, the existence, priority or perfection of Collateral Agent’s Lien thereon, or any certificate prepared by any Credit Party in connection therewith, nor shall Collateral Agent be responsible or liable to the Secured Parties for any failure to monitor or maintain any portion of the Collateral.

10.10 Indemnification. Without limiting the Obligations of Borrower, each Lender agrees to indemnify the Collateral Agent and Administrative Agent and their respective officers, directors, shareholders, controlling Persons, employees, agents and servants, ratably in accordance with their Proportionate Share of the Loan Commitments for any and all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which may at any time be imposed on, incurred by or asserted against Administrative Agent, Collateral Agent or such Person in any way relating to or arising out of this Agreement or any documents contemplated by or referred to herein or

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therein or the transactions contemplated hereby or thereby or the enforcement of any of the terms hereof or thereof or of any such other documents in respect of actions taken by such Persons in their respective capacities as Collateral Agent and Administrative Agent or officers, directors, shareholders, controlling Persons, employees, agents and servants thereof (to the extent Borrower has not paid any such amounts pursuant to Section 12.4); provided that no Lender shall be liable for any of the foregoing to the extent they arise from Administrative Agent’s, Collateral Agent’s or any such Person’s gross negligence or willful misconduct as determined by the non-appealable judgment of a court of competent jurisdiction. Administrative Agent, Collateral Agent or any such Person shall be fully justified in refusing to take or to continue to take any action under any Credit Document unless it shall first be indemnified to its satisfaction by the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Without limitation of the foregoing, each Lender agrees to reimburse Administrative Agent, Collateral Agent or any such Person promptly upon demand for its Proportionate Share of any out-of-pocket expenses (including counsel fees) incurred by Administrative Agent, Collateral Agent or any such Person in connection with the preparation, execution, administration or enforcement of, or legal advice in respect of rights or responsibilities under, the Operative Documents, to the extent that Administrative Agent, Collateral Agent or any such Person is not reimbursed for such expenses by Borrower. The agreements in this Section shall survive the satisfaction or discharge of Borrower’s Obligations under the Credit Documents and the resignation or removal of Administrative Agent or Collateral Agent.

10.11 Withholding Tax. If the forms or other documentation required by Section 2.4.4(f) are not delivered to Administrative Agent, then Administrative Agent may withhold from any interest payment to any Lender not providing such forms or other documentation, an amount equivalent to the applicable withholding tax.

10.11.1 If the Internal Revenue Service or any other Governmental Authority asserts a claim that Administrative Agent did not properly withhold Tax from amounts paid to or for the account of any Lender (because the appropriate form was not delivered, was not properly executed, or fails to establish an exemption from, or reduction of, withholding Tax with respect to a particular type of payment, or because such Lender failed to notify Administrative Agent of a change in circumstances which rendered the exemption from, or reduction of, withholding Tax ineffective, or for any other reason), or Administrative Agent reasonably determined that it was required to withhold Taxes from a prior payment but failed to do so, then such Lender shall promptly indemnify Administrative Agent fully for all amounts paid, directly or indirectly, by Administrative Agent as Tax or otherwise, including penalties and interest, together with all expenses incurred, including legal expenses, allocated staff costs, and any out of pocket expenses. Administrative Agent may offset against any payment to any Lender under any Credit Document, any applicable withholding Tax that was required to be withheld from any prior payment to such Lender but which was not so withheld, as well as any other amounts for which Administrative Agent is entitled to indemnification under this Section 10.11.

10.11.2 If any Lender sells, assigns, grants participation in, or otherwise transfers its rights under this Agreement, the purchaser, assignee, Participant or transferee, as applicable, shall comply and be bound by the terms of Section 2.4.4(f) and this Section 10.11 as though it were such Lender.

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10.12 General Provisions as to Payments. Administrative Agent shall promptly distribute to each Lender, subject to the terms of any separate agreement between Administrative Agent and such Lender, its pro rata share of each payment of principal and interest payable to the Lenders on the Loans and of fees hereunder received by Administrative Agent for the account of the Lenders and of any other amounts owing under the Loans. The payments made for the account of each Lender shall be made, and distributed to it, at its Lending Office for the account of (a) its domestic lending office in the case of payments of principal of, and interest on, its Base Rate Loans, (b) its domestic or foreign lending office, as each Lender may designate to Administrative Agent, in the case of Eurodollar Loans, and (c) its domestic lending office, or such other lending office as it may designate for the purpose from time to time, in the case of payments of fees and other amounts payable hereunder. Lenders shall have the right to alter their Lending Offices upon five Business Days’ prior notice to Administrative Agent and Borrower.

10.13 Delivery of Copies to Lenders. If requested, Administrative Agent shall promptly deliver or make available to each Lender copies (which may be delivered via email intranet or internet) of any financial statements, notices, reports, plans, budgets or other documents received by Administrative Agent from or on behalf of Borrower pursuant to Section 5.4 (Notices), Section 5.5 (Financial Reporting), Section 5.8 (Reports), Section 5.12 (Construction of the Projects) and Section 5.13 (Operation and Maintenance of Projects; Operating Budget), as applicable, and such other documents and other information available to Administrative Agent as may be reasonably requested by any Lender.

ARTICLE 11

INDEPENDENT CONSULTANTS

11.1 Removal and Fees. Administrative Agent, in consultation with the Required Lenders, may remove from time to time, any one or more of the Independent Consultants and appoint replacements as Administrative Agent, in consultation with the Required Lenders, may choose; provided such replacement is not a Prohibited Party. Notice of any replacement Independent Consultant shall be given by Administrative Agent to Borrower, the Lenders and to the Independent Consultant being replaced. All reasonable fees and expenses of the Independent Consultants (whether the original ones or replacements) shall be paid by Borrower pursuant to agreements reasonably acceptable to Borrower; provided, that no such acceptance shall be required at any time an Event of Default shall have occurred and be continuing.

11.2 Duties. Each Independent Consultant shall be contractually obligated to Administrative Agent to carry out the activities required of it in this Agreement and as otherwise requested by Administrative Agent and shall be responsible solely to Administrative Agent. Borrower acknowledges that it will not have any cause of action or claim against any Independent Consultant resulting from any decision made or not made, any action taken or not taken or any advice given by such Independent Consultant in the due performance in good faith of its duties to Administrative Agent.

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11.3 Independent Consultants’ Certificates.

11.3.1 Until the receipt by Administrative Agent of certificates satisfactory to Administrative Agent from each Independent Consultant whom Administrative Agent considers necessary or appropriate certifying Completion, Borrower shall provide such documents and information to the Independent Consultants as any of the Independent Consultants may reasonably consider necessary in order for the Independent Consultants to deliver to Administrative Agent the following certificates:

(a) certificates of the Insurance Consultant and Independent Engineer delivered on and dated on or prior to the Initial Funding Date as described in Sections 3.2.15 and 3.2.16, respectively, and containing the matters set out therein;

(b) after the Closing Date, all certificates to be delivered thereafter pursuant to this Agreement; and

(c) [Reserved];

11.3.2 Following Completion, Borrower shall provide such documents and information to the Independent Consultants as they may reasonably consider necessary in order for (i) the Independent Consultants to deliver to Administrative Agent any certificates expressly required to be delivered by the Independent Consultant under this Agreement or (ii) Administrative Agent to consult with the Independent Consultants as contemplated by this Agreement.

11.4 Certification of Dates. Administrative Agent will request that the Independent Consultants act diligently in the issuance of all certificates required to be delivered by the Independent Consultants hereunder, if their issuance is appropriate. Borrower shall provide the Independent Consultants with reasonable notice of the expected occurrence of any such dates or events.

11.5 Professional Services Agreements. Administrative Agent, Collateral Agent or one or more of the Lenders may have entered into professional services agreements with Independent Consultants. The Secured Parties acknowledge that such professional services agreements may contain limitations of liability or other restrictions binding on the Secured Parties.

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ARTICLE 12

MISCELLANEOUS

12.1 Notices; Signatures.

12.1.1 Notices Generally. Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in Section 12.1.2), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile or electronic mail as follows:

If to Administrative Agent:	PE12GVVC (Bloom PPA) Ltd.
	c/o Alberta Investment Management Corp.
	1100 – 10830 Jasper Avenue
	Edmonton, AB T5J 2B3
	Canada
	Attn: [***]
	E-mail: [***]
If to Collateral Agent:	Deutsche Bank Trust Company Americas
	60 Wall Street, MS NYC60-2715
	New York, New York 10005-2858
	Attn: Trust and Agency Services
	Facsimile: [***]
	E-mail: [***]
If to Borrower:	2012 ESA Project Company, LLC
	1299 Orleans Drive
	Sunnyvale, CA 94089
	Attn: [***]
	Facsimile:

If to PE12PXVC (Bloom PPA) Ltd. or PE12GVVC (Bloom PPA) Ltd., as a Lender, to the address and care of Administrative Agent. If to any other Lender, to it at its address (or facsimile number) set forth in its Administrative Questionnaire.

Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next business day for the recipient). Notices delivered through electronic communications, to the extent provided in Section 12.1.2, shall be effective as provided therein.

12.1.2 Electronic Communications.

(a) Notices and other communications to the Secured Parties hereunder may be delivered or furnished by electronic communication (including email and Internet or intranet websites) pursuant to procedures approved by Administrative Agent, provided that the foregoing shall not apply to notices to any Lender pursuant to Article 2 if such Lender has notified Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. Administrative Agent or Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.

(b) Unless Administrative Agent otherwise prescribes, (i) notices and other communications sent to an email address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt

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requested” function, as available, return email or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient, at its email address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.

12.1.3 Change of Address, etc. Any party hereto may change its address or facsimile number for notices and other communications hereunder by written notice to the other parties hereto.

12.2 Additional Security; Right to Set-Off.

12.2.1 Any deposits (general or special, time or demand, provisional or final, including indebtedness evidenced by certificates of deposit, whether matured or unmatured, but not including trust accounts) or other sums at any time held or owing by any Secured Party or any Affiliate thereof to or for the credit or the account of Borrower and any Project Revenues, securities or other property of Borrower in the possession of any Secured Party may at all times be treated as collateral security for the payment of the Loans and any Notes and all other obligations of Borrower to the Secured Parties under the Credit Documents, and Borrower has pledged and granted to Collateral Agent a security interest in and to all such deposits, sums, securities or other property pursuant to the Collateral Documents.

12.2.2 In addition to any rights and remedies (including other rights of set-off) now or hereafter granted to the Secured Parties under applicable law and not by way of limitation of any such rights, upon the occurrence and during the continuation of any Event of Default and with the prior consent of Collateral Agent, subject to Section 2.5(a), regardless of the adequacy of any other collateral, each Secured Party (only with the consent of Administrative Agent) is hereby authorized by Borrower at any time or from time to time, without notice to Borrower or to any other Person, any such notice being hereby expressly waived, to set off and to appropriate and to apply any and all deposits and sums referred to in the previous paragraph against and on account of the Obligations to such Secured Party or to any other Secured Party, including all claims of any nature or description arising out of or connected with any Credit Document, irrespective of whether or not (a) such Secured Party shall have made any demand hereunder or (b) the principal of or the interest on the Loans or any other amounts due hereunder shall have become due and payable and although said obligations and liabilities, or any of them, may be contingent or unmatured. Each Secured Party agrees to notify Borrower promptly after any such set-off and application; provided, that the failure to give such notice shall not affect the validity of such set-off or application or the rights of such Secured Party under this Section. The rights of each Secured Party under this Section are in addition to other rights and remedies (including other rights of set-off) which such Secured Party may have.

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12.3 Delay and Waiver.

12.3.1 No delay, failure or omission to exercise, and no course of dealing with respect to, any right, power, privilege or remedy accruing to the Secured Parties upon the occurrence of any Default, Event of Default, Material Adverse Effect or any breach or default of any Credit Party or unsatisfied condition precedent under any Credit Document shall impair any such right, power, privilege or remedy of the Secured Parties, nor shall it be construed to be a waiver of any such breach or default or unsatisfied condition precedent, or an acquiescence therein, or of any similar breach or default or unsatisfied condition precedent thereafter occurring; nor shall any single or partial exercise of any such right, power or remedy, or any abandonment or discontinuance of steps to enforce such a right, power or remedy, preclude any other or further exercise thereof or the exercise of any other right or power.

12.3.2 Upon effectiveness of any waiver of a Default or Event of Default, the parties shall be restored to their former position and rights under the Credit Documents, and such Default or Event of Default shall be deemed to be waived and not continuing; provided that any waiver of any single Default, Event of Default, Material Adverse Effect or other breach or default or unsatisfied condition precedent shall not be deemed a waiver of any other Default, Event of Default, Material Adverse Effect or other breach or default or unsatisfied condition precedent theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or character on the part of any Secured Party of any Default, Event of Default, Material Adverse Effect or other breach or default or unsatisfied condition precedent under any Credit Document, or any waiver on the part of any Secured Party of any provision or condition of any Credit Document, must be in writing in accordance with Section 12.18 and shall be effective only to the extent in such writing specifically set forth and only in the specific instance and for the purpose for which given. All remedies, either under any Credit Document or by law or otherwise afforded to the Secured Parties, shall be cumulative and not alternative.

12.3.3 Without limiting the generality of the foregoing, the making of a Loan shall not be construed as a waiver of any Default or Event of Default, regardless of whether Administrative Agent or any Lender may have had notice or knowledge of such Default or Event of Default at the time.

12.4 Expenses; Indemnity; Damage Waiver.

12.4.1 Costs and Expenses. Borrower shall pay (a) all reasonable out-of-pocket expenses incurred by Administrative Agent and its Affiliates (including the reasonable fees, charges and disbursements of counsel for Administrative Agent) in connection with the preparation, negotiation, execution, delivery and administration (which shall include expenses incurred in connection with Borrowings and the satisfaction of conditions precedent under this Agreement up to and after the Restatement Effective Date, provided that for any subsequent Borrowing after the first Borrowing on or after the Restatement Effective Date, Borrower shall only be required to pay 50% of the expenses of such subsequent Borrowings) of the Credit Documents, or any amendments, modifications or waivers of the provisions hereof or thereof (whether or not the transactions contemplated hereby or thereby shall be consummated), (b) all out-of-pocket expenses incurred by Administrative Agent, Collateral Agent or any Lender (including the fees, charges and disbursements of any counsel for Administrative Agent) in

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connection with the enforcement or protection of its rights (A) in connection with the Credit Documents, including its rights under this Section, or (B) in connection with the Loans made hereunder, including all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in respect of such Loans, and (c) all costs and expenses incurred in connection with any filing, recording, registration or perfection of any security interest contemplated by any Collateral Document or any other document referred to therein of creating, including filing and recording fees, expenses and Taxes, stamp or documentary Taxes, search fees, and reasonable fees, expenses and disbursements of counsel to Collateral Agent and of counsel providing any opinions that Collateral Agent or the Lenders may request in respect of the Collateral Documents or the Liens created pursuant thereto in accordance with this Agreement or the Collateral Documents.

12.4.2 Indemnification by Borrower. Borrower shall indemnify Administrative Agent, Collateral Agent (and any sub-agent thereof) and each Lender, and each Related Party of any of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee) incurred by any Indemnitee or asserted against any Indemnitee by any Person (including Borrower or any other Credit Party) arising out of, in connection with, or as a result of (a) the execution, delivery, performance, administration and enforcement of any Credit Document or any agreement or instrument contemplated thereby or any amendment, supplement or modification thereto, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby, (b) any Loan or the use or proposed use of the proceeds therefrom, (c) any actual or alleged presence or Release of Hazardous Substances on or from any property owned or operated by Borrower, or any Environmental Claim related in any way to Borrower, or (d) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by Borrower or any other Credit Party, and regardless of whether any Indemnitee is a party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses (x) are determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee or (y) result from a claim brought by Borrower or any other Credit Party against an Indemnitee for breach of such Indemnitee’s obligations under any Credit Document, if Borrower or such Credit Party has obtained a final and nonappealable judgment in its favor on such claim as determined by a court of competent jurisdiction. This Section 12.4.2 shall not apply with respect to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from any non-Tax claim.

12.4.3 If Indemnity Unavailable. If, for any reason whatsoever, the indemnification provided under Section 12.4.2 is unavailable to any Indemnitee or is insufficient to hold it harmless to the extent provided in Section 12.4.2, then provided such payment is not prohibited by or contrary to any applicable Legal Requirement or public policy, Borrower shall contribute to the amount paid or payable by such Indemnitee in such proportion as is appropriate to reflect the relative benefits received by Borrower and its Affiliates in the form of extensions of credit on the one hand, and received by such Indemnitee in the form of interest and fees on the other hand, in the matters contemplated by this Agreement as well as the relative fault of Borrower (and its Affiliates) and such Indemnitee with respect to such Subject Claim, and any other relevant equitable considerations.

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12.4.4 Reimbursement by Lenders. To the extent that Borrower for any reason fails to indefeasibly pay any amount required under Section 12.4.1 or 12.4.2 to be paid by it to Administrative Agent, Collateral Agent (or any sub-agent thereof) or any Related Party of any of the foregoing, each Lender severally agrees to pay to Administrative Agent, Collateral Agent (or any such sub-agent) or such Related Party, as the case may be, such Lender’s pro rata share (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought based on each Lender’s Proportionate Share at such time) of such unpaid amount (including any such unpaid amount in respect of a claim asserted by such Lender); provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against Administrative Agent (or any such sub-agent), or against any Related Party of any of the foregoing acting for Administrative Agent (or any such sub-agent) in connection with such capacity. The obligations of the Lenders under this Section 12.4.4 are several and not joint.

12.4.5 Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable law, Borrower shall not assert, and hereby waives, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, any Credit Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan, or the use of the proceeds thereof. No Indemnitee referred to in Section 12.4.2 shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with any Credit Document or the transactions contemplated hereby or thereby.

12.4.6 Payments. All amounts due under this Section shall be payable promptly after demand therefor, and in any event within 10 Business Days.

12.4.7 Survival. Each party’s obligations under this Section shall survive the termination of the Credit Documents and payment of the obligations hereunder, and the resignation or removal of the Administrative Agent or Collateral Agent, as applicable.

12.5 Entire Agreement. This Agreement and any agreement, document or instrument attached hereto or expressly referred to herein integrate all the terms and conditions mentioned herein or incidental hereto and supersede all oral negotiations and prior writings in respect to the subject matter hereof. In the event of any conflict between the terms, conditions and provisions of this Agreement and any such agreement, document or instrument, the terms, conditions and provisions of this Agreement shall prevail.

12.6 Severability. Any provision of this Agreement that is invalid, illegal, prohibited or unenforceable in any respect in any jurisdiction, shall as to such jurisdiction be ineffective to the extent of such invalidity, illegality, prohibition or unenforceability without affecting, invalidating or impairing the validity, legality and enforceability of the remaining provisions hereof; and any such invalidity, illegality, prohibition or unenforceability in any jurisdiction shall not affect, invalidate or impair such provision in any other jurisdiction.

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12.7 Headings. Article, Section and Paragraph headings have been inserted in this Agreement as a matter of convenience for reference only and it is agreed that such headings are not a part of this Agreement and shall not be used in the interpretation of any provision of this Agreement or be given any substantive effect.

12.8 Additional Financing, Etc. The parties hereto acknowledge that as of the Restatement Effective Date the Lenders have made no agreement or commitment to provide any financing except as set forth herein. The obligations of the Lenders hereunder are several and no Lender shall be responsible for the obligations or Loan Commitment of any other Lender hereunder. The amounts payable at any time hereunder to each Lender shall be a separate and independent debt, and each Lender shall be entitled to protect and enforce its rights arising out of this Agreement and it shall not be necessary for any other Lender to be joined as an additional party in any proceeding for such purpose.

12.9 No Partnership, Etc. The Secured Parties and Borrower intend that the relationship between them shall be solely that of creditor and debtor. Nothing contained in any of the Credit Documents, and no action taken by the Lenders pursuant hereto or thereto, shall be deemed or construed to create a partnership, an association, tenancy-in-common, joint tenancy, joint venture or co-ownership by or between the Secured Parties and Borrower or any other Person. No Secured Party shall be in any way responsible or liable for the debts, losses, obligations or duties of Borrower or any other Person with respect to the Projects or otherwise. All obligations to pay real property or other Taxes, assessments, insurance premiums, and all other fees and charges arising from the ownership, operation or occupancy of the Projects (if any) and to perform all obligations and other agreements and contracts relating to the Projects shall be the sole responsibility of Borrower.

12.10 [Reserved]

12.11 Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO ANY CREDIT DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THE CREDIT DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.

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12.12 Governing Law, Jurisdiction, Etc.

12.12.1 Governing Law. The Credit Documents and any claims, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to the Credit Documents (except, as to any Credit Document besides this Agreement, as expressly set forth therein) and the transactions contemplated hereby and thereby shall be governed by, and construed in accordance with, the law of the State of New York.

12.12.2 Jurisdiction. Borrower irrevocably and unconditionally agrees that it will not commence any action, litigation or proceeding of any kind or description, whether in law or equity, whether in contract or in tort or otherwise, against Administrative Agent, Collateral Agent, any Lender or any Related Party of the foregoing in any way relating to any Credit Document or the transactions relating hereto or thereto, in any forum other than the courts of the State of New York sitting in New York County, and of the United States District Court of the Southern District of New York, and any appellate court from any thereof, and each of the parties hereto irrevocably and unconditionally submits to the jurisdiction of such courts and agrees that all claims in respect of any such action, litigation or proceeding may be heard and determined in such New York State court or, to the fullest extent permitted by applicable law, in such federal court. Each of the parties hereto agrees that a final judgment in any such action, litigation or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. Nothing in any Credit Document shall affect any right that Administrative Agent or any Lender may otherwise have to bring any action or proceeding relating to any Credit Document against Borrower or any other Credit Party or its properties in the courts of any jurisdiction.

12.12.3 Waiver of Venue. Borrower irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any objection that it may now or hereafter have to the laying of venue of any action or proceeding arising out of or relating to any Credit Document in any court referred to in Section 12.12.2. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by applicable law, the defense of an inconvenient forum to the maintenance of such action or proceeding in any such court.

12.12.4 Service of Process. Each party hereto irrevocably consents to service of process in the manner provided for notices in Section 12.1. Nothing in this Agreement will affect the right of any party hereto to serve process in any other manner permitted by applicable law.

12.13 Successors and Assigns.

12.13.1 Successors and Assigns Generally. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns permitted hereby, except that Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of Administrative Agent and each Lender, and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (a) to an assignee in accordance with the provisions of Section 12.13.2, (b) by way of participation in accordance with the provisions of Section 12.13.3, or (c) by way of pledge or assignment of a security interest subject to the restrictions of Section 12.13.5 (and any

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other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in Section 12.13.3 and, to the extent expressly contemplated hereby, the Related Parties of each of Administrative Agent, Collateral Agent and the Lenders) any legal or equitable right, remedy or claim under or by reason of this Agreement.

12.13.2 Assignments by Lenders. Any Lender may at any time assign to one or more assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Loan Commitment) and the Loans; provided, that any such assignment shall be subject to the following conditions:

(a) Minimum Amounts.

1. In the case of an assignment of the entire remaining amount of the assigning Lender’s Loan Commitment and/or the Loans at the time owing to it or contemporaneous assignments to related Approved Funds that equal at least the amount specified in paragraph (b)(i)(B) of this Section in the aggregate or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and

2. in any case not described in paragraph (b)(i)(A) of this Section, the aggregate amount of the Loan Commitments (which for this purpose includes Loans outstanding thereunder) or, if the Loan Commitments have terminated, the principal outstanding balance of the Loans of the assigning Lender subject to each such assignment (determined as of the date the Assignment and Assumption with respect to such assignment is delivered to Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date) shall not be less than $100,000, unless each of Administrative Agent and, so long as no Event of Default has occurred and is continuing, Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed).

(b) Proportionate Amounts. Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loan or the Loan Commitment assigned, except that this clause (b) shall not prohibit any Lender from assigning all or a portion of its rights and obligations among separate credit facilities hereunder on a non-pro rata basis.

(c) Required Consents. No consent shall be required for any assignment except to the extent required by Section 12.13.2(a)(ii) and, in addition:

1. the consent of Borrower (such consent not to be unreasonably withheld or delayed) shall be required (A) unless a Lender reasonably determines that it is required to make such assignment under its Governing Documents or any Government Rule applicable to such Lender, (B) unless the effective date of such assignment is on or after the 6th anniversary of the date the first System Facility is installed, (C) unless an Event of Default has occurred and is continuing at the time of such assignment, or (D) unless such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; and

2. the consent of Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of (A) any unfunded Loan Commitment if such assignment is to a Person that is not a Lender with a Loan Commitment, an Affiliate of such Lender or an Approved Fund with respect to such Lender or (B) any Loan to a Person that is not a Lender, an Affiliate of a Lender or an Approved Fund.

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(d) Assignment and Assumption. The parties to each assignment shall execute and deliver to Administrative Agent an Assignment and Assumption, together with a processing and recordation fee of [***]; provided that Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to Administrative Agent an Administrative Questionnaire and any tax forms required under Section 2.4.4(f).

(e) No Assignment to Certain Persons. No such assignment shall be made to (i) Borrower or any of Borrower’s Affiliates or (ii) any Defaulting Lender or any of its Subsidiaries, or any Person who, upon becoming a Lender hereunder, would constitute any of the foregoing Persons described in this clause (e).

(f) No Assignment to Natural Persons. No such assignment shall be made to a natural person.

(g) Certain Additional Payments. In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of Borrower and Administrative Agent, the applicable pro rata share of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (i) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to Administrative Agent and each other Lender hereunder (and interest accrued thereon), and (ii) acquire (and fund as appropriate) its full pro rata share of all Loans in accordance with its Proportionate Share of the Loan Commitments. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.

(h) Effectiveness of Assignment. Subject to acceptance and recording thereof by Administrative Agent, from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party

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hereto) but shall continue to be entitled to the benefits of Sections 2.6.3 and 12.4 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided, that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section 12.13.3. Upon request, Borrower (at its expense) shall execute and deliver a Note to the assignee Lender.

12.13.3 Participations.

(a) Any Lender may at any time, without the consent of, or notice to, Borrower or Administrative Agent, sell participations to any Person (other than a natural Person or Borrower or any of Borrower’s Affiliates) (each, a “Participant”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Loan Commitment and/or the Loans owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations, (iii) Borrower, Administrative Agent and the Lenders shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement and (iv) the Participant shall not be a Prohibited Party. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 10.10 with respect to any payments made by such Lender to its Participant(s).

(b) Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver described in Section 12.18 that affects such Participant. Borrower agrees that each Participant shall be entitled to the benefits of Sections 2.4.4, 2.6.3 and 2.7 (subject to the requirements and limitations therein, including the requirements under Section 2.4.4(f) (it being understood that the documentation required under Section 2.4.4(f) shall be delivered to the participating Lender)) to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section 12.13.2; provided that such Participant (i) agrees to be subject to the provisions of Section 2.7 as if it were an assignee under Section 12.13.2; and (ii) shall not be entitled to receive any greater payment under Sections 2.4.4 or 2.6.3, with respect to any participation, than its participating Lender would have been entitled to receive, except to the extent such entitlement to receive a greater payment results from a Change in Law that occurs after the Participant acquired the applicable participation. Each Lender that sells a participation agrees, at Borrower’s request and expense, to use reasonable efforts to cooperate with Borrower to effectuate the provisions of Section 2.7 with respect to any Participant. To the extent permitted by law, each Participant also shall be entitled to the benefits of Section 12.2.2 as though it were a Lender; provided that such Participant agrees to be subject to Section 2.5 as though it were a Lender. Each Lender that sells a participation shall, acting solely for this purpose as an agent of Borrower, maintain a register on which it enters the name and address of each Participant and the principal amounts (and stated interest) of each Participant’s interest in the Loans or other

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obligations under the Credit Documents (the “Participant Register”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any commitments, loans, letters of credit or its other obligations under any Credit Document) to any Person except to the extent that such disclosure is necessary to establish that such commitment, loan, letter of credit or other obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive absent manifest error, and such Lender shall treat each Person whose name is recorded in the Participant Register as the owner of such participation for all purposes of this Agreement notwithstanding any notice to the contrary. For the avoidance of doubt, Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

12.13.4 Certain Pledges. Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank; provided, that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

12.13.5 Electronic Execution of Assignments. The words “execution,” “signed,” “signature,” and words of like import in any Assignment and Assumption shall be deemed to include electronic signatures or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.

12.14 Defaulting Lenders.

12.14.1 Defaulting Lender Adjustments. Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:

(a) Waivers and Amendments. Such Defaulting Lender’s right to approve or disapprove any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in the definition of Required Lenders.

(b) Defaulting Lender Waterfall. Any payment of principal, interest, fees or other amounts received by Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article 8 or otherwise) or received by Administrative Agent from a Defaulting Lender pursuant to Section 12.2 shall be applied at such time or times as may be determined by Administrative Agent as follows: first, to the payment of any amounts owing by such Defaulting Lender to Administrative Agent hereunder; second, as Borrower may request (so long as no Default or Event of Default exists),

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to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by Administrative Agent; third, if so determined by Administrative Agent and Borrower, to be held in a deposit account and released pro rata to (i) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement; fourth, to the payment of any amounts owing to the Lenders as a result of any judgment of a court of competent jurisdiction obtained by any Lender against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; fifth, so long as no Default or Event of Default exists, to the payment of any amounts owing to Borrower as a result of any judgment of a court of competent jurisdiction obtained by Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and sixth, to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made at a time when the conditions set forth in Section 3.3 were satisfied or waived, such payment shall be applied solely to pay the Loans of all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of such Defaulting Lender until such time as all Loans are held by the Lenders pro rata in accordance with the Loan Commitments. Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section 12.14.1(b) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

12.14.2 Defaulting Lender Cure. If Borrower and Administrative Agent agree in writing that a Lender is no longer a Defaulting Lender, Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as Administrative Agent may determine to be necessary to cause the Loans be held pro rata by the Lenders in accordance with the Loan Commitments hereunder, whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of Borrower while that Lender was a Defaulting Lender; and provided, further, that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender.

12.15 [Reserved].

12.16 Counterparts. This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. The Credit Documents, and any separate letter agreements with respect to fees or other compensation payable to Administrative Agent or any Lender, constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section 3.1, this Agreement shall become effective when it shall have been executed by Administrative Agent

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and when Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or in electronic (i.e., “pdf” or “tif”) format shall be effective as delivery of a manually executed counterpart of this Agreement.

12.17 Survival. All representations, warranties, covenants and agreements made herein and in the certificates or other instruments delivered in connection with or pursuant to this Agreement and the other Credit Documents shall be considered to have been relied upon by the parties hereto and shall survive the execution and delivery of this Agreement, the other Credit Documents and the making of the Loans. Notwithstanding anything in this Agreement or implied by law to the contrary, and without prejudice to the survival of any other agreement of Borrower hereunder, the agreements and obligations of Borrower set forth in Sections 2.4.4, 2.6.1, 10.3 and 12.4 and the agreements of the Lenders set forth in Sections 10.1, 10.5 and 10.10 shall survive Termination, and, in the case of any Lender that may assign any interest in its Loan Commitment or Loans hereunder, shall survive the making of such assignment, notwithstanding that such assigning Lender may cease to be a “Lender” hereunder.

12.18 Amendments; Waivers.

12.18.1 Any provision of the Credit Documents may be amended, modified, supplemented or waived, or any consent thereunder granted, only by a written instrument signed by the Required Lenders and, where a provision requires consent from the Required Lenders, Administrative Agent or Collateral Agent, signed by such Person, and the relevant Credit Party; provided, that no amendment, modification, supplement, waiver or consent shall, modify the provisions of Section 2.5(a) without the consent of each Lender affected thereby and without the consent of all of the Lenders (or, as provided in Section 12.18.1(f), the Required Lenders):

(a) modify, in any respect adverse to the Lenders, Section 2.1.1(d), 2.1.4(b), 2.1.5(b), 2.6, or 10.12;

(b) increase the amount of the Loan Commitment of any Lender hereunder;

(c) amend any percentage specified in the definition of “Required Lenders” or any other provision of the Credit Documents specifying the number or percentage of the Secured Parties or any subset thereof required to waive, amend or modify any rights hereunder, make any determination or grant any consent hereunder, or amend the definition of “Proportionate Share” or any other provisions relating to the pro rata treatment of the Lenders;

(d) permit Borrower to assign its rights under this Agreement except as provided in Section 12.13.1, or permit a sale or disposition that would cause a Change of Control;

(e) amend this Section 12.18.1;

(f) amend any provision of any Credit Document setting forth an order of payments to alter the relative priority of payments set forth thereunder in a manner which disproportionately and adversely effects a particular class of creditor (i.e. Lender), in which case such amendment shall require the written consent of each creditor within such directly affected class (i.e. each Lender), or waive any closing condition set forth in Section 3.1;

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(g) (i) without the consent of all the Lenders, release substantially all of the Collateral, and (ii) without the consent of the Required Lenders, release any Collateral less than substantially all of the Collateral (other than, with the consent of Administrative Agent, immaterial portions of the Collateral or as permitted in Section 6.4), in each case from the Lien of any of the Collateral Documents;

(h) extend the Maturity Date or reduce the rate or amount or change the time of payment of interest due on any Loan;

(i) reduce the amount or extend the payment date for any amount due hereunder, whether principal, interest, fees or other amounts, provided that the Required Lenders may elect to not impose the Default Rate when the Lenders are otherwise entitled to do so;

(j) subordinate the Obligations to any other Debt.

12.18.2 No amendment, modification, termination or waiver of any provision of this Agreement affecting the rights or obligations of Administrative Agent or Collateral Agent shall be effective without the consent of Administrative Agent or Collateral Agent, as the case may be. No amendment, modification, termination or waiver of any provision of any Note (other than by way of amending a document referred to therein) shall be effective without the concurrence of the Lender which is the holder of such Note.

12.18.3 Any amendment, supplement, waiver or modification hereunder shall apply equally to each Lender and be binding upon Borrower and the Secured Parties and each Lender that becomes a party hereto.

12.18.4 No Lender shall be deemed to have waived, by reason of making any extension of credit hereunder, any Event of Default or Default that may arise by reason of such representation or warranty proving to have been false or misleading, notwithstanding that such Lender or Administrative Agent may have had notice or knowledge or reason to believe that such representation or warranty was false or misleading at the time such extension of credit was made.

12.18.5 The agreement of Borrower shall not be necessary to the effectiveness of any modification of a Credit Document that deals solely with the rights and duties of Lenders and/or Agent as among themselves. Only the consent of the parties to the Fee Letter shall be required for any modification of such agreement. Any waiver or consent granted by Agent or Lenders hereunder shall be effective only if in writing and only for the matter specified.

12.18.6 Borrower will not, directly or indirectly, pay any remuneration or other thing of value, whether by way of additional interest, fee or otherwise, to any Lender (in its capacity as a Lender hereunder) as consideration for agreement by such Lender with any modification of any Credit Documents, unless such remuneration or value is concurrently paid, on the same terms, on a pro rata basis to all Lenders providing their consent.

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12.19 LAWS. Notwithstanding the foregoing provisions of this Agreement, no sale, assignment, transfer, negotiation or other disposition of the interests of any Lender hereunder or under the other Credit Documents shall be allowed if it would require registration under the Securities Act, any other federal securities laws or regulations or the securities laws or regulations of any applicable jurisdiction. Borrower shall, from time to time at the request of Administrative Agent, execute and deliver to Administrative Agent, or to such party or parties as Administrative Agent may designate, any and all further instruments as may in the opinion of Administrative Agent be reasonably necessary or advisable to give full force and effect to such sale, assignment, transfer, negotiation or disposition which would not require any such registration.

12.20 Assignability as Collateral. Notwithstanding any other provision contained in this Agreement or any other Credit Document to the contrary, any Lender may (without notice to Borrower, Administrative Agent or any other Lender and without payment of any fee) assign all or any portion of the Loans or Notes held by it in favor of any Federal Reserve Bank or the United States Treasury or any other central bank with jurisdiction over such Lender as collateral security; provided, that any payment in respect of such assigned Loans or Notes made by Borrower to or for the account of the assigning or pledging Lender in accordance with the terms of this Agreement shall satisfy Borrower’s obligations hereunder in respect of such assigned Loans or Notes to the extent of such payment. No such assignment shall release the assigning Lender from its obligations hereunder. In the case of any Lender that is a Fund, such Lender may, without the consent of Borrower or Administrative Agent, collaterally assign or pledge all or any portion of its rights under this Agreement, including the Loans and Notes or any other instrument evidencing its rights as a Lender under this Agreement, to any holder of, trustee for, or any other representative of holders of, obligations owed or securities issued, by such fund, as security for such obligations or securities.

12.21 Service of Process.

12.21.1 The Secured Parties and Borrower hereby consent to the service of process made by registered or certified mail, return receipt requested, at its address provided for notices in Section 12.1.1 and agrees that such service is sufficient to confer personal jurisdiction over it in any relevant proceeding in any relevant court, and otherwise constitutes effective and binding service in every respect. Nothing in this Agreement or the other Operative Documents will affect the right of any party hereto to serve process in any other manner permitted by law.

12.21.2 Borrower hereby irrevocably designates, appoints and empowers CT Corporation System (the “Process Agent”), with offices on the date hereof at 111 Eighth Avenue, New York, New York 10011, as its permitted designee, appointee and agent to receive and accept for and on its behalf, and in respect of its property, service of any and all legal process, writs, summons, notices and documents which may be served in any action or proceeding arising out of this Agreement or any other Credit Document. Borrower hereby agrees to cause the Process Agent to execute and deliver to Administrative Agent a letter from the Process Agent to Borrower and Administrative Agent in substantially the form of Exhibit L. If for any reason such Process Agent shall cease to act as such, Borrower agrees to designate a new permitted designee, appointee and agent in New York City on terms satisfactory to Administrative Agent. Nothing in this Agreement or the other Operative Documents will affect the right of any party hereto to serve process in any other manner permitted by law.

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12.22 Interest Rate Limitation. Notwithstanding anything herein to the contrary, if at any time the interest rate applicable to any Loan, together with all fees, charges and other amounts which are treated as interest on such Loan under applicable law (collectively the “Charges”), shall exceed the maximum lawful rate (the “Maximum Rate”) which may be contracted for, charged, taken, received or reserved by the Lender holding such Loan in accordance with applicable law, the rate of interest payable in respect of such Loan hereunder, together with all Charges payable in respect thereof, shall be limited to the Maximum Rate and, to the extent lawful, the interest and Charges that would have been payable in respect of such Loan but were not payable as a result of the operation of this Section shall be cumulated and the interest and Charges payable to such Lender in respect of other Loans or periods shall be increased (but not above the Maximum Rate therefor) until such cumulated amount, together with interest thereon at the Federal Funds Rate for each day to the date of repayment, shall have been received by such Lender.

12.23 Confidentiality.

12.23.1 Each of Administrative Agent and the Lenders agree to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its Related Parties (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential); (b) to the extent required or requested by any regulatory authority purporting to have jurisdiction over such Person or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners); (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process; (d) to any other party hereto; (e) in connection with the exercise of any remedies hereunder or under any other Credit Document or any action or proceeding relating to this Agreement or any other Credit Document or the enforcement of rights hereunder or thereunder; (f) subject to an agreement containing provisions substantially the same as those of this Section, to (i) any assignee of or Participant in, or any prospective assignee of or Participant in, any of its rights and obligations under this Agreement, or (ii) any actual or prospective party (or its Related Parties) to any swap, derivative or other transaction under which payments are to be made by reference to Borrower and its obligations, this Agreement or payments hereunder; (g) on a confidential basis to (i) any rating agency in connection with rating Borrower or the credit facilities hereunder or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the credit facilities hereunder; (h) with the consent of Borrower; or (i) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section, or (y) becomes available to Administrative Agent, any Lender or any of their respective Affiliates on a nonconfidential basis from a source other than Borrower.

12.23.2 For purposes of this Section, “Information” means all information received from Borrower or any Affiliate on behalf of the Borrower or any Affiliate or any of their respective businesses, other than any such information that is available to Administrative Agent or Lender on a nonconfidential basis prior to disclosure; provided that, in the case of

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information received from Borrower or any Affiliate after the Closing Date, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

12.23.3 In no event shall any Lender be obligated or required to return any materials furnished by any Credit Party. In addition, the Secured Parties may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry, and service providers to the Secured Parties, and the Secured Parties or any of their respective Affiliates may place customary “tombstone” advertisements (which may include any of Borrower’s and the other Credit Parties’ trade names or corporate logos) in publications of its choice (including without limitation “e-tombstones” published or otherwise circulated in electronic form) at its own expense.

12.24 Reinstatement. Each Credit Document shall continue to be effective or be reinstated, as the case may be, if at any time payment and performance of all or a portion of the obligations of any Credit Party under such Credit Document is rescinded or reduced in amount, or must otherwise be restored or returned by any Secured Party for any reason (whether in connection with any bankruptcy, insolvency, as a result of any Governmental Rules, or otherwise). In the event that any payment or any part thereof is so rescinded, reduced, restored or returned, such obligations shall be reinstated and deemed reduced only to the extent of the amount paid and not so rescinded, restored or returned.

12.25 Marshalling; Assets Set Aside. Neither Administrative Agent, Collateral Agent nor any Lender shall be under any obligation to marshal any assets in favor of Borrower or any other party or against or in payment of any or all of the Obligations. To the extent that Borrower makes a payment or payments to any Secured Party, or any Secured Party enforces any security interests or exercises its rights of setoff, and such payment or payments or the proceeds of such enforcement or setoff or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside or required to be repaid to a trustee, receiver or any other party under any Debtor Relief Law or any equitable cause (and whether as a result of any demand, settlement, litigation or otherwise), then, to the extent of such recovery, the obligation or part thereof originally intended to be satisfied, and all Liens, rights and remedies therefor or related thereto, shall be revived and continued in full force and effect as if such payment or payments had not been made or such enforcement or set-off had not occurred.

12.26 Independence of Covenants. All covenants hereunder shall be given independent effect so that if a particular action or condition is not permitted by any of such covenants, the fact that it would be permitted by an exception to, or would otherwise be within the limitations of, another covenant shall not avoid the occurrence of a Default or Event of Default if such action is taken or condition exists.

12.27 Construction of the Documents. Each of the parties hereto acknowledges that (a) it has been represented by counsel in the negotiation and documentation of the terms of the Credit Documents, (b) it has had full and fair opportunity to review and revise the terms of the

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Credit Documents, (c) the Credit Documents have been negotiated and drafted jointly by all of the parties hereto, and (d) neither Administrative Agent nor any Lender has any fiduciary relationship with or duty to Borrower arising out of or in connection with any of the Credit Documents, and the relationship between Administrative Agent and the Lenders, on one hand, and Borrower, on the other hand, in connection herewith or therewith is solely that of debtor and creditor. Accordingly, each of the parties hereto acknowledges and agrees that (i) the Credit Documents shall be deemed to be the work product of all parties hereto and thereto, (ii) the terms hereof and thereof shall not be construed against or in favor of any party, and (iii) no ambiguity in any Credit Document shall be construed in favor of or against any party solely as a result of such party having drafted or proposed the ambiguous provision.

12.28 Waiver. Borrower hereby irrevocably waives, to the fullest extent permitted by applicable law, any claim that any action or proceeding commenced by Administrative Agent relating in any way to the Credit Documents should be dismissed or stayed by reason, or pending the resolution, of any action or proceeding commenced by Borrower relating in any way to the Credit Documents whether or not commenced earlier. To the fullest extent permitted by applicable law, Borrower shall take all measures necessary or desirable for any such action or proceeding commenced by Administrative Agent to proceed to judgment prior to the entry of judgment in any such action or proceeding commenced by Borrower.

12.29 The Platform.

12.29.1 Election Under Platform. Borrower hereby acknowledges that (a) Administrative Agent may, but shall not be obligated to, make available to the Secured Parties the Communications (as defined below) available to the Secured Parties by posting the Communications on Debt Domain, Intralinks, Syndtrak or a substantially similar electronic transmission system (the “Platform”) and (b) certain of the Secured Parties may be “public-side” Lenders (i.e., Lenders that do not wish to receive material non-public information with respect to Borrower or its Affiliates) (each, a “Public Lender”). Borrower hereby agrees that so long as any Affiliate of Borrower is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities it will use commercially reasonable efforts to identify that portion of the Communications that may be distributed to the Public Lenders and that (i) all such Communications shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (ii) by marking Communications “PUBLIC,” Borrower shall be deemed to have authorized the Secured Parties to treat such Communications as not containing any material non-public information (although it may be sensitive and proprietary) with respect to Borrower or its Affiliates or their securities for purposes of United States Federal and state securities laws (provided that to the extent such Communications constitute Information, they shall be treated as set forth in Section 12.23); (iii) all Communications marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Investor;” and (iv) Administrative Agent shall be entitled to treat any Communications that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Investor.” Notwithstanding the foregoing, Borrower shall be under no obligation to mark any Communications “PUBLIC.”

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12.29.2 Platform Defects. The Platform is provided “as is” and “as available.” The Secured Parties (as defined below) do not warrant the adequacy of the Platform and expressly disclaim liability for errors or omissions in the Communications. No warranty of any kind, express, implied or statutory, including, without limitation, any warranty of merchantability, fitness for a particular purpose, non-infringement of third-party rights or freedom from viruses or other code defects, is made by any Secured Party in connection with the Communications or the Platform. In no event shall Administrative Agent, Collateral Agent or any of their Related Parties have any liability to Borrower, any other Credit Party, or any of their respective Affiliates, any Secured Party or any other Person or entity for damages of any kind, including, without limitation, direct or indirect, punitive, special, incidental or consequential damages, losses or expenses (whether in tort, contract or otherwise) arising out of Borrower’s, any Credit Party’s, any Affiliates’ thereof, any Secured Party’s or Administrative Agent’s transmission of communications through the Platform. “Communications” means, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of Borrower pursuant to any Credit Document or the transactions contemplated therein which is distributed to Administrative Agent or any other Secured Party by means of electronic communications pursuant to this Section, including through the Platform.

12.30 Agreement of the Secured Parties.

12.30.1 Unaffected Rights of Secured Parties.

(a) each Secured Party may take any action (not adverse to the priority status of the Liens on the Collateral securing the Obligations, or the rights of the Collateral Agent to exercise remedies in respect thereof) necessary to create, perfect, preserve or protect its Lien on the Collateral;

(b) each Secured Party may file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding or other pleading made by any Person objecting to or otherwise seeking the disallowance of the claims of such Secured Party, including any claims secured by the Collateral, if any, in each case in accordance with the terms of this Agreement;

(c) any Secured Party may charge default interest in accordance with the relevant Credit Document;

(d) each Secured Party may accelerate the Obligations owed to it in accordance with the relevant Credit Document;

(e) upon the commencement of a Bankruptcy Event by or against any applicable Credit Party, each Secured Party may file a claim or statement of interest with respect to the Obligations owed to such Secured Party but only to the extent not inconsistent with this Agreement;

(f) each Secured Party may file any pleadings, objections, motions or agreements which assert rights or interests available to unsecured creditors of the applicable Credit Parties arising under the bankruptcy code or any applicable non-bankruptcy Legal Requirements (including the commencement of any Bankruptcy Event in accordance with applicable law), but only to the extent not inconsistent with the terms of this Agreement; and

(g) upon the commencement of a Bankruptcy Event by or against any applicable Credit Party, each Secured Party may vote on any plan of reorganization, file any proof of claim, make other filings and make any arguments and motions that are, in each case, in accordance with the terms of this Agreement, with respect to the Obligations owed to such Secured Party and the Collateral.

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12.30.2 Application of Collateral Proceeds Following Event of Default. Regardless of whether any Bankruptcy Event has been commenced by or against any Credit applicable Party (but subject to applicable Legal Requirements), following the occurrence and continuation of an Event of Default, any money collected or to be applied by the Collateral Agent pursuant to this Agreement and the Collateral Documents as proceeds of, or other realization upon, Collateral (other than monies for its own account) shall be applied as follows:

(a) first, to any fees, costs, charges, expenses or disbursements of any kind incurred or expended by Collateral Agent relating to or arising out of the enforcement of any of the terms of this Agreement or the Collateral Documents, including all court costs and legal fees;

(b) second, to the payment pro rata of interest (including default interest) on the Obligations;

(c) third, to the payment pro rata of the principal amount of the Obligations and the cash collateralization of all letters of credit constituting Obligations in accordance with the relevant Credit Document; and

(d) finally, after final payment in full of the amounts described in this Section 12.30.2 and Termination shall have occurred, to Credit Parties (as applicable) or their respective successors or assigns or to whomsoever may be lawfully entitled to receive the same or as a court of competent jurisdiction may direct.

12.30.3 Lien Failure. If, for any reason, a Secured Party does not have a valid and perfected Lien (either directly or through Collateral Agent) on any portion of the Collateral, proceeds on such portion of the Collateral received by the other Secured Parties having the same lien-priority as such Secured Party will be paid over to the extent necessary to reflect the distribution provisions above as if all Secured Parties having the same lien-priority held such a Lien.

12.30.4 Rescission; Return of Collateral. If any action taken in connection with the enforcement of the Secured Parties’ rights hereunder or under any other Credit Document is rescinded or Collateral Agent otherwise becomes liable for the return of Collateral proceeds realized in connection with such an action to any Person, each relevant Secured Party shall return to Collateral Agent the amount previously distributed to such Secured Party in accordance with this Agreement. Upon receipt of such amounts by Collateral Agent, the relevant Obligation automatically shall be reinstated for all purposes hereunder.

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IN WITNESS WHEREOF, the parties hereto, by their officers duly authorized, intending to be legally bound, have caused this Credit Agreement to be duly executed and delivered as of the date first above written.

2012 ESA PROJECT COMPANY, LLC,
a Delaware limited liability company, as Borrower
By:
	Name:
	Title:

[A&R Credit Agreement Signature Page]

PE12GVVC (BLOOM PPA) LTD.,
as Administrative Agent and a Lender
By:	/s/ Laura Montes
	Name: Laura Montes
	Title:   Director
PE12PXVC (BLOOM PPA) LTD.,
as a Lender
By:	/s/ Laura Montes
	Name: Laura Montes
	Title:   Director

[A&R Credit Agreement Signature Page]

DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Collateral Agent
By:	/s/ Kisha A. Holder
	Name:	Kisha A. Holder
	Title:	Vice President
By:	/s/ Michael A. Smith
	Name:	MICHAEL A. SMITH
	Title:	VICE PRESIDENT

[A&R Credit Agreement Signature Page]

APPENDIX A

to Credit Agreement

LOAN COMMITMENTS

Name of Lender	Loan Commitment
PE12GVVC (Bloom PPA) Ltd	$
PE12PXVC (Bloom PPA) Ltd	$	[***]
Aggregate of all Loan Commitments	$	46,784,041

[***] Confidential Treatment Requested

EXHIBIT A

to Credit Agreement

DEFINITIONS

Section, Article and Exhibit references used herein refer to sections and articles of and the exhibits to this Agreement, unless otherwise specified.

“Account Withdrawal Documents” means, collectively, any Account Withdrawal Request and the Account Withdrawal Instruction related thereto, properly completed by Borrower and delivered to Administrative Agent for approval and, in the case of the applicable Account Withdrawal Instruction, signature, in accordance with the applicable provisions of this Agreement and the Depositary Agreement.

“Account Withdrawal Instruction” has the meaning given in the Depositary Agreement.

“Account Withdrawal Request” means a certificate in the form of Exhibit I, signed by a duly authorized representative of Borrower and delivered to Administrative Agent.

“Accounts” means the Construction Account, the Revenue Account, the Operating Account, the Distribution Suspense Account, the DSR Account, the Insurance Proceeds Account, the Maintenance Reserve Account, the SGIP Proceeds Account and each cash collateral account referred to in the Credit Documents, including any sub-accounts within such accounts.

“Additional Project Documents” means any material contracts or agreements related to the construction, testing, maintenance, repair, operation or use of the Projects entered into by Borrower and any other Person, or assigned to Borrower, subsequent to the Closing Date as the same may be amended, modified or supplemented from time to time in accordance herewith.

“Administrative Agent” means PE12GVVC (Bloom PPA) Ltd., acting in its capacity as administrative agent for the Secured Parties under the Credit Documents.

“Administrative Questionnaire” means an Administrative Questionnaire in a form supplied by Administrative Agent.

“Administrative Services Agreement” means the Administrative Services Agreement dated as of December 21, 2012, among Borrower, Holdings and the Administrative Services Provider, as amended by Omnibus Amendment #2, and as the same may be further amended, modified or supplemented from time to time in accordance herewith.

“Administrative Services Provider” means Sponsor.

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“Affiliate” of a specified Person means any other Person that directly, or indirectly through one or more intermediaries, Controls, is Controlled by or is under common Control with such Person. When used with respect to Borrower, “Affiliate” shall include Holdings and any Affiliate thereof (other than Borrower). Notwithstanding the foregoing, Alberta Investment Management Corp. and its Affiliates shall not be deemed Affiliates of the Major Project Participants.

“Affiliated Project Participant” means each Major Project Participant that is a Credit Party or is an Affiliate of a Credit Party.

“Agreement” means this Credit Agreement as the same may be amended, modified or supplemented from time to time in accordance herewith.

“Annual Operating Budget” means the budget required pursuant to Section 5.13.2.

“Anti-Terrorism Laws” has the meaning given in Section 4.31.

“Applicable Permit” means, at any time, any Permit that is necessary under applicable Legal Requirements or any of the Operative Documents to have been obtained by or on behalf of Borrower at such time in light of the stage of development, construction or operation of a System Facility or Project to construct, test, operate, maintain, repair, lease, own or use such System Facility or Project as contemplated by the Operative Documents, to sell electricity from such System Facility or Project or deliver fuel to such System Facility or Project, or for Borrower to enter into any Operative Document or to consummate any transaction contemplated thereby, in each case in accordance with all applicable Legal Requirements.

“Applicable Third Party Permit” means, at any time, any Permit that is necessary to have been obtained by such time in light of the stage of development, construction or operation of a Project by any Person (other than Borrower) that is a party to a Major Project Document or a Credit Document in order to perform such Person’s obligations thereunder (other than Permits necessary to conduct its business generally and maintain its existence and good standing), or in order to consummate any transaction contemplated thereby, in each case in accordance with all applicable Legal Requirements.

“Approved Fund” means any Fund that is administered or managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a Lender.

“Assignment and Assumption” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section 12.13.2), and accepted by Administrative Agent, in substantially the form of Exhibit M or any other form approved by Administrative Agent.

“Assignment and Assumption Agreement” means Assignment and Assumption Agreement #1 and Assignment and Assumption Agreement #2.

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“Assignment and Assumption Agreement # 1” means the Assignment and Assumption Agreement, dated as of July 5, 2013, between the Borrower as assignee and 2013B ESA Project Company, LLC as assignor.

“Assignment and Assumption Agreement # 2” means the Assignment and Assumption Agreement, dated as of July 5, 2013, between the Borrower as assignor and 2013B ESA Project Company, LLC as assignee.

“AT&T Power Purchase Agreement” means that certain Energy System Use Agreement, dated as of December 19, 2012, by and between Borrower and Pacific Bell Telephone Company, a California corporation as the same may be amended, modified or supplemented from time to time in accordance herewith.

“AT&T Project” means the acquisition, installation, ownership, operation and maintenance of all of the System Facilities on the Sites identified in the AT&T Power Purchase Agreement.

“Availability Period” means the period from the Closing Date through the earlier of (a) March 31, 2014, (b) Completion and (c) Borrower reducing the Loan Commitments to an amount equal to the amount of the Loans then outstanding and notifying Administrative Agent that Borrower wishes to end the Availability Period.

“Available Funds” means, at any time and without duplication, the sum of (a) amounts in the Construction Account, (b) the undrawn portion of the Loan Commitments, (c) undisbursed Insurance Proceeds or Eminent Domain Proceeds which are available for payment of Project Costs and (d) amounts required to be contributed indirectly to the Borrower by the Managing Member and the Tax Equity Investor under the Tax Investor Documents to the extent they are not in default of their obligations thereunder.

“Bankruptcy Event” shall be deemed to occur, with respect to any Person, if (a) that Person shall commence any case, proceeding or other voluntary action seeking to have an order for relief entered with respect to it, or seeking to adjudicate it bankrupt or insolvent, or seeking liquidation, arrangement, adjustment, winding-up, reorganization, dissolution, composition under the Debtor Relief Law or other relief with respect to it or its debts; (b) such Person shall apply for, or consent or acquiesce to, the appointment of, a receiver, administrator, administrative receiver, liquidator, sequestrator, trustee or other official with similar powers for itself or any substantial part of its assets; (c) such Person shall make a general assignment for the benefit of its creditors; (d) an involuntary case shall be commenced seeking liquidation or reorganization of such Person under the Debtor Relief Law, or seeking issuance of a warrant of attachment, execution or distraint, or any similar proceedings shall be commenced against such Person under any other applicable law and (i) such Person consents to the institution of the involuntary case against it, (ii) the petition commencing the involuntary case is not timely controverted, (iii) the petition commencing the involuntary case is not dismissed within 30 days of its filing, (iv) an interim trustee is appointed to take possession of all or a portion of the property, and/or to operate all or any part of the business of such Person and such

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appointment is not vacated within 30 days, or (v) an order for relief shall have been issued or entered therein; or (e) a decree or order of a court having jurisdiction in the premises for the appointment of a receiver, administrator, administrative receiver, liquidator, sequestrator, trustee or other official having similar powers, over such Person or all or a part of its property shall have been entered; or (f) any other similar relief shall be granted against such Person under any applicable Debtor Relief Law, or such Person shall file a petition or consent or shall otherwise institute any similar proceeding under any other applicable law, or shall take any action in furtherance of, or indicating its consent to, approval of, or acquiescence in any of the acts set forth above in this definition; or (g) such Person shall generally not, or shall be unable to, or shall admit in writing its inability to, pay its debts as they become due.

“Base Case Projections” means a projection of operating results showing at a minimum Borrower’s good faith estimates, as of the Restatement Effective Date, of revenues, operating expenses and sources and uses over the forecast period, in substantially the form of Schedule A-1, which shall be of a nature and in an amount satisfactory to Administrative Agent in consultation with Independent Engineer.

“Borrower” means 2012 ESA Project Company, LLC, a Delaware limited liability company.

“Borrowing” means a borrowing by Borrower of Loans on the same day made by the Lenders.

“Business Day” means any day other than a Saturday, Sunday or other day on which banks are or Administrative Agent is authorized or required to be closed in New York, New York, the State of California or the Province of Alberta, Canada.

“Buydown Amount” has the meaning given in Section 5.20.

“Calculation Period” means, as to a particular date, the 12 month period (or, during the initial 12 months following the Closing Date, the actual number of calendar months or partial calendar months between the Closing Date and the calculation date) immediately preceding such date.

“Cash-Substitute LC” has the meaning given in Section 7.7.1.

“Casualty Event” means the loss, damage or destruction of any part of the improvements or any personal property or fixture related to a Project.

“Change in Law” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or issuance of any request, rule, guideline or directive (whether or not having the force of law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in

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connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law,” regardless of the date enacted, adopted or issued.

“Change of Control” means (a) Holdings ceases to directly own and control 100% of the economic and voting interest in Borrower or (b) Sponsor ceases to indirectly own and control 100% of the economic and voting interest in Borrower other than (i) interests held in Holdings by the Tax Equity Investors reasonably acceptable to the Administrative Agent pursuant to Governing Documents approved in form and substance by the Lenders and (ii) as approved by the Lenders in their sole discretion.

“Charges” has the meaning given in Section 12.22.

“Closing Date” means December 21, 2012.

“COD” means with respect to each System Facility, the date of “Commencement of Operations” of such System Facility, as such term is defined in the MESPA.

“Code” means the Internal Revenue Code of 1986.

“Collateral” means all property which is subject or is intended to become subject to the security interests or liens granted by any of the Collateral Documents.

“Collateral Agent” means Deutsche Bank Trust Company Americas, acting in its capacity as collateral agent for the Secured Parties under the Credit Documents.

“Collateral Documents” means the Pledge Agreement, the Security Agreement, the Depository Agreement, control agreements or any other agreement or document granting or perfecting a Lien to secure the Obligations including any fixture filings, financing statements, or other similar documents filed, recorded or delivered in connection with the foregoing in each case as the same may be amended, modified or supplemented from time to time in accordance herewith.

“Comparable Treasury Issue” means the United States Treasury security selected by the Administrative Agent as having a maturity comparable to the remaining term of the Loans to be prepaid that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of comparable maturity to the remaining term of the Loans to be prepaid.

“Comparable Treasury Price” means, with respect to any prepayment date, (A) the average of the Reference Treasury Dealer Quotations for such prepayment date, after excluding the highest and lowest such Reference Treasury Dealer Quotations, or (B) if the Administrative Agent obtains fewer than three such Reference Treasury Dealer Quotations, the average of all such Reference Treasury Dealer Quotations, or (C) if only one Reference Treasury Dealer Quotation is received, such Reference Treasury Dealer Quotation.

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“Completion” means the earlier of (i) COD of 2.9 MW of nameplate capacity of System Facilities with respect to the AT&T Project, COD of 3.0 MW of nameplate capacity of System Facilities with respect to the Supplemental AT&T Project and COD of 4.3 MW of nameplate capacity of System Facilities with respect to the Wal-Mart Project and (ii) COD of that number of MW of nameplate capacity of System Facilities with respect to the AT&T Project, Supplemental AT&T Project and the Wal-Mart Project as has been achieved by the end of the Availability Period.

“Completion Date” the date upon which Completion is achieved.

“Connection Income Taxes” means Other Connection Taxes that are imposed on or measured by net income (however denominated) or that are franchise Taxes or branch profits Taxes.

“Construction Account” has the meaning given in Section 1.1 of the Depositary Agreement.

“Contingent Obligation” means, as to any Person, any obligation, agreement, understanding or arrangement (including purchase or repurchase agreements, reimbursement agreements with respect to letters of credit or acceptances, indemnity arrangements, grants of collateral to support the obligations of another Person, keep-well agreements and take-or-pay or through-put arrangements) of such Person guaranteeing or intended to guarantee any indebtedness, leases, dividends or other obligations of any other Person in any manner, whether directly or indirectly; provided, that the term “Contingent Obligation” shall not include endorsements of instruments for deposit or collection in the ordinary course of business.

“Control” means the possession, directly or indirectly (either alone or pursuant to an arrangement or understanding with one or more other Persons), of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and the terms “Controlling” and “Controlled” shall have meanings correlative thereto.

“Credit Documents” means this Agreement, any Notes, the Collateral Documents, the Fee Letter, the Interparty Agreement, the Indemnity Agreement and any other loan or security agreements or letter agreement or similar document, and any amendment, modification or supplement entered into in accordance herewith to the foregoing or consent or waiver given under the foregoing, entered into by any Secured Party, on the one hand, and Sponsor or one or more Affiliates of Sponsor, on the other hand, in connection with the transactions contemplated by the Credit Documents.

“Credit Event” means (i) the occurrence of the Restatement Effective Date and (ii) each Borrowing and resulting Loan.

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“Credit Parties” means Borrower, Holdings, Managing Member and Sponsor.

“Debt” of any Person means, without duplication, (a) all obligations (including contingent obligations) of such Person for borrowed money, (b) all obligations of such Person evidenced by bonds, debentures, notes or other similar instruments, (c) all obligations of such Person to pay the deferred purchase price of property or services, except trade accounts payable and other accrued expenses arising in the ordinary course of business which in accordance with GAAP would not be shown on the liability side of the balance sheet of such Person (and not more than 45 days overdue), (d) all obligations of such Person under leases which are or should be, in accordance with GAAP, recorded as capital leases in respect of which such Person is liable, (e) all obligations of such Person to purchase securities (or other property) which arise out of or in connection with the sale of the same or substantially similar securities (or property), (f) all deferred obligations of such Person to reimburse any bank or other Person in respect of amounts paid or advanced under a letter of credit or other instrument, (g) all obligations, contingent or otherwise, of such Person in respect of acceptances, letters of credit or similar extensions of credit, (h) all Debt (as described in the preceding clauses) of others secured by (or for which the holder of such Debt has an existing right, contingent or otherwise, to be secured by) any Lien on any asset of such Person, whether or not such Debt is assumed by such Person, (i) all Debt (as described in the preceding clauses) of others guaranteed directly or indirectly by such Person or as to which such Person has an obligation which is substantially the economic equivalent of a guaranty, and (j) all net obligations of such Person in respect of any swap hedging or similar agreements.

“Debt Service” means, for any period, the sum of (a) all fees (other than fees paid on the Closing Date) payable during such period to any Secured Party, (b) interest on Loans and (c) scheduled Loan principal payments (as reduced to reflect actual prepayments through the date of such calculation) payable during such period.

“Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect.

“Default” means any occurrence, circumstance or event, or any combination thereof, which, with the lapse of time or the giving of notice or both, would constitute an Event of Default.

“Default Rate” has the meaning given in Section 2.4.3.

“Defaulting Lender” means, subject to Section 12.14.2, any Lender that (a) has failed to (i) fund all or any portion of its Loans within two Business Days of the date such Loans were required to be funded hereunder unless such Lender notifies Administrative Agent and Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which

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conditions precedent, together with any applicable default, shall be specifically identified in such writing) has not been satisfied, or (ii) pay to Administrative Agent or any other Lender any other amount required to be paid by it hereunder within two Business Days of the date when due, (b) has notified Borrower or Administrative Agent in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with any applicable default, shall be specifically identified in such writing or public statement) cannot be satisfied), (c) has failed, within three Business Days after written request by Administrative Agent or Borrower, to confirm in writing to Administrative Agent and Borrower that it will comply with its prospective funding obligations hereunder (provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause (c) upon receipt of such written confirmation by Administrative Agent and Borrower), or (d) has, or has a direct or indirect parent company that has, (i) become the subject of a proceeding under any Debtor Relief Law, or (ii) had appointed for it a receiver, custodian, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or assets, including the Federal Deposit Insurance Corporation or any other state or federal regulatory authority acting in such a capacity; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any equity interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority so long as such ownership interest does not result in or provide such Lender with immunity from the jurisdiction of courts within the United States or from the enforcement of judgments or writs of attachment on its assets or permit such Lender (or such Governmental Authority) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender. Any determination by Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (d) above shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 12.14.2) upon delivery of written notice of such determination to Borrower and each Lender.

“Depositary” means Deutsche Bank Trust Company Americas, not in its individual capacity but solely as depositary agent, bank and securities intermediary under the Depositary Agreement.

“Depositary Agreement” means the Depositary Agreement, dated as of February 21, 2013, among Borrower, Administrative Agent, Collateral Agent and Depositary, as amended by Amendment No. 1 to Depositary Agreement, dated as of the Restatement Effective Date.

“Direct Agreement” means any Direct Agreement, in the form of Exhibit D-3, between a Major Project Participant, Borrower and Administrative Agent.

“Distribution Conditions” has the meaning given in Section 6.6.2.

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“Distribution Suspense Account” has the meaning given in Section 1.1 of the Depositary Agreement.

“Dollars” and “$” means United States dollars or such coin or currency of the United States of America as at the time of payment shall be legal tender for the payment of public and private debts in the United States of America.

“Drawdown Certificate” means a certificate delivered to Administrative Agent substantially in the form of Exhibit C-2.

“DSCR” means, for any period, the ratio of (a) Operating Cash Available for Debt Service for such period to (b) Debt Service for such period.

“DSR Account” has the meaning given in Section 1.1 of the Depositary Agreement.

“DSR Requirement” has the meaning given in Section 7.5.1.

“ECCA” means the Amended and Restated Equity Capital Contribution Agreement dated as of the Restatement Effective Date, between Managing Member and Firstar.

“Eligible Assignee” means any Person that meets the requirements to be an assignee under Section 12.13.2(c), (e) and (f) (subject to such consents, if any, as may be required under Section 12.13.2(c)).

“Eminent Domain” means any compulsory transfer or taking by condemnation, eminent domain or exercise of a similar power, or transfer under threat of such compulsory transfer or taking, of any part of the Collateral, by any agency, department, authority, commission, board, instrumentality or political subdivision of the States of California, the State of Connecticut, the United States or another Governmental Authority having jurisdiction.

“Eminent Domain Proceeds” has the meaning given in Section 7.9.

“Environmental Claims” means any and all liabilities, losses, administrative, regulatory or judicial actions, suits, demands, decrees, claims, liens, judgments, warning notices, notices of noncompliance or violation, written notice of any claims or investigations, proceedings, removal or remedial actions or orders, or damages (foreseeable and unforeseeable, including consequential and punitive damages), penalties, fees, out-of-pocket costs, expenses, disbursements or attorneys’ or consultants’ fees, relating in any way to (a) a violation or alleged violation of any Environmental Law or Permit issued under any Environmental Law, (b) a Release or threatened Release of Hazardous Substances, or (c) any legal or administrative proceedings relating to any of the above.

“Environmental Laws” means any and all current or future federal, state, local and foreign statutes, laws, including common law, regulations or ordinances, rules,

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judgments, orders, decrees, permits licenses or restrictions imposed by a Governmental Authority relating to pollution or protection of the environment or natural resources and protection of human health, including but not limited to the National Environmental Policy Act, 42 U.S.C. Section 4321 et seq.; Federal Endangered Species Act, 16 U.S.C. Section 1551 et seq.; the Migratory Bird Treaty Act of 1918, 16 U.S.C. Section 703 et seq.; Bald and Golden Eagle Protection Act, 16 U.S.C. Section 668; and shall include all Hazardous Substances Laws.

“Equity Contribution Tri-party Agreement” means the Equity Contribution Tri-Party Agreement dated as of December 21, 2012, among Holdings, Borrower and Sponsor, as amended by Omnibus Amendment #1 and Omnibus Amendment #2.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

“ERISA Affiliate” means any Person (whether or not incorporated) which is under common control with Borrower within the meaning of Section 4001(a) of ERISA or that is treated as a single employer together with Borrower under Section 414 of the Code.

“ERISA Plan” means any employee benefit plan (a) maintained by Borrower or any ERISA Affiliate, or to which any of them contributed, contributes, or is obligated to contribute for its employees or former employees and (b) covered by Title IV of ERISA or to which Section 412 of the Code applies.

“Event of Default” has the meaning given in Article 8.

“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and any successor statute.

“Excluded Taxes” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient: (a) Taxes imposed on or measured by net income (however denominated), franchise Taxes, and branch profits Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of, or having its principal office or, in the case of any Lender, its applicable lending office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) in the case of a Lender, U.S. federal withholding Taxes imposed on amounts payable to or for the account of such Lender with respect to an applicable interest in a Loan or Loan Commitment pursuant to a law in effect on the date on which (i) such Lender acquires such interest in the Loan or Loan Commitment (other than pursuant to an assignment request by Borrower under Section 2.7) or (ii) such Lender changes its lending office, except in each case to the extent that, pursuant to Section 2.4.4, amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its lending office, (c) Taxes attributable to such Recipient’s failure to comply with Section 2.4.4(f) and (d) any U.S. federal withholding Taxes imposed under FATCA.

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“FATCA” means Sections 1471 through 1474 of the Code, as of the date of this Agreement (or any amended or successor version that is substantially comparable and not materially more onerous to comply with) and any current or future regulations or official interpretations thereof.

“Fee Letter” means the Trust & Agency Services Proposal for Depositary and Collateral Agent Services dated December 10, 2012 and accepted by Borrower on December 11, 2012.

“FERC” means the Federal Energy Regulatory Commission and its successors.

“Firstar” means Firstar Development, LLC, a Delaware limited liability company.

“First Funding Date” means February 26, 2013.

“Foreign Lender” means (a) if Borrower is a U.S. Person, a Lender that is not a U.S. Person, and (b) if Borrower is not a U.S. Person, a Lender that is resident or organized under the laws of a jurisdiction other than that in which Borrower is resident for tax purposes.

“FPA” means the Federal Power Act, as amended, and FERC’s implementing regulations related thereto.

“Fund” means any Person (other than a natural person) that is (or will be) engaged in making, purchasing, holding or otherwise investing in commercial loans and similar extensions of credit in the ordinary course of its activities.

“Funded System” means a System Facility with respect to which a payment under the MESPA has been financed with Loans hereunder.

“GAAP” means generally accepted accounting principles in the United States of America.

“Governing Documents” means, with respect to any Person, the certificate or articles of incorporation, bylaws, operating agreement or other organizational or governing documents of such Person, and, in particular, (a) in the case of any corporation, the certificate of incorporation and by-laws (or similar documents) of such Person, (b) in the case of any limited liability company, the certificate of formation and operating agreement (or similar documents) of such Person, (c) in the case of any limited partnership, the certificate of formation and limited partnership agreement (or similar documents) of such Person, (d) in the case of any general partnership, the partnership agreement (or similar document) of such Person and (e) in any other case, the functional equivalent of the foregoing.

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“Governmental Authority” means the government of the United States or any other nation, or of any political subdivision thereof, whether state or local, and any agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising executive, legislative, judicial, taxing, regulatory or administrative powers or functions of or pertaining to government (including any supra-national bodies such as the European Union or the European Central Bank).

“Governmental Rule” means any constitution, code, statute, law, regulation, ordinance, rule, judgment, order, decree, binding directive, treaty, or other governmental restriction or any similar form of decision of or determination by, any Governmental Authority.

“Hazardous Substances” means any and all substances or materials (a) defined as “hazardous substances,” “pollutants,” “contaminants,” “hazardous waste,” “hazardous materials,” “regulated substances,” “hazardous chemical substance or mixture,” “imminently hazardous chemical substance or mixture,” toxic substances,” or similar terms, as such terms are designated, regulated classified, listed, or defined under or with respect to which any liability may be imposed pursuant to any Hazardous Substances Law, including without limitation any petroleum product (including byproducts or breakdown products of petroleum products), asbestos-containing material, polychlorinated biphenyls or urea formaldehyde foam insulation.

“Hazardous Substances Law” means any of:

(i) the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et seq.);

(ii) the Federal Water Pollution Control Act (33 U.S.C. Section 1251 et seq.);

(iii) the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.);

(iv) the Clean Air Act (42 U.S.C. Section 7401 et seq.);

(v) the Emergency Planning and Community Right to Know Act (42 U.S.C. Section 11001 et seq.);

(vi) the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Section 136 et seq.);

(vii) the Oil Pollution Act of 1990 (P.L. 101-380, 104 Stat. 486);

(viii) the Safe Drinking Water Act (42 U.S.C. Section 300f et seq.);

(ix) the Toxic Substances Control Act (15 U.S.C. Section 2601 et seq.);

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(x) the Hazardous Materials Transportation Act (49 U.S.C. Section 1801 et seq.);

(xi) applicable California and Connecticut statutes related to the release of Hazardous Substances;

(xii) applicable California and Connecticut ordinances and regulations related to the release of Hazardous Substances; and

(xiii) all other federal, state, local and municipal Governmental Rules, any and all Legal Requirements, and any and all common law requirements, rules and bases of liability regulating, relating to, or imposing liability or standards of conduct concerning pollution or protection of human health or the environment or which otherwise govern Hazardous Substances, as are now or may at any time hereafter be in effect, together with the regulations adopted pursuant to all foregoing.

“Holdings” means 2012 V PPA Holdco, LLC, a Delaware limited liability company.

“Holdings Operating Agreement” means the Second Amended and Restated Operating Agreement of Holdings, dated as of the Restatement Effective Date, between the Managing Member and Firstar.

“Indemnified Taxes” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of Borrower under any Credit Document and (b) to the extent not otherwise described in clause (a), Other Taxes.

“Indemnitees” has the meaning given in Section 12.4.

“Indemnity Agreement” means the Indemnity Agreement, in form and substance acceptable to Administrative Agent, among Sponsor, Borrower and the Administrative Agent, as amended by the First Amendment to Indemnity Agreement between Sponsor, Borrower and Administrative Agent (upon and after the execution of such amendment).

“Independent Consultants” means, collectively, the Insurance Consultant and the Independent Engineer.

“Independent Engineer” means any independent engineer selected by the Borrower and approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed) on terms and conditions reasonably satisfactory to the Administrative Agent, to advise, and with a duty of care to the Administrative Agent and the Lenders.

“Independent Engineer’s Drawdown Certificate” has the meaning given in Section 3.3.6(b).

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“Information” has the meaning given in Section 12.23.2.

“Initial Funding Date” has the meaning given in Section 3.2.

“Initial Project Documents” means the Initial Project Documents Category A and the Initial Project Documents Category B.

“Initial Project Documents Category A” means the Power Purchase Agreements, Tax Investor Documents, Wal-Mart Gas Supply Agreement, the Administrative Services Agreement, the REC Agreement, the MESPA, the MOMA, the IP License, the IP License Security Agreement, the LREC Agreements (upon assignment thereof to Borrower), Omnibus Amendment #1, Omnibus Amendment #2, the First Amendment to Intellectual Property License dated as of the date hereof and any guaranty agreements related to the foregoing executed by Persons in favor of Borrower.

“Initial Project Documents Category B” means the Site Leases and the Site Licenses.

“Insurance Consultant” means Moore & McNeill.

“Insurance Proceeds” has the meaning given in Section 7.9.1.

“Insurance Proceeds Account” has the meaning given in Section 7.9.1.

“Interest Payment Date” has the meaning given in Section 2.1.2(b)

“Interparty Agreement” means the Interparty Agreement, dated as of December 21, 2012, among Borrower, Firstar and Administrative Agent, as amended by the First Amendment to Interparty Agreement, dated as of the Restatement Effective Date, among Borrower, Firstar and Administrative Agent.

“IP License” mean the Intellectual Property License, dated December 21, 2012, between Sponsor and Borrower, entered into in connection with the MESPA and the MOMA, as amended by the First Amendment to Intellectual Property License, dated as of the Restatement Effective Date, between Sponsor and Borrower.

“IP License Security Agreement” means the Security Agreement, dated as of December 21, 2012, between Sponsor and Borrower, as referred to in Section 4.5 of the IP License.

“IRS” means the United States Internal Revenue Service.

“Knowledge” means, with respect to Borrower, after due inquiry, the actual knowledge of Borrower, Sponsor or applicable Major Project Participant which is an Affiliate of Borrower, who are charged with direct or indirect responsibility for the Projects (either by virtue of their company responsibilities or by virtue of their responsibilities under the applicable Major Project Document).

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“Legal Requirements” means, as to any Person, the Governing Documents of such Person, any requirement under a Permit, and any Governmental Rule in each case applicable to or binding upon such Person or any of its properties or to which such Person or any of its property is subject.

“Lenders” means PE12GVVC (Bloom PPA) Ltd., PE12PXVC (Bloom PPA) ltd. and any other Person that shall have become party hereto pursuant to an Assignment and Assumption, other than any such Person that ceases to be a party hereto pursuant to an Assignment and Assumption.

“Lending Office” means, with respect to any Lender, the office designated as such to Administrative Agent and Borrower from time to time.

“Lien” means, with respect to any property or asset, any mortgage, deed of trust, lien, pledge, charge, security interest, or encumbrance of any kind, whether or not filed, recorded or otherwise perfected or effective under applicable law, as well as the interest of a vendor or lessor under any conditional sale agreement, capital lease or other title retention agreement relating to such asset.

“Loan Commitment” means, as to any Lender, the obligation of such Lender to make Loans to Borrower in an aggregate principal amount not to exceed the amount set forth opposite such Lender’s name on Appendix A or, as the case may be, under the heading “Amount of Loan Commitment Assigned” opposite such Lender’s name in the Assignment and Assumption pursuant to which such Lender became a party hereto, in each case, as such amount may be amended to reflect assignments and reduced pursuant to Section 2.2.2. The aggregate amount of all Loans Commitments on the Restatement Effective Date equals $46,784,041.

“Loans” has the meaning given in Section 2.1.1(a).

“LREC Agreements” means each Standard Contract for the Purchase and Sale of Connecticut Class I Renewable Energy Credits from Low and Zero Emission Projects, entered into by and between The Connecticut Light and Power Company or The United Illuminating Company and the Borrower (as assignee of BE 2012 A LLC, a Delaware limited liability company (“BE 2012 A”) pursuant to that certain Assignment and Assumption Agreement to be entered into by and between Borrower and BE 2012 A).

“Major Project Documents” means the Initial Project Documents and, unless otherwise agreed by Administrative Agent prior to its execution and delivery, any Additional Project Documents.

“Major Project Participants” means, without duplication, Borrower, Managing Member, Sponsor, Operator, Holdings, the Administrative Services Provider, the Tax Equity Investors party to the Interparty Agreement, and to the extent not already included in this list, any counterparty to a Major Project Document.

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“Make Whole Amount” means, with respect to any prepayment of the Loans with respect to which the Make Whole Amount is payable or prior to the Maturity Date, an amount equal to (a) the sum of the present values, as determined by the Borrower and certified by a Responsible Officer of Borrower to the Administrative Agent, of the Remaining Scheduled Payments discounted, on a quarterly basis, assuming a 360-day year consisting of twelve 30-day months, at the Treasury Rate plus [***], to the date of such prepayment minus (b) the principal amount of the Loans being prepaid; provided that, if such amount is less than [***], the “Make Whole Amount” shall be [***].

“Managing Member” means Clean Technologies III, LLC, a Delaware limited liability company.

“Mandatory Prepayment” has the meaning given in Section 2.1.5(c).

“Material Adverse Effect” means an event, circumstance, condition or occurrence of whatever nature that materially and adversely affects (a) the business, assets (including the Projects), property, prospects, results of operation or financial condition of a Major Project Participant, (b) Borrower’s rights to the Projects and the Project assets, (c) any Major Project Participant’s ability to perform its obligations under the Operative Documents, (d) the validity or priority of the Secured Parties’ security interests in the Collateral, or (e) the validity or enforceability of any Operative Document (including the ability of the Secured Parties to enforce any of their remedies thereunder).

“Maturity Date” means the earliest of (a) the last day of the calendar quarter during which the fourteenth anniversary of the Closing Date occurs and (b) the date on which the entire outstanding principal balance of the Loans, together with all unpaid interest, fees, charges and costs, becomes due and payable under this Agreement whether as a result of a Mandatory Prepayment, acceleration or otherwise.

“Maximum Rate” has the meaning given in Section 12.22.

“MESPA” means the Amended and Restated Master Energy Server Purchase Agreement, dated as of December 21, 2012, between Sponsor and Borrower, as amended by (i) the First Amendment to Amended and Restated Master Energy Server Purchase Agreement, dated as of March 27, 2013, (ii) Omnibus Amendment #1 and (iii) Omnibus Amendment #2.

“MOMA” means the Amended and Restated Master Operations and Maintenance Agreement, dated as of December 21, 2012, between Borrower and Operator, as amended by Omnibus Amendment #1 and Omnibus Amendment #2.

“Monthly Date” means the last Business Day of each month.

“Moody’s” means Moody’s Investors Service, Inc.

“Multiemployer Plan” means a “multiemployer plan” (as such term is defined in Section 3(37) or 4001(a)(3)of ERISA) to which any Borrower or any ERISA Affiliate contributes or is obligated to contribute for its employees or under which Borrower or any ERISA Affiliate has any material obligations.

[***] Confidential Treatment Requested

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“Non-Consenting Lender” means any Lender that does not approve any consent, waiver or amendment that (a) requires the approval of all affected Lenders in accordance with the terms of Section 12.18.1 and (b) has been approved by the Required Lenders.

“Non-Defaulting Lender” means, at any time, each Lender that is not a Defaulting Lender at such time.

“Nonrecourse Persons” has the meaning given in Article 9.

“Notes” has the meaning given in Section 2.1.3.

“Notice of Borrowing” has the meaning given in Section 2.1.1(b).

“O&M Costs” means, for any period, obligations incurred and payable in cash by Borrower during such period for the operation and maintenance of the Projects or any portion thereof and for the purchase of goods and services in connection therewith, including (a) premiums for insurance policies, including the Replacement Risk Policy, (b) costs of fuel and other consumables, (c) costs of obtaining any other materials, supplies, utilities or services for such Project, (d) costs of maintaining, renewing and amending Permits, (e) franchise, licensing, property, real estate, sales and excise Taxes, (f) general and administrative expenses, (g) employee salaries, wages and other employment-related costs, (h) business management and administrative service fees, (I costs required to be payable in connection with any Project under any Project Document or Credit Document (other than scheduled Debt Service and Project Costs but including scheduled interest or lease payments in respect of other Permitted Debt) or to satisfy any Legal Requirement or obtain or maintain any Permit, including without limitation payments to be made to AT&T Corp. (pursuant to the Power Purchase Agreements to which it is a party) in connection with the Borrower’s sale of Connecticut state renewable energy credits, (j) legal, accounting and consulting fees and other transaction costs including fees payable to the Lenders (other than amounts constituting scheduled Debt Service), (k) necessary capital expenditures (other than capital expenditures made in connection with the repair or restoration of any casualty suffered by such Project to the extent funded with insurance or similar proceeds applied pursuant to Section 7.8 or 7.9 or infusions of equity), and (l) all other fees and expenses necessary for the continued operation and maintenance of such Project and the conduct of the business of such Project, but exclusive in all cases of non-cash charges and also exclusive of all interest charges and charges for the payment or amortization of principal of Loans. O&M Costs shall not include payments for restoration or repair of such Project from the Insurance Proceeds Account or income Taxes.

“Obligations” means and includes all loans, advances, debts, liabilities, and obligations, howsoever arising, owed by the Credit Parties (or, if such term is used by reference to any specific Person, by such Person) to any of the Secured Parties of every

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kind and description (whether or not evidenced by any note or instrument and whether or not for the payment of money), direct or indirect, absolute or contingent, due or to become due, now existing or hereafter arising, pursuant to the terms of or in connection with the Credit Documents, including (a) all interest, fees, charges, expenses, attorneys’ fees and accountants fees, repayment obligations, prepayment obligations, and reimbursement obligations payable by any Credit Party thereunder, (b) the due and punctual performance of all covenants, agreements, obligations and liabilities of the Credit Parties to the Secured Parties under or pursuant to the Credit Documents, (c) any and all sums advanced by any of the Secured Parties to preserve the Collateral or preserve or perfect Liens in the Collateral, and (d) in the event of any proceeding for the collection or enforcement described herein, after an Event of Default has occurred and is continuing and unwaived in accordance with the provisions hereof, the expenses of retaking, holding, preparing for sale or lease, selling or otherwise disposing of or realizing on the Collateral, or of any exercise by Collateral Agent, on behalf of the Secured Parties, of its rights under the Collateral Documents, together with reasonable attorney’s fees and court costs.

“OFAC” means the U.S. Treasury Department Office of Foreign Assets Control.

“Omnibus Amendment #1” means that certain Omnibus Amendment to MESPA, MOMA and Equity Contribution Tri-Party Agreement, dated as of June 27, 2013, by and among Sponsor, Borrower and Holdings.

“Omnibus Amendment #2” means that certain Omnibus Amendment to MESPA, MOMA, ASA, REC PSA and Equity Contribution Tri-Party Agreement, dated as of the date hereof, by and among Sponsor, Borrower and Holdings.

“Operating Account” has the meaning given in Section 1.1 of the Depositary Agreement.

“Operating Budget Category” means (a) individually, any line item category set forth in that portion of the then-current Annual Operating Budget showing sources and uses of Project funds, and (b) collectively, all line item categories set forth in that portion of the then-current Annual Operating Budget showing sources and uses of Project funds.

“Operating Cash Available for Debt Service” means, for any period, Project Revenues during such period plus, without duplication, the Prepaid Expense Amount allowed to be withdrawn from the Revenue Account with respect to such period minus O&M Costs during such period.

“Operative Documents” means, collectively, the Credit Documents and the Project Documents.

“Operator” means Bloom Energy Corporation, a Delaware corporation.

“Original Agreement” has the meaning given in the recitals.

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“Other Connection Taxes” means, with respect to any Recipient, Taxes imposed as a result of a present or former connection between such Recipient and the jurisdiction imposing such Tax (other than connections arising from such Recipient having executed, delivered, become a party to, performed its obligations under, received payments under, received or perfected a security interest under, engaged in any other transaction pursuant to or enforced any Credit Document, or sold or assigned an interest in any Loan or Credit Document).

“Other Taxes” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, any Credit Document, except any such Taxes that are Other Connection Taxes imposed with respect to an assignment (other than an assignment made pursuant to Section 2.7.2).

“Participant” has the meaning given in Section 12.13.3(a).

“Participant Register” has the meaning given in Section 12.13.3(b).

“PBGC” means the Pension Benefit Guaranty Corporation established pursuant to Subtitle A of Title IV of ERISA.

“Performance Tests” means any tests under the MESPA to demonstrate COD.

“Permit” means any approval, consent, waiver, exemption, variance, franchise, order, permit, authorization, right or license of or from a Governmental Authority.

“Permit Schedule” has the meaning given in Section 3.3.13.

“Permitted Debt” means (a) Debt incurred under the Credit Documents, (b) Debt pursuant to the terms of a Project Document (but not for borrowed money), either not more than 90 days past due or being contested in good faith, (c) trade or other similar Debt incurred in the ordinary course of business (but not for borrowed money), either not more than 90 days past due or being contested in good faith and (d) any Contingent Obligation in respect of Debt other than the endorsement of negotiable instruments received in the normal course of its business.

“Permitted Investments” has the meaning given in the Depositary Agreement.

“Permitted Liens” means (a) Liens securing the Obligation; (b) statutory Liens for any current Tax, assessment or other governmental charge not yet due and payable, and Liens for Taxes, assessments or governmental charges being contested in accordance with the requirements of Section 5.16; (c) materialmen’s, mechanics’, workers’, repairmen’s, employees’ or other like Liens, arising in the ordinary course of business for amounts not yet due or for amounts being contested in good faith and by

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appropriate proceedings, so long as (i) such proceedings shall not involve any substantial danger of the sale, forfeiture or loss of any System Facility, Project or any Site, as the case may be, title thereto or any interest therein and shall not interfere in any material respect with the use or disposition of any System Facility, Project or any Site, (ii) a bond or other security reasonably acceptable to Administrative Agent has been posted or provided in such manner and amount as to assure Administrative Agent that any amounts determined to be due will be promptly paid in full when such contest is determined, or (iii) adequate cash reserves have been provided therefor; (d) Liens arising out of judgments or awards so long as effectively staged as a result of such appeal or proceeding an appeal or proceeding for review such appeal or proceeding is being prosecuted in good faith and for the payment of which adequate reserves, bonds or other security reasonably acceptable to Administrative Agent have been provided or are fully covered by insurance and such coverage acknowledge by the insurer in writing; (e) Liens, deposits or pledges to secure statutory obligations or performance of bids, tenders, contracts (other than for the repayment of borrowed money) or leases, or for purposes of like general nature in the ordinary course of its business, not to exceed $[***] in the aggregate at any time, and with any such Lien to be released as promptly as practicable;

“Person” means any natural Person, corporation, limited liability company, limited liability partnership, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

“Platform” has the meaning given in Section 12.29.1.

“Pledge Agreement” means, the Pledge and Security Agreement, dated as of December 21, 2012, among Holdings, Borrower and Collateral Agent, as amended by the Omnibus Amendment No. 1 to Security Agreement and Pledge and Security Agreement, dated as of the Restatement Effective Date, among Holdings, Borrower and Collateral Agent.

“Portfolio” means, on an aggregate basis, all System Facilities owned by Borrower that were purchased pursuant to the MESPA and that have achieved COD.

“Power Purchase Agreements” means, collectively, the AT&T Power Purchase Agreement, the Supplemental AT&T Power Purchase Agreements and the Wal-Mart Power Purchase Agreement.

“Prepaid Expense Amount” means proceeds of equity contributions specifically for the purpose of paying prepaid expenses on deposit in the Construction Account prior to the end of the Availability Period, and subsequent to the end of the Availability Period, on deposit in the Revenue Account.

“Process Agent” has the meaning given in Section 12.21.2.

“Prohibited Party” means a competitor of Bloom Energy Corporation or an Affiliate of a competitor of Bloom Energy Corporation which, in either case, manufactures fuel cell electricity generators, but not component manufacturers or institutional sources of capital which are Affiliates of manufacturers of fuel cell electricity generators.

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[***] Confidential Treatment Requested

“Projects” has the meaning given in the recitals to this Agreement.

“Project Budget” has the meaning given in Section 3.1.22.

“Project Costs” means: (a) the Purchase Price (as defined in the MESPA) of System Facilities; (b) all other Project-related costs and other development costs (including all Site related costs payable to any Person, including landowners or any Governmental Authority), insurance costs, management services fees and expenses and expenses to complete the development, design, installation, construction and financing of the Projects; (c) contingency funds, start-up costs and initial working capital costs; and (d) O&M Costs due and payable prior to Completion; (e) interest and fees payable pursuant to this Agreement prior to Completion.

“Project Document Modification” has the meaning given in Section 6.12.

“Project Documents” means, without duplication, the Major Project Documents and any other agreement or document relating to the development, construction, acquisition, operation or maintenance of the Projects to which Borrower is a party.

“Project Revenues” means, without duplication, all income and cash receipts of Borrower derived from the ownership or operation of the Projects, including payments received by Borrower from Sponsor or its Affiliates under the MESPA and the MOMA, proceeds of any delay in start up or business interruption or liability insurance (to the extent such liability insurance proceeds represent reimbursement of third party claims previously paid by Borrower), income derived from the sale or use of electric capacity or energy transmitted or distributed or ancillary services or environmental attributes produced by the Projects, proceeds from sale of assets, investment income on amounts in the Accounts (solely to the extent deposited in the applicable Account), but excluding solely for purposes of calculating Operating Cash Available for Debt Service, (a) any receipts derived from the sale of any property pertaining to the Projects or incidental to the operation of the Projects, as determined in conformity with cash accounting principles, (b) proceeds of casualty insurance, (c) performance liquidated damages under the MESPA and MOMA and (d) the proceeds of any condemnation awards relating to the Projects.

“Project Schedule” means the schedule for construction and completion of the Projects in a form acceptable to the Administrative Agent.

“Proportionate Share” means, as to any Lender, the percentage obtained by dividing the Loan Commitment of such Lender by the aggregate Loan Commitments of all Lenders (or, at any time after the end of the Availability Period, the percentage obtained by dividing the aggregate outstanding principal balance of the Loans owing to such Lender by the aggregate outstanding principal balance of the Loans owing to all Lenders).

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“Public Lender” has the meaning given in Section 12.29.1.

“PUHCA” means the Public Utility Holding Company Act of 2005 (42 U.S.C. §§ 16451-16463), and FERC’s implementing regulations related thereto (18 C.F.R. Part 366).

“Qualified Letter of Credit” means one or more unconditional, irrevocable letters of credit on terms and conditions, and in form and substance, reasonably satisfactory to Administrative Agent and shall (a) name Collateral Agent as the beneficiary thereof, (b) have an aggregate amount available to be drawn at all times that when added to the Cash on Deposit in the DSR Account greater than or equal to the amount being secured by such letter of credit, (c) be issued from a bank, banks, trust company or trust companies which bank, banks, trust company or trust companies shall have a combined capital and surplus of at least $1,000,000,000 and whose long-term senior unsecured indebtedness is rated at least A by S&P or A2 by Moody’s, (d) not be secured by any of the Collateral or any other asset of Borrower, and (e) not impose on Borrower any obligation to reimburse drawing payments thereunder; provided that such letter of credit shall provide that it shall (i) automatically renew upon the expiration thereof or be drawable in full if it is not renewed at least 30 days prior to the expiration thereof, (ii) have an initial expiration date of at least one year after issuance, and (iii) have a stated amount equal from time to time to (or, to the extent of cash deposited, less than) amounts required to be issued as set forth in the Credit Documents.

“Quarterly Date” means the last Business Day of each calendar quarter.

“Real Property Documents” means any documents, agreements or instruments pursuant to which Borrower has rights in the Sites, including the Site Leases and the Site Licenses, all easements, sub-easements, leases, subleases, licenses and other agreements with landowners, any non-disturbance agreements and any deeds pursuant to which Borrower owns a fee interest in real property.

“REC Agreement” means the REC Purchase and Sale Agreement, dated as of December 21, 2012, between Sponsor and Borrower, as amended by Omnibus Amendment #2.

“Recipient” means (a) Administrative Agent and (b) any Lender, as applicable.

“Reference Treasury Dealers” means three or more institutions selected by the Administrative Agent that, as of any applicable prepayment date, are qualified as primary U.S. government securities dealers by the Federal Reserve Bank of New York.

“Reference Treasury Dealer Quotation” means, with respect to each Reference Treasury Dealer and any prepayment date, the average, as determined by the Administrative Agent, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Administrative Agent by such Reference Treasury Dealer at 4:00 p.m. (New York City time) on the third business day preceding such prepayment date

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“Register” has the meaning given in Section 2.8.

“Regulation D” means Regulation D of the Board of Governors of the Federal Reserve System (or any successor).

“Regulatory Change” means any change after the Closing Date in federal, state, local or foreign laws, regulations, Legal Requirements or requirements under Applicable Permits, or the adoption or making after such date of any interpretations, directives or requests of or under any federal, state, local or foreign laws, regulations, Legal Requirements or requirements under Applicable Permits (whether or not having the force of law) by any Governmental Authority charged with the interpretation or administration thereof.

“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents, trustees, administrators, managers, advisors and representatives of such Person and of such Person’s Affiliates.

“Release” means disposing, discharging, injecting, spilling, leaking, leaching, dumping, pumping, pouring, emitting, escaping or emptying into or upon any land or water or air.

“Remaining Scheduled Payments” means, with respect to each prepayment of the Loans, the remaining scheduled payments of the principal thereof and interest thereon that would be due after the related prepayment date but for such prepayment; provided, however, that, if such prepayment date is not an Interest Payment Date with respect to such Loans, the amount of the next succeeding scheduled interest payment thereon will be deemed to be reduced by the amount of interest accrued thereon to such prepayment date.

“Repayment Period” means the period commencing on each Quarterly Date and ending on the next Quarterly Date.

“Replacement Risk Policy” has the meaning give in Section 5.15.2.

“Reportable Event” means any of the events set forth in Section 4043(b) or (c) of ERISA for which notice to the PBGC has not been waived.

“Required Lenders” means, at any time, Lenders (other than Defaulting Lenders) holding at least 50.1% of the Loan Commitments (or after termination thereof, outstanding Loans). Notwithstanding the foregoing, if there are only two Lenders (for this purpose, not counting any Lender which is not entitled to vote pursuant to Section 12.14.1(a)), all matters must be agreed by each Lender.

“Resignation Effective Date” has the meaning given in Section 10.6.1.

“Responsible Officer” means, as to any Person, its president, chief executive officer, any vice president, treasurer, secretary, or assistant secretary, or any natural Person who is a managing general partner or manager or managing member of a limited liability company (or any of the preceding with regard to any such managing general partner, manager or managing member).

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“Restated Credit Documents” means this Agreement, the Notes, the Omnibus Amendment No. 1 to Security Agreement and Pledge and Security Agreement dated as of the date hereof among the Borrower, Holdings and the Collateral Agent, Amendment No. 1 to Depositary Agreement dated as of the date hereof among the Borrower, the Administrative Agent and the Collateral Agent, and the First Amendment to Interparty Agreement dated as of the date hereof among the Borrower, the Administrative Agent and Firstar Development, LLC.

“Restatement Effective Date” means the date of satisfaction or waiver by the Lenders of all the conditions precedent listed in Section 3.1.

“Revenue Account” has the meaning given in Section 1.1 of the Depositary Agreement.

“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.

“SEC” means the United States Securities and Exchange Commission.

“Secured Parties” means Administrative Agent, Collateral Agent and the Lenders, and each of their respective successors, transferees and assigns and shall include, without limitation, all former Administrative Agents, Collateral Agents and Lenders to the extent that the Obligations owing to such Persons were incurred while such Persons were in such capacities and such Obligations have not been paid or satisfied in full; provided, that no Affiliate of Sponsor shall be a “Secured Party.”

“Securities Act” means the Securities Act of 1933, as amended from time to time, and any successor statute.

“Security Agreement” means the Security Agreement, dated as of December 21, 2012, between Borrower and Collateral Agent, as amended by the Omnibus Amendment No. 1 to Security Agreement and Pledge and Security Agreement, dated as of the Restatement Effective Date, among Holdings, Borrower and Collateral Agent.

“SGIP Proceeds Account” has the meaning given in Section 1.1 of the Depositary Agreement.

“Site Lease” means, with respect to each Site identified in the AT&T Power Purchase Agreement or any Supplemental AT&T Power Purchase Agreement, a Site Lease Agreement in substantially the form attached as Exhibit B to the AT&T Power Purchase Agreement or such Supplemental AT&T Power Purchase Agreement, respectively, and acceptable to Administrative Agent.

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“Site License” means, with respect to each Site identified in the Wal-Mart Power Purchase Agreement, the “Access License” as defined in the Wal-Mart Power Purchase Agreement, in form and substance acceptable to the Administrative Agent.

“Site” means (i) any “Site” as defined in the AT&T Power Purchase Agreement, (ii) any “Property” as defined in the Wal-Mart Power Purchase Agreement, (iii) [***], (iv) [***], (v) [***], (vi) [***] (vii) [***] and (viii) [***] as applicable.

“Solvent” means, with respect to any Person, that as of the date of determination, (a) the aggregate value of all properties of such Person at their present saleable value (i.e., the amount that may be realized within a reasonable time, considered to be six months to one year, either through collection or sale at the regular market value, conceiving the latter as the amount that could be obtained for the property in question within such period by a capable and diligent businessperson from an interested buyer who is willing to purchase under ordinary selling conditions), exceed the amount of all the debts and liabilities (including contingent, subordinated, unmatured and unliquidated liabilities) of such Person, (b) such Person will not, on a consolidated basis, have an unreasonably small capital with which to conduct its business operations heretofore conducted and (c) such Person will have, on a consolidated basis, sufficient cash flow to enable it to pay its debts as they mature.

“Sponsor” means Bloom Energy Corporation, a Delaware corporation.

“Subsidiary” means, as to any Person, a corporation, partnership, limited liability company, limited liability partnership or other entity of which such Person: (a) owns 10% or more of the shares of stock or other ownership interests having ordinary voting power (other than stock or such other ownership interests having such power only by reason of the happening of a contingency) to elect a majority of the board of directors or other managers of such corporation, partnership or other entity and/or (b) controls the management, directly or indirectly through one or more intermediaries. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries” in this Agreement shall refer to a Subsidiary or Subsidiaries of a Person.

“Supplemental AT&T Power Purchase Agreements” means:

(a) as of the date hereof and until to the execution of the amendments in the forms attached hereto as Exhibits S and T, (i) that certain Energy System Use Agreement, dated as of May 15, 2013 (Agreement No. 20130403.077.C), by and between Borrower and AT&T Corp., a New York corporation, with respect to Sites located in Connecticut, (ii) that certain Energy System Use Agreement, dated as of May 15, 2013 (Agreement No. 20130403.075.C), by and between Borrower and Pacific Bell Telephone Company, a California corporation, with respect to Sites located in California, to the extent not assigned by Borrower pursuant to Assignment and Assumption Agreement #2, (iii) that certain Energy System Use Agreement, dated as of May 15, 2013

[***] Confidential Treatment Requested

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(Agreement No. 20130430.072.C), entered into by and between 2013B ESA Project Company, LLC and Pacific Bell Telephone Company, as and to the extent assigned to the Borrower pursuant to Assignment and Assumption Agreement #1, and (iv) that certain Energy System Use Agreement, dated as of May 15, 2013 (Agreement No. 20130430.078.C), entered into by and between 2013B ESA Project Company, LLC and AT&T Corp., as and to the extent assigned to the Borrower pursuant to Assignment and Assumption Agreement #1; and

(b) upon and after the execution of the amendments in the forms attached hereto as Exhibits S and T, (i) that certain Energy System Use Agreement, dated as of May 15, 2013 (Agreement No. 20130403.077.C), by and between Borrower and AT&T Corp., a New York corporation, with respect to Sites located in Connecticut, and (ii) that certain Energy System Use Agreement, dated as of May 15, 2013 (Agreement No. 20130403.075.C), by and between Borrower and Pacific Bell Telephone Company, a California corporation, with respect to Sites located in California, as each (i) and (ii) are amended pursuant to such amendments.

“Supplemental AT&T Project” means the acquisition, installation, ownership, operation and maintenance of all of the System Facilities on the Sites identified in the Supplemental AT&T Power Purchase Agreements.

“Supplemental Funding Date” has the meaning given in Section 3.2.

“System Facility” means with respect to each Site, the proprietary solid oxide fuel cell power generating units installed on such Site and together with all BOF (as defined in the MESPA).

“Tax Equity Investors” means Firstar and any other one or more investors reasonably acceptable to Required Lenders in “Class A” membership interests in Holdings (as contemplated by the Holdings Operating Agreement).

“Tax Investor Documents” means (a) the Holdings Operating Agreement, (b) the ECCA and (c) the Equity Contribution Tri-Party Agreement.

“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.

“Term” means the term of the credit facilities provided hereunder.

“Termination” means payment in full in cash of the Obligations (other than those contingent Obligations that are unasserted and intended to survive the termination of the applicable Credit Documents).

“Treasury Rate” means, with respect to any prepayment date of the Loans, the rate per annum equal to the quarterly equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such prepayment date.

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“UCC” means the Uniform Commercial Code as the same may, from time to time, be in effect in the State of New York; provided, in the event that, by reason of mandatory provisions of law, any or all of the perfection or priority of the security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York the term “UCC” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions of the Credit Documents relating to such perfection or priority and for purposes of definitions related to such provisions.

“Unsatisfied Condition” means a condition in a Permit that has not been satisfied and that either (a) must be satisfied before such Permit can become effective, (b) must be satisfied as of the date on which a representation is made or a condition precedent must be satisfied under this Agreement, or (c) must be satisfied as of a future date but with respect to which facts or circumstances exist which could reasonably be expected to result in a failure to satisfy such Permit condition, and which failure could reasonably result in a Material Adverse Effect.

“U.S. Borrower” means Borrower if Borrower is a U.S. Person.

“U.S. Person” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.

“U.S. Tax Compliance Certificate” has the meaning assigned to such term in Section 2.4.4(f).

“Wal-Mart Gas Supply Agreement” means that certain Base Contract For Sale and Purchase of Natural Gas, dated October 12, 2012, between Borrower and EDF Trading North America, LLC and the associated Gas Transaction Confirmation dated October 17, 2012.

“Wal-Mart Power Purchase Agreement” means that certain Amended and Restated Master Fuel Cell Power & Services Agreement, dated as of December 11, 2012, by and between Borrower and Wal-Mart Stores, Inc.

“Wal-Mart Project” means the acquisition, installation, ownership, operation and maintenance of all of the System Facilities on the Sites identified in the Wal-Mart Power Purchase Agreement.

“Waterfall Level” means Waterfall Level 1, Waterfall Level 2, Waterfall Level 3, Waterfall Level 4, Waterfall Level 5, Waterfall Level 6, Waterfall Level 7, Waterfall Level 8, Waterfall Level 9 or Waterfall Level 10, as the case may be, each as set forth in Section 7.3.2(a).

“Waterfall Level x”, where “x” means any of the numbers 1 through 11, means, in the case of each such number, the application of amounts on deposit in the Revenue Account in accordance with the clause of Section 7.3.2 numbered from (1) through (9) which corresponds with such number.

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“Withholding Agent” means Borrower and Administrative Agent.

RULES OF INTERPRETATION

1. The singular includes the plural and the plural includes the singular. The definitions of terms apply equally to the singular and plural forms of the terms defined.

2. The word “or” is not exclusive.

3. A reference to a Governmental Rule includes any amendment or modification to such Governmental Rule (including any successor Governmental Rules and section references to such Governmental Rule shall be construed to refer to any successor sections), and all regulations, rulings and other Governmental Rules promulgated under such Governmental Rule.

4. A reference to a Person includes its permitted successors, permitted replacements and permitted assigns.

5. The words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

6. The words “include,” “includes” and “including” are not limiting.

7. A reference in a document to an Article, Section, Exhibit, Schedule, Annex or Appendix is to the Article, Section, Exhibit, Schedule, Annex or Appendix of such document unless otherwise indicated. Exhibits, Schedules, Annexes or Appendices to any document shall be deemed incorporated by reference in such document. In the event of any conflict between the provisions of this Agreement (exclusive of the Exhibits, Schedules, Annexes and Appendices thereto) and any Exhibit, Schedule, Annex or Appendix thereto, the provisions of this Agreement shall control.

8. References to any document, instrument or agreement (a) shall include all exhibits, schedules and other attachments thereto, (b) shall include all documents, instruments or agreements issued or executed in replacement thereof, and (c) shall mean such document, instrument or agreement, or replacement or predecessor thereto, as amended, amended and restated, modified and supplemented from time to time and in effect at any given time.

9. The words “hereof,” “herein” and “hereunder” and words of similar import when used in any document shall refer to such document as a whole and not to any particular provision of such document.

28

10. References to “days” shall mean calendar days, unless the term “Business Days” shall be used.

11. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The word “will” has the same meaning and effect as the word “shall.”

12. In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding.”

13. A reference to a time of day refers to the prevailing time in New York City.

14. If, at any time after the Restatement Effective Date, Moody’s or S&P shall change its respective system of classifications, then any Moody’s or S&P “rating” referred to herein shall be considered to be at or above a specified level if it is at or above the new rating which most closely corresponds to the specified level under the old rating system.

29

EXHIBIT B

to Credit Agreement

FORM OF PROMISSORY NOTE

Promissory Note

$             [Date]

For value received, the undersigned 2012 ESA PROJECT COMPANY, LLC a Delaware limited liability company (“Borrower”), promises to pay to                                          (“Lender”), at the office of Administrative Agent (as defined below) located at PE12GVVC (Bloom PPA) Ltd., c/o Alberta Investment Management Corp., 1100 – 10830 Jasper Avenue, Edmonton, AB T5J 2B3, Canada Attn: [                ], in lawful money of the United States of America and in immediately available funds, the principal amount of                                          AND     /100 DOLLARS ($        ), and all other amounts owed by Borrower to the Lender under the Credit Agreement, as defined below.

This Note is one of the “Notes” referred to in the Amended and Restated Credit Agreement, dated as of August 30, 2013, by and among Borrower, PE12GVVC (BLOOM PPA) LTD., as administrative agent (“Administrative Agent”) for the Lenders (as defined in the Credit Agreement), and the Lenders, as the same may be amended from time to time (the “Credit Agreement”), and is entitled to the benefits thereof and is subject to all terms, provisions and conditions thereof. Capitalized terms used and not defined herein shall have the meanings set forth in the Credit Agreement.

This Note is made in connection with and is secured by the Collateral Documents. Reference is hereby made to the Credit Agreement and the other Credit Documents for the provisions, among others, with respect to the custody and application of Collateral, the nature and extent of the security provided thereunder, the rights, duties and obligations of Borrower and the rights of the holder of this Note.

The principal amount hereof is payable in accordance with the Credit Agreement, and such principal amount may be prepaid solely in accordance with the Credit Agreement, including without limitation any prepayment fees and premiums provided for therein.

Borrower further agrees to pay, in lawful money of the United States of America and in immediately available funds, interest from the date hereof on the unpaid and outstanding principal amount hereof at the rates of interest and at the times set forth in the Credit Agreement, and Borrower agrees to provide such indemnities and to pay other fees and costs as stated in the Credit Agreement.

If any payment on this Note becomes due and payable on a date which is not a Business Day, such payment shall be made on the first succeeding, or next preceding, Business Day, in accordance with the terms of the Credit Agreement.

Upon the occurrence of any one or more Events of Default, all amounts then remaining unpaid on this Note may become or be declared to be immediately due and payable as provided

Exhibit B - 1

in the Credit Agreement and other Credit Documents, without notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor, or notices or demands of any kind, all of which are expressly waived by Borrower.

Borrower agrees to pay all costs and expenses, including without limitation attorneys’ fees, incurred in connection with the interpretation or enforcement of this Note.

This Note shall be construed and interpreted in accordance with and governed by the laws of the State of New York.

2012 ESA PROJECT COMPANY, LLC, a Delaware limited liability company
By:
	Name:
	Title:

Exhibit B - 2

EXHIBIT C-1

to Credit Agreement

FORM OF NOTICE OF BORROWING

[INSERT LETTERHEAD OF BORROWER]

Date:                  ,         

PE12GVVC (Bloom PPA) Ltd.

c/o Alberta Investment Management Corp.

1100 – 10830 Jasper Avenue

Edmonton, AB T5J 2B3

Canada

Attn: [***]

Re: 2012 ESA Project Company, LLC – Notice of Borrowing

Ladies and Gentlemen:

This Notice of Borrowing is delivered to you pursuant to Section 2.1.1(b) of the Amended and Restated Credit Agreement, dated as of August 30, 2013 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among 2012 ESA Project Company, LLC, a Delaware limited liability company, as borrower, you, as Administrative Agent, and the other financial institutions as agents and lenders from time to time party thereto. Unless otherwise defined herein, capitalized terms used herein have the meanings provided in the Credit Agreement.

This Notice of Borrowing is being delivered to you in connection with the Drawdown Certificate, dated [                    ] (the “Drawdown Certificate”). Amounts requested under this Notice of Borrowing correspond to amounts requested under the Drawdown Certificate.

Borrower hereby gives you notice in accordance with Section 2.1.1(b) of the Credit Agreement that Borrower requests the Lenders to advance to Borrower certain Loans as described below (the “Proposed Borrowing”):

The requested date of the Proposed Borrowing is                  ,         , which is a Business Day.¹

The Proposed Borrowing shall consist of an aggregate principal amount of Loans equal to $        .

¹  Notice of Borrowing must be delivered by 11:00 a.m. on a date that is at least 3 Business Days prior to the requested Borrowing date.

Exhibit C-1 - 1

[***] Confidential Treatment Requested

Borrower hereby certifies to Administrative Agent and the Lenders that the following statements are accurate, true and complete as of the date hereof, and will be accurate, true and complete as of the date of the Proposed Borrowing:

A. Each statement certified by Borrower in the Drawdown Certificate with respect to the Proposed Borrowing is accurate, true and complete.

B. The amount of the Proposed Borrowing does not exceed the undrawn portion of the Loan Commitment determined as of the date of the Proposed Borrowing.

C. As of the date of the Proposed Borrowing, each of the applicable conditions precedent set forth in Sections 3.1, 3.2 and 3.3 of the Credit Agreement shall have been satisfied or waived with respect to the Proposed Borrowing in accordance with the terms thereof.

D. Each representation and warranty of the Borrower in any of the Credit Documents shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the date of such Borrowing, before and after giving effect to the applicable Borrowing, with the same effect as though made on and as of such date, unless such representation or warranty expressly relates solely to an earlier date; and Borrower shall have certified to the Lenders as to the foregoing.

[Signature page follows]

Exhibit C-1 - 2

IN WITNESS WHEREOF, Borrower has caused this Notice of Borrowing to be duly executed and delivered by an authorized officer of Borrower as of the date first above written.

2012 ESA PROJECT COMPANY, LLC, a Delaware limited liability company

By:

Name:

Title:

Exhibit C-1 - 3

EXHIBIT C-2

to Credit Agreement

FORM OF DRAWDOWN CERTIFICATE

[LETTERHEAD OF BORROWER]

Date:                  ,         ¹

Funding Date:                  ,         

PE12GVVC (Bloom PPA) Ltd.

c/o Alberta Investment Management Corp.

1100 – 10830 Jasper Avenue

Edmonton, AB T5J 2B3

Canada

Attn: [***]

[[Address of Independent Engineer]]

Re: 2012 ESA Project Company, LLC – Drawdown Certificate

Ladies and Gentlemen:

This Drawdown Certificate is delivered to you pursuant to Section 3.3.6(a) of the Amended and Restated Credit Agreement, dated as of August 30, 2013 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among 2012 ESA Project Company, LLC, a Delaware limited liability company, as borrower, PE12GVVC (BLOOM PPA) LTD., as Administrative Agent, and the other financial institutions as agents and lenders from time to time party thereto. Capitalized terms used herein and not otherwise defined have the meanings provided in the Credit Agreement.

I, [                    ], am a Responsible Officer of Borrower. I have reviewed the provisions of the Credit Documents which are relevant to the furnishing of this Drawdown Certificate. To the extent that this Drawdown Certificate evidences, attests or confirms compliance with any covenants, representations, warranties or conditions precedent provided for in the Credit Documents, I have made such examination or investigation as was, in my opinion, reasonably necessary to enable me to express an informed opinion as to whether such covenants, representations, warranties or conditions have been complied with. This Drawdown Certificate relates to a Borrowing to take place on the date specified above as the “Funding Date” (the “Funding Date”).

¹  Certificate must be submitted to Administrative Agent and Independent Engineer at least 7 Business Days, but not more than 14 Business Days, prior to the submission of each Notice of Borrowing.

Exhibit C-2 - 1

[***] Confidential Treatment Requested

I, on behalf of Borrower, solely in my capacity as a Responsible Officer of Borrower and not in my personal capacity, and without personal liability therefor, do hereby certify to the Secured Parties that the following statements are accurate, true and complete on the date hereof, and will be accurate, true and complete on and as of the Funding Date, except as waived in writing by Administrative Agent (and with the consent of the Required Lenders if required under the terms of the Credit Agreement):

1) The Purchase Price (as defined in the MESPA) of each System Facility being financed with the proceeds of such Borrowing is set forth in Appendix I hereto.

2) The anticipated COD for each System Facility being financed with the proceeds of such Borrowing is set forth in Appendix I hereto.¹

3) No Default or Event of Default has occurred and is continuing or will result from the funding of the Credit Event hereby requested.

4) Construction of the Projects has progressed in all material respects as set forth in the Project Schedule, other than as detailed in Appendix II.

[Signature page follows]

¹  COD for each System Facility being financed with such Borrowing shall be prior to the Funding Date.

Exhibit C-2 - 2

IN WITNESS WHEREOF, the undersigned has caused this Drawdown Certificate to be duly executed and delivered on behalf of Borrower as of the date first above written.

2012 ESA PROJECT COMPANY, LLC, a Delaware limited liability company

By:

Name:

Title:

Exhibit C-2 - 3

APPENDIX I

to Drawdown Certificate

Purchase Price of each System Facility to be paid with the funds requested in connection with this Drawdown Certificate and COD for each System Facility:

System Facility	Purchase Price	COD
	$
	$
	$
	$
	$
	Total: $

Exhibit C-2 - 4

APPENDIX II

to Drawdown Certificate

Exhibit C-2 - 5

EXHIBIT D-3

to Credit Agreement

FORM OF

CONSENT AND AGREEMENT

Dated as of [o]

among

[            ]

as Project Party

[            ],

as Company

and

[            ],

as Collateral Agent

CONSENT AND AGREEMENT (this “Consent and Agreement”) dated as of [            ], among (i) [            ] organized under the laws of [            ] (the “Project Party”), (ii) [            ], a [            ] organized under the laws of [            ] the “Company”) and (iii) [            ], in its capacity as collateral agent for the Secured Parties referred to in the Credit Agreement (defined below) (the “Collateral Agent”).

The Company, [            ], in its capacity as administrative agent for the Lenders under the Credit Agreement referred to below (in such capacity, together with its successors in such capacity, the “Administrative Agent”), the Collateral Agent, and lenders party thereto are parties to a Credit Agreement dated as of [            ], 2012 (as amended, modified and supplemented and in effect from time to time, the “Credit Agreement”).

The undersigned (“Project Party”) hereby acknowledges, and consents to the assignment by the Company of the Assigned Agreement referred to below pursuant to the Security Agreement dated as of [            ], 2012 (as amended, modified and supplemented and in effect from time to time, the “Security Agreement”), between the Company and the Collateral Agent, and hereby agree as follows:

1. Definitions. Terms defined in the Credit Agreement or in the Assigned Agreement referred to below are used herein as defined therein. Unless otherwise stated, references herein to any Person shall include its successors and permitted assigns and, in the case of any Governmental Authority, any Person succeeding to its functions and capacities.

2. Representations and Warranties. The Project Party hereby represents and warrants that as of the date hereof:

(a) The Project Party is a [            ] duly organized and validly existing and in good standing under the laws of [            ]. The Project Party is duly qualified to do business and is in good standing in all jurisdictions where necessary in light of the business it conducts and the property it owns and intends to conduct and own and in light of the transactions contemplated by the [insert Project Document], dated as of [●], between the Project Party and the Company (as amended, supplemented or modified and in effect from time to time, the “Assigned Agreement”).

(b)The Project Party has the full power, authority and legal right to execute, deliver and perform its obligations hereunder and under the Assigned Agreement. The execution, delivery and performance by the Project Party of this Consent and Agreement and the Assigned Agreement and the consummation of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate or limited liability company (as applicable) action. This Consent and Agreement and the Assigned Agreement have been duly executed and delivered by the Project Party and constitute the legal, valid and binding obligations of the Project Party, enforceable against it in accordance with their respective terms except as the enforceability thereof may be limited by (i) applicable bankruptcy, insolvency, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (ii) the application of general principles of equity (regardless of whether such enforceability is considered in a proceeding at law or in equity).

(c) The execution, delivery and performance by the Project Party of this Consent and Agreement and the Assigned Agreement do not and will not (i) require any consent or approval of any governing or other authorizing authority of the Project Party or of any other Person which has not been obtained and each such consent or approval that has

2

been obtained is in full force and effect, (ii) violate any provision of any law, rule, regulation, order, writ, judgment, decree, determination or award having applicability to the Project Party or any provision of the organizational or governing documents of the Project Party, (iii) materially conflict with, result in a material breach of or constitute a material default under any provision of any indenture or loan or credit agreement or any other agreement, lease or instrument to which the Project Party is a party or by which the Project Party or its properties and assets are bound or affected or (iv) result in, or require the creation or imposition of, any Lien upon or with respect to any of the assets or properties of the Project Party now owned or hereafter acquired.

(d) No Authorization of any Governmental Authority is required for the execution, delivery or performance of this Consent and Agreement and the Assigned Agreement by the Project Party which has not been obtained, and each such Authorization that has been obtained is in full force and effect.

(e) There is no action, suit or proceeding at law or in equity by or before any Governmental Authority, arbitral tribunal or other body now pending or, to the knowledge of the Project Party, threatened against or affecting the Project Party or any of its properties, rights or assets which (i) if adversely determined, individually or in the aggregate, could have a material adverse effect on its ability to perform its obligations hereunder or under the Assigned Agreement or (ii) questions the validity, binding effect or enforceability hereof or of the Assigned Agreement.

(f) The Project Party is not in default under any material covenant or obligation hereunder or under the Assigned Agreement, no such default has occurred prior to the date hereof and the Assigned Agreement is in full force and effect and, to the best knowledge of the Project Party, the Company is not in default under any material covenant or obligation of the Assigned Agreement and no such default has occurred prior to the date hereof.

(g) The Project Party hereby acknowledges and consents to the collateral assignment by the Company to the Collateral Agent of the Assigned Agreement pursuant to the Security Agreement. After giving effect to such collateral assignment, there exists no event or condition which would constitute a default, or which would, with the giving of notice or lapse of time or both, constitute a default under the Assigned Agreement. The Project Party and, to the best knowledge of the Project Party, the Company, have complied with all conditions precedent (if any) to the respective obligations of such party to perform under the Assigned Agreement.

(h) This Consent and Agreement and the Assigned Agreement constitute and include all agreements entered into by the Project Party and the Company relating to the transactions contemplated by this Consent and Agreement and the Assigned Agreement.

3. Consent to Assignment. The Project Party hereby acknowledges, consents and agrees that:

(a) The Collateral Agent and any assignee thereof shall be entitled to exercise any and all rights of the Company under the Assigned Agreement in accordance with their respective terms and the Project Party shall comply in all respects with such exercise. Without limiting the generality of the foregoing, the Collateral Agent and any assignee

3

thereof shall have the full right and power to enforce directly against the Project Party all obligations of the Project Party under the Assigned Agreement and otherwise to exercise all remedies thereunder and to make all demands and give all notices and make all requests required or permitted to be made by the Company under the Assigned Agreement.

(b) The Project Party will not, without the prior written consent of the Collateral Agent, take any action to (i) cancel or terminate, or suspend performance under, the Assigned Agreement [(except as expressly provided in the Assigned Agreement)] or consent to or accept any cancellation, termination or suspension thereof, (ii) exercise any of its rights set forth in the Assigned Agreement to cancel or terminate, or suspend performance under, the Assigned Agreement as a result of a default by the Company unless the Project Party shall have delivered to the Collateral Agent written notice stating that it intends to exercise such right on a date (A) not less than [60] days in the case of a payment default and (B) not less than [120] days in the case of a default (other than a payment default), after the date of such notice, specifying the nature of the default giving rise to such right (and, in the case of a payment default, specifying the amount thereof) and permitting the Collateral Agent to cure such default by making a payment in the amount in default or by performing or causing to be performed the obligation in default, as the case may be, (iii) materially amend, supplement or otherwise modify the Assigned Agreement (as in effect on the date hereof) [(provided that the consent of the Collateral Agent shall not be required if the Company is not required to obtain the consent of any lenders for such amendment, supplement or modification pursuant to the Credit Agreement)], (iv) sell, assign or otherwise dispose of (by operation of law or otherwise) any part of its interest in the Assigned Agreement or (v) petition, request or take any other legal or administrative action which seeks, or may reasonably be expected, to rescind, terminate or suspend or amend or modify the Assigned Agreement or any part thereof. In furtherance of the foregoing clause (ii), the Project Party agrees that, notwithstanding anything contained in the Assigned Agreement to the contrary, upon the occurrence of a default under the Assigned Agreement that cannot by its nature be cured by the payment of money, the Project Party will not cancel or terminate the Assigned Agreement if, and for so long as, the Collateral Agent shall be diligently seeking to cure such default or otherwise to institute foreclosure proceedings, or otherwise to acquire the Company’s interest in the Assigned Agreement, and the Project Party shall grant the Collateral Agent a period of [180 days] from receipt of written notice to cure such default after the occurrence of such foreclosure or acquisition.¹

(c) The Project Party shall deliver to the Collateral Agent at the address set forth on the signature pages hereof, or at such other address as the Collateral Agent may designate in writing from time to time to the Project Party, concurrently with the delivery thereof to the Company, a copy of each material notice, request or demand given by the Project Party pursuant to the Assigned Agreement.

(d) The Project Party agrees that, if the Collateral Agent shall notify the Project Party that an event of default under the Credit Agreement has occurred and is continuing and that the Collateral Agent has exercised its rights under the Security Agreement (a) to have itself or its designee substituted for the Company under the Assigned Agreement or (b) to sell, assign, transfer or otherwise dispose of the Assigned Agreement to any person, including, without limitation, any purchaser or grantee at a

¹  Duration of cure period and whether it runs concurrently or sequentially with cure rights of Borrower will be decided on a case by case.

4

judicial or non-judicial foreclosure and sale or by a conveyance by the Company in lieu of foreclosure, and in each such case, such designee or person cures any and all payment defaults (other than for payment amounts reasonably being contested by the Company in accordance with the terms of the Assigned Agreement) of the Company or its successor under the Assigned Agreement, then the Collateral Agent, the Collateral Agent’s designee or such person (each, a “Substitute Owner”) shall be substituted for the Company under the Assigned Agreement and that, in such event, the Project Party will continue to perform its obligations under the Assigned Agreement in favor of the Substitute Owner. In the event that the Substitute Owner succeeds to the Company’s interest under the Assigned Agreement, whether by foreclosure or otherwise, the Substitute Owner shall assume liability for all of the Company’s obligations under the Assigned Agreement following such succession or assumption of interest; provided however (without limitation of the Project Party’s rights and remedies under the Assigned Agreement ), that such liability shall not include any liability for claims of the Project Party against the Company arising from the Company’s failure to perform its obligations during the period prior to the Substitute Owner’s succession to or assumption of the Company’s interest in and to the Assigned Agreement (other than payment of monetary defaults under the Assigned Agreement, the cure of which is a precondition to Substitute Owner’s succession of rights under the Assigned Agreement). Except as otherwise set forth in the immediately preceding sentence, none of the Collateral Agent, the Administrative Agent or the other Secured Parties shall be liable for the performance or observance of any of the obligations or duties of the Company under the Assigned Agreement and the assignment of the Assigned Agreement by the Company to the Collateral Agent for the benefit of the Secured Parties pursuant to the Security Agreement shall not give rise to any duties or obligations whatsoever on the part of any of the Secured Parties owing to the Project Party.

(e) Upon the exercise by the Collateral Agent of the remedies set forth in the Security Agreement, the Collateral Agent may assign its rights and interests and the rights and interests of the Company under the Assigned Agreement to any purchaser or transferee of the Project, if such purchaser or transferee shall assume all of the obligations of the Company under the Assigned Agreement. Upon such assignment and assumption, the Collateral Agent shall be relieved of all obligations under the Assigned Agreement arising after such assignment and assumption.

(f) In the event that (i) the Assigned Agreement is rejected by a trustee or debtor-in-possession in any bankruptcy or insolvency proceeding involving the Company or (ii) the Assigned Agreement is terminated as a result of any bankruptcy or insolvency proceeding involving the Company and, if within [90] days after such rejection or termination, the Collateral Agent or its designee(s) shall so request and shall certify in writing to the Project Party that it or its designee intends to perform the obligations of the Company as and to the extent required under the rejected or terminated Assigned Agreement, the Project Party will execute and deliver to the Collateral Agent or such designee(s) a new Assigned Agreement which shall be for the balance of the remaining term under the original Assigned Agreement before giving effect to such rejection or termination and shall contain the same conditions, agreements, terms, provisions and limitations as the original Assigned Agreement (except for any requirements which have been fulfilled by the Company and the Project Party prior to such rejection or termination). References in this Consent and Agreement to the “Assigned Agreement” shall be deemed to refer to such new Assigned Agreement.

(g) In the event that the Collateral Agent or its designee(s), or any purchaser, transferee, grantee or assignee of the interests of the Collateral Agent or its designee(s) in the Project assume or become liable under the Assigned Agreement (as contemplated in

5

subsection (d), (e) or (f) above or otherwise), liability in respect of any and all obligations of any such party under the Assigned Agreement shall be limited solely to such party’s interest in the Project (and no officer, director, employee, shareholder or agent thereof shall have any liability with respect thereto).

4. Arrangements Regarding Payments. All payments to be made by the Project Party to the Company under the Assigned Agreement shall be made in lawful money of the United States, directly to the Collateral Agent for deposit in Account No. [●], entitled [●], at the principal office of the Collateral Agent at [ADDRESS], or to such other Person or account and/or at such other address as the Collateral Agent may from time to time specify in writing to the Project Party, and shall be accompanied by a notice from the Project Party stating that such payments are made under such Assigned Agreement. The Company hereby authorizes and directs the Project Party to make such payments as aforesaid and all parties hereto agree that each payment by the Project Party as specified in the preceding sentence of amounts due to the Company from the Project Party under the Assigned Agreement shall satisfy the Project Party’s corresponding payment obligation under the Assigned Agreement.

5. Miscellaneous.

(a) No failure on the part of the Collateral Agent or any of its agents or designee(s) to exercise and no delay in exercising, and no course of dealing with respect to, any right, power or privilege hereunder shall operate as a waiver thereof, and no single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The remedies provided herein are cumulative and not exclusive of any remedies provided by law.

(b) All notices, requests and other communications provided for herein and under the Assigned Agreement (including, without limitation, any modifications of, or waivers or consents under, this Consent and Agreement) shall be given or made in writing (including, without limitation, by facsimile or electronic mail transmission) delivered to the intended recipient at the “Address for Notices” specified below its name on the signature pages hereof or, as to any party, at such other address as shall be designated by such party in a notice to each other party. Except as otherwise provided in this Consent and Agreement, all such communications shall be deemed to have been duly given when transmitted by facsimile or electronic mail transmission or personally delivered or, in the case of a mailed notice, upon receipt, in each case given or addressed as aforesaid.

(c) This Consent and Agreement may be amended or modified only by an instrument in writing signed by the Project Party, the Company and the Collateral Agent, and any provision of this Consent and Agreement may be waived only by the Collateral Agent. Any waiver shall be effective only for the specified purpose for which it was given.

(d) This Consent and Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the Project Party, the Company, the Secured Parties and the Collateral Agent (provided, however, that the Project Party shall not assign or transfer its rights hereunder without the prior written consent of the Collateral Agent).

6

(e) This Consent and Agreement may be executed in any number of counterparts, all of which when taken together shall constitute one and the same instrument and any of the parties hereto may execute this Consent and Agreement by signing any such counterpart. This Consent and Agreement shall become effective at such time as the Collateral Agent shall have received counterparts hereof signed by all of the intended parties hereto. Delivery of an executed counterpart of a signature page of this Consent and Agreement by facsimile transmission or other electronic transmission shall be effective as delivery of a manually executed counterpart of this Consent and Agreement.

(f) If any provision hereof is invalid and unenforceable in any jurisdiction, then, to the fullest extent permitted by law, (i) the other provisions hereof shall remain in full force and effect in such jurisdiction and shall be liberally construed in favor of the Collateral Agent and the other Secured Parties in order to carry out the intentions of the parties hereto as nearly as may be possible and (ii) the invalidity or unenforceability of any provision hereof in any jurisdiction shall not affect the validity or enforceability of such provision in any other jurisdiction.

(g) Headings appearing herein are used solely for convenience and are not intended to affect the interpretation of any provision of this Consent and Agreement.

(h) EACH OF THE PROJECT PARTY AND THE COMPANY HEREBY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN NEW YORK CITY FOR THE PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS CONSENT AND AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PROJECT PARTY AND THE COMPANY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

(i) THE AGREEMENTS OF THE PARTIES HERETO ARE SOLELY FOR THE BENEFIT OF THE PROJECT PARTY, THE COMPANY, THE COLLATERAL AGENT AND THE OTHER SECURED PARTIES, AND NO PERSON (OTHER THAN THE PARTIES HERETO, THE SECURED PARTIES AND THEIR SUCCESSORS AND ASSIGNS PERMITTED HEREUNDER) SHALL HAVE ANY RIGHTS HEREUNDER.

(j) THIS CONSENT AND AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

(k) (1) EACH OF THE PROJECT PARTY, THE COMPANY AND THE COLLATERAL AGENT HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS CONSENT AND AGREEMENT OR THE ASSIGNED AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.

7

IN WITNESS WHEREOF, each of the undersigned by its officer duly authorized has caused this Consent and Agreement to be duly executed and delivered as of this [    ] day of             , 201[●].

[●], as Project Party

By

Name:

Title:

Address for Notices:

Facsimile:

Telephone No.:

Attention:

Email:

8

[Insert Name]

By
	Name:
	Title:
By
	Name:
	Title:
Address for Notices:
[Insert Address]

[Insert Name]

as Collateral Agent

By

Name:

Title:

Address for Notices:

[Insert Address]

9

EXHIBIT E-1          

to Credit Agreement

FORM OF BORROWER’S CLOSING CERTIFICATE

2012 ESA PROJECT COMPANY, LLC,

a Delaware limited liability company

[            ], 2013

CLOSING CERTIFICATE

I hereby certify that I am a duly elected and qualified officer of 2012 ESA PROJECT COMPANY, LLC, a Delaware limited liability company (“Borrower”), and that, as such, I am authorized to execute this certificate on behalf of Borrower. This certificate is being delivered pursuant to Section 3.1.7 of the Amended and Restated Credit Agreement, dated as of August 30, 2013 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Borrower, PE12GVVC (Bloom PPA) Ltd., as Administrative Agent, and the other financial institutions as agents and lenders from time to time party thereto. Capitalized terms used herein and not otherwise defined have the meanings provided in the Credit Agreement.

I hereby certify to the Secured Parties, solely in my capacity as an authorized officer of Borrower, and not in my individual capacity and without personal liability therefor, as of the date hereof, as follows:

1. Each Credit Document delivered to Administrative Agent on or prior to the date hereof has been duly authorized, executed and delivered by each of the Credit Parties party thereto and is in full force and effect.

2. The agreements listed in Appendix I hereto constitute all of the Project Documents in effect as of the Closing Date (other than any Project Document which is only incidental to the development, construction, leasing, ownership or operation of the Project), and a true, complete and correct copy of each such Project Document has been delivered to the Administrative Agent on or prior to the date hereof pursuant to Section 3.1.6(b) of the Credit Agreement. Each Project Document has been duly authorized, executed and delivered by each of the Credit Parties party thereto and is in full force and effect.

3. Each of Borrower’s representations and warranties contained in each of the Credit Documents to which it is a party is true and correct as of the date hereof.

4. Each of the conditions precedent set forth in Section 3.1 of the Credit Agreement has been satisfied or waived in accordance with the terms and conditions of the Credit Agreement as of the date hereof.

5. As of the date hereof, no event has occurred and is continuing that constitutes a Default or an Event of Default.

Exhibit E-1 - 1

[Signature page follows]

Exhibit E-1 - 2

IN WITNESS WHEREOF, I have signed my name to this Closing Certificate as of the date first set forth above.

By:

Name:

Title:

Exhibit E-1 - 3

Appendix I

to Borrower’s Closing Certificate

Project Documents

1. MESPA

2. MOMA

3. Administrative Services Agreement

4. REC Agreement

5. AT&T Power Purchase Agreement

6. Wal-Mart Power Purchase Agreement

7. IP License Agreement

8. IP License Security Agreement

9. Equity Contribution Tri-Party Agreement

10. Wal-Mart Gas Supply Agreement

Exhibit E-1 - 4

EXHIBIT E-2          

to Credit Agreement

FORM OF CLOSING CERTIFICATE OF CREDIT PARTY

[CREDIT PARTY]

a [                                        ]

[            ], 2013

CLOSING CERTIFICATE

I hereby certify that I am a duly elected and qualified officer of [                    ], a [                    ] (the “Company”), and that, as such, I am authorized to execute this certificate on behalf of [                    ]. This certificate is being delivered pursuant to Section 3.1.7 of the Amended and Restated Credit Agreement, dated as of August 30, 2013 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among 2012 ESA Project Company, LLC, a Delaware limited liability company, as borrower, PE12GVVC (Bloom PPA) Ltd., as Administrative Agent, and the other financial institutions as agents and lenders from time to time party thereto. Capitalized terms used herein and not otherwise defined have the meanings provided in the Credit Agreement.

I hereby certify to the Secured Parties, solely in my capacity as an authorized officer of the Company, and not in my individual capacity and without personal liability therefor, as of the date hereof, as follows:

1. Each of the Company’s representations and warranties contained in each of the Credit Documents to which it is a party is true and correct as of the date hereof.

1. Attached hereto as Appendix I are true, correct and complete copies of audited annual financial statements of Sponsor for the year ended December 31, 2011 and unaudited quarterly financial statements of [                    ] for the fiscal quarter ended on September 30, 2012, delivered pursuant to Section 3.1.16 of the Credit Agreement. No material adverse change in the consolidated assets, liabilities, operations or financial condition of the Company has occurred from those set forth in the financial statements of the Company attached hereto as Appendix I. Such financial statements attached hereto as Appendix I have been prepared in good faith and in conformity with GAAP applied consistently and fairly present, in all material respects, the financial position of the Company and the results of operations and cash flows of the Company described therein, and as of the date delivered are based on reasonable assumptions (including as to all legal and factual matters material to the estimates set forth therein).¹

¹  Include only for Sponsor’s Closing Certificate, as the other Credit Parties will not have any previous financial activity to reflect prior to the closing date.

Exhibit E-2 - 1

2. As of the date hereof, no event has occurred and is continuing that constitutes a Default or an Event of Default under any of the Credit Documents to which the Company is a party.

[Signature page follows]

Exhibit E-2 - 2

IN WITNESS WHEREOF, I have signed my name to this Closing Certificate as of the date first set forth above.

Name:

Title:

Exhibit E-2 - 3

Appendix I

to Closing Certificate of Credit Party

Financial Statements

[See attached]

Exhibit E-2 - 4

EXHIBIT E-3

to Credit Agreement

FORM OF BORROWER’S SOLVENCY CERTIFICATE

[            ], 2013

This certificate is furnished pursuant to Section 3.2.15 of the Amended and Restated Credit Agreement, dated as of August 30, 2013 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among 2012 ESA Project Company, LLC, a Delaware limited liability company, as “Borrower”, PE12GVVC (BLOOM PPA) LTD., as Administrative Agent, and the other financial institutions as agents and lenders from time to time party thereto. Capitalized terms used but not otherwise defined in this certificate shall have the meanings assigned to such terms in the Credit Agreement.

The undersigned hereby certifies, on behalf of Borrower, solely in his capacity as a [Vice President] of Borrower, and not in his individual capacity, and without personal liability therefor, as follows:

1. I have reviewed the provisions of the Credit Documents which are relevant to the furnishing of this certificate, and, in my opinion, have made, or have caused to be made under my supervision, such examination or investigation as is necessary to enable me to express an informed opinion as to the matters referred to herein.

2. Based upon my review and examination described in paragraph 1 above, I certify that as of the date hereof, immediately after giving effect to the transactions to occur on the Supplemental Funding Date (a) the aggregate value of all properties of the Borrower at their present saleable value (i.e., the amount that may be realized within a reasonable time, considered to be six months to one year, either through collection or sale at the regular market value, conceiving the latter as the amount that could be obtained for the property in question within such period by a capable and diligent businessperson from an interested buyer who is willing to purchase under ordinary selling conditions), exceed the amount of all the debts and liabilities (including contingent, subordinated, unmatured and unliquidated liabilities) of the Borrower, (b) the Borrower will not, on a consolidated basis, have an unreasonably small capital with which to conduct its business operations heretofore conducted and (c) the Borrower will have, on a consolidated basis, sufficient cash flow to enable it to pay its debts as they mature.

[Signature page follows]

PPA III – Solvency Certificate

IN WITNESS WHEREOF, the undersigned has duly executed and delivered this certificate as of the date first written above.

Name:

Title:

PPA III – Solvency Certificate

EXHIBIT F

Form of Equity Capitalization Certificate

All of the Class A membership interests of Holdings shall be held by the Tax Equity Investors. All of the Class B membership interests of Holdings shall be held indirectly by Sponsor.

EXHIBIT G

to Credit Agreement

OWNER ACKNOWLEDGEMENT

This Owner Acknowledgement and Confirmation, dated as of                  , 20     (this “Acknowledgement”), is made by                     , (“Owner”) as the owner of the facility located at                      (the “Property”), which Property is leased by Wal-Mart Stores, Inc., a Delaware corporation, the “Host” under that certain by that certain lease agreement dated              by and between Owner and Host.

Owner has been made aware of the Amended and Restated Master Fuel Cell Power & Services Agreement dated as of December     , 2012 (as amended from time to time, the “Agreement”) between Host and 2012 V PPA Project Company, LLC a Delaware limited liability company (“Provider”), pursuant to which a fuel cell system (the “System”) is to be installed, operated and maintained by Provider at the Property. The System will be connected to the electrical system of the Property as a supplemental source of electrical power. This Acknowledgement is provided pursuant to Section 5.4 of the Agreement. Owner has been advised that part of the collateral securing financial accommodations made pursuant the Credit Agreement dated as of                      (as the same may be amended, modified or supplemented from time to time, the “Credit Agreement”) among PE12GVVC (Bloom PPA) Ltd as administrative agent (in such capacity, the “Administrative Agent”) for the lenders from time to time party thereto, the Provider, such lenders and Deutsche Bank Trust Company Americas, as collateral agent (in such capacity, “Collateral Agent”) is a first priority security interest (the “Security Interest”) in the System (as defined in the Agreement) granted to the Collateral Agent to be perfected by the filing of a Financing Statement (Form UCC-1) under the Uniform Commercial Code. The Security Interest will cover the System as personal property and as a fixture. The Administrative Agent is the “Lender” for purposes of the Agreement.

Owner hereby acknowledges and confirms to Lender the following matters with respect to the Property:

(a) Provider has the rights to install the System set forth in the Agreement and the Agreement does not prohibit Provider’s grant of the Security Interest.

(b) To the best of Owner’s knowledge, the granting of the Security Interest will not violate any term or condition of the Lease, or any covenant, restriction, lien, financing agreement, or security agreement to which Owner is a party.

(c) Owner acknowledges that Section 5.4 of the Agreement states that, as between the Parties, the System is personal property and not a fixture and Lender has relied upon the characterization of the System in such Section 5.4 in accepting the Security Interest as collateral for its financing of the System; provided that Owner is not making any representation about the legal characterization of the System as personal property under any law.

(d) Assuming the validity of the System classification as described above, Owner is aware of no existing Lease, mortgage or security interest to which Owner or its affiliates are a party or by which the Property or Building is bound that would constitute a lien or security interest in the System as an interest adverse to Lender’s Security Interest therein.

(e) Owner covenants that it will not (i) assert or affirmatively claim or represent in any agreement or contract that the System is not personal property (as opposed to a fixture) or is not owned by Provider or Lender, or (ii) enter into any security agreement or similar document that specifies the System as being part of the collateral for the lien or security interest therein.

	OWNER:
[                                                             ]
By:
Name:
Date:

2

OWNER ACKNOWLEDGEMENT

This Owner Acknowledgement and Confirmation, dated as of                  , 2012 (this “Acknowledgement”), is made by Wal-Mart Stores, Inc., a Delaware corporation (“Owner”). Owner is the owner of real property situated at                      (the “Property”).

Owner is party to that certain Amended and Restated Master Fuel Cell Power & Services Agreement dated as of December     , 2012 (as amended from time to time, the “Agreement”) with 2012 V PPA Project Company, LLC a Delaware limited liability company ( “Provider”), pursuant to which a fuel cell system (the “System”) is to be installed, operated and maintained by Provider at the Property. The System will be connected to the electrical system of the Building as a supplemental source of electrical power. Owner is the “Host” under the Agreement.

This Acknowledgement is provided pursuant to Section 5.4 of the Agreement to Provider. Financial accommodations are being made to the Provider to finance the installation of the System pursuant to the Credit Agreement dated as of December 21, 2012 (as the same may be amended, modified or supplemented from time to time, the “Credit Agreement”) among PE12GVVC (Bloom PPA) Ltd as administrative agent (in such capacity, the “Administrative Agent”) for the lenders from time to time party thereto, the Provider, such lenders and Deutsche Bank Trust Company Americas, as collateral agent (in such capacity, “Collateral Agent”). The Administrative Agent is the “Lender” for purposes of the Agreement.

Owner has been advised that part of the collateral securing such financial accommodations is the granting to the Collateral Agent a first priority security interest (the “Security Interest”) in the System to Lender to be perfected by the filing of a Financing Statement (Form UCC-1) under the Uniform Commercial Code. The Security Interest will cover the System as personal property and as a fixture.

Owner hereby acknowledges and confirms to Lender the following matters with respect to the Premises:

(a) Provider has the rights to install the System set forth in the Agreement and the Agreement does not prohibit Provider’s grant of the Security Interest.

(b) To the best of Owner’s knowledge, the granting of the Security Interest will not violate any term or condition of any covenant, restriction, lien, financing agreement, or security agreement to which Owner is a party.

(c) Owner acknowledges that Section 5.4 of the Agreement states that, as between the Parties, the System is personal property (as opposed to a fixture) and the Collateral Agent has relied upon the characterization of the System in such

Section 5.4 in accepting the Security Interest as collateral for the financing of the System; provided that Owner is not making any representation about the legal characterization of the System as personal property under any law.

(d) Assuming the validity of the System classification as personal property and not a fixture, Owner is aware of no existing lease, mortgage or security interest to which Owner or its affiliates are a party or by which the Premises or Building is bound that would constitute a lien or security interest in the System as an interest adverse to Lender’s Security Interest therein.

(e) Owner covenants that it will not (i) assert or affirmatively claim or represent in any agreement or contract that the System is not personal property (and not a fixture) or is not owned by Provider or Lender, or (ii) enter into any security agreement or similar document that specifies the System as being part of the collateral for the lien or security interest therein.

	WAL-MART STORES, INC.
	By:
	Name:
Title:

2

EXHIBIT H

to Credit

Agreement

FORM OF PPA2-C ASSIGNMENT AGREEMENT

1

ASSIGNMENT and ASSUMPTION AGREEMENT

This ASSIGNMENT and ASSUMPTION AGREEMENT (this “Agreement”) is entered effective as of May 15, 2013 (the “Effective Date”), by and among 2013B ESA Project Company, LLC, a Delaware limited liability company (“Assignee”), and 2012 ESA Project Company, LLC, a Delaware limited liability company (“Assignor”).

RECITALS

WHEREAS, Assignor and AT&T Corp. (“AT&T Corp.”) are party to (a) that certain Energy System Use Agreement (Agreement No. 20130403.076.C) dated as of May 15, 2013 (as such may be amended from time to time, “PPA2-C”) and (b) that certain Site Lease Agreement related to PPA2-C dated as of May 15, 2013 (as such may be amended from time to time, “SLA-C”, and, together with PPA2-C, the “AT&T Agreements”);

WHEREAS, pursuant to Article 14 of PPA2-C, Assignor shall have the right, without consent of AT&T Corp., to assign PPA2-C or rights thereunder or delegate obligations to any affiliate; provided that (i) any such assignment or delegation to an affiliate is conditioned upon the assignee’s assumption of all delegated or assigned obligations and liabilities of Assignor under PPA2-C, and (ii) Assignor shall not assign or delegate to any affiliate that is a competitor of AT&T Corp. without AT&T Corp.’s prior written consent (which may be withheld in its sole discretion);

WHEREAS, pursuant to Section 12 of SLA-C, Assignor may in its sole discretion and without the consent of AT&T Corp. assign any of its rights, duties or obligations under SLA-C to one or more of its affiliates, so long as (i) Assignor remains liable for all of its obligations under SLA-C, (ii) that any such assignee agrees to be bound by all of the terms and conditions of SLA-C, (iii) no such assignment shall preclude AT&T Corp. from dealing solely and directly with Assignor in all matters pertaining to SLA-C, and (iv) the assignment shall not impose upon AT&T Corp. any material costs or obligations;

WHEREAS, Assignor now wishes to assign to Assignee, and Assignee wishes to accept from Assignor, all of Assignor’s rights, title, interest, duties, obligations and liabilities under (i) PPA2-C and (ii) SLA-C (collectively, the “Assigned Interests”); and

WHEREAS, Assignor and Assignee are “affiliates” for purposes of the AT&T Agreements, and now desire to enter into this Agreement to evidence the transfer of the aforementioned Assigned Interests.

NOW, THEREFORE, in consideration of the mutual promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows.

AGREEMENT

1. Assignment and Assumption. As of the Effective Date, Assignor assigns and transfers to Assignee all of Assignor’s rights, title and interest in and to the Assigned Interests. Assignee (a) accepts the assignment of the Assigned Interests, effective as of the Effective Date,

2

(b) irrevocably assumes, undertakes, and agrees that it shall be bound to perform and observe all of the duties, obligations and liabilities of Assignor with respect the Assigned Interests, effective as of the Effective Date, and (c) hereby agrees to be bound by the terms and conditions of the AT&T Agreements with respect to the Assigned Interests.

2. Indemnification.

(a) Assignor will hold harmless, indemnify and defend Assignee, its members, officers, directors, agents, employees and assigns (each, an “Assignee Indemnified Party”) from and against any and all claims, judgments, settlements, losses, damages, demands, suits, causes of action, liabilities, fines, penalties, costs and expenses (including, without limitation, court costs, attorney’s fees, and other reasonable costs of suit or dispute resolution) (“Losses”), whether arising at law or in equity, due to or arising from any willfully wrongful acts or omissions on the part of Assignor with respect to any of the Assigned Interests prior to the Effective Date; provided that that no Assignee Indemnified Party shall be entitled to indemnification for any consequential, incidental, indirect, special or punitive damages whatsoever. Indemnification pursuant to this Section 2 shall be an Assignee Indemnified Party’s sole and exclusive source of recovery against Assignor of any kind for any and all Losses arising out of or directly or indirectly relating to this Agreement.

(b) Assignee will hold harmless, indemnify and defend Assignor, its members, officers, directors, agents, employees and assigns (each, an “Assignor Indemnified Party”) from and against any and all Losses, whether arising at law or in equity, due to or arising from any willfully wrongful acts or omissions on the part of Assignee with respect to any of the Assigned Interests on and after the Effective Date; provided that that no Assignor Indemnified Party shall be entitled to indemnification for any consequential, incidental, indirect, special or punitive damages whatsoever. Indemnification pursuant to this Section 2 shall be an Assignor Indemnified Party’s sole and exclusive source of recovery against Assignee of any kind for any and all Losses arising out of or directly or indirectly relating to this Agreement

(c) In the event a party wishes to make a claim for indemnification under this Section 2, it shall promptly notify the indemnifying party in writing of the facts constituting the basis for such claim and the amount, to the extent known, of the claim asserted and all reasonably necessary or relevant information, assistance and authority to settle and/or defend any claim. In the event of a claim by a third party (“Third Party Claim”), provided that the indemnified party delivers timely notice to the indemnifying party of such Third Party Claim and makes no admission of liability with respect to such Third Party Claim, the indemnifying party shall assume on behalf of the indemnified party, and conduct with due diligence and in good faith, the defense of such Third Party Claim. Without relieving the indemnifying party of its obligations hereunder or impairing the indemnifying party’s right to control the defense or settlement of a Third Party Claim, the indemnified party may elect to participate through separate counsel in the defense of a Third Party Claim, but the fees and expenses of such counsel shall be at the expense of such indemnified party; provided that in the event that (i) the indemnified party shall have reasonably concluded that there exists a material conflict of interest between the indemnifying party and the indemnified party in the conduct of the defense of a Third Party Claim or (ii) the indemnifying party shall not have employed counsel to assume the defense of such claim within a reasonable time after notice of the commencement of an action thereon, the indemnified party may elect to defend separately such Third Party Claim and the reasonable fees and expenses of counsel reasonably incurred shall be paid by the indemnifying party. No

3

settlement that would impose any cost or expense upon a party seeking indemnification shall be made without such party’s prior written consent. No indemnifying party shall settle any Third Party Claim in a manner which would require any action or forbearance from action by the indemnified party without the prior written consent of the indemnified party, which consent shall not be unreasonably withheld, and no indemnified party shall settle any Indemnity Claim in a manner which would require any action or forbearance from action by any Indemnifying Party without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld.

3. Amendment and Modification. This Agreement may be amended, modified or supplemented only by written agreement of Assignor and Assignee. No amendment or modification of this Agreement that would impose any additional material obligations on, or materially impair any rights of, any person or entity who is not a party to this Agreement shall be effective without such affected party’s consent. Neither Assignor nor Assignee shall agree to any amendment of an Assigned Agreement without the prior written consent of the other party if such modification would impose any additional material obligations on, or materially impair any rights of, the other party.

4. Obligation to Notify AT&T Corp. Within ten (10) business days of the execution of this Agreement, Assignor shall deliver written notice to AT&T Corp. of the assignment of the Assigned Interests in PPA2-C and SLA-C, which notice shall direct AT&T Corp. to deliver any future notices, communications and waivers under PPA2-C to Assignee at the address for notices set forth in Section 5(b), below.

5. Notices. All notices and other communications hereunder shall be in writing and shall be deemed given when received if delivered personally, via electronic mail or by facsimile transmission with completed transmission acknowledgment, or when delivered or when delivery is refused if mailed by overnight delivery via a nationally recognized courier or registered or certified first class mail (return receipt requested), postage prepaid, to the recipient party at its address (or at such other address or facsimile number for a party as shall be specified by like notice; provided, however, that notices of a change of address shall be effective only upon receipt thereof):

(a) If to Assignor, to:

2012 ESA Project Company, LLC

c/o Bloom Energy Corporation

1299 Orleans Dr

Sunnyvale, CA 94089-1137

Email address: [***]

(b) If to Assignee, to:

2013B ESA Project Company, LLC

c/o Bloom Energy Corporation

1299 Orleans Dr

Sunnyvale, CA 94089-1137

Email address: [***]

[***] Confidential Treatment Requested

4

With a copy to:

Silicon Valley Bank

555 Mission Street, 9^th Floor

San Francisco, CA 94105

Attn: [***]

Telephone: [***]

Email: [***]

6. Governing Law; Jurisdiction; Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW OR OTHER PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN NEW YORK COUNTY, NEW YORK WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING TO ANY SUCH DISPUTE AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO.

7. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signatures delivered by facsimile (or portable document format) will be considered original signatures, and each party shall thereafter promptly deliver original signatures to the other party.

8. Successors and Assigns.This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns (including by operation of law), but neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any party, whether by operation of law or otherwise, without the prior written consent of the other party, provided that Assignee may collaterally assign its rights under this Agreement to any party providing debt or equity financing to it without the consent of Assignor.

[Signature Page Follows]

[***] Confidential Treatment Requested

5

IN WITNESS WHEREOF, the undersigned have caused this Agreement to be signed by their respective duly authorized officers.

ASSIGNEE:

2013B ESA Project Company, LLC

a Delaware limited liability company

By:

Name:

Title:

ASSIGNOR:

2012 ESA Project Company, LLC

a Delaware limited liability company

By:

Name:

Title:

EXHIBIT I

to Credit Agreement

FORM OF ACCOUNT WITHDRAWAL REQUEST

Date:              ,         

PE12GVVC (Bloom PPA) Ltd.

c/o Alberta Investment Management Corp.

1100 – 10830 Jasper Avenue

Edmonton, AB T5J 2B3

Canada

Attn: [                     ]

Re: 2012 ESA Project Company, LLC – Account Withdrawal Request

Ladies and Gentlemen:

I,                                         , am a Responsible Officer of 2012 ESA Project Company, LLC, a Delaware limited liability company (“Borrower”), and am delivering this Account Withdrawal Request pursuant to that certain Amended and Restated Credit Agreement, dated as of August 30, 2013 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Borrower, you, as Administrative Agent, and the other financial institutions as agents and lenders from time to time party thereto. Unless otherwise defined herein or unless the context otherwise requires, capitalized terms used in this Account Withdrawal Request have the meanings provided in the Credit Agreement and section references are references to sections of the Credit Agreement.

In this Account Withdrawal Request, Borrower requests Administrative Agent to direct Depositary to withdraw funds from the following Accounts and apply such funds as provided herein:

Account from which to withdraw/transfer Withdrawal/Transfer
Date Amount to be
withdrawn/transferred Account/Person to be
Transferred to,
including address or
wire transfer
information, as
applicable Purpose

I have reviewed the provisions of the Credit Agreement and the Depositary Agreement which are relevant to the furnishing of this Account Withdrawal Request and hereby certify, on behalf of Borrower, solely in my capacity as [                    ] thereof, and not in my individual capacity, and without personal liability therefor, that:

(i) the withdrawals and transfers requested herein comply with the terms and conditions of the Credit Agreement (including but not limited to Article 7 of the Credit Agreement) and the Depositary Agreement and the proposed Account Withdrawal Instruction [and the [list items] to be delivered pursuant thereto in connection with this Account Withdrawal Request are] [is] attached hereto as [list exhibits and attach];

(ii) to the extent that this Account Withdrawal Request evidences, attests or requires compliance with any covenants, representations, warranties or conditions precedent in the Credit Agreement or the Depositary Agreement, I have made such examination or investigation as was, in my opinion, reasonably necessary to enable me to express an informed opinion as to whether such covenants, representations, warranties or conditions have been complied with; and

(iii) no Event of Default has occurred and is continuing.

[Signature page follows]

IN WITNESS WHEREOF, I, the [                    ] of Borrower, have caused this Account Withdrawal Request to be duly executed and delivered as of the date first above written.

2012 ESA PROJECT COMPANY, LLC,
a Delaware limited liability company
By:
	Name:
	Title:

EXHIBIT A – Account Withdrawal Instruction

[OTHER EXHIBITS, IF APPLICABLE]

EXHIBIT J

to Credit Agreement

Requirements for Replacement Risk Policy

1. In the event a Replacement Risk Policy is offered, it must contain the best terms offered to and accepted by a Bloom customer (capital expenditure acquisition of Bloom equipment or power purchase agreement customers) in a similar transaction.

2. Administrative Agent may then accept or reject such policy in its sole discretion.

Administrative Agent hereby informs Bloom that it will be inclined to reject a Replacement Risk Policy unless it meets the following:

a. Policy must cover the then outstanding principal and accrued interest.

b. The insurer must be a nationally recognized insurance company with a financial strength rating by A.M Best of A- or better and A- by at least one nationally recognized statistical rating organization.

c. The terms and conditions of the policy must include a full repayment of the then outstanding principal and accrued interest upon default of Bloom or Bloom’s obligations under either the MOMA or MESPA contracts.

d. The policy must have been accepted as a replacement risk policy by a sophisticated investor as part of a limited recourse debt financing.

EXHIBIT K

to Credit Agreement

FORM OF ANNUAL INSURANCE CERTIFICATE

[LETTERHEAD OF BORROWER’S INSURANCE BROKER/INSURANCE CONSULTANT]

Date:             ,         

PE12GVVC (Bloom PPA) Ltd. as Administrative Agent

1100-10830 Jasper Avenue

Edmonton, AB, Canada T5J 2B3

Re: 2012 ESA Project Company, LLC – Annual Insurance Certificate

Ladies and Gentlemen:

The undersigned, a duly authorized representative of [Woodruff-Sawyer & Co. (“Insurance Broker”)]/[Moore-McNeil LLC (“Insurance Consultant”)] hereby delivers this Annual Insurance Certificate to you in accordance with Section 5.8.3 of that certain Amended and Restated Credit Agreement, dated as of August 30, 2013 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among 2012 ESA Project Company, LLC, a Delaware limited liability company (“Borrower”), PE12GVVC (Bloom PPA) Ltd., as Administrative Agent, and the other financial institutions from time to time party thereto. Except as provided herein, all terms used herein that are defined in the Credit Agreement shall have the meanings given therein.

[Insurance Broker]/[Insurance Consultant] hereby makes the following statements as of the date hereof:

1. Attached hereto as Annex 1 are true, accurate and complete copies of the certificates of insurance evidencing, and containing a description of, the insurance currently maintained by or on behalf of Borrower pursuant to Schedule 5.15 to the Credit Agreement, which insurance is in full force and effect and complies in all material respects with Schedule 5.15 to the Credit Agreement.

2. [Insurance Broker version] There have been no material changes (other than any improvements) to the insurance cover including sublimits, deductibles, exclusions and the Required Lender Provisions (as such term is defined in Schedule 5.15 to the Credit Agreement) compared to the cover that was in place at the Closing Date or, if later, the date of first inception of such policy cover[, other than: [Insert]]¹.

2. [Insurance Consultant version] Insurance Broker has reported there have been material changes (other than improvements) to the insurance cover compared to the cover that was in place at the Closing Date or, if later, the date of first inception of such policy cover. It is our opinion that [Insert]].

¹  Delete text in brackets and Insurance Consultant references and options if there are no material changes other than improvements. If any material changes (other than improvements) are listed, a separate, second version of this certificate must be completed with appropriate amendments (including the Insurance Consultant version of paragraph 2) and signed by the Insurance Consultant.

EXHIBIT K

to Credit Agreement

3. Attached hereto as Annex 2 is evidence of the payment of the premiums due prior to the date hereof with respect to the insurance currently maintained by or on behalf of Borrower.

[Insurance Broker]/[Insurance Consultant] has caused this Annual Insurance Certificate to be duly executed and delivered by an authorized officer of [Insurance Broker]/[Insurance Consultant] as of the date first above written.

[WOODRUFF-SAWYER & CO.]/[MOORE- McNEIL, LLC]
By:
	Name:
	Title:

EXHIBIT K

to Credit Agreement

Annex 1

EXHIBIT K

to Credit Agreement

Annex 2

SAMPLE ACCEPTANCE LETTER FOR ANNUAL RENEWAL OF APPOINTMENT OF CT AS AGENT

[date]

[address]

Att:

RE: [SPECIFIC REFERENCE TO AGREEMENT IN WHICH C T IS DESIGNATED]

Dear Sir or Madam:

C T Corporation System, located at 111 Eighth Avenue, New York, New York 10011 [or other specific C T address appropriate to the designation], hereby accepts its appointment as agent for service of process for [name of principal designating C T as agent] in connection with the above referenced Agreement.

We understand any process received by us shall be forwarded to:

[complete street address to which process is to be forwarded]

CT must be notified immediately of any change(s) to this address or the billing address.

We acknowledge receiving $[            ] as payment of our charges for the first year of [this/these] appointment(s). [STATE NAME AND ADDRESS OF THE PARTY WHO WILL RECEIVE THE ANNUAL RENEWAL BILLS] will be billed annually at our then current renewal rate so long as such bills continue to be paid, or until we are advised in advance in writing to discontinue our representation.

Our services are limited to the receipt and forwarding of service of process.

Our acceptance of this designation and our continued representation is contingent upon our receipt of timely payment of our charges for this service.

Very truly yours,

[Name of C T Customer Specialist]

EXHIBIT M

to Credit Agreement        

FORM OF ASSIGNMENT AND ASSUMPTION

This Assignment and Assumption (the “Assignment and Assumption”) is dated as of the Effective Date set forth below and is entered into by and between [the][each]¹ Assignor identified in item 1 below ([the][each, an] “Assignor”) and [the][each]² Assignee identified in item 2 below ([the][each, an] “Assignee”). [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees]³ hereunder are several and not joint.]⁴ Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (as amended, the “Credit Agreement”), receipt of a copy of which is hereby acknowledged by [the][each] Assignee. The “Standard Terms and Conditions” set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.

For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below, (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of [the Assignor][the respective Assignors] under the respective facilities identified below (including without limitation any letters of credit, and guarantees included in such facilities), and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “Assigned Interest”). Each such sale and assignment is without recourse to [the][any] Assignor and, except as expressly provided in this Assignment and Assumption, without representation or warranty by [the][any] Assignor.

¹  For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language.

²  For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language.

³  Select as appropriate.

⁴  Include bracketed language if there are either multiple Assignors or multiple Assignees.

Exhibit M - 1

1.  Assignor[s]:
[Assignor [is] [is not] a Defaulting Lender]
2.  Assignee[s]:
[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Lender]
3.  Borrower:	2012 ESA Project Company, LLC
4.  Administrative Agent:	PE12GVVC (BLOOM PPA) LTD., as the administrative agent under the Credit Agreement
5.  Credit Agreement:	The Amended and Restated Credit Agreement dated as of August 30, 2013 among 2012 ESA Project Company, LLC, as borrower, the Lenders parties thereto, PE12GVVC (BLOOM PPA) LTD., as Administrative Agent, and the other agents parties thereto
6.  Assigned Interest[s]:

Assignor[s]5	Assignee[s]6	Amount of Loan Commitment Assigned	Percentage Assigned of Loan Commitment		Amount of Outstanding Loans Assigned	Percentage Assigned of Outstanding Loans
		$		%	$		%
		$		%	$		%
		$		%	$		%

[Page break]

⁵  List each Assignor, as appropriate.

⁶  List each Assignee, as appropriate.

Exhibit M - 2

Effective Date:              , 20     [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]

The terms set forth in this Assignment and Assumption are hereby agreed to:

ASSIGNOR[S]7
[NAME OF ASSIGNOR]
By:
	Title:
[NAME OF ASSIGNOR]
By:
	Title:
ASSIGNEE[S]8
[NAME OF ASSIGNEE]
By:
	Title:
[NAME OF ASSIGNEE]
By:
	Title:

[Consented to and]9 Accepted:
[NAME OF ADMINISTRATIVE AGENT], as
Administrative Agent
By:
	Title:

⁷  Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the trade (if applicable).

⁸  Add additional signature blocks as needed. Include both Fund/Pension Plan and manager making the trade (if applicable).

⁹  To be added only if the consent of the Administrative Agent is required by the terms of the Credit Agreement.

Exhibit M - 3

[Consented to:]¹⁰

[2012 ESA PROJECT COMPANY, LLC]
By:
	Title:

¹⁰  To be added only if the consent of the Borrower is required by the terms of the Credit Agreement.

Exhibit M - 4

ANNEX 1

[                    ]¹¹

STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION

1. Representations and Warranties.

1.1 Assignor[s]. [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim, (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and (iv) it is [not] a Defaulting Lender; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Credit Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Credit Documents or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Credit Document, or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Credit Document.

1.2. Assignee[s]. [The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all the requirements to be an assignee under Section 12.13 of the Credit Agreement (subject to such consents, if any, as may be required under Section 12.13 of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 5.5 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, and (vii) [if it is a Foreign

¹¹  Describe Credit Agreement at option of Administrative Agent.

Exhibit M - 5

Lender]¹² attached to the Assignment and Assumption is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance on the Administrative Agent, [the][any] Assignor or any other Lender, and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Credit Documents are required to be performed by it as a Lender.

2. Payments. From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after the Effective Date.¹³ Notwithstanding the foregoing, the Administrative Agent shall make all payments of interest, fees or other amounts paid or payable in kind from and after the Effective Date to [the][the relevant] Assignee.

3. General Provisions. This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by email shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by, and construed in accordance with, the law of the State of New York.

¹²  The concept of “Foreign Lender” should be conformed to the section in the Credit Agreement governing withholding taxes and gross-up. If the Borrower is a U.S. Borrower, the bracketed language should be deleted.

¹³  The Administrative Agent should consider whether this method conforms to its systems. In some circumstances, the following alternative language may be appropriate:

“From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignee whether such amounts have accrued prior to, on or after the Effective Date. The Assignor[s] and the Assignee[s] shall make all appropriate adjustments in payments by the Administrative Agent for periods prior to the Effective Date or with respect to the making of this assignment directly between themselves.”

Exhibit M - 6

EXHIBIT N

to Credit Agreement

FORM OF PACIFIC BELL TELEPHONE COMPANY DIRECT AGREEMENT

LENDER AGREEMENT

This Lender Agreement, dated as of May 15, 2013 (this “Lender Agreement”), is by and among Pacific Bell Telephone Company a California corporation (“Customer”), 2012 ESA Project Company, LLC a Delaware limited liability company (“Supplier”), and PE12GVVC (Bloom PPA) Ltd. as administrative agent (in such capacity, the “Administrative Agent”) for the lenders from time to time party to the Credit Agreement dated as of December 21, 2012 (as the same may be amended, modified or supplemented, amended or restated, in whole or part from time to time the (“Credit Agreement”)) among the Supplier, Administrative Agent, such lenders and Deutsche Bank Trust Company Americas, as collateral agent (in such capacity, “Collateral Agent”). The Administrative Agent is the “Lender” for purposes of the Agreement and this Lender Agreement.

WHEREAS, Supplier and Customer are parties to an Energy System Use Agreement dated May 15, 2013 (the “Agreement”), the defined terms of which are used herein unless otherwise defined herein;

WHEREAS, the lenders under the Credit Agreement will make a loan to Supplier to finance all or part of the costs of the Systems and in connection therewith desire that the Collateral Agent take a security interest in the Systems and the Agreement for the Administrative Agent as agent for the secured parties benefiting from such security interest, to avail itself (or direct the Collateral Agent to avail itself) of the rights provided for the “Lender” in the Agreement and this Lender Agreement; and

WHEREAS, to avail itself of such rights, Lender must agree to comply with certain terms and conditions in the Agreement applicable to the Lender;

NOW THEREFORE, for and in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Supplier, Customer and Lender hereby agree as follows:

1. Lender’s Rights. Supplier and Customer hereby agree in favor of Lender that Lender is, and shall be, entitled to exercise any and all remedies afforded to Supplier, and to cure any defaults of Supplier, subject to the terms and conditions of this Lender Agreement.

a. The Lender, as collateral assignee, shall be entitled to exercise, in the place and stead of Supplier, any and all rights and remedies of Supplier under the Agreement in accordance with the terms of this Lender Agreement. Lender shall also be entitled to exercise all rights and remedies of secured parties, or the owner of the Systems, generally with respect to the Agreement and the Systems.

1

b. The Lender shall have the right, but not the obligation, to pay all sums due under the Agreement and to perform any other act, duty or obligation required of Supplier thereunder or cause to be cured any default of Supplier thereunder in the time and manner provided by the terms of the Agreement. Nothing herein requires the Lender to cure any default of Supplier under the Agreement or (unless the Lender has succeeded to Supplier’s interests under the Agreement) to perform any act, duty or obligation of Supplier under the Agreement, but Customer hereby gives it the option, in its sole discretion, to elect to do so; provided that if the Lender directly or indirectly, takes or causes the transfer of ownership or control of the Systems or the Agreement, whether by or through an assignment, receiver, foreclosure, conveyance in lieu thereof, or any other proceeding, action or method, then the Lender will (a) cure any Supplier defaults within the time frame specified for the Supplier to cure the default following notice from Customer to the Supplier and the Lender under the Agreement (which time period shall, for the sake of clarity, commence with respect to Lender on the date that Lender receives notice from Customer as provided therein) to the extent that such defaults are capable of being cured by Lender (but not to include payment of any monetary damages or offsets for failure to provide Customer with the usage of the System during the default period before such taking of title or possession or any consequential damages claimed as a result of such failure to during such default period, as no such damages may be claimed by Customer pursuant to this Lender Agreement), as a condition to such taking of possession or title and (b) fully assume all of Supplier’s obligations under the Agreement arising on and after the date of such taking of possession or title.

c. Customer will not exercise any right to terminate or suspend the Agreement unless it shall have given both the Supplier and the Lender written notice of the applicable Supplier default and neither Supplier or Lender has cured such default within the time periods afforded pursuant to Section 12.1 of the Agreement. The Parties’ respective obligations will otherwise remain in effect during any cure period.

d. Upon notice by Supplier that Lender is exercising Supplier’s rights, Customer shall send copies of all notices specified by Lender in writing to Lender and, upon request by Lender, Customer shall make all payments under the Agreement to an account specified by the Lender. Payments made to Lender shall satisfy Customer’s payment obligations to Supplier. Customer shall send a copy of all of the foregoing notices to Supplier as well.

e. Upon any rejection or other termination of the Agreement pursuant to any process undertaken with respect to Supplier under the United States Bankruptcy Code, and provided that Lender directly or indirectly has taken ownership and control of the System and the Agreement and complied with its obligations under Section 1(b) above, (i) at the request of Lender made within ninety (90) days of such rejection or termination, Customer shall enter into a new or amended agreement with Lender to reflect the change in counterparty but otherwise having the same terms and conditions as the Agreement, and (ii) Lender shall enter into a new or amended agreement with Customer to reflect the change in counterparty but otherwise having the same terms and conditions as the Agreement if Customer so requests within ninety (90) days after such rejection or termination.

2

2. Confidentiality. Lender agrees with Customer and Supplier to comply with the confidentiality and related provisions in the Agreement as if it were a Party thereto.

3. Amendment. Customer and Supplier agree with Lender that no amendment, supplement or other modification of the Agreement shall be effective unless prior advance written consent thereof has been provided by Lender.

4. Notices. Customer agrees that it shall provide Lender with notice of all Supplier defaults at the same time that it provides notice of such defaults to Supplier. All notices and communications required to be delivered to Lender with respect to the Agreement shall be in writing and addressed to the Lender as follows:

PE12GVVC (Bloom PPA) Ltd.

c/o Alberta Investment Management Corporation

1100 – 10830 Jasper Avenue

Edmonton, Alberta T5J 2B3, Canada

Attn: [***]

Telephone: [***]

Email: [***]

5. Governing Law. This Lender Agreement has been delivered in, and shall in all respects be governed by, and construed in accordance with, the laws of the State of New York applicable to agreements made and to be performed entirely within such State. The provisions of the Agreement relating to dispute resolution shall apply to this Lender Agreement, mutatis mutandis.

6. Miscellaneous. This Lender Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns. This Lender Agreement may be executed and delivered in counterparts (including by electronic transmission). This Lender Agreement may only be amended, supplemented or otherwise modified by an instrument in writing executed by duly authorized representatives of the party to be bound thereby.

[***] Confidential Treatment Requested

3

Executed as of the date first written above:

CUSTOMER:		SUPPLIER:
Pacific Bell Telephone Company By: AT&T Services, Inc., its authorized representative		2012 ESA Project Company, LLC
By:		By:
Name:	[***]	Name:	William Brockenborough
Title:	[***]	Title:	Vice President

LENDER:

PE12GVVC (Bloom PPA) Ltd.

as Administrative Agent

By:

Name:

Title:

[***] Confidential Treatment Requested

4

EXHIBIT O

to Credit Agreement

FORM OF AT&T CORP. DIRECT AGREEMENT

LENDER AGREEMENT

This Lender Agreement, dated as of May 15, 2013 (this “Lender Agreement”), is by and among AT&T CORP. a Delaware corporation (“Customer”), 2012 ESA Project Company, LLC a Delaware limited liability company (“Supplier”), and PE12GVVC (Bloom PPA) Ltd. as administrative agent (in such capacity, the “Administrative Agent”) for the lenders from time to time party to the Credit Agreement dated as of December 21, 2012 (as the same may be amended, modified or supplemented, amended or restated, in whole or part from time to time the (“Credit Agreement”)) among the Supplier, Administrative Agent, such lenders and Deutsche Bank Trust Company Americas, as collateral agent (in such capacity, “Collateral Agent”). The Administrative Agent is the “Lender” for purposes of the Agreement and this Lender Agreement.

WHEREAS, Supplier and Customer are parties to an Energy System Use Agreement dated May 15, 2013 (the “Agreement”), the defined terms of which are used herein unless otherwise defined herein;

WHEREAS, the lenders under the Credit Agreement will make a loan to Supplier to finance all or part of the costs of the Systems and in connection therewith desire that the Collateral Agent take a security interest in the Systems and the Agreement for the Administrative Agent as agent for the secured parties benefiting from such security interest, to avail itself (or direct the Collateral Agent to avail itself) of the rights provided for the “Lender” in the Agreement and this Lender Agreement; and

WHEREAS, to avail itself of such rights, Lender must agree to comply with certain terms and conditions in the Agreement applicable to the Lender;

NOW THEREFORE, for and in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Supplier, Customer and Lender hereby agree as follows:

1. Lender’s Rights. Supplier and Customer hereby agree in favor of Lender that Lender is, and shall be, entitled to exercise any and all remedies afforded to Supplier, and to cure any defaults of Supplier, subject to the terms and conditions of this Lender Agreement.

a. The Lender, as collateral assignee, shall be entitled to exercise, in the place and stead of Supplier, any and all rights and remedies of Supplier under the Agreement in accordance with the terms of this Lender Agreement. Lender shall also be entitled to exercise all rights and remedies of secured parties, or the owner of the Systems, generally with respect to the Agreement and the Systems.

b. The Lender shall have the right, but not the obligation, to pay all sums due under the Agreement and to perform any other act, duty or obligation required of Supplier thereunder or cause to be cured any default of Supplier thereunder in the time and manner provided by the terms of the Agreement. Nothing

1

herein requires the Lender to cure any default of Supplier under the Agreement or (unless the Lender has succeeded to Supplier’s interests under the Agreement) to perform any act, duty or obligation of Supplier under the Agreement, but Customer hereby gives it the option, in its sole discretion, to elect to do so; provided that if the Lender directly or indirectly, takes or causes the transfer of ownership or control of the Systems or the Agreement, whether by or through an assignment, receiver, foreclosure, conveyance in lieu thereof, or any other proceeding, action or method, then the Lender will (a) cure any Supplier defaults within the time frame specified for the Supplier to cure the default following notice from Customer to the Supplier and the Lender under the Agreement (which time period shall, for the sake of clarity, commence with respect to Lender on the date that Lender receives notice from Customer as provided therein) to the extent that such defaults are capable of being cured by Lender (but not to include payment of any monetary damages or offsets for failure to provide Customer with the usage of the System during the default period before such taking of title or possession or any consequential damages claimed as a result of such failure to during such default period, as no such damages may be claimed by Customer pursuant to this Lender Agreement), as a condition to such taking of possession or title and (b) fully assume all of Supplier’s obligations under the Agreement arising on and after the date of such taking of possession or title.

c. Customer will not exercise any right to terminate or suspend the Agreement unless it shall have given both the Supplier and the Lender written notice of the applicable Supplier default and neither Supplier or Lender has cured such default within the time periods afforded pursuant to Section 12.1 of the Agreement. The Parties’ respective obligations will otherwise remain in effect during any cure period.

d. Upon notice by Supplier that Lender is exercising Supplier’s rights, Customer shall send copies of all notices specified by Lender in writing to Lender and, upon request by Lender, Customer shall make all payments under the Agreement to an account specified by the Lender. Payments made to Lender shall satisfy Customer’s payment obligations to Supplier. Customer shall send a copy of all of the foregoing notices to Supplier as well.

e. Upon any rejection or other termination of the Agreement pursuant to any process undertaken with respect to Supplier under the United States Bankruptcy Code, and provided that Lender directly or indirectly has taken ownership and control of the System and the Agreement and complied with its obligations under Section 1(b) above, (i) at the request of Lender made within ninety (90) days of such rejection or termination, Customer shall enter into a new or amended agreement with Lender to reflect the change in counterparty but otherwise having the same terms and conditions as the Agreement, and (ii) Lender shall enter into a new or amended agreement with Customer to reflect the change in counterparty but otherwise having the same terms and conditions as the Agreement if Customer so requests within ninety (90) days after such rejection or termination.

2

2. Confidentiality. Lender agrees with Customer and Supplier to comply with the confidentiality and related provisions in the Agreement as if it were a Party thereto.

3. Amendment. Customer and Supplier agree with Lender that no amendment, supplement or other modification of the Agreement shall be effective unless prior advance written consent thereof has been provided by Lender.

4. Notices. Customer agrees that it shall provide Lender with notice of all Supplier defaults at the same time that it provides notice of such defaults to Supplier. All notices and communications required to be delivered to Lender with respect to the Agreement shall be in writing and addressed to the Lender as follows:

PE12GVVC (Bloom PPA) Ltd.

c/o Alberta Investment Management Corporation

1100 – 10830 Jasper Avenue

Edmonton, Alberta T5J 2B3, Canada

Attn: [***]

Telephone: [***]

Email: [***]

5. Governing Law. This Lender Agreement has been delivered in, and shall in all respects be governed by, and construed in accordance with, the laws of the State of New York applicable to agreements made and to be performed entirely within such State. The provisions of the Agreement relating to dispute resolution shall apply to this Lender Agreement, mutatis mutandis.

6. Miscellaneous. This Lender Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns. This Lender Agreement may be executed and delivered in counterparts (including by electronic transmission). This Lender Agreement may only be amended, supplemented or otherwise modified by an instrument in writing executed by duly authorized representatives of the party to be bound thereby.

[***] Confidential Treatment Requested

3

Executed as of the date first written above:

CUSTOMER:		SUPPLIER:
AT&T Corp.		2012 ESA Project Company, LLC
By: AT&T Services, Inc., its authorized representative
By:		By:
Name:	[***]	Name:	William Brockenborough
Title:	[***]	Title:	Vice President

LENDER:

PE12GVVC (Bloom PPA) Ltd.

as Administrative Agent

By:

Name:

Title:

[***] Confidential Treatment Requested

4

EXHIBIT P

to Credit Agreement

FORM OF AT&T PPA2-C ACKNOWLEDGMENT AND CONSENT

Amendment No. 1

Agreement No. 20130403.076.C

ACKNOWLEDGEMENT AND CONSENT REGARDING ASSIGNMENT AND AMENDMENT

This ACKNOWLEDGEMENT AND CONSENT REGARDING ASSIGNMENT AND AMENDMENT (this “Consent”), is made effective as of May 15, 2013, by and among 2012 ESA Project Company, LLC, a Delaware Limited Liability Company, (“2012 Project Company”), 2013B ESA Project Company, LLC, a Delaware Limited Liability Company (“2013B Project Company”), PE12GVVC (Bloom PPA) Ltd., as administrative agent (in such capacity, “Administrative Agent”) for the lenders from time to time party to the Credit Agreement dated as of December 21, 2012 among 2012 Project Company, Administrative Agent, such lenders and Deutsche Bank Trust Company Americas, as collateral agent, and AT&T Corp., a New York corporation (“AT&T”). Each of the foregoing entities shall be referred to individually herein as a “Party” and collectively as the “Parties”.

RECITALS

A. WHEREAS, AT&T and 2012 Project Company entered into the following documents dated as of May 15, 2013:

(i) Energy System Use Agreement (the “PPA2-C” or “AT&T Agreement No. 20130403.076.C”);

(ii) Site Lease Agreement relating to PPA2-C (“SLA-C” and, together with PPA2-C, the “Assigned Agreements”); and

(iii) Lender Agreement relating to PPA2-C (“Lender Agreement-C”), to which the Administrative Agent is also expressed to be a party.

B. WHEREAS, the Parties desire to acknowledge the assignment of PPA2-C and SLA-C to 2013B Project Company and terminate Lender Agreement-C, as more fully set forth in this Consent.

C. WHEREAS, AT&T and 2013B Project Company also desire to amend PPA2-C following the assignment of PPA2-C and SLA-C to 2013B Project Company.

NOW, THEREFORE, in consideration of the mutual covenants set forth in this Consent, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

AGREEMENT

1. Acknowledgment and Consent to Assignment of PPA2-C and SLA-C. AT&T hereby acknowledges and consents to the assignment of 2012 Project Company’s rights, interests and obligations under each of PPA2-C and SLA-C to 2013B Project Company pursuant to that certain Assignment and Assumption Agreement, dated as of May 15, 2013 (such agreement, the “Assignment Agreement” and such date, the “Assignment Effective Date”), by and between 2012 Project Company and 2013B Project Company, attached hereto as Appendix A. AT&T agrees that, effective as of the Assignment Effective Date:

a. It will make all payments (including without limitation usage fees and termination payments) due from AT&T under PPA2-C and SLA-C to 2013B Project Company to an account to be designated by 2013B Project Company;

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b. 2013B Project Company shall be understood to constitute the “Supplier” pursuant to PPA2-C, AT&T shall look only to 2013B Project Company with respect to any rights of AT&T or any obligations or liability of “Supplier” under PPA2-C, and AT&T consents to and acknowledges the amendment of the Supplier’s notice information in PPA2-C as reflected in the Assignment Agreement;

c. 2013B Project Company shall be understood to constitute the “Lessee” pursuant to SLA-C, AT&T shall look only to 2013B Project Company with respect to any rights of AT&T or any obligations or liability of “Lessee” under SLA-C and AT&T consents to and acknowledges the amendment of the Lessee’s notice information in SLA-C as reflected in the Assignment Agreement.

AT&T and 2012 Project Company each confirm there have been no willfully wrongful acts or omissions on the part of 2012 Project Company with respect to PPA2-C or SLA-C prior to the Assignment Effective Date.

2. New EXHIBIT C, Energy Server Billing Rate. The EXHIBIT C, Energy Server Lease Rate that was included in PPA2-C is deleted in its entirety and replaced with the new EXHIBIT C, Energy Server Billing Rate, attached hereto and incorporated herein as Appendix C.

3. Termination of Lender Agreement-C. AT&T and 2012 Project Company hereby terminate Lender Agreement-C, and each release the other, and both release the Administrative Agent, from any obligations or liability in relation to Lender Agreement-C. Administrative Agent hereby consents to such termination.

4. New Lender Agreement-C. AT&T and 2013B Project Company agree to enter into New Lender Agreement-C with Silicon Valley Bank on or about the date hereof in the form attached hereto as Appendix B.

5. Ratification. The terms and conditions of the Assigned Agreements in all other respects remain unmodified and in full force and effect. All references to each Assigned Agreement in any other document or instrument shall be deemed to mean such Agreement as assigned by the Assignment Agreement.

6. Amendments. No amendment, modification, termination or waiver of any provision of this Consent shall be effective unless the same shall be in writing and duly executed by the Parties.

7. Enforceability. This Consent shall be enforceable by and binding upon and shall inure to the benefit of the Parties hereto and their respective successors and assigns.

8. Governing Law. The terms of this Consent will be governed by and construed in accordance with the domestic laws of the State in which the Premises subject to PPA2-C are located without reference to any choice of law principles.

9. Counterparts and Facsimile Execution. This Consent may be executed and delivered (including by “portable document format”) in one or more counterparts, all of which shall be considered one and the same and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to each other Party, it being understood that all Parties need not sign the same counterpart. Signatures of the Parties transmitted by electronic mail shall be deemed to be their original signatures for all purposes.

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10. Severability. If any term or other provision of this Consent is invalid, illegal, or incapable of being enforced by any rule of applicable law, or public policy, all other terms and provisions of this Consent shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated herein are not affected in any manner materially adverse to any Party.

[Signature Pages Follow]

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Agreement No. 20130403.076.C

IN WITNESS WHEREOF, the Parties have caused this Consent to be executed, as of the dates set forth below the respective signatures hereto.

AT&T Corp.
By: AT&T Services, Inc., its authorized representative
By:
	Name:	John Schinter
	Title:	Executive Director, Energy
	Date:
2012 ESA Project Company, LLC
By:
	Name:	W.E. Brokenborough
	Title:	Vice President
	Date:
2013B ESA Project Company, LLC
By:
	Name:	W.E. Brokenborough
	Title:	Vice President
	Date:

Acknowledged and agreed:

PE12GVVC (Bloom PPA) Ltd.

as Administrative Agent

By:

Name:

Title:

Date:

Signature Page to Acknowledgement and Consent Regarding Assignment

Amendment No. 1

Agreement No. 20130403.076.C

IN WITNESS WHEREOF, and in confirmation of its consent to the terms and conditions contained in Section 1.3(d) of PPA2-C, as assigned, and intending to be legally bound hereby, Bloom Energy Corporation, a Delaware corporation has executed this Consent as of the date set forth below.

BLOOM ENERGY CORPORATION
By:
	Name:	Martin J. Collins
	Title:	VP, Corporate Development
	Date:

Signature Page to Acknowledgement and Consent Regarding Assignment

Amendment No. 1

Agreement No. 20130403.076.C

APPENDIX A

ASSIGNMENT AGREEMENT

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ASSIGNMENT and ASSUMPTION AGREEMENT

This ASSIGNMENT and ASSUMPTION AGREEMENT (this “Agreement”) is entered effective as of May 15, 2013 (the “Effective Date”), by and among 2013B ESA Project Company, LLC, a Delaware limited liability company (“Assignee”), and 2012 ESA Project Company, LLC, a Delaware limited liability company (“Assignor”).

RECITALS

WHEREAS, Assignor and AT&T Corp. (“AT&T Corp.”) are party to (a) that certain Energy System Use Agreement (Agreement No. 20130403.076.C) dated as of May 15, 2013 (as such may be amended from time to time, “PPA2-C”) and (b) that certain Site Lease Agreement related to PPA2-C dated as of May 15, 2013 (as such may be amended from time to time, “SLA-C”, and, together with PPA2-C, the “AT&T Agreements”);

WHEREAS, pursuant to Article 14 of PPA2-C, Assignor shall have the right, without consent of AT&T Corp., to assign PPA2-C or rights thereunder or delegate obligations to any affiliate; provided that (i) any such assignment or delegation to an affiliate is conditioned upon the assignee’s assumption of all delegated or assigned obligations and liabilities of Assignor under PPA2-C, and (ii) Assignor shall not assign or delegate to any affiliate that is a competitor of AT&T Corp. without AT&T Corp.’s prior written consent (which may be withheld in its sole discretion);

WHEREAS, pursuant to Section 12 of SLA-C, Assignor may in its sole discretion and without the consent of AT&T Corp. assign any of its rights, duties or obligations under SLA-C to one or more of its affiliates, so long as (i) Assignor remains liable for all of its obligations under SLA-C, (ii) that any such assignee agrees to be bound by all of the terms and conditions of SLA-C, (iii) no such assignment shall preclude AT&T Corp. from dealing solely and directly with Assignor in all matters pertaining to SLA-C, and (iv) the assignment shall not impose upon AT&T Corp. any material costs or obligations;

WHEREAS, Assignor now wishes to assign to Assignee, and Assignee wishes to accept from Assignor, all of Assignor’s rights, title, interest, duties, obligations and liabilities under (i) PPA2-C and (ii) SLA-C (collectively, the “Assigned Interests”); and

WHEREAS, Assignor and Assignee are “affiliates” for purposes of the AT&T Agreements, and now desire to enter into this Agreement to evidence the transfer of the aforementioned Assigned Interests.

NOW, THEREFORE, in consideration of the mutual promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows.

AGREEMENT

1. Assignment and Assumption. As of the Effective Date, Assignor assigns and transfers to Assignee all of Assignor’s rights, title and interest in and to the Assigned Interests. Assignee (a) accepts the assignment of the Assigned Interests, effective as of the Effective Date,

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(b) irrevocably assumes, undertakes, and agrees that it shall be bound to perform and observe all of the duties, obligations and liabilities of Assignor with respect the Assigned Interests, effective as of the Effective Date, and (c) hereby agrees to be bound by the terms and conditions of the AT&T Agreements with respect to the Assigned Interests.

2. Indemnification.

(a) Assignor will hold harmless, indemnify and defend Assignee, its members, officers, directors, agents, employees and assigns (each, an “Assignee Indemnified Party”) from and against any and all claims, judgments, settlements, losses, damages, demands, suits, causes of action, liabilities, fines, penalties, costs and expenses (including, without limitation, court costs, attorney’s fees, and other reasonable costs of suit or dispute resolution) (“Losses”), whether arising at law or in equity, due to or arising from any willfully wrongful acts or omissions on the part of Assignor with respect to any of the Assigned Interests prior to the Effective Date; provided that that no Assignee Indemnified Party shall be entitled to indemnification for any consequential, incidental, indirect, special or punitive damages whatsoever. Indemnification pursuant to this Section 2 shall be an Assignee Indemnified Party’s sole and exclusive source of recovery against Assignor of any kind for any and all Losses arising out of or directly or indirectly relating to this Agreement.

(b) Assignee will hold harmless, indemnify and defend Assignor, its members, officers, directors, agents, employees and assigns (each, an “Assignor Indemnified Party”) from and against any and all Losses, whether arising at law or in equity, due to or arising from any willfully wrongful acts or omissions on the part of Assignee with respect to any of the Assigned Interests on and after the Effective Date; provided that that no Assignor Indemnified Party shall be entitled to indemnification for any consequential, incidental, indirect, special or punitive damages whatsoever. Indemnification pursuant to this Section 2 shall be an Assignor Indemnified Party’s sole and exclusive source of recovery against Assignee of any kind for any and all Losses arising out of or directly or indirectly relating to this Agreement

(c) In the event a party wishes to make a claim for indemnification under this Section 2, it shall promptly notify the indemnifying party in writing of the facts constituting the basis for such claim and the amount, to the extent known, of the claim asserted and all reasonably necessary or relevant information, assistance and authority to settle and/or defend any claim. In the event of a claim by a third party (“Third Party Claim”), provided that the indemnified party delivers timely notice to the indemnifying party of such Third Party Claim and makes no admission of liability with respect to such Third Party Claim, the indemnifying party shall assume on behalf of the indemnified party, and conduct with due diligence and in good faith, the defense of such Third Party Claim. Without relieving the indemnifying party of its obligations hereunder or impairing the indemnifying party’s right to control the defense or settlement of a Third Party Claim, the indemnified party may elect to participate through separate counsel in the defense of a Third Party Claim, but the fees and expenses of such counsel shall be at the expense of such indemnified party; provided that in the event that (i) the indemnified party shall have reasonably concluded that there exists a material conflict of interest between the indemnifying party and the indemnified party in the conduct of the defense of a Third Party Claim or (ii) the indemnifying party shall not have employed counsel to assume the defense of such claim within a reasonable time after notice of the commencement of an action thereon, the indemnified party may elect to defend separately such Third Party Claim and the reasonable fees and expenses of counsel reasonably incurred shall be paid by the indemnifying party. No

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settlement that would impose any cost or expense upon a party seeking indemnification shall be made without such party’s prior written consent. No indemnifying party shall settle any Third Party Claim in a manner which would require any action or forbearance from action by the indemnified party without the prior written consent of the indemnified party, which consent shall not be unreasonably withheld, and no indemnified party shall settle any Indemnity Claim in a manner which would require any action or forbearance from action by any Indemnifying Party without the prior written consent of the Indemnifying Party, which consent shall not be unreasonably withheld.

3. Amendment and Modification. This Agreement may be amended, modified or supplemented only by written agreement of Assignor and Assignee. No amendment or modification of this Agreement that would impose any additional material obligations on, or materially impair any rights of, any person or entity who is not a party to this Agreement shall be effective without such affected party’s consent. Neither Assignor nor Assignee shall agree to any amendment of an Assigned Agreement without the prior written consent of the other party if such modification would impose any additional material obligations on, or materially impair any rights of, the other party.

4. Obligation to Notify AT&T Corp. Within ten (10) business days of the execution of this Agreement, Assignor shall deliver written notice to AT&T Corp. of the assignment of the Assigned Interests in PPA2-C and SLA-C, which notice shall direct AT&T Corp. to deliver any future notices, communications and waivers under PPA2-C to Assignee at the address for notices set forth in Section 5(b), below.

5. Notices. All notices and other communications hereunder shall be in writing and shall be deemed given when received if delivered personally, via electronic mail or by facsimile transmission with completed transmission acknowledgment, or when delivered or when delivery is refused if mailed by overnight delivery via a nationally recognized courier or registered or certified first class mail (return receipt requested), postage prepaid, to the recipient party at its address (or at such other address or facsimile number for a party as shall be specified by like notice; provided, however, that notices of a change of address shall be effective only upon receipt thereof):

(a) If to Assignor, to:

2012 ESA Project Company, LLC

c/o Bloom Energy Corporation

1299 Orleans Dr

Sunnyvale, CA 94089-1137

Email address: [***]

(b) If to Assignee, to:

2013B ESA Project Company, LLC

c/o Bloom Energy Corporation

1299 Orleans Dr

Sunnyvale, CA 94089-1137

Email address: [***]

[***] Confidential Treatment Requested

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Amendment No. 1

Agreement No. 20130403.076.C

With a copy to:

Silicon Valley Bank

555 Mission Street, 9^th Floor

San Francisco, CA 94105

Attn: [***]

Telephone: [***]

Email: [***]

6. Governing Law; Jurisdiction; Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW OR OTHER PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN NEW YORK COUNTY, NEW YORK WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING TO ANY SUCH DISPUTE AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO.

7. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signatures delivered by facsimile (or portable document format) will be considered original signatures, and each party shall thereafter promptly deliver original signatures to the other party.

8. Successors and Assigns. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns (including by operation of law), but neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any party, whether by operation of law or otherwise, without the prior written consent of the other party, provided that Assignee may collaterally assign its rights under this Agreement to any party providing debt or equity financing to it without the consent of Assignor.

[Signature Page Follows]

[***] Confidential Treatment Requested

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Amendment No. 1

Agreement No. 20130403.076.C

IN WITNESS WHEREOF, the undersigned have caused this Agreement to be signed by their respective duly authorized officers.

ASSIGNEE:
2013B ESA Project Company, LLC
a Delaware limited liability company
	By:
	Name:
	Title:
ASSIGNOR:
2012 ESA Project Company, LLC
a Delaware limited liability company
	By:
	Name:
	Title:

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Amendment No. 1

Agreement No. 20130403.076.C

APPENDIX B

NEW LENDER AGREEMENT-C

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Agreement No. 20130403.076.C

LENDER AGREEMENT

This Lender Agreement, dated as of May 15, 2013 (this “Lender Agreement”), is by and among AT&T Corp. a New York corporation (“Customer”), 2013B ESA Project Company, LLC a Delaware limited liability company (“Supplier”), and Silicon Valley Bank in its capacity as the lender pursuant to that certain Credit Agreement dated as of July 19, 2013 (as the same may be amended, modified or supplemented, amended or restated, in whole or part from time to time the (“Credit Agreement”)) between the Supplier and Lender. Lender is the “Lender” for purposes of the Agreement and this Lender Agreement.

WHEREAS, Supplier and Customer are parties to an Energy System Use Agreement dated May 15, 2013 (the “Agreement”), the defined terms of which are used herein unless otherwise defined herein;

WHEREAS, the Lender will make a loan to Supplier to finance all or part of the costs of the Systems and in connection therewith Lender will take a security interest in the Systems and the Agreement, to avail itself of the rights provided for the “Lender” in the Agreement and this Lender Agreement; and

WHEREAS, to avail itself of such rights, Lender must agree to comply with certain terms and conditions in the Agreement applicable to the Lender;

NOW THEREFORE, for and in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Supplier, Customer and Lender hereby agree as follows:

1. Lender’s Rights. Supplier and Customer hereby agree in favor of Lender that Lender is, and shall be, entitled to exercise any and all remedies afforded to Supplier, and to cure any defaults of Supplier, subject to the terms and conditions of this Lender Agreement.

a. The Lender, as collateral assignee, shall be entitled to exercise, in the place and stead of Supplier, any and all rights and remedies of Supplier under the Agreement in accordance with the terms of this Lender Agreement. Lender shall also be entitled to exercise all rights and remedies of secured parties, or the owner of the Systems, generally with respect to the Agreement and the Systems. Customer agrees that, if Lender notifies Customer that an event of default under the Credit Agreement has occurred and is continuing and that Lender has exercised its rights to (i) have itself or its designee substituted for Supplier under the Agreement or (ii) sell, assign, transfer or otherwise dispose of the Agreement to a third person, then Lender, Lender’s designee or such third person (in any case, “Substitute Owner”) will be substituted for Supplier under the Agreement and that, in such event, (x) Customer will continue to perform its obligations under the Agreement in favor of Substitute Owner, (y) references to “Lender” in this Agreement shall be deemed to refer to such Substitute Owner, and (z) Substitute Owner will have each of the rights afforded to the Lender hereunder.

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Agreement No. 20130403.076.C

b. The Lender shall have the right, but not the obligation, to pay all sums due under the Agreement and to perform any other act, duty or obligation required of Supplier thereunder or cause to be cured any default of Supplier thereunder in the time and manner provided by the terms of the Agreement. Nothing herein requires the Lender to cure any default of Supplier under the Agreement or (unless the Lender has succeeded to Supplier’s interests under the Agreement) to perform any act, duty or obligation of Supplier under the Agreement, but Customer hereby gives it the option, in its sole discretion, to elect to do so; provided that if the Lender directly or indirectly, takes or causes the transfer of ownership or control of the Systems or the Agreement, whether by or through an assignment, receiver, foreclosure, conveyance in lieu thereof, or any other proceeding, action or method, then the Lender will (a) cure any Supplier defaults within the time frame specified for the Supplier to cure the default following notice from Customer to the Supplier and the Lender under the Agreement (which time period shall, for the sake of clarity, commence with respect to Lender on the date that Lender receives notice from Customer as provided therein) to the extent that such defaults are capable of being cured by Lender (but not to include payment of any monetary damages or offsets for failure to provide Customer with the usage of the System during the default period before such taking of title or possession or any consequential damages claimed as a result of such failure to during such default period, as no such damages may be claimed by Customer pursuant to this Lender Agreement), as a condition to such taking of possession or title and (b) fully assume all of Supplier’s obligations under the Agreement arising on and after the date of such taking of possession or title.

c. Customer will not exercise any right to terminate or suspend the Agreement unless it shall have given both the Supplier and the Lender written notice of the applicable Supplier default and neither Supplier or Lender has cured such default within the time periods afforded pursuant to Section 12.1 of the Agreement. The Parties’ respective obligations will otherwise remain in effect during any cure period.

d. Upon notice by Supplier that Lender is exercising Supplier’s rights, Customer shall send copies of all notices specified by Lender in writing to Lender and, upon request by Lender, Customer shall make all payments under the Agreement to an account specified by the Lender. Payments made to Lender shall satisfy Customer’s payment obligations to Supplier. Customer shall send a copy of all of the foregoing notices to Supplier as well.

e. Upon any rejection or other termination of the Agreement pursuant to any process undertaken with respect to Supplier under the United States Bankruptcy Code, and provided that Lender directly or indirectly has taken ownership and control of the System and the Agreement and complied with its obligations under Section 1(b) above, (i) at the request of Lender made within ninety (90) days of such rejection or termination, Customer shall enter into a new or amended agreement with Lender to reflect the change in counterparty

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Amendment No. 1

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but otherwise having the same terms and conditions as the Agreement, and (ii) Lender shall enter into a new or amended agreement with Customer to reflect the change in counterparty but otherwise having the same terms and conditions as the Agreement if Customer so requests within ninety (90) days after such rejection or termination.

2. Confidentiality. Lender agrees with Customer and Supplier to comply with the confidentiality and related provisions in the Agreement as if it were a Party thereto.

3. Amendment. Customer and Supplier agree with Lender that no amendment, supplement or other modification of the Agreement shall be effective unless prior advance written consent thereof has been provided by Lender.

4. Notices. Customer agrees that it shall provide Lender with notice of all Supplier defaults at the same time that it provides notice of such defaults to Supplier. All notices and communications required to be delivered to Lender with respect to the Agreement shall be in writing and addressed to the Lender as follows:

Silicon Valley Bank

555 Mission Street, 9^th Floor

San Francisco, CA 94105

Attn: [***]

Telephone: [***]

Email: [***]

5. Governing Law. This Lender Agreement has been delivered in, and shall in all respects be governed by, and construed in accordance with, the laws of the State of New York applicable to agreements made and to be performed entirely within such State. The provisions of the Agreement relating to dispute resolution shall apply to this Lender Agreement, mutatis mutandis.

6. Miscellaneous. This Lender Agreement shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns. This Lender Agreement may be executed and delivered in counterparts (including by electronic transmission). This Lender Agreement may only be amended, supplemented or otherwise modified by an instrument in writing executed by duly authorized representatives of the party to be bound thereby.

[***] Confidential Treatment Requested

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Amendment No. 1

Agreement No. 20130403.076.C

Executed as of the date first written above:

CUSTOMER:	SUPPLIER:
AT&T Corp.	2013B ESA Project Company, LLC
By: AT&T Services, Inc., its authorized representative
By:	By:
Name:	Name:
Title:	Title:
LENDER:
Silicon Valley Bank
By:
Name:
Title:

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Amendment No. 1

Agreement No. 20130403.076.C

APPENDIX C

NEW EXHIBIT C FOR PPA2-C

Amendment No. 1

Agreement No. 20130403.076.C

EXHIBIT C

ENERGY SERVER BILLING RATE

The total monthly usage fee will be calculated using the following formula:

Monthly Billing Rate X mmBTU consumed X system Efficiency

MONTHLY BILLING RATE:

	Monthly Rate
Rate in Year	($/mmBTU)
1	$	[***]
2	$	[***]
3	$	[***]
4	$	[***]
5	$	[***]
6	$	[***]
7	$	[***]
8	$	[***]
9	$	[***]
10	$	[***]
11	$	[***]
12	$	[***]
13	$	[***]
14	$	[***]
15	$	[***]
16	$	[***]
17	$	[***]
18	$	[***]
19	$	[***]
20	$	[***]

[***] Confidential Treatment Requested

EXHIBIT Q

to Credit Agreement

Sample DSCR Calculation

	Q1 2016
Project Revenues + Prepaid Expense Amount		[***]
O&M Costs		[***]
Operating Cash Available for Debt Service	$	[***]
Interest Expense	$	[***]
Loan Amortization	$	[***]
DSR Fees & Interest	$	[***]
DSCR		[***]

[***] Confidential Treatment Requested

EXHIBIT R-1

to Credit Agreement

FORM OF U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Amended and Restated Credit Agreement, dated as of August 30, 2013 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among 2012 ESA Project Company, LLC, a Delaware limited liability company, as borrower (“Borrower”), PE12GVVC (BLOOM PPA) LTD., as Administrative Agent, and the other financial institutions as agents and lenders from time to time party thereto.

Pursuant to the provisions of Section 2.4.4 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN or foreign government or organization status on IRS Form W-8EXP. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF LENDER]
By:
	Name:
	Title:
Date:	, 20[    ]

EXHIBIT R-2

to Credit Agreement

FORM OF U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Amended and Restated Credit Agreement, dated as of August 30, 2013 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among 2012 ESA Project Company, LLC, a Delaware limited liability company, as borrower (“Borrower”), PE12GVVC (BLOOM PPA) LTD., as Administrative Agent, and the other financial institutions as agents and lenders from time to time party thereto.

Pursuant to the provisions of Section 2.4.4 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN or foreign government or organization status on IRS Form W-8EXP. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF PARTICIPANT]
By:
	Name:
	Title:
Date:	, 20[    ]

EXHIBIT R-3

to Credit Agreement

FORM OF U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Amended and Restated Credit Agreement, dated as of August 30, 2013 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among 2012 ESA Project Company, LLC, a Delaware limited liability company, as borrower (“Borrower”), PE12GVVC (BLOOM PPA) LTD., as Administrative Agent, and the other financial institutions as agents and lenders from time to time party thereto.

Pursuant to the provisions of Section 2.4.4 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8EXP or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8EXP from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF PARTICIPANT]
By:
	Name:
	Title:
Date:	, 20[    ]

EXHIBIT R-4

to Credit Agreement

FORM OF U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Amended and Restated Credit Agreement, dated as of August 30, 2013 (as amended, supplemented or otherwise modified from time to time, the “Credit Agreement”), among 2012 ESA Project Company, LLC, a Delaware limited liability company, as borrower (“Borrower”), PE12GVVC (BLOOM PPA) LTD., as Administrative Agent, and the other financial institutions as agents and lenders from time to time party thereto.

Pursuant to the provisions of Section 2.4.4 of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement or any other Credit Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN or IRS Form W-8 EXP or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN or IRS Form W-8EXP from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

[NAME OF LENDER]
By:
	Name:
	Title:
Date:	, 20[    ]

EXHIBIT S

to Credit Agreement

FORM OF AT&T CORP. PPA AMENDMENT

[Note: 22 pages redacted]

[***] Confidential Treatment Requested

AMENDMENT NO. 1

TO

AGREEMENT NO. 20130403.077.C

AN

ENERGY SYSTEM USE AGREEMENT

BY AND BETWEEN

2012 ESA PROJECT COMPANY, LLC

AND AT&T CORP.

1

AMENDMENT NO. 1

to

AGREEMENT NO. 20130403.077.C

After all Parties have signed, this Amendment is made effective as of May 15, 2013 (“Effective Date”) and is between 2012 ESA Project Company, LLC, a Delaware limited liability company (“Supplier”), and AT&T Corp., a New York corporation (“AT&T”), each of which may be referred to in the singular as a “Party” or in the plural as the “Parties”.

WITNESSETH

WHEREAS, Supplier and AT&T entered into Agreement No. 20130403.077.C on May 15, 2013 (the “Agreement”); and

WHEREAS, Supplier and AT&T desire to amend the Agreement as hereinafter set forth.

NOW, THEREFORE, in consideration of the premises and the covenants hereinafter contained, the Parties hereto agree as follows:

1. EXHIBIT A, “Premises List, Description and Applicable Local Utility” that was included in the Agreement is deleted in its entirety and replaced with the new EXHIBIT A, “Premises List, Description and Applicable Local Utility”, attached hereto and incorporated herein.

2. EXHIBIT B, “Site Lease Agreement” that was included in the Agreement is deleted in its entirety and replaced with the new EXHIBIT B, “Site Lease Agreement”, attached hereto and incorporated herein. AT&T and Supplier hereby terminate the Site Lease Agreement executed between the Parties in connection with the execution of the Agreement.

AT&T and the Supplier each release the other from all obligations and liability in relation to any ‘Sites’ included in EXHIBIT A of the Agreement as of the date of signing of the Agreement, but not included in such EXHIBIT A after this Amendment is effective. Further, AT&T and Supplier each release the other from all obligations and liability in relation to the Site Lease Agreement executed between the Parties in connection with the Agreement.

The terms of this Amendment will be governed by and construed in accordance with the domestic laws of the State in which the Premises subject to the Agreement, as amended hereby, are located without reference to any choice of law principles.

Proprietary and Confidential

This Amendment and information contained therein is not for use or disclosure outside of AT&T, its Affiliates, and third party representatives, and Supplier except under written agreement by the contracting parties.

The terms and conditions of the Agreement in all other respects remain unmodified and in full force and effect. All references to the Agreement in any other document or instrument shall be deemed to mean such Agreement as amended by this Amendment.

No amendment, modification, termination or waiver of any provision of this Amendment shall be effective unless the same shall be in writing and duly executed by the Parties. This Amendment shall be enforceable by and binding upon and shall inure to the benefit of the Parties hereto and their respective successors and assigns.

Original signature transmitted and received via facsimile or other electronic transmission of a scanned document, (e.g., .pdf or similar format) are true and valid signatures for all purposes hereunder and shall bind the Parties to the same extent as that of an original signature. This Amendment may be executed in multiple counterparts, each of which shall be deemed to constitute an original but all of which together shall constitute only one document.

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IN WITNESS WHEREOF, the Parties have caused this Amendment to the Agreement to be executed, as of the dates set forth below the respective signatures hereto.

2012 ESA Project Company, LLC
By:
	Name:	W.E. Brokenborough
	Title:	Vice President
	Date:
AT&T Corp. By: AT&T Services, Inc., its authorized representative
By:
	Name:	John Schinter
	Title:	Executive Director, Energy
	Date:

Proprietary and Confidential

This Amendment and information contained therein is not for use or disclosure outside of AT&T, its Affiliates, and third party representatives, and Supplier except under written agreement by the contracting parties.

4

IN WITNESS WHEREOF, and in confirmation of its consent to the terms and conditions contained in Section 1.3(d) of the Agreement and intending to be legally bound hereby, Bloom Energy Corporation, a Delaware corporation has executed this Amendment as of the date set forth below.

BLOOM ENERGY CORPORATION
By:
	Name:	Martin J. Collins
	Title:	VP, Corporate Development
	Date:

Proprietary and Confidential

This Amendment and information contained therein is not for use or disclosure outside of AT&T, its Affiliates, and third party representatives, and Supplier except under written agreement by the contracting parties.

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EXHIBIT A

PREMISES LIST, DESCRIPTION AND APPLICABLE LOCAL UTILITY

THE UNITED ILLUMINATING COMPANY (UI):

• Address 1: [***]

System Capacity: [***]

System Location: [***]

Utility: [***]

LREC Performance Assurance: [***]

Estimated Commencement of Operations Date: June 30, 2013

Actual Commencement of Operations Date:

*Annual Site kWh Production Cap: [***]

Expected LREC Incentive: $[***] per MWh

CONNECTICUT LIGHT & POWER (CL&P):

• Address 2: [***] (AT&T Corp.)

System Capacity: [***] KW

System Location: [***]

Utility: [***]

LREC Performance Assurance: $[***]

Estimated Commencement of Operations Date: June 30, 2013

Actual Commencement of Operations Date:

*Annual Site kWh Production Cap: [***]

Expected LREC Incentive: $[***] per MWH

* Annual Site kWh Production Caps are calculated without regard to Deemed Delivered Energy.

*** Confidential Treatment Requested

6

EXHIBIT B

SITE LEASE AGREEMENT

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Site Lease Agreement

This Site Lease Agreement (“Agreement”), dated as of May 15, 2013, is by and between 2012 ESA Project Company, LLC, a Delaware limited liability company (“Lessee”), and AT&T Corp. (“Lessor”) by AT&T Services, Inc. (“AT&T”), its authorized representative, a Delaware Corporation.

WITNESSETH

WHEREAS, Lessee and AT&T have entered into an Energy System Use Agreement, dated May 15, 2013 (the “PPA2-D” or “AT&T Agreement No. 20130403.077.C”), pursuant to which Lessee has agreed to provide AT&T with Electricity Services. Capitalized terms used herein but not defined herein (including in the recitals hereto) shall have the respective meanings ascribed thereto in PPA2-D;

WHEREAS, in order to provide the Electricity Services, Lessee requires access to certain real property owned or leased by Lessor as identified in Exhibit A (the “Sites”); and

WHEREAS, in connection with the foregoing, Lessee desires that Lessor lease to Lessee, and Lessor desires to lease to Lessee, the Premises (defined below); and

WHEREAS, Lessee may finance the System and, in connection therewith, grant a first priority security interest therein, in favor of Lessee’s Lender (defined below); and

WHEREAS, Lessee and AT&T later amended PPA2-D that, among other changes, revised the Sites included within PPA2-D; and

WHEREAS, Lessee and AT&T are hereby entering into this Agreement to include the same Sites included in the amended PPA2-D; and

WHEREAS, Lessee and AT&T are also terminating the Site Lease Agreement, dated May 15, 2013, which was included as Exhibit B to PPA2-D;

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, Lessee and Lessor hereby agree as follows:

1. Lease. Lessor hereby leases to Lessee (the “Lease”), in accordance with the terms and conditions hereinafter set forth, a plot located on the exterior of the building as described in Exhibit A where the System will be installed (individually and collectively, the “Premises”) for the purposes of Lessee’s constructing, installing, owning, operating, and maintaining the System only and for no other purposes whatsoever. Upon the completion of the installation of the System, Lessee shall provide Lessor with “as-built” drawings setting forth in detail the location of all components of the System. Lessor hereby also grants to Lessee, for a period co-terminous with the Lease, (i) a right of way to access the Premises across or through the Site and any surrounding or nearby premises owned or leased by Lessor, including the building below the Premises, passage through which is necessary or convenient to gain access to the System or the Premises (the “Property”) and to provide Lessor with the electricity from the System and (ii) a right of way to access natural gas from the gas tap line at the Site.

2. Benefits. Lessee shall pay Lessor one U.S. dollar ($1.00) on the Commercial Operation Date as and for rent of the Premises.

3. System Construction.

(a) Lessor hereby consents to the construction of the System on the Site, as described in Exhibit B, including, without limitation, to the extent necessary, modifications to the building and the grounds at the Site so as to run wires and conduits from the System to the electrical panel and other areas on the Site as are required or appropriate for the management of the Systems.

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4. System Construction, Installation, Operation, Ownership and Removal.

(a) Lessee shall have the right from time to time during the term hereof, in accordance with the PPA2-D:

(i) to construct, install, own, and operate the System on the Premises;

(ii) to maintain, clean, repair and replace part or all of the System;

(iii) to add to or remove the System or any part thereof;

(iv) to access the Premises with guests for promotional purposes during normal open hours and at other times as are acceptable to the Lessor in its reasonable business judgment; and

(v) to perform (or cause to be performed) all tasks necessary or appropriate, as reasonably determined by Lessee, to carry out the activities set forth in paragraphs (i) through (iv) of this Section 4.

(b) Lessor acknowledges and agrees that Lessee is the exclusive owner and operator of the System, that all equipment comprising the System shall remain the personal property of the Lessee and shall not become fixtures, notwithstanding the manner in which the System is or may be affixed to any real property of Lessor. Lessor shall have no right, title or interest in the System or any component thereof, notwithstanding that the System may be physically mounted or adhered to the Premises.

(c) Lessor agrees that it shall arrange for the owner of the Site to execute and deliver to Lessee a document pursuant to which such owner acknowledges and consents to the Lessee’s rights in the Site as set forth herein and subject to the terms hereof.

(d) As a condition of Lessee’s rights hereunder, Lessee shall obtain and maintain during the term of this Agreement any and all permits, variances, licenses, approvals and authorizations from governmental agencies with jurisdiction, including, without limitation, conditional use permits, and building permits that are applicable or necessary to the installation or operation of the System at, on or from the Premises (collectively, the “Governmental Approvals”). If requested by Lessee, Lessor agrees to assist Lessee, at Lessee’s expense (except as provided in the PPA2-D), in obtaining Governmental Approvals. Lessee must obtain Lessor’s prior written approval of all conditions of permit approval that would impose any material obligation on Lessor, which consent shall not be unreasonably withheld, conditioned or delayed by Lessor. Furthermore Lessee shall, at Lessee’s expense, comply with all requirements and conditions of approval related to the Governmental Approvals to the extent such requirements and conditions of approval are related to the installation or operation of the System itself and are not generally related to the building located beneath the Premises or ownership and operation thereof.

(e) Lessee further covenants and agrees as follows:

(i) That the System and its installation, construction, operation and/or maintenance will not cause permanent damage to the Premises or the Property, and, upon expiration or termination of this Agreement, Lessee shall restore the Premises to its original condition on the date of this Agreement, damage caused by ordinary wear and tear, casualty and condemnation excepted; provided, that Lessee shall not be responsible for making repairs or restoration unless any damage resulted from the actions or inactions of Lessee or its agents, employees or contractors. Lessee’s installation and construction activities shall not unreasonably interfere with Lessor’s work on the Property;

(ii) Prior to installation of any part of the System, Lessee shall comply with the following:

(1) Lessee shall submit all plans for the System or the applicable part thereof to Lessor for its approval, which approval shall not be unreasonably withheld, conditioned or delayed.

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(2) Lessee shall not do or permit anything to be done on or about the Premises or bring or keep anything thereon which would (1) increase the commercial property insurance premiums for the Property unless Lessee first agrees to pay for such increase, or (2) invalidate the commercial property insurance coverage for the Property. Lessor agrees to notify Lessee of any acts of which it becomes aware that would increase or invalidate the insurance on the Property and agrees to provide Lessee with an opportunity to cease or modify the actions of which Lessee has been notified before Lessee is required to pay any increased commercial property insurance costs. Nothing herein shall be deemed to modify the provisions of Section 9.2 of the PPA2-D.

(3) Lessee shall not permit any mechanic’s or materialman’s lien upon or against the Building, the Premises or the Property which is caused by, results from, or is asserted with respect to, any work performed, materials furnished or obligation incurred by, through or under Lessee. Upon the filing of any such lien, whether timely, valid or otherwise, Lessee shall, within fifteen (15) days after receiving notice of such lien, cause such lien to be released of record or have the lien bonded over. Lessee shall, within such fifteen (15) day period, deliver to Lessor documentation and evidence of removal of the lien. If Lessee fails to have such lien released of record within such fifteen (15) day period, Lessor shall have the right, but not the obligation, to pay the lienor the amount which is claimed to be due, in order to obtain and record a release of such lien, and in such event Lessee shall immediately upon demand by Lessor reimburse Lessor for its costs in obtaining such release.

(f) Lessor and Lessee agree that, in all matters where a party’s approval or consent is required hereunder, such party’s approval and/or consent shall not be unreasonably withheld, conditioned or delayed.

5. Access to Premises. Lessor shall provide Lessee, in accordance with Lessor’s normal security and safety requirements, with which Lessee agrees to comply and cause its employees, contractors and sub- contractors to comply, provided, that Lessee shall have first received written notification thereof, with access to the Site as reasonably necessary to allow Lessee to perform the installation work and operate, maintain, improve and replace the System as contemplated in the PPA2-D, including, without limitation, ingress and egress rights to and from the Premises for Lessee and its employees, contractors and sub-contractors and access to electrical panels and conduits to interconnect the System with the Site’s electrical wiring. Lessor shall use commercially reasonable efforts to provide sufficient space, adjacent to the Premises, for the temporary storage and staging of tools, materials and equipment and for the parking of construction crew vehicles and temporary construction trailers and facilities reasonably necessary during the installation work, removal work and access for rigging and material handling. Lessor shall provide Lessee a reasonable area adjacent to the Premises for construction laydown. Lessor and its authorized representatives shall at all times have access to and the right to observe the installation work, subject to compliance with Lessee’s safety rules, but shall not interfere with the installation work or handle any Lessee equipment or the System without prior written authorization from Lessee. In addition, Lessor shall grant Lessee, in accordance with Lessor’s normal security and safety requirements, with which Lessee agrees to comply and cause its employees, contractors and sub-contractors to comply, provided, that Lessee shall have first received written notification thereof, access to the Site as reasonably necessary to allow Lessee to perform the O&M Work, including, without limitation, ingress and egress rights to and from the Premises for Lessee and its employees, contractors and subcontractors and local electric utility personnel. Notwithstanding anything to the contrary herein, with respect to future changes to Lessor’s security and safety requirements, Lessor shall provide Lessee with written notification of such changes and if Lessee reasonably determines that compliance with such changes would materially or adversely increase Lessee’s obligations or decrease Lessee’s rights under this Agreement, Lessee and Lessor shall negotiate in good faith to determine how to resolve the impact of such changes on Lessee; provided, that, if Lessee and Lessor are unable through such negotiations to reach an agreement as to the impact of such changes on Lessee, Lessee shall have the right to terminate this Agreement as set forth in Section 8 hereof, in which case the provisions of Section 12.2 (b) of the PPA2-D shall apply. Lessee shall perform the O&M Work in a manner that minimizes inconvenience to and interference with Lessor and Lessor’s invitees’ and customers’ use of the Property to the extent commercially practicable.

6. Representations and Warranties, Covenants of Lessor.

(a) Lessor represents and warrants to Lessee that, except as set forth in Section 25 hereof, there are no circumstances known to Lessor or commitments to third parties (including, without limitation, mortgages, liens, or activities that may damage, impair or otherwise adversely affect Lessee’s rights under this

10

Agreement or the System and/or its function. Lessor will not initiate or conduct activities that it knows or reasonably should know may damage, impair or otherwise materially adversely affect the System or its function. Lessor will use such commercially reasonable methods proposed by Lessee in conducting maintenance to the Premises in order to avoid damage, impairment or adverse effect to the System or its function and will notify Lessee of any contemplated major renovations to the exterior of the Premises and, in such event, if Lessee provides timely written recommendations of solutions or measures for Lessor to implement to avoid or minimize the risk of damage or impairment to the System in conducting such activities, then Lessor will implement such measures or solutions to the extent same are commercially reasonable and permitted by law.

(b) Lessor represents and warrants that Lessor has lawful title to (or a valid leasehold interest in) the Site and the Premises and, subject to the approval of the owner, if any, full right to enter into this Agreement and that Lessee shall have quiet and peaceful possession of the Premises throughout the term of this Agreement.

(c) Lessor represents and warrants that Lessor (i) has been duly authorized to enter into this Agreement by all necessary action, and (ii) subject to the approval of the owner, if any, will not be in default under any agreement to which it is a party as a result of entering into this Agreement.

(d) Lessor covenants that it will obtain a non-disturbance agreement (“NDA”) from any third party who now has or may in the future obtain an interest in the Site including, but not limited to, any lenders to Lessor, which NDA shall affirm the representations, warranties and covenants in Section 4(b) and this Section 6.

(e) Lessor represents, warrants and covenants that it shall not permit any lien, claim, right or other encumbrance to attach to the System and agrees to discharge any lien, claim, encumbrance or interest that attaches to the System (other than liens, claims, encumbrances or interest placed on the System by Lessee or Lessee’s creditors).

7. Environmental Matters. [Intentionally Omitted].

8. Term. The term of this Agreement shall commence on the date hereof and terminate on the date that is 180 days after the termination of the PPA2-D; provided, that, if the PPA2-D has terminated prior to the commencement of installation of any portion of the System, this Agreement shall terminate on the date on which the PPA2-D terminates. In addition, Lessee may terminate this Agreement effective upon provision of written notice to Lessor if (a) within 180 days of the date hereof, Lessee determines that the System cannot be installed and operated according to Lessee’s investment criteria; or (b) if Lessor and Lessee cannot reach an agreement pursuant to Section 5 hereof that is satisfactory to Lessee, in its sole discretion, as to the impact of any future changes to Lessor’s security and safety requirements on Lessee. This Agreement may be terminated by either party simultaneously with any termination of the PPA2-D by such party in accordance with the terms and conditions of the PPA2-D. If this Agreement is terminated by a party due to a Default under the PPA2-D by the other party, the non-defaulting party shall have and shall be entitled to exercise any and all remedies available to it at law or in equity.

9. Insurance. Each of Lessee and Lessor shall obtain and maintain the insurance coverages required under the PPA2-D.

10. Taxes. Lessee shall pay all real estate or personal property taxes, possessory interest taxes, business or license taxes or fees, service payments in lieu of such taxes or fees, annual or periodic license or use fees, excises, assessments, bonds, levies, fees or charges of any kind which are assessed, levied, charged, confirmed, or imposed by any public authority due to Lessee’s occupancy and use of the Premises and/or the installation of the Systems (or any portion or component thereof), except (a) real and personal property taxes relating to the real property on which the Premises are situated, (b) inheritance or estate taxes imposed upon or assessed against the Premises, or any part thereof or interest therein, (c) taxes computed upon the basis of the net income or payments derived from the Premises by Lessor or the owner of any interest therein, and (d) taxes, fees, service payments, excises, assessments, bonds, levies, fees or charges of any kind which are adopted by any public authority after the date hereof. Lessor shall pay all amounts in connection with clauses (a), (b), (c) and (d) of this Section 10.

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11. Liability and Indemnity.

(1) Indemnity. Each Party agrees that it will indemnify and hold harmless the other, its permitted successors and assigns and their respective directors, officers, members, shareholders and employees (collectively, the “Indemnified Parties”) from and against any and all Losses incurred by the Indemnified Parties to the extent arising from or out of any claim for or arising out of any injury to or death of any person or loss or damage to property of any person to the extent arising out of the indemnifying Party’s negligence or willful misconduct. However, the Parties will not be required to reimburse or indemnify any Indemnified Party for any Loss to the extent the Loss is due to the negligence or willful misconduct of the Indemnified Party, recognizing that a judicial finding of negligence or willful misconduct is not a necessary pre-requisite to indemnification or reimbursement. The term “Loss” means any claims, suits, penalties, obligations, damages, losses, liabilities, payments, costs and expenses (including without limitation reasonable and documented out-of-pocket attorney’s fees).

(2) Notice of Claims. A party seeking indemnification hereunder (the “Indemnified Party”) shall deliver to the other party (the “Indemnifying Party”) a notice describing the facts underlying its indemnification claim and the amount of such claim (each such notice a “Claim Notice”). Such Claim Notice shall be delivered promptly to the Indemnifying Party after the Indemnified Party receives notice that an action at law or a suit in equity has commenced; provided, however, that failure to deliver the Claim Notice as aforesaid shall not relieve the Indemnifying Party of its obligations under this Section 11, except to the extent that such Indemnifying Party has been materially prejudiced by such failure.

(3) LIMITATION OF LIABILITY. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN SECTIONS 1.3, 12.2(b), 15, 16.1 AND 16.2 OF THE PPA2-D, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ITS INDEMNIFIED PERSONS FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR LOSSES OR DAMAGES FOR LOST REVENUE OR LOST PROFITS, WHETHER FORESEEABLE OR NOT, ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT. OTHER THAN IN CONNECTION WITH THE PAYMENT OF TERMINATION VALUES WHEN AND IF REQUIRED UNDER THIS AGREEMENT, NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, EACH PARTY’S MAXIMUM LIABILITY TO THE OTHER PARTY, EXCEPT FOR INDEMNITY OBLIGATIONS IN RESPECT OF (A) PERSONAL INJURY AND PROPERTY DAMAGE CLAIMS UNDER THIS AGREEMENT, (B) CLAIMS UNDER SECTION 16.2 OF THE PPA2-D AND (C) AND CLAIMS INVOLVING A BREACH OF CONFIDENTIALITY UNDER SECTION 15 OF THE PPA2-D WILL BE LIMITED, IN THE AGGREGATE, TO (X) $0.01 PER KWH MULTIPLIED BY (Y) THE NUMBER OF KWH ESTIMATED TO BE DELIVERED OVER THE REMAINDER OF THE INITIAL TERM OF THE PPA2-D OR ANY THEN APPLICABLE RENEWAL TERM OF THE PPA2-D.

(4) Waiver of Subrogation. Notwithstanding anything to the contrary in this Agreement, the parties hereto release each other and their respective agents, employees, successors, assignees and subtenants from all liability for damage to any property that is caused by or results from a risk which is actually insured against, which is required to be insured against under the PPA2-D, or which would normally be covered by all risk property insurance, without regard to the negligence or willful misconduct of the entity so released.

(5) Survival. The provisions of this Section 11 shall survive the expiration or earlier termination of this Agreement.

12. Assignment.

(a) Neither party shall have the right to assign any of its rights, duties or obligations under this Agreement without the prior written consent of the other party, which consent may not be unreasonably withheld or delayed; provided, however, that Lessee may in its sole discretion and without the consent of Lessor assign any of its rights, duties or obligations under this Agreement to (i) one or more of its affiliates, (ii) one or more third parties in connection with a sale-and-leaseback or partnership-flip transaction, (iii) any present or future purchaser of the power generated by the System, (iv) any person or entity succeeding to all or substantially all of the assets of Lessee, or (v) a successor entity in a merger or acquisition transaction so long as (I) Lessee remains liable

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for all of its obligations under this Agreement, (II) that any such assignee agrees to be bound by all of the terms and conditions of this Agreement, (III) no such assignment shall preclude Lessor from dealing solely and directly with Lessee in all matters pertaining to this Agreement, and (IV) the assignment shall not impose upon Lessor any material costs or obligations; and provided further that Lessor may in its sole discretion and without the consent of Lessee assign this Agreement to any affiliated company or to any entity in connection with a sale and leaseback of the Site (any of the foregoing being a “Permitted Transfer”). Each Party shall provide notice to the other Party of the occurrence of any such Permitted Transfer.

(b) With respect to a Permitted Transfer pursuant to clause (ii) in the immediately preceding sentence, Lessor acknowledges and agrees that, upon receipt of written direction from a financing-transaction assignee of Lessee (collectively, “Assignee”), and notwithstanding any instructions to the contrary from Lessee, Lessor will recognize Assignee, or any third party to whom Assignee has reassigned the rights of Lessee under this Agreement, as the proper and lawful Lessee of the Premises and as the proper and lawful successor to Lessee with respect to access to the Premises across or through the Property and fully entitled to receive the rights and benefits of Lessee hereunder so long as Assignee (or its assignee) agrees to be bound by the terms and conditions of this Agreement and performs the obligations of Lessee hereunder. Lessor shall be protected and shall incur no liability in acting or proceeding in good faith upon any such foregoing written notice and direction by Assignee which Lessor shall in good faith believe (i) to be genuine and (ii) a copy of which to have been delivered to Lessee. Lessor shall be under no duty to make any investigation or inquiry as to any statements contained or matters referred to in any such foregoing notice and direction, but may accept and rely upon them as conclusive evidence of the truth and accuracy of such statements.

13. Provisions Benefiting Assignee.

(a) Lessor agrees to provide written notice to Assignee, provided that Lessor shall have previously received written notice of Assignee’s designated address, of any act or event of default of Lessee under the Agreement of which Lessor has knowledge that would entitle Lessor to cancel, terminate, annul, or modify the Agreement or dispossess or evict Lessee from the Premises or otherwise proceed with enforcement remedies against Lessee, and Assignee shall have the same amount of time as Lessee, but at least ten (10) days with respect to any monetary default and at least thirty (30) days with respect to any non-monetary default, to cure any default by Lessee under the Agreement; provided that in no event shall Assignee be obligated to cure any such default.

(b) Subject to the terms and conditions hereof, Lessor hereby subordinates any lien it may have in and to the System and other property that is or may from time to time hereafter be located at the Premises, and to which Lessee has granted or will grant a security interest to Assignee (all such property and the records relating thereto shall be hereafter called the “Collateral”) to the lien of Assignee; provided, however, that this subordination shall not prevent Lessor from exercising any right or remedy against Lessee to which Lessor may be entitled under the terms of the Agreement or as may be provided by applicable law; nor shall it prevent Lessor from realizing upon any lien it may have on any property of Lessee, including the Collateral, so long as Lessor recognizes Assignee’s prior right to the Collateral described above. Lessor recognizes and acknowledges that any claim or claims (“Claims”) that Assignee has or may have against such Collateral by virtue of any lien or security interest are superior to any lien, security interest, or claim of any nature that Lessor now has or may hereafter have to such Collateral by statute, agreement or otherwise. The subordination provided for herein shall be effective until the discharge of the Claims. Lessor further agrees to notify any purchaser of the Premises, and any subsequent mortgagee or other encumbrance holder, of the existence of the foregoing waiver of Lessor’s lien, which shall be binding upon the executors, administrators, successors and transferees of Lessor, and shall inure to the benefit of the successors and assigns of Assignee. Lessor agrees at Lessee’s or Assignee’s expense to execute such documents as may be reasonably required by Assignee to evidence the foregoing subordination.

(c) Lessor consents to Assignee’s security interest in the Collateral and waives all right of levy for rent and all claims and demands of every kind against the Collateral, such waiver to continue so long as any sum remains owing from Lessee to the Assignee. Lessor agrees that the Collateral shall not be subject to distraint or execution by, or to any claim of, Lessor.

(d) Lessor hereby irrevocably agrees and consents to refrain from taking any action to bar, restrain or otherwise prevent Assignee from the Premises and the Property for the purpose of inspecting the Collateral, provided that Assignee shall in any case comply with all of Lessor’s security and safety policies while on the Premises and Property to the extent provided in Section 5 of this Agreement.

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14. Amendments. This Agreement may be amended only in writing signed by Lessee and Lessor or their respective successors in interest.

15. Notices. Any notice required or permitted to be given in writing under this Agreement shall be mailed by certified mail, postage prepaid, return receipt requested, or sent by overnight air courier service, or personally delivered to a representative of the receiving party, or sent by facsimile (provided an identical notice is also sent simultaneously by mail, overnight courier, or personal delivery as otherwise provided in this Section 15). All such communications shall be mailed, sent or delivered, addressed to the party for whom it is intended, at its address set forth below:

If to Lessor:

AT&T Corp.

c/o AT&T Services, Inc.

[***]

[***]

Attn: Notices Administrator

Email Address: [***]

If to Lessee:

2012 ESA Project Company, LLC

c/o Bloom Energy Corporation

1299 Orleans Dr

Sunnyvale, CA 94089-1137

Email address: [***]

with a copy to:

PE12GVVC (Bloom PPA) Ltd.

c/o [***]

[***]

[***]

Attn: [***]

Telephone: [***]

Email: [***]

16. Waiver. The waiver by either party of any breach of any term, condition, or provision herein contained shall not be deemed to be a waiver of such term, condition, or provision, or any subsequent breach of the same, or any other term, condition, or provision contained herein.

17. Remedies Cumulative. No remedy herein conferred upon or reserved to Lessee or Lessor shall exclude any other remedy herein or by law provided, but each shall be cumulative and in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute.

18. Headings. The headings in this Agreement are solely for convenience and ease of reference and shall have no effect in interpreting the meaning of any provision of this Agreement.

*** Confidential Treatment Requested

14

19. Choice of Law. This Agreement shall be construed in accordance with the laws of the State of the state in which the Property is located (without regard to its conflict of laws principles).

20. Binding Effect. This Agreement and its rights, privileges, duties and obligations shall inure to the benefit of and be binding upon each of the parties hereto, together with their respective successors and permitted assigns.

21. Counterparts. This Agreement may be executed in counterparts, which shall together constitute one and the same agreement. Facsimile or pdf signatures shall have the same effect as original signatures and each

party consents to the admission in evidence of a facsimile or photocopy of this Agreement in any court or arbitration proceedings between the parties.

22. Entire Agreement. This Agreement and the PPA2-D represent the full and complete agreement between the parties hereto with respect to the subject matter contained herein and therein and supersede all prior written or oral agreements between said parties with respect to said subject matter. In the event of any conflict between the provisions of this Agreement and the provisions of the PPA2-D, the provisions of the PPA2-D shall govern and control.

23. Further Assurances. Upon the receipt of a written request from the other party, each party shall execute such additional documents, instruments and assurances and take such additional actions as are reasonably necessary to carry out the terms and intent hereof. Neither party shall unreasonably withhold, condition or delay its compliance with any reasonable request made pursuant to this section. From time to time, within seven (7) days of a written request by Lessee (or its Lender) and at Lessee’s expense, Lessor shall provide an estoppel certificate with respect to Lessee’s compliance with the terms of this Agreement and attesting to Lessor’s knowledge of any known issues of noncompliance by Lessee.

24. Compliance With Laws. Lessee shall not use the Premises or any part thereof or suffer or permit Lessee’s agents or contractors to do anything in or about the Premises in conflict with any applicable law, statute, zoning restriction, ordinance, or governmental law, code, rule or regulation affecting (a) the condition, use or occupancy of the Premises or (b) the construction, installation, ownership, operation or maintenance of the System. Lessee shall not commit any public or private nuisance or any other act or practice which would materially disturb the quiet enjoyment of any occupant of nearby properties.

25. Condition of Premises. Lessee acknowledges that it has inspected the Premises and, subject to the terms of Section 3.1.1 and Exhibit A, Lessee accepts the Premises and improvements thereon as suitable for its purposes hereunder. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, LESSEE ACKNOWLEDGES THAT LESSOR HAS NOT MADE ANY REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED OR AT COMMON LAW, BY STATUTE, OR OTHERWISE, RELATING TO THE PREMISES INCLUDING, WITHOUT LIMITATION, THE CONDITION OF THE PREMISES (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY TO MODELS OR SAMPLES OF MATERIALS OR ENVIRONMENTAL CONDITION). IN FURTHERANCE OF THE FOREGOING, LESSOR EXPRESSLY DISCLAIMS AND NEGATES, AND LESSEE HEREBY WAIVES (I) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (II) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (III) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (IV) ANY CLAIM FOR DAMAGES BECAUSE OF ANY LATENT OR PATENT DEFECTS OR OTHER DEFECTS, WHETHER KNOWN OR UNKNOWN AND (V) ANY AND ALL IMPLIED WARRANTIES EXISTING UNDER APPLICABLE LAW. IT IS THE EXPRESS INTENTION OF THE PARTIES HERETO THAT THE LEASE IS ON AN AS IS, WHERE IS BASIS. THE PARTIES HERETO AGREE THAT, TO THE EXTENT REQUIRED BY APPLICABLE LAW TO BE EFFECTIVE, THE DISCLAIMERS OF CERTAIN WARRANTIES CONTAINED IN THIS SECTION ARE CONSPICUOUS DISCLAIMERS.

26. Condemnation. If a condemning authority takes all of the Property, or a portion, which in Lessee’s opinion is sufficient to render the Premises unsuitable for Lessee’s use, then this Agreement shall terminate as of the date when possession is delivered to the condemning authority; in which case the provisions of Sections 10.5 and 10.7 of the PPA2-D shall apply.

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27. Consent of Owner. Lessee specifically agrees that this Agreement is subject to the approval and consent of the owner of the Property, if any, and that if the owner fails or refuses to grant such approval and consent, this Agreement shall be null and void and Lessor shall have no liability to Lessee whatsoever.

IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above written.

AT&T Corp.

By: AT&T Services, Inc., its authorized representative

By:

Name:

Title:

Date:

2012 ESA Project Company, LLC

By:

Name:

Title:

Date:

16

Exhibit A

Description of Sites

[***]:

• Address 1: [***]

System Capacity: [***] KW

System Location: [***]

Utility: [***]

LREC Performance Assurance: $[***]

Estimated Commencement of Operations: June 30, 2013

Actual Commencement of Operations Date:

*Annual Site kWh Production Cap: [***]

Expected LREC Incentive: $[***] per mWh

[***]:

• Address 2: [***]

System Capacity: [***] KW

System Location: [***]

Utility: [***]

LREC Performance Assurance: $[***]

Estimated Commencement of Operations Date: June 30, 2013

Actual Commencement of Operations Date:

*Annual Site kWh Production Cap: [***]

Expected LREC Incentive: $[***] per MWH

* Annual Site kWh Production Caps are calculated without regard to Deemed Delivered Energy.

*** Confidential Treatment Requested

17

Exhibit B

Standard System Design Package {Sample}

The following are the standard assumptions made by the Provider regarding the existing condition at each Site, including but not limited to the building roof, building structure, ground conditions, electrical system including panels, inverter installation location, and security fencing as well as a description of Bloom’s standard system design, space requirements and natural gas tap:

The Bloom Energy ‘Energy Server’ is a solid oxide fuel cell that converts natural gas into electricity using an electrochemical reaction. Each [***] KW Energy Server is approximately [***] ft long by [***] ft wide by [***] ft tall. Including service clearance, [***] ft by [***] ft of space, outside and on the ground is required. The Energy Servers require pipeline quality natural gas to produce electricity and, therefore, must be able to access a natural gas pipeline.

*** Confidential Treatment Requested

18

EXHIBIT T

to Credit Agreement

FORM OF PACIFIC BELL TELEPHONE COMPANY PPA AMENDMENT

AMENDMENT NO. 1

to

AGREEMENT NO. 20130403.075.C

an

ENERGY SYSTEM USE AGREEMENT

by and between

2012 ESA PROJECT COMPANY, LLC

and

PACIFIC BELL TELEPHONE COMPANY

Amendment No. 1

Agreement No. 20130403.075.C

AMENDMENT NO. 1

to

AGREEMENT NO. 20130403.075.C

After all Parties have signed, this Amendment is made effective as of May 15, 2013 (“Effective Date”) and is between 2012 ESA Project Company, LLC, a Delaware limited liability company (“Supplier”), and Pacific Bell Telephone Company, a California corporation (“AT&T”), each of which may be referred to in the singular as a “Party” or in the plural as the “Parties”.

WITNESSETH

WHEREAS, Supplier and AT&T entered into Agreement No. 20130403.075.C on May 15, 2013 (the “Agreement”); and

WHEREAS, Supplier and AT&T desire to amend the Agreement as hereinafter set forth.

NOW, THEREFORE, in consideration of the premises and the covenants hereinafter contained, the Parties hereto agree as follows:

1. EXHIBIT A, “Premises List, Description and Applicable Local Utility” that was included in the Agreement is deleted in its entirety and replaced with the new EXHIBIT A, “Premises List, Description and Applicable Local Utility”, attached hereto and incorporated herein.

2. EXHIBIT B, “Site Lease Agreement” that was included in the Agreement is deleted in its entirety and replaced with the new EXHIBIT B, “Site Lease Agreement”, attached hereto and incorporated herein. AT&T and Supplier hereby terminate the Site Lease Agreement executed between the Parties in connection with the execution of the Agreement.

3. EXHIBIT C, “Energy Server Lease Rate” that was included in the Agreement is deleted in its entirety and replaced with the new EXHIBIT C, “Energy Server Billing Rate”, attached hereto and incorporated herein.

AT&T and the Supplier each release the other from all obligations and liability in relation to any ‘Sites’ included in EXHIBIT A of the Agreement as of the date of signing of the Agreement, but not included in such EXHIBIT A after this Amendment is effective. Further, AT&T and Supplier each release the other from all obligations and liability in relation to the Site Lease Agreement executed between the Parties in connection with the Agreement.

The terms of this Amendment will be governed by and construed in accordance with the domestic laws of the State in which the Premises subject to the Agreement, as amended hereby, are located without reference to any choice of law principles.

The terms and conditions of the Agreement in all other respects remain unmodified and in full force and effect. All references to the Agreement in any other document or instrument shall be deemed to mean such Agreement as amended by this Amendment.

No amendment, modification, termination or waiver of any provision of this Amendment shall be effective unless the same shall be in writing and duly executed by the Parties. This Amendment shall be enforceable by and binding upon and shall inure to the benefit of the Parties hereto and their respective successors and assigns.

Proprietary and Confidential

This Amendment and information contained therein is not for use or disclosure outside of AT&T, its Affiliates, and third party representatives, and Supplier except under written agreement by the contracting parties.

3

Original signature transmitted and received via facsimile or other electronic transmission of a scanned document, (e.g., .pdf or similar format) are true and valid signatures for all purposes hereunder and shall bind the Parties to the same extent as that of an original signature. This Amendment may be executed in multiple counterparts, each of which shall be deemed to constitute an original but all of which together shall constitute only one document.

IN WITNESS WHEREOF, the Parties have caused this Amendment to the Agreement to be executed, as of the dates set forth below the respective signatures hereto.

2012 ESA Project Company, LLC
By:
	Name:	W.E. Brokenborough
	Title:	Vice President
	Date:
Pacific Bell Telephone Company
By: AT&T Services, Inc., its authorized representative
By:
	Name:	John Schinter
	Title:	Executive Director, Energy
	Date:

Proprietary and Confidential

This Amendment and information contained therein is not for use or disclosure outside of AT&T, its Affiliates, and third party representatives, and Supplier except under written agreement by the contracting parties.

4

IN WITNESS WHEREOF, and in confirmation of its consent to the terms and conditions contained in Section 1.3(d) of the Agreement and intending to be legally bound hereby, Bloom Energy Corporation, a Delaware corporation has executed this Amendment as of the date set forth below.

BLOOM ENERGY CORPORATION
By:
	Name:	Martin J. Collins
	Title:	VP, Corporate Development
	Date:

Proprietary and Confidential

This Amendment and information contained therein is not for use or disclosure outside of AT&T, its Affiliates, and third party representatives, and Supplier except under written agreement by the contracting parties.

5

EXHIBIT A

PREMISES LIST, DESCRIPTION AND APPLICABLE LOCAL UTILITY

[***]:

• Address 1: [***]

System Capacity: [***] KW

Net Generation Output: [***] KW

System Location: [***]

Utility: [***] (NOTE: [***])

SGIP Application Fee: $[***]

Estimated Commencement of Operations Date: June 30, 2013

Actual Commencement of Operations Date:

*Annual Site kWh Production Cap: [***] = [***]

Expected SGIP Incentive: $[***]

• Address 2: [***]

System Capacity: [***] KW

Net Generation Output: [***] KW

System Location: [***]

Utility: [***] (NOTE: [***])

Proprietary and Confidential

This Amendment and information contained therein is not for use or disclosure outside of AT&T, its Affiliates, and third party representatives, and Supplier except under written agreement by the contracting parties.

6

SGIP Application Fee: $[***]

Estimated Commencement of Operations Date: June 26, 2013

Actual Commencement of Operations Date:

*Annual Site kWh Production Cap: [***] = [***]

Expected SGIP Incentive: $[***]

• Address 3: [***]

System Capacity: [***] KW

Net Generation Output: [***] KW

System Location: [***]

Utility: [***] (NOTE: [***])

SGIP Application Fee: $[***]

Estimated Commencement of Operations Date: June 21, 2013

Actual Commencement of Operations Date:

*Annual Site kWh Production Cap: [***] = [***] kWh

Expected SGIP Incentive: $[***]

Proprietary and Confidential

This Amendment and information contained therein is not for use or disclosure outside of AT&T, its Affiliates, and third party representatives, and Supplier except under written agreement by the contracting parties.

7

• Address 4: [***]

System Capacity: [***] KW

Net Generation Output: [***] KW

System Location: [***]

Utility: [***] (NOTE: [***])

SGIP Application Fee: $[***]

Estimated Commencement of Operations Date: June 27, 2013

Actual Commencement of Operations Date:

*Annual Site kWh Production Cap: [***] = [***] kWh

Expected SGIP Incentive: $[***]

* Annual Site kWh Production Caps are calculated without regard to Deemed Delivered Energy.

Proprietary and Confidential

This Amendment and information contained therein is not for use or disclosure outside of AT&T, its Affiliates, and third party representatives, and Supplier except under written agreement by the contracting parties.

8

EXHIBIT B

SITE LEASE AGREEMENT

Proprietary and Confidential

This Amendment and information contained therein is not for use or disclosure outside of AT&T, its Affiliates, and third party representatives, and Supplier except under written agreement by the contracting parties.

9

Site Lease Agreement

This Site Lease Agreement (“Agreement”), dated as of May 15, 2013, is by and between 2012 ESA Project Company, LLC, a Delaware limited liability company (“Lessee”), and Pacific Bell Telephone Company (“Lessor”) by AT&T Services, Inc. (“AT&T”), its authorized representative, a Delaware Corporation.

WITNESSETH

WHEREAS, Lessee and AT&T have entered into an Energy System Use Agreement, dated May 15, 2013 (the “PPA2-B” or “AT&T Agreement No. 20130403.075.C”), pursuant to which Lessee has agreed to provide AT&T with Electricity Services. Capitalized terms used herein but not defined herein (including in the recitals hereto) shall have the respective meanings ascribed thereto in PPA2-B;

WHEREAS, in order to provide the Electricity Services, Lessee requires access to certain real property owned or leased by Lessor as identified in Exhibit A (the “Sites”); and

WHEREAS, in connection with the foregoing, Lessee desires that Lessor lease to Lessee, and Lessor desires to lease to Lessee, the Premises (defined below); and

WHEREAS, Lessee may finance the System and, in connection therewith, grant a first priority security interest therein, in favor of Lessee’s Lender (defined below); and

WHEREAS, Lessee and AT&T later amended PPA2-B that, among other changes, revised the Sites included within PPA2-B; and

WHEREAS, Lessee and AT&T are hereby entering into this Agreement to include the same Sites included in the amended PPA2-B; and

WHEREAS, Lessee and AT&T are also terminating the Site Lease Agreement, dated May 15, 2013, which was included as Exhibit B to PPA2-B;

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, and intending to be legally bound hereby, Lessee and Lessor hereby agree as follows:

1. Lease. Lessor hereby leases to Lessee (the “Lease”), in accordance with the terms and conditions hereinafter set forth, a plot located on the exterior of the building as described in Exhibit A where the System will be installed (individually and collectively, the “Premises”) for the purposes of Lessee’s constructing, installing, owning, operating, and maintaining the System only and for no other purposes whatsoever. Upon the completion of the installation of the System, Lessee shall provide Lessor with “as-built” drawings setting forth in detail the location of all components of the System. Lessor hereby also grants to Lessee, for a period co-terminous with the Lease, (i) a right of way to access the Premises across or through the Site and any surrounding or nearby premises owned or leased by Lessor, including the building below the Premises, passage through which is necessary or convenient to gain access to the System or the Premises (the “Property”) and to provide Lessor with the electricity from the System and (ii) a right of way to access natural gas from the gas tap line at the Site.

2. Benefits. Lessee shall pay Lessor one U.S. dollar ($1.00) on the Commercial Operation Date as and for rent of the Premises.

3. System Construction.

Proprietary and Confidential

This Amendment and information contained therein is not for use or disclosure outside of AT&T, its Affiliates, and third party representatives, and Supplier except under written agreement by the contracting parties.

10

(a) Lessor hereby consents to the construction of the System on the Site, as described in Exhibit B, including, without limitation, to the extent necessary, modifications to the building and the grounds at the Site so as to run wires and conduits from the System to the electrical panel and other areas on the Site as are required or appropriate for the management of the Systems.

4. System Construction, Installation, Operation, Ownership and Removal.

(a) Lessee shall have the right from time to time during the term hereof, in accordance with the PPA2-B:

(i) to construct, install, own, and operate the System on the Premises;

(ii) to maintain, clean, repair and replace part or all of the System;

(iii) to add to or remove the System or any part thereof;

(iv) to access the Premises with guests for promotional purposes during normal open hours and at other times as are acceptable to the Lessor in its reasonable business judgment; and

(v) to perform (or cause to be performed) all tasks necessary or appropriate, as reasonably determined by Lessee, to carry out the activities set forth in paragraphs (i) through (iv) of this Section 4.

(b) Lessor acknowledges and agrees that Lessee is the exclusive owner and operator of the System, that all equipment comprising the System shall remain the personal property of the Lessee and shall not become fixtures, notwithstanding the manner in which the System is or may be affixed to any real property of Lessor. Lessor shall have no right, title or interest in the System or any component thereof, notwithstanding that the System may be physically mounted or adhered to the Premises.

(c) Lessor agrees that it shall arrange for the owner of the Site to execute and deliver to Lessee a document pursuant to which such owner acknowledges and consents to the Lessee’s rights in the Site as set forth herein and subject to the terms hereof.

(d) As a condition of Lessee’s rights hereunder, Lessee shall obtain and maintain during the term of this Agreement any and all permits, variances, licenses, approvals and authorizations from governmental agencies with jurisdiction, including, without limitation, conditional use permits, and building permits that are applicable or necessary to the installation or operation of the System at, on or from the Premises (collectively, the “Governmental Approvals”). If requested by Lessee, Lessor agrees to assist Lessee, at Lessee’s expense (except as provided in the PPA2-B), in obtaining Governmental Approvals. Lessee must obtain Lessor’s prior written approval of all conditions of permit approval that would impose any material obligation on Lessor, which consent shall not be unreasonably withheld, conditioned or delayed by Lessor. Furthermore Lessee shall, at Lessee’s expense, comply with all requirements and conditions of approval related to the Governmental Approvals to the extent such requirements and conditions of approval are related to the installation or operation of the System itself and are not generally related to the building located beneath the Premises or ownership and operation thereof.

(e) Lessee further covenants and agrees as follows:

(i) That the System and its installation, construction, operation and/or maintenance will not cause permanent damage to the Premises or the Property, and, upon expiration or termination of this Agreement, Lessee shall restore the Premises to its original condition on the date of this Agreement, damage caused by ordinary wear and tear, casualty and condemnation excepted; provided, that Lessee shall not be responsible for making repairs or restoration unless any damage resulted from the actions or inactions of Lessee or its agents, employees or contractors. Lessee’s installation and construction activities shall not unreasonably interfere with Lessor’s work on the Property;

Proprietary and Confidential

This Amendment and information contained therein is not for use or disclosure outside of AT&T, its Affiliates, and third party representatives, and Supplier except under written agreement by the contracting parties.

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(ii) Prior to installation of any part of the System, Lessee shall comply with the following:

(A) Lessee shall submit all plans for the System or the applicable part thereof to Lessor for its approval, which approval shall not be unreasonably withheld, conditioned or delayed.

(B) Lessee shall not do or permit anything to be done on or about the Premises or bring or keep anything thereon which would (1) increase the commercial property insurance premiums for the Property unless Lessee first agrees to pay for such increase, or (2) invalidate the commercial property insurance coverage for the Property. Lessor agrees to notify Lessee of any acts of which it becomes aware that would increase or invalidate the insurance on the Property and agrees to provide Lessee with an opportunity to cease or modify the actions of which Lessee has been notified before Lessee is required to pay any increased commercial property insurance costs. Nothing herein shall be deemed to modify the provisions of Section 9.2 of the PPA2-B.

(C) Lessee shall not permit any mechanic’s or materialman’s lien upon or against the Building, the Premises or the Property which is caused by, results from, or is asserted with respect to, any work performed, materials furnished or obligation incurred by, through or under Lessee. Upon the filing of any such lien, whether timely, valid or otherwise, Lessee shall, within fifteen (15) days after receiving notice of such lien, cause such lien to be released of record or have the lien bonded over. Lessee shall, within such fifteen (15) day period, deliver to Lessor documentation and evidence of removal of the lien. If Lessee fails to have such lien released of record within such fifteen (15) day period, Lessor shall have the right, but not the obligation, to pay the lienor the amount which is claimed to be due, in order to obtain and record a release of such lien, and in such event Lessee shall immediately upon demand by Lessor reimburse Lessor for its costs in obtaining such release.

(f) Lessor and Lessee agree that, in all matters where a party’s approval or consent is required hereunder, such party’sapproval and/or consent shall not be unreasonably withheld, conditioned or delayed.

5. Access to Premises. Lessor shall provide Lessee, in accordance with Lessor’s normal security and safety requirements, with which Lessee agrees to comply and cause its employees, contractors and sub-contractors to comply, provided, that Lessee shall have first received written notification thereof, with access to the Site as reasonably necessary to allow Lessee to perform the installation work and operate, maintain, improve and replace the System as contemplated in the PPA2-B, including, without limitation, ingress and egress rights to and from the Premises for Lessee and its employees, contractors and sub-contractors and access to electrical panels and conduits to interconnect the System with the Site’s electrical wiring. Lessor shall use commercially reasonable efforts to provide sufficient space, adjacent to the Premises, for the temporary storage and staging of tools, materials and equipment and for the parking of construction crew vehicles and temporary construction trailers and facilities reasonably necessary during the installation work, removal work and access for rigging and material handling. Lessor shall provide Lessee a reasonable area adjacent to the Premises for construction laydown. Lessor and its authorized representatives shall at all times have access to and the right to observe the installation work, subject to compliance with Lessee’s safety rules, but shall not interfere with the installation work or handle any Lessee equipment or the System without prior written authorization from Lessee. In addition, Lessor shall grant Lessee, in accordance with Lessor’s normal security and safety requirements, with which Lessee agrees to comply and cause its employees, contractors and sub-contractors to comply, provided, that Lessee shall have first received written notification thereof, access to the Site as reasonably necessary to allow Lessee to perform the O&M Work, including, without limitation, ingress and egress rights to and from the Premises for Lessee and its employees, contractors and subcontractors and local electric utility personnel. Notwithstanding anything to the contrary herein, with respect to future changes to Lessor’s security and safety requirements, Lessor shall provide Lessee with written notification of such changes and if Lessee reasonably determines that compliance with such changes would materially or adversely increase Lessee’s obligations or decrease Lessee’s rights under this Agreement, Lessee and Lessor shall negotiate in good faith to determine how to resolve the impact of such changes on Lessee; provided, that, if Lessee and Lessor are unable through such negotiations to reach an agreement as to the impact of such

Proprietary and Confidential

This Amendment and information contained therein is not for use or disclosure outside of AT&T, its Affiliates, and third party representatives, and Supplier except under written agreement by the contracting parties.

12

changes on Lessee, Lessee shall have the right to terminate this Agreement as set forth in Section 8 hereof, in which case the provisions of Section 12.2 (b) of the PPA2-B shall apply. Lessee shall perform the O&M Work in a manner that minimizes inconvenience to and interference with Lessor and Lessor’s invitees’ and customers’ use of the Property to the extent commercially practicable.

6. Representations and Warranties, Covenants of Lessor.

(a) Lessor represents and warrants to Lessee that, except as set forth in Section 25 hereof, there are no circumstances known to Lessor or commitments to third parties (including, without limitation, mortgages, liens, or activities that may damage, impair or otherwise adversely affect Lessee’s rights under this Agreement or the System and/or its function. Lessor will not initiate or conduct activities that it knows or reasonably should know may damage, impair or otherwise materially adversely affect the System or its function. . Lessor will use such commercially reasonable methods proposed by Lessee in conducting maintenance to the Premises in order to avoid damage, impairment or adverse effect to the System or its function and will notify Lessee of any contemplated major renovations to the exterior of the Premises and, in such event, if Lessee provides timely written recommendations of solutions or measures for Lessor to implement to avoid or minimize the risk of damage or impairment to the System in conducting such activities, then Lessor will implement such measures or solutions to the extent same are commercially reasonable and permitted by law.

(b) Lessor represents and warrants that Lessor has lawful title to (or a valid leasehold interest in) the Site and the Premises and, subject to the approval of the owner, if any, full right to enter into this Agreement and that Lessee shall have quiet and peaceful possession of the Premises throughout the term of this Agreement.

(c) Lessor represents and warrants that Lessor (i) has been duly authorized to enter into this Agreement by all necessary action, and (ii) subject to the approval of the owner, if any, will not be in default under any agreement to which it is a party as a result of entering into this Agreement.

(d) Lessor covenants that it will obtain a non-disturbance agreement (“NDA”) from any third party who now has or may in the future obtain an interest in the Site including, but not limited to, any lenders to Lessor, which NDA shall affirm the representations, warranties and covenants in Section 4(b) and this Section 6.

(e) Lessor represents, warrants and covenants that it shall not permit any lien, claim, right or other encumbrance to attach to the System and agrees to discharge any lien, claim, encumbrance or interest that attaches to the System (other than liens, claims, encumbrances or interest placed on the System by Lessee or Lessee’s creditors).

7. Environmental Matters. [Intentionally Omitted].

8. Term. The term of this Agreement shall commence on the date hereof and terminate on the date that is 180 days after the termination of the PPA2-B; provided, that, if the PPA2-B has terminated prior to the commencement of installation of any portion of the System, this Agreement shall terminate on the date on which the PPA2-B terminates. In addition, Lessee may terminate this Agreement effective upon provision of written notice to Lessor if (a) within 180 days of the date hereof, Lessee determines that the System cannot be installed and operated according to Lessee’s investment criteria; or (b) if Lessor and Lessee cannot reach an agreement pursuant to Section 5 hereof that is satisfactory to Lessee, in its sole discretion, as to the impact of any future changes to Lessor’s security and safety requirements on Lessee. This Agreement may be terminated by either party simultaneously with any termination of the PPA2-B by such party in accordance with the terms and conditions of the PPA2-B. If this Agreement is terminated by a party due to a Default under the PPA2-B by the other party, the non-defaulting party shall have and shall be entitled to exercise any and all remedies available to it at law or in equity.

9. Insurance. Each of Lessee and Lessor shall obtain and maintain the insurance coverages required under the PPA2-B.

Proprietary and Confidential

This Amendment and information contained therein is not for use or disclosure outside of AT&T, its Affiliates, and third party representatives, and Supplier except under written agreement by the contracting parties.

13

10. Taxes. Lessee shall pay all real estate or personal property taxes, possessory interest taxes, business or license taxes or fees, service payments in lieu of such taxes or fees, annual or periodic license or use fees, excises, assessments, bonds, levies, fees or charges of any kind which are assessed, levied, charged, confirmed, or imposed by any public authority due to Lessee’s occupancy and use of the Premises and/or the installation of the Systems (or any portion or component thereof), except (a) real and personal property taxes relating to the real property on which the Premises are situated, (b) inheritance or estate taxes imposed upon or assessed against the Premises, or any part thereof or interest therein, (c) taxes computed upon the basis of the net income or payments derived from the Premises by Lessor or the owner of any interest therein, and (d) taxes, fees, service payments, excises, assessments, bonds, levies, fees or charges of any kind which are adopted by any public authority after the date hereof. Lessor shall pay all amounts in connection with clauses (a), (b), (c) and (d) of this Section 10.

11. Liability and Indemnity.

(A) Indemnity. Each Party agrees that it will indemnify and hold harmless the other, its permitted successors and assigns and their respective directors, officers, members, shareholders and employees (collectively, the “Indemnified Parties”) from and against any and all Losses incurred by the Indemnified Parties to the extent arising from or out of any claim for or arising out of any injury to or death of any person or loss or damage to property of any person to the extent arising out of the indemnifying Party’s negligence or willful misconduct. However, the Parties will not be required to reimburse or indemnify any Indemnified Party for any Loss to the extent the Loss is due to the negligence or willful misconduct of the Indemnified Party, recognizing that a judicial finding of negligence or willful misconduct is not a necessary pre-requisite to indemnification or reimbursement. The term “Loss” means any claims, suits, penalties, obligations, damages, losses, liabilities, payments, costs and expenses (including without limitation reasonable and documented out-of-pocket attorney’s fees).

(B) Notice of Claims. A party seeking indemnification hereunder (the “Indemnified Party”) shall deliver to the other party (the “Indemnifying Party”) a notice describing the facts underlying its indemnification claim and the amount of such claim (each such notice a “Claim Notice”). Such Claim Notice shall be delivered promptly to the Indemnifying Party after the Indemnified Party receives notice that an action at law or a suit in equity has commenced; provided, however, that failure to deliver the Claim Notice as aforesaid shall not relieve the Indemnifying Party of its obligations under this Section 11, except to the extent that such Indemnifying Party has been materially prejudiced by such failure.

(C) LIMITATION OF LIABILITY. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN SECTIONS 1.3, 12.2(b), 15, 16.1 AND 16.2 OF THE PPA2-B, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ITS INDEMNIFIED PERSONS FOR ANY SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR LOSSES OR DAMAGES FOR LOST REVENUE OR LOST PROFITS, WHETHER FORESEEABLE OR NOT, ARISING OUT OF, OR IN CONNECTION WITH THIS AGREEMENT. OTHER THAN IN CONNECTION WITH THE PAYMENT OF TERMINATION VALUES WHEN AND IF REQUIRED UNDER THIS AGREEMENT, NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, EACH PARTY’S MAXIMUM LIABILITY TO THE OTHER PARTY, EXCEPT FOR INDEMNITY OBLIGATIONS IN RESPECT OF (A) PERSONAL INJURY AND PROPERTY DAMAGE CLAIMS UNDER THIS AGREEMENT, (B) CLAIMS UNDER SECTION 16.2 OF THE PPA2-B AND (C) AND CLAIMS INVOLVING A BREACH OF CONFIDENTIALITY UNDER SECTION 15 OF THE PPA2-B WILL BE LIMITED, IN THE AGGREGATE, TO (X) $0.01 PER KWH MULTIPLIED BY (Y) THE NUMBER OF KWH ESTIMATED TO BE DELIVERED OVER THE REMAINDER OF THE INITIAL TERM OF THE PPA2-B OR ANY THEN APPLICABLE RENEWAL TERM OF THE PPA2-B.

(D) Waiver of Subrogation. Notwithstanding anything to the contrary in this Agreement, the parties hereto release each other and their respective agents, employees, successors, assignees and subtenants from all liability for damage to any property that is caused by or results from a risk which is actually insured against, which is required to be insured against under the PPA2-B, or which would normally be covered by all risk property insurance, without regard to the negligence or willful misconduct of the entity so released.

Proprietary and Confidential

This Amendment and information contained therein is not for use or disclosure outside of AT&T, its Affiliates, and third party representatives, and Supplier except under written agreement by the contracting parties.

14

(E) Survival. The provisions of this Section 11 shall survive the expiration or earlier termination of this Agreement.

12. Assignment.

(a) Neither party shall have the right to assign any of its rights, duties or obligations under this Agreement without the prior written consent of the other party, which consent may not be unreasonably withheld or delayed; provided, however, that Lessee may in its sole discretion and without the consent of Lessor assign any of its rights, duties or obligations under this Agreement to (i) one or more of its affiliates, (ii) one or more third parties in connection with a sale-and-leaseback or partnership-flip transaction, (iii) any present or future purchaser of the power generated by the System, (iv) any person or entity succeeding to all or substantially all of the assets of Lessee, or (v) a successor entity in a merger or acquisition transaction so long as (I) Lessee remains liable for all of its obligations under this Agreement, (II) that any such assignee agrees to be bound by all of the terms and conditions of this Agreement, (III) no such assignment shall preclude Lessor from dealing solely and directly with Lessee in all matters pertaining to this Agreement, and (IV) the assignment shall not impose upon Lessor any material costs or obligations; and provided further that Lessor may in its sole discretion and without the consent of Lessee assign this Agreement to any affiliated company or to any entity in connection with a sale and leaseback of the Site (any of the foregoing being a “Permitted Transfer”). Each Party shall provide notice to the other Party of the occurrence of any such Permitted Transfer.

(b) With respect to a Permitted Transfer pursuant to clause (ii) in the immediately preceding sentence, Lessor acknowledges and agrees that, upon receipt of written direction from a financing-transaction assignee of Lessee (collectively, “Assignee”), and notwithstanding any instructions to the contrary from Lessee, Lessor will recognize Assignee, or any third party to whom Assignee has reassigned the rights of Lessee under this Agreement, as the proper and lawful Lessee of the Premises and as the proper and lawful successor to Lessee with respect to access to the Premises across or through the Property and fully entitled to receive the rights and benefits of Lessee hereunder so long as Assignee (or its assignee) agrees to be bound by the terms and conditions of this Agreement and performs the obligations of Lessee hereunder. Lessor shall be protected and shall incur no liability in acting or proceeding in good faith upon any such foregoing written notice and direction by Assignee which Lessor shall in good faith believe (i) to be genuine and (ii) a copy of which to have been delivered to Lessee. Lessor shall be under no duty to make any investigation or inquiry as to any statements contained or matters referred to in any such foregoing notice and direction, but may accept and rely upon them as conclusive evidence of the truth and accuracy of such statements.

13. Provisions Benefiting Assignee.

(a) Lessor agrees to provide written notice to Assignee, provided that Lessor shall have previously received written notice of Assignee’s designated address, of any act or event of default of Lessee under the Agreement of which Lessor has knowledge that would entitle Lessor to cancel, terminate, annul, or modify the Agreement or dispossess or evict Lessee from the Premises or otherwise proceed with enforcement remedies against Lessee, and Assignee shall have the same amount of time as Lessee, but at least ten (10) days with respect to any monetary default and at least thirty (30) days with respect to any non-monetary default, to cure any default by

Lessee under the Agreement; provided that in no event shall Assignee be obligated to cure any such default. (b) Subject to the terms and conditions hereof, Lessor hereby subordinates any lien it may have in and to the System and other property that is or may from time to time hereafter be located at the Premises, and to which Lessee has granted or will grant a security interest to Assignee (all such property and the records relating thereto shall be hereafter called the “Collateral”) to the lien of Assignee; provided, however, that this subordination shall not prevent Lessor from exercising any right or remedy against Lessee to which Lessor may be entitled under the terms of the Agreement or as may be provided by applicable law; nor shall it prevent Lessor from realizing upon any lien it may have on any property of Lessee, including the Collateral, so long as Lessor recognizes Assignee’s prior right to the Collateral described above. Lessor recognizes and acknowledges that any claim or claims (“Claims”) that Assignee has or may have against such Collateral by virtue of any lien or security interest are superior to any lien, security

Proprietary and Confidential

This Amendment and information contained therein is not for use or disclosure outside of AT&T, its Affiliates, and third party representatives, and Supplier except under written agreement by the contracting parties.

15

interest, or claim of any nature that Lessor now has or may hereafter have to such Collateral by statute, agreement or otherwise. The subordination provided for herein shall be effective until the discharge of the Claims. Lessor further agrees to notify any purchaser of the Premises, and any subsequent mortgagee or other encumbrance holder, of the existence of the foregoing waiver of Lessor’s lien, which shall be binding upon the executors, administrators, successors and transferees of Lessor, and shall inure to the benefit of the successors and assigns of Assignee. Lessor agrees at Lessee’s or Assignee’s expense to execute such documents as may be reasonably required by Assignee to evidence the foregoing subordination.

(c) Lessor consents to Assignee’s security interest in the Collateral and waives all right of levy for rent and all claims and demands of every kind against the Collateral, such waiver to continue so long as any sum remains owing from Lessee to the Assignee. Lessor agrees that the Collateral shall not be subject to distraint or execution by, or to any claim of, Lessor.

(d) Lessor hereby irrevocably agrees and consents to refrain from taking any action to bar, restrain or otherwise prevent Assignee from the Premises and the Property for the purpose of inspecting the Collateral, provided that Assignee shall in any case comply with all of Lessor’s security and safety policies while on the Premises and Property to the extent provided in Section 5 of this Agreement.

14. Amendments. This Agreement may be amended only in writing signed by Lessee and Lessor or their respective successors in interest.

15. Notices. Any notice required or permitted to be given in writing under this Agreement shall be mailed by certified mail, postage prepaid, return receipt requested, or sent by overnight air courier service, or personally delivered to a representative of the receiving party, or sent by facsimile (provided an identical notice is also sent simultaneously by mail, overnight courier, or personal delivery as otherwise provided in this Section 15). All such communications shall be mailed, sent or delivered, addressed to the party for whom it is intended, at its address set forth below:

If to Lessor:

Pacific Bell Telephone Company

c/o AT&T Services, Inc.

[***]

[***]

Attn: Notices Administrator

Email Address: [***]

If to Lessee:

2012 ESA Project Company, LLC

c/o Bloom Energy Corporation

1299 Orleans Dr

Sunnyvale, CA 94089-1137

Email address: [***]

with a copy to:

PE12GVVC (Bloom PPA) Ltd.

[***]

[***]

*** Confidential Treatment Requested

Proprietary and Confidential

This Amendment and information contained therein is not for use or disclosure outside of AT&T, its Affiliates, and third party representatives, and Supplier except under written agreement by the contracting parties.

16

[***]

Attn: [***]

Telephone: [***]

Email: [***]

16. Waiver. The waiver by either party of any breach of any term, condition, or provision herein contained shall not be deemed to be a waiver of such term, condition, or provision, or any subsequent breach of the same, or any other term, condition, or provision contained herein.

17. Remedies Cumulative. No remedy herein conferred upon or reserved to Lessee or Lessor shall exclude any other remedy herein or by law provided, but each shall be cumulative and in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute.

18. Headings. The headings in this Agreement are solely for convenience and ease of reference and shall have no effect in interpreting the meaning of any provision of this Agreement.

19. Choice of Law. This Agreement shall be construed in accordance with the laws of the State of the state in which the Property is located (without regard to its conflict of laws principles).

20. Binding Effect. This Agreement and its rights, privileges, duties and obligations shall inure to the benefit of and be binding upon each of the parties hereto, together with their respective successors and permitted assigns.

21. Counterparts. This Agreement may be executed in counterparts, which shall together constitute one and the same agreement. Facsimile or pdf signatures shall have the same effect as original signatures and each party consents to the admission in evidence of a facsimile or photocopy of this Agreement in any court or arbitration proceedings between the parties.

22. Entire Agreement. This Agreement and the PPA2-B represent the full and complete agreement between the parties hereto with respect to the subject matter contained herein and therein and supersede all prior written or oral agreements between said parties with respect to said subject matter. In the event of any conflict between the provisions of this Agreement and the provisions of the PPA2-B, the provisions of the PPA2-B shall govern and control.

23. Further Assurances. Upon the receipt of a written request from the other party, each party shall execute such additional documents, instruments and assurances and take such additional actions as are reasonably necessary to carry out the terms and intent hereof. Neither party shall unreasonably withhold, condition or delay its compliance with any reasonable request made pursuant to this section. From time to time, within seven (7) days of a written request by Lessee (or its Lender) and at Lessee’s expense, Lessor shall provide an estoppel certificate with respect to Lessee’s compliance with the terms of this Agreement and attesting to Lessor’s knowledge of any known issues of noncompliance by Lessee.

24. Compliance With Laws. Lessee shall not use the Premises or any part thereof or suffer or permit Lessee’s agents or contractors to do anything in or about the Premises in conflict with any applicable law, statute, zoning restriction, ordinance, or governmental law, code, rule or regulation affecting (a) the condition, use or occupancy of the Premises or (b) the construction, installation, ownership, operation or maintenance of the System. Lessee shall not commit any public or private nuisance or any other act or practice which would materially disturb the quiet enjoyment of any occupant of nearby properties.

*** Confidential Treatment Requested

Proprietary and Confidential

This Amendment and information contained therein is not for use or disclosure outside of AT&T, its Affiliates, and third party representatives, and Supplier except under written agreement by the contracting parties.

17

25. Condition of Premises. Lessee acknowledges that it has inspected the Premises and, subject to the terms of Section 3.1.1 and Exhibit A, Lessee accepts the Premises and improvements thereon as suitable for its purposes hereunder. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, LESSEE ACKNOWLEDGES THAT LESSOR HAS NOT MADE ANY REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED OR AT COMMON LAW, BY STATUTE, OR OTHERWISE, RELATING TO THE PREMISES INCLUDING, WITHOUT LIMITATION, THE CONDITION OF THE PREMISES (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CONFORMITY TO MODELS OR SAMPLES OF MATERIALS OR ENVIRONMENTAL CONDITION). IN FURTHERANCE OF THE FOREGOING, LESSOR EXPRESSLY DISCLAIMS AND NEGATES, AND LESSEE HEREBY WAIVES (I) ANY IMPLIED OR EXPRESS WARRANTY OF MERCHANTABILITY, (II) ANY IMPLIED OR EXPRESS WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (III) ANY IMPLIED OR EXPRESS WARRANTY OF CONFORMITY TO MODELS OR SAMPLES OF MATERIALS, (IV) ANY CLAIM FOR DAMAGES BECAUSE OF ANY LATENT OR PATENT DEFECTS OR OTHER DEFECTS, WHETHER KNOWN OR UNKNOWN AND (V) ANY AND ALL IMPLIED WARRANTIES EXISTING UNDER APPLICABLE LAW. IT IS THE EXPRESS INTENTION OF THE PARTIES HERETO THAT THE LEASE IS ON AN AS IS, WHERE IS BASIS. THE PARTIES HERETO AGREE THAT, TO THE EXTENT REQUIRED BY APPLICABLE LAW TO BE EFFECTIVE, THE DISCLAIMERS OF CERTAIN WARRANTIES CONTAINED IN THIS SECTION ARE CONSPICUOUS DISCLAIMERS.

26. Condemnation. If a condemning authority takes all of the Property, or a portion, which in Lessee’s opinion is sufficient to render the Premises unsuitable for Lessee’s use, then this Agreement shall terminate as of the date when possession is delivered to the condemning authority; in which case the provisions of Sections 10.5 and 10.7 of the PPA2-B shall apply.

27. Consent of Owner. Lessee specifically agrees that this Agreement is subject to the approval and consent of the owner of the Property, if any, and that if the owner fails or refuses to grant such approval and consent, this Agreement shall be null and void and Lessor shall have no liability to Lessee whatsoever.

IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above written.

IN WITNESS WHEREOF, the parties have executed this Agreement on the day and year first above written.

Pacific Bell Telephone Company

By: AT&T Services, Inc., its authorized representative

By:

Name:

Title:

Date:

Proprietary and Confidential

This Amendment and information contained therein is not for use or disclosure outside of AT&T, its Affiliates, and third party representatives, and Supplier except under written agreement by the contracting parties.

18

2012 ESA Project Company, LLC

By:

Name:

Title:

Date:

Proprietary and Confidential

This Amendment and information contained therein is not for use or disclosure outside of AT&T, its Affiliates, and third party representatives, and Supplier except under written agreement by the contracting parties.

19

Exhibit A

Description of Sites

[***]:

• Address 1: [***]

System Capacity: [***] KW

Net Generation Output: [***] KW

System Location: [***].

Utility: [***] (NOTE: [***])

SGIP Application Fee: $[***]

Estimated Commencement of Operations Date: June 30, 2013

Actual Commencement of Operations Date:

*Annual Site kWh Production Cap: [***] = [***]

Expected SGIP Incentive: $[***]

• Address 2: [***]

System Capacity: [***] KW

Net Generation Output: [***] KW

System Location: [***]

Utility: [***] (NOTE: [***])

SGIP Application Fee: $[***]

Estimated Commencement of Operations Date: June 26, 2013

Actual Commencement of Operations Date:

*Annual Site kWh Production Cap: [***] = [***]

Expected SGIP Incentive: $[***]

• Address 3: [***]

System Capacity: [***] KW

Net Generation Output: [***] KW

System Location: [***].

Utility: [***] (NOTE: [***])

SGIP Application Fee: $[***]

Estimated Commencement of Operations Date: June 21, 2013

Actual Commencement of Operations Date:

*Annual Site kWh Production Cap: [***] = [***]

Expected SGIP Incentive: $[***]

Proprietary and Confidential

This Amendment and information contained therein is not for use or disclosure outside of AT&T, its Affiliates, and third party representatives, and Supplier except under written agreement by the contracting parties.

20

• Address 4: [***]

System Capacity: [***] KW

Net Generation Output: [***] KW

System Location: [***].

Utility: [***] (NOTE: [***])

SGIP Application Fee: $[***]

Estimated Commencement of Operations Date: June 27, 2013

Actual Commencement of Operations Date:

*Annual Site kWh Production Cap: [***] = [***] kWh

Expected SGIP Incentive: $[***]

*** Confidential Treatment Requested

Proprietary and Confidential

This Amendment and information contained therein is not for use or disclosure outside of AT&T, its Affiliates, and third party representatives, and Supplier except under written agreement by the contracting parties.

21

Exhibit B

Standard System Design Package {Sample}

The following are the standard assumptions made by the Provider regarding the existing condition at each Site, including but not limited to the building roof, building structure, ground conditions, electrical system including panels, inverter installation location, and security fencing as well as a description of Bloom’s standard system design, space requirements and natural gas tap:

The Bloom Energy ‘Energy Server’ is a solid oxide fuel cell that converts natural gas into electricity using an electrochemical reaction. Each [***] KW Energy Server is approximately [***] ft long by [***] ft wide by [***] ft tall. Including service clearance, [***] ft by [***] ft of space, outside and on the ground is required. The Energy Servers require pipeline quality natural gas to produce electricity and, therefore, must be able to access a natural gas pipeline.

Proprietary and Confidential

This Amendment and information contained therein is not for use or disclosure outside of AT&T, its Affiliates, and third party representatives, and Supplier except under written agreement by the contracting parties.

22

EXHIBIT C

ENERGY SERVER BILLING RATE

The total monthly usage fee will be calculated using the following formula:

Monthly Billing Rate X mmBTU consumed X system Efficiency

MONTHLY BILLING RATE

Rate in Year	Monthly Rate ($/mmBTU
1	$	[***	]
2	$	[***	]
3	$	[***	]
4	$	[***	]
5	$	[***	]
6	$	[***	]
7	$	[***	]
8	$	[***	]
9	$	[***	]
10	$	[***	]
11	$	[***	]
12	$	[***	]
13	$	[***	]
14	$	[***	]
15	$	[***	]
16	$	[***	]
17	$	[***	]
18	$	[***	]
19	$	[***	]
20	$	[***	]

*** Confidential Treatment Requested

Proprietary and Confidential

This Amendment and information contained therein is not for use or disclosure outside of AT&T, its Affiliates, and third party representatives, and Supplier except under written agreement by the contracting parties.

23

Schedule 2.1

Amortization Schedule

Quarter	Principal		% of Par
3/31/2014	$	329,520		0.70	%
6/30/2014	$	282,544		0.60	%
9/30/2014	$	114,441		0.24	%
12/31/2014	$	133,585		0.29	%
3/31/2015	$	66,165		0.14	%
6/30/2015	$	78,374		0.17	%
9/30/2015	$	98,655		0.21	%
12/31/2015	$	140,370		0.30	%
3/31/2016	$	162,654		0.35	%
6/30/2016	$	176,863		0.38	%
9/30/2016	$	199,435		0.43	%
12/31/2016	$	244,115		0.52	%
3/31/2017	$	269,081		0.58	%
6/30/2017	$	285,539		0.61	%
9/30/2017	$	310,694		0.66	%
12/31/2017	$	358,703		0.77	%
3/31/2018	$	386,606		0.83	%
6/30/2018	$	439,654		0.94	%
9/30/2018	$	466,038		1.00	%
12/31/2018	$	514,917		1.10	%
3/31/2019	$	546,055		1.17	%
6/30/2019	$	565,951		1.21	%
9/30/2019	$	594,209		1.27	%
12/31/2019	$	645,220		1.38	%
3/31/2020	$	679,407		1.45	%
6/30/2020	$	698,616		1.49	%
9/30/2020	$	724,964		1.55	%
12/31/2020	$	772,323		1.65	%
3/31/2021	$	808,628		1.73	%
6/30/2021	$	830,408		1.77	%
9/30/2021	$	859,657		1.84	%
12/31/2021	$	906,270		1.94	%
3/31/2022	$	945,968		2.02	%
6/30/2022	$	970,475		2.07	%
9/30/2022	$	1,002,795		2.14	%
12/31/2022	$	1,053,304		2.25	%
3/31/2023	$	1,093,325		2.34	%
6/30/2023	$	1,115,731		2.38	%
9/30/2023	$	1,141,298		2.44	%
12/31/2023	$	1,194,160		2.55	%
3/31/2024	$	1,237,551		2.65	%
6/30/2024	$	1,262,519		2.70	%
9/30/2024	$	1,290,748		2.76	%
12/31/2024	$	1,347,542		2.88	%
3/31/2025	$	1,394,609		2.98	%
6/30/2025	$	1,422,432		3.04	%
9/30/2025	$	1,453,649		3.11	%
12/31/2025	$	1,514,810		3.24	%
3/31/2026	$	1,565,866		3.35	%
6/30/2026	$	1,596,742		3.41	%
9/30/2026	$	1,631,123		3.49	%
12/31/2026	$	1,696,851		3.63	%
3/31/2027	$	1,752,188		3.75	%
6/30/2027	$	1,786,209		3.82	%
9/30/2027	$	1,823,773		3.90	%
12/31/2027	$	1,800,713		3.85	%
Total	$	46,784,041		100.00	%

Schedule 3.1.14

Litigation

None

Schedule 3.1.22

Project Budget

8/29/2013

	Initial		True-Up
Month	Funding (kW)		Funding (kW)
1		2,200		0
2		0		600
3		2,600		1,200
4		0		1,300
5		0		900
6		2,500		400
7		0		0
8		0		0
9		2,500		5,200
10		200		0
11		200		400
12		0		200
Total		10,200		10,200

	Old docs			Updated			Blended
	IIIa accepted			IIIa ongoing			(Modeled)
Size (kW)		4,400			5,800			10,200
Debt reserve ($/kW)	$	354.17		$	377.87		$	367.65
Prepaid Expenses ($/kW)	$	263.98		$	0.00		$	113.87
Debt (LTV %)		41.20	%		41.20	%		41.20	%
Maint. Res.	$	871.00		$	871.00		$	871.00
TE Funding ($/kW)	$	3,801.60		$	3,801.60		$	3,801.60
Sponsor Funding ($/kW)	$	2,225.55		$	2,215.30		$	2,219.72
System ASP ($/kW) (True-up)	$	10,250.26		$	10,232.83		$	10,240.35
System ASP ($/kW) (Initial)	$	10,243.98		$	10,231.20		$	10,240.35
	Funded			Unfunded			Total
Debt $	$	18,581,670		$	24,452,371		$	43,034,041
Debt reserve $	$	1,558,333		$	2,191,667		$	3,750,000
Debt ($/kW)	$	4,223.11		$	4,215.93		$	4,219.02
Debt reserve ($/kW)	$	354.17		$	377.87		$	367.65
Total Debt + DSRA ($/kW)	$	4,577.27		$	4,593.80		$	4,586.67
Equity Contr. of total capitalization (not inc txn exp)							$	7,006.20		$	1.5275

3/31/2014			3/31/2014			3/31/2014			6/30/2014			6/30/2014			6/30/2014			9/30/2014			9/30/2014			9/30/2014			12/31/2014			12/31/2014			12/31/2014			3/31/2015
Jan-14			Feb-14			Mar-14			Apr-14			May-14			Jun-14			Jul-14			Aug-14			Sep-14			Oct-14			Nov-14			Dec-14			Jan-15			Notes
$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		ECCA
$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		ECCA
$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		ECCA
$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0
$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0
$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		Credit Agreement
$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		ECCA
$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		Credit Agreement/MESPA
$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		Credit Agreement/ O&M Costs out of Construction Account during Availability Period
$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		Credit Agreement
$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0
$	1,392,500		$	1,636,688		$	1,880,876		$	1,312,855		$	1,520,312		$	1,727,769		$	1,191,256		$	1,321,294		$	1,451,332		$	1,074,862		$	1,217,882		$	1,360,901		$	971,471
$	726,025		$	726,025		$	726,025		$	729,427		$	729,427		$	729,427		$	735,920		$	735,920		$	735,920		$	750,577		$	750,577		$	750,577		$	751,711
$	99,865		$	99,865		$	99,865		$	101,728		$	101,728		$	101,728		$	105,578		$	105,578		$	105,578		$	107,656		$	107,656		$	107,656		$	114,492
$	3,125		$	3,125		$	3,125		$	3,125		$	3,125		$	3,125		$	3,125		$	3,125		$	3,125		$	3,125		$	3,125		$	3,125		$	3,125
$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		Credit Agreement
($	292,427	)	($	292,427	)	($	292,427	)	($	336,481	)	($	336,481	)	($	336,481	)	($	426,011	)	($	426,011	)	($	426,011	)	($	430,479	)	($	430,479	)	($	430,479	)	($	436,239	)
$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0
($	292,400	)	($	292,400	)	($	292,400	)	($	290,341	)	($	290,341	)	($	290,341	)	($	288,575	)	($	288,575	)	($	288,575	)	($	287,860	)	($	287,860	)	($	287,860	)	($	287,025	)
$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0
$	0		$	0		($	329,520	)	$	0		$	0		($	282,544	)	$	0		$	0		($	114,441	)	$	0		$	0		($	133,585	)	$	0
$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0
$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0
$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		Assumes only distributions that don’t meet Distribution Conditions AFTER Availability Period (ie on any Repayment Date) go to Distribution Suspense Account, during Availability Period distributions stay in Revenue Account as there are no Repayment Dates until after Availability Period
$	0		$	0		($	193,882	)	$	0		$	0		($	193,882	)	$	0		$	0		($	193,882	)	$	0		$	0		($	193,882	)	$	0		Assumes distributions during Availability Period held in revenue account and distributed at first Repayment Date
$	0		$	0		($	288,807	)	$	0		$	0		($	267,545	)	$	0		$	0		($	198,185	)	$	0		$	0		($	204,984	)	$	0		Assumes distributions during Availability Period held in revenue account and distributed at first Repayment Date
$	1,636,688		$	1,880,876		$	1,312,855		$	1,520,312		$	1,727,769		$	1,191,256		$	1,321,294		$	1,451,332		$	1,074,862		$	1,217,882		$	1,360,901		$	971,471		$	1,117,536		Assumes some retention of W.C. as per waterfall level (8) and model
$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0
$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0
$	292,427		$	292,427		$	292,427		$	336,481		$	336,481		$	336,481		$	426,011		$	426,011		$	426,011		$	430,479		$	430,479		$	430,479		$	436,239
($	31,273	)	($	31,273	)	($	31,273	)	($	76,446	)	($	76,446	)	($	76,446	)	($	166,790	)	($	166,790	)	($	166,790	)	($	177,215	)	($	177,215	)	($	177,215	)	($	177,215	)
($	99,865	)	($	99,865	)	($	99,865	)	($	101,728	)	($	101,728	)	($	101,728	)	($	105,578	)	($	105,578	)	($	105,578	)	($	107,656	)	($	107,656	)	($	107,656	)	($	114,492	)
($	9,983	)	($	9,983	)	($	9,983	)	($	10,233	)	($	10,233	)	($	10,233	)	($	10,233	)	($	10,233	)	($	10,233	)	($	10,233	)	($	10,233	)	($	10,233	)	($	10,233	)
($	111,712	)	($	111,712	)	($	111,712	)	($	108,481	)	($	108,481	)	($	108,481	)	($	103,815	)	($	103,815	)	($	103,815	)	($	95,782	)	($	95,782	)	($	95,782	)	($	94,705	)
($	16,644	)	($	16,644	)	($	16,644	)	($	16,644	)	($	16,644	)	($	16,644	)	($	16,644	)	($	16,644	)	($	16,644	)	($	16,644	)	($	16,644	)	($	16,644	)	($	16,644	)
($	22,950	)	($	22,950	)	($	22,950	)	($	22,950	)	($	22,950	)	($	22,950	)	($	22,950	)	($	22,950	)	($	22,950	)	($	22,950	)	($	22,950	)	($	22,950	)	($	22,950	)
$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0		$	0

Schedule 3.1.23

Project Schedule

Customer	Address	City	County	State	Initial Funding Date	True-Up Funding Date	Size
AT&T	6135 E. Whittier Blvd.	Los Angeles	Los Angeles	CA	September-13	September-13		500
AT&T	608 E. Compton Blvd.	Compton	Los Angeles	CA	September-13	September-13		600
AT&T	201 S. Douglas St.	El Segundo	Los Angeles	CA	March-13	May-13		200
AT&T	12722 Birch	Hawthorne	Los Angeles	CA	March-13	May-13		300
AT&T	3580 ORANGE ST	Riverside	Riverside	CA	March-13	April-13		600
AT&T	9129 MAGNOLIA AVE	Riverside	Riverside	CA	March-13	April-13		300
WMT	1861 South San Jacinto Ave	San Jacinto	Riverside	CA	January-13	March-13		200
WMT	5601 East Ramon Rd	Palm Springs	Riverside	CA	January-13	March-13		200
WMT	26471 Carl Boyer Dr	Santa Clarita	Los Angeles	CA	January-13	April-13		200
WMT	2770 Carson St	Lakewood	Los Angeles	CA	March-13	May-13		200
WMT	34500 Monterey Ave	Palm Desert	Riverside	CA	January-13	March-13		200
WMT	1300 South F St	Porterville	Tulare	CA	January-13	February-13		600
WMT	2601 Skypark Dr	Torrance	Los Angeles	CA	March-13	March-13		200
WMT	6336 College Grove Way	San Diego	San Diego	CA	March-13	April-13		200
WMT	5871 Firestone Blvd	South Gate	Los Angeles	CA	March-13	June-13		200
WMT	31700 Grape St	Lake Elsinore	Riverside	CA	March-13	June-13		200
WMT	1950 Auto Ctr Dr	Glendora	Los Angeles	CA	October-13	November-13		200
WMT	250 South 12th Ave	Hanford	Kings County	CA	March-13	May-13		200
WMT	32225 Hwy 79 South	Temecula	Riverside	CA	January-13	September-13		200
WMT	1819 East Noble Ave	Visalia	Tulare	CA	January-13	November-13		200
WMT	1375 East Ontario Ave	Corona	Riverside	CA	January-13	March-13		200
WMT	21101 Johnson Rd	Apple Valley	San Bernardino	CA	November-13	December-13		200
WMT	3250 Big Dalton Ave	Baldwin Park	Los Angeles	CA	September-13	September-13		200
WMT	8500 Washington Blvd	Pico Rivera	Los Angeles	CA	January-13	March-13		200
AT&T	6900 S. Vermont Ave.	Los Angeles	Los Angeles	CA	September-13	September-13		500
AT&T	17200 Vermont	Gardena	Los Angeles	CA	June-13	September-13		1000
AT&T	522 FAIRFIELD AVENUE	Bridgeport	Fairfield	CT	September-13	September-13		700
AT&T	751 HIGGINS ROAD	Cheshire	New Haven	CT	June-13	September-13		600
AT&T	11272 Magnolia Bl.	North Hollywood	Los Angeles	CA	June-13	September-13		600
AT&T	1418 Broad St.	Wilmington	Los Angeles	CA	June-13	September-13		300
								10200

Schedule 4.1

Credit Party Jurisdictions and Foreign Qualifications

2012 ESA Project Company, LLC

• Formed in Delaware

• Registered to operate in California

• Registered to operate in Connecticut

2012 V PPA Holdco, LLC

• Formed in Delaware

Clean Technologies III, LLC

• Formed in Delaware

Bloom Energy Corporation

• Incorporated in Delaware

• Registered to operate in California

Schedule 4.10

Hazardous Substances Disclosure

None

Schedule 4.24

Schedule of Security Filings

Person	Filing Office	Filing
2012 ESA Project Company, LLC	Secretary of State, Delaware	UCC-1 (covering the “Collateral”, as defined in the Security Agreement)
2012 V PPA Holdco, LLC	Secretary of State, Delaware	UCC-1 (covering the “Collateral”, as defined in the Pledge Agreement)

Schedule 5.15

Insurance Requirements

The Borrower shall, without cost to the Secured Parties, obtain and maintain or cause to be obtained and maintained in full force and effect the insurance policies as required in this Schedule.

In each case the policies must be with insurance carriers with a rating of at least A- and a financial size category of at least X by A.M. Best or A by S&P or otherwise reasonably acceptable to the Administrative Agent.

The policies specified in Appendix 1 of this Schedule shall be in full force and effect at all times on and after the Closing Date or at such later inception date as is permitted by Appendix 1 to this Schedule until the Maturity Date subject to renewal no more frequently than annually.

At no time shall there be any gap in cover.

The policy limits and cover of the insurances required in this schedule shall be sufficient to satisfy the requirements set forth in the Project Documents, but in no event less than the limits and coverage provisions set forth in Appendix 1 herein. The obligation to verify that the insurances carried by the Borrower meet the requirements of the Project Documents shall rest solely with the Borrower.

The Borrower shall not violate or permit to be violated any condition, provision or requirement of any insurance policy required by this Schedule, and the Borrower shall perform, satisfy and comply with all conditions, provisions and requirements of all insurance policies.

The Borrower hereby waives any and every claim for recovery against each Secured Party and its directors, officers and employees and agents for any and all loss or damage covered by any insurance policies to be maintained under this Schedule to the extent such loss or damage is recovered under any such policy.

The Borrower shall inform the Administrative Agent as soon a reasonably possible if it becomes aware of and such cancellation, lapse, termination or suspension or of any reasonable prospect of such and shall further require its Broker to do the same.

All policies of insurance required to be maintained pursuant to this Schedule except workers compensation and employers liability shall provide:

• Additional Insured status for each Secured Party and their respective affiliates, directors, officers and employees and agents (collectively, the “Additional Insureds”). This requirement shall not apply to any professional indemnity policy.

• Waivers of subrogation from the insurers in favor of the Additional Insureds.

• Policies either (a) non-cancellable except for non-payment of premium with at least 10 days written notice of such to the Administrative Agent; or (b) 30 days notice of cancellation (10 days non-payment of premium).

• Each Secured Party will have the right but not the obligation to pay premiums on behalf of the Borrower in case of non-payment.

• Policies shall be unaffected by any bankruptcy or foreclosure relating to the Borrower or the Projects.

• Insurance shall be primary and not excess to or contributing with any other insurance or self-insurance maintained by the Borrower or the Additional Insureds. However, policies can act in excess of such project-specific policies provided by contractors in accordance with the requirements of this Schedule.

• The Additional Insureds shall have no obligations whatsoever including but not limited to no obligation to pay premium and no obligation to pay deductibles.

• Policy limits shall act in excess of deductibles including the indemnity period for time element insurance shall act in excess of the delay deductible for such insurance.

In addition, all property policies including marine cargo (if applicable) and further including any time element insurance shall provide:

• That Administrative Agent shall be sole loss payee of any amounts payable under the policies in relation to the Borrower and the Projects and, after the Obligations are satisfied in full, Firstar Development, LLC shall be sole loss payee.

• Non vitiation in accordance with a multiple insured clause acceptable to the Administrative Agent or equivalent protection.

• Cover for accidental errors and omissions with, to the extent available on commercially reasonable terms, no sublimit applied otherwise a sublimit acceptable to the Administrative Agent acting reasonably.

• Replacement cost, new for old, with no deduction of any kind including no coinsurance provision or a waiver thereof and no allowance for depreciation (accounting or otherwise), obsolescence or loss of value over time other than in a total constructive loss or other scenario where repair/replacement does not follow loss.

• An advance or partial payment endorsement.

• A clause requiring the insurer to make final payment on any claim within thirty days after the submission of proof of loss and its acceptance by the insurer.

• Except for marine transit policies, a LEG2 exclusion or similar endorsement with no sublimit applied.

In addition, all liability policies except workers compensation and employers liability shall provide:

• Severability.

• Cross liability with no exclusions.

The above requirements shall be referred to as the “Required Lender Provisions”. The Required Lender Provisions can be provided either as endorsements to or in the main body of the relevant policy. All policies that replace or renew policies shall contain provisions, including limits, sublimits, deductibles, exclusions and the Required Lender Provisions, that are, mutatis mutandis, in all material regards at least the same as those in place at the Closing Date or, if later, the date of first inception of such policy cover, except in relation to risks where exposure no longer exists or where a better level of cover is provided or which would be required in accordance with the provisions of this Schedule.

The Borrower shall provide Administrative Agent as soon as reasonably possible prior to the Supplemental Funding Date, and at least 10 days prior to any subsequent policy inception or renewal, a certificate of pre-agreed format from:

• Each placing Broker confirming:

• Summary policy terms in the pre-agreed format.

• That all policies required by this schedule are in full force and effect.

• All insurance premiums that are due and payable have been paid in full with no premium overdue.

There shall be appended to such certificate or letter of undertaking certificates from insurers for each policy required by this Schedule listing the major sublimits (to be agreed) and confirming that the Required Endorsements that apply to such policy are in place.

• The Insurance Consultant confirming that:

• The insurance provided complies with the requirements of this Agreement including this Schedule and further complies with the requirements on the Borrower in the Project Documents.

• That the undertakings made by each placing Broker conform to the requirements of prudent industry practice.

The Administrative Agent may, at its sole discretion, waive the requirement for a certificate from the Insurance Consultant at policy replacement/renewal without requiring the approval of the Lenders.

The insurance provided by the Borrower shall be at least that evidenced in any certificates or other evidence provided by or on behalf of the Borrower.

Any of the requirements of this Schedule can be satisfied by single or by combined policies. However, as would be deemed necessary in accordance with prudent industry practice, a joint loss agreement will be required and included as part of the respective policies (for example, if there were separate marine transit and builders all-risk policies, then a 50:50 clause would be required).

If in the opinion of the Borrower, acting reasonably, any insurance, including the terms and conditions, Required Endorsements and limits or deductibles thereof, hereby required by this Schedule to be maintained, other than insurance required to be maintained by law which shall be maintained at all times, shall not be available on commercially reasonable terms in the commercial insurance market, the Borrower shall promptly inform the Administrative Agent of such purported unavailability and the Borrower shall seek a waiver from the Lenders in relation to such purported unavailability in which case the Lenders acting after consultation with the Insurance Consultant shall not unreasonably withhold agreement to waive such requirement to the extent the maintenance thereof is not so available. The granting by the Lenders of any such waiver is conditional on: (i) the Borrower first requesting such waiver in writing, which request shall be accompanied by written reports prepared by the Borrower and its placing Broker certifying that such insurance is not available on commercially reasonable terms in the commercial insurance market for projects of similar type and capacity and, in any case where the required amount is not so available, certifying as to the maximum amount which is so available, and explaining in detail the basis for such conclusions and the form and substance of such reports to be reasonably acceptable to Administrative Agent after consultation with the Insurance Consultant; (ii) at any time after the granting of any such waiver, Administrative Agent may request, and the Borrower shall furnish to Administrative Agent within fifteen (15) days after such request, supplemental reports reasonably acceptable to Administrative Agent updating the prior reports and reaffirming such conclusion; (iii) any such waiver granted by the Lenders can amend, to the extent reasonably required to mitigate any increased risks created by the absence of insurance cover that is the subject of the waiver, any of the terms of this Schedule and this Agreement; (iv) the Lenders may require the Borrower to obtain the best available insurance comparable to the requirements of this Schedule on commercially reasonable terms then available in the commercial insurance market (as determined by the Insurance Consultant); and (v) such waiver shall be effective only so long as such insurance shall not be available on commercially reasonable terms in the commercial insurance market (as determined by the Insurance Consultant) it being understood that the failure of the Borrower to furnish any supplemental reports shall be deemed to be conclusive evidence that such waiver is no longer effective because such condition no longer exists, but that such failure is not the only way to establish such non-existence.

Any failure on the part of Administrative Agent to pursue or obtain the evidence of insurance required by this Schedule from the Borrower and/or failure to point out any non-compliance of such evidence of insurance shall not constitute a waiver of any of the insurance requirements in this Schedule.

Each liability insurance policy required pursuant to this Schedule that is permitted to be written on a “claims made” basis shall provide (a) a retroactive date (as such term is specified in each of such policies) that is no later than the Closing Date and (b) each time any policy written on a “claims made” basis is not renewed or the retroactive date of such policy is to be changed, the Borrower shall obtain and maintain, or cause to be obtained or maintained, for each such policy or policies the broadest extended reporting period coverage, or “tail”, reasonably available in the commercial insurance market for each such policy or policies but in no case less than three (3) years. The Borrower may satisfy the requirements of this Section by obtaining “prior acts” coverage from a subsequent insurance carrier on terms acceptable to the Administrative Agent, acting reasonably.

All property insurance including marine cargo and any time element insurance shall not include any annual or term aggregate limits or sublimits except for the perils of windstorm, flood, earth movement and land and water decontamination but only to the extent permitted in Appendix 1 to this Schedule. Liability policies may have general aggregate limits in accordance with prudent insurance market practice.

All insurance policies required to be maintained pursuant to this Schedule shall contain terms and conditions reasonably acceptable to Administrative Agent following consultation with the Insurance Consultant.

In the event that at any time the insurance as herein provided or as evidenced shall be reduced or cease to be maintained, then (without limiting the rights of Administrative Agent hereunder in respect of the Event of Default which arises as a result of such failure) Administrative Agent, upon ten (10) Business Days’ prior written notice (unless such insurance coverage would lapse within such period, in which event notice should be given as soon as reasonably possible) to the Borrower of any such failure, may (but shall not be obligated to) take out the required policies of insurance and pay the premiums on the same. All amounts so advanced for such purpose shall become an additional obligation of the Borrower to Administrative Agent and the Borrower shall forthwith pay such amounts, together with interest on such amounts at the Default rate applicable to Loans from the date so advanced.

Administrative Agent can, acting reasonably, require such additional cover to be provided as is required to conform to prudent industry practice.

Administrative Agent shall have the option to be present and/or to send representatives during meetings and/or negotiations with insurers of any loss settlement in relation to the Borrower or the Projects regarding (a) total constructive loss or any scenario in which repair/replacement will not follow loss, (b) any circumstance involving a claim in relation to an event or series of events which has or could be reasonably expected to lead to a Default, or (c) any claim or series of claims in excess of 1 per policy year. Neither the Borrower nor any of its Affiliates shall be permitted to settle any such claim with an insurer without the approval of Administrative Agent to the agreed settlement.

Administrative Agent can, pursuant to its rights and obligations under this Agreement and this Schedule and the provisions therein, consult with the Insurance Consultant and require reports, compliance certificates and other work product from the Insurance Consultant.

Terms used in this Schedule, unless otherwise specifically defined, shall have the meaning normally ascribed to them in accordance with prudent industry practice in relation to a project similar in type and jurisdiction as the Project.

Appendix 1 to Schedule 5.15

All Risk Property and Business Interruption Insurance

All-Risk” property form, as such term is used in the insurance industry, including coverage for the perils of flood, earthquake, hail, lightning, strike, riot and civil commotion, vandalism and malicious mischief. Such policy shall insure all real and personal property of Borrower whether at a fixed (including non-owned location for off-Site repair or refurbishment), off-Site storage or a warehouse location or while in the course of inland or ocean transit (as the case may be), for an amount of not less than the greater of (a) $25,000,000 and (b) 22.5% of the current replacement cost of the Project.

Sub-limits are permitted with respect to the following perils:

• For earthquake and flood a combined aggregate limit as commercially available but in no event less than $12,500,000;

• Unintentional Errors & Omissions, aggregated limit as commercially available but in no event less than $7,000,000

• such other coverages customarily sub-limited and/or aggregated or restricted in reasonable amounts consistent with current industry practice, including without limitation, extra expense, debris removal, on site pollutant cleanup (resulting from a covered peril) and other perils normally sub-limited.

Such policy shall include: (a) an automatic reinstatement of limits following each loss except for those perils normally aggregated (including the perils of earthquake, named windstorm, pollution cleanup and flood), (b) replacement cost valuation with no deduction for depreciation and no coinsurance clauses (or a waiver thereof).

Business Interruption insurance triggered by any and all losses covered for property damage subject to such additional exclusions as are customary for time element insurance shall be provided for not less than 12 months projected revenue less non-recurrent costs and for an indemnity period of not less than 12 months.

Such policy may have per occurrence deductibles of not greater than One Hundred Thousand Dollars ($100,000) for all perils except five percent (5%) of TIV for Earthquake and 14 days for Business Interruption.

Marine Cargo and Marine Business Interruption Insurance

To the extent a material exposure exists, transit coverage, either included in a property policy or under a separate policy (including air, land and ocean cargo, as applicable) on an “all-risk” basis and a “warehouse to warehouse” basis with a per occurrence limit equal to not less than 110% of the value including transit and insurance of such shipment involving Project or any other Collateral assets to or from any storage site or the Project site at all times for which the Borrower has accepted risk of loss or has responsibility for providing insurance. Coverage shall include loading and unloading, temporary storage (as applicable) and a 50/50 clause (if applicable).

Coverage shall be maintained in accordance with prudent industry practice in all regards with per occurrence deductibles of not more than $100,000 for physical damage and other terms and conditions acceptable to the Administrative Agent in consultation with the Insurance Consultant.

Marine Business Interruption insurance shall be attached to the Marine Cargo policy providing equivalent cover, mutatis mutandis, to the Business Interruption cover attached to the All Risk Property policy in accordance with the terms of this Schedule.

General Liability

A limit of $1,000,000 per occurrence and in the aggregate shall be provided for:

• Property damage, death and injury (including mental injury).

• Broad form property damage.

• Blanket contractual.

• Products/completed operations

• Advertising injury

• XCU

Deductibles shall be the best commercially available in accordance with prudent industry practice.

Automobile Liability

Automobile liability insurance, to the extent exposure exists, including coverage for owned, non-owned and hired automobiles for both bodily injury and property damage and containing appropriate no-fault insurance provisions or other endorsements in accordance with state legal requirements, with a combined single limit of no less than $1,000,000 per accident with respect to bodily injury, property damage or death. Deductibles shall be the best commercially available in accordance with prudent industry practice.

Workers’ Compensation and Employer’s Liability If the borrower has employees, workers’ compensation insurance in compliance with statutory requirements and employer’s liability insurance, to the extent exposure exists, with a limit of not less than $1,000,000 per accident, per employee and per disease including such other forms of insurance that the Company is required by law to provide for the Project, all other states’ endorsement and, to the extent any exposure exists, coverage with respect to the USL&H Act and Jones Act, covering loss resulting from bodily injury, sickness, disability or death of the employees of the Company. Deductibles shall be the best commercially available in accordance with prudent industry practice.

Pollution Liability

Pollution liability insurance for liability arising out of property damage or bodily injury to third parties as a result of sudden and accidental pollution including the cost of on-site and off-site clean up in an amount not less than $1,000,000 per occurrence and in the aggregate. Deductibles shall be the best commercially available in accordance with prudent industry practice.

Umbrella Liability Insurance

An aggregate limit of $15,000,000 (or $20m if so required by any Project Document) shall be attached and in excess of the underlying general liability, automobile liability, employers liability policies on a following form basis with drop down provisions.

Errors and Omissions Liability

Errors and omissions insurance for liability arising out of property damage or bodily injury to third parties as a result of prototype manufacturing errors and omissions liability $1,000,000 per glitch and in the aggregate. Deductibles shall be the best commercially available in accordance with prudent industry practice.

Directors & Officers Insurance Unless directors and officers are indemnified by the sponsor/parent company to the reasonable satisfaction of the Financiers, Directors & Officers insurance, including Employment Practices (if employees) in an amount not less than $10,000,000 on industry standard policy forms subject to a retention not to exceed $50,000.

Schedule A-1

Base Case Projections

[***] Note: 17 pages redacted]

[***]

[***] Confidential Treatment Requested

[***]

[***] Confidential Treatment Requested

[***]

[***] Confidential Treatment Requested

EX-10

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Exhibit 10.51

Execution Version

CONSENT AND FIRST AMENDMENT TO

AMENDED AND RESTATED CREDIT AGREEMENT

This CONSENT AND FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 28, 2014 (this “Amendment”), amends the Amended and Restated Credit Agreement dated as of August 30, 2013 (the “Credit Agreement”), among 2012 ESA Project Company, LLC, a Delaware limited liability company (the “Borrower”), PE12GVVC (Bloom PPA) LTD. and PE12PXVC (Bloom PPA) LTD., as Lenders, PE12GVVC (Bloom PPA) LTD., as Administrative Agent, and Deutsche Bank Trust Company Americas, as Collateral Agent. Capitalized terms used herein and not otherwise defined shall have the meaning assigned to such terms in the Credit Agreement.

WHEREAS, the Borrower has requested that each other party to the Credit Agreement agree to amend the Credit Agreement as described herein;

WHEREAS, the Borrower has requested the Lenders’ consent for (i) the entry by Clean Technologies III, LLC into the First Amendment to Equity Capital Contribution Agreement (the “ECCA Amendment”), in substantially the form attached hereto as Exhibit A, (ii) the entry by Clean Technologies III, LLC into the First Amendment to Second Amended and Restated Operating Agreement (the “LLCA Amendment”), in substantially the form attached hereto as Exhibit B and (iii) the entry by the Borrower and Bloom Energy Corporation into the Fourth Amendment to Amended and Restated Master Energy Server Purchase Agreement (the “MESPA Amendment”), in substantially the form attached hereto as Exhibit C;

WHEREAS, each other party to the Credit Agreement has agreed to amend the Credit Agreement as described herein; and

WHEREAS, each of the Lenders has agreed to provide its consent to the entry by Clean Technologies III, LLC into the ECCA Amendment and the LLCA Amendment and to the entry by the Borrower and Bloom Energy Corporation into the MESPA Amendment.

NOW THEREFORE, the parties hereto, intending to be legally bound by this Amendment, agree as follows:

Section 1.01. Amendments to the Credit Agreement.

(a) The definition of “Availability Period” in the Credit Agreement is amended by deleting the text “March 31, 2014” contained therein and replacing such text with: “September 30, 2014”.

(b) Section 2.1.1(c) of the Credit Agreement is amended by deleting the last sentence thereof in its entirety.

(c) Section 3.3.14(a)(i) of the Credit Agreement is amended by deleting the text “$[***]kW” contained therein and replacing such text with: “$[***]kW”.

(d) Section 3.3.14(b) of the Credit Agreement is amended by deleting the text “$[***]kW”, “[***]%” and “$[***] contained therein and replacing such text with, respectively: “$[***]kW”, “[***]%” and “$[***]

(e) Section 5.14.6 of the Credit Agreement is amended by deleting the text “March 31, 2014” wherever such text appears therein and replacing such text with: “September 30, 2014”, and by

[***] Confidential Treatment Requested

including the text “, Schedule 1 (“Description of Property”), or Schedule 2.2 (“Preliminary List of Properties”), as applicable,” after the text “(“PREMISES LIST, DESCRIPTION AND APPLICABLE LOCAL UTILITY”)”.

(f) Section 7.2.1(a) of the Credit Agreement is amended by deleting the text thereof in its entirety and replacing such text with the following: “the proceeds of all Loans, less (i) for Systems funded prior to date hereof, [***] of the proceeds of each Loan, (ii) for Systems funded on or after the date hereof and prior to March 28, 2014, $[***]kW for all such Funded Systems, and (iii) for Systems funded on or after March 28, 2014, $[***]kW for all such Funded Systems, which amount in each such case shall be deposited into the DSR Account;”.

(g) Section 7.5.1 of the Credit Agreement is amended by deleting the text “[***] contained therein and replacing such text with: “$[***]

(h) Appendix A of the Credit Agreement is amended by (i) deleting the Loan Commitment attributable to PE12GVVC (Bloom PPA) Ltd and replacing it with “$[***]”, (ii) deleting the Loan Commitment attributable to PE12PXVC (Bloom PPA) Ltd and replacing it with “[***]” and (iii) deleting the amount attributable to the Aggregate of all Loan Commitments and replacing it with “[***]”.

(i) The definition of “Loan Commitment” in the Credit Agreement is amended by deleting the text “$46,784,041” contained therein and replacing such text with: “[***]”.

(j) The definition of “Site” in the Credit Agreement is amended by adding the text “[***]” after the text “Wal-Mart Power Purchase Agreement”.

(k) The definition of “Site” in the Credit Agreement is amended by adding the text “[***]” after the text “Wal-Mart Power Purchase Agreement”.

(l) Schedule 2.1 (Amortization Schedule) is replaced by the replacement Amortization Schedule attached hereto as Exhibit D.

(m) Schedule 3.1.22 (Project Budget) is replaced by the replacement Project Budget attached hereto as Exhibit E.

(n) Schedule 3.1.23 (Project Schedule) is replaced by the replacement Project Schedule attached hereto as Exhibit F.

(o) Schedule A-1 (Base Case Projections) is replaced by the replacement Base Case Projections attached hereto as Exhibit G.

Section 1.02. Reduction in Loan Commitment. Pursuant to Section 2.2.2 of the Credit Agreement, the Borrower permanently reduces the aggregate Loan Commitments by $1,815,632 (reducing each Lender’s Loan Commitment on a pro rata basis in accordance with the Lenders’ respective Proportionate Shares as set forth in Section 1.01(h) of this Amendment). The Administrative Agent waives the five Business Days’ notice requirement of Section 2.2.2 in relation to such reduction in Loan Commitments.

[***] Confidential Treatment Requested

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Section 1.03. Consents. The Lenders consent to (i) the entry by Clean Technologies III, LLC into the ECCA Amendment, in substantially the form attached hereto as Exhibit A, (ii) the entry by Clean Technologies III, LLC into the LLCA Amendment, in substantially the form attached hereto as Exhibit B and (iii) the entry by the Borrower and Bloom Energy Corporation into the MESPA Amendment, in substantially the form attached hereto as Exhibit C.

Section 1.04. Instruction to Collateral Agent. The Administrative Agent hereby instructs the Collateral Agent to enter into this Amendment.

Section 1.05. No Other Changes. Except as expressly provided or contemplated by this Amendment, all of the terms, conditions and provisions of the Credit Agreement remain unaltered and in full force and effect. The Credit Agreement and this Amendment shall be read and construed as one agreement.

Section 1.06. Effectiveness of this Amendment. This Amendment is effective as of the first date set forth above.

Section 1.07. Counterparts; Integration; Effectiveness. This Amendment may be executed in counterparts, each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Amendment is binding upon and inures to the benefit of the parties hereto and their respective successors and assigns. Delivery of an executed counterpart of a signature page of this Amendment by email shall be effective as delivery of a manually executed counterpart of this Amendment.

Section 1.08. Governing Law. This Amendment shall be governed by, and construed, interpreted and enforced in accordance with, the internal law of the State of New York (including Section 5-1401 and Section 5-1402 of the General Obligations Law of the State of New York), without regard to conflicts of laws principles that would require application of the laws of another jurisdiction.

Section 1.09. Severability. Any provision hereof which is held to be invalid, illegal or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity, illegality or unenforceability without rendering the remaining provisions hereof invalid, illegal or unenforceable in such jurisdiction and without affecting the validity, legality or enforceability of any provision in any other jurisdiction.

Section 1.10. Headings. Section headings used herein are for convenience of reference only, are not part of this Amendment and shall not affect the construction of, or be taken into consideration in interpreting, this Amendment.

[Signatures Follow on Next Page]

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IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly executed as of the date first above written.

2012 ESA PROJECT COMPANY, LLC,
as Borrower
By:	/s/ Sendil Atreya
	Name:	SENDIL ATREYA
	Title:	VICE PRESIDENT
PE12GVVC (BLOOM PPA) LTD.,
as Administrative Agent and a Lender
By:
	Name:
	Title:
By:
	Name:
	Title:
PE12PXVC (BLOOM PPA) LTD.,
as a Lender
By:
	Name:
	Title:
By:
	Name:
	Title:

First Amendment to IIIA Credit Agreement

IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly executed as of the date first above written.

2012 ESA PROJECT COMPANY, LLC,
as Borrower
By:
	Name:
	Title:
PE12GVVC (BLOOM PPA) LTD.,
as Administrative Agent and a Lender
By:	/s/ Laura Montes
	Name:	Laura Montes
	Title:	Director
By:
	Name:
	Title:
PE12PXVC (BLOOM PPA) LTD.,
as a Lender
By:	/s/ Laura Montes
	Name:	Laura Montes
	Title:	Director
By:
	Name:
	Title:

First Amendment to IIIA Credit Agreement

DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Collateral Agent
By:	/s/ Kisha A. Holder
	Name:	Kisha A. Holder
	Title:	Vice President
By:	/s/ Maria Inoa
	Name:	Maria Inoa
	Title:	Assistant Vice President

First Amendment to IIIA Credit Agreement

EXHIBIT A

ECCA AMENDMENT

Execution Version

FIRST AMENDMENT TO

AMENDED AND RESTATED EQUITY CAPITAL CONTRIBUTION AGREEMENT

THIS FIRST AMENDMENT TO AMENDED AND RESTATED EQUITY CAPITAL CONTRIBUTION AGREEMENT (this “Amendment”), is executed as of March 28, 2014, by and between Firstar Development, LLC, a Delaware limited liability company (“Investor”), and Clean Technologies III, LLC, a Delaware limited liability company (“Class B Member”). Each of the foregoing entities shall be referred to individually herein as a “Party” and collectively as the “Parties”. Capitalized terms used herein and not otherwise defined have the meanings provided in the Amended and Restated Equity Capital Contribution Agreement, dated as of August 30, 2013 (the “ECCA”), by and between the Parties.

RECITALS

A. WHEREAS, the Parties desire to amend the ECCA as more fully set forth in this Amendment.

NOW, THEREFORE, in consideration of the mutual covenants set forth in this Amendment, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree to amend the ECCA as follows:

AGREEMENT

1. Amendments.

a. The definition of “True Up Funding Date Deadline” in the ECCA is amended by deleting the text “March 31, 2014” contained therein and replacing such text with: “December 31, 2014”.

b. A new Section 2.9 is inserted at the end of Article II as follows:

“2.9. Equity Commitment Fee.

In the event that, with respect to the Facilities listed on Schedule 2.9 hereto, Commencement of Operations (as defined in the MESPA) for such Facility has not occurred by the last day of the month specified under “Projected Date of Commencement of Operations” in Schedule 2.9 (such date, the “Projected Date”), then the Class B Member shall pay to the Investor a monthly equity commitment fee (the “Equity Commitment Fee”) for the period commencing on the first day of the calendar month immediately following the Projected Date and ending on the earlier of (x) the date such Facility in Schedule 2.9 has achieved Commencement of Operations or (y) the True-Up Funding Deadline, calculated as follows: such fee shall be equal to the product of $[***] multiplied by the size (in kW) of such Facility for which Commencement of Operations (as defined in the MESPA) has not been achieved by the Projected Date ; provided, that the Class B Member shall not be obligated to pay the Equity Commitment Fee with respect to any Facility, or shall pay the Equity Commitment Fee based on a reduced size, as applicable (x) if the Facility Company has provided notice, at least 30 days prior to the Projected Date,

[***] Confidential Treatment Requested

1

that such Facility shall be removed from Schedule 2.9 or that the size of such Facility shall be reduced or (y) from and after the first day of the calendar month immediately following the month in which the Facility Company has provided notice that such Facility shall be removed from Schedule 2.9 or that the size of such Facility shall be reduced, so long as such notice was provided by the 15^th (fifteenth) day of such calendar month. Any Equity Commitment Fee payable pursuant to this Section 2.9 shall be paid within 15 days after the end of each calendar month with respect to which payment becomes due in accordance with this provision (commencing on May 15, 2014).”

c. A new Schedule 2.9 is added, attached hereto as Schedule 2.9.

2. Ratification. The ECCA, as amended hereby, is in all respects ratified and confirmed and shall be and remain in full force and effect. All references to the ECCA in any other document or instrument shall be deemed to mean such ECCA as amended by this Amendment.

3. Amendments. No amendment, modification, termination or waiver of any provision of this Amendment shall be effective unless the same shall be in writing and duly executed by both Parties.

4. Enforceability. This Amendment shall be enforceable by and binding upon and shall inure to the benefit of the Parties hereto and their respective successors and assigns.

5. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of New York, without regard to principles of conflicts of law (other than Section 5-1401 of the New York General Obligations Law, which shall apply to this Amendment).

6. Counterparts and Facsimile Execution. This Amendment may be executed and delivered (including by facsimile transmission or “portable document format”) in one or more counterparts, all of which shall be considered one and the same and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to each other Party, it being understood that all Parties need not sign the same counterpart. Signatures of the Parties transmitted by facsimile or electronic mail shall be deemed to be their original signatures for all purposes.

7. Severability. If any term or other provision of this Amendment is invalid, illegal, or incapable of being enforced by any rule of Applicable Law, or public policy, all other terms and provisions of this Amendment shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated herein are not affected in any manner materially adverse to any Party.

8. Conditions Precedent to Effectiveness of Amendment. The effectiveness of this Amendment and the obligations of the Investor to consummate the transactions contemplated by this Amendment are subject to the satisfaction of or waiver by Investor of each of the following conditions not later than March 25, 2014 (“Amendment Date Conditions Precedent” and the date of satisfaction or waiver thereof the “Amendment Date”):

a. the Investor has received fully executed copies of this Amendment, a reaffirmation of the Guaranty in the form attached hereto as Exhibit A, an amendment to the MESPA in form attached hereto as Exhibit B and an amendment to the Company LLC Agreement in the form attached hereto as Exhibit C, or otherwise each in form and substance reasonably satisfactory to the Investor, and each is in full force and effect;

[***] Confidential Treatment Requested

b. the Investor has received a legal opinion of Orrick, Herrington & Sutcliffe LLP, substantially in the form of the legal opinion delivered pursuant to Section 6.1(c) of the ECCA but covering only the documents described in Section 8(a) above and the related transactions;

c. the Investor has received a bring down of the tax opinion from Winston & Strawn LLP, which opinion shall be in form and substance reasonably satisfactory to it;

d. the Investor has received necessary approval from its internal investment committee, board of directors or other governing body to enter into the transactions contemplated under this Amendment, subject only to the satisfaction or waiver of the conditions set forth in this Section 8;

e. the Investor has received, as applicable, (i) an incumbency certificate dated as of the Amendment Date from the Facility Entities, from the Class B Member and the Guarantor, (ii) from the Class B Member, on behalf of each Facility Entity, a certificate from an authorized officer dated as of the Amendment Date to the effect that to such officer’s Knowledge the conditions set forth in this Section 8 have been satisfied, (iii) a good standing certificate of the Guarantor, the Class B Member and the Facility Entities, each dated as of a recent date, from the applicable Secretary of State, (iv) resolutions of the Board of Directors, or other equivalent governing body, of the Facility Entities, the Class B Member and the Guarantor authorizing and approving the execution of this Amendment, the amendments to the other Investment Documents and the transactions contemplated hereunder certified by a secretary or an assistant secretary as of the Amendment Date and (v) formation documents certified by a secretary or an assistant secretary as of the Amendment Date, in each case, unless otherwise noted, of the Guarantor, the Class B Member and the Facility Entities as are customary for transactions of this type, each of which shall be reasonably satisfactory to the Investor;

f. the Investor has received an update of the Base Case Model in form and substance reasonably satisfactory to it;

g. the Investor has received an update of the annual budget for the Facility Company;

h. the Investor has received fully executed copies of the amendments to the Financing Documents that have been executed as of such date;

i. the Class B Member shall have paid (or caused to be paid) or shall have made arrangements in the manner reasonably satisfactory to the payee for the payment of all outstanding amounts due, as of the Amendment Date, and owing to with respect to Transaction Expenses for all services rendered and billed prior to the Amendment Date;

j. the Class B Member shall have paid (or caused to be paid) a fee to the Investor in consideration of the extension and other accommodations granted by this Amendment in the amount of $500,000.

k. each of the representations and warranties in the ECCA and the other Investment Documents as amended by this Amendment and the other documents contemplated hereby (other than those made as of a later date) is true and correct in all material respects as of the Amendment Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date); and

l. the Investor has received reasonably satisfactory evidence that the Guarantor maintains $[***] in cash equivalent investments.

[Remainder of page intentionally left blank. Signature page follows.]

[***] Confidential Treatment Requested

IN WITNESS WHEREOF, each Party has caused this Amendment to be signed on its behalf as of the date first written above.

CLEAN TECHNOLOGIES III, LLC
By:
	Name:
	Title:
FIRSTAR DEVELOPMENT, LLC
By:
	Name:
	Title:

Schedule 2.9

Projected Dates of Commencement of Operations¹

Site No.	PPA Customer	Address	Projected Date of Commencement of Operations	Size (kW)
24	Wal-Mart	[***]	[***]	[***]
25	AT&T	[***]	[***]	[***]
			Total	[***]

¹  As defined in the MESPA

[***] Confidential Treatment Requested

Exhibit A

Form of Reaffirmation of Guaranty

[separately provided]

Exhibit B

Form of Amendment to MESPA

[separately provided]

Exhibit C

Form of First Amendment to Company LLC Agreement

[separately provided]

EXHIBIT B

LLCA AMENDMENT

Execution Version

FIRST AMENDMENT TO

SECOND AMENDED AND RESTATED OPERATING AGREEMENT

THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED OPERATING AGREEMENT of 2012 V PPA Holdco, LLC (this “Amendment”) is executed as of March [    ], 2014, to be effective as of August 30, 2013, by and between Firstar Development, LLC, a Delaware limited liability company (the “Class A Member”), and Clean Technologies III, LLC, a Delaware limited liability company (the “Class B Member”). The Class A Member and the Class B Member shall be referred to individually herein as a “Party” and collectively as the “Parties”. Capitalized terms used herein and not otherwise defined have the meanings provided in the Second Amended and Restated Operating Agreement, dated as of August 30, 2013 (the “Company LLC Agreement”), by and between the Parties.

RECITALS

A. WHEREAS, the Parties have amended the ECCA pursuant to that certain First Amendment to Equity Capital Contribution Agreement dated as of March [    ], 2014 (the “ECCA Amendment”).

B. WHEREAS, it is a condition precedent to the effectiveness of the ECCA Amendment that the Parties amend the Company LLC Agreement as more fully set forth in this Amendment.

NOW, THEREFORE, in consideration of the mutual covenants set forth in this Amendment, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree to amend the Company LLC Agreement as follows:

AGREEMENT

1. Amendments.

a. The definition of the capitalized term “Available Capital Income Cash Flow” set forth in Section 1.1 is amended by deleting the words “corresponds to an item of income or gain (but not loss or deduction) realized by the Company” and replacing them with the text “results in the realization by the Company of an item of income, gain, loss or deduction”.

b. Section 4.2(a)(i) is deleted in its entirety and replaced with the following text:

(i) For each Fiscal Year of the Company or portion thereof that ends on or before the first anniversary of the last Facility of the last Tranche achieves Commercial Completion, 99% to the Class A Members, pro rata according to their respective Class A Units and 1% to the Class B Members, pro rata according to their respective Class B Units; and

c. Section 4.2(d)(i) is amended by adding the following text to the end of the first sentence thereof: “; provided ,however, that in no event shall the allocation of any Company items of income or gain that are described in Code Sections 702(a)(1) through (7) be greater than 99% or less than 4.95% to the class A Member”.

d. Section 4.2(d)(ii) is amended by adding the following text to the end of the first sentence thereof: “; provided ,however, that in no event shall the allocation of any Company items of income or gain that are described in Code Sections 702(a)(1) through (7) be greater than 99% or less than 4.95% to the class A Member”

e. Section 4.2(f)(i) is deleted in its entirety and replaced with the following text:

“The Company shall treat and report, for each Taxable Year for which the accrued Preferred Distribution exceeds the positive income (for Capital Account purposes) that both is described in Code section 702(a)(8) and is otherwise allocable to the Class A Members, such excess as a guaranteed payment for the use of capital of the Class A Members under Code Section 707(c).”

f. Sections 5.1(a) and (b) are deleted in its entirety and replaced with the following text:

“(a) Subject to Section 5.1(c), prior to the Class A Flip Point,

(i) First, to the Class A Members pro rata in accordance with their respective Class A Units, until they have received cumulative distributions under this Section 5.1(a)(i) for all periods on or prior to the Class A Flip Point equal to (1) 99% of the cumulative sum, for all Company Taxable Years that end before the Class A Flip Point and that have positive Code section 702(a)(8) net income (if any), of such cumulative positive Code section 702(a)(8) income of the Company, over (2) the cumulative Preferred Distributions made in respect of all those same periods;

(ii) Second, to the Class B Members pro rata in accordance with their respective Class B Units until they have received cumulative distributions under this Section 5.1(a)(ii) for all periods on or prior to the Class A Flip Point, equal to the aggregate amount of the Capital Contributions made by the Class B Members on or prior to the Distribution Date, minus their shares of the downward basis adjustments in respect of their allocation of basis of ITC Eligible Property pursuant to Treasury Regulation section 1.704-1(b)(2)(iv)(j) (as provided in Section 4.4(f) herein); and

(iii) Thereafter, 99% to the Class B Members pro rata in accordance with their respective Class B Units and 1% to the Class A Members pro rata in accordance with their respective Class A Units.

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(b) Subject to Section 5.1(c), on and after the Class A Flip Point,

(i) First, to the extent that the Class A Members have a shortfall in the amount to have been distributed to them under Section 5.1(a)(i) to the Class A Members in accordance with their respective Class A Units until they have been distributed that shortfall;

(ii) Second, to the Class A Members and the Class B Members, pro rata in accordance with their respective Post-Flip Sharing Percentages, until the Class B Members have received cumulative distributions under Section 5.1(a)(ii) and this Section 5.1(b)(ii) for all periods equal to the difference between the aggregate amount of the Capital Contributions made by the Class B Members on or prior to the Distribution Date, minus their shares of the downward basis adjustments in respect of their allocation of basis of ITC Eligible Property pursuant to Treasury Regulation section 1.704-1(b)(2)(iv)(j) (as provided in Section 4.2(e) herein);

(iii) Third, to the Class A Members pro rata in accordance with their respective Class A Units, until they have received cumulative distributions under this Section 5.1(b)(iii), Section 5.1(b)(i) and Section 5.1(a)(i) for all periods equal the greater of (A) 99% of the cumulative sum, for all Company Taxable Years that end before the Class A Flip Point and that have positive Code section 702(a)(8) net income (if any), of such cumulative Code section 702(a)(8) income of the Company, and (B) the Minimum Profits Distribution Amount; and

(iv) Thereafter, to the Class A Members and the Class B Members, pro rata in accordance with their respective Post-Flip Sharing Percentages.

Provided, notwithstanding anything to the contrary in the foregoing Section 5.1(a) or (b), the Company shall pay on each Distribution Date, prior to making any distribution pursuant to Sections 5.1(a) or (b), any balance of accrued but unpaid Preferred Distributions for prior periods, and, second, the Preferred Distribution that accrued for the current period, in each case to the Class A Members, pro rata, in proportion to their respective Class A Units for the relevant period.”

h. Section 10.2(a)(ii) is amended by deleting the words “accrued, unpaid Preferred Distributions” and replacing them with the text “unpaid Preferred Distributions that were accrued as guaranteed payments pursuant to Section 4.2(f)(i)”.

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i. Section 10.2(a)(iv)(A) is deleted in its entirety and replaced with the following text:

“First, any remaining Available Cash Flow that does not consist of Available Capital Income Cash Flow (treating all amounts paid or distributed pursuant to Section 10.2(a)(ii) as having first been paid from Available Capital Income Cash Flow) shall be distributed in the order and priority set forth in Sections 5.1(a); and”

j. Clauses (II) and (III) of Section 10.2(a)(iv)(B) are deleted in its entirety and replaced with the following text:

“(II) second, if a Class A Partial Redemption Event has occurred, and a Class A Partial Withdrawal Amount has not been paid in respect of such event, then to the Class A Members in an amount equal to the Class A Investment Balance in respect of such event; and (III) thereafter, in the order and priority set forth in Section 5.1(b).”

k. Section 10.2(a)(v) is amended by adding the following text to the end of the second sentence thereof: “; provided, however, that in no event shall the allocation of any Company items of income, gain, loss or deduction that are described in Code Sections 702(a)(1) through (7) be greater than 99% or less than 4.95% to the class A Member”.

2. Ratification. The Company LLC Agreement, as amended hereby, is in all respects ratified and confirmed and shall be and remain in full force and effect. All references to the Company LLCA Agreement in any other document or instrument shall be deemed to mean such Company LLC Agreement as amended by this Amendment.

3. Amendments. No amendment, modification, termination or waiver of any provision of this Amendment shall be effective unless the same shall be in writing and duly executed by the Parties.

4. Enforceability. This Amendment shall be enforceable by and binding upon and shall inure to the benefit of the Parties hereto and their respective successors and assigns.

5. Governing Law. THIS AMENDMENT SHALL BE DEEMED MADE AND PREPARED AND SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF WHICH MAY REQUIRE THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.

6. Counterparts and Facsimile Execution. This Amendment may be executed and delivered (including by “portable document format”) in one or more counterparts, all of which shall be considered one and the same and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to each other Party, it being understood that all Parties need not sign the same counterpart. Signatures of the Parties transmitted by electronic mail shall be deemed to be their original signatures for all purposes.

7. Severability. If any term or other provision of this Amendment is invalid, illegal, or incapable of being enforced by any rule of applicable law, or public policy, all other terms and provisions of this Amendment shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated herein are not affected in any manner materially adverse to any Party.

4

[Remainder of page intentionally left blank.]

5

Execution Version

IN WITNESS WHEREOF, each Party has caused this Amendment to be signed on its behalf as of the date first written above.

FIRSTAR DEVELOPMENT, LLC,
a Delaware limited liability company
By:
	Name:
	Title:
CLEAN TECHNOLOGIES III, LLC,
a Delaware limited liability company
By:
	Name:
	Title:

EXHIBIT C

MESPA AMENDMENT

FOURTH AMENDMENT TO

AMENDED AND RESTATED

MASTER ENERGY SERVER PURCHASE AGREEMENT

THIS FOURTH AMENDMENT TO AMENDED AND RESTATED MASTER ENERGY SERVER PURCHASE AGREEMENT (this “Amendment”), is executed as of March     , 2014, by and between Bloom Energy Corporation, a Delaware corporation (“Seller”), and 2012 ESA Project Company, LLC, a Delaware limited liability company (the “Buyer”). Each of the foregoing entities shall be referred to individually herein as a “Party” and collectively as the “Parties”.

RECITALS

A. WHEREAS, Seller and Buyer (formerly known as 2012 V PPA Project Company, LLC) entered into the Amended and Restated Master Energy Server Purchase Agreement, dated as of December 21, 2012 (as amended, the “MESPA”), as amended by (i) the First Amendment to Amended and Restated Master Energy Server Purchase Agreement, dated as of March 27, 2013, (ii) the Omnibus Amendment to MESPA, MOMA and Equity Contribution Tri-Party Agreement, dated as of June 27, 2013 and (iii) the Omnibus Amendment to MESPA, MOMA, ASA, REC PSA and Equity Tri-Party Contribution Agreement, dated as of August 30, 2013.

B. WHEREAS, Bloom and the Project Company desire to further amend the MESPA as more fully set forth in this Amendment.

NOW, THEREFORE, in consideration of the mutual covenants set forth in this Amendment, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

AGREEMENT

1. Amendment. Section 3.2(d) of the MESPA is amended by deleting the text “March 31, 2014” contained therein and replacing such text with: “December 31, 2014”.

2. Ratification. The MESPA, as amended hereby, is in all respects ratified and confirmed by the Parties and shall be and remain in full force and effect. All references to the MESPA in any other document or instrument shall be deemed to mean the MESPA as amended by this Amendment.

3. Amendments. This Amendment may be amended, modified or supplemented only by written agreement of the Parties.

4. Enforceability. This Amendment shall be enforceable by and binding upon and shall inure to the benefit of the Parties hereto and their respective successors and assigns.

5. Governing Law. This Amendment shall be governed by and interpreted in accordance with the laws of the State of New York, without giving effect to any conflicts of law or other principles that would result in the application of the laws of another jurisdiction (other than Section 5-1401 of the New York General Obligations Law).

6. Counterparts and Facsimile Execution. This Amendment may be executed and delivered (including by “portable document format”) in one or more counterparts, all of which shall be considered one and the same and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to each other Party, it being understood that all Parties need not sign the same counterpart. Signatures of the Parties transmitted by electronic mail shall be deemed to be their original signatures for all purposes.

7. Severability. If any term or other provision of this Amendment is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Amendment shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party.

[Remainder of page intentionally left blank. Signatures follow.]

- 2 -

IN WITNESS WHEREOF, each Party has caused this Amendment to be signed on its behalf as of the date first written above.

BLOOM ENERGY CORPORATION
By:
	Name:
	Title:
2012 ESA PROJECT COMPANY, LLC
By:
	Name:
	Title:

FOURTH AMENDMENT TO AMENDED AND RESTATED MASTER ENERGY SERVER PURCHASE AGREEMENT

EXHIBIT D

SCHEDULE 2.1 – AMORTIZATION SCHEDULE

Amortization Schedule

Quarter	Principal		% of Par
12/31/2014	$	164,705		0.366	%
3/31/2015	$	175,713		0.391	%
6/30/2015	$	161,786		0.360	%
9/30/2015	$	174,681		0.388	%
12/31/2015	$	186,474		0.415	%
3/31/2016	$	116,708		0.260	%
6/30/2016	$	127,577		0.284	%
9/30/2016	$	148,893		0.331	%
12/31/2016	$	178,361		0.397	%
3/31/2017	$	198,177		0.441	%
6/30/2017	$	211,141		0.470	%
9/30/2017	$	234,989		0.523	%
12/31/2017	$	267,503		0.595	%
3/31/2018	$	289,826		0.645	%
6/30/2018	$	336,821		0.749	%
9/30/2018	$	363,482		0.808	%
12/31/2018	$	399,371		0.888	%
3/31/2019	$	424,850		0.945	%
6/30/2019	$	442,139		0.983	%
9/30/2019	$	470,721		1.047	%
12/31/2019	$	508,991		1.132	%
3/31/2020	$	537,058		1.194	%
6/30/2020	$	557,039		1.239	%
9/30/2020	$	588,792		1.309	%
12/31/2020	$	630,824		1.403	%
3/31/2021	$	662,099		1.472	%
6/30/2021	$	684,301		1.522	%
9/30/2021	$	718,423		1.598	%
12/31/2021	$	761,406		1.693	%
3/31/2022	$	795,725		1.770	%
6/30/2022	$	821,036		1.826	%
9/30/2022	$	855,340		1.902	%
12/31/2022	$	902,525		2.007	%
3/31/2023	$	937,129		2.084	%
6/30/2023	$	960,143		2.135	%
9/30/2023	$	990,375		2.202	%
12/31/2023	$	1,039,004		2.311	%
3/31/2024	$	1,076,663		2.394	%
6/30/2024	$	1,101,009		2.448	%
9/30/2024	$	1,133,741		2.521	%
12/31/2024	$	1,186,113		2.638	%
3/31/2025	$	1,227,235		2.729	%

6/30/2025	$	1,254,354	2.789	%
9/30/2025	$	1,290,179	2.869	%
12/31/2025	$	1,346,629	2.995	%
3/31/2026	$	1,391,493	3.094	%
6/30/2026	$	1,421,275	3.161	%
9/30/2026	$	1,459,926	3.247	%
12/31/2026	$	1,520,160	3.381	%
3/31/2027	$	1,568,863	3.489	%
6/30/2027	$	1,601,905	3.562	%
9/30/2027	$	1,644,167	3.656	%
12/31/2027	$	1,709,054	3.801	%
3/31/2028	$	1,851,900	4.118	%
6/30/2028	$	1,753,526	3.899	%
9/30/2028	$	1,406,088	3.127	%
Total	$	44,968,409	100.000	%

EXHIBIT E

SCHEDULE 3.1.22 – PROJECT BUDGET

EXHIBIT E

SCHEDULE 3.1.22 – PROJECT BUDGET

[Included in the Base Case Projections]

EXHIBIT F

SCHEDULE 3.1.23 – PROJECT SCHEDULE

Project Schedule

Customer	Address	City	County	State	Placed in Service	Size
AT&T	[***]	[***]	Los Angeles	CA	[***]	[***]
AT&T	[***]	[***]	Los Angeles	CA	[***]	[***]
AT&T	[***]	[***]	Los Angeles	CA	[***]	[***]
AT&T	[***]	[***]	Los Angeles	CA	[***]	[***]
AT&T	[***]	[***]	Riverside	CA	[***]	[***]
AT&T	[***]	[***]	Riverside	CA	[***]	[***]
WMT	[***]	[***]	Riverside	CA	[***]	[***]
WMT	[***]	[***]	Riverside	CA	[***]	[***]
WMT	[***]	[***]	Los Angeles	CA	[***]	[***]
WMT	[***]	[***]	Los Angeles	CA	[***]	[***]
WMT	[***]	[***]	Riverside	CA	[***]	[***]
WMT	[***]	[***]	Tulare	CA	[***]	[***]
WMT	[***]	[***]	Los Angeles	CA	[***]	[***]
WMT	[***]	[***]	San Diego	CA	[***]	[***]
WMT	[***]	[***]	Los Angeles	CA	[***]	[***]
WMT	[***]	[***]	Riverside	CA	[***]	[***]
WMT	[***]	[***]	Kings County	CA	[***]	[***]
WMT	[***]	[***]	Riverside	CA	[***]	[***]
WMT	[***]	[***]	Riverside	CA	[***]	[***]
WMT	[***]	[***]	San Bernardino	CA	[***]	[***]
WMT	[***]	[***]	Los Angeles	CA	[***]	[***]
WMT	[***]	[***]	Los Angeles	CA	[***]	[***]
AT&T	[***]	[***]	New Haven	CT	[***]	[***]
AT&T	[***]	[***]	Los Angeles	CA	[***]	[***]
AT&T	[***]	[***]	Los Angeles	CA	[***]	[***]
AT&T	[***]	[***]	Los Angeles	CA	[***]	[***]
AT&T	[***]	[***]	Los Angeles	CA	[***]	[***]
AT&T	[***]	[***]	Fairfield	CT	[***]	[***]

[***] Confidential Treatment Requested

EXHIBIT G

SCHEDULE A-1 – BASE CASE PROJECTIONS

[***]

[Note: Base case table redacted]”

[***] Confidential Treatment Requested

EX-10

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Exhibit 10.52

DEPOSITARY AGREEMENT

among

2012 V PPA PROJECT COMPANY, LLC,

a Delaware limited liability company,

as Borrower

and

PE12GVVC (BLOOM PPA) LTD.,

as Administrative Agent

and

DEUTSCHE BANK TRUST COMPANY AMERICAS

as Depositary and Collateral Agent

Dated as of February 21, 2013

TABLE OF CONTENTS

				Page
ARTICLE 1. DEFINED TERMS					1
	1.1	Defined Terms.			1
	1.2	Undefined Terms.			4
	1.3	Rules of Interpretation.			4
ARTICLE 2. ESTABLISHMENT AND ADMINISTRATION OF ACCOUNTS					4
	2.1	Establishment of Accounts with Depositary.			4
	2.2	Permitted Investments;			5
		2.2.1	Directing the Making of Investments.		5
		2.2.2	Application of Permitted Investments.		5
		2.2.3	Earnings.		6
		2.2.4	Liquidation of Investments for Distributions.		6
		2.2.5	Value of Permitted Investments.		6
		2.2.6	Security Interest.		6
	2.3	Books of Account; Statements; Etc.			7
	2.4	Adequate Instruction; Sufficiency of Funds.			7
	2.5	Power of Attorney.			8
	2.6	Interest.			8
ARTICLE 3. APPLICATION OF FUNDS					8
	3.1	Withdrawals and Transfers.			8
ARTICLE 4. SECURITY AND RELATED PROVISIONS; SECURITIES INTERMEDIARY					8
	4.1	Securities Accounts; Deposit Accounts.			8
	4.2	Certain Rights and Powers in Respect of Accounts and Funds.			9
		4.2.1	Rights to Accounts.		9
		4.2.2	Certain Additional Powers of Collateral Agent and Depositary.		9
	4.3	Security Interest; Grant Pursuant to Security Agreement.			11
		4.3.1	Acknowledgment.		11
	4.4	Perfection; Further Assurances.			11
	4.5	Other Liens; Adverse Claim.			11
	4.6	Duties and Certain Rights of Depositary;			13
		4.6.1	General.		13
		4.6.2	Appointment.		13
		4.6.3	Negative Pledge.		13
		4.6.4	Instructions Upon an Event of Default.		13
		4.6.5	Degree of Care.		14
		4.6.6	Action Upon Notices; Exercise of Judgment.		14
		4.6.7	Indemnification and Liability.		15
		4.6.8	Court Orders.		16
		4.6.9	Resignation and Termination.		16
		4.6.10	Directions and Instructions to Depositary.		17

i

		4.6.11	Individual Capacity.	17
		4.6.12	Duties.	17
		4.6.13	Succession.	18
	4.7	Remedies.		18
	4.8	Costs, Expenses and Attorneys’ Fees.		18
	4.9	Additional Rights of Collateral Agent and Depositary.		19
		4.9.1	Actions.	19
		4.9.2	No Responsibility for Statements, Etc.	19
		4.9.3	Collateral.	20
ARTICLE 5. TERMINATION OF AGREEMENT				20
ARTICLE 6. MISCELLANEOUS				20
	6.1	Notices.		20
	6.2	Benefit of Agreement.		22
	6.3	Delay and Waiver.		22
	6.4	Amendments.		22
	6.5	Governing Law.		22
	6.6	Consent to Jurisdiction.		23
	6.7	WAIVER OF JURY TRIAL.		23
	6.8	Severability.		24
	6.9	Headings.		24
	6.10	Successors and Assigns.		24
	6.11	Entire Agreement.		24
	6.12	Survival of Agreements.		24
	6.13	Counterparts.		24
		EXHIBITS
Exhibit A		Form of Account Withdrawal Instruction
Exhibit B		Rules of Interpretation

ii

This DEPOSITARY AGREEMENT, dated as of February 21, 2013 (this “Agreement”), is entered into by and among 2012 V PPA PROJECT COMPANY, LLC, a Delaware limited liability company (“Borrower”), PE12GVVC (BLOOM PPA) LTD., as administrative agent for the Secured Parties referred to in the Credit Agreement (as defined below) (in such capacity, “Administrative Agent”), and DEUTSCHE BANK TRUST COMPANY AMERICAS, as depositary agent, bank and securities intermediary (in such capacities, “Depositary”) and as collateral agent for the Secured Parties (in such capacity, “Collateral Agent”).

RECITALS

A. Borrower desires to develop, construct, install, finance, own, operate and maintain the AT&T Project (as defined herein) and the Wal-Mart Project (as defined in the Credit Agreement) (collectively, the “Project”).

B. In order to finance the Projects and the acquisition of certain other assets related thereto, Borrower has entered into that certain Credit Agreement, dated as of December 21, 2012 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), among Borrower, PE12GVVC (Bloom PPA) LTD. and PE12PXVC (Bloom PPA) LTD., as lenders (together with the other institutions from time to time party thereto, the “Lenders”), Administrative Agent and Collateral Agent, pursuant to which, among other things, Lenders have extended commitments to make loans to, and for the benefit of, Borrower.

C. In order to further secure and support Borrower’s obligations to the Lenders under the Credit Agreement, Borrower is entering into this Agreement, pursuant to which, among other things, Borrower will grant to Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Accounts and in all financial assets held therein or credited thereto and all proceeds thereof.

D. Depositary has agreed to act as depositary agent, bank and securities intermediary pursuant to the terms of this Agreement.

AGREEMENT

NOW, THEREFORE, in consideration of the promises contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Borrower hereby agrees with Administrative Agent, Collateral Agent and Depositary, for the benefit of the Secured Parties, as follows:

ARTICLE 1.

DEFINED TERMS

1.1 Defined Terms. The following terms when used in this Agreement, including its preamble and recitals, shall have the following meanings:

“Account Withdrawal Instruction” means an instruction letter substantially in the form of Exhibit A hereto signed by Administrative Agent and delivered to the Collateral Agent and to the Depositary.

“Accounts” has the meaning set forth in Section 2.1.

“Administrative Agent” has the meaning given in the preamble to this Agreement.

“Authorized Signatory” has the meaning given in Section 4.6.10.

“Borrower” has the meaning given in the preamble to this Agreement.

“Collateral” means all property which is subject or is intended to become subject to the security interests or liens granted by any of the Collateral Documents.

“Collateral Agent” has the meaning given in the preamble to this Agreement.

“Construction Account” means the account designated by that name established by Borrower with Depositary pursuant to Section 2.1.

“Credit Agreement” has the meaning given in the recitals to this Agreement.

“Depositary” has the meaning given in the preamble to this Agreement.

“Distribution Suspense Account” means the account designated by that name established by Borrower with Depositary pursuant to Section 2.1.

“DSR Account” means the account designated by that name established by Borrower with Depositary pursuant to Section 2.1.

“Indemnified Persons” has the meaning given in Section 4.6.7(a).

“Insurance Proceeds Account” means the account designated by that name established by Borrower with Depositary pursuant to Section 2.1.

“Item” shall have the meaning given to such term in Section 4.5(b) herein.

“Lenders” has the meaning given in the recitals to this Agreement.

“Maintenance Reserve Account” means the account designated by that name established by Borrower with Depositary pursuant to Section 2.1.

“Moody’s” means Moody’s Investors Service, Inc.

“Operating Account” means the account designated by that name established by Borrower with Depositary pursuant to Section 2.1.

2

“Permitted Investments” means: (i) marketable securities issued by the U.S. Government and supported by the full faith and credit of the U.S. Treasury by statute; (ii) marketable debt securities, rated Aaa by Moody’s and/ or AAA by S&P, issued by U.S. Government-sponsored enterprises, U.S. Federal agencies, U.S. Federal financing banks, and international institutions whose capital stock has been subscribed for by the United States; (iii) certificates of deposit, time deposits, and bankers acceptances of any bank or trust company incorporated under the laws of the United States or any state, provided that, at the date of acquisition, such investment, and/or the commercial paper or other short term debt obligation of such bank or trust company has a short-term credit rating or ratings from Moody’s and/or S&P, each at least P-1 or A-1; (iv) commercial paper of any corporation incorporated under the laws of the United States or any state thereof which on the date of acquisition is rated by Moody’s and/or S&P, provided each such credit rating is least P-1 and/or A-1; (v) money market mutual funds that are registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, and operated in accordance with Rule 2a-7 and that at the time of such investment are rated Aaa by Moody’s and/or AAAm by S&P, including such funds for which the Depositary or an affiliate provides investment advice or other services; (vi) tax-exempt variable rate commercial paper, tax-exempt adjustable rate option tender bonds, and other tax-exempt bonds or notes issued by municipalities in the United States, having a short-term rating of “MIG-1” or “VMIG-1” or a long term rating of “AA” (Moody’s), or a short-term rating of “A-1” or a long term rating of “AA” (S&P); (vii) repurchase obligations with a term of not more than thirty days, 102 percent collateralized, for underlying securities of the types described in clauses (i) and (ii) above, entered into with any bank or trust company or its respective affiliate meeting the requirements specified in clause (iii) above; and (viii) maturities on the above securities shall not exceed 365 days and all rating requirements and/or percentage restrictions are based on the time of purchase.

“Person” means any natural person, corporation, partnership, limited liability company, firm, association, governmental authority or any other entity whether acting in an individual, fiduciary or other capacity.

“Project” has the meaning given in the recitals to this Agreement.

“Revenue Account” means the account designated by that name established by Borrower with Depositary pursuant to Section 2.1.

“S&P” means Standard and Poor’s Ratings Services, a division of the McGraw- Hill Companies, Inc.

“Secured Parties” means Administrative Agent, Collateral Agent, the Lenders and each of their respective successors, transferees and assigns.

“SGIP Proceeds Account” means the account designated by that name established by Borrower with Depositary pursuant to Section 2.1.

3

“UCC” means the Uniform Commercial Code as the same may, from time to time, be in effect in the State of New York; provided, however, in the event that, by reason of mandatory provisions of law, any or all of the perfection or priority of the security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York the term “UCC” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such perfection or priority and for purposes of definitions related to such provisions.

1.2 Undefined Terms. Unless otherwise defined herein, capitalized terms used in this Agreement have the meanings provided in the Credit Agreement.

1.3 Rules of Interpretation. The rules of interpretation set forth in Exhibit B shall apply to this Agreement.

ARTICLE 2.

ESTABLISHMENT AND ADMINISTRATION OF ACCOUNTS

2.1 Establishment of Accounts with Depositary. Borrower hereby directs Depositary to establish on or prior to the date hereof and maintain until the termination of this Agreement in accordance with Article 5 or as otherwise expressly set forth herein, at its office located at 60 Wall Street MSNYC 60-2710, New York, NY 10005, Attention: Trust and Agency Services, the following accounts (each to be referred to herein by the defined term provided, and collectively the “Accounts”), in the name of Borrower (as the securities entitlement holder), but under the exclusive dominion and control of Collateral Agent pursuant to the terms of this Agreement:

Name of Account at Depositary	Account Number			Defined Term for Account
Construction Account		[	***]	“Construction Account”
Revenue Account		[	***]	“Revenue Account”
Insurance Proceeds Account		[	***]	“Insurance Proceeds Account”
Operating Account		[	***]	“Operating Account”
Distribution Suspense Account		[	***]	“Distribution Suspense Account”
DSR Account		[	***]	“DSR Account”
Maintenance Reserve Account		[	***]	“Maintenance Reserve Account”
SGIP Proceeds Account		[	***]	“SGIP Proceeds Account”

[***] Confidential Treatment Requested

4

The complete wire instructions for each of the Accounts are as follows:

Deutsche Bank Trust Company Americas

ABA No.: 021001033

Account #: [***]

Beneficiary Name: Trust and Securities Services

FFC AC : PORT [Applicable Account Number]

Attention: [***] - 2012 V PPA Project Co. [Reference Applicable Account Name]

(b) Depositary shall send copies of all statements and confirmations for the Accounts simultaneously to Borrower, Administrative Agent and Collateral Agent.

2.2 Permitted Investments;

2.2.1 Directing the Making of Investments. Any cash held in Accounts maintained hereunder shall be invested and reinvested in Permitted Investments from time to time by Depositary at the expense and risk of Borrower (a) as directed by Borrower, so long as Collateral Agent has not notified Depositary that an “Event of Default” under the Credit Agreement has occurred and is continuing or after Collateral Agent has notified Depositary that any such Event of Default no longer exists, and (b) if Borrower fails to so direct Depositary, or if there exists an Event of Default and Collateral Agent fails to so direct Depositary, by 11:00 a.m.on the date on which the term of any Permitted Investment terminates, amounts in respect of such terminating Permitted Investment will remain uninvested until such time as Borrower, or Collateral Agent if there exists an Event of Default, directs Depositary to invest such amounts in Permitted Investments. Depositary’s obligation to invest such amounts is conditioned upon receipt by Depositary of a valid Form W-9 of the Internal Revenue Service of the United States in accordance with Section 2.2.3. The right to direct the manner of investment includes, but is not limited to, the right (i) to direct Depositary to sell any Permitted Investment or hold it until maturity and (ii) upon any sale at maturity of any Permitted Investment, to direct Depositary to reinvest the proceeds thereof, plus any interest received by Depositary thereon, in Permitted Investments or to hold such proceeds and interest for application pursuant to the terms of this Agreement. Depositary shall have no liability for any loss resulting from any such investment other than any such loss caused solely by Depositary’s willful misconduct or gross negligence. Except as otherwise provided in this Section 2.2, any balances in the Accounts shall remain uninvested. Application of Permitted Investments. Permitted Investments purchased upon the direction of Borrower, as the case may be, under the provisions of this Agreement by Depositary shall be deemed at all times to be a part of the Account from which funds were withdrawn in order to acquire the Permitted Investment and shall be deemed to constitute funds on deposit in and credited to such Account, and the income or interest earned and gains realized in excess of losses incurred by an Account due to the investment of funds deposited therein shall be credited and retained in the particular Account in respect of which the Permitted Investment was purchased, except as expressly provided by the terms hereof.

[***] Confidential Treatment Requested

5

2.2.3 Earnings. (a) For purposes of any income tax payable on account of any income or gain on an investment, such income or gain shall be credited solely to Borrower for tax reporting purposes. Depositary shall provide to Borrower a statement with respect to all interest earned on any Account as of the close of each calendar year for which income is earned on the Accounts. Borrower shall provide Depositary with its taxpayer identification number, documented, to the extent necessary, by an appropriate executed Form W-9, upon execution of this Agreement. The Form W-9 shall, to the extent necessary, be renewed as required by the Internal Revenue Service of the United States and provided to Depositary.

(b) Any interest, gain or other earnings on, or proceeds of, investments credited to any Account that may be received by Depositary shall be deposited in such Account.

2.2.4 Liquidation of Investments for Distributions. Any direction of an Authorized Signatory of Borrower, with respect to the investment or reinvestment of monies held in any Account, shall direct investment or reinvestment only in Permitted Investments that shall mature in such amounts and have maturity dates or be subject to redemption at the option of the holder thereof on or prior to maturity as needed for the purposes of transfers into and from such Accounts. Administrative Agent is hereby authorized to direct Depositary (or direct Collateral Agent to direct depository) to liquidate or direct the liquidation of any Permitted Investment (without regard to maturity date) whenever Administrative Agent deems it necessary in order to make or cause to be made any deposit, transfer or distribution permitted under the terms of the Credit Agreement and this Agreement. In furtherance, and not in limitation, but without duplication, of any other indemnity or limitation of liability with respect to Collateral Agent or Depositary contained herein, neither Collateral Agent nor any other Secured Party shall in any way be liable for any losses incurred by Borrower, including losses due to early liquidation or market risk, which are a result of any action of Collateral Agent’s under this provision, other than any such loss arising from Collateral Agent’s willful misconduct or gross negligence. Neither Collateral Agent nor Depositary nor any other Secured Party shall in any event be liable or responsible for any loss, penalty or gain resulting from any investment made hereunder in accordance with the terms of this Agreement.

2.2.5 Value of Permitted Investments. For purposes of this Agreement (including determination of the balance in, or the aggregate amount on deposit in and credited to, any Account), the value of any investment shall be the lesser of (a) the face amount thereof and (b) the fair market valuethereof.

2.2.6 Security Interest. Whenever the Borrower directs the Depositary to purchase a Permitted Investment not represented or evidenced by certificates, Borrower shall notify Collateral Agent of such purchase and, upon the request of Collateral Agent, Depositary shall deliver such information in the Depositary’s possession to Collateral Agent as may be reasonably necessary to enable Collateral Agent to take all necessary action, including giving confirmations and notices to record Collateral Agent’s interest therein, all as required by the UCC to perfect a first priority security interest for the benefit of Collateral Agent.

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Without limiting the foregoing, whenever Depositary is instructed to purchase a Permitted Investment which is a certificate of deposit, Depositary shall simultaneously or promptly thereafter notify the issuer of the certificate of deposit as follows: Deutsche Bank Trust Company Americas, as Collateral Agent for the benefit of the Secured Parties, has a security interest and pledge in the certificate(s) of deposit being purchased this day by Deutsche Bank Trust Company Americas, as depositary agent and bailee on behalf of Collateral Agent and the other Secured Parties.

2.3 Books of Account; Statements; Etc. Depositary shall maintain books of account on a cash basis and record therein all deposits into and transfers to and from the Accounts and all investment transactions effected by Depositary pursuant to the terms hereof, and any such recordation shall constitute prima facie evidence of the information recorded. Not later than the 10^th Business Day of each month, commencing with the first month to occur after the date hereof, Depositary shall deliver to Borrower a statement setting forth the transactions in each Account during the preceding month, including deposits, withdrawals and transfers from and to any Account, and specifying any Permitted Investments and other amounts held in each Account at the close of business on the last Business Day of the preceding month. In addition, Depositary shall respond as quickly as practically possible during normal business hours to requests by Administrative Agent, Collateral Agent or Borrower for information regarding deposits, investments and transfers into, in respect of and among the Accounts. The Depositary shall provide access to its on-line bank statements and transaction activities reports with respect to each Borrower account subject to Borrower and the Administrative Agent and Collateral Agent providing any reasonable information to Depositary which is needed to establish such person with access to such on-line system.

2.4 Adequate Instruction; Sufficiency of Funds. (a) In the event that Depositary receives any monies in respect of Borrower or any Affiliate thereof without adequate instruction as to the Account into which such monies are to be deposited, Depositary shall immediately deposit such monies into the Construction Account and, after notice from Collateral Agent and Administrative Agent that the Availability Period has ended, into the Revenue Account, keeping such records as may be necessary to adequately distinguish such monies from other funds held in such Account, and shall immediately thereafter notify Borrower and Administrative Agent of the receipt of such monies. At any time that Depositary subsequently receives instructions from Borrower and Administrative Agent jointly (unless an Event of Default exists, in which case instructions only from Administrative Agent shall be sufficient) specifying the Account into which any such monies should be deposited, Depositary shall transfer such monies, within one Business Day of receiving such notice, from the Construction Account or Revenue Account, as the case may be, into the Account(s) that Borrower and/or Administrative Agent specifiedin such subsequent instructions.

(b) To the extent that there are insufficient funds in the relevant Account to make a transfer or withdrawal directed by an Account Withdrawal Instruction, Depositary shall (i) immediately notify Borrower and Administrative Agent of such deficiency and (ii) thereafter, to the extent practicable, unless it promptly receives contrary joint instructions from Administrative Agent and Borrower, make such withdrawal or transfer to the extent of such funds.

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2.5 Power of Attorney. With respect to the powers and rights granted to Administrative Agent in Article 3, Borrower hereby constitutes and appoints Administrative Agent its true and lawful attorney-in-fact to make the direct payments specified therein, and this power of attorney shall be deemed to be a power coupled with an interest and shall be irrevocable. No further direction or authorization from Borrower shall be necessary to warrant or permit Administrative Agent to make such direct payments in accordance with the foregoing sentence and Article 3.

2.6 Interest. Depositary shall credit to each Account all receipts of interest and other income received in respect of the funds held in such Account.

ARTICLE 3.

APPLICATION OF FUNDS

3.1 Withdrawals and Transfers. Withdrawals of any funds and transfers of any funds from the Accounts shall be made in compliance with this Section 3.1. Upon receipt before 12;00 noon on a Business Day by Depositary of an Account Withdrawal Instruction pursuant to which Administrative Agent directs the withdrawal of funds from any Account, Depositary shall make such withdrawals and shall apply such funds to the uses and in the amounts specified in such Account Withdrawal Instruction as soon as reasonably practicable, and in any event within the next Business Day after receipt of such Account Withdrawal Instruction.

ARTICLE 4.

SECURITY AND RELATED PROVISIONS; SECURITIES INTERMEDIARY

4.1 Securities Accounts; Deposit Accounts. Depositary hereby agrees and confirms that Depositary has established the Accounts as set forth and defined in this Agreement. The parties hereto hereby agree that:

(a) each Account is and will be maintained as a “securities account” (as defined in Section 8-501(a) of the UCC), and, to the extent that credit balances not constituting financial assets are credited thereto, as a “deposit account” (as defined in Section 9-102(a)(29) of the UCC);

(b) Depositary is acting in the capacity of “securities intermediary” (as defined in Section 8-102(a)(14) of the UCC) with respect to the Accounts and financial assets deposited therein or credited thereto, and as a “bank” (as defined in Section 9-102(a)(8) of the UCC) with respect to the Accounts and credit balances not constituting financial assets credited thereto;

(c) each item of property (whether cash, cash equivalents, instruments, investments, investment property or any other property, including Permitted Investments) credited to the Accounts shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the UCC;

(d) Borrower is the “entitlement holder” (as defined in Section 8-102(a)(7) of the UCC) with respect to the “financial assets” (as defined in Section 8-102(a)(9) of the UCC) credited to the Accounts, and Borrower is the “customer” (as defined in Article 9 of the UCC) with respect to any depositaccount;

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(e) the “securities intermediary’s jurisdiction” (as defined in Section 8-110(e) of the UCC) shall be the State of New York, and the “bank’s jurisdiction” for purposes of Section 9-304 of the UCC shall be the State of New York;

(f) all securities and other property constituting financial assets credited to the Accounts shall be registered in the name of Depositary or endorsed to Depositary or in blank, and in no case whatsoever will any financial asset credited to an Account be registered in the name of Borrower or any Affiliate thereof, payable to the order of Borrower or any Affiliate thereof or specially endorsed to Borrower or any Affiliate thereof except to the extent that the foregoing have been specially endorsed by Borrower or such Affiliate to Depositary or in blank;

(g) if there is any conflict between this Agreement and any other agreement relating to the Accounts, the provisions of this Agreement shall control; and

(h) Depositary shall not change the name of or account number for any Account without the prior written consent of Collateral Agent.

4.2 Certain Rights and Powers in Respect of Accounts and Funds.

4.2.1 Rights to Accounts. Until this Agreement is terminated pursuant to Article 5, Borrower shall not have any rights or powers with respect to the remittance of amounts credited to, the disbursement of credited amounts out of, or the investment of credited amounts in, Accounts, except to have amounts credited thereto applied in accordance with this Agreement; provided, however, that the parties hereto acknowledge and agree that the foregoing provisions of this Section 4.2.1 shall not be deemed to divest Borrower of its respective interest as an “entitlement holder” under the UCC, as provided in this Agreement.

4.2.2 Certain Additional Powers of Collateral Agent and Depositary. Depositary shall have the right, but not the obligation, to: (a) refuse any item for credit to any Account except as required by the terms of this Agreement; and (b) refuse to honor any request for transfer on any Account which is not consistent with this Agreement. If Borrower fails to perform any agreement contained herein, Collateral Agent may (but is not obligated to) itself perform, or cause the performance of, such agreement, and the expenses of Collateral Agent incurred in connection therewith shall be payable by Borrower upon demand. Borrower hereby irrevocably appoints Collateral Agent as Borrower’s attorney-in-fact, with full authority in the place and stead of Borrower and in the name of Borrower otherwise from time to time, if an Event of Default shall have occurred and be continuing, to take any action and to execute any instrument necessary to accomplish the purposes of this Agreement, including:

(i) to ask, demand, collect, sue for, recover, compromise, receive and give acquittance and receipts for moneys due and to become due under or in respect of any of the Accounts or the proceeds of financial assets held therein or credited thereto;

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(ii) to receive, endorse, and collect any drafts or other instruments, documents and chattel paper, in connection with clause (i) above;

(iii) to file any claims or take any action or institute any proceedings necessary for the collection of any of the Accounts or the proceeds of financial assets held therein or credited thereto or otherwise to enforce the rights of Collateral Agent with respect to any of the Accounts or the proceeds of financial assets held therein or credited thereto, provided that, with respect to this clause (iii), such rights shall be exercised in accordance with Section 4.7; and

(iv) to perform the affirmative obligations of Borrowerhereunder.

Borrower hereby acknowledges, consents and agrees that the power of attorney granted pursuant to this Section 4.2.2 is irrevocable and coupled with an interest. The powers conferred on Collateral Agent hereunder are solely to protect its interest, on behalf of the Secured Parties, in the Accounts and the proceeds of financial assets held therein or credited thereto and shall not impose any duty on Collateral Agent to exercise any such powers. Except for the reasonable care of any Account in its possession or under its control, as the case may be, the performance of its respective obligations hereunder, the performance of the duties of a securities intermediary or a bank, as applicable, under the UCC, and the accounting for moneys actually received by it in accordance with the terms hereof, neither Depositary nor Collateral Agent shall have any duty as to any Account or the proceeds of financial assets held therein or credited thereto, or as to the taking of any necessary steps to preserve rights against prior parties or any other rights pertaining to any such Account or proceeds. Each of Depositary and Collateral Agent (for the avoidance of doubt, Administrative Agent is deemed by all parties to not have any possessory rights with respect to or control over any Account) is required to exercise reasonable care in the custody and preservation of any Account in its possession or under its control (as the case may be); provided, however, that (A) Depositary in any event shall be deemed to have exercised reasonable care in the custody and preservation of any Account if it takes such action for that purpose as Collateral Agent or, at times other than upon the occurrence and during the continuance of any Event of Default, Borrower reasonably requests, but, notwithstanding the foregoing, the failure of Depositary to comply with any such request at any time shall not in itself be deemed a failure to exercise reasonable care, and (B) Collateral Agent in any event shall be deemed to have exercised reasonable care in the custody and preservation of any Account if it takes such action for that purpose as Borrower reasonably requests at times other than upon the occurrence and during the continuance of any Event of Default, but, notwithstanding the foregoing, the failure of Collateral Agent to comply with any such request at any time shall not in itself be deemed a failure to exercise reasonable care. Nothing in this Section 4.2 shall be construed as limiting Collateral Agent’s maintenance of exclusive dominion and control over the Accounts.

4.2.3 Control.

(i) Notwithstanding any other provision of this Agreement or any other agreement, the Depositary agrees that it shall comply with all entitlement orders relating to the Accounts originated by the Collateral Agent, and with all instructions directing disposition of the funds in the Accounts originated by the Collateral Agent, in each case without further consent by the Borrower or any other Person.

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(ii) Without limiting the agreement of the Depositary contained in Section 4.2.3(i), the Collateral Agent agrees with the Borrower that it will not originate any entitlement order or instruction unless some provision of this Agreement other than this Section 4.2.3 authorizes the Collateral Agent to do so.

4.3 Security Interest; Grant Pursuant to Security Agreement. To secure the timely payment in full in cash and performance in full of its Obligations, pursuant to the Security Agreement, Borrower has assigned, granted, hypothecated and pledged to, and granted a first priority Lien on and a security interest in favor of, Collateral Agent, on behalf of and for the sole and exclusive benefit of the Secured Parties, all the estate, right, title, interest and security entitlements of Borrower, whether now owned or hereafter acquired, in all Accounts and in all financial assets held therein or credited thereto and all proceeds thereof, including all rights of Borrower to receive moneys due in respect of all Accounts, all claims with respect to any Account, all income or gain earned in respect of the financial assets held in or credited to any Account, and all proceeds receivable or received when any Account is collected, exchanged or otherwise disposed of, whether voluntarily orinvoluntarily.

4.3.1 Acknowledgment. Depositary hereby acknowledges the security interest in, and the pledge by Borrower to Collateral Agent, for the benefit of the Secured Parties, of all of Borrower’s security entitlements to the Accounts and all financial assets held therein or credited thereto and all proceeds thereof, and Depositary will so indicate on the records maintained by Depositary with respect to Accounts. Depositary agrees to hold all such security entitlements and financial assets in its custody for the purposes of, and on the terms set forth in, this Agreement.

4.4 Perfection; Further Assurances. Borrower agrees that from time to time it shall promptly execute and deliver all instruments and documents, and take all actions, that may be reasonably necessary, or that Collateral Agent may reasonably request, in order to perfect and protect the assignment and first priority security interest granted or intended to be granted hereby or to enable Collateral Agent to exercise and enforce its rights and remedies hereunder with respect to the Accounts, all financial assets held therein or credited thereto and all proceeds thereof. Without limiting the generality of the foregoing, Borrower hereby authorizes the filing of such financing or continuation statements, or amendments thereto, and shall execute or deliver such other instruments, endorsements or notices, as may be reasonably necessary or desirable or as Collateral Agent may reasonably request, in order to perfect and preserve the assignments and security interests granted or purported to be granted hereby.

4.5 Other Liens; Adverse Claim. (a) Borrower represents and warrants, as of the date hereof, that:

(i) it has not assigned any of its rights under any Accounts except as part of the Collateral;

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(ii) it has not executed and is not aware of any effective financing statement, security agreement, control agreement or other instrument similar in effect covering all or any part of the Accounts, except those in favor of the Collateral Agent; and

(iii) it has full power and authority to grant a security interest in and assign its right, title and interest in the Accounts and all financial assets held therein or credited thereto and all proceeds thereof hereunder. Borrower represents, warrants and covenants that it has not granted, and shall not grant, to any Person (other than Collateral Agent) any interest in any of the Accounts and that it has kept, and shall keep, the Accounts free from all other Liens (other than Liens in favor of the Collateral Agent and Permitted Liens).

(b) Depositary, to the best of its knowledge without any independent investigation, represents and warrants that it has no knowledge of any Lien on any of the Accounts other than the claims and interest of the parties as provided herein. To the extent that Depositary has or subsequently obtains by agreement, operation of law or otherwise a security interest in any Account or any security entitlement credited thereto, Depositary hereby subordinates to the security interest in the Accounts of Collateral Agent all property credited thereto, all security entitlements with respect to such property and any and all statutory, regulatory, contractual or other rights now or hereafter existing in its favor over or with respect to the Accounts, including (i) any and all contractual rights of pledge, set-off, lien or compensation, (ii) any and all statutory or regulatory rights of pledge, lien, set-off or compensation, (iii) any and all statutory, regulatory, contractual or other rights to put on hold, block transfers from or fail to honor instructions of Collateral Agent with respect to the Accounts, or (iv) any and all statutory or other rights to prohibit or otherwise limit the pledge, assignment, collateral assignment or granting of any type of security interest in the Accounts. Notwithstanding the foregoing, Depositary retains its rights against the Accounts in respect of the payment of Depositary’s customary fees for maintaining the Accounts, all other customary fees, charges and reversals and payment of all amounts due and owing to Depositary (including, without limitation, amounts payable to Depositary pursuant to Sections 4.6.7 and 4.8) hereunder. Such other customary fees, charges and reversals include, without limitation, reimbursement for the reversal of any provisional credits posted by Depositary to an Account for the face amount of any check, draft, money order, instrument, wire transfer or payment order of funds, automated clearing house entry, or other electronic transfer of funds or other item (each an “Item” and collectively “Items”) without regard to the timeliness of return or adjustment of any Item, any adjustments or corrections of any posting or encoding errors, all reasonable fees, charges and costs associated with the preparation, negotiation, and enforcement of this Agreement as well as all fees and charges assessed by Depositary as a result of it agreeing to enter into this Agreement and the ongoing administration of the Accounts.

(c) The financial assets credited to the Accounts shall not be subject to deduction, set-off, banker’s lien, or any other right in favor of any Person other than Collateral Agent and the Depositary.

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4.6 Duties and Certain Rights of Depositary;

4.6.1 General. The duties of Depositary shall be determined solely by the express provisions of this Agreement and the provisions of the UCC relating to the duties of a securities intermediary or bank, as applicable, and no implied duties (fiduciary or otherwise), covenants or obligations shall be read into this Agreement against Depositary.

4.6.2 Appointment. Borrower hereby designates and appoints Deutsche Bank Trust Company Americas to act on its behalf as depositary agent and securities intermediary under this Agreement, and authorizes Depositary to execute, deliver and perform, on behalf of the Secured Parties, this Agreement and to take such actions on behalf of the Secured Parties under the provisions hereof and to exercise such powers and authority and perform such duties as are expressly delegated to Depositary by the terms of this Agreement and the Credit Agreement, together with such other powers and authority as are reasonably incidental thereto. Depositary hereby agrees to act as depositary agent and securities intermediary with respect to the Accounts and pursuant to this Agreement. The other parties hereto hereby acknowledge that Depositary shall act as depositary agent, securities intermediary (as defined in Section 8-102(a)(14)(ii) of the UCC) and, if applicable, as a bank (as defined in Section 9-102(a)(8) of the UCC) with respect to the Accounts and pursuant to this Agreement. Negative Pledge. Depositary hereby agrees that it shall not grant, subject to the terms of this Agreement, any security interests in the financial assets that it is obligated to maintain under this Agreement. Notwithstanding anything to the contrary, Depositary will not be required to comply with the preceding sentence if Depositary is required by a law, rule, regulation or request of a regulatory authority to grant any security interests in the financial assets that Depositary is obligated to maintain under this Agreement, provided that Depositary shall provide the Administrative Agent, the Collateral Agent and Borrower with written notice as soon as Depositary becomes aware of any such law, rule, regulation or request of a regulatory authority that would require Depositary to grant any security interests in the financial assets that Depositary is required to maintain under this Agreement. Subject to Section 4.5(b), Depositary hereby waives, to the fullest extent permitted by law, any Lien it may now have or subsequently acquire in respect of any Collateral, any right to apply any Collateral in satisfaction of any claims other than the claims of the Secured Parties in respect of the Liens granted under the Collateral Documents, and any right to set off claims against Collateral other than claims of any Secured Party under the Collateral Documents.

4.6.4 Instructions Upon an Event of Default. Upon the occurrence and during the continuation of an Event of Default, and until such time as Depositary receives notice from Administrative Agent that such Event of Default no longer exists, without limiting Administrative Agent’s, Collateral Agent’s or any other Secured Party’s rights or remedies herein or under any of the Collateral Documents, (i) Collateral Agent shall have the right, but not the obligation, to deliver to Depositary an “entitlement order” (within the meaning of Section 8-102(a)(8) of the UCC) or other directions instructing Depositary to administer the Accounts and disburse funds therefrom, and, upon the exercise of such right, Depositary shall comply with any such entitlement order or other directions from Collateral Agent without the further consent of Borrower or any other Person, (ii) Depositary shall not accept any instructions or certificates from Borrower with respect to the withdrawal or transfer of amounts in the Accounts or

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otherwise unless directed to do so by Collateral Agent and (iii) Depositary shall execute and deliver (or cause to be executed and delivered) to Collateral Agent all proxies and other instruments as Collateral Agent may reasonably request for the purpose of enabling Collateral Agent (on behalf of the Secured Parties) to exercise any voting or other consensual rights pertaining to the Accounts and the funds and investments therein. The parties hereto agree that until Depositary’s obligations under this Agreement shall terminate in accordance with the terms hereof, Collateral Agent shall have control of each of Borrower’s security entitlements with respect to the financial assets credited to the Accounts, the Accounts and all funds in any Accounts. Depositary hereby represents that it has not entered into, and agrees that, until the termination of this Agreement, it will not enter into any agreement with any other Person in respect of any of the Accounts pursuant to which it would agree to comply with entitlement orders, other orders or instructions made by such Person.

4.6.5 Standard of Care. Depositary shall exercise at least the level of care it exercises with respect to its own funds and, in all events, reasonable care, in administering and accounting for amounts actually received by Depositary in accordance with the terms hereof and credited to the Accounts and the Permitted Investments purchased with such amounts. In the event Depositary breaches the foregoing standard of care, Collateral Agent, Administrative Agent and Borrower expressly agree that Depositary’s liability shall be limited to actual damages directly caused by such breach as determined by a court of competent jurisdiction in a non-appealable final order, and in no event shall Depositary be liable for any incidental, indirect, special, punitive or consequential damages, regardless of whether or not Depositary knew of the likelihood or was made aware of the possibility of such damages.

4.6.6 Action Upon Notices; Exercise of Judgment. Depositary may conclusively and exclusively rely on Administrative Agent or Collateral Agent in determining whether a Default or Event of Default under the Credit Agreement has occurred, it being acknowledged and agreed by the parties hereto that if Depositary receives any conflicting notices, entitlement orders, requests, waivers, consents, receipts or other papers or documents hereunder, the applicable notice from Administrative Agent or Collateral Agent shall control. Depositary shall not be deemed to have knowledge of a Default or Event of Default under the Credit Agreement until it has received written notice thereof from the Borrower, Administrative Agent or Collateral Agent. Collateral Agent and Depositary shall each be permitted to conclusively rely and act or refrain from acting, as the case may be, upon any notice, entitlement order, request, waiver, consent, receipt or other paper or document (whether in its original or facsimile form, including portable document format (.pdf)) reasonably believed by it to be signed by Administrative Agent, Collateral Agent or Depositary, as applicable, Borrower or any other authorized Person. Parties hereto acknowledge that any action or direction (or inaction as the case may be) of Collateral Agent is only upon the proper notice or instruction of the Administrative Agent or other person authorized hereunder, as applicable. In the event that Borrower becomes subject to a voluntary or involuntary proceeding under the United States Bankruptcy Code, if Depositary is otherwise served with a court order or other judicial process which Depositary in good faith believes affects any Account, or Depositary is of the opinion that acting upon the instructions of the Administrative Agent would result in the violation of any applicable law, rule, regulation or request of a regulatory authority, Depositary may, upon notice to the Administrative Agent, cease acting upon the instructions of the Administrative Agent and

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suspend disbursements from the Accounts until such time as Depositary receives a court order or other assurances reasonably satisfactory to Depositary establishing that disbursements from the Accounts may continue.

4.6.7 Indemnification and Liability. (a) In consideration of the appointment of Depositary, (i) Borrower agrees fully to indemnify and hold Depositary and its directors, officers, employees and agents (collectively, the “Indemnified Persons”) harmless from and against any and all claims, losses, liabilities, damages, costs or expenses (including reasonable legal fees and expenses) incurred by the Indemnified Persons by reason of or resulting from this Agreement or any action (or inaction as the case may be) taken in connection therewith (including Depositary having accepted such appointment or by reason of its carrying out of any of the terms of this Agreement), and agrees to reimburse the Indemnified Persons for all of their expenses, including reasonable fees and expenses of counsel and court costs, incurred by reason of any position or action taken (or omitted) by the Indemnified Persons pursuant to this Agreement or in connection with any action brought to interpret or enforce the provisions of this Agreement or any part thereof, except to the extent that any such claim, loss, liability, damage, cost or expense results from an Indemnified Person’s own gross negligence or willful misconduct, and (ii) in the event that Borrower fails to indemnify Depositary pursuant to clause (i) of this Section 4.6.7, the Administrative Agent agrees to promptly reimburse Depositary for the amount of any overdraft in any Account arising as a result of Depositary’s reversal of provisional credit for any Item or for Depositary’s adjustment or correction of any posting or encoding error. Notwithstanding the Administrative Agent’s obligation to reimburse Depository pursuant to the immediately preceding sentence, Depositary will immediately after any such reimbursement by Administrative Agent (a) request such reimbursement from Borrower, (b) use commercially reasonable efforts to collect any such reimbursement from Borrower (provided if there is a Bankruptcy Event existing with respect to Borrower, then no such efforts to collect are required) and (c) transfer any such reimbursement collected from Borrower, if any, to the Administrative Agent to an account specified by the Administrative Agent. The reimbursement obligation of the Administrative Agent created under this Section 4.6.7 shall be limited to the amount of funds transferred by Depositary pursuant to this Agreement to the Administrative Agent, a Secured Party or to any third party. The above indemnification provision shall survive any termination of this Agreement including any termination under any bankruptcy or similar law or the earlier resignation or removal of Depositary or the resignation or removal of Depositary.

(b) The parties hereto hereby agree that no Indemnified Person shall be liable to such parties for any actions taken by any Indemnified Person pursuant to and in compliance with the terms hereof except in respect of any liability or expenses incurred by the parties hereto arising from such Indemnified Person’s gross negligence or willful misconduct. Each of the parties to this Agreement (for itself and any Person claiming through it) hereby releases, waives, discharges, exculpates and covenants not to sue any Indemnified Person for any action taken or omitted under this Agreement except to the extent caused by such Indemnified Person’s gross negligence or willful misconduct. Notwithstanding anything in this Agreement to the contrary, in no event shall Depositary be liable to Borrower or to any Secured Party for special, indirect or consequential loss or damage of any kind whatsoever (including lost profits) arising out of this Agreement and the transactions contemplated hereby, even if Depositary has been advised of the likelihood of such loss or damage and regardless of the form ofaction.

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(c) Except for actions expressly required hereunder for which indemnification is provided pursuant to Section 4.6.7(a), including, without limitation, complying with entitlement orders and instructions originated by the Collateral Agent, each Indemnified Person shall be fully justified in refusing to take or continuing to take any action hereunder unless a confirmation was given satisfactory to Depositary that the indemnities theretofore provided in Section 4.6.7(a) remain in effect or that a new indemnity substantially similar to such indemnities has been provided. Any Indemnified Person may consult with legal counsel of its own selection in the event of any dispute or question as to the construction of this Agreement or the Indemnified Person’s duties hereunder, and the Indemnified Person shall incur no liability and shall be fully protected in acting in accordance with the advice, written opinion and instructions of such counsel.

4.6.8 Court Orders. Depositary is hereby authorized, to obey and comply with all writs, orders, judgments or decrees issued by any court, regulatory authority or administrative agency affecting any money, documents or things held by Depositary. Depositary shall not be liable to any of the parties hereto, their successors, heirs or personal representatives by reason of Depositary’s compliance with such writs, orders, judgments or decrees, notwithstanding that such writ, order, judgment or decree may later be reversed, modified, set aside orvacated.

4.6.9 Resignation and Termination. Depositary may at any time resign by giving notice to each other party to this Agreement, such resignation to be effective upon the appointment of a successor depositary agent as provided below. Depositary also reserves the right to unilaterally terminate this Agreement with immediate effect if Depositary determines (in its sole discretion) that it is (x) obligated to terminate this Agreement or close an Account under statute, rule, regulation, request of a regulatory authority, or any court order or (y) in the event of suspected fraud, bad faith or illegal or suspicious activity in connection with the Accounts. If Depositary exercises its right to unilaterally terminate this Agreement pursuant to the immediately preceding sentence, all funds on deposit in the Accounts or credited to the Accounts shall be immediately transferred by Depositary to the Administrative Agent. Administrative Agent may, upon 30day prior notice to Depositary, remove Depositary (x) without the consent of Borrower if an “Event of Default” under the Credit Agreement has occurred and is continuing or (y) with the consent of Borrower at all other times, in each case, by giving notice to each other party to this Agreement, such removal to be effective upon the appointment of a successor depositary agent as provided below.

(b) In the event of any resignation or removal of Depositary, a successor depositary agent, which shall be a bank or trust company organized under the laws of the United States America, the State of New York or the State of Delaware, having a corporate trust office in the State of New York or the State of Delaware and a capital and surplus of not less than $[***] shall be appointed by Administrative Agent after consultation with Borrower. If a successor depositary agent shall not have been appointed and accepted its appointment as depositary agent within 30days after such notice of resignation of Depositary or such notice of removal of Depositary, Depositary, Administrative Agent or Borrower may apply (at the sole cost and expense of Borrower) to any court of competent jurisdiction to appoint a successor depositary agent to act until such time, if any, as a successor depositary agent shall have accepted its appointment as provided above. A successor depositary agent so appointed by such court shall

[***] Confidential Treatment Requested

16

immediately and without further act be superseded by any successor depositary agent appointed by Administrative Agent, after consultation with Borrower, as provided above. Any such successor depositary agent shall be capable of acting as a “securities intermediary” (within the meaning of Section 8-102(14) of the UCC) and shall deliver to each party to this Agreement a written instrument accepting such appointment and thereupon such successor depositary agent shall succeed to all the rights and duties of Depositary under this Agreement and shall be entitled to receive the Accounts from the predecessor Depositary.

(c) Upon the replacement of Depositary hereunder, all investments and other amounts held by it or credited to Accounts pursuant to this Agreement shall be transferred to such successor depositary agent. In the event of the resignation or termination of Depositary, Depositary shall be entitled to its fees and expenses in accordance with the terms hereof up to the time such resignation or termination becomes effective in accordance with this Section 4.6.9.

4.6.10 Directions and Instructions to Depositary. Except for the obligations of Depositary expressly required to be performed by it hereunder, Depositary shall not be required to take or omit to take any action, or to give any consent, hereunder unless it shall have been directed to do so by Administrative Agent or by Collateral Agent pursuant to the terms of this Agreement. All directions or instructions required or permitted to be given by any party to another party hereunder, including any Account Withdrawal Instruction, shall be given in writing and shall be effective only if given in writing. All such directions and instructions given by Borrower, Administrative Agent and Collateral Agent to Depositary pursuant to this Agreement shall be executed by an authorized signatory (each, an “Authorized Signatory”) of Borrower, Administrative Agent or Collateral Agent, as applicable. No person shall be deemed to be an Authorized Signatory of Borrower, Administrative Agent or Collateral Agent unless such person is named on a certificate of incumbency delivered to Depositary on the date hereof or is otherwise named in a notice signed by an Authorized Signatory and delivered by Borrower, Administrative Agent or Collateral Agent, as applicable, to Depositary at any time subsequent to the date hereof in all cases in form reasonably satisfactory to Depositary. Collateral Agent hereby authorizes Administrative Agent to give directions and instruction to Depositary.

4.6.11 Individual Capacity. Deutsche Bank Trust Company Americas may engage or be interested in any financial or other transactions with any party to this Agreement and may act on, or as depositary, trustee or agent for, any committee or body of holders of obligations of such Persons as freely as if it were not Depositary hereunder.

4.6.12 Duties. Depositary shall act as a depositary agent and securities intermediary, only and shall not be responsible or liable in any manner for soliciting any funds or for the sufficiency, correctness, genuineness or validity of any funds or securities deposited with or held by it, except in the case of its gross negligence, willful misconduct or bad faith. In the event of any dispute as to the construction or interpretation of any provision of this Agreement, Depositary shall be entitled to consult with and obtain advice from legal counsel of its own selection.

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4.6.13 Succession. Any entity into which Depositary may be merged or converted or with which it may be consolidated, or any entity resulting from any merger, conversion or consolidation to which Depositary shall be a party, or any entity succeeding to all or substantially all of the corporate trust business of Depositary shall be the successor of Depositary hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.

4.7 Remedies. If an Event of Default shall have occurred and be continuing:

(a) Collateral Agent may exercise in respect of the Accounts, in addition to other rights and remedies provided for herein or otherwise available to it, all the rights and remedies of a secured party under the UCC at that time, including the right to proceed to protect and enforce the rights vested in it by this Agreement, to sell, liquidate or otherwise dispose of any or all of the Accounts, and to cause the Accounts to be sold, liquidated or otherwise disposed of, in each case in such manner as Collateral Agent may elect; and

(b) the proceeds of any financial assets credited to or held in any Account and all cash proceeds received by Collateral Agent in respect of any sale of, collection from or other realization upon all or any part of the Accounts shall be applied (after payment of any amounts payable to Depositary pursuant to the terms hereof) by Collateral Agent against all or any part of Borrower’s Obligations.

Any surplus of such amounts or proceeds remaining after payment in full of all the Obligations shall be applied as directed by Borrower. No right, power or remedy herein conferred upon or reserved to Administrative Agent, Collateral Agent or the other Secured Parties is intended to be exclusive of any other right, power or remedy and every such right, power and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right, power and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder or otherwise shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. Resort to any or all security now or hereafter held by Administrative Agent, Collateral Agent or the other Secured Parties may be taken concurrently or successively and in one or several consolidated or independent judicial actions or lawfully taken non-judicial proceedings, or both.

4.8 Costs, Expenses and Attorneys’ Fees. Borrower shall pay to Depositary all reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred by Depositary in connection with (a) any suit or proceeding related to or arising out of this Agreement or the transactions contemplated hereby, (b) the performance by Depositary of any of its agreements or obligations contained herein, (c) any exercise by Depositary of its rights or remedies hereunder or (d) the purchase by Depositary of Permitted Investments as contemplated by Section 2.2 (except in each case, arising out of and to the extent of any breach of Section 4.6.5 by or the gross negligence or willful misconduct of Depositary). Borrower shall pay the reasonable costs and expenses of Depositary’s external legal counsel in connection with its review of this Agreement on behalf of Depositary or in connection with Depositary’s performance hereunder.

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4.9 Additional Rights of Collateral Agent and Depositary. The following rights stated in this Section 4.9 are in furtherance, and not in limitation, but without duplication, of any other rights of Collateral Agent and Depositary set forth elsewhere in this Agreement.

4.9.1 Actions. Neither Collateral Agent nor Depositary shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there is reasonable ground for believing that the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured it. Neither Collateral Agent nor Depositary shall be liable for any error of judgment or for any act done or step taken or omitted by it in good faith or for any mistake of fact or law or for anything which Collateral Agent or Depositary may do or refrain from doing in connection herewith, except in the case of its own gross negligence or willful misconduct. Depositary shall have duties only as expressly set forth herein and the duties under the UCC of a securities intermediary or bank, as applicable. Neither Collateral Agent nor Depositary shall have any liability for losses with respect to Permitted Investments authorized by this Agreement. Nothing herein contained shall be deemed to obligate the Depositary to deliver any cash, instruments, documents or any other property referred to herein, unless the same shall have first been received by the Depositary pursuant to this Agreement. The Depositary shall be under no liability to any party hereto by reason of any failure on the part of any other party hereto or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person’s obligations under any such document. The Depositary will incur no liability if, by reason of any provision of any present or future law or regulation thereunder, or by any force majeure event, including natural disaster, act of terrorism, war or other circumstances beyond its reasonable control, the Depositary will be prevented or forbidden from doing or performing any act or thing which the terms of this Agreement provide will or may be done or performed.

4.9.2 No Responsibility for Statements, Etc. To the fullest extent permitted by law, neither Collateral Agent nor Depositary nor any of their respective officers, directors, employees, agents, attorneys-in-fact or affiliates shall be responsible in any manner to any of the other Secured Parties for (a) any recitals, statements, representations or warranties made by Borrower or any representative thereof or any other Person contained in any other document or in any certificate, report or statement referred to in, or received by Depositary under or in connection with, this Agreement, except to the extent any such recital, statement, representation or warranty was made in reasonable reliance upon a recital, statement, representation or warranty made by Collateral Agent or Depositary (or any representative thereof), (b) the value, validity, effectiveness, genuineness, enforceability or sufficiency of the Collateral or (c) any failure of Borrower to perform its obligations hereunder or for the value of any investment made in connection herewith. Neither Collateral Agent nor Depositary shall be under any obligation to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, any other agreement or to inspect the properties, books or records of Borrower. Depositary shall not be charged with knowledge of any provision of the Credit Agreement.

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4.9.3 Collateral. Except as expressly provided hereunder, nothing in this Agreement shall be interpreted as giving Collateral Agent or Depositary responsibility for or any duty concerning the validity, perfection, priority or enforceability of any Lien on any Collateral, or giving Collateral Agent or Depositary any obligation to take any action to procure or maintain such validity, perfection, priority or enforceability.

4.10 Non-Business Days. If Depositary shall be required under this Agreement or pursuant to any directions given by Borrower, Administrative Agent or Collateral Agent to make any withdrawal, disbursement, transfer or payment on a day other than a Business Day, Depositary shall make such withdrawal, disbursement, transfer or payment on the next succeeding Business Day.

ARTICLE 5.

TERMINATION OF AGREEMENT

The rights and powers granted herein to each of Administrative Agent and Collateral Agent have been granted in order, among other things, to perfect Collateral Agent’s security interests in the Accounts and to permit Administrative Agent to carry out its duties under the Credit Agreement, are powers coupled with an interest, and will neither be affected by the bankruptcy of Borrower or any other Person nor by the lapse of time. Except as otherwise provided herein, the obligations of Depositary hereunder shall continue in effect until the security interests of Collateral Agent in the Accounts have been terminated, and Collateral Agent has notified Depositary of such termination. Failure of Collateral Agent to so notify Depositary shall not affect the rights of Borrower hereunder. When the Credit Agreement has expired or has otherwise earlier terminated and all Obligations, other than those obligations which expressly survive the termination of the Credit Documents, have been indefeasibly satisfied in full, and all commitments under the Credit Agreement have terminated, all right, title and interest of Collateral Agent in the Accounts shall revert to Borrower. At such time, (i) Administrative Agent and Collateral Agent shall jointly notify Depositary to, and upon such notification Depositary shall, pay any amounts (including Permitted Investments) then remaining in any of the Accounts, minus any amounts due and owing Depositary hereunder, to an account designated by Borrower to Depositary, (ii) Borrower shall notify all Persons who are expected to make payments to it to remit such payments to the order of Borrower and not to the Accounts, and (iii) the Accounts shall be closed. If any funds are received by Collateral Agent or Depositary for deposit in any Account after such Account is closed in accordance with the preceding sentence or the relevant provisions of Article 3, Collateral Agent or Depositary, as applicable, shall promptly remit such funds to (or at the direction of) Borrower, in the form received, with any necessary endorsements.

ARTICLE 6.

MISCELLANEOUS

6.1 Notices. Each notice, instruction, entitlement order, request or other document delivered hereunder shall be in writing. Each Account Withdrawal Instruction shall be delivered by First Class mail (postage prepaid), in person, by facsimile to Depositary at the office or to the facsimile number specified in this Section or hereafter provided in writing or by email if such

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Account Withdrawal Instruction is contained in an email transmittal as an executed instrument, in portable document format (.pdf) or otherwise. Any communications between the parties hereto or notices provided herein to be given shall be given to the following addresses:

If to Depositary or Collateral Agent:	Deutsche Bank Trust Company Anericas
	60 Wall Street
	MSNYC 60-2710
	New York, NY 10005
	Attention: Trust and Agency Services
	Fax: [***]
	Phone: [***]
	Email: [***]
If to Administrative Agent:	PE12GVVC (Bloom PPA) Ltd.
	c/o Alberta Investment Management Corp.
	1100 – 10830 Jasper Avenue
	Edmonton, AB T5J 2B3
	Canada
	Attn: [***]
	Fax: [***]
	Phone: [***]
	Email: [***]
If to Borrower:	2012 V PPA Project Company, LLC
	c/o Bloom Energy Corporation
	1299 Orleans Drive
	Sunnyvale, CA 94089
	Attn: [***]
	Fax: [***]
	Phone: [***]
	Email: [***]

Any notice or other communication herein required or permitted to be given shall be in writing, and shall be deemed effective only if given in writing, and shall be considered as properly given (a) if delivered in person, (b) if sent by overnight courier service (including Federal Express, UPS and other similar overnight delivery services), (c) if mailed by first class United States Mail, postage prepaid, registered or certified with return receipt requested, (d) if sent by facsimile, with the original sent by other means set forth in this Section 6.1, or (e) other electronic means (including email and Internet or intranet websites); provided, that the foregoing clause (e) shall not apply to notices if the party to receive the notice has notified the other parties that it is incapable of receiving notices by electronic communication or if no email address is given above or later provided. Notices delivered in person or overnight courier service, or mailed by registered or certified mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given upon the sender’s receipt of an acknowledgement from the intended recipient (such as by return facsimile, email or other written acknowledgement). With respect to electronic

[***] Confidential Treatment Requested

21

communications, (i) notices and other communications sent to an email address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return email or other written acknowledgement); provided, that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its email address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.

For the purposes hereof, the address of each party hereto shall be the address specified in this Section, provided, that any party shall have the right to change its address for notice hereunder to any other location within the continental United States by giving of 30days’ notice to the other parties in the manner set forth above.

6.2 Benefit of Agreement. Nothing in this Agreement, expressed or implied, shall give or be construed to give to any Person other than the parties hereto and the Secured Parties any legal or equitable right, remedy or claim under this Agreement, or under any covenants and provisions of this Agreement, each such covenant and provision being for the sole benefit of the parties hereto and the Secured Parties.

6.3 Delay and Waiver. No failure or delay by Administrative Agent, Collateral Agent or Depositary in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of each of Administrative Agent and Collateral Agent hereunder are cumulative and are not exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of this Agreement or consent to any departure by Borrower therefrom shall in any event be effective unless the same shall be permitted by Section 6.4, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given.

6.4 Amendments. No provision of this Agreement may be waived, amended, supplemented or otherwise modified, except by a written instrument signed by each of the parties hereto.

6.5 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED UNDER, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO CONFLICTS OF LAW (OTHER THAN SECTION 5-1401 AND SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW), EXCEPT AS REQUIRED BY MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE LIEN AND SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR ACCOUNT ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK. REGARDLESS OF ANY PROVISION IN ANY OTHER AGREEMENT, FOR PURPOSES OF THE UCC, THE “SECURITIES INTERMEDIARY’S JURISDICTION” OF DEPOSITARY WITH RESPECT TO THE ACCOUNTS IS THE STATE OF NEW YORK.

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6.6 Consent to Jurisdiction. Administrative Agent, Collateral Agent, Depositary and Borrower agree that any legal action or proceeding by or against Borrower or with respect to or arising out of this Agreement may be brought in or removed to the courts of the State of New York, in and for the County of New York, or of the United States of America for the Southern District of New York in the Borough of Manhattan, as each of them respectively may elect. By execution and delivery of this Agreement, Administrative Agent, Collateral Agent, Depositary and Borrower accept, for themselves and in respect of their property, generally and unconditionally, the non-exclusive jurisdiction of the aforesaid courts. Administrative Agent, Collateral Agent, Depositary and Borrower irrevocably consent to the service of process out of any of the aforementioned courts in any manner permitted by law. Nothing herein shall affect the right of Administrative Agent, Collateral Agent or Depositary to bring legal action or proceedings in any other competent jurisdiction. Administrative Agent, Collateral Agent, Depositary and Borrower hereby waive any right to stay or dismiss any action or proceeding under or in connection with this Agreement brought before the foregoing courts on the basis of forum non-conveniens.

6.7 WAIVER OF JURY TRIAL. BORROWER, DEPOSITARY, COLLATERAL AGENT AND ADMINISTRATIVE AGENT HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF BORROWER, DEPOSITARY, COLLATERAL AGENT OR ADMINISTRATIVE AGENT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR EACH PARTY TO ENTER INTO THIS AGREEMENT.

The scope of this waiver is intended to be all-encompassing of any and all disputes that may be filed in any court and that relate to the subject matter of this transaction, including contract claims, tort claims, breach of duty claims and all other common law and statutory claims. Each party hereto acknowledges that (i) this waiver is a material inducement to enter into a business relationship, (ii) it has already relied on this waiver in entering into this Agreement, and (iii) it will continue to rely on this waiver in their related future dealings. Each party hereto further warrants and represents that it has reviewed this waiver with its legal counsel and that it knowingly and voluntarily waives its jury trial rights following consultation with legal counsel. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 6.7 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.

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6.8 Severability. Any provision of this Agreement that is invalid, illegal, prohibited or unenforceable in any respect in any jurisdiction, shall as to such jurisdiction be ineffective to the extent of such invalidity, illegality, prohibition or unenforceability without affecting, invalidating or impairing the validity, legality and enforceability of the remaining provisions hereof; and any such invalidity, illegality, prohibition or unenforceability in any jurisdiction shall not affect, invalidate or impair such provision in any other jurisdiction.

6.9 Headings. Article and Section headings have been inserted in this Agreement as a matter of convenience for reference only and it is agreed that such Article and Section headings are not a part of this Agreement and shall not be used in the interpretation of any provision of this Agreement.

6.10 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, provided that (a) Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of Collateral Agent and Administrative Agent, and (b) Depositary may only assign or otherwise transfer any of its rights or obligations hereunder in accordance with the terms of this Agreement (including Section 4.6).

6.11 Entire Agreement. This Agreement and any agreement, document or instrument attached hereto or referred to herein among the parties hereto integrate all the terms and conditions mentioned herein or incidental hereto and supersede all oral negotiations and prior writings in respect of the subject matter hereof. In the event of any conflict between the terms, conditions and provisions of this Agreement and any such agreement, document or instrument, the terms, conditions and provisions of this Agreement shall prevail; provided, however, that Depositary shall not be charged with knowledge of any agreement to which it is not a party.

6.12 Survival of Agreements. All covenants, agreements, representations and warranties made by Borrower herein and in the certificates or other instruments delivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement, and shall continue in full force and effect so long as this Agreement has not been terminated in accordance with the terms hereof. The provisions regarding the payment of expenses and indemnification obligations, including Section 4.6.7, shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the termination of this Agreement or any provision hereof or the resignation or removal of Depositary.

6.13 Counterparts. This Agreement and any amendments, waivers, consents or supplements hereto or in connection herewith may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute one and the same instrument. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document.

6.14 Patriot Act.

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The parties hereto acknowledge that in order to help the United States government fight the funding of terrorism and money laundering activities, pursuant to Federal regulations that became effective on October 1, 2003 (Section 326 of the USA PATRIOT Act) all financial institutions are required to obtain, verify, record and update information that identifies each person establishing a relationship or opening an account. The parties to this Agreement agree that they will provide to the Collateral Agent/Depositary such information as it may request, from time to time, in order for the Collateral Agent/Depositary to satisfy the requirements of the USA PATRIOT Act, including but not limited to the name, address, tax identification number and other information that will allow it to identify the individual or entity who is establishing the relationship or opening the account and may also ask for formation documents such as articles of incorporation or other identifying documents to be provided

[SIGNATURE PAGES FOLLOW]

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IN WITNESS WHEEREOF, the parties hereto, by their officers duly authorized, intending to be legally bound, have caused this Depositary Agreement to be duly executed and delivered as of the date first above written.

2012 V PPA PROJECT COMPANY, LLC, a
Delaware limited liability company
As Grantor
By:	/s/ William Brockenborough
	Name:
	Title:

[DEPOSITARY AGREEMENT SIGNATURE PAGE]

IN WITNESS WHEREOF, the parties hereto, by their officers duly authorized, intending to be legally bound, have caused this Depositary Agreement to be duly executed and delivered as of the date first above written.

2012 V PPA PROJECT COMPANY, LLC, a
Delaware limited liability company
as Grantor
By:
	Name:
	Title:

PE12GVVC (BLOOM PPA) LTD.,
as Administrative Agent
By:	/s/ Jagdeep Singh Bachher
	Name: Jagdeep Singh Bachher
	Title: Director

DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Depositary
By:	Deutsche Bank National Trust Company
By:
	Name:
	Title:
By:
	Name:
	Title:

[DEPOSITARY AGREEMENT SIGNATURE PAGE]

DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Collateral Agent and Depositary
By: DEUTSCHE BANK NATIONAL TRUST COMPANY
By:	/s/ Wanda Camacho
	Name: Wanda Camacho
	Title: Vice President
By:	/s/ Rodney Gaughan
	Name: Rodney Gaughan
	Title: Vice President

[DEPOSITARY AGREEMENT SIGNATURE PAGE]

EXHIBIT A

to Depositary Agreement

FORM OF ACCOUNT WITHDRAWAL INSTRUCTION

Date: [            ], 201    

[SEE NOTICE ADDRESS ABOVE]

Re: 2012 V PPA PROJECT COMPANY, LLC – Account Withdrawal Instruction

Ladies and Gentlemen:

This Account Withdrawal Instruction is delivered pursuant to the Depositary Agreement, dated as of February 21, 2013 (the “Depositary Agreement”), by and among 2012 V PPA PROJECT COMPANY, LLC, a Delaware limited liability company (“Borrower”), Deutsche Bank Trust Company Americas, as the depositary agent, bank and securities intermediary (in such capacity, “Depositary”) and as collateral agent (in such capacity, “Collateral Agent”) and PE12GVVC (BLOOM PPA) LTD., as administrative agent (in such capacity, “Administrative Agent”). Unless otherwise defined herein or unless the context otherwise requires, terms used in this Account Withdrawal Instruction have the meanings provided in the Depositary Agreement.

In this Account Withdrawal Instruction, Depositary is hereby directed to withdraw funds from the following Accounts and apply such funds as provided herein:

Account from which to
withdraw/transfer Withdrawal/Transfer Date Amount to be withdrawn/
transferred Account/Person to be
Transferred to, including
address or wire transfer
information, as applicable Purpose

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IN WITNESS WHEREOF, this Account Withdrawal Instruction is duly executed and delivered by a duly authorized representative of Administrative Agent as of the date first above written.

PE12GVVC (BLOOM PPA) LTD.,
as Administrative Agent
By:
	Name:
	Title:
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Collateral Agent
By:
	Name:
	Title:
By:
	Name:
	Title:

2

EXHIBIT B

to Depositary Agreement

RULES OF INTERPRETATION

1. The singular includes the plural and the plural includes the singular. The definitions of terms apply equally to the singular and plural forms of the terms defined.

2. The word “or” is not exclusive.

3. A reference to a Governmental Rule includes any amendment or modification to such Governmental Rule (including any successor Governmental Rules and section references to such Governmental Rule shall be construed to refer to any successor sections), and all regulations, rulings and other Governmental Rules promulgated under such Governmental Rule.

4. A reference to a Person includes its permitted successors, permitted replacements and permitted assigns.

5. The words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights.

6. The words “include,” “includes” and “including” are notlimiting.

7. A reference in a document to an Article, Section, Exhibit, Schedule, Annex or Appendix is to the Article, Section, Exhibit, Schedule, Annex or Appendix of such document unless otherwise indicated. Exhibits, Schedules, Annexes or Appendices to any document shall be deemed incorporated by reference in such document. In the event of any conflict between the provisions of this Agreement (exclusive of the Exhibits, Schedules, Annexes and Appendices thereto) and any Exhibit, Schedule, Annex or Appendix thereto, the provisions of this Agreement shall control.

8. References to any document, instrument or agreement (a) shall include all exhibits, schedules and other attachments thereto, (b) shall include all documents, instruments or agreements issued or executed in replacement thereof, and (c) shall mean such document, instrument or agreement, or replacement or predecessor thereto, as amended, amended and restated, modified and supplemented from time to time and in effect at any giventime.

9. The words “hereof,” “herein” and “hereunder” and words of similar import when used in any document shall refer to such document as a whole and not to any particular provision of such document.

10. References to “days” shall mean calendar days, unless the term “Business Days” shall be used.

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11. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The word “will” has the same meaning and effect as the word “shall.”

12. In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including” and the words “to” and “until” each mean “to but excluding.”

13. A reference to a time of day refers to the prevailing time in New York City.

14. If, at any time after the Closing Date, Moody’s or S&P shall change its respective system of classifications, then any Moody’s or S&P “rating” referred to herein shall be considered to be at or above a specified level if it is at or above the new rating which most closely corresponds to the specified level under the old rating system.

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EX-10

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Exhibit 10.53

EXECUTION VERSION

2013B ESA HOLDCO, LLC

a Delaware Limited Liability Company

AMENDED AND RESTATED OPERATING AGREEMENT

Dated as of August 2, 2013

THE SECURITIES (MEMBERSHIP INTERESTS) REPRESENTED BY THIS AGREEMENT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR REGISTERED OR QUALIFIED UNDER ANY SECURITIES OR BLUE SKY LAWS OF ANY STATE OR JURISDICTION. THEREFORE, THE SECURITIES MAY NOT BE SOLD, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED UNTIL A REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR THE APPLICABLE STATE SECURITIES OR BLUE SKY LAWS SHALL HAVE BECOME EFFECTIVE WITH REGARD TO THE PROPOSED TRANSFER OR, IN THE OPINION OF LEGAL COUNSEL ACCEPTABLE TO THE COMPANY, REGISTRATION OR QUALIFICATION UNDER THE SECURITIES ACT OR BLUE SKY LAWS IS NOT REQUIRED IN CONNECTION WITH THE PROPOSED TRANSFER.

2013B ESA HOLDCO, LLC

AMENDED AND RESTATED OPERATING AGREEMENT

TABLE OF CONTENTS

		Page
ARTICLE I DEFINITIONS			1
1.1	Certain Definitions.:		1
1.2	Other Definitional Provisions		16
ARTICLE II THE COMPANY			17
2.1	Continuation of Limited Liability Company		17
2.2	Name		17
2.3	Principal Office		17
2.4	Registered Office; Registered Agent		17
2.5	Purposes		17
2.6	Term		18
2.7	Title to Property		18
2.8	Units; Certificates of Membership Interest; Applicability of Article 8 of UCC		18
ARTICLE III CAPITAL CONTRIBUTIONS			18
3.1	Class A Interests; Capital Contributions of the Class A Members		18
3.2	Class B Interests; Capital Contributions of the Class B Member		19
3.3	Additional Capital Contributions and Payments		19
3.4	No Other Required Capital Contributions		20
3.5	No Right to Return of Capital Contributions		20
ARTICLE IV CAPITAL ACCOUNTS; ALLOCATIONS			20
4.1	Capital Accounts		20
4.2	Profits and Losses		21
4.3	Special Allocations		24
4.4	Curative Allocations		25
4.5	Income Tax Allocations		25
4.6	Other Allocation Rules		26
ARTICLE V DISTRIBUTIONS			27
5.1	Distributions of Available Cash Flow		27
5.2	Limitation		28
5.3	Withholding		28
5.4	Satisfaction of Certain Obligations Under Article XI		29

ARTICLE VI MANAGEMENT		31
6.1	Managing Member	31
6.2	Standard of Care; Required Consents	32
6.3	Removal of Managing Member	37
6.4	Indemnification and Exculpation	38
6.5	Company Reimbursement	38
ARTICLE VII RIGHTS AND RESPONSIBILITIES OF MEMBERS		38
7.1	General	38
7.2	Member Voting Rights	38
7.3	Member Liability	39
7.4	Withdrawal	39
7.5	Member Compensation	42
7.6	Other Ventures	42
7.7	Confidential Information	42
ARTICLE VIII ADMINISTRATIVE AND TAX MATTERS		45
8.1	Intent for Income Tax Purposes	45
8.2	Books and Records	45
8.3	Information and Access Rights	45
8.4	Reports	46
8.5	Permitted Investments	47
8.6	Tax Elections	48
8.7	Tax Matters Member and Company Tax Filings	49
8.8	Financial Accounting	51
8.9	Legend	51
8.10	Representations, Warranties and Covenants of the Class B Member	51
8.11	Representations, Warranties and Covenants of the Class A Member:	53
8.12	Survival	54
8.13	No Breach of Obligations	54
ARTICLE IX TRANSFERS OF INTERESTS; PURCHASE OPTION; FLIP		54
9.1	Transfer and Encumbrances of Membership Interests	54
9.2	Buyout Option	60
9.3	Purchase Option	62
ARTICLE X DISSOLUTION, LIQUIDATION AND TERMINATION		63
10.1	Dissolution	63
10.2	Liquidation and Termination	63
10.3	[Reserved]	65
10.4	Termination	66

ARTICLE XI INDEMNIFICATION		66
11.1	Indemnification of Class A Investor Group by the Class B Member	66
11.2	Brokers	66
11.3	Limitation on Liability	66
11.4	Procedure for Indemnification	67
11.5	Exclusivity	68
11.6	No Right of Contribution	68
11.7	Entire Agreement	68
ARTICLE XII GENERAL PROVISIONS		69
12.1	Offset	69
12.2	Notices	69
12.3	Counterparts	69
12.4	Governing Law and Severability	69
12.5	Entire Agreement	69
12.6	Effect of Waiver or Consent	69
12.7	Amendment or Modification	70
12.8	Binding Effect	70
12.9	Further Assurances	70
12.10	Jurisdiction; Service of Process	70
12.11	Limitation on Liability	70

EXHIBITS

Exhibit A	Capital Contributions Made
Exhibit B	Form of Membership Interest Certificate
Exhibit C	Form of Class A Withdrawal Note
Exhibit D	Form of Quarterly Renewable Energy Certificate
Exhibit E	Form of Renewable Energy Monthly Report

2013B ESA HOLDCO, LLC

AMENDED AND RESTATED OPERATING AGREEMENT

THIS AMENDED AND RESTATED OPERATING AGREEMENT, dated as of August 2, 2013, is made and entered into by and among, FIRSTAR DEVELOPMENT, LLC, a Delaware limited liability company (“Firstar” or the “Class A Equity Investor”), as the Class A Member, and CLEAN TECHNOLOGIES 2013B, LLC, a Delaware limited liability company (the “Class B Equity Investor”), as the Class B Member.

RECITALS

A. 2013B ESA Holdco, LLC, a Delaware limited liability company (the “Company”), was formed pursuant to the Act on February 19, 2013.

B. Prior to the Effective Date of this Agreement, the Class B Equity Investor owned 100% of the membership interests in the Company.

C. Concurrently herewith, pursuant to that certain Equity Capital Contribution Agreement, dated as of August 2, 2013 (as amended, supplemented or otherwise modified from time to time, the “Equity Capital Contribution Agreement”), between the Class A Equity Investor and the Class B Equity Investor, (i) the Class A Equity Investor has made an equity capital contribution to the Company and in consideration therefor has acquired a membership interest specified as a Class A Interest in the Company and is admitted as a Class A Member of the Company pursuant hereto, and (ii) the Class B Equity Investor has made an equity contribution to the Company and in consideration therefor the membership interest in the Company owned by the Class B Equity Investor has been converted into the membership interest specified as the Class B Interest in, and the Class B Equity Investor is hereby designated as the Class B Member of, the Company.

NOW, THEREFORE, in consideration of the premises and the mutual undertakings contained herein, the parties hereto hereby agree, and amend and restate the existing Limited Liability Company Agreement of the Company, dated as of February 19, 2013 (the “Prior LLC Agreement”) in its entirety as follows:

ARTICLE I

DEFINITIONS

1.1 Certain Definitions. Initially capitalized terms not defined in this Agreement shall have the meanings assigned such terms in the Equity Capital Contribution Agreement. The following initially capitalized terms, as and when used in this Agreement, shall have the following meanings:

“Accounts Agreement” means that certain Accounts Agreement, dated as of July 19, 2013, by and among the Facility Company, Silicon Valley Bank, as lender, and The Bank of New York Mellon, as the accounts bank.

“Act” means the Delaware Limited Liability Company Act, 6 Del. Code §§ 18 101 et seq., as amended from time to time, and any successor to such Act.

“Active Person” has the meaning set forth in the definition of “Disqualified Transferee” herein.

“Adjusted Capital Account” means, with respect to any Member, the balance, if any, in the Capital Account established and maintained for such Member, as the same is specially computed as of the end of the Taxable Year after crediting such Member’s Capital Account any amounts which such Member is obligated to restore pursuant to Section 10.3 or is deemed obligated to restore pursuant to the penultimate sentences in Treasury Regulation Section 1.704-2(g)(1) and 1.704-2(i)(5).

“Adjusted Maintenance Reserve Amount” means an amount equal to the Initial Maintenance Reserve Amount as adjusted (A) quarterly (i) through the third quarter following the date that the last Facility achieves Commencement of Operations (as defined in the MESPSA) to reflect (i) a decrease in such amount equal to the amount of the Primary Service Fees (as defined in the MESPSA) paid by the Company pursuant to Section 3.3(e)(ii), and (ii) thereafter, through the fourth anniversary of the date that the last Facility achieves Commencement of Operations, to reflect an increase in such amount equal to [***] per kW per quarter for such period, (B) to reflect a decrease in such amount equal to [***] per kW for parts replacement services performed pursuant to the MESPSA, and (C) on the Maintenance Reserve Account Release Date (as defined in the MESPSA), to reflect a decrease in such amount equal to the Maintenance Reserve Account Release Date Balance (as defined in the MESPSA).

“Advisors” has the meaning set forth in Section 7.7(a).

“Affected Member” has the meaning set forth in Section 9.2(b).

“Agreement” means this Amended and Restated Operating Agreement, as amended, supplemented or restated from time to time pursuant to the provisions hereof.

“Annual Report” means the report delivered pursuant to Section 8.4(a).

“Appraisal Procedure” means within fifteen (15) days of a party invoking the procedure described in this definition the Class A Members and Class B Members shall engage a Qualified Appraiser, mutually acceptable to the Members, to determine the Fair Market Value of the Class A Interests.

“Available Capital Income Cash Flow” means, with respect to any date determination, the Available Cash Flow realized or received in respect of any transaction that corresponds to an item of income or gain (but not loss or deduction) realized by the Company under Code sections 702(a)(1) through (7), including for the avoidance of doubt, the repurchase of a System as provided in any of Sections 3.2(c), 5.7(b), 5.8, 12.3 or 12.7 of the MESPSA.

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“Available Cash Flow” means, with respect to any date of determination, the gross cash receipts from Company and Facility Company operations (including sales and dispositions of Company and Facility Company Assets), insurance payments, warranty payments, cash previously reserved and all Capital Contributions received from Members, in each case during the period beginning on the date the last cash distribution was made to Members and ending on such date of determination, less the portion thereof used to pay, or establish reserves for, all Company and Facility Company expenses (including amounts due and payable to the Class B Member or any Affiliate under the ASA and debt service obligations under the Financing Documents), and Company Reimbursable Expenses, and after payment of all amounts due under any Class A Withdrawal Note.

“Available PPA Termination Cash Flow” means the Available Cash Flow realized or received in respect of a termination of a Power Purchase Agreement by the PPA Customer upon as provided in Section 2.4 of the MESPSA.

“Bid” has the meaning set forth in Section 9.1(d).

“Buyout Event” has the meaning set forth in Section 9.2.

“Buyout Exercise Notice” has the meaning set forth in Section 9.2(c).

“Buyout Price” has the meaning set forth in Section 9.2(d).

“Capital Account” means the capital account established and maintained for a Member pursuant to Section 4.1.

“Capital Contribution” means any cash or the Value of any other property (net of liabilities secured by such property that the Company is considered to assume or take subject to under Code Section 752) that a Member directly or indirectly contributes to the Company pursuant to Article III or has previously contributed to the Company.

“Cash Equivalents” means any of the following having a maturity of not greater than one year from the date of issuance thereof: (a) readily marketable direct obligations of the government of the United States of America or any agency or instrumentality thereof or obligations unconditionally guaranteed by the full faith and credit of the government of the United States of America, (b) insured certificates of deposit of or time deposits with any commercial bank that is a member of the Federal Reserve System, which issues (or the parent of which issues) commercial paper rated as described in clause (c) below, which is organized under the laws of the United States or any State thereof and which has combined capital and surplus of at least $1,000,000,000 or (c) commercial paper issued by any corporation, other than an Affiliate of the Managing Member, organized under the laws of any State of the United States and rated at least “Prime-1” (or the then equivalent grade) by Moody’s Investor Service, Inc. (or any successor thereto) or “A-1” (or the then equivalent grade) by Standard & Poor’s Rating Group, a division of Standard & Poor’s Corporation (or any successor thereto).

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“Certified Public Accountant” means a firm of independent public accountants selected from time to time by the Managing Member and approved with the Consent of the Members. The initial Certified Public Accountant is PricewaterhouseCoopers LLP.

“Change of Member Control” means with respect to any Member, an event (such as a Transfer of voting securities) that causes such Member to cease to be Controlled by such Member’s Member Parent; provided, however, that with respect to a Class A Member or a Class B Member, an event that causes such Member’s Member Parent to be Controlled by another Person shall not constitute a Change of Member Control.

“Claims” means all claims, suits, demands, injunctions, actions, causes of action, assessments, cleanup and remedial obligations, judgments, awards, liabilities, losses (including amounts paid in settlement of claims), damages (including any loss of profits, consequential, punitive, incidental or special damages recovered by any Third Party, but excluding any loss of profits, consequential, punitive, incidental or special damages asserted by any Member or an Affiliate), fines, fees, taxes, penalties, costs and expenses of every kind and character (including litigation costs and reasonable attorneys’ and experts’ fees and expenses, including such fees and expenses at trial and on any appeal).

“Class A Equity Investor” has the meaning set forth in the preamble.

“Class A Flip Point” means January 1 of the calendar year immediately following the year that includes the fifth anniversary of the date the last Facility of the last Tranche achieves Commercial Completion.

“Class A Interest” means a Membership Interest issued pursuant to Section 3.1, which entitles the Holder thereof to receive the distributions of cash and property, allocations of profits and losses and other rights that are accorded Holders of a Class A Interest under this Agreement.

“Class A Investment Balance” means for the Class A Interests, with respect to a Facility, an amount equal to the greater of (a) zero and (b) the balance determined from time to time equal to (i) [***] of the allocable portion of the all Capital Contributions made in respect of that Class A Units for that Facility, minus (ii) [***] of the Qualified Investment for that Facility, minus (iii) the allocable portion of the aggregate cash distributions (including Preferred Distributions) actually made to the Class A Members in respect of that Facility, plus (iv) any ITC Loss Tax Event Liability for that Facility, including any such ITC Loss Tax Event Liability arising from a disposition or cessation of all or any part of the ITC Eligible Property or the Class A Interest under Code Section 50 or Treasury Regulations Sections 1.47-2 or 1.47-6, other than from a Class A ITC Loss Event and except to the extent equivalent Damages have otherwise been paid by the Class B Member as provided herein, which Class A ITC Loss Event occurs, or is to occur, contemporaneously at the time such balance is being determined, plus (v) an amount equal to the product of (1) the Post-Flip Sharing Percentage of the Class A Member, times (2) (A) in the event of a termination of a Power Purchase Agreement as provided in Section 2.4 of the MESPSA for the Facility prior to the Class A Flip Point,

[***] Confidential Treatment Requested

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the excess, if any, of the then Fair Market Value of the Facility over the termination value actually paid by the PPA Customer, (B) in the event of a removal of a System from that Facility as provided in Section 3.2(c) of the MESPSA prior to the Class A Flip Point, the excess, if any, of the Fair Market Value of that System, over the Purchase Price (as defined in the MESPSA) for that System, and (C) in the event of a repurchase of a System from that Facility as provided in any of Sections 5.7(b), 5.8, 12.3 or 12.7 of the MESPSA, prior to the Class A Flip Point, the excess, if any, of the amount set forth in clause (a) of the definition of Residual Value within the MESPSA, over the amount set forth in clause (b) of the definition of Residual Value within the MESPSA, in each case for that System.

“Class A Investor Claim” has the meaning set forth in Section 11.1.

“Class A Investor Group” has the meaning set forth in Section 11.1.

“Class A ITC Loss Event” means an ITC Loss Event that is the result of any of the following: (i) a direct or indirect Transfer of Class A Interests, (ii) the federal income tax classification of the Class A Member or any of its direct or indirect owners (including as a result of the breach of Section 5.12 of the Equity Capital Contribution Agreement), (iii) a change in federal income tax law after the date of the first Initial Funding Date, or (iv) a final determination under a federal income tax audit or administrative or judicial proceeding, to which the Company or the Class A Member is a party, that specifically provides that (A) the Class A Member is not a partner in the Company for federal income tax purposes, (B) for federal income purposes the Company is not classified as a partnership, (C) for federal income tax purposes the Facility Company is not classified as a disregarded entity, or (D) the allocation of items of income, gain, loss, deduction and credit to and among the Class A Members under this Agreement does not have “substantial economic effect” and is not otherwise consistent with the Class A Members’ interests in the Company within the meaning of Code Section 704(b) (for purposes of clarification, this clause (iv)(D) concerns the validity of the allocations and not the amounts that will be allocated or the timing of the allocation), except to the extent such final determination is the result of a breach by a Class B Member, any Affiliate thereof, or the Company of any representations, warranties, covenants made by such Person, or other obligations of such Person, set forth in any Investment Document, or any Principal Facility Document.

“Class A Member” means each Person holding a Class A Interest. As of the Effective Date, the Class A Member means the Class A Equity Investor.

“Class A Partial Redemption” has the meaning set forth in Section 7.4(d).

“Class A Partial Redemption Amount” has the meaning set forth in Section 7.4(d).

“Class A Partial Redemption Event” has the meaning set forth in Section 7.4(d).

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“Class A Partial Redemption Notice” has the meaning set forth in Section 7.4(d).

“Class A Unit” means a unit representing a Class A Interest having the rights, preferences and designations provided for such class in this Agreement.

“Class A Withdrawal” has the meaning set forth in Section 7.4(b).

“Class A Withdrawal Amount” has the meaning set forth in Section 7.4(b)(i).

“Class A Withdrawal Note” has the meaning set forth in Section 7.4(b)(iii).

“Class A Withdrawal Notice” has the meaning set forth in Section 7.4(b).

“Class B Equity Investor” has the meaning set forth in the preamble.

“Class B Interest” means the Membership Interest issued pursuant to Section 3.2, which entitles the Holder thereof to receive distributions of cash and property, allocations of profits and losses and other rights that are accorded Holders of a Class B Interest under this Agreement.

“Class B ITC Loss Event” means an ITC Loss Event that does not arise as a result of either (a) a Class A ITC Loss Event, or (b) a “disposition” or “cessation” as defined in Treasury Regulation 1.47-2 (including as a result of a default or exercise of remedies under the Financing Documents), unless such disposition or cessation is a result of either (i) a breach by a Class B Member, any Affiliate thereof, or the Company of any representations, warranties, covenants made by such Person, or other obligations of such Person, set forth in any Investment Document, or any Principal Facility Document, or any of Article 4, Article 5 (excluding Section 5.2 thereof, other than to the extent any such failure to pay any sums due under the Financing Documents is a result of a breach or event otherwise described within this definition of “Class B ITC Loss Event”), or Article 5 of the Credit Agreement, or (ii) the occurrence of an “Event of Default,” as defined in the Credit Agreement, under any of Sections 8.01(i), 8.01(l) or 8.01(n) of the Credit Agreement, or (iii) the repair, replacement or refurbishment of a Facility (whether or not permitted under, or made in accordance with, the MESPSA).

“Class B Member” means the Person(s) holding a Class B Interest. Initially, and as of the Effective Date, the Class B Member means the Class B Equity Investor.

“Class B Unit” means a unit representing a Class B Interest having the rights, preferences and designations provided for such class in this Agreement.

“Company” has the meaning set forth in the recitals.

“Company Minimum Gain” has the meaning given the term “partnership minimum gain” set forth in Treasury Regulation Section 1.704-2(b)(2) and will be determined as provided in Treasury Regulation Section 1.704-2(d).

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“Company Reimbursable Expenses” means all reasonable Third Party costs and expenses (including legal, accounting and auditing fees) incurred either by the Managing Member on behalf of the Company or the Company on behalf of the Facility Company, in the performance of duties relating to the Company’s or the Facility Company’s activities or business, in accordance with this Agreement.

“Conditional Class A Withdrawal” has the meaning set forth in Section 7.4(c).

“Conditional Class A Withdrawal Amount” has the meaning set forth in Section 7.4(c)(i).

“Conditional Class A Withdrawal Note” has the meaning set forth in Section 7.4(c)(iii).

“Conditional Class A Withdrawal Notice” has the meaning set forth in Section 7.4(c).

“Confidential Information” has the meaning set forth in Section 7.7(a).

“Consent of the Class A Members” means, at any time, the consent or approval of Class A Members who own in the aggregate more than fifty percent (50%) of the Class A Units outstanding at such time.

“Consent of the Class B Members” means, at any time, the consent or approval of Class B Members who own in the aggregate more than fifty percent (50%) of the Class B Units outstanding at such time.

“Consent of the Members” means each of (i) the Consent of the Class A Members and (ii) the Consent of the Class B Members.

“Consistent Return” has the meaning set forth in Section 8.7(c).

“Control”, “Controlled”, and “Controlling” means the possession, directly or indirectly, of any of the following: (i) in the case of a corporation, more than fifty percent (50%) of the outstanding voting securities thereof; (ii) in the case of a limited liability company, partnership, limited partnership or joint venture, the right to more than fifty percent (50%) of the distributions (including liquidating distributions) therefrom; (iii) in the case of a trust or estate, including a business trust, more than fifty percent (50%) of the beneficial interest therein; (iv) in the case of any other entity, more than fifty percent (50%) of the economic or beneficial interest therein; or (v) in the case of any entity, the power or authority, through ownership of voting securities, by contract or otherwise, to exercise a controlling influence over the management of the entity.

“Damages” all claims, actions, causes of action, demands, assessments, losses, damages (including, without limitation the ITC Loss Tax Event Liability), liabilities, judgments, settlements, taxes, penalties, costs, and expenses (including reasonable attorneys’ fees and expenses, including without limitation, such fees and expenses at trial and on any appeal), of any nature whatsoever.

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“Delaware Certificate” means the Certificate of Formation of the Company filed with the Secretary of State of the State of Delaware on February 19, 2013, as amended or restated from time to time.

“Depreciation” means, for each Taxable Year or other period, an amount equal to the depreciation, amortization or other cost recovery deduction allowable with respect to an Asset for such period, except that if the Value of any Asset differs from its adjusted basis for federal income tax purposes at the beginning of such period, Depreciation shall be an amount which bears the same ratio to such beginning Value as the federal income tax depreciation, amortization or other cost recovery deduction for such year or other period bears to such beginning adjusted tax basis; provided, however, that if the federal income tax depreciation, amortization or other cost recovery deduction for such year is zero, Depreciation shall be determined with reference to such beginning Value using any method selected by the Managing Member and reasonably acceptable to the Members.

“Distribution Date” shall mean July 1 and January 1 of each year, commencing with the first such date following the Effective Date.

“Disqualified Transferee” means any Person which is, or whose Affiliate is, then (A) a party adverse in any pending or threatened action, suit or proceeding to the Company or any other Member or an Affiliate thereof, if the Company or such Member shall not have consented (in its sole and absolute discretion) to the Transfer to such Person, (B) with respect to any Transfer of a Class A Interest, directly or indirectly engaged in owning, managing, operating, maintaining or developing facilities utilizing fuel cells for the production of electricity for sale to others (an “Active Person”) except for an Affiliate of an Active Person where such Affiliate of an Active Person is an entity regularly involved in making passive investments in such facilities (a “Passive Investor”) if such Passive Investor has certified in a manner reasonably acceptable to the Class B Member that it has in place procedures to prevent its Affiliates which are Active Persons from acquiring confidential information relating to such passive investments; provided, however, that, for the avoidance of doubt, a Person will not be deemed to be an Active Person solely by virtue of owning an interest in a facility similar to the ownership interest of the Class A Members or (C) a Person to whom a Transfer of Membership Interests would cause an ITC Loss Event.

“Effective Date” means the date of this Agreement.

“Equity Capital Contribution Agreement” has the meaning set forth in the recitals.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended.

“Escrow” has the meaning set forth in Section 5.4(d).

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“Escrow Agent” has the meaning set forth in Section 5.4(d).

“Escrowed Funds” has the meaning set forth in Section 5.4(d)(i).

“Exercise Notice” has the meaning set forth in Section 9.3(b).

“Facility Company” means 2013B ESA Project Company, LLC, a Delaware limited liability company.

“Facility Debt” means non-recourse senior debt of the Facility Company from a lender or group of lenders reasonably satisfactory to Investor.

“Facility Documents” means, collectively, (i) the Principal Facility Documents or any agreement entered into in replacement or substitution of any such agreement and (ii) any other agreement (including, without limitation, any agreement to sell electricity or renewable energy credits) entered into by the Company or the Facility Company after the Effective Date having a term in excess of one (1) year and providing for payments by or to the Company or the Facility Company in excess of [***] per year.

“Fair Market Value” means, with respect to any Asset, the price at which such Asset would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell, and both having reasonable knowledge of the relevant facts, and specifically with respect to the Facility or any Membership Interest in the Company, as determined consistently with Section 4.05 of Revenue Procedure 2007-65, including for the avoidance of doubt with respect to the Class A Interest, taking into account the priority of the payment of Preferred Distributions pursuant to this Agreement. For the avoidance of doubt, in determining the Fair Market Value of the Class A Interests, to the extent the “discounted cash flow” method is used, such cash flows shall take into account the expected timing and amount of any Preferred Distributions.

“Firstar” has the meaning set forth in the preamble.

“Fiscal Year” means the calendar year, except that the initial Fiscal Year of the Company commenced on Effective Date and the final Fiscal Year of the Company shall end on the date on which the Company is terminated under Article X.

“GAAP” means United States generally accepted accounting principles consistently applied.

“Holder” means any Member.

“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.

“Indebtedness” means indebtedness for borrowed money and any capital lease of any property as lessee, but expressly does not include short-term (i.e., less than one year in maturity) trade payables or operating leases incurred in the ordinary course of business.

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“Initial Maintenance Reserve Amount” means an amount equal to [***] per kW for each System that has been Placed in Service (as such term is defined in the MESPSA).

“IRS” means the Internal Revenue Service and any successor Governmental Authority.

“ITC” means investment tax credit allowed by Section 48 of the Code or any successor to such section.

“ITC Loss Event” means either (i) the recapture of all or any portion of the ITC pursuant to Code Section 50(a), or (ii) any disallowance or deferral of, lack of the right to claim, or delay in claiming, all or any portion of the ITC, in each case at the Company level or the level of any individual Class A Member, including by reason of the Qualified Investment not being ITC Eligible Property.

“ITC Loss Tax Event Liability” means any and all federal income tax detriments suffered by the Class A Member or its Affiliates as the result of an ITC Loss Event, determined assuming a 35% federal income tax rate, and including, without limitation, recomputation of federal income tax, loss of a federal income tax depreciation benefit, other changes in distributive share of tax depreciation or taxable income or loss, plus any penalties, interest or additions to tax relating thereto. For the avoidance of doubt, for purposes of the definition of “Class A Investment Balance herein”, the ITC Loss Tax Event Liability shall be subject to the provisions of Section 11.3(b) herein (treating such detriments as Damages).

“Licenses and Permits” means any filings with, and licenses, permits, approvals and authorizations from, any Governmental Authority, including Environmental Permits.

“Liquidating Events” has the meaning set forth in Section 10.1(a).

“Maintenance Reserve Account” means that certain account, established in the name of the Company, which account shall be used to maintain the Initial Maintenance Reserve Amount as adjusted from time to time to equal the Adjusted Maintenance Reserve Amount.

“Managing Member” means a Member appointed by the Members pursuant to Article VI to manage the affairs of the Company on their behalf and any other Person hereafter appointed as a successor Managing Member of the Company as provided in Article VI. Pursuant to its appointment by the Members in Section 6.1, the Class B Equity Investor shall be the initial Managing Member of the Company.

“Member” means those Persons who execute the signature page of this Agreement or otherwise agree to be bound hereby and are admitted to the Company as Members pursuant to this Agreement, excluding any Person (i) having solely the status of an assignee or (ii) that has ceased to be a Member.

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“Member Parent” means, with respect to a Member, the company or companies, if any, that directly own and Control such Member on the Effective Date or, if applicable, from and after the date of a Change of Member Control in accordance with Section 9.1(b)(iv).

“Member Party” means each Member and its officers, directors, shareholders, Affiliates, employees and agents.

“Member Nonrecourse Debt” has the meaning given the term “partner nonrecourse debt” in Treasury Regulation Section 1.704-2(b)(4).

“Member Nonrecourse Debt Minimum Gain” has the meaning given the term “partner nonrecourse debt minimum gain” set forth in Treasury Regulation Section 1.704-2(i)(2), and will be computed as provided in Treasury Regulation Section 1.704-2(i)(3).

“Member Nonrecourse Deductions” an amount, with respect to each Member Nonrecourse Debt, equal to the Company Minimum Gain that would result if such Member Nonrecourse Debt were treated as a Nonrecourse Liability, determined in accordance with Treasury Regulation Section 1.704-2(i)(3).

“Membership Interest” as to any Member means the entire limited liability company interest and rights of that Member in the Company, including, without limitation, its right to a share of the profits, losses, deductions and credits of the Company and its right to a distributive share of the Assets of the Company in accordance with the provisions hereof. Membership Interests shall consist of Class A Interests and Class B Interests, each of which shall constitute a separate class of limited liability company interests, but shall not constitute a “series” for purposes of Section 18-215 of the Act.

“Minimum Profits Distribution Amount” means [***]

“Moody’s” means Moody’s Investor Service, or any successor entity.

“Nonrecourse Deductions” has the meaning given such term in Treasury Regulation Sections 1.704-2(b)(1) and 1.704-2(c).

“Nonrecourse Liability” has the meaning given such term in Treasury Regulation Section 1.704-2(b)(3).

“Obligations” has the meaning given to such term in the Credit Agreement (as defined in the Financing Documents).

“Passive Investor” has the meaning set forth in the definition of “Disqualified Transferee” herein.

“Permitted Investment” has the meaning given to such term in Section 8.5.

[***] Confidential Treatment Requested

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“Post-Flip Sharing Percentages” means (a) for the Class A Members as a group, 4.95% and (b) for the Class B Members as a group, 95.05%.

“Preferred Distribution” means a semi-annual distribution to the Class A Member (pro rated for periods of less than a full Semi-Annual Period) of an amount equal to one-half of 2.0% of the paid-in Investor Initial Funding Date Contributions and Investor True Up Funding Contributions beginning at the end of the first Semi-Annual Period after the Effective Date and ending at the Class A Flip Point. For the avoidance of doubt, the amount of the paid-in Investor Initial Funding Date Contributions and Investor True Up Funding Contributions shall not include Transaction Expenses paid by the Investor pursuant to Section 2.2(a) and 2.5(a) of the Equity Capital Contribution Agreement.

“Prior LLC Agreement” has the meaning set forth in the recitals.

“Profits” and “Losses” means, for each Taxable Year or other period, an amount equal to the Company’s taxable income or loss for such Taxable Year or period, determined in accordance with Code Section 703(a) (for this purpose, all items of income, gain, loss, or deduction required to be stated separately pursuant to Code Section 703(a)(1) shall be included in taxable income or loss), with the following adjustments:

(i) Any income of the Company that is exempt from federal income tax and not otherwise taken into account in computing Profits and Losses pursuant to this definition shall be added to such taxable income or loss;

(ii) Any expenditures of the Company described in Code Section 705(a)(2)(B) or treated as Code Section 705(a)(2)(B) expenditures pursuant to Treasury Regulation Section 1.704 1(b)(2)(iv)(i), and not otherwise taken into account in computing Profits and Losses pursuant to this definition, shall be subtracted from such taxable income or loss;

(iii) In the event the Value of any Company Asset is adjusted pursuant to subsections (ii) or (iii) in the definition of “Value”, the amount of such adjustment shall be taken into account as gain or loss from the disposition of such Asset for purposes of computing Profits or Losses;

(iv) Gain or loss resulting from any disposition of Company property with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the Value of the property disposed of, notwithstanding that the adjusted tax basis of such property differs from its Value;

(v) In lieu of the depreciation, amortization, and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for such Taxable Year or other period as determined in accordance with the definition of Depreciation;

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(vi) To the extent an adjustment to the adjusted tax basis of any Company Asset pursuant to Code Section 734(b) is required, pursuant to Treasury Regulation Section 1.704-(b)(2)(iv)(m)(4), to be taken into account in determining Capital Accounts as a result of a distribution other than in liquidation of a Member’s interest in the Company, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the Asset) or loss (if the adjustment decreases such basis) from the disposition of such Asset and shall be taken into account for purposes of computing Profits or Losses; and

(vii) Notwithstanding any other provision of this definition, any items that are specially allocated pursuant to Sections 4.3, 4.4, 4.5 and 4.6 shall not be taken into account in computing Profits or Losses (i.e., such items of income and gain will otherwise be subtracted from, and such items of loss and deduction will otherwise be added back to, “Profits” or “Losses”).

“Purchase Option” has the meaning set forth in Section 9.3(a).

“Purchase Option Date” has the meaning set forth in Section 9.3(b).

“Purchase Price” means an amount (payable in United States Dollars) equal to the greater of (i) the Fair Market Value of the Class A Interests as of the exercise date, as determined under the Appraisal Procedure, (ii) the sum of (a) any unpaid Preferred Distributions (whether or not then-accrued), as of the relevant Purchase Option Date, and (b) [***]; provided, however, that to the extent attributable to any Facilities for which an ITC Loss Event has occurred, other than from a Class A ITC Loss Event, and for which no Damages have been paid by the Class B Member as provided herein, the amount paid attributable to such Facilities shall not be less than the Class A Investment Balance.

“Purchasing Member” has the meaning set forth in Section 9.2(e).

“Qualified Appraiser” means a nationally recognized third-party appraiser which shall (i) be qualified to appraise independent fuel cell electric generating businesses and/or experienced in such businesses in the general geographic region of the Facilities, (ii) have been engaged in the appraisal or business valuation and consulting business for a period of not less than five years, and (iii) not be associated with any Member or any Affiliate thereof.

“Quarterly Renewable Energy Certificate” means the compliance certificate delivered pursuant to Section 8.4(f) and substantially in the form of Exhibit D attached hereto.

“Regulated Holder” means any holder of the Company’s Securities that is (or that is a Subsidiary of a bank holding company that is) subject to the various provisions of Regulation Y of the Board of Governors of the Federal Reserve Systems, 12 C.F.R., Part 225 (or any successor to Regulation Y).

[***] Confidential Treatment Requested

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“Regulatory Allocations” has the meaning set forth in Section 4.4.

“Regulatory Problem” means (i) any set of facts or circumstances wherein it has been asserted by any Governmental Authority, including any governmental regulatory agency (or a Class A Member reasonably believes based on advice of its regulatory counsel or regulators that there is a material risk of such assertion) that such Person (or any bank holding company or other regulated bank entity that controls such Person) is not entitled to hold, or exercise any material right with respect to, all or any portion of the Membership Interests of the Company which such Person holds or (ii) when such Person and its Affiliates would own, control or have power (including voting rights) over a greater quantity of Membership Interests of the Company than is permitted under any law or regulation or any requirement of any Governmental Authority applicable to such Person or to which such Person is subject.

“Renewable Energy Monthly Report” means a report delivered pursuant to Section 8.4(g) and substantially in the form of Exhibit E attached hereto.

“Representatives” has the meaning set forth in Section 7.7(a).

“S&P” means Standard & Poor’s Ratings Group, a division of McGraw Hill, Inc., or any successor entity.

“Securities” with respect to any Person, such Person’s capital stock or limited liability company interests or any options, warrants or other Securities which are directly or indirectly convertible into, or exercisable or exchangeable for, such Person’s capital stock or limited liability company interests (whether or not such derivative Securities are issued by the Company). Whenever a reference herein to Securities refers to any derivative Securities, the rights of an Equity Investor shall apply to such derivative Securities and all underlying Securities directly or indirectly issuable upon conversion, exchange or exercise of such derivative Securities.

“Securities Act” means the Securities Act of 1933 or any successor statute, as amended from time to time.

“Semi-Annual Period” means the six-month periods ending each July 1 and January 1; provided that the first Semi-Annual Period shall commence on the Effective Date and end on January 1, 2014.

“Subsidiary” means, with respect to any Person, any corporation, partnership, limited liability company, joint venture or other entity of which such Person (either alone or through or together with any other Person pursuant to any agreement, arrangement, contract or other commitment) owns, directly or indirectly, 50% or more of the stock or other equity interests the holders of which are generally entitled to vote for the election of the board of directors or other governing body of such corporation or other legal entity.

“Tax Information” has the meaning set forth in Section 7.7(b).

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“Tax Matters Member” has the meaning set forth in Section 8.7(a).

“Tax Return” has the meaning set forth in Section 8.7(c).

“Taxable Year” means the taxable year of the Company for federal income tax purposes.

“Terminated Member” has the meaning set forth in Section 9.2(h).

“Third Party” means a Person other than a Member or an Affiliate of a Member.

“Third Party Payment” has the meaning set forth in Section 5.4(b).

“Transfer” means, as to any Asset (including, without limitation, the Units), a sale, assignment, conveyance, gift, exchange, lease or other disposition or transfer of such Asset, whether effected voluntarily, involuntarily or by operation of Applicable Law (including, a merger, conversion or consolidation in which the Person owning such Asset is not the surviving entity).

“Transfer Notice” has the meaning set forth in Section 9.1(d).

“Transferee” means a Person to which a Transfer is made.

“Transferring Member” means a Person making a Transfer.

“Treasury Regulations” means the regulations promulgated under the Code by the United States Department of Treasury, as such regulations may be amended from time to time. All references herein to specific sections of the regulations shall be deemed also to refer to any corresponding provisions of succeeding regulations, and any reference to temporary regulations shall be deemed also to refer to any corresponding provisions of final regulations.

“True Up Funding Termination Date” means December 31, 2013.

“Uniform Commercial Code” means the Uniform Commercial Code as in effect from time to time in the States of Delaware and New York.

“Units” means each of the Class A Units and Class B Units. Upon a Transfer by any Member in accordance with the provisions of this Agreement of any portion of such Member’s Membership Interest, the assignee shall receive from the Transferring Member a number of Units of the relevant class equal to the percentage of the Membership Interest so Transferred multiplied by the total number of Units owned by the Transferring Member immediately prior to the Transfer.

“Value” means, with respect to any Asset of the Company, such Asset’s adjusted basis for federal income tax purposes, except as follows:

(i) The initial Value of any Asset contributed by a Member to the Company shall be the gross Fair Market Value of such Assets, as agreed to by the Members; provided, that the initial Value of the Assets contributed to the Company pursuant to Section 3.2 shall be the Appraised Value of Assets;

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(ii) The Value of all Assets of the Company shall be adjusted to equal their respective gross Fair Market Values, as determined by the Members, as provided within Treasury Regulation Section 1.704-1(b)(2)(iv)(f); provided, however, that any such adjustments (other than pursuant to the liquidation (as defined for purposes therein) of the Company) shall be made only if the Managing Member reasonably determines, with the Consent of the Members, that such adjustments are necessary or appropriate to reflect the relative economic interests of the Members in the Company; provided, further, however, that no such adjustments shall be made upon any Capital Contribution made pursuant to Section 3.3(a) or (b) hereof;

(iii) The Value of any Asset distributed to any Member shall be the gross Fair Market Value of such Asset on the date of distribution (taking Code Section 7701(g) into account), as the Managing Member shall reasonably determine, with the Consent of the Members;

(iv) The Value of Company Assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such Assets pursuant to Code Section 734(b) or Code Section 743(b), but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m) (consistent with subparagraph (vi) of the definition of “Profits” and “Losses” and Section 4.3(f)); provided, however, that the Value shall not be adjusted pursuant to this clause (iv) to the extent the Members determine that an adjustment pursuant to clause (ii) of this definition is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this clause (iv); and

(v) If the Value of an Asset has been determined or adjusted pursuant to clause (i), (ii) or (iv) of this definition, such Value shall thereafter be adjusted by the Depreciation taken into account with respect to such Asset for purposes of computing Profits and Losses.

1.2 Other Definitional Provisions

(a) Construction. As used herein, singular shall include the plural, the masculine gender shall include the feminine and neuter, feminine gender shall include the masculine and neuter and the neuter gender shall include the masculine and feminine unless the content otherwise indicates.

(b) References. References to Articles and Sections are intended to refer to Articles and Sections of this Agreement, and all references to Exhibits and Schedules are intended to refer to Exhibits and Schedules attached to this Agreement, each of which is made a part of this Agreement for all purposes. Information contained in any Schedule shall be deemed contained in each and every other schedule without requiring repetition thereof. The term “including” means

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“including, without limitation.” Any date specified for action that is not a Business Day shall mean the first Business Day after such date. Any reference to a Person shall be deemed to include such Person’s permitted successors and assigns. Any reference to any document or documents shall be deemed to refer to such document or documents as amended, amended and restated, modified, supplemented or replaced from time to time. Whenever a Person is to determine that something is “satisfactory to,” “acceptable to,” or “to the satisfaction of” such Person, the determination may not be made in bad faith.

ARTICLE II

THE COMPANY

2.1 Continuation of Limited Liability Company. The parties hereto hereby continue the Company formed on February 19, 2013, as a limited liability company pursuant to the Act. The rights and obligations of the Members shall be as provided in the Act, except as otherwise expressly provided herein. The Managing Member shall from time to time execute or cause to be executed all such certificates, instruments and other documents, or cause to be done all such filings, as the Managing Member may deem necessary or appropriate to operate, continue or terminate the Company as a limited liability company under the laws of the State of Delaware and to qualify the Company to do business in such states where such qualification is necessary or desirable.

2.2 Name. The name of the Company is, and the business of the Company shall continue to be conducted under the name of 2013B ESA Holdco, LLC or such other name or names as the Managing Member may designate from time to time, with the Consent of the Members. The Managing Member shall take any action that it determines is required to comply with the Act, assumed name act, fictitious name act, or similar statute in effect in each jurisdiction or political subdivision in which the Company proposes to do business and the Members agree to execute any documents requested by the Managing Member in connection with any such action.

2.3 Principal Office. The Company shall maintain a principal office which shall initially be located at the Class B Equity Investor’s principal place of business, located at 1299 Orleans Drive, Sunnyvale, CA 94089. The Managing Member may change the principal office of the Company from time to time upon written notice to the Members.

2.4 Registered Office; Registered Agent. The name of the registered agent of the Company in the State of Delaware at such address is Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, DE 19808. The address of the Company’s registered office in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, DE 19808.

2.5 Purposes. The purpose of the Company is to own the Facility Company, which will develop, own, operate, maintain and repair the Facilities, for the purpose of producing electricity; to cause the Facility Company to sell electricity and renewable energy credits produced by the Facilities; to enter into, comply with, perform its obligations and enforce its rights, and cause the Facility Company to enter into, comply with, perform their obligations and enforce their rights, under this Agreement and the Facility Documents; and to engage in and

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perform any and all activities necessary, incidental, related or desirable to allow the Facility Company, to produce and sell electricity and renewable energy credits from the Facilities. The Company shall not engage in any activity or own any Assets that are not directly related to the Company’s purpose as set forth in this Section 2.5. The Company shall not allow the Facility Company to engage in any activity or own any Assets other than as required in connection with the Facility Company’s ownership and operation of the Facilities.

2.6 Term. The Company shall continue in existence until December 31, 2071 unless earlier dissolved and terminated in accordance with this Agreement.

2.7 Title to Property. Title to Company or Facility Company Assets, as applicable, whether tangible or intangible, shall be held in the name of the Company or the Facility Company, as applicable, and no Member, individually, shall have title to or any interest in such property by reason of being a Member. Membership Interests of each Member shall be personal property for all purposes.

2.8 Units; Certificates of Membership Interest; Applicability of Article 8 of UCC. Membership Interests shall be represented by Units, divided into Class A Units (in the case of Class A Interests) and Class B Units (in the case of Class B Interests). The Membership Interests represented by Class A Units and Class B Units shall have the respective rights, preferences and designations ascribed to such Units in this Agreement. The Members hereby specify, acknowledge and agree that all Units (and the Membership Interests represented thereby) are securities governed by Article 8 and all other provisions of the Uniform Commercial Code, and pursuant to the terms of Section 8-103(c) of the Uniform Commercial Code, such interests shall be “securities” for all purposes under such Article 8 and under all other provisions of the Uniform Commercial Code. All Units (and the Membership Interests represented thereby) shall be represented by certificates substantially in the form attached hereto as Exhibit B, shall be recorded in a register thereof maintained by the Company, and shall be subject to such rules for the issuance thereof in compliance with this Agreement, as the Managing Member may from time to time determine.

ARTICLE III

CAPITAL CONTRIBUTIONS AND PAYMENTS

3.1 Class A Interests; Capital Contributions of the Class A Members. On the Effective Date and each Initial Funding Date thereafter, Firstar shall make the Investor Initial Funding Contribution to be made by it with respect to the applicable Tranche pursuant to the terms and conditions set forth in the Equity Capital Contribution Agreement. In consideration of such Investor Initial Funding Contributions and the Investor True Up Funding Contributions to be made by the Investor pursuant to the Equity Capital Contribution Agreement, on the Effective Date Firstar shall be issued Class A Units in the amount set forth opposite its name in Exhibit A and be admitted to the Company as a Class A Member. The Class A Members shall be entitled to the allocations, distributions and other rights as are prescribed for the Class A Members in this Agreement. Each Class A Member’s Capital Account balance as of the Effective Date and each Initial Funding Date thereafter with respect to its Membership Interest shall be as indicated on Exhibit A hereto.

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3.2 Class B Interests; Capital Contributions of the Class B Member. On the Effective Date and each Initial Funding Date thereafter, the Class B Member shall make the Class B Member Initial Funding Date Contribution to be made by it with respect to the applicable Tranche pursuant to the terms and conditions set forth in the Equity Capital Contribution Agreement. In addition, the Class B Member shall hold Class B Units in the amount set forth opposite its name in Exhibit A. The Class B Member shall be entitled to the allocations, distributions and other rights as are prescribed for the Class B Member in this Agreement. The Class B Member’s additions to its Capital Account as of the Effective Date and each Initial Funding Date thereafter (and the Class B Member’s Capital Account as of the Effective Date and each Initial Funding Date thereafter) are shown on Exhibit A hereto, which amounts include the Value of property contributed by the Class B Member to the Company prior to and on such dates.

3.3 Additional Capital Contributions and Payments.

(a) On each True Up Funding Date, the Class A Members shall make their respective Capital Contributions to the Company with respect to the applicable Tranche pursuant to the terms and conditions of the Equity Capital Contribution Agreement.

(b) On each True Up Funding Date, the Class B Member shall make its Capital Contribution to the Company and deposit the Initial Maintenance Reserve Amount in the Maintenance Reserve Account with respect to the applicable Tranche pursuant to the terms and conditions of the Equity Capital Contribution Agreement.

(c) The Company shall apply the True Up Funding Date Contributions set forth in clauses (a) and (b) above in accordance with Section 2.6 of the Equity Capital Contribution Agreement, and each Member’s Capital Account shall be adjusted in accordance with Section 4.1

(d) On each Distribution Date prior to the Class A Flip Point, following the deposit of funds by the Facility Company into the Maintenance Reserve Account pursuant to the terms of the Accounts Agreement, the Class B Member shall make a Capital Contribution to the Company for deposit by the Company in the Maintenance Reserve Account in an amount equal to any shortfall in the amount otherwise available to fund and maintain the Adjusted Maintenance Reserve Amount in the Maintenance Reserve Account as of that Distribution Date, except to the extent that such shortfall results from a payment default by a PPA Customer under a Power Purchase Agreement.

(e) The Company shall pay, on behalf of the Facility Company, from funds in the Maintenance Reserve Account, (i) any invoices relating to stack replacements delivered by the Seller under the MESPSA, promptly following submission of such invoices to the Company by the Facility Company, (ii) the amount of the Primary Service Fees (as defined in the MESPSA) to be paid by the Facility Company with respect to each Facility through the first three quarters following the date that such Facility is Placed in Service (as defined in the MESPSA) and (iii) to the extent any funds remain in the Maintenance Reserve Account, the invoice delivered by the Seller under the MESPSA in connection with the Maintenance Reserve Account Release Date (as defined in the MESPSA), promptly following submission of such invoice to the Company by the Facility Company.

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3.4 No Other Required Capital Contributions. Except as provided in Sections 3.3, 3.6 and 5.4(b), no Member shall be obligated to make Capital Contributions in excess of the amount of such Member’s required Capital Contribution made on the Effective Date or any additional Initial Funding Date or True Up Funding Date thereafter.

3.5 No Right to Return of Capital Contributions. Except as otherwise provided in this Agreement, no Member may require a return of its Capital Contributions or the payment of interest thereon from the Company or from another Member.

3.6 Class B Member Capital Contributions in Excess of Appraised Value. Notwithstanding anything else to the contrary within this Agreement or the Equity Capital Contribution Agreement, in the event that the Fair Market Value of Facilities, as determined pursuant to a Subsequent Facility Appraisal, is less than the Purchase Price for such Facilities as determined under the MESPSA, then for purposes of this Agreement:

(a) The portion of the Initial Funding Date Contributions and True Up Funding Date Contributions of the Class B Member equal to such excess shall not be treated as a Capital Contributions made by the Class B Member for any purpose under this Agreement, and any return of all or any portion of such amount pursuant to Section 5.1(b) shall not be treated as a distribution, including, in each case, for purposes of calculating and maintaining Capital Accounts.

(b) The Company shall not treat any such excess amount as having been paid for, or creating any tax basis in, any Facility or another other asset for federal income tax purposes.

(c) The Company shall not take any Depreciation in respect of that excess amount.

ARTICLE IV

CAPITAL ACCOUNTS; ALLOCATIONS

4.1 Capital Accounts. The Company shall maintain for each Member a separate Capital Account in accordance with the rules of Treasury Regulation Section 1.704-l(b)(2)(iv). Each Member’s Capital Account shall be maintained in accordance with the following provisions:

(a) To each Member’s Capital Account there shall be credited the Member’s Capital Contributions, such Member’s distributive share of Profits and items of income and gain under Section 4.2 and any items in the nature of income or gain which are specially allocated to the Member pursuant to Section 4.3, Section 4.4 and Section 10.2(a) and the amount of any Company liabilities assumed by the Member or which are secured by any Company Asset distributed to such Member.

(b) To each Member’s Capital Account there shall be debited the amount of cash and the Value of any Company Asset distributed to such Member pursuant to any provision of this Agreement or the Equity Capital Contribution Agreement, such Member’s distributive

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share of Losses and items or loss and deduction under Section 4.2 and any items of loss and deduction which are specially allocated to the Member pursuant to Section 4.3, Section 4.4 and Section 10.2(a) and the amount of any liabilities of such Member assumed by the Company or which are secured by any property contributed by such Member to the Company.

(c) In determining the amount of any liability for purposes of the foregoing subsections (a) or (b), there shall be taken into account Code Section 752(c) and any other applicable provisions of the Code and the Treasury Regulations.

(d) In the event any Membership Interest in the Company is transferred in accordance with the terms of this Agreement, the Transferee shall succeed to the Capital Account of the transferor to the extent it relates to the transferred Membership Interest.

This Section 4.1 and the other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Treasury Regulation Section 1.704-1(b) and 1.704-2, and will be interpreted and applied in a manner consistent with such Treasury Regulations. The Managing Member also shall make any adjustments that are necessary or appropriate to maintain equality between the Capital Accounts of the Members and the amount of capital reflected on the Company’s balance sheet, as computed for book purposes, in accordance with Treasury Regulation Section 1.704-1(b)(2)(iv)(q).

4.2 Profits and Losses. For purposes of maintaining Capital Accounts, after making the allocations provided under Section 4.3, all items of Company income, loss, gain, deduction and credit for any Fiscal Year will be allocated among the Members as follows

(a) General Allocations. Except as provided in the following subsections (b) through (d) of this Section 4.2, Profits and Losses and constituent items of Company income, gain, loss, and deduction thereof, shall be allocated among the Members for each Fiscal Year or part of a Fiscal Year as follows:

(i) For each Fiscal Year of the Company or portion thereof that ends on or before the first full Fiscal Year of the Company, 99% to the Class A Members, pro rata according to their respective Class A Units and 1% to the Class B Members, pro rata according to their respective Class B Units; and

(ii) Subject to Section 4.2(b), for each Fiscal Year of the Company or portion thereof that ends after the first full Fiscal Year of the Company, to the Members as necessary to produce, as nearly as possible, an Adjusted Capital Account balance for each Member immediately following the end of that Fiscal Year, after adjusting their Capital Accounts for the items described in (4), (5) and (6) of Treasury Regulation section 1.704-1(b)(2)(ii)(d), to equal the amount of hypothetical Available Cash that would be distributed to such Member if (x) each Company Asset were sold immediately after the end of such Fiscal Year or portion thereof for an amount equal to the sum of (i) the Value of the Asset at such time (for the avoidance of doubt without making any adjustment to such Values at such time pursuant to clause (ii) of the definition of “Value” herein), plus (ii) the Company Minimum Gain and Member Nonrecourse Debt Minimum

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Gain to which the asset is subject at such time, plus (iii) the amount of the basis adjustments that would be made in respect of the Membership Interests pursuant to Code section 50(c) (to the extent not already taken into account pursuant to the Company Minimum Gain under clause (ii)), (y) the Company immediately paid all its remaining liabilities, and (z) the Company liquidated.

(b) Loss Limitation. Except as provided in the following subsections (c) and (d) of this Section 4.2, if, at the end of any for any Fiscal Year of the Company or portion thereof, the Adjusted Capital Account balance of the Class B Members is less than the remaining amount distributable in the future to the Class B Members under Sections 5.1(a)(i) and (b)(i) because Losses (or items of loss and deduction) for any Fiscal Year of the Company or portion thereof could not be allocated to the Class A Members without causing them to have a deficit in their Adjusted Capital Account balances, and consequently such Losses (or items of loss or deduction) were instead allocated to the Class B Members, then any Profits (and items of income or gain) that would otherwise be allocated to the Class A Member shall instead be allocated to the Class B Member until the aggregate amount of such Profits (or items of income or gain) so allocated for all periods under this Section 4.2(b) equals the aggregate amount of such Losses (or items of loss or deduction) so allocated to the Class B Member for any Fiscal Years of the Company or portion thereof.

(c) Items in Connection with Liquidation. Except as provided in the following subsections (d) through (e) of this Section 4.2, Profits and Losses and any other items of income, gain, loss or deduction, shall be subject to any special allocation to be made pursuant to Section 10.2(a)(v).

(d) Items in Connection with Class A Withdrawal, Conditional Class A Withdrawal, or Class A Partial Redemption.

(i) Upon a Class A Withdrawal or a Conditional Class A Withdrawal, Company items of income, gain, loss or deduction and credits for the Taxable Year in which the withdrawal occurs (and, if necessary subsequent Taxable Years) shall be specially allocated, first, so as to cause the Capital Account balance of the Class A Members (after adding back the Class A Member’s distributive share of Company Minimum Gain and Member Nonrecourse Debt Minimum Gain) to equal the Class A Withdrawal Amount or the Conditional Class A Withdrawal Amount, as applicable. For the period beginning after the Class A Withdrawal of the Conditional Class A Withdrawal and all subsequent Taxable Years, any interest accrued on any Class A Withdrawal Note shall be treated as guaranteed payments under Code section 707(c), any other amounts distributed or paid to the Class A Member as the Class A Withdrawal Amount or principal on the Class A Withdrawal Note shall be treated as payments under Code section 736(b), and any subsequent Company items of income, gain, loss and deduction shall be allocated 100% to the Class B Members.

(ii) Upon a Class A Partial Redemption, Company items of income or gain that are described in Code sections 702(a)(1) through (7), shall be for the Taxable Year in which the partial withdrawal occurs (and, if necessary

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subsequent Taxable Years) shall be specially allocated, so as to cause the Adjusted Capital Account balance of the Class A Members to equal at least the Class A Investment Balance in respect of the applicable Company Assets for which the Class B ITC Loss Event occurred. For the period beginning after the Class A Partial Redemption and all subsequent Taxable Years, any excess of the Available Cash Flow paid under Section 7.4(d) in respect of the partial redemption of the Class A Interest subject to the Class A Partial Redemption over the Adjusted Capital Account balance of the Class A Members in the Class A Interest so redeemed shall be treated as a guaranteed payment under Code section 707(c), any other amounts distributed or paid to the Class A Member shall be treated as a distribution under Code section 731(a) and any subsequent Company items of income, gain, loss and deduction in respect of the applicable Company Assets for which the Class A Partial Redemption is made, shall be allocated 100% to the Class B Members.

(e) Allocation of ITC. It is the intention of the Members that both (i) the allocations provided in Sections 4.2(a)(i) constitute, for purposes of Treasury Regulations Section 1.46-3(f)(2)(i), the ratio in which the Members divide the general profits of the Company (that is, the taxable income of the partnership as described in Code Section 702(a)(8)) regardless of whether the Company has a profit or a loss for its Taxable Year during which the ITC Eligible Property is placed in service for federal income tax purposes, (ii) any temporary allocations made pursuant to Section 4.2(b) serve only to restore the original economic profit and loss arrangement, while maintaining the requirement for such allocation to be respected under Treasury Regulations Section 1.704-1(b)(3)(iii), and therefore, in the aggregate, any such allocations do not reduce the allocation of the general profits to the Class A Members for purposes of Treasury Regulation Section 1.47-6(a)(2)(i)(b), and (iii) accordingly, the relative shares of the Class A Members and the Class B Members of the basis of ITC Eligible Property for purposes of Treasury Regulation Section 1.47-3(f)(2)(i) is 99% to 1%. Further, it is the intention of the Members that, for purposes of Treasury Regulation Section 1.47-6(a)(2)(i)(b), the allocations provided in Sections 4.2(a) through (d) for Fiscal Years or portions thereof beginning after the Class A Flip Point shall not constitute a reduction in the Class A Members’ interest in the general profits of the Company (that is, the taxable income of the Company as described in Code Section 702(a)(8)) below two-thirds of either the Class A Members’ proportionate interest in the general profits of the Company for the Taxable Year in which the ITC Eligible Property was placed in service for federal income tax purposes before the close of the “estimated useful life” of such ITC Eligible Property (treating the “estimated useful life” of the ITC Eligible Property as ending not earlier than the end of the fifth anniversary of its placed in service date for purposes of Code Section 168).

(f) Guaranteed Payments. 

(i) For each Taxable Year for which the Company has a Loss, the Company shall accrue for such Taxable Year, as a guaranteed payment for the use of capital of the Class A Members under Code section 707(c), the amount of the Preferred Distribution to be made to the Class a Members for such Taxable Year.

(ii) For the period beginning after the Class A Withdrawal or the Class A Partial Redemption and all subsequent Taxable Years, any earnings accrued on any Class A Withdrawal Amount or Class A Partial Redemption Amount shall be treated as a guaranteed payment of the use of the capital of the Class A Members under Code section 707(c), and any other amounts distributed or paid to the Class A Members as the Class A Withdrawal Amount or Class A Partial Redemption Amount shall be treated as payments under Code section 736(b).

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4.3 Special Allocations. The following special allocations shall be made in the following order:

(a) Company Minimum Gain Chargeback. Notwithstanding the other provisions of this Article IV, except as provided in Treasury Regulation Section 1.704-2(f), if there is a net decrease in Company Minimum Gain during any Taxable Year, each Member shall be specially allocated items of Company income and gain for such Taxable Year (and, if necessary, subsequent Taxable Years) in an amount equal to such Member’s share of the net decrease in Company Minimum Gain, determined in accordance with Treasury Regulation Section 1.704-2(g). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Treasury Regulation Sections 1.704-2(f)(6) and 1.704-2(j)(2). This Section 4.3(a) is intended to comply with the minimum gain chargeback requirement in Treasury Regulation Section 1.704-2(f) and shall be interpreted consistently therewith.

(b) Chargeback of Minimum Gain Attributable to Member Nonrecourse Debt. Notwithstanding the other provisions of this Article IV, except as provided in Treasury Regulation Section 1.704-2(i)(4), if there is a net decrease in Member Nonrecourse Debt Minimum Gain attributable to a Member Nonrecourse Debt during any Taxable Year, each Member who has a share of the Member Nonrecourse Debt Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Treasury Regulation Section 1.704-2(i)(5), shall be specially allocated items of Company income and gain for such Taxable Year (and, if necessary, subsequent Taxable Years) in an amount equal to such Member’s share of the net decrease in Member Nonrecourse Debt, determined in accordance with Treasury Regulation Section 1.704-2(i)(4). Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with Treasury Regulation Sections 1.704-2(i)(4) and 1.704-2(j)(2). This Section 4.3(b) is intended to comply with the partner nonrecourse debt minimum gain chargeback requirement in Treasury Regulation Section 1.704-2(i)(4) and shall be interpreted consistently therewith.

(c) [Intentionally Omitted].

(d) [Intentionally Omitted].

(e) Nonrecourse Deductions. Nonrecourse Deductions for any Taxable Year shall be specially allocated to the Members 99.0% to the Class A Members, pro rata according to their respective Class A Units and 1.0% to the Class B Members pro rata according to their respective Class B Units.

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(f) Member Nonrecourse Deductions. Any Member Nonrecourse Deductions for any Taxable Year shall be specially allocated to the Member who bears the economic risk of loss with respect to the Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable in accordance with Treasury Regulation Section 1.704-2(i)(1).

(g) Section 754 Adjustments. If the Company distributes property to a Member in liquidation of the Membership Interest of the Member and there is an adjustment in the adjusted tax basis of Company property under Section 734(b) of the Code, such that the first sentence of Treasury Regulation Section 1.704-1(b)(2)(iv)(m)(4) applies, there will be a corresponding adjustment to the Capital Account of the Member receiving the distribution. If the Company distributes cash to a Member in excess of its outside basis in its Membership Interest, leading to an adjustment in the inside basis of the Company property under Section 734(b) of the Code pursuant to Treasury Regulation Section 1.704-1(b)(2)(iv)(m)(2), then solely for purposes of adjusting Capital Accounts of the Members, the adjustment in the inside basis will be treated as gain or loss and be allocated among the Members in accordance with Section 4.2, as in effect at the time of the adjustment. This provision is intended to comply with Treasury Regulation Sections 1.704-1(b)(2)(iv)(m)(2) and (4).

4.4 Curative Allocations. The allocations required under Section 4.3(a) through (e) and (g) (the “Regulatory Allocations”) are intended to comply with certain requirements of the Treasury Regulations. It is the intent of the Members that, to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or with special allocations of other items of Company income, gain, loss or deduction pursuant to this Section 4.4. Therefore, notwithstanding any other provisions of this Article IV, the Regulatory Allocations shall be taken into account in allocating items of income, gain, loss, deduction and credit among the Members such that, to the extent possible, the net amount of allocations of such items and the Regulatory Allocations to each Member shall be equal to the net amount that would have been allocated to each Member if the Regulatory Allocations had not occurred and all Company items were allocated pursuant to Section 4.2 and Section 10.2(a)(v).

4.5 Income Tax Allocations.

(a) Except as otherwise provided in this Section 4.5, for federal, state and local income tax purposes each item of income, gain, loss and deduction of the Company shall be allocated to the Members in the same manner as such items are allocated for book purposes pursuant to this Article IV.

(b) In accordance with Code Section 704(c) and the Treasury Regulations thereunder, income, gain, loss, and deduction with respect to any property contributed to the capital of the Company shall, solely for tax purposes, be allocated among the Members so as to take account of any variation between the adjusted basis of such property to the Company for federal income tax purposes and its initial Value (computed in accordance with the definition of Value) using the remedial allocation method permitted by Treasury Regulation Section 1.704-3(d).

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(c) In the event the Value of any Company Asset is adjusted pursuant to subparagraph (ii) of the definition of Value, subsequent allocations of income, gain, loss, and deduction with respect to such Asset shall take account of any variation between the adjusted basis of such Asset for federal income tax purposes and its Value in the same manner as under Code Section 704(c) and the Treasury Regulations thereunder, using the remedial allocation method permitted by Treasury Regulation Section 1.704-3(d).

(d) Any items of loss or deduction attributable to property contributed by a Member shall to the extent of an amount equal to the excess of (i) the federal income tax basis of such property at the time of its contribution over (ii) the Value of such property at such time, be allocated in its entirety to such contributing Member and the tax basis of such property for purposes of computing the amounts of all items allocated to any other Member (including a transferee of the contributing Member) shall be equal to its Value.

(e) Allocations pursuant to this Section 4.5 are solely for federal, state, and local income taxes and shall not affect, or in any way be taken into account in computing, any Member’s Capital Account or share of Profits, Losses, other items, or distributions pursuant to any provision of this Agreement.

4.6 Other Allocation Rules.

(a) For purposes of determining the Profits, Losses, or any other items allocable to any period, Profits, Losses, and any such other items shall be determined on a daily, monthly, or other basis, as determined by the Managing Member using any permissible method under Code Section 706 and the Treasury Regulations thereunder.

(b) The Members are aware of the income tax consequences of the allocations made by this Article IV and Section 10.2(a) and hereby agree to be bound by the provisions of this Article IV and Section 10.2(a) in reporting their shares of Company income and loss for income tax purposes, unless otherwise required by law or the IRS.

(c) The Company shall not report any portion of the Facility Debt as “recourse” debt for purposes of Code Section 752 or as Member Nonrecourse Debt allocable to the Class B Member. The Company shall allocate 100% of the “excess” Nonrecourse Liabilities of the Company for purposes of Treasury Regulation Section 1.752-3(a)(3) in accordance with how the Base Case Model sets forth that the deductions attributable to such remaining Nonrecourse Liabilities will be allocated among the Members, taking into account the allocations required under Section 4.5 above (provided that such ratio shall be neither greater than 99.0% nor less than 4.95% for the Class A Members in any Fiscal Year).

(d) To the extent permitted by Treasury Regulation Section 1.704-2(h)(3), the Managing Member shall endeavor to treat distributions of Available Cash Flow as having been made from the proceeds of a Nonrecourse Liability or a Member Nonrecourse Debt only to the extent that such distributions would cause or increase a negative Adjusted Capital Account (after taking into account the adjustments under Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6)) for any Member.

(e) The Members acknowledge and agree that, for federal and state income tax purposes, the Company shall report (in a manner consistent with the Base Case Model) (i) electrical production as tangible property produced by the Company for purposes of Treasury Regulations Section 1.263A-1(a)(3)(ii), including the required capitalization into the cost of goods sold of cost recovery deductions pursuant to Treasury Regulations Section 1.263A-1(a)(3)(ii)(I), and (ii) that each Power Purchase Agreement is a service contract under Code section 7701(e), and the Company shall prepare the federal income tax returns and its applicable state income tax returns in a manner consistent with such treatment.

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ARTICLE V

DISTRIBUTIONS

5.1 Distributions of Available Cash Flow. Subject to Article Two of the Equity Capital Contribution Agreement and Section 10.2(a)(iv) and (v), Available Cash Flow shall be distributed for each Semi-Annual Period to the Members, in the following order and priority:

(a) Subject to Sections 5.1(c), prior to the Class A Flip Point:

(i) First, to the Class B Members pro rata in accordance with their respective Class B Units until they have received cumulative distributions under this Section 5.1(a)(i) for all periods on or prior to the Class A Flip Point, equal to the aggregate amount of the Capital Contributions made by the Class B Members on or prior to the Distribution Date, minus their shares of the downward basis adjustments in respect of their allocation of basis of ITC Eligible Property pursuant to Treasury Regulation section 1.704-1(b)(2)(iv)(j) (as provided in Section 4.4(f) herein);

(ii) Second, to the Class A Members pro rata in accordance with their respective Class A Units, until they have received cumulative distributions under this Section 5.1(a)(ii) for all periods on or prior to the Class A Flip Point equal to 99% of the cumulative sum, for all Company Taxable Years that end before the Class A Flip Point and that have positive Code section 702(a)(8) net income (if any), of such cumulative Code section 702(a)(8) income of the Company; and

(iii) Thereafter, to the Class B Members pro rata in accordance with their respective Class B Units.

(b) Subject to Sections 5.1(c), on and after the Class A Flip Point:

(i) First, to the Class A Members and the Class B Members, pro rata in accordance with their respective Post-Flip Sharing Percentages, until the Class B Members have received cumulative distributions under Section 5.1(a)(i) and this Section 5.1(b)(i) for all periods equal to the difference between the aggregate

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amount of the Capital Contributions made by the Class B Members on or prior to the Distribution Date, minus their shares of the downward basis adjustments in respect of their allocation of basis of ITC Eligible Property pursuant to Treasury Regulation section 1.704-1(b)(2)(iv)(j) (as provided in Section 4.2(e) herein);

(ii) Second, to the Class A Members pro rata in accordance with their respective Class A Units, until they have received cumulative distributions under this Section 5.1(b)(ii) and Section 5.1(a)(ii) for all periods equal the greater of (A) 99% of the cumulative sum, for all Company Taxable Years that end before the Class A Flip Point and that have positive Code section 702(a)(8) net income (if any), of such cumulative Code section 702(a)(8) income of the Company, and (B) the Minimum Profits Distribution Amount; and

(iii) Thereafter, to the Class A Members and the Class B Members, pro rata in accordance with their respective Post-Flip Sharing Percentages.

Provided, notwithstanding anything to the contrary in the foregoing Section 5.1(a) or (b), the Company shall accrue as a guaranteed payment for capital, and pay on each Distribution Date, prior to making any distribution pursuant to Sections 5.1(a) or (b), any balance of accrued but unpaid Preferred Distributions for prior periods, and, second, the Preferred Distribution that accrued for the current period, in each case to the Class A Members, pro rata, in proportion to their respective Class A Units for the relevant period.

(c) If the aggregate Capital Contributions made by the Class A Member on a True Up Funding Date exceed the applicable Investor Contribution Amount, then 100% of Available Cash Flow shall be distributed 100% to the Class A Member until the Class A Member has received cumulative Available Cash Flow pursuant to this Section 5.1(c) equal to such excess.

5.2 Limitation. The distributions described in this Article V shall be made only from Available Cash Flows and only to the extent that there shall be sufficient Available Cash Flows to enable the Managing Member to make payments in accordance with the terms hereof. Notwithstanding any provision to the contrary contained in this Agreement, the Company shall not make a distribution to a Member on account of Membership Interest if such distribution (including a return of Capital Contributions) would violate the Act or any other Applicable Law.

5.3 Withholding. Notwithstanding any other provision of this Agreement, the Company shall comply with any withholding requirements under any Applicable Law and shall remit amounts withheld to, and file required forms with, applicable taxing authorities. To the extent that the Company is required to withhold and pay over any amounts to any taxing authority with respect to distributions or allocations to any Member, the amount withheld shall be treated as a distribution of cash to such Member in the amount of such withholding. In the event of any claimed over withholding, Members shall be limited to an action against the applicable taxing authority. If an amount required to be withheld was not withheld from an actual distribution, the Company may reduce subsequent distributions by the amount of such required withholding and any penalties or interest thereon. Each Member agrees to furnish to the Company such forms or other documentation as is reasonably necessary to assist the Company in determining the extent of, and in fulfilling, its withholding obligations.

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5.4 Satisfaction of Certain Obligations Under Article XI. Without limiting the rights and remedies of beneficiaries under the Guaranty:

(a) Upon receipt of a notice of a Class A Investor Claim pursuant to Section 11.1, Section 11.2 or Section 11.3, any Class B Member or its Affiliates shall have the right to cure such asserted breach and no such cure shall be an acknowledgement or agreement as to the existence or amount of such Class A Investor Claim. Within 30 days following receipt of such notice, the Class B Members shall notify the relevant indemnified parties, all other Members and the Company in writing whether the Class B Members agrees with or disputes all or a portion of such Class A Investor Claim, specifying the amount, if any, so agreed to. If the Class B Members do not deliver such notice within the time specified, the Class B Members shall be deemed to have delivered a notice on the 30th day from its receipt of notice of the Class A Investor Claims disputing the entire amount of such Class A Investor Claim.

(b) To the extent that any Damages result from the Facility Company or the Company being held liable to a Third Party for the payment of any amounts as a result of any breach by Guarantor, the Class B Equity Investor (whether in its capacity as the Class B Member, the Managing Member, the Tax Matters Member or otherwise), the Company, the Facility Company or their respective Affiliates of their respective representations or warranties or covenants or obligations contained in this Agreement, the Equity Capital Contribution Agreement or the ASA (each such payment a “Third Party Payment”), and such Third Party Payment creates an item of deduction or loss or amortizable or depreciable basis for the Company for Capital Account purposes, then, on or before the first cash distribution under Section 5.1 made by the Company after the date on which the Class B Members deliver or are deemed to have delivered their notice under Section 5.4(a), the Class B Members shall make a Capital Contribution to the Company in an amount equal to the full amount of the Third Party Payment (or, if applicable, such lesser amount as shall have been agreed between the Class B Members and the applicable indemnified persons or such amount as shall have been finally determined by a court of competent jurisdiction).

(c) Notwithstanding the provisions of Section 5.1, with respect to any Damages relating to a Class A Investor Claim (other than as to which Section 5.4(b) applies and as to which the Capital Contribution required by Section 5.4(b) has been made or paid into the Escrow), commencing with the first cash distribution under Section 5.1 made by the Company following the date that is thirty (30) days following the date that the Class B Members agree with the Class A Investor Claims, and in each case until the date on which payment in full of the relevant Damages (or, if applicable, such lesser amount as shall have been agreed between the Class B Members and the applicable indemnified Persons or such amount as shall have been finally determined by a court of competent jurisdiction) has been made as hereafter provided in this Section 5.4(c) or as otherwise paid by the Class B Members or any of their Affiliates, (1) any distributions as to which the Class B Members and any of their respective Affiliates would otherwise be entitled hereunder shall not be paid to such Class B Member or such Affiliates until the applicable indemnified Persons shall have received payment in full of such Damages (or, if applicable, such lesser amount as shall have been agreed between the Class B Members and the applicable indemnified Persons or such amount as shall have been finally determined by a court of competent jurisdiction), and (2) all Available Cash Flow otherwise payable to the Class B

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Members and their respective Affiliates shall be paid over to the applicable indemnified Persons to the extent necessary to pay in full such Damages (or, if applicable, such lesser amount as shall have been agreed between the Class B Members and the applicable indemnified Person or such amount as shall have been finally determined by a court of competent jurisdiction). Upon receipt by the applicable indemnified Persons of the payment in full of such Damages (or, if applicable, such lesser amount as shall have been agreed between the Class B Members and the applicable indemnified Person or such amount as shall have been finally determined by a court of competent jurisdiction), the distributions and Available Cash Flow shall resume being distributed as required by the provisions of Section 5.1, subject to the application of this Section 5.4 to other Class A Investor Claims for Damages and the application of Section 5.5.

(d) If the Class B Members or their respective Affiliates dispute all or a portion of any Damages in excess of [***], then any Capital Contributions that the Class B Members or their Affiliates would have to make with respect to any Third Party Payment or for other Damages, and any distributions as to which the Class B Members or their respective Affiliates would otherwise be entitled hereunder, as applicable, in each case up to the amount of such disputed Damages, shall be paid into an escrow (the “Escrow”) maintained at a commercial bank that is a member of the Federal Reserve System organized under the laws of the United States or any state thereof and has a combined capital and surplus of at least $1,000,000,000 (the “Escrow Agent”) pursuant to an escrow agreement in such Escrow Agent’s customary form and providing as follows:

(i) funds paid into such Escrow shall be invested in Cash Equivalents (such escrowed funds together with the earnings thereon being referred to herein as the “Escrowed Funds”);

(ii) Escrowed Funds shall be disbursed by the Escrow Agent as follows:

(A) Upon the Escrow Agent’s receipt of a written notice from the Class B Members or their Affiliates, as applicable, and the applicable indemnified Persons, the Escrow Agent shall disburse Escrowed Funds to the party or parties, and in the amount or amounts, specified in such joint written notice; and

(B) Upon receipt by the Escrow Agent of a judgment or order of a court of competent jurisdiction regarding all matters relating to such Class A Investor Claims, and, if there exists a right of appeal therefrom, the expiration of the time for appealing such judgment or order without appeal of such judgment or order by any party, the Escrow Agent shall disburse the Escrowed Funds as specified in or consistent with such judgment or order.

(iii) The Class B Members or their Affiliates shall pay the Escrow Agent’s fees and charges related to the Escrow unless the amount finally determined to be payable to the indemnified Persons pursuant to subclauses (A) or (B) above is less than 75% of the amount claimed by the indemnified Persons, in which case, the indemnified Persons making the Class A Investor Claims shall bear all of the Escrow Agent’s fees and charges.

[***] Confidential Treatment Requested

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(e) Amounts paid or distributed to the indemnified Persons pursuant to this Section 5.4 shall be deemed distributed to the Class B Members and immediately paid by the Class B Members to the applicable indemnified Person. Such amount shall be grossed up and paid on an after-tax basis (assuming the highest marginal federal income tax rates then applicable to corporations and an assumed combined state and local income tax rate of 3.0% for purposes of a gross up).

(f) The Members, for themselves, their Affiliates, successors and permitted assigns, agree that, notwithstanding anything to the contrary herein or in any other agreement, including the Guaranty, (i) except as hereinafter provided, the provisions of this Section 5.4 and Article XI shall be the indemnified Persons’ sole and exclusive means of recovery in respect of this Agreement, the Equity Capital Contribution Agreement and the Management Services Agreement for such Damages, and (ii) the indemnified Persons will not bring any action or proceeding, or take any other action, to recover any such Damages except as provided by this Section 5.4 and Article XI.

ARTICLE VI

MANAGEMENT

6.1 Managing Member.

(a) The Class B Equity Investor is hereby appointed by the Members as the initial Managing Member of the Company. Except as provided in Section 6.2 or as otherwise expressly provided herein, the Managing Member shall conduct, direct and exercise control over all activities of the Company, and shall have full power and authority on behalf of the Company to manage and administer the business and affairs of the Company and to do or cause to be done any and all acts considered by the Managing Member to be necessary or appropriate to conduct the business of the Company (including, without limitation, taking all necessary actions to cause the Company to, and to cause the Company to cause the Facility Company to, perform their respective obligations and enforce their respective rights under the Facility Documents to which it is a party and to otherwise carry out their respective purposes) without the need for approval by or any other consent from any Member, including, but not limited to, the authority to bind the Company in making contracts and incurring obligations in the Company’s name in the course of the Company’s business. Except to the extent that a Member is also the Managing Member or authority is delegated from the Managing Member, no Member shall have any authority to bind the Company; provided, that, for the avoidance of doubt, the Class A Members shall have the right to cure certain “Events of Default” under the Financing Documents in accordance therewith and the Interparty Agreement.

(b) Notwithstanding any other provision of this Article VI, in the event of the occurrence of an emergency, the Managing Member will be entitled, without having to obtain the consent of any other Member, to cause the Company to take any action that the Managing Member deems appropriate, consistent with prudent operating practices, in order to protect the interests of the Company or the Facility Company, or as required by Applicable Law (including causing the Facility Company to take any action that the Managing Member deems appropriate, consistent with prudent operating practices). It is agreed that an emergency has occurred when

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the Managing Member reasonably believes that the interests of the Company or Facility Company could be materially and adversely affected if such action is not taken as soon as possible, including but not limited to act of God, flood, earthquake, lightning, ice and ice storms, hurricanes, tornadoes, other natural disaster or environmental catastrophe, fire, explosion, accident, war, riot, civil disturbance, blockade or act of a public enemy.

6.2 Standard of Care; Required Consents.

(a) In carrying out its duties hereunder, the Managing Member (i) shall cause the Company to cause the Facility Company to operate the Facility and cause the Administrator to operate and manage the Facility, in accordance with the Facility Documents; provided, that, in performing such obligations, the Managing Member shall (A) exercise such care, skill and diligence as a reasonably prudent business company of established reputation engaged in the business of generating electricity from fuel cells would exercise in the conduct of its business and for the advancement or protection of its own interests and (B) perform such duties in accordance with applicable fuel cell industry standards, taking into account, prior to the occurrence of the Class A Flip Point, the Applicable Laws with respect to the ITC, and (ii) in instances not involving the operation or management of the Facility, shall act in good faith and in a manner reasonably believed to be in the best interests of the Company.

(b) Notwithstanding any other provision of this Agreement to the contrary, the Managing Member may not take any of the following actions without having first obtained the Consent of the Class A Members (such consent not to be unreasonably withheld or delayed):

(i) Do any act in contravention of this Agreement or of the organizational documents of the Facility Company;

(ii) Cause the Company to engage in any business or activity that is not within the purpose of the Company, as set forth in Section 2.5, or to change such purpose, or cause the Facility Company to engage in any business or activity that is not within the purpose of the organizational documents of the Facility Company or cause the Facility Company to change such purpose;

(iii) Cause the Company to be treated other than as a partnership for United States federal income tax purposes (including by electing under Treasury Regulation Section 301.7701-3 to be classified as an association) or cause the Facility Company to be treated as anything other than a disregarded entity;

(iv) Make any tax election, or cause the Company or the Facility Company to make any tax election, other than as provided herein;

(v) Admit any additional Member to the Company except as permitted under Section 9.1 hereof, or cause any additional member to be admitted to the Facility Company except upon the exercise by the lenders of their rights under the Financing Documents to foreclose on the Facility Company’s membership interests;

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(vi) Cause the Company or the Facility Company to permit (A) possession of property of the Company or the Facility Company, as applicable, by any Member (unless such action is taken pursuant to the express terms of the Facility Documents), (B) the assignment, transfer or pledge of rights of the Company or the Facility Company in specific property of the Company or the Facility Company, as applicable, for other than a Company or Facility Company purpose or other than for the benefit of the Company or the Facility Company, or (C) any commingling of the funds of the Company or the Facility Company with the funds of any other Person;

(vii) Cause the Company or the Facility Company to voluntarily and permanently remove a Facility (or a part of a Facility) from service (other than a removal from service caused by a force majeure event or casualty or pursuant to the terms of Section 2.4 or 12.7 of the MESPSA);

(viii) Cause the Company or the Facility Company to require the repurchase or reacquisition of a Facility (or part of a Facility) pursuant to the terms of Section 3.2(c), 5.7(b), 5.8 or 12.3 of the MESPSA;

(ix) Upon the occurrence and during the continuation of an “Event of Default” under and as defined in the Financing Documents, and prior to the expiration of the applicable Investor Cure Period (as such term is defined in the Interparty Agreement) with respect to such “Event of Default”, causing the Company or the Facility Company to execute or consent to any amendment to any Financing Document that would materially adversely affect the Company, the Facility Company or any Member;

(x) In the case of a foreclosure sale pursuant to the Financing Documents, (A) the purchase, lease or other type of acquisition by Bloom Energy Corporation, or any Subsidiary thereof, of the membership interests in, or any Assets of, the Facility Company (unless the applicable event of default under the Financing Documents giving rise to such foreclosure sale resulted from a default by the Class A Member of a funding obligation under the Equity Capital Contribution Agreement or this Agreement) or (B) the entry by Bloom Energy Corporation, or any Subsidiary thereof, into any agreement with the purchaser of the membership interests in, or any Assets of, the Facility Company which grants Bloom Energy Corporation, or any Subsidiary thereof, operation or control of any Facility (unless the applicable event of default under the Financing Documents giving rise to such foreclosure sale resulted from a default by the Class A Member of a funding obligation under the Equity Capital Contribution Agreement or this Agreement); or

(xi) If pursuant to Section 2.4(c) of the Equity Capital Contribution Agreement, the Class A Member has not acknowledged and agreed in writing that no amount is due and payable by the Facility Company under the MESPSA Initial Invoice, MESPSA Final Invoice and/or otherwise under the MESPSA or for other applicable Facility Costs for the relevant Tranche, or that the full

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amount due and payable by the Facility Company under the MESPSA Initial Invoice, MESPSA Final Invoice and/or otherwise under the MESPSA for the relevant Tranche has been paid, pay any amount from the Account or pledge the Account.

(xii) Seek any private letter ruling from the IRS relating to the transactions contemplated hereunder.

(c) The Managing Member shall not take any of the following actions prior to the date that is the earliest of (x) the consummation of a Buyout Event with respect to the Class A Units or the purchase by the Class B Member of the Class A Units pursuant to the Purchase Option, (y) the withdrawal of the Class A Member pursuant to Section 7.4 and (z) five (5) years after the Class A Flip Point, without having first obtained the written Consent of the Class A Members (such consent not to be unreasonably withheld or delayed):

(i) Except as provided in the Financing Documents and the Facility Documents, borrow, or cause the Company or the Facility Company to borrow, any money in the name or on behalf of the Company or the Facility Company, as applicable, in excess of [***] in the aggregate, or execute and issue promissory notes and other negotiable or non-negotiable instruments and evidences of indebtedness in excess of [***] in the aggregate, except the Managing Member may borrow, or cause the Company or the Facility Company to borrow money in the name and on behalf of the Company or the Facility Company, as applicable, in such amounts as the Managing Member shall reasonably determine are necessary to preserve and protect the Company’s or the Facility Company’s property upon the occurrence of an accident, catastrophe or similar event or to comply with all applicable environmental laws, ordinances, rules and regulations;

(ii) Except as provided in the Financing Documents and the Facility Documents and except for Permitted Encumbrances, mortgage, pledge, assign in trust or otherwise encumber, or cause the Company or the Facility Company to mortgage, pledge, assign in trust or otherwise encumber, any Company or Facility Company property, or to assign, or cause the Company the Facility Company to assign any monies owing or to be owing to the Company or the Facility Company except to secure the payment of any borrowing permitted hereunder and except for customary liens contained in or arising under any operating agreements, construction contracts and similar agreements executed by or binding on the Company or the Facility Company with respect to amounts not yet due or not yet delinquent (or, if delinquent, that are being contested by the Managing Member, the Company or the Facility Company in good faith and for which adequate reserves have been set aside in accordance with GAAP) or except for statutory liens for amounts not yet due or not yet delinquent (or, if delinquent, that are being contested by the Managing Member, the Company or the Facility Company in good faith and for which adequate reserves have been set aside in accordance with GAAP); provided, that in no event shall the Managing Member mortgage, pledge, assign in trust or otherwise encumber the Company’s right to receive Capital Contributions from the Members;

[***] Confidential Treatment Requested

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(iii) Except as provided in the Financing Documents and the Facility Documents, guarantee, or cause the Company or the Facility Company, as applicable, to guarantee, in the name of or on behalf of the Company or the Facility Company, the payment of money or the performance of any contract or other obligation of any person in excess of [***] in the aggregate;

(iv) Sell, lease, transfer, assign or distribute any interest in the Facility Company or cause the Company or the Facility Company to sell, lease, transfer, assign or distribute, (i) a Facility or (ii) any Asset or related group of Assets with a Fair Market Value in excess of [***] in one or a related series of transactions, except, in the case of each of clauses (i) or (ii), pursuant to the Power Purchase Agreements or pursuant to Section 2.4, 3.2(c), 3.6(b), 5.7(b), 5.8, 12.3 or 12.7 of the MESPSA;

(v) Enter into, or cause the Company or the Facility Company to enter into: (A) any amendment, modification, waiver or termination of any Facility Document or any agreement with an Affiliate of the Managing Member; (B) any substitution or replacement of any Facility Document or any agreement with an Affiliate, (C) any additional Facility Document or agreement with an Affiliate, in each case if such amendment, modification, waiver, termination, substitution, replacement or addition could reasonably be expected to have a Material Adverse Effect on the Company;

(vi) Remove the Administrator of the Facilities or appoint a new operator of the Facilities, or cause the Company or the Facility Company to remove the Administrator or to appoint a new operator;

(vii) Make, or cause the Company or the Facility Company to make, any advance payments of compensation or other consideration to the Managing Member or any of its Affiliates;

(viii) Merge or consolidate, or cause the Company or the Facility Company to merge or consolidate, the Company or the Facility Company with any Member or other Person or entity, convert, or cause the Company or the Facility Company to convert, the Company or the Facility Company to a general partnership or other entity, or agree to an exchange of interests with any other Person, or acquire all or substantially all of the Assets or stock of any other Person;

(ix) Compromise or settle, or cause the Company or the Facility Company to compromise or settle, any lawsuit, administrative matter or other dispute where the amount the Company or the Facility Company may recover or might be obligated to pay, as applicable, is in excess of [***] in the aggregate, or which includes consent to the award of an injunction, specific performance or other equitable relief;

[***] Confidential Treatment Requested

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(x) Loan any funds of the Company or the Facility Company to any Person;

(xi) Cause the Company or the Facility Company to hire any employees, enter into or adopt any bonus, profit sharing, thrift, compensation, option, pension, retirement, savings, welfare, deferred compensation, employment, termination, severance or other employee benefit plan, agreement, trust, fund, policy or arrangement for the benefit or welfare of any directors, officers or employees of the Company or the Facility Company, as the case may be;

(xii) Cause the Company or the Facility Company to change its methods of accounting as in effect on the Effective Date, except as required by GAAP, or take any action, other than reasonable and usual actions in the ordinary course of business or specifically contemplated under the Facility Documents to which it is a party, with respect to accounting policies or procedures, unless required by GAAP;

(xiii) Cause the Company or the Facility Company to take or omit to take any action that would result in a material breach or an event of default, or that would permit or result in the acceleration of any obligation or termination of any right, under any Facility Document;

(xiv) Cause the Company or the Facility Company to consent to or approve any action which requires the consent of the Facility Company that would result in or require an adjustment to the annual operating budget for the Facility Company considered in the aggregate, and not on a line-item basis, in excess of 10% other than the following actions: (A) scheduled loan repayments, payments to the DSR Account, mandatory prepayments, retention of working capital reserves and payments to the Distribution Suspense Account, pursuant to the Financing Documents and (B) any deviation from the annual operating budget that is compensated for under the warranty provisions of the MESPSA.

(xv) Cause the Company or the Facility Company to commingle the Assets of the Facility Company with the Assets of any entity other than the Company or invest any funds of the Facility Company in any investments other than Permitted Investments;

(xvi) Cause the Company or the Facility Company to engage in any speculative energy trading;

(xvii) Enroll any portion of the real property comprising the site of the Facility in the U.S. Department of Agriculture’s Conservation Reserve Program; or

(xviii) Receive (1) any grants from the United States, a state, a political subdivision of a state, or any other Governmental Authority for use in constructing or financing any Facility or with respect to which the Class B Member, the Company, the Facility Company, or any Facility is the beneficiary. (2) any proceeds of any issue of state or local government obligations used to provide financing for any Facility the interest on which is exempt from tax under Code Section 103, (3) any subsidized energy financing (within the meaning of Code Section 45(b)(3)), directly or indirectly, under a federal, state, or local program provided in connection with any Facility.

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Notwithstanding anything contained herein to the contrary, for so long as any indebtedness or Obligations remain outstanding under the Financing Documents, each Member hereby acknowledges that the consent of certain parties to the Financing Documents, such as the Facility Lender, may be required in connection with the Facility Company taking certain actions.

(d) Notwithstanding any other provision of this Agreement to the contrary, the Managing Member may not take any of the following actions without having first obtained the written Consent of the Members:

(i) Cause the Company or the Facility Company to change its respective legal form, recapitalize, liquidate, wind up or dissolve (other than in accordance with this Agreement), or declare itself Bankrupt; or

(ii) Amend, supplement or otherwise modify Section 2.5 or any of the definitions of capitalized terms used therein.

(e) Prior to the dissolution of the Company under the terms of this Agreement, the Managing Member shall devote such time and effort to the Company’s business as may be necessary to adequately promote the interests of the Company and the mutual interests of the Members.

(f) Notwithstanding any other provision of this Agreement to the contrary, at the written direction of the Class A Member, the Managing Member shall require the repurchase or reacquisition of all or part of a Facility, in each case, pursuant to the terms of Section 3.2(c), 5.7(b), 5.8 or 12.3 of the MESPSA.

6.3 Removal of Managing Member.

(a) The Managing Member will be subject to removal as Managing Member upon 30 days’ notice by the Consent of the Class A Members if the Managing Member (x) has engaged in gross negligence, willful misconduct or fraud, or (y) has performed any action or omitted to take any action that is in breach or violation of this Agreement and which could reasonably be expected to cause a Material Adverse Effect on the Company or the Facility Company, or (z) is declared Bankrupt; provided, however, that in the case of clause (y), the Managing Member shall have the opportunity to cure such breach or violation within 30 days of receiving notice of such breach; provided, further, that if such breach or violation cannot be cured within such period, and the Managing Member is proceeding with diligence to cure such breach, the 30-day cure period shall be extended by an additional 60 days, for a total cure period of 90 days.

(b) If the Managing Member is so removed, the Consent of the Members shall be required to elect a successor Managing Member to succeed to all the rights, and to perform all of the obligations, set forth for the Managing Member hereunder. The Member selected as the successor Managing Member shall be an entity that is experienced and reputable in operating fuel cell facilities.

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6.4 Indemnification and Exculpation.

(a) To the fullest extent permitted by Applicable Law, the Managing Member and its respective officers, directors, employees and agents shall be exculpated from, and the Company shall indemnify such Persons from and against, all Claims any of them incur by reason of any act or omission performed or omitted by such Person in a manner reasonably believed to be consistent with its rights and obligations under Applicable Law and this Agreement; provided, however, that this indemnity does not apply to Claims that are attributable to the gross negligence, willful misconduct or fraud of such Person or a breach by the Managing Member or the Class B Member or any Affiliate thereof of its covenants or representations set forth in any Investment Document or any Facility Document.

(b) To the fullest extent permitted by Applicable Law, expenses to be incurred by an indemnified Person under this Section 6.4 shall, from time to time, be advanced by or on behalf of the Company prior to the final disposition of any matter upon receipt by the Company of an undertaking from a Person with sufficient credit capacity to repay such amount if it shall be determined that the indemnified Person is not entitled to be indemnified under this Agreement.

6.5 Company Reimbursement. The Company shall directly pay and reimburse the Managing Member for all Company Reimbursable Expenses incurred from time to time.

ARTICLE VII

RIGHTS AND RESPONSIBILITIES OF MEMBERS

7.1 General. The rights and responsibilities of the Members shall be as provided in the Delaware Certificate, this Agreement and the Act.

7.2 Member Voting Rights. Except as provided in Sections 6.2(b), 6.2(c) and 6.2(d) and as otherwise expressly provided in this Agreement or as required by the Act, the consent of the Members shall not be required and the Managing Member (and not the other Members) shall have all right, power and authority to do for, on behalf of, and in the name of the Company, all things that the Managing Member deems necessary, proper or desirable to carry out its duties and responsibilities. Without limitation of the foregoing, to the extent that the consent of the Members is express required by this Agreement or the Act, except as provided in Sections 6.2(b), 6.2(c) and 6.2(d) or as otherwise expressly provided in this Agreement, the Consent of the Members shall constitute approval by, or the authorization of, any action by or on behalf of the Company that expressly requires a vote, consent, approval or action of or an election by the Members; provided, that, without the prior written approval of each Member adversely affected

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thereby, no such consent shall (i) modify the limited liability of a Member; (ii) require a Member to provide funds to the Company, by loan, contribution or otherwise (or amend any of the conditions to making any loan or contribution); (iii) alter the interest of any Member in Capital Accounts, Profits, Losses, distributions or Available Cash Flow; or (iv) amend, supplement or otherwise modify Sections 6.2(b), 6.2(c), 6.2(d), or this Section 7.2, or, in each case, any of the definitions of capitalized terms used therein.

7.3 Member Liability.

(a) To the fullest extent permitted under the Act and under Applicable Law as currently or hereafter in effect, no Member shall have any personal liability whatsoever, whether to the Company or to its creditors for the debts, obligations, expenses or liabilities of the Company, whether arising in contract, tort or otherwise, which shall be solely the debts, obligations or liabilities of the Company, or for any of its losses, in excess of the value of such Member’s Capital Account, except as expressly provided herein.

(b) A Member shall be liable only to make its Capital Contributions as provided herein and in the Equity Capital Contribution Agreement and shall not be required to restore a deficit balance in its Capital Account, except as provided in Section 10.3. The failure of the Company to observe any formalities or requirements relating to the exercise of its powers or management of its business or affairs under this Agreement or the Act shall not be grounds for imposing personal liability on the Members or the Managing Member for liabilities of the Company.

7.4 Withdrawal.

(a) Except as otherwise provided in this Agreement, no Member shall be entitled to: (i) voluntarily withdraw from the Company; (ii) withdraw any part of such Member’s Capital Contributions from the Company; (iii) demand the return of such Member’s Capital Contributions; or (iv) receive property other than cash in return for such Member’s Capital Contribution.

(b) Notwithstanding any other provision of this Agreement, any Class A Member shall have the right, at any time during the six month period after the first anniversary of the Class A Flip Point, to resign and withdraw voluntarily from the Company, in whole but not in part (“Class A Withdrawal”), upon giving the Company and all other Members not less than 120 days’ prior written notice of an election to withdraw (the “Class A Withdrawal Notice”) during such period.

(i) Upon delivery of the Class A Withdrawal Notice, the Class A Member will thereafter have the right to receive an amount (payable in United States dollars), in satisfaction of its entire Class A Interest, equal to the lesser of (a) the Fair Market Value of the Class A Interests as of the date of delivery of the Class A Withdrawal Notice, as determined under the Appraisal Procedure, and (b) the sum of (A) any unpaid Preferred Distributions (whether or not then-accrued), as of the date of delivery of the Class A Withdrawal Notice, and (B) $1,216,598; (the “Class A Withdrawal Amount”).

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(ii) The Class A Withdrawal Amount shall be paid to the Class A Member from 99% of the Available Cash Flow of the Company distributed on each Distribution Date on and after the determination of the Class A Withdrawal Amount until such Class A Withdrawal Amount is paid in full. Any distributions of the Available Cash Flow to the Class A Member between the date the Class A Withdrawal Notice is given and the date the Class A Withdrawal Amount is determined shall be applied toward the Class A Withdrawal Amount.

(iii) To the extent the payments described in Section 7.4(b)(ii) do not fully pay the Class A Withdrawal Amount within 120 days of the date the Class A Withdrawal Amount is determined, the Company shall issue a note payable to the Class A Member in a principal amount equal to that shortfall, having a five (5) year level monthly amortization at the applicable Federal rate under Section 1274(d) of the Code, and otherwise substantially in the form of Exhibit C (the “Class A Withdrawal Note”). The Class B Members shall pledge their Class B Interests to secure the Class A Withdrawal Note pursuant to a pledge agreement substantially in the same form as the pledge agreement under the Financing Documents.

(iv) Upon the earlier of the payment in full of the Class A Withdrawal Amount under clause (ii) or the issuance of the Class A Withdrawal Note, the Class A Interest of the withdrawing Class A Member shall be canceled and such Class A Member shall be considered to have voluntarily withdrawn for purposes of Section 18-603 of the Act. All reasonable costs associated with the withdrawal of a Class A Member, including but not limited to, legal, accounting, tax preparation and audit costs, shall be borne by the Class B Member.

(c) Notwithstanding any other provision of this Agreement, if as of the True Up Funding Termination Date, the aggregate purchase price for Facilities that have achieved Commencement of Operation does not exceed [***], then any Class A Member shall have the right, at any time thereafter, to resign and withdraw voluntarily from the Company, in whole but not in part (“Conditional Class A Withdrawal”), upon giving the Company and all other Members thirty (30) days’ written notice of an election to withdraw (the “Conditional Class A Withdrawal Notice”) at the end of such period.

(i) Upon delivery of the Conditional Class A Withdrawal Notice, the Class A Member will thereafter have the right to receive an amount (payable in United States dollars), in satisfaction of its entire Class A Interest, equal to the lesser of (a) the Fair Market Value of the Class A Interests as of the exercise date, as determined under the Appraisal Procedure, and (b) the sum of (i) the aggregate Class A Investment Balance, determined for all Facilities, on or before the date of delivery of the Conditional Class A Withdrawal Notice, plus (ii) any unpaid Transaction Expenses of the Class A Member (the “Conditional Class A Withdrawal Amount”).

(ii) The Conditional Class A Withdrawal Amount shall be paid to the Class A Member from 99% of the Available Cash Flow of the Company

[***] Confidential Treatment Requested

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distributed on each Distribution Date on and after the determination of the Conditional Class A Withdrawal Amount until such Conditional Class A Withdrawal Amount is paid in full. Any distributions of the Available Cash Flow to the Class A Member between the date the Conditional Class A Withdrawal Notice is given and the date the Conditional Class A Withdrawal Amount is determined shall be applied toward the Conditional Class A Withdrawal Amount.

(iii) To the extent the payments described in Section 7.4(c)(ii) do not fully pay the Conditional Class A Withdrawal Amount within 120 days of the date the Conditional Class A Withdrawal Amount is determined, the Company shall issue a note payable to the Class A Member in a principal amount equal to that shortfall, having a one (1) year level monthly amortization at the applicable Federal rate under Section 1274(d) of the Code, and otherwise substantially in the form of Exhibit C (the “Conditional Class A Withdrawal Note”). The Class B Members shall pledge their Class B Interests to secure the Conditional Class A Withdrawal Note pursuant to a pledge agreement substantially in the same form as the pledge agreement under the Financing Documents.

(iv) Upon the earlier of the payment in full of the Conditional Class A Withdrawal Amount under clause (ii) or the issuance of the Conditional Class A Withdrawal Note, the Class A Interest of the withdrawing Class A Member shall be canceled and such Class A Member shall be considered to have voluntarily withdrawn for purposes of Section 18-603 of the Act. All reasonable costs associated with the withdrawal of a Class A Member, including but not limited to, legal, accounting, tax preparation and audit costs, shall be borne by the Class B Member.

(d) If either (i) any Facility is repurchased or reacquired pursuant to Section 2.4, 3.2(c), 3.6(b), 5.7(b), 5.8, 12.3 or 12.7 of the MESPSA, or (ii) the Class A Member does not give the written acknowledgement and agreement provided in Section 2.4(c) of the Equity Capital Contribution Agreement in respect of a Facility (each a “Class A Partial Redemption Event”), then notwithstanding any other provision of this Agreement, any Class A Member shall have the right, at any time during the six-month period following each Class A Partial Redemption Event, to partially redeem and withdraw voluntarily from the Company, (a “Class A Partial Redemption”), upon giving the Company and all other Members prior written notice of an election to withdraw (the “Class A Partial Redemption Notice”) during such period. Upon such Class A Partial Redemption, the Value of all Assets of the Company shall be adjusted to equal their respective gross Fair Market Values, as determined by the Members pursuant to clause (ii) of the definition of “Value”. Upon delivery of the Class A Partial Redemption Notice, the Class A Member will thereafter have the right to receive an amount (payable in United States dollars), in satisfaction of that part of its Class A Interest in Company Assets for which the Class A Partial Redemption Event occurred, equal to the lesser of (i) the Class A Investment Balance in respect of the applicable Company Assets and (ii) its Adjusted Capital Account balance (the “Class A Partial Redemption Amount”). Upon a Class A Partial Redemption Event, any and all Available Capital Income Cash Flow and Available PPA Termination Cash Flow shall be retained

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by the Company and not distributed until the earlier of the delivery of the Class A Partial Redemption Notice and the end of the six-month period for which that notice may be given. The Class A Partial Redemption Amount shall be paid to the Class A Member from 99% of the Available Cash Flow of the Company distributed on each Distribution Date on and after the determination of such Class A Partial Redemption Amount until such amount is paid in full. Upon the payment in full of the Class A Partial Redemption Amount, that portion of the Class A Interest of the withdrawing Class A Member in respect of the applicable Company Assets shall be canceled, such Class A Member shall be considered to have voluntarily partially withdrawn for purposes of Section 18-603 of the Act, and such Class A Member shall have no interest in respect of those Company Assets (including any proceeds therefrom). All reasonable costs associated with the partial withdrawal of a Class A Member, including but not limited to, legal, accounting, tax preparation and audit costs, shall be borne by the Class B Member.

7.5 Member Compensation. No Member shall receive any interest, compensation or drawing with respect to its Capital Contributions or its Capital Account or for services rendered on behalf of the Company or otherwise, in its capacity as a Member, except as otherwise provided in this Agreement or the ASA.

7.6 Other Ventures. Notwithstanding any other provision of this Agreement or any duty existing at law or in equity, the Members (including the Managing Member) and their respective Affiliates at any time and from time to time may engage in and possess interests in other business ventures of any and every type and description, including other business ventures competitive with, or of the same type and description as, the Company and the Facility Company, independently or with others.

7.7 Confidential Information.

(a) With respect to each of the Company and the Members, except to the extent necessary for the exercise of its rights and remedies and the performance of its obligations under this Agreement or otherwise with respect to the Facility Company or the Facility, such Member will not itself use or intentionally disclose (and will not permit the use or disclosure by any of its Affiliates, any of the officers, directors or employees of it or its Affiliates (collectively, “Representatives”), or any of its advisors, counsel and public accountants (collectively, “Advisors”)), directly or indirectly, any of the Facility Documents, this Agreement or other confidential information in respect of the transactions contemplated hereby (“Confidential Information”); provided, that (i) any such Member and its Affiliates, Representatives and Advisors may use and disclose Confidential Information to such Member’s Affiliates, Representatives and Advisors and to any other Member and its Affiliates, Representatives and Advisors, (ii) any such Member and its Affiliates, Representatives and Advisors may use and disclose Confidential Information that (A) has been publicly disclosed or is publicly known (other than by such Member or any of its Affiliates, Representatives or Advisors in breach of this Section 7.7), (B) has come into the possession of such Member or any of its Affiliates, Representatives or Advisors other than in connection with the transactions contemplated by this Agreement, or (C) has been independently developed by such Member or any of its Affiliates, Representatives or Advisors without use of information obtained under this Agreement, (iii) to the extent that that such disclosure is required by law, a subpoena or any other applicable legal process or by a Governmental Authority having jurisdiction over such Member or its Affiliates,

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such Member may disclose Confidential Information provided that in such case such Member shall, unless otherwise prohibited by law, (1) give prompt notice to the other Members that such disclosure is or may be required and (2) cooperate in protecting such confidential or proprietary nature of the Confidential Information which must so be disclosed; provided, that no such notification shall be required in respect of any disclosure to bank, insurance or financial industry regulatory authorities having jurisdiction over such Member or its Affiliates, (iv) disclosures to lenders, potential lenders or other Persons providing financing to the Company or to the Facility Company or to their respective representatives and advisors, any Member or any Affiliate of any Member and potential purchasers of equity interests in the Company, any Member or any Affiliate of any Member are permitted if such Persons have agreed to abide by the terms of this Section 7.7 or have otherwise entered into an agreement with restrictions on disclosure substantially similar to the terms of this Section 7.7 (or in the case of advisors, are otherwise bound by professional or legal obligations of confidentiality), (v) any such Member and its Affiliates, Representatives and Advisors may disclose Confidential Information, and make such filings, as may be required by this Agreement or the Facility Documents, (vi) any Member which is an insurance company or an Affiliate thereof may disclose such information to the National Association of Insurance Commissioners and any rating agency requiring access to its portfolio, (vii) the Class B Equity Investor and its Affiliates, Representatives and Advisors may disclose Confidential Information relating to the Facilities (but not Confidential Information relating to any Member) to lenders, potential lenders or other Persons providing financing to any Person developing or proposing to develop the remaining phases of the Facilities and potential purchasers of equity interests in such Person or potential power or renewable energy credits purchasers from such Persons, or to any Person in connection with the operation of the Facilities, and (viii) any such Member may disclose Confidential Information to the United States Department of Treasury, the IRS or any state taxing authority in connection with any communication regarding the tax consequences of the Facilities, Facility Company’s ownership and operation of the Facilities, Company’s ownership of an interest in the Facility Company or such Member’s ownership of an interest in the Company; provided, that such Member shall, as soon as practicable, notify the Class B Equity Investor of such disclosure, furnish a copy of any written material provided to the IRS or any state taxing authority to the Class B Equity Investor and, if practicable, afford the Class B Equity Investor reasonable opportunity to comment on the proposed disclosure (but for the avoidance of doubt the Class B Equity Investor will not have the right to consent to such proposed disclosure). A Member’s obligations pursuant to this Article VII shall survive the Transfer of its Units. Notwithstanding anything herein to the contrary, the Class B Equity Investor and any of its Affiliates (including Affiliates formed subsequent to the date hereof) may use any operational data with respect to the Facilities for the purpose of researching, analyzing, designing, improving, developing, manufacturing, installing, modifying or operating other fuel cell-powered electric generating facilities, whether similar to or different from the Facilities.

(b) The foregoing obligations shall not apply to the tax treatment or tax structure of the transactions contemplated hereby and each Member (and any employee, representative, or agent of any Member) may disclose to any and all Persons, without limitation of any kind, the tax treatment and tax structure of the transactions contemplated hereby and all other materials of any kind (including opinions or other tax analysis) that are provided to any Member relating to such tax treatment and tax structure (all such information that may be disclosed being

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the “Tax Information”). However, any such Tax Information is required to be kept confidential to the extent necessary to comply with any applicable securities laws. The preceding sentences are intended to cause the transactions contemplated hereby not to be treated as having been offered under conditions of confidentiality for purposes of Sections 1.6011-4(b)(3) and 301.6111-2(a)(2)(ii) (or any successor provision) of the Treasury Regulations issued under the Code and shall be construed in a manner consistent with such purpose. For purposes of this provision, the Tax Information includes only those facts that may be relevant to understanding the purported or claimed U.S. federal income tax treatment or tax structure of the transactions contemplated hereby and, to eliminate any doubt, therefore specifically does not include information that either reveals or standing alone or in the aggregate with other information so disclosed tends of itself to reveal or allow the recipient of the information to ascertain the identity of any Company, any Member or the Class B Equity Investor (or potential member), or any other third parties involved in any of the transactions contemplated hereby or any other potential transactions with any of the foregoing.

(c) Except as otherwise permitted by this Section 7.7, no Member shall include in a press release or otherwise disclose (other than as required to be included in a filing to any bank, insurance or financial industry regulatory authority having jurisdiction over such Member, its affiliates, permitted transferees, any security exchange or the Securities Exchange Commission or as required by Applicable Law) the name of any Member as an equity investor or potential equity investor without the prior written consent of such Member which consent shall not be unreasonably withheld.

(d) If the Company or any subsidiary thereof is required at any time to make any regulatory filing that identifies by name, or otherwise relates specifically to, any Member or any of its Affiliates or permitted transferees, then the Company shall submit (or the Company shall cause its subsidiary to submit) an advance draft of such regulatory filing to such Member or its Affiliate or permitted transferee, as applicable, and each such Member shall cooperate and shall provide such information as is necessary to complete such filing. Such Member (or its Affiliate or permitted transferee, as applicable) shall have the right to provide comments to such regulatory filing as it relates to such Member (or its Affiliate or permitted transferee), and the Company or its subsidiary shall incorporate or accommodate, prior to submitting such filing, such comments.

(e) If any Member is required at any time to make any regulatory filing (other than a filing to any bank, insurance or financial industry regulatory authority having jurisdiction over such Member or its affiliates) that identifies by name, or otherwise relates specifically to, any other Member, then such Member shall submit an advance draft of the relevant portions of such regulatory filing to such other Member. Such other Member shall have the right to provide comments to such regulatory filing as it relates to such other Member, and the Member making such filing shall incorporate or accommodate, prior to submitting such filing, such comments.

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ARTICLE VIII

ADMINISTRATIVE AND TAX MATTERS

8.1 Intent for Income Tax Purposes. The Members intend that the Company be treated as a partnership for federal, state and local income tax purposes and that it be operated in a manner consistent with such treatment, but that the Company not be operated or treated as a “partnership” for any other purpose, including, but not limited to, Section 303 of the Federal Bankruptcy Code, and the provisions of this Agreement may not be construed to suggest otherwise. The Members intend that the Facility Company be treated as a disregarded entity for federal, state and local tax purposes.

8.2 Books and Records. The Company’s books of account shall be prepared and maintained in accordance with generally accepted accounting principles for the type of business of the Company. The Managing Member shall cause to be kept, at the principal place of business of the Company, full and proper ledgers and other books of account of all receipts and disbursements and other financial activities of the Company, including the following documents:

(a) A copy of the certificate of formation of the Company and the Facility Company and all certificates of amendment thereto, together with executed copies of any powers of attorney pursuant to which any certificate has been executed;

(b) Copies of the Company’s and the Facility Company’s federal, state and local income tax or information returns and reports (including any information or reports pertaining to any tax elections made by the Company or the Facility Company), if any, for the six (6) most recent Taxable Years of the Company;

(c) Copies of the Prior LLC Agreement, this Agreement and all amendments thereto;

(d) Copies of the constituent documents in respect of the Facility Company;

(e) Financial statements, including a consolidated balance sheet and consolidated statements of income (or loss), of the Company and its consolidated subsidiaries for, to the extent applicable, each of the six (6) most recent Fiscal Years, including quarterly and monthly internal consolidated financial statements of the Company; and

(f) The Company’s books and records for at least the current and, to the extent applicable, the past three (3) Fiscal Years.

8.3 Information and Access Rights. The Members and their respective agents will have the right, at their sole risk and expense and upon reasonable prior notice to the Managing Member, to inspect the Facilities and all relevant books and records relating thereto and make copies thereof. Any such inspection will be conducted during normal business hours and so as not to unreasonably interfere with the business of the Managing Member.

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8.4 Reports. The Managing Member shall, at the Company’s expense, deliver, or caused to be delivered to each Member, the following reports, information and financial statements at the times indicated below:

(a) Annually, within 120 days after the end of each calendar year (as such dates may be extended or waived by the applicable Members), audited consolidated financial statements and report for the Company and its consolidated subsidiaries, prepared by the Certified Public Accountant, prepared on a GAAP basis effective as of the end of the immediately-preceding year, including a consolidated balance sheet and consolidated statements of income, members’ equity and changes in cash flows (the “Annual Report”) and accompanied by a report of such accounting firm stating that their examination was made in accordance with generally accepted auditing standards and that in their opinion such financial statements and Annual Report of the Company and its consolidated subsidiaries fairly present the Company’s and its consolidated subsidiaries’ cash flows, results of operations and changes in financial position on a GAAP basis;

(b) Within 30 days after the end of each calendar quarter, unaudited quarterly financial statements of the Company and its consolidated subsidiaries for such period and portion of the calendar year then ended, all in reasonable detail and fairly presenting the financial position of the Company and its consolidated subsidiaries, as of the end of such quarter, on a GAAP basis, subject to lack of footnotes and normal year-end adjustments;

(c) Annually, within 120 days after the end of each calendar year, audited consolidated financial statements and report for Guarantor and its consolidated subsidiaries, prepared by an independent national accounting firm selected by Guarantor, prepared on a GAAP basis effective as of the end of the immediately-preceding year, including a consolidated balance sheet and consolidated statements of income, members’ equity and changes in cash flows, in each case accompanied by a report of such accounting firm stating that their examination was made in accordance with generally accepted auditing standards and that in their opinion such financial statements fairly present Guarantor’s and its consolidated subsidiaries cash flows, results of operations and changes in financial position on a GAAP basis;

(d) Within 30 days after the end of each calendar quarter, unaudited quarterly financial statements of the Guarantor and its consolidated subsidiaries for such period and portion of the calendar year then ended, all in reasonable detail and fairly presenting the financial position of the Guarantor and its consolidated subsidiaries, as of the end of such quarter, on a GAAP basis, subject to lack of footnotes and normal year-end adjustments;

(e) Quarterly, within 30 days after the end of each calendar quarter, a report setting forth (1) the kilowatt hours of electricity produced and sold during such quarter from the Facility, (2) the revenues and expenses of the Facility for the most recent available quarter, (3) in the case of the calendar quarters ending after January 31st, the same information set forth in (1) through (2) on a cumulative basis since the beginning of the Fiscal Year, and (4) a quarter and year to date performance versus budget, variance analysis and a short narrative regarding key operating events and issues;

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(f) Quarterly, within 30 days after the end of each calendar quarter, a Quarterly Renewable Energy Certificate for such period, substantially in the form of Exhibit D attached hereto;

(g) Monthly, within 15 days after the end of each calendar month, starting as of the date of the first Funding Date until the date that Commencement of Operations has occurred for each Facility, a Renewable Energy Monthly Report for such month, in the form of Exhibit E attached hereto;

(h) Annually, within 30 days prior to the start of each calendar year, the annual capital and operating budgets for the Company and the Facility Company;

(i) Promptly upon becoming aware of any such event or circumstance, notice of (i) any material litigation pending or, to the knowledge of the Managing Member, threatened against the Facility Company or the Company and (ii) any material event of default under the Facility Documents;

(j) Within 30 days after renewal, copies of policies of insurance maintained by or on behalf of the Company or any of its subsidiaries, including current certificates of insurance; and

(k) Promptly following any request therefor, such other reports and information in the possession of the Managing Member as reasonably requested by the Members and such other reports reasonably requested by and paid for by the requesting Member to the extent external costs are incurred with respect to the preparation of such reports.

8.5 Permitted Investments. All cash of the Company may only be invested and reinvested in one of the following investment alternatives (“Permitted Investments”) (but not directly or indirectly in any “public utility” or “holding company” as defined in the FPA unless any applicable FERC approval has been obtained):

(a) Direct obligations of the United States of America (including obligations issued or held in book-entry form on the books of the Department of the Treasury of the United States of America) or obligations the timely payment of the principal of and interest on which are fully guaranteed by the United States of America;

(b) Obligations, debentures, notes or other evidence of Indebtedness issued or guaranteed by any of the following: Export-Import Bank of the United States, Federal Housing Administration or other agency or instrumentality of the United States;

(c) Interest-bearing demand or time deposits (including certificates of deposit) which are either:

(i) insured by the Federal Deposit Insurance Corporation, or

(ii) held in banks and savings and loan associations, having general obligations rated at least “AA” or equivalent by S&P or Moody’s, or if not so

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rated, secured at all times, in the manner and to the extent provided by law, by collateral security described in clauses (a) or (b) of this definition, of a market value of no less than the amount of moneys so invested;

(d) Obligations of any state of the United States or any agency or instrumentality of any of the foregoing which are rated at least “AA” by S&P or at least “Aa” by Moody’s;

(e) Commercial paper rated (on the date of acquisition thereof) at least A-1 or P-1 or equivalent by S&P or Moody’s, respectively (or an equivalent rating by another nationally recognized credit rating agency of similar standing if neither of such corporations is then in the business of rating commercial paper), maturing not more than 90 days from the date of creation thereof but excluding any such commercial paper issued by any Member or any Affiliate of the Managing Member; or

(f) Any other investments agreed to by the Members and the Managing Member.

8.6 Tax Elections. The Managing Member shall make the following federal income tax elections on the appropriate Company tax returns:

(a) To the extent permitted under Code Section 706, to elect the calendar year as the Company’s Taxable Year;

(b) To elect the accrual method of accounting;

(c) To elect to amortize any organizational and start-up expenses of the Company ratably over a period of 180 months as permitted by Code Sections 709(b);

(d) To make any election necessary to claim an ITC equal to at least the ITC Amount;

(e) If a distribution of the Company’s property as described in Section 734 of the Code occurs or a transfer of Membership Interest as described in Section 743 of the Code occurs to elect pursuant to Section 754 of the Code to adjust the basis of the Company’s properties;

(f) To elect out any and all “bonus depreciation” otherwise available in respect of the Facilities under Section 168(k) of the Code;

(g) As shall be directed by the Class A Member in writing to the Managing Member at least one Business Day before such election must be made by the Company:

(i) To elect the straight line method in respect to one or more classes of Company property under Code Section 168(b)(5), and/or

(ii) To elect the alternative depreciation system in respect of one or more classes of Company property under Section 168(g)(7) of the Code; and/or

(iii) To elect to exclude any Company property from Code section 168 under Section 168(f)(1) of the Code and use a method of depreciation described in Code Section 168(f)(1)(B); and

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(h) To elect under Section 6231(a)(1)(B)(ii) of the Code and the Treasury Regulation thereunder to treat the Company as a partnership to which the provisions of Sections 6221 through 6234 of the Code, inclusive, apply.

(i) To elect to include “advance payments” made to the Project Company in accordance with Treasury Regulation Section 1.451-5(b)(1)(ii) and comply with all associated requirements thereunder, including the reporting obligation set forth in Treasury Regulation Section 1.451-5(d).

The Managing Member shall make no other tax elections for the Company, except as otherwise provided herein, without the written Consent of the Members, such consent not to be unreasonably withheld; provided, however, that the Managing Member may, subject to the limitation that the Tax Return shall be filed no later than August 1st of the year following the Company’s Taxable Year, elect to extend the time for filing any Company tax return as provided for under the Code and applicable State statutes; and provided, further, however, based upon current Knowledge of the facts pertaining to the transaction as of the date hereof, the Company will not report the transaction to the IRS as a “reportable transaction” pursuant to Code Section 6111, the relevant Treasury Regulations and any other administrative authorities or pronouncements, in each case as they exist on the date hereof (provided, however, that if such facts or law change in a manner affecting the reportability of the transaction, the specific covenant within this proviso shall not be applicable to the Company). Neither the Company nor any Member may make an election for the Company to be excluded from the application of the provisions of subchapter K of chapter 1 of subtitle A of the Code or any similar provisions of any state Applicable Law. No Member, Managing Member, officer or agent of the Company is authorized to, or may, file IRS Form 8832 (or such alternative or successor form) to elect to have the Company or the Facility Company classified as a corporation for federal income tax purposes under Regulation Section 301.7701-3. The Managing Member shall, in addition, affirmatively take such action within its control as may be necessary or required to maintain the status of the Company as a partnership and the Facility Company as a disregarded entity for federal, state and local income tax purposes.

8.7 Tax Matters Member and Company Tax Filings.

(a) The Class B Equity Investor shall be, and so long as it continues to be the Managing Member, shall continue to be, the “tax matters partner” of the Company pursuant to Section 6231(a)(7) of the Code (the “Tax Matters Member”); provided, that if the Class B Equity Investor is no longer the Managing Member, the Person selected as the successor Managing Member pursuant to Section 6.3(b) shall appoint a new Tax Matters Member. At the request of any other Member, the Tax Matters Member shall take such action as may be necessary to cause, to the extent possible, such other Member to become a “notice partner” within the meaning of Sections 6231(a)(8) and 6223 of the Code. The Tax Matters Member shall provide the Members all notices and other written communications received by the Tax Matters Member from the IRS or sent by the Tax Matters Member to the IRS, relating to the Company. The Tax

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Matters Member shall provide the Members with reasonable opportunity to review and comment on any written communications to the IRS. The Tax Matters Member shall provide Members with prompt written notice of all meetings or conferences with the IRS and the Members shall have the right to attend all such meetings and conferences at their expense.

(b) Without the Consent of the Class A Members, the Tax Matters Member shall not (i) commence a judicial action (including filing a petition as contemplated in Section 6226(a) or 6228 of the Code) with respect to a federal income tax matter or appeal any adverse determination of a judicial tribunal; (ii) enter into a settlement agreement with the IRS; (iii) intervene in any action as contemplated by Section 6226(b) of the Code; (iv) file any request contemplated in Section 6227 of the Code; or (v) enter into an agreement extending the period of limitations as contemplated in Section 6229(b)(1)(B) of Code. Subject to the immediately preceding sentence, the Tax Matters Member shall have the right to defend against any proposed adjustments with respect to any “partnership item” (as defined in Section 6231(a)(3) of the Code) in the manner provided, and to the extent consistent with, Sections 6221 through 6223 of the Code and the Treasury Regulations issued thereunder. With respect to any other partnership item of the Company not covered by the two preceding sentences, if any Member intends to file, pursuant to Section 6227 of the Code, a request for an administrative adjustment of any such partnership item of the Company, or to file a petition under Sections 6226, 6228 or other Sections of the Code with respect to any such partnership item or any other tax matter involving the Company, such Member shall, at least thirty (30) days prior to any such filing, notify the other Members of such intent, which notification must include a reasonable description of the contemplated action and the reasons for such action. Any cost or expense incurred by the Tax Matters Member in connection with its duties, including, if relevant, the preparation for or pursuance of administrative or judicial proceedings, shall be paid by the Company.

(c) The Tax Matters Member shall prepare, or cause to be prepared, and timely file (on behalf of the Company) all federal, state and local tax returns required to be filed by the Company. Each Member shall furnish to the Tax Matters Member all pertinent information in its possession relating to the Company’s operations that is reasonably necessary to enable the Company’s tax returns to be timely prepared and filed. The Tax Matters Member shall prepare, or cause to be prepared, the Company’s federal income tax return (including K-1s) (the “Tax Return”) on a basis consistent with this Agreement and the assumptions contained in the Base Case Model, except to the extent such inconsistency is the result of either (x) an ITC Loss Event, or (y) any final determination under a federal income tax audit or administrative or judicial proceeding of such a federal income tax return for a prior period making an adjustment to an item of such federal income tax return (provided that such audit or administrative or judicial proceeding is prosecuted by the Company materially in the manner required by this Section 8.7) (a “Consistent Return”). The Tax Matters Member shall use commercially reasonable efforts to furnish to the Members, by no later than the 120 days following each Taxable Year, the Tax Return proposed to be filed by the Tax Matters Member. The Tax Matters Member shall furnish to the Members reasonable estimates (broken down by item and character of income, loss, deduction or credit) prior to the date 75 days after the end of the Taxable Year. In the event that the Tax Matters Member anticipates furnishing to the Members a Tax Return that is not a Consistent Return, the Tax Matters Member shall notify the Members in writing no less than 30 days prior to the date on which it intends to furnish such Tax Return that such Tax Return will not

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be a Consistent Return, other than inconsistencies solely relating to variances in the anticipated operating results of the Facilities. If a Tax Return is timely objected to by the Class A Members, the Tax Matters Member shall submit such Tax Return, together with copies of all relevant workpapers used in preparation thereof, to a nationally recognized firm (other than the Certified Public Accountant) of independent public accountants or, if related to a legal matter, a law firm, in each case, selected by the Class A Member. The determination of such independent expert, and the Tax Return as completed by such expert, shall be final and binding on the Members, and the Tax Matters Member shall cause such final Tax Return to be filed. The Company shall bear the costs of the preparation and filing of its returns, including the fees of the independent expert. In no event shall any Tax Return be filed later than August 1^st.

(d) The provisions of this Article VIII will survive the termination of the Company or the termination of any Member’s interest in the Company and will remain binding on the Member for the period of time necessary to resolve with the IRS or other federal tax agency any and all federal income tax matters relating to the Company that are subject to Code Sections 6221 through 6233.

8.8 Financial Accounting. Each Member may report the transactions contemplated hereby for financial accounting purposes in such manner as the Member and its accountants may determine appropriate.

8.9 Legend. Until (a) the securities representing ownership of membership interests in the Company are effectively registered under the Securities Act of 1993, as amended, or (b) the holder of such securities delivers to the Company a written opinion of counsel of such holder to the effect that such legend is no longer necessary under the Securities Act of 1933, as amended, the Company will cause each certificate representing its securities to be stamped or otherwise imprinted with the following legend:

THE MEMBERSHIP INTEREST REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAW OF ANY STATE. SUCH MEMBERSHIP INTEREST MAY NOT BE SOLD OR TRANSFERRED UNLESS SUBSEQUENTLY REGISTERED OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE. THIS CERTIFICATE EVIDENCES AN INTEREST IN 2013B ESA HOLDCO, LLC AND SHALL BE A SECURITY GOVERNED BY ARTICLE 8 OF THE UNIFORM COMMERCIAL CODE AS IN EFFECT FROM TIME TO TIME IN THE STATES OF DELAWARE AND NEW YORK AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OTHER APPLICABLE JURISDICTION.

8.10 Representations, Warranties and Covenants of the Class B Member. The Class B Member represents and warrants on the Effective Date and covenants as follows:

(a) The Class B Member is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware.

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(b) The Class B Member has the full limited liability company right, power and authority to perform its obligations hereunder.

(c) This Agreement is a legal valid and binding obligation of the Class B Member enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and by general equitable principles.

(d) Such Member (or if it is a disregarded entity, or if it and its owner are disregarded entities, its owner or its owner’s owner) is and will remain a United States person within the meaning of Section 7701(a)(30) of the Code and is not, and will not become, subject to withholding under Section 1446 of the Code.

(e) That either (A) no part of the aggregate Capital Contributions made by such Member and used by such Member to acquire any Units, constitutes “plan assets” within the meaning of Department of Labor Reg. §2510.3-101 of any “employee benefit plan” within the meaning of Section 3(3) of ERISA, or other “benefit plan investor” (as defined in U.S. Department of Labor Reg. §§2510.3-101 et seq. or in Section 3(42) of ERISA) or assets allocated to any insurance company separate account or general account in which any such employee benefit plan or benefit plan investor (or related trust) has any interest or (B) the source of the funding used to pay the Capital Contributions made by such Member is an “insurance company general account” within the meaning of Department of Labor Prohibited Transaction Exemption 95-60, issued July 12, 1995, and there is no employee benefit plan, treating as a single plan all plans maintained by the same employer or employee organization, with respect to which the amount of the general account reserves and liabilities for all contracts held by or on behalf of such plan exceeds ten percent (10%) of the total reserves and liabilities of such general account (exclusive of separate account liabilities) plus surplus, as set forth in the National Association of Insurance Commissioners “Annual Statement” filed with such Member’s state of domicile.

(f) The Class B Member is and will remain for federal income tax purposes a corporation (and not an S corporation) that is neither a Disqualified Person nor a disregarded entity; provided, however, if, for federal income tax purposes, a Class B Member is a disregarded entity, then each beneficial owner of such Class B Member (or if such beneficial owner is a partnership or disregarded entity, then each beneficial owner of such partnership or disregarded entity) is and will remain an individual or corporation (and not an S corporation or disregarded entity) that is neither a Disqualified Person nor a disregarded entity for federal income tax purposes.

(g) The Class B Member will not take any action that would cause (or fail to take any action within its reasonable control, and not prohibited under any Financing Document or Principal Facility Document to prevent) (i) the Assets of the Company to become (A) except as provided in Section 8.6(g), subject to the alternative depreciation system within the meaning of Section 168(g) of the Code or (B) except as a result of a Class A ITC Loss Event, “tax-exempt use property” within the meaning of Section 168(h) of the Code, or (ii) any portion of the basis of any Facility to be attributable to “qualified rehabilitation expenditures” within the meaning of Section 47(c)(2)(A) of the Code.

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(h) Based upon its Knowledge of the facts pertaining to the transaction as of the date hereof, the Class B Member will not report the transaction to the IRS as a “reportable transaction” pursuant to Code Section 6111, the relevant Treasury Regulations and any other administrative authorities or pronouncements, in each case as they exist on the date hereof; provided, however, that if such facts or law change in a manner affecting the reportability of the transaction, this covenant shall not be applicable.

(i) The Class B Member shall not become either a “related person” with respect to any lender under the Financing Documents for purposes of Treasury Regulation Section 1.752- 4(b).

(j) Prior to the Class A Flip Point, the Company shall not become a “related person” to any purchaser under any power purchase agreement for power delivered from a Facility for purposes of Sections 267 or 707 of the Code, assuming the Company is not a “related person” on account of a relationship with any Class A Member or any Affiliate thereof.

8.11 Representations, Warranties and Covenants of the Class A Member. The Class A Member represents and warrants on the Effective Date and covenants to the Class B Member as follows:

(a) It is an entity duly organized, validly existing and in good standing under the laws of its jurisdiction of organization.

(b) It has the full right, power and authority to perform its obligations hereunder.

(c) This Agreement is a legal valid and binding obligation of such Member enforceable against it in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency or similar laws affecting creditors’ rights generally and by general equitable principles.

(d) It (or if it is a disregarded entity, its owner) is a United States person within the meaning of Section 7701(a)(30) of the Code and is not subject to withholding under Section 1446 of the Code.

(e) That either (A) no part of the aggregate Capital Contributions made by such Member and used by such Member to acquire any Units, constitutes “plan assets” within the meaning of Department of Labor Reg. §2510.3-101 of any “employee benefit plan” within the meaning of Section 3(3) of ERISA, or other “benefit plan investor” (as defined in U.S. Department of Labor Reg. §§2510.3-101 et seq. or in Section 3(42) of ERISA) or assets allocated to any insurance company separate account or general account in which any such employee benefit plan or benefit plan investor (or related trust) has any interest or (B) the source of the funding used to pay the Capital Contributions made by such Member is an “insurance company general account” within the meaning of Department of Labor Prohibited Transaction Exemption 95-60, issued July 12, 1995, and there is no employee benefit plan, treating as a single plan all plans maintained by the same employer or employee organization, with respect to which the amount of the general account reserves and liabilities for all contracts held by or on behalf of such

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plan exceeds ten percent (10%) of the total reserves and liabilities of such general account (exclusive of separate account liabilities) plus surplus, as set forth in the National Association of Insurance Commissioners “Annual Statement” filed with such Member’s state of domicile.

(f) Based upon its Knowledge of the facts pertaining to the transaction as of the date hereof, it will not report the transaction to the IRS as a “reportable transaction” pursuant to Code Section 6111, the relevant Treasury Regulations and any other administrative authorities or pronouncements, in each case as they exist on the date hereof; provided, however, that if such facts or law change in a manner affecting the reportability of the transaction, this covenant shall not be applicable.

8.12 Survival. The representations, warranties and covenants herein shall be continuing agreements of the Members that made them and shall continue until the termination of this Agreement.

8.13 No Breach of Obligations. Notwithstanding anything to the contrary contained herein, in no event shall it be a breach of the Managing Member’s obligations pursuant to this Article VIII to deliver any report, financial statement or Tax Return within the specified timeframes to the extent any failure to comply with such obligations is attributable to either the failure of any Member to grant or object to any consent required pursuant to the terms hereof necessary to enable the Managing Member to comply with such obligations.

ARTICLE IX

TRANSFERS OF INTERESTS; PURCHASE OPTION; FLIP

9.1 Transfer and Encumbrances of Membership Interests.

(a) General Restriction. A Member may not Transfer or create or allow an Encumbrance (other than a Permitted Encumbrance of the type described in clause (n) of such term’s definition) on all or any portion of its Membership Interest, except in strict accordance with this Section 9.1. References in this Agreement to Transfers or Encumbrances of a “Membership Interest” shall also refer to Transfers or Encumbrances of a portion of a Membership Interest. Any attempted Transfer or Encumbrance of any Membership Interest, other than in strict accordance with this Section 9.1, shall be, and is hereby declared, null and void ab initio. The Members agree that a breach of the provisions of this Section 9.1 may cause irreparable injury to the Company and to the other Members for which monetary damages (or other remedy at law) are inadequate in view of (i) the complexities and uncertainties in measuring the actual damages that would be sustained by reason of the failure of a Member to comply with such provision and (ii) the uniqueness of the Company’s business and the relationship among the Members. Accordingly, the Members agree that the provisions of this Section 9.1 may be enforced by specific performance.

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(b) Transfers of Membership Interests.

(i) General Provision. A Member may not Transfer all or any portion of its Membership Interest except by complying with all of the following requirements:

(A) Requirements. The following rules apply:

(1) No Transfer by the Class B Member may be made at any time without the prior written consent of the Class A Members (such consent not to be unreasonably withheld) prior to the date the last Class B Member True Up Date Contribution has been made. Any Transfer by the Class B Member shall be subject to the provisions of Section 9.1(d), and may not be made to any Disqualified Transferee.

(2) No Transfer by the Class A Member may be made at any time prior to the occurrence of the Class A Flip Point without the prior written consent of the Class B Member (such consent not to be unreasonably withheld). Any Transfer by the Class A Member shall be subject to the provisions of Section 9.1(d), and may not be made to a Disqualified Transferee.

(B) Compliance with Requirements. Any such Transfer must comply with the requirements of Section 9.1(b)(iii) and, if the Transferee is to be admitted as a Member, Section 9.1(b)(ii).

(C) Permitted Transfer, Certain Other Transfer. Anything to the contrary in this Section 9.1 notwithstanding,

(1) the provisions of Sections 9.1(b)(iii)(C)(1), 9.1(b)(iii)(F) or 9.1(b)(iv) shall not apply in connection with Transfer by Members holding Class A Interests at any time following December 31, 2018 where the sum of all distributions under Section 5.1 to all Class A Members is less than the sum of all Capital Contributions made to the Company by the Class B Member, and

(2) the provisions of Section 9.1(d) shall apply with respect to any transfer after the Class A Flip Point if (y) the Class B Members have not exercised the Purchase Option pursuant to Section 9.3 or (z) the Class A Member has not exercised its voluntary withdrawal right pursuant to Section 7.4.

(ii) Admission of Transferee as a Member. A Transferee has the right to be admitted to the Company as a Member, with the Membership Interest so transferred to such Transferee, only if (A) the Transferring Member making the Transfer has granted the Transferee the Transferring Member’s entire Membership Interest, or, in the case of Transfer of a part of such Member’s

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Membership Interest, the express right to be so admitted; and (B) such Transfer is effected in strict compliance with this Section 9.1. Any Transferee that has acquired all of the Class B Units then held by the Class B Equity Investor in compliance with the provisions of this Section 9.1 shall become the replacement Managing Member.

(iii) Requirements Applicable to All Transfer and Admissions. In addition to the requirements set forth in Sections 9.1(b)(i) and 9.1(b)(ii), any Transfer of a Membership Interest and any admission of a Transferee as a Member shall also be subject to the following requirements, and such Transfer (and admission, if applicable) shall not be effective unless such requirements are complied with:

(A) Transfer Documents. The following documents must be delivered to the Managing Member and each other Member, and must be reasonably satisfactory, in form and substance, to the Managing Member:

(1) Notice. Written notice not less than ten (10) Business Days prior to the effective date of such Transfer.

(2) Transfer Instrument. An instrument implementing the Transfer.

(3) Ratification of this Agreement. An instrument, executed by the Transferring Member and its Transferee, containing the following information and agreements, to the extent they are not contained in the instrument described in Section 9.1(b)(iii)(A)(2): (1) the notice address of the Transferee; (2) if applicable, the Member Parent of the Transferee; (3) the allocations percentages as to each class of Membership Interest of the Transferring Member after the Transfer by such Transferring Member, and its Transferee (which must total the allocations percentages as to each class of Membership Interest of the Transferring Member before the Transfer); (4) the Transferee’s ratification of this Agreement and its confirmation that the representations and warranties in Article VIII applicable to it are true and correct with respect to it; (5) the Transferee’s ratification of the Facility Documents to which the Transferring Member is a party and agreement to be bound by them to the same extent that the Transferring Member was bound by them prior to the Transfer; (6) in the case of any Transfer of Class B Interests, the Transferee assumes the indemnity obligation set forth in Article XI; and (7) representations and warranties by the Transferring Member and its Transferee (aa) that the Transfer and admission is being made in accordance with Applicable Law, and (bb) that the conditions set forth in Sections 9.1(b)(iii)(B) and (C) have been satisfied.

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(B) Applicable Laws; Securities Laws. Such Transfer does not violate any provision of Applicable Law, including, without limitation, applicable securities laws.

(C) Tax Consequences.

(1) Termination. If prior to the Class A Flip Point, such Transfer is of, or in respect of, Class B Units, such Transfer will not result in the Company’s termination within the meaning of Section 708 of the Code.

(2) Entity Classification. Such Transfer will not cause the Company to be classified as an entity other than a partnership (or cause the Company to be treated as a publicly traded partnership) for purposes of the Code.

(3) Tax Disqualified Person. If such Transfer is of, or in respect of, Class B Units prior to the Class A Flip Point, such Transfer is not to a Disqualified Person.

(4) Related Person. If such Transfer is of, or in respect of, Class B Units, such Transfer will not result in either (1) the Class B Member being a “related person” with respect to any lender under the Financing Documents for purposes of Treasury Regulation Section 1.752-4(b), or (2) prior to the Class A Flip Point, the Company being a “related person” to any purchaser under any power purchase agreement for power delivered from a Facility for purposes of Sections 267 or 707 of the Code.

(5) Opinion Requirement. The Transferring Member or the Transferee delivers to the Company not later than eight (8) Business Days prior to the effective date of the Transfer, a written opinion of nationally recognized tax counsel reasonably acceptable to the other Members that such Transfer will not cause any of (1) an ITC Loss Event (including, without limitation, from the Class B Member being a “related person” with respect to any lender under the Financing Documents for purposes of Treasury Regulation Section 1.752-4(b)), (2) the Company to be classified as an entity other than a partnership (or cause the Company to be treated as a publicly traded partnership) for purposes of the Code or (3) prior to the Class A Flip Point, the Company being a “related person” to any purchaser under any power purchase agreement for power delivered from a Facility for purposes of Sections 267 or 707 of the Code.

For purposes of this Section 9.1(b)(iii)(C), any direct or indirect Transfer of an interest in a Member which would cause any event described in

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Section 9.1(b)(iii)(C) to occur with respect to a Membership Interest of that Member shall be treated as a Transfer by that Member of its Membership Interest.

(D) Payment of Expenses. The Transferring Member and its Transferee shall pay, or reimburse the Company and each other Member for, all reasonable costs and expenses incurred by the Company and such other Members in connection with the Transfer and admission, on or before the tenth day after the receipt by that Person of the Company’s or such other Member’s invoice for the amount due.

(E) No Release. No Transfer of a Membership Interest shall effect a release of the Transferring Member from any liabilities to the Company or the other Members arising from events occurring prior to or in connection with the Transfer.

(F) Consents and Permits. All permits, consents, approvals and licenses with respect to such Transfer shall have been obtained (including any approval by FERC that the Company, the Facility Company or any party to a Transfer requires).

(G) Investment Company Act. Such Transfer does not require the Company to register as an “investment company” under the Investment Company Act of 1940, as amended.

(iv) Change of Member Control. A Change of Member Control must also comply with the requirements of this Section 9.1 (other than Section 9.1(b)(iii)(A)(2), Section 9.1(b)(iii)(A)(3), Section 9.1(b)(iii)(F) or Section 9.1(d)), for a Transfer of such Member’s interest at such time; provided, however, that this Section 9.1(b)(iv) shall not apply to a Transfer pursuant to Section 9.1(b)(v).

(v) Regulatory Compliance.

(A) Regulatory Compliance Cooperation. In the event that a Class A Member reasonably determines that it has a Regulatory Problem, the Company and the Managing Member agree at the sole cost and expense of such Class A Member to take all such actions as are reasonably requested by such Class A Member in order (I) to effectuate and facilitate any transfer by such Class A Member of any Securities in the Company then held by such Class A Member to any Person designated by such Class A Member, as applicable; provided, that Section 9.1(b)(iii) shall be complied with, (II) to permit such Class A Member (or any of its respective Affiliates) to exchange all or any portion of the voting Securities then held by such Person on a share-for-share basis for shares of a class of non-voting Securities of the Company, which non-voting Securities shall be identical in all respects to such voting Securities, except

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that such new Securities shall be non-voting and shall be convertible on such terms as are requested by such Class A Member into voting Securities and reasonably acceptable to the Company in light of regulatory considerations then prevailing, and (III) to continue and preserve the respective allocation of the voting interests with respect to the Company arising out of such Class A Member’s ownership of voting Securities before the transfers and amendments referred to above (including entering into such additional agreements as are reasonably requested by such Class A Member to permit any Person(s) designated by such Class A Member to exercise any voting power which is relinquished by such Class A Member upon any exchange of voting Securities for nonvoting Securities of the Company); and at the sole cost and expense of such Class A Member, the Company shall enter into such additional agreements, adopt such amendments to this Agreement and other relevant agreements and take such additional actions, in each case as are reasonably requested by such Class A Member in order to effectuate the intent of the foregoing; provided, that any such additional agreements, amendments to this Agreement or other relevant agreements, or other actions shall not have an adverse impact on the Company or any other Member. If a Class A Member is, or elects to transfer Securities of the Company in order to avoid a Regulatory Problem to, a Regulated Holder, the Company and each of the Members agree at the request of such Class A Member that the provisions of this Section 9.1(b)(v) shall be applicable to such Regulated Holder in order to assist such Regulated Holder in complying with Applicable Laws and regulations to which it is subject. In the event a Class A Member has the right to acquire any of the Company’s Securities from the Company or any other Person (as the result of a preemptive offer, pro rata offer or otherwise), and such Class A Member reasonably determines that it has a Regulatory Problem, at such Class A Member’s request, the Company, at the sole cost and expense of such Class A Member, will offer to sell to such Class A Member non-voting Securities (or, if the Company is not the proposed seller, will arrange for the exchange of any voting securities for non-voting securities immediately prior to or simultaneous with such sale) on the same terms as would have existed had such Class A Member acquired the Securities so offered and immediately requested their exchange for non-voting Securities as provided above.

(B) Related Covenants.

(1) The Company shall provide at least fifteen (15) days prior written notice to a Class A Member of a proposal to distribute voting or equity securities to any Member or to repurchase voting or equity securities from any Member.

(2) If, in connection with a Regulatory Problem, at any time as a result of any repurchase, redemption or conversion of Company Securities or otherwise, a Class A Member shall hold in excess of 4.99% of any class of voting Securities of the Company, the portion of such Class A Member’s Securities of each such class of Securities entitling such Class A Member to in excess of 4.99% of the voting power of such class shall, without further action on the part of the Class A Member or the Company, be deemed to be non-voting Securities.

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(c) Encumbrances of Membership Interest. A Member may encumber its Membership Interest if the instrument creating such Encumbrance provides that any Transfer upon foreclosure of such Encumbrance (or Transfer in lieu of such foreclosure) must comply with the requirements of Sections 9.1(b)(i) and 9.1(b)(iii). Any such Encumbrance, and any Transfer upon foreclosure of such Encumbrance (or Transfer in lieu of such foreclosure) that complies with such requirements shall be a Permitted Encumbrance and a permitted transfer pursuant to this Section 9.1.

(d) Right of First Bid. This Section 9.1(d) shall apply to any proposed voluntary Transfer of Membership Interests for cash or other tangible consideration under the conditions specified in Section 9.1(b)(i)(A). The Member proposing to make such a Transfer shall provide written notice of its intention to make a Transfer (a “Transfer Notice”) to the remaining Members holding Membership Interests of the same class as those Membership Interests intended to be Transferred or, in the case of a Transfer of Class A Interests after the Class A Flip Point, to all remaining Members. Upon receipt of a Transfer Notice, the Members entitled to receive the Transfer Notice shall have the right for a period of thirty (30) days to submit to the Transferring Member an unconditional offer to purchase, at the price and on the terms set forth in the notice of such offer (a “Bid”), all, but not less than all, of such Membership Interests in such proportions as the offering Members may agree, or, if they cannot agree, on a pro rata basis. Upon receipt of a proper Bid, the Member intending to Transfer its Membership Interests may, in its sole discretion, accept such Bid by notice to the offering Members within thirty (30) days of receipt of such Bid, whereupon the offering Members shall purchase such Membership Interests within five (5) Business Days following receipt of the acceptance of the Bid (or, in any event if later, the fifth Business Day after the receipt of all applicable regulatory and governmental approvals of the purchase). If the Member intending to Transfer its Membership Interests does not accept the Bid, such Member shall (i) so notify each Member who has submitted a Bid, and (ii) have the right for a period of one hundred and eighty (180) days thereafter (or, in any event, if later, the fifth (5th) Business Day after the receipt of all applicable regulatory and governmental approvals of the purchase) to Transfer such Membership Interests at a price which is higher than the price set forth in the Bid and upon terms no less favorable in any material respect to such Member than the terms contained in the Bid; provided, that such Transfer shall be subject to any other applicable provisions of this Section 9.1.

9.2 Buyout Option. This Section 9.2 shall apply to any of the following events (each a “Buyout Event”):

(i) a Member becomes Bankrupt;

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(ii) a Member dissolves and commences liquidation or winding up;

(iii) there occurs an event (other than a Regulatory Problem resolved pursuant to Section 9.1(b)(v)) that makes it unlawful for the Member to continue to be a Member to the extent such event can reasonably be expected to result in a material adverse effect on any of the other Members or the Company (including, without limitation, dissolution of the Company).

(b) In each case, the Member with respect to whom a Buyout Event has occurred is referred to herein as the “Affected Member”.

(c) If a Buyout Event occurs, then each of the other Members shall have the option to acquire the Membership Interest of the Affected Member (or to cause it to be acquired by a third party designated by the other Members) on an “as is, where is” basis without representations or warranties (other than ownership of the Membership Interests by the Affected Member, that no Encumbrance exists against the Membership Interests of the Affected Member other than those created pursuant to this Agreement and that the sale of such Membership Interests do not require any governmental approvals that have not been obtained or create any conflict with the Affected Member’s organizational documents), expressed or implied (and with the Members exercising such preferential right also being referred to herein as “Purchasing Members”) upon giving the Company and all other Members 60 days’ written notice of an election to exercise its buyout rights pursuant to this Section 9.2 (a “Buyout Exercise Notice”) during such period.

(d) The purchase price (the “Buyout Price”) for a Membership Interest being purchased pursuant to this Section 9.2 shall be the Fair Market Value of such Membership Interest as to which a Buyout Event has occurred, as determined under the Appraisal Procedure.

(e) If an option to purchase is exercised in accordance with the other provisions of this Section 9.2, the closing of such purchase shall occur on the 60th day after the delivery of the Buyout Exercise Notice (or in any event, if later, the 30th day after the determination of the Fair Market Value pursuant to Section 9.2(d), or the fifth Business Day after the receipt of all applicable regulatory and governmental approvals to the purchase) and shall comply in all material respects with the requirements set forth in Section 9.1(b)(iii). Unless otherwise agreed among the Members, the Buyout Price shall be paid in cash at such closing.

(f) Upon the occurrence of a closing under Section 9.2(e), the following provisions shall apply to the Affected Member (at, and following, such time, a “Terminated Member”):

(i) The Terminated Member shall cease to be a Member immediately upon the occurrence of the closing.

(ii) The Terminated Member shall no longer be entitled to receive any distributions (including liquidating distributions) or allocations from the Company, and it shall not be entitled to exercise any voting or consent rights or to receive any further information (or access to information) from the Company (other than any required tax information).

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(iii) The Terminated Member must pay to the Company, immediately upon the occurrence of the closing, all amounts owed to the Company by such Terminated Member.

(iv) The Terminated Member shall remain obligated for all liabilities it may have under this Agreement or otherwise with respect to the Company that accrue prior to the closing.

(v) The Membership Interest, including the Capital Account balance attributable thereto, of the Terminated Member shall be allocated among the Purchasing Members in the proportion of the total Buyout Price paid by each Purchasing Member.

9.3 Purchase Option.

(a) The Class A Members grant and convey to the Class B Member the exclusive and irrevocable option to purchase, for a period of six months after each of (i) the Class A Flip Point and (ii) the fifth anniversary of the Class A Flip Point, all (but not less than all) of the Class A Units for the Purchase Price upon the terms and conditions set forth herein (the “Purchase Option”).

(b) To exercise the Purchase Option, the Class B Member must deliver written notice (the “Exercise Notice”) of the exercise of the Purchase Option to the Managing Member and the Class A Members, specifying the effective date of the purchase (the “Purchase Option Date”), which such Purchase Option Date shall not be earlier than 120 days after the date of such Exercise Notice. Once the Exercise Notice has been issued, the Purchase Option shall be irrevocable.

(c) Subject to the receipt of any necessary approvals from any Governmental Authority, including, without limitation, the approval, if any, required under the HSR Act, the Class A Members shall convey all of the Class A Units to the Class B Member (or its designee) on an “as is, where is” basis without representations or warranties (other than ownership of the Class A Units by the Class A Members, that no Encumbrance exists against the Class A Units other than those created pursuant to this Agreement and that the sale of such Class A Units do not require any governmental approvals that have not been obtained or create any conflict with the Class A Members organizational documents), expressed or implied. At the closing of the conveyance, (i) the Class B Member shall expressly assume any and all liability of the Class A Members under this Agreement (other than any liability arising out of a breach of this Agreement by the Class A Member prior to such conveyance), (ii) the Class A Member shall expressly release the Company, the Facility Company, the Class B Member, the Managing Member and their respective Affiliates from any liability as a result of the transactions contemplated by this Agreement and (iii) the Members shall amend this Agreement to reflect the withdrawal of the Class A Members and the transfer of the Class A Units effective as of the Purchase Option Date. The Purchase Price of the Class A Units shall be payable by wire transfer of immediately

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available funds at the closing of Purchase Option. The Class A Members shall allocate the Purchase Price among themselves, pro rata, based upon their relative Class A Interests. All reasonable costs associated with the purchase by a Class B Member, including but not limited to, legal, accounting, tax preparation and audit costs, shall be borne by the Class B Member.

ARTICLE X

DISSOLUTION, LIQUIDATION AND TERMINATION

10.1 Dissolution.

(a) The Company will dissolve and its business and affairs will be wound up on the first to occur of the following (the “Liquidating Events”):

(i) The unanimous written consent of the Members;

(ii) Any other event upon the occurrence of which dissolution is required by the Act (which the Act does not allow to be waived by agreement of the Members), unless, to the extent permitted by the Act, Members (other than the Member with respect to which such event occurs) unanimously elect in writing, within 90 days of the date such event described in this Section 10.1(a)(ii) occurs, to continue the business of the Company, in which case the Company will not dissolve;

(iii) The Transfer by the Company of all or substantially all of its Assets;

(iv) [Intentionally Omitted]; or

(v) December 31, 2071, unless such date is extended by the mutual agreement of the Members.

(b) Each Member agrees that, to the fullest extent permitted by Applicable Law, it will not dissolve itself or the Company or withdraw from the Company except as set forth in Section 10.1(a).

10.2 Liquidation and Termination.

(a) On dissolution of the Company, the Managing Member shall act as liquidator or may appoint one or more other Persons as liquidator. The liquidator shall proceed diligently to wind up the affairs of the Company and make final distributions as provided in this Agreement. The costs of liquidation will be borne as a Company expense. Until final distribution, the liquidator shall continue to operate the Company with all of the power and authority of the Managing Member. The steps to be accomplished by the liquidator are as follows:

(i) As promptly as reasonably practicable after dissolution and again after final liquidation, the liquidator shall cause a proper accounting to be made

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by the Certified Public Accountants of the Company’s and the Facility Company’s Assets, liabilities, and operations through the last day of the calendar month in which the dissolution occurs or the final liquidation is completed, as applicable;

(ii) The liquidator shall pay from Company funds (x) all of the debts and liabilities of the Company and the Facility Company or otherwise make adequate provision for them (including the establishment of a cash escrow fund for contingent, conditional or unmatured liabilities in such amount and for such term as the liquidator may reasonably determine), and (y) the amount of all accrued, unpaid Preferred Distributions, and the unpaid amount of any Class A Withdrawal Amount or Class A Member Partial Redemption Amount (including any balance of any Class A Withdrawal Note);

(iii) with respect to the remaining Assets of the Company:

(A) the liquidator shall use all commercially reasonable efforts to obtain the best possible price and may sell any or all of the Company’s, and the Facility Company’s Assets (subject to any and all restrictions to which the Company or the Facility Company is subject, including restrictions under Applicable Laws or any Permitted Encumbrances), including to the Members at such price, but in no event lower than the Fair Market Value thereof; and

(B) with respect to all of the Company’s or the Facility Company’s Assets that have not been sold, the Values of such Assets shall be determined pursuant to subparagraph (ii) of the definition of Value;

(iv) After giving effect to all distributions (including those under Section 5.1) and all Capital Contributions (including those under Section 3.1, Section 3.2, Section 3.3, and Section 10.3) for all periods, but subject to Section 10.2(a)(v), all remaining cash and property (including any Available Cash Flow and liquidation proceeds) shall be distributed to the Members as follows:

(A) First, any Available Cash Flow that does not consist of Available Capital Income Cash Flow shall be distributed in the order and priority set forth in Section 5.1(a)(i) and (ii), and then as set forth in Section 5.1(b)(iii); and

(B) Second, any Available Capital Income Cash Flow shall be distributed (I) first to the Class A Members in an amount equal to the excess, if any, of (1) the sum of all Preferred Distributions shown as made or paid to the Class A Members in the Base Case Model (including those provided for after the date of liquidation), minus (2) all Preferred Distributions actually made or paid to the Class A Members under Section 5.1 or Section 10.2(a)(ii); (II) second, in an amount equal to any Class A Investment Balance that has not been paid in full to the Class A Member; and (III) thereafter, in the order and priority set forth in Section 5.1(a)(i) and (ii), and then as set forth in Section 5.1(b)(iii).

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(v) It is intended that the distributions provided in Section 10.2(a)(iv) will be in accordance with the positive balances (if any) in the final Capital Account balances of the Members, after giving effect to all distributions (including those under Section 5.1) and all Capital Contributions (including those under Section 3.1, Section 3.2, Section 3.3 and Section 10.3) and any allocations to be made under this Section 10.2(a)(v). however, if such distributions would not result in such intention being satisfied, constituent items of income, gain, loss and deduction under Code section 702(a)(1) through (7) will be reallocated among the Members for the year of the liquidation, to the extent permissible under Code section 704(b) (and, if necessary and permissible under Code section 704(b), for prior Company taxable years for which the deadline (determined without extensions) for filing the Company’s federal income tax return has not passed), so as to cause the Capital Account balances to be in the amounts necessary to assure that such result is achieved. For the avoidance of doubt, in no event will any Member be distributed an amount in excess of its positive balance in its Capital Account.

(vi) Any distribution to the Members in respect of their Capital Accounts pursuant to this Section 10.2 shall be made by the end of the Company Taxable Year in which a Liquidating Event occurs (or if later, within 90 days after the date of such Liquidating Event).

(b) The distribution of cash or property to a Member in accordance with the provisions of this Section 10.2 constitutes a complete return to the Member of its Capital Contributions and a complete distribution to the Member on account of its Membership Interest and all the Company’s property and constitutes a compromise to which all Members have consented pursuant to Section 18-502(b) of the Act.

10.3 Deficit Capital Accounts.

(a) Except as provided in this Section 10.3, no Member shall be obligated to contribute cash to restore a deficit in its Capital Account.

(b) Each Class A Member shall have the right by written notice to the Company to elect to undertake an obligation, in the event there is a “liquidation” of a Class A Member’s interest in the Company within the meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(g), after giving effect to all allocations (including, for the avoidance of doubt, such Class A Member’s share of any Company Minimum Gain and Member Nonrecourse Debt Minimum Gain), all distributions and all Capital Contributions for all periods, and that Class A Member has a deficit balance in its Capital Account, to contribute to the Company cash in an amount equal to such deficit balance or a limited amount of such deficit balance, as provided by the Class A Member in such notice, by the end of the Taxable Year of the Company during which the liquidation of the Company occurs, or if later, within ninety (90) days after the date of such liquidation. Notwithstanding the foregoing, after such point in time at which the

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absolute value of a Class A Member’s deficit Capital Account is less than the maximum amount of its deficit restoration obligation, the obligation of such Class A Member to restore that deficit Capital Account shall be adjusted downward (but not increased) at the end of each Taxable Year to an amount equal to the lesser of (A) the dollar amount set forth in the latest of any notice given by such Class A Member, or (B) the absolute value of the deficit (if any) in such Class A Member’s Capital Account at the end of such Taxable Year. Nothing contained in this Agreement shall obligate any Class A Member to issue such a notice. Any such notice given by a Class A Member pursuant hereto shall be deemed to constitute a duly adopted amendment to this Agreement without any further action by any party.

10.4 Termination. On completion of the satisfaction of liabilities and distribution of Assets as provided in this Agreement, the Managing Member (or such other Person or Persons as the Act may require or permit) shall cause the cancellation of the Delaware Certificate and any filings made as provided in Section 2.1 and shall take such other actions as may be necessary to terminate the Company.

ARTICLE XI

11.1 Indemnification of Class A Investor Group by the Class B Member. Subject to the terms and conditions of this Article XI, the Class B Member hereby indemnifies, defends, reimburses and holds harmless each Class A Equity Investor and its respective parent or subsidiary companies, partners and other Affiliates, and their respective officers, directors, employees, attorneys, contractors and agents (collectively, the “Class A Investor Group”), from and against any and all Damages asserted against, resulting to, imposed upon, or incurred by the Class A Investor Group, directly or indirectly, by reason of or resulting from (a) any breach by Guarantor, the Class B Member (whether in its capacity as the Class B Member, the Managing Member, the Tax Matters Member or otherwise), the Company or the Administrator or their Affiliates of their respective representations and warranties or covenants contained in this Agreement, any other Investment Document or the ASA or (b) any Environmental Claim arising from any pre-closing environmental contamination (collectively, “Class A Investor Claims”). To the extent that any such Damages relating to a Class A Investor Claim remain unpaid after such claim has been made therefor pursuant to this Article XI, any distributions otherwise payable to the Class B Member under this Agreement shall be used to satisfy the obligations of Guarantor, the Class B Member, the Company or their Affiliates, as applicable, hereunder in accordance with Section 5.4.

11.2 Brokers. The Class B Equity Investor agrees to indemnify and hold harmless the Class A Investor Group from and against any and all claims, obligations, actions, liabilities, losses, damages, costs or expenses (including court costs and attorneys’ fees) of any kind or character arising out of or resulting from any agreement, arrangement or understanding alleged to have been made by, or on behalf of, the Company or the Administrator or their Affiliates with any broker or finder in connection with this Agreement or the transaction contemplated hereby.

11.3 Limitation on Liability. The indemnification obligations of the parties hereto pursuant to this Article XI shall be subject to the following limitations:

(a) The amount of Damages required to be paid by any party to indemnify any other party pursuant to this Article XI as a result of any Class A Investor Claim shall be reduced to the extent of any amounts actually received by such other party after the Effective Date pursuant to the terms of the insurance policies (if any) obtained and maintained by the Company, the Facility Company or the Class A Equity Investor or any Affiliate thereof covering such claim. In the event an indemnified party or any of its Affiliates receives insurance proceeds with respect to a Class A Investor Claim for which it previously received indemnification payments, such indemnified party shall promptly pay to the indemnifying party such insurance proceeds to the extent such proceeds and the previously paid indemnification payments, in the aggregate, exceed the amount of the applicable Class A Investor Claim.

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(b) Damages paid pursuant to this Article XI shall be grossed-up and paid on an after-tax basis (assuming the highest marginal federal income tax rate then applicable to corporations and a 3.0% state and local income tax rate). In the event an indemnified party is entitled to claim an item of loss or deduction, credit or other tax benefit with respect to the event that gives rise to the receipt of an indemnity payment, such tax benefit shall be taken into account for purposes of determining the amount of Damages and the related indemnification payment and, to the extent payment has been made to an indemnified party prior to the period in which such tax benefit was claimed, the indemnified party shall promptly repay the indemnifying party an amount equal to the present value of such loss or deduction, credit or other tax benefit (in each case, assuming the highest marginal federal income tax rate then applicable to corporations and a 3.0% state and local income tax rate); provided that any such refund shall not exceed the original amount paid.

(c) The indemnification obligations of the parties pursuant to this Agreement shall be limited to actual Damages and shall not include special, incidental, consequential, indirect, punitive, or exemplary Damages (including lost profits and damages for a lost opportunity); provided, that any incidental, consequential, indirect, punitive, or exemplary Damages recovered by a third party (including Governmental Entities) against a Person entitled to indemnity pursuant to this Article XI shall be included in the Damages recoverable under such indemnity; and provided, further, that no ITC Loss Tax Event Liability shall be considered as special, incidental, consequential, indirect, punitive or exemplary damages and shall be included in the Damages recoverable under this indemnity.

(d) No member of the Class A Investor Group may receive compensation for Damages suffered by such Person to the extent that such Damages are attributable to (a) the gross negligence or willful misconduct of such Person or (b) the breach of any representation or warranty by such Person in this Agreement or any other Investment Document to the extent such representation or warranty was false when made.

11.4 Procedure for Indemnification. After receipt by an indemnified party under Section 11.1, Section 11.2 or Section 11.3 of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against an indemnifying party under such Section, give written notice to the indemnifying party of the commencement thereof. The failure to promptly notify the indemnifying party shall not relieve it of any liability that it may have to any indemnified party with respect to such action; provided that, to the extent that any such failure to provide prompt notice is responsible for an increase in the indemnity

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obligations of the indemnifying party, the indemnifying party shall not be responsible for any such increase. In case any such action shall be brought against an indemnified party and it shall give written notice to the indemnifying party of the commencement thereof, the indemnifying party shall be entitled to participate therein and, to the extent that it may wish, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party. If the indemnifying party elects to assume the defense of such action, the indemnified party shall have the right to employ separate counsel at its own expense and to participate in the defense thereof. If the indemnifying party elects not to assume (or fails to assume) the defense of such action, the indemnified party shall be entitled to assume the defense of such action with counsel of its own choice, at the expense of the indemnifying party. If the action is asserted against both the indemnifying party and the indemnified party and (i) there is a conflict of interests which renders it inappropriate for the same counsel to represent both the indemnifying party and the indemnified party or (ii) such action could reasonably be expected to result in the imposition of criminal liability, the indemnifying party shall be responsible for paying for separate counsel for the indemnified party; provided, however, that if there is more than one indemnified party and it is practical for all such parties to be represented by common counsel, the indemnifying party shall not be responsible for paying for more than one separate firm of attorneys to represent the indemnified parties, regardless of the number of indemnified parties. If the indemnifying party elects to assume the defense of such action, (a) no compromise or settlement thereof may be effected by the indemnifying party without the indemnified party’s written consent (which shall not be unreasonably withheld) unless the sole relief provided is monetary damages that are paid in full by the indemnifying party and (b) the indemnifying party shall have no liability with respect to any compromise or settlement thereof effected without its written consent (which shall not be unreasonably withheld) unless the indemnifying party has failed to defend such indemnified party against such action.

11.5 Exclusivity. Subject to Section 5.4, and without in any way limiting the Guaranty, the parties hereto agree that, in relation to any breach, default, or nonperformance of any representation, warranty, covenant, or agreement made or entered into by Guarantor, the Class B Member (whether in its capacity as the Class B Member, the Managing Member, the Tax Matters Member or otherwise) hereby agrees that pursuant to this Agreement, any other Investment Document, the ASA or any certificate, instrument, or document delivered pursuant hereto or thereto or arising out of the transactions contemplated herein or therein, the only relief and remedy available to the other parties hereto in respect of said breach, default, or nonperformance shall be Damages, but only to the extent properly claimable hereunder and as limited pursuant to this Article XI or otherwise hereunder.

11.6 No Right of Contribution. After the Effective Date, the Company shall have no liability to indemnify the Class B Equity Investor on account of the breach of any representation or warranty or the nonfulfillment of any covenant or agreement of the Company; and the Class B Equity Investor shall not have any right of contribution against the Company.

11.7 Entire Agreement. Subject to the Guaranty, Article XI of this Agreement constitutes the entire agreement and understanding of the parties with respect to indemnification hereunder.

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ARTICLE XII

GENERAL PROVISIONS

12.1 Offset. Whenever the Company (or another Person on behalf of the Company) is to pay or distribute any sum to any Member, any amounts then owed by such Member or its Affiliate to the Company (as determined in writing to the satisfaction of the other Members) shall be deducted from such sum before payment.

12.2 Notices. All notices, consents, demands, requests or other communications which may be or are required to be given under this Agreement shall be in writing and shall (a) be sent by overnight courier, facsimile or United States mail, addressed to the recipient, postage paid, and registered or certified, return receipt requested, or delivered to the recipient in person and (b) be sent or delivered at the addresses set forth in the Equity Capital Contribution Agreement or such other address as a Member may specify by notice to the Company and the other Members. Any notice, request or consent to the Company must be given to the Managing Member. Notices, consents, demands, requests and other communications shall be deemed effective or served on the date of receipt at the address of the Person to receive it.

12.3 Counterparts. This Agreement may be executed in one or more counterparts, each bearing the signatures of one or more Members. Each such counterpart shall be considered an original and all of such counterparts shall constitute a single agreement binding all the parties as if all had signed a single document. Facsimile signatures shall be accepted as original signatures for purposes of this Agreement.

12.4 Governing Law and Severability. THIS AGREEMENT SHALL BE DEEMED MADE AND PREPARED AND SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAWS THEREOF WHICH MAY REQUIRE THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. If any provision of this Agreement shall be contrary to any other Applicable Law, at the present time or in the future, such provision shall be deemed null and void, but this shall not affect the legality of the remaining provisions of this Agreement. This Agreement shall be deemed to be modified and amended so as to be in compliance with Applicable Law and this Agreement shall then be construed in such a way as will best serve the intention of the parties at the time of the execution of this Agreement.

12.5 Entire Agreement. This Agreement, including any Schedules and Exhibits, together with the other Investment Documents, constitutes the entire agreement among the Members regarding the terms and operations of the Company, except as amended in writing pursuant to the requirements of this Agreement, and supersedes all prior and contemporaneous agreements, statements, understandings and representations of the parties.

12.6 Effect of Waiver or Consent. A waiver or consent, express or implied, to or of any breach or default by any Person in the performance by that Person of its obligations under this Agreement, or any Investment Document is not a consent or waiver to or of any other breach or default in the performance by that Person of the same or any other obligations of that Person

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under this Agreement, or any Investment Document. Failure on the part of a Person to complain of any act of any Person or to declare any Person in default with respect to its obligations under this Agreement, or any Investment Document, irrespective of how long that failure continues, does not constitute a waiver by that Person of its rights with respect to that default until the applicable statute of limitations period has run.

12.7 Amendment or Modification. Except as otherwise provided herein, this Agreement may be amended or modified from time to time only by a written instrument executed by all Members. Notwithstanding anything contained herein to the contrary, for so long as any indebtedness or Obligations remain outstanding under the Financing Documents, each Member hereby acknowledges that the consent of certain parties to the Financing Documents, such as the Facility Lender, may be required in connection with the Facility Company taking certain actions. Any such consent shall be obtained in writing from the Facility Lender and any other required parties to the Financing Documents as and when required pursuant to the terms of the Financing Documents.

12.8 Binding Effect. Subject to the restrictions on Transfers set forth in this Agreement, this Agreement is binding on and inures to the benefit of the Members and their respective legal representatives, permitted successors and permitted assigns.

12.9 Further Assurances. In connection with this Agreement and the transactions contemplated hereby, each Member shall execute and deliver any additional documents and instruments and perform any additional acts that may be necessary or appropriate to effectuate and perform the provisions of this Agreement and those transactions contemplated here, including all filing, recording, publishing and other acts appropriate to comply with all requirements for the operation of a limited liability company under the laws of all jurisdictions where the Company shall conduct business.

12.10 Jurisdiction; Service of Process. Each of the parties hereto hereby irrevocably consents to the non-exclusive jurisdiction of the courts of the State of New York and of any federal court located in the Southern District of New York in connection with any suit, action or other proceeding arising out of or relating to this Agreement or the transactions contemplated hereby; agrees to waive any objection to venue in the State and County of New York; and agrees that, to the extent permitted by law, service of process in connection with any such proceeding may be effected by mailing in the same manner provided in Section 11.2 hereof.

12.11 Limitation on Liability. NO CLAIMS SHALL BE MADE BY ANY PARTY HERETO OR ANY OF ITS AFFILIATES, DIRECTORS, EMPLOYEES, ATTORNEYS OR AGENTS AGAINST ANY OTHER PARTY HERETO OR ANY OF ITS AFFILIATES, DIRECTORS, EMPLOYEES, ATTORNEYS OR AGENTS FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES (WHETHER OR NOT THE CLAIM THEREFORE IS BASED ON CONTRACT, TORT, DUTY IMPOSED BY LAW OR OTHERWISE), IN CONNECTION WITH, ARISING OUT OF OR IN ANY WAY RELATED TO THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR THE OTHER INVESTMENT DOCUMENTS OR ANY ACT OR OMISSION OR EVENT OCCURRING IN CONNECTION THEREWITH; AND EACH PARTY HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE UPON ANY SUCH CLAIM FOR ANY SUCH SPECIAL, INDIRECT,

70

CONSEQUENTIAL OR PUNITIVE DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR, PROVIDED, HOWEVER, THAT AT ANY TIME (a) IF AN ITC IS RECAPTURED FROM THE FACILITY COMPANY BECAUSE THE CLASS B MEMBER OR ITS AFFILIATE, OR ANY FACILITY ENTITY BREACHES ANY REPRESENTATION, WARRANTY OR COVENANT, THE VALUE OF THE ITC THAT IS RECAPTURED SHALL NOT CONSTITUTE CONSEQUENTIAL DAMAGES AND (b) IF AN ITC IS RECAPTURED FROM THE FACILITY COMPANY BECAUSE THE INVESTOR OR ITS AFFILIATE BREACHES ANY REPRESENTATION, WARRANTY OR COVENANT, THE VALUE OF THE ITC THAT IS RECAPTURED SHALL NOT CONSTITUTE CONSEQUENTIAL DAMAGES; AND PROVIDED, FURTHER, HOWEVER, THAT AFTER THE CLASS A MEMBER SHALL HAVE ACTUALLY FUNDED ITS INVESTOR FUNDING DATE CONTRIBUTION IN RESPECT OF THE FACILITY COMPANY, IF AN ITC IS RECAPTURED FROM THE FACILITY COMPANY BECAUSE CLASS B MEMBER OR ITS AFFILIATE, OR THE FACILITY COMPANY BREACHES ANY REPRESENTATION, WARRANTY OR COVENANT, OR A FINAL DETERMINATION IS MADE FOR FEDERAL INCOME TAX PURPOSES THAT THE ITC AMOUNT CLAIMED WAS IN EXCESS OF THAT WHICH WAS APPROPRIATE AND CORRECT, ANY FEDERAL TAX DETRIMENT SUFFERED AS RESULT OF SUCH RECAPTURE SHALL NOT CONSTITUTE CONSEQUENTIAL DAMAGES; AND PROVIDED, FURTHER, HOWEVER, THAT AFTER THE CLASS A MEMBER SHALL HAVE ACTUALLY FUNDED ITS INVESTOR FUNDING DATE CONTRIBUTION IN RESPECT OF THE FACILITY COMPANY, IF ITC AMOUNT CLAIMED IS DETERMINED FOR FEDERAL INCOME TAX PURPOSES TO BE IN EXCESS OF THAT WHICH IS APPROPRIATE, ANY FEDERAL TAX DETRIMENT SUFFERED AS RESULT OF SUCH DETERMINATION, SHALL NOT CONSTITUTE CONSEQUENTIAL DAMAGES.

THE OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT ARE OBLIGATIONS OF THE PARTIES ONLY AND NO RECOURSE SHALL BE AVAILABLE UNDER THIS AGREEMENT AGAINST ANY OFFICER, DIRECTOR, MANAGER, MEMBER, PARTNER, OR AFFILIATE OF ANY PARTY.

[SIGNATURE PAGE FOLLOWS]

71

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.

FIRSTAR DEVELOPMENT, LLC
By:	/s/ Matthew Ulrich
Name:	Matthew Ulrich
Title:	Officer
CLEAN TECHNOLOGIES 2013B, LLC
By:
Name:
Title

[Signature Page to Holdco LLCA]

CLEAN TECHNOLOGIES 2013B, LLC
By:	/s/ Sendil Atreya
Name:	SENDIL ATREYA
Title:	VICE PRESIDENT

[Signature Page to Holdco LLCA]

EXHIBIT A

EXECUTION DATE CONTRIBUTIONS MADE

	Class A Equity Investor	Capital Contributions			Capital Account Balance			Units	Percentage of Class A Interest Owned
Effective Date	Firstar Development LLC		[***	]		[***	]	100 Class A Units		100	%
	Class B Equity Investor	Capital Contributions			Capital Account Balance			Units	Percentage of Class B Interest Owned
Effective Date	Clean Technologies 2013B, LLC		[***	]		[***	]	100 Class B Units		100	%

[***] Confidential Treatment Requested

Exhibit A - Page 1

EXHIBIT B

FORM OF MEMBERSHIP CERTIFICATE

THE MEMBERSHIP INTEREST REPRESENTED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES LAW OF ANY STATE. SUCH MEMBERSHIP INTEREST MAY NOT BE SOLD OR TRANSFERRED UNLESS SUBSEQUENTLY REGISTERED OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE. THIS CERTIFICATE EVIDENCES AN INTEREST IN 2013B ESA HOLDCO, LLC AND SHALL BE A SECURITY GOVERNED BY ARTICLE 8 OF THE UNIFORM COMMERCIAL CODE AS IN EFFECT FROM TIME TO TIME IN THE STATES OF DELAWARE AND NEW YORK AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OTHER APPLICABLE JURISDICTION.

CERTIFICATE FOR MEMBERSHIP INTEREST

IN

2013B ESA HOLDCO, LLC

Certificate No. [A][B] – [    ]

The undersigned, as the Managing Member of 2013B ESA HOLDCO, LLC, a Delaware limited liability company (the “Company”), hereby certifies that [                    , a                     ], is the holder of a Class [    ] Interest in the Company to the extent and as described in Exhibit A to the Amended and Restated Operating Agreement of the Company, effective as of [            ], 2013, as amended and restated from time to time (the “Agreement”) (a copy of which is on file at the principal office of the Company). All capitalized terms not otherwise defined herein have the meanings ascribed to them in the Agreement.

This Certificate is not negotiable or transferable except by operation of law, or as otherwise provided in the Agreement, and any such transfer will be valid only upon delivery of this Certificate, together with an assignment in a form sufficient to convey an interest in a limited liability company pursuant to the Delaware Limited Liability Company Act, as it may be amended and in effect from time to time, or any successor statute thereto, duly executed, to the Transferee Member of the Company.

Dated: [                    ]

CLEAN TECHNOLOGIES 2013B, LLC

By:

Name:

Title:

Exhibit B - Page 1

EXHIBIT C

FORM OF CLASS A WITHDRAWAL NOTE

SECURED PROMISSORY NOTE

(CLASS A WITHDRAWAL NOTE)

THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD, TRANSFERRED, OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS.

This Note is issued pursuant to the terms and conditions of Section [7.4][7.8] of that certain Amended and Restated Operating Agreement dated as of [            ], 2013, between Clean Technologies 2013B, LLC and Firstar Development LLC with respect to 2013B ESA HOLDCO, LLC (the “Limited Liability Company Agreement”).

This Note is secured as provided in that certain [INSERT NAME OF PLEDGE AGREEMENT] dated as of the date hereof between 2013B ESA HOLDCO, LLC and [Firstar Development LLC].

$[        ] [Date]

FOR VALUE RECEIVED, 2013B ESA HOLDCO, LLC, a Delaware limited liability company (the “Company”), hereby promises to pay to the order of [Firstar Development LLC], a Delaware limited liability company (the “Class A Member”), the principal sum of [            ] dollars $[        ], (such amount, the “Borrowing”) on a date that is five (5) years after the date of this Note (the “Maturity Date”), unless sooner paid as provided herein.

The Company also promises to pay interest on the unpaid principal amounts from time to time outstanding hereunder, from the date of the Borrowing until all the Borrowing hereunder have been paid in full. The Borrowing shall bear interest at a rate per annum equal to [INSERT APPLICABLE FEDERAL RATE UNDER SECTION 1274(d) OF THE CODE ], such interest to be payable monthly on the last Business Day of each month (each, a “Payment Date”), together with principal payable for such month as set forth in Schedule 1 hereto, commencing, with respect to the Borrowing, on the last business day of the calendar month immediately following the date of the Borrowing. In addition, all accrued and unpaid interest thereon will be due and payable upon the day that all principal is due and payable (whether on the Maturity Date, by acceleration or otherwise).

Exhibit C – Page 1

Payment of both principal and interest on this Note shall be made by wire transfer to the Class A Member at such bank instructions provided to the Company in lawful money of the United States of America in immediately available funds.

The Company shall have the right to prepay any amount borrowed under this Note in whole or in part at any time, together with interest on the amount prepaid to the date of prepayment, without penalty or premium. Amounts repaid under this Note may not be re-borrowed.

Upon the occurrence of any of the following events, this Note shall become immediately due and payable in full, together with interest accrued thereon:

(a) the Company shall fail to make any payment hereunder when due and payable;

(b) the Company shall become insolvent, or generally fail to pay, or admit in writing its inability to pay, its debts as they become due, or shall voluntarily commence any proceeding or file any petition under any bankruptcy, insolvency or similar federal, state or foreign law or seeking dissolution, liquidation or reorganization or the appointment of a receiver, trustee, custodian or liquidator for it or a substantial portion of its property, assets or business or to effect a plan or other arrangement with its creditors, or shall file any answer admitting the jurisdiction of the court and the material allegations of an involuntary petition filed against it in any bankruptcy, insolvency or similar proceeding, or shall be adjudicated bankrupt, or shall make a general assignment for the benefit of creditors, or shall consent to, or acquiesce in the appointment of, a receiver, trustee, custodian or liquidator for a substantial portion of its property, assets or business, or shall by any act or failure to act indicate its consent to or approval of any of the foregoing, or if any corporate action is taken by the Company for the purpose of effecting any of the foregoing; or

(c) involuntary proceedings or an involuntary petition shall be commenced or filed against the Company under any bankruptcy, insolvency or similar federal, state or foreign law or seeking the dissolution, liquidation or reorganization of it or the appointment of a receiver, trustee, custodian or liquidator for it or of a substantial part of its property, assets or business, and such proceedings or petition shall not be dismissed within sixty (60)

Exhibit C – Page 2

days; or any writ, judgment, tax lien, warrant of attachment, execution or similar process shall be issued or levied against a substantial part of its property, assets or business, and such writ, judgment, lien, warrant of attachment, execution or similar process shall not be released, vacated or fully bonded, within sixty (60) days after commencement, filing or levy, as the case may be, or any order for relief shall be entered in any such proceeding; or any winding-up, dissolution, liquidation or reorganization of the Company.

The Company waives any and all right to assert any defense (except for the Company’s performance under this Note), set-off, counterclaim or crossclaim of any nature whatsoever with respect to this Note or the obligations of the Company hereunder in any action or proceeding brought by the Class A Member to collect this Note, or any portion hereof. The Company waives presentment, demand, notice, protest and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Note.

The Company promises to pay all costs and expenses of the Class A Member (including, without limitation, reasonable attorneys’ fees and disbursements) incurred in connection with (i) the enforcement of, or collection of any amounts due under, this Note or (ii) any waiver, extension, amendment or modification of this Note.

This Note shall be binding upon, and shall inure to the benefit of, the Company and the Class A Member and their respective successors and assigns; provided, however, that the Company shall not assign its rights or obligations hereunder without the prior written consent of the Class A Member. This Note may be freely assigned by the Class A Member without the consent of the Company.

This Note may only be modified, amended, or terminated (other than by payment in full) by an agreement in writing signed by the Company and the Class A Member. No waiver of any term, covenant or provision of this Note shall be effective unless given in writing by the Class A Member.

THIS NOTE SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW, BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF LAWS PROVISIONS THEREOF). ALL LEGAL ACTIONS OR PROCEEDINGS BROUGHT AGAINST EITHER PARTY WITH RESPECT TO THIS NOTE MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE COUNTY OF NEW YORK, STATE OF NEW

Exhibit C – Page 3

YORK, AND BY EXECUTION AND DELIVERY OF THIS NOTE EACH PARTY ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, THE JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS NOTE. EACH PARTY HEREBY EXPRESSLY AND IRREVOCABLY WAIVES ANY CLAIM OR DEFENSE IN ANY SUCH ACTION OR PROCEEDING BASED ON ANY ALLEGED LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS OR ANY SIMILAR BASIS. EACH PARTY FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF ANY COMPLAINT, SUMMONS, NOTICE OR OTHER PROCESS RELATING TO ANY LEGAL ACTION OR PROCEEDING BY DELIVERY THEREOF TO IT BY HAND OR BY MAIL TO THE ADDRESS SET FORTH IN SECTION 12.2 OF THE LIMITED LIABILITY COMPANY AGREEMENT. NOTHING HEREIN SHALL AFFECT THE RIGHT OF EITHER PARTY TO BRING PROCEEDINGS AGAINST THE OTHER PARTY IN THE COURTS OF ANY OTHER JURISDICTION OR TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR COUNTERCLAIM ARISING IN CONNECTION WITH THIS NOTE.

IN WITNESS WHEREOF, the Company has executed this Note as of the day and year first above written.

2013B ESA HOLDCO, LLC
By:
	Name:
	Title:

Exhibit C – Page 4

SCHEDULE 1

TO CLASS A WITHDRAWAL NOTE

Principal Schedule

Month Amount

Exhibit C – Page 5

EXHIBIT D

FORM OF QUARTERLY RENEWABLE ENERGY CERTIFICATE

(See Attached)

Exhibit D

USBCDC RENEWABLE ENERGY COMPLIANCE CERTIFICATE usbancorp.

Deal Name: Compliance Period: Quarter 4 ending December 31st, 2012 Project ID #: Deal Type ITC

ITC RECAPTURE Has there been a change in ownership of any system (or turbine)? If yes, explain: Yes No
Has any system (or turbine) been taken out of operation? If yes, explain: Yes No

OPERATIONS Has there been a default on a PPA or Lease? If yes, explain: Yes No

If PPAs, have systems been generating sufficient power to support the projections that were prepared at closing? If no, explain: Yes No

Any major concerns with system operations or maintenance? If yes, explain: Yes No

Are there any known substantial negative changes in the financial condition of any PPA or Lease counterparty?
If yes, explain: Yes No

Are there any known substantial negative changes in the financial condition of the Guarantor(s)?
If yes, explain: Yes No

Has there been a distribution of Net Cash Flows? If yes, please include report. Yes No

Has there been a default on any mortgage, taxes, interest or other obligation? If yes, explain: Yes No

Has there been a death, dissolution, or Bankruptcy of any Owner as defined in the Operating Agreement?
If yes, explain: Yes No

Are there any current or pending lawsuits, legal proceedings, or alleged violations of law as defined in the Operating Agreement?
If yes, please include copies. Yes No

Are there any alleged violations of health, safety, or building codes as defined in the Operating Agreement? If yes, please include copies. Yes No

Date the last facility was placed in service (PIS) as defined in transaction documents. Leave blank if not PIS. Date:

RESERVES (please skip section if not applicable) Please list reserve accounts and balances:

Bank Name Account Owner Purpose of the Account As of Date Balance $ - $ - $ - $ - $ - $ - $ - $ -

REC Revenue (please skip section if not applicable) REC Revenue status:
Projected REC revenue to investor: $ - Amount of REC applied for: $ -
REC revenue received: $ - Amount transferred to investor: $ -

LOAN STATUS (please skip section if not applicable)

Please list loans:

Original loan Commitment Lender Borrower Type of Loan As of Date Current Balance $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ -

Are there any covenant defaults? If yes, explain:		Yes	No
Are there any monetary defaults? If yes, explain:		Yes Yes	No No
What is the expected conversion date on any construction loans?	Date:

EQUIPMENT WARRANTY STATUS
Are all equipment warranties still in full force and effect?
If No, explain Yes No

ATTACHMENTS (Please mark an “X” below pertaining to items attached.)
Operations & Maintenance Report Cash Flow Report Copies of violation of code Copies of violation of law
Additional comments and/or support Certification
I hereby certify that I am an authorized signer of the Sponsor and that the above and attached information is true.
X Comments:

Please return the completed certificate to usbcdc.renewableenergy@usbank.com no later than 45 days after current period.

EXHIBIT E

FORM OF RENEWABLE ENERGY MONTHLY REPORT

(See Attached)

Exhibit E

Renewable Energy Monthly Report

(ITC)

Fund Name:	As of Date:
Original Fund Amount: [***]

Instructions:

• Please input the following

• The projected final Placed in Service date for the fund.

• The stage of installation percentage as outlined below

• The total should equal 100%.

• Any additional comments concerning the fund in the notes section.

• The document should be certified by an authorized signor.

• Attach any supporting documents to support installation.

Installation and Milestone Tracking

Projected final Placed in Service date for the fund: mm/dd/yyyy

Stage of Installation	31-Dec Actual			31-Jan Forecast			28-Feb Forecast
Inspection (Permits)		0.00	%		0.00	%		0.00	%
Site Construction		0.00	%		0.00	%		0.00	%
Commissioning (Start-up Sequence)		0.00	%		0.00	%		0.00	%
Placed In Service (PTO)		0.00	%		0.00	%		0.00	%
Total		100.00	%		100.00	%		100.00	%

Notes and Additional Comments

Notes

Certification

X

Signature

usbank.com

[***] Confidential Treatment Requested

EX-10

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Exhibit 10.55

Execution Version

AMENDED AND RESTATED GUARANTY

This AMENDED AND RESTATED GUARANTY (this “Guaranty”), dated as of August 2, 2013, by Bloom Energy Corporation, a Delaware corporation (the “Guarantor”), in favor of Firstar Development, LLC, a Delaware limited liability company (together with its successors, permitted assigns or permitted transferees, the “Guaranteed Party”).

PRELIMINARY STATEMENTS

A. The Guarantor previously executed that certain Guaranty, dated as of December 21, 2012 (the “Original Guaranty”), in favor of the Guaranteed Party in connection with that certain Equity Capital Contribution Agreement, dated as of December 21, 2012 (the “Original ECCA”), by and between the Guaranteed Party and Clean Technologies III, LLC, a Delaware limited liability company (the “Existing Class B Member”).

B. The Guarantor desires to (1) amend and restate the Original ECCA, in the manner and subject to the terms and conditions set forth in that certain Amended and Restated Equity Capital Contribution Agreement, dated as of the date hereof or on such future date as it may occur (the “Expansion ECCA”), by and between the Guaranteed Party and the Existing Class B Member, and (2) have the Guaranteed Party enter into that certain Equity Capital Contribution Agreement, dated as of the date hereof (the “New ECCA” and, together with the Original ECCA or the Expansion ECCA, as may be in effect at any time, the “ECCAs”), by and between the Guaranteed Party and Clean Technologies 2013B, LLC, a Delaware limited liability company (the “New Class B Member” and, together with the Existing Class B Member, the “Class B Members”).

C. The Guaranteed Party is willing to enter into the ECCAs and the Company LLC Agreements (as defined in the ECCAs) on the condition, among others, that certain of the Guarantor Parties’ (as such term is defined below) payment and performance obligations under the Guaranteed Documents (as such term is defined below) are guaranteed by the Guarantor, on the terms set forth in this Guaranty.

NOW, THEREFORE, in consideration of the premises and in order to induce the Guaranteed Party to enter into the ECCAs and the Company LLC Agreements, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Guarantor hereby agrees as follows:

1. Definitions.

1.1 Defined Terms. As used in this Guaranty, the terms defined in the preamble, preliminary statements and other sections of this Guaranty shall have the respective meanings specified therein, capitalized terms not defined in this Guaranty shall have the corresponding meanings given to such terms in the applicable ECCA and the following terms shall have the following meanings:

“Guaranteed Documents” shall mean (1) the ECCAs, (2) the Company LLC Agreements and (3), in the event the Guarantor assigns its rights and obligations under the REC PSA to an Affiliate, the REC PSA.

GUARANTY (BLOOM)

“Guaranteed Obligations” shall mean the payment and performance obligations of the Guarantor Parties under the Guaranteed Documents, in each case, whether direct or indirect, absolute or contingent, due or to become due (including, without limitation, interest or other charges as would have accrued on any portion of the payment obligations but for the commencement of any bankruptcy or insolvency proceedings).

“Guarantor Account Collateral” shall have the meaning set forth in Section 15(b).

“Guarantor Parties” shall mean the Class B Members and, in the event the Guarantor assigns its rights and obligations under the REC PSA to an Affiliate, such Affiliate.

“Liquidity Requirement” shall mean $10,000,000 in cash or cash equivalents of Guarantor.

“REC PSA” shall mean the REC Purchase and Sale Agreement, dated as of December 21, 2012, by and between Guarantor and 2012 ESA Project Company, LLC, a Delaware limited liability company (f/k/a 2012 V PPA Project Company, LLC).

1.2 Terms Generally. The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be modified by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise (a) any definition of or reference to any agreement, instrument of other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified in accordance with the provisions hereof and thereof; (b) any reference herein to any person shall be construed to include such person’s successors and permitted assigns; (c) the words “herein,” “hereof” and “hereunder,” and words of similar import, shall be construed to refer to this Guaranty in its entirety and not to any particular provision of this Guaranty; and (d) the words “asset” and “property” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties. Article and section headings used herein are for convenience of reference only, are not part of this Guaranty and shall not affect the construction of, or be taken into consideration in interpreting, this Guaranty.

2. Guaranty.

2.1 Irrevocable Guaranty. The Guarantor hereby unconditionally and irrevocably guarantees, as a primary obligor and not merely as a surety, to the Guaranteed

2

Party that all Guaranteed Obligations will be promptly paid in full, in United States dollars, and performed, in accordance with the provisions of the Guaranteed Documents, subject to the other provisions of this Guaranty.

Without limiting the foregoing:

(a) If for any reason any Guaranteed Obligation that is a payment obligation has not been paid promptly when due, then in each such instance upon written demand of payment made by the Guaranteed Party to the Guarantor, the Guarantor shall pay the same or otherwise cause the same to be paid in accordance with the applicable Guaranteed Document.

(b) If for any reason any Guaranteed Obligation that is a performance obligation has not been performed promptly when due, then in each such instance upon written demand of performance made by the Guaranteed Party to the Guarantor, the Guarantor shall perform the same or otherwise cause the same to be performed in accordance with the applicable Guaranteed Document.

(c) Whether or not legal action is instituted, the Guarantor agrees to reimburse the Guaranteed Party on written demand for all reasonable attorneys’ fees and disbursements and all other reasonable costs and expenses incurred by the Guaranteed Party in enforcing its rights under this Guaranty. Notwithstanding the foregoing, the Guarantor shall have no obligation to pay any such costs or expenses if, in any action or proceeding brought by the Guaranteed Party giving rise to a demand for payment of such costs or expenses, it is finally adjudicated by a court of competent jurisdiction that the Guarantor is not liable to make payment or performance of (or to cause the payment or performance of) Guaranteed Obligations under Section 2.1(a) or (b) of this Guaranty.

2.2 No Subrogation. The Guarantor will not exercise any rights that it may acquire by way of subrogation under this Guaranty, by any payment made hereunder or otherwise, until all of the Guaranteed Obligations shall have been indefeasibly paid in full. If any amount shall be paid to the Guarantor on account of such subrogation rights at any time when all of the Guaranteed Obligations shall not have been paid in full, such amount shall be held in trust for the benefit of the Guaranteed Party and shall forthwith be paid to the Guaranteed Party to be credited and applied to such Guaranteed Obligations, whether matured or unmatured, in accordance with the terms of the applicable Guaranteed Document. If (i) the Guarantor shall make payment to the Guaranteed Party of all or any part of the Guaranteed Obligations and (ii) all of the Guaranteed Obligations shall be indefeasibly paid in full, the Guaranteed Party will, at the Guarantor’s request and expense, execute and deliver to the Guarantor appropriate documents, without recourse and without representation or warranty, necessary to evidence the transfer by subrogation to the Guarantor of an interest in the Guaranteed Obligations resulting from such payment by the Guarantor.

2.3 No Effect on Guaranty. The obligations of the Guarantor under this Guaranty shall not be altered, limited, impaired or otherwise affected by and Guarantor waives any defense under or based upon:

(a) any rescission of any demand for payment of any of the Guaranteed Obligations or any failure by the Guaranteed Party or the Facility Company to make any such demand on the applicable Guarantor Party or any other guarantor or to collect any payments from the applicable Guarantor Party or any other guarantor or any release of the applicable Guarantor Party or any other guarantor;

3

(b) any renewal, extension, modification, amendment, acceleration, compromise, waiver, indulgence, rescission, discharge, surrender or release, in whole or in part, of the Guaranteed Documents or the Guaranteed Obligations or any other instrument or agreement evidencing, relating to, securing or guaranteeing any of the Guaranteed Obligations, or the liability of any party to any of the foregoing or for any part thereof;

(c) the validity, regularity or enforceability of any of the Guaranteed Obligations or of the Guaranteed Documents or any other instrument or agreement evidencing, relating to, securing or guaranteeing any of the Guaranteed Obligations at any time or from time to time held by the Guaranteed Party;

(d) except as provided in Section 8, any change, whether direct or indirect, in the Guarantor’s relationship to the Guarantor Parties, including any such change by reason of any merger or consolidation or any sale, transfer, issuance, spin-off, distribution or other disposition of any stock or other equity interest in the Guarantor Parties, the Guarantor or any other entity;

(e) any act or omission of the Guaranteed Party or the Facility Company relating in any way to the Guaranteed Obligations or to the Guarantor Parties, including any failure to bring an action against any party liable on the Guaranteed Obligations, or any party liable on any guaranty of the Guaranteed Obligations, or to apply any funds of any such party held by the Guaranteed Party or the Facility Company, as applicable;

(f) any proceeding, voluntary or involuntary, involving bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement of a Guarantor Party or any other guarantor or any defense which a Guarantor Party or any other guarantor may have by reason of the order, decree or decision of any court or administrative body resulting from any such proceeding;

(g) any other act or omission that may or might in any manner or to any extent vary the risk of the Guarantor or that may or might otherwise operate as a discharge of the Guarantor as a matter of law or equity;

(h) any default, failure, omission or delay, willful or otherwise, on the part of a Guarantor Party to pay or perform any of its respective Guaranteed Obligations;

(i) any action or failure to act in any manner referred to in this Guaranty which may deprive the Guarantor of its rights to subrogation against the Guarantor Parties to recover full indemnity for any payments made (or caused to be made) pursuant to this Guaranty or of the Guarantor’s right to contribution against any other party;

4

(j) any suit or other action brought by, or any judgment in favor of, any beneficiaries or creditors of the Guarantor Parties or any other person for any reason whatsoever, including, without limitation, any suit or action in any way attaching or involving any issue, matter or thing in respect of the Guaranteed Obligations or any other agreement (other than a suit or action to which the Guaranteed Party or the Facility Company, as applicable, is a party or by which the Guaranteed Party or the Facility Company, as applicable, is bound concerning the scope of the Guaranteed Obligations or concerning the provisions of this Guaranty);

(k) any sale, lease or transfer of any or all of the assets of the Guarantor Parties or Guarantor, including, without limitation, any purported transfer from the Guarantor Parties to any person and any invalidity, illegality of, or inability to enforce, any such transfer or purported transfer;

(l) the taking of any action by the Guaranteed Party or the Facility Company, as applicable, to enforce any Guaranteed Obligations or the agreement under which such Guaranteed Obligation arises against the applicable Guarantor Party or any other person;

(m) demands, diligence, presentment, notices and any other circumstances which might otherwise constitute a legal or equitable discharge or defense of a guarantor (other than payment or performance of such Guaranteed Obligations by the Guarantor and/or the person whose payment or performance is being guaranteed in accordance with the applicable Guaranteed Document); and

(n) any claim, set-off or counterclaim that the Guarantor may have at any time and from time to time against the Guaranteed Party or the Facility Company, as applicable, whether in connection with the transactions that are the subject of the Guaranteed Documents or any unrelated transaction.

2.4 Continuing Guaranty; Termination. This Guaranty shall be construed as a continuing, absolute and unconditional guaranty of payment and performance when due, and not of collection only, and the obligations of the Guarantor hereunder shall not be conditioned or contingent upon the pursuit by the Guaranteed Party or the Facility Company at any time of any right or remedy against the applicable Guarantor Party or against any other person which may be or become liable in respect of all or any part of the Guaranteed Obligations. This Guaranty shall remain in full force and effect until the later to occur of (i) the termination of all Company LLC Agreements in accordance with their terms or (ii) the date on which all Guaranteed Obligations shall have been satisfied by indefeasible payment in full, in United States dollars.

2.5 Reinstatement of Guaranty. This Guaranty shall continue to be effective, or be reinstated, as the case may be, if at any time payment, or any part thereof, of any of the Guaranteed Obligations is avoided, rescinded or must otherwise be restored or returned by the Guaranteed Party or the Facility Company to the applicable Guarantor Party or its representatives or to any other guarantor for any reason including as a result of any insolvency, bankruptcy or reorganization proceeding with respect to such Guarantor Party or the Guarantor, all as though such payment had not been made.

5

3. No Consequential Damages. In no event shall the Guarantor be subject to any special, incidental, consequential, indirect, punitive or exemplary damages (including lost profits and damages arising from lost opportunities) except as provided in Section 11.3(c) of the Company LLC Agreements.

4. Election of Remedies. Each and every right, power and remedy herein given to the Guaranteed Party, or otherwise existing, shall be cumulative and not exclusive, and be in addition to all other rights, powers and remedies now or hereafter granted or otherwise existing. Each and every right, power and remedy whether specifically herein given or otherwise existing may be exercised, from time to time and as often and in such order as may be deemed expedient by the Guaranteed Party.

5. Effect of Delay or Omission to Pursue Remedy. No single or partial waiver by the Guaranteed Party of any right, power or remedy, or delay or omission by the Guaranteed Party in the exercise of any right, power or remedy which it may have shall impair any such right, power or remedy or operate as a waiver thereof or of any other right, power or remedy then or thereafter existing. Any waiver given by the Guaranteed Party of any right, power or remedy in any one instance shall only be effective in that specific instance and only for the purpose for which given, and will not be construed as a waiver of any right, power or remedy on any future occasion.

6. Amendment. This Guaranty may not be modified, amended, terminated or revoked, in whole or in part, except by an agreement in writing signed by the Guaranteed Party and the Guarantor. No waiver of any term, covenant or provision of this Guaranty, or consent given hereunder, shall be effective unless given in writing by the Guaranteed Party.

7. Notices. All notices and other communications required or permitted hereunder shall be in writing and shall be deemed to have been sufficiently given to any party hereto if personally delivered or if sent by telecopy or email transmission, or by registered or certified mail, return receipt requested, or by recognized courier service, postage or other charges prepaid and addressed as follows:

(a) If to the Guarantor:

Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, CA 94089-1137

Attention: [***]

Telephone: [***]

Facsimile: [***]

Email: [***]

(b) If to the Guaranteed Party:

Firstar Development, LLC

1307 Washington, Suite 300

St. Louis, MO 63103

Attention: [***]

Telephone: [***]

Facsimile: [***]

Email: [***]

[***] Confidential Treatment Requested

6

or to such other address as may be specified from time to time by the Guarantor or the Guaranteed Party in a notice to the other party given as herein provided. Such notice or communication will be deemed to have been given as of the date so personally delivered, telecopied, emailed, mailed or sent by courier.

8. Successors and Assigns. This Guaranty shall be binding upon and shall inure to the benefit of the Guarantor and the Guaranteed Party and their respective successors and permitted assigns. No assignment of this Guaranty by the Guarantor may be made at any time prior to the date of the last Class B Member True Up Date Funding Contribution without the prior written consent of the Guaranteed Party (such consent not to be unreasonably withheld). No assignment of this Guaranty by the Guaranteed Party may be made at any time prior to the last Class A Flip Point (as defined in the Company LLC Agreements) without the prior written consent of the Guarantor (such consent not to be unreasonably withheld). No assignment by either Guarantor or Guaranteed Party may be made at any time to a Disqualified Transferee (as defined in the Company LLC Agreements). Any assignment by the Guarantor or the Guaranteed Party in violation of this Section 8 shall be void ab initio and shall have no effect.

9. CONSENT TO JURISDICTION. ALL LEGAL ACTIONS OR PROCEEDINGS BROUGHT AGAINST THE GUARANTOR WITH RESPECT TO THIS GUARANTY MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE COUNTY OF NEW YORK, STATE OF NEW YORK, UNITED STATES OF AMERICA, AND BY EXECUTION AND DELIVERY OF THIS GUARANTY, THE GUARANTOR ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, THE JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS GUARANTY. THE GUARANTOR HEREBY EXPRESSLY AND IRREVOCABLY WAIVES ANY CLAIM OR DEFENSE IN ANY SUCH ACTION OR PROCEEDING BASED ON ANY ALLEGED LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS OR ANY SIMILAR BASIS. THE GUARANTOR FURTHER IRREVOCABLY CONSENTS TO THE SERVICE OF ANY COMPLAINT, SUMMONS, NOTICE OR OTHER PROCESS RELATING TO ANY LEGAL ACTION OR PROCEEDING BY DELIVERY THEREOF TO IT BY HAND OR BY MAIL TO THE ADDRESS SET FORTH IN SECTION 7 HEREOF. NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE GUARANTEED PARTY TO BRING PROCEEDINGS AGAINST THE GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION OR TO SERVE PROCESS IN ANY MANNER PERMITTED BY LAW.

10. GOVERNING LAW. THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF

7

NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, WHICH SHALL APPLY TO THIS GUARANTY).

11. Severability. If any provision hereof or of any of the Guaranteed Documents evidencing part or all of the Guaranteed Obligations is invalid or unenforceable in any jurisdiction, the other provisions hereof or of such instruments shall remain in full force and effect in such jurisdiction and the remaining provisions hereof shall be liberally construed in favor of the Guaranteed Party in order to carry out the provisions hereof. The invalidity or unenforceability of any provision of this Guaranty in any jurisdiction shall not affect the validity or enforceability of any such provision in any other jurisdiction.

12. Counterparts. This Guaranty may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument.

13. WAIVER OF JURY TRIAL. EACH OF THE GUARANTOR AND THE GUARANTEED PARTY, BY ITS ACCEPTANCE HEREOF, HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION, SUIT OR COUNTERCLAIM ARISING OUT OF THIS GUARANTY.

14. Guarantor’s Minimum Liquidity. As of the date hereof and at all times thereafter until the termination of this Guaranty in accordance with Section 2.4, the Guarantor shall maintain the Liquidity Requirement. The Guarantor shall concurrently with the delivery of the quarterly financial statements delivered pursuant to Section 8.4(d) of each of the Company LLC Agreements deliver to the Guaranteed Party reasonably appropriate evidence of compliance by the Guarantor with the Liquidity Requirement.

15. Guarantor’s Security.

(a) As of the date hereof and at all times thereafter until the termination of this Guaranty in accordance with Section 2.4, the Guarantor shall maintain the Guarantor Account, the Guarantor Account Agreement and an amount on deposit in the Guarantor Account equal to the amount for such date as set forth on Schedule 1 hereto. The wire transfer instructions for the Guarantor Account are as follows:

Bank:	U.S. Bank National Association
ABA#:	081000210
Acct #:	[***]
Acct Name:	[***]

(b) As security for the prompt and complete payment when due (whether at stated maturity, by acceleration or otherwise) of any and all of the Guaranteed Obligations and the due performance and compliance by the Guarantor with all of the

[***] Confidential Treatment Requested

8

terms, conditions, and agreements to be performed and complied with by it under and pursuant to the terms of this Guaranty and the Guaranteed Documents, the Guarantor hereby pledges, assigns, hypothecates and grants a first-priority security interest to the Guaranteed Party in all of its right, title and interest in and to the following, in each case, as to each type of property described below, whether now owned or hereafter acquired by the Guarantor, wherever located, and whether now or hereafter existing or arising (collectively, the “Guarantor Account Collateral):

(i) the Guarantor Account, including all cash held in, required to be held in or credited to the Guarantor Account or otherwise in possession or control of the Depositary Bank (as defined in the Guarantor Account Agreement) pursuant to the Guarantor Account Agreement, and all interest and other income derived therefrom; and

(ii) to the extent not included in the foregoing, all proceeds, products and accessions of and to any and all of the foregoing, including whatever is received upon any collection, exchange, sale or other disposition of any of the foregoing and any property into which any of the foregoing is converted, whether cash or non-cash proceeds, and any and all other amounts paid or payable under or in connection with any of the foregoing and all security entitlements of the Guarantor in any and all of the foregoing.

(c) The Guarantor shall, at any time and from time to time at the first demand of the Guaranteed Party, and at the sole cost and expense of the Guarantor, promptly and duly execute and deliver, or otherwise authenticate, all further instruments and documents, and take all further action, that may be necessary or required under applicable law or that the Guaranteed Party may reasonably request, in order to perfect and protect any pledge or security interest granted or purported to be granted hereunder or to enable the Guaranteed Party to exercise and enforce its rights and remedies hereunder with respect to any Guarantor Account Collateral.

(d) Without limiting the generality of the foregoing, the Guarantor will promptly, with respect to the Guarantor Account Collateral:

(i) execute or authenticate and file such Uniform Commercial Code (“UCC”) financing or continuation statements, or amendments thereto, and such other instruments or notices, as may be necessary, or as the Guaranteed Party may reasonably request, in order to perfect and preserve the security interest granted or purported to be granted hereunder;

(ii) take all action necessary to ensure that the Guaranteed Party has control of the Guarantor Account Collateral as provided in Sections 8-106, 9-104, 9-106 and any other applicable section of the UCC;

(iii) take all action necessary to ensure that the Guaranteed Party has a first-priority perfected security interest in all Guarantor Account Collateral under the laws of the jurisdiction in which the Guarantor is located (within the meaning of Section 9-307 of the UCC); and

(iv) deliver to the Guaranteed Party evidence that all other action that the Guaranteed Party may deem reasonably necessary in order to perfect and protect the security interest created by the Guarantor under this Guaranty has been taken.

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(e) The Guarantor hereby authorizes the Guaranteed Party to file one or more UCC financing or continuation statements, and amendments thereto, relating to all or any part of the Guarantor Account Collateral, without the signature of the Guarantor where permitted by applicable law

16. Amendment and Restatement. This Guaranty amends and restates the Original Guaranty in its entirety as of the date hereof on the terms and subject to the conditions set forth herein and the Original Guaranty is of no further force or effect from and after the date hereof.

[SIGNATURE PAGE FOLLOWS]

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IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed and delivered on its behalf as of the date first written above.

BLOOM ENERGY CORPORATION, a Delaware corporation
By:	/s/ Illegible
	Name:
	Title:

Acknowledged and Agreed:
FIRSTAR DEVELOPMENT, LLC,
a Delaware limited liability company
By:
	Name:
	Title:

A&R Guaranty

IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed and delivered on its behalf as of the date first written above.

BLOOM ENERGY CORPORATION,
a Delaware corporation
By:	/s/ Illegible
	Name:
	Title:

Acknowledged and Agreed:
FIRSTAR DEVELOPMENT, LLC,
a Delaware limited liability company
By:	/s/ Matthew Ulrich
	Name:	Matthew Ulrich
	Title:	Officer

A&R Guaranty

SCHEDULE 1

GUARANTOR ACCOUNT AMOUNT

The amount that the Guarantor shall maintain in the Guarantor Account shall be calculated as follows:

With respect to each Tranche for which an Investor Initial Funding Date Contribution is made under the Expansion ECCA in excess of aggregate expected capacity of 7.2 mW (a “IIIA Expansion Tranche):

DATE	AMOUNT
On each Initial Funding Date for a IIIA Expansion Tranche after the Execution Date but on or before the True Up Funding Date Deadline as defined in the Expansion ECCA (“TUFDD”)	For each IIIA Expansion Tranche with respect to which an Investor Initial Funding Date Contribution is being made on such date 100% of the ITC Amount for such Tranche
From TUFDD through the first anniversary of TUFDD (“1TUFDD”)	100% of aggregate ITC Amount for all such Tranches
From 1TUFDD through the second anniversary of TUFDD (“2TUFDD”)	80% of aggregate ITC Amount for all such Tranches
From 2TUFDD through the third anniversary of TUFDD (“3TUFDD”)	60% of aggregate ITC Amount for all such Tranches
From 3TUFDD through the fourth anniversary of TUFDD (“4TUFDD”)	40% of aggregate ITC Amount for all such Tranches
From 4TUFDD through the fifth anniversary of TUFDD (“5TUFDD”)	20% of aggregate ITC Amount for all such Tranches
From and after 5TUFDD	Zero

With respect to each Tranche for which an Investor Initial Funding Date Contribution is made under the New ECCA (a “IIIB Tranche”):

DATE	AMOUNT
On each Initial Funding Date for a IIIB Tranche after the Execution Date but on or before the True Up Funding Date Deadline as defined in the New ECCA (“TUFDD”)	For each III B Tranche with respect to which an Investor Initial Funding Date Contribution is being made on such date 100% of the ITC Amount for such Tranche

From TUFDD through the first anniversary of TUFDD (“1TUFDD”)	100% of aggregate ITC Amount for all such Tranches
From 1TUFDD through the second anniversary of TUFDD (“2TUFDD”)	80% of aggregate ITC Amount for all such Tranches
From 2TUFDD through the third anniversary of TUFDD (“3TUFDD”)	60% of aggregate ITC Amount for all such Tranches
From 3TUFDD through the fourth anniversary of TUFDD (“4TUFDD”)	40% of aggregate ITC Amount for all such Tranches
From 4TUFDD through the fifth anniversary of TUFDD (“5TUFDD”)	20% of aggregate ITC Amount for all such Tranches
From and after 5TUFDD	Zero

EX-10

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Exhibit 10.56

EXECUTION VERSION

AMENDED AND RESTATED

MASTER ENERGY SERVER PURCHASE and SERVICES AGREEMENT

between

BLOOM ENERGY CORPORATION

as Seller

and

2013B ESA PROJECT COMPANY, LLC

as Buyer

dated as of September 25, 2013

TABLE OF CONTENTS

		Page
ARTICLE I. DEFINITIONS			1
Section 1.1	Definitions		1
Section 1.2	Other Definitional Provisions		15
ARTICLE II. PURCHASE AND SALE			16
Section 2.1	Purchase Orders		16
Section 2.2	Payment of Purchase Price		16
Section 2.3	Purchase and Sale of Bloom Systems		19
Section 2.4	PPA Termination and Re-Purchase of Bloom Systems		19
ARTICLE III. DELIVERY AND INSTALLATION OF SYSTEMS AND BALANCE OF FACILITIES			20
Section 3.1	Access to Site		20
Section 3.2	Physical Delivery of Bloom Systems		20
Section 3.3	Delivery of Balance of Facility; Installation of Bloom Systems		20
Section 3.4	Commissioning; Commencement of Operations		22
Section 3.5	Insurance		23
Section 3.6	Disposal; Right of First Refusal		23
Section 3.7	Buyer’s Lender		24
Section 3.8	Access; Cooperation		24
Section 3.9	Performance Standards		24
Section 3.10	Appointment of Independent Engineer		24
ARTICLE IV. FACILITY SERVICES			25
Section 4.1	In General		25
Section 4.2	Operation and Maintenance Services		25
Section 4.3	Service Fees		26
Section 4.4	Remote Monitoring		27
Section 4.5	Permits		27
Section 4.6	Service Providers		27
Section 4.7	Rights to Deliverables		27
Section 4.8	Obligations of Seller Related to the PPA		28
Section 4.9	Corresponding Entitlements		30
ARTICLE V. WARRANTIES			31
Section 5.1	Facility Services Warranty		31
Section 5.2	Annual Capacity Warranty		31
Section 5.3	Efficiency Warranty		31
Section 5.4	Quarterly Capacity Warranty		32

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TABLE OF CONTENTS

(continued)

Section 5.5	Portfolio Warranty	33
Section 5.6	Exclusions	33
Section 5.7	Portfolio Warranty Claims	34
Section 5.8	Indemnification Regarding Performance Under PPAs	35
Section 5.9	Disclaimers	36
Section 5.10	Title	36
ARTICLE VI. RECORDS		36
Section 6.1	Record-Keeping Documentation	36
Section 6.2	Reports; Other Information	37
ARTICLE VII. DATA ACCESS		38
Section 7.1	Access to Data and Meters	38
ARTICLE VIII. REPRESENTATIONS AND WARRANTIES OF SELLER		38
Section 8.1	Representations and Warranties as to Seller	38
Section 8.2	Representations and Warranties as to Bloom Systems	39
ARTICLE IX. REPRESENTATIONS AND WARRANTIES OF BUYER		40
Section 9.1	Organization	40
Section 9.2	Authority	40
Section 9.3	Consents and Approvals; No Violation	40
Section 9.4	Legal Proceedings	40
ARTICLE X. CONFIDENTIALITY		41
Section 10.1	Confidential Information	41
Section 10.2	Restricted Access	41
Section 10.3	Permitted Disclosures	42
Section 10.4	Publicity	43
Section 10.5	Shortfall Event License	43
ARTICLE XI. LICENSE AND OWNERSHIP; SOFTWARE		44
Section 11.1	IP License To Use	44
Section 11.2	Grant of Third Party Software License	44
Section 11.3	No Software Warranty	45
Section 11.4	Covenant	45
Section 11.5	Representations and Warranties	45
ARTICLE XII. EVENTS OF DEFAULT AND TERMINATION		45
Section 12.1	Seller Default	45
Section 12.2	Buyer Default	46
Section 12.3	Buyer’s Remedies Upon Occurrence of a Seller Default	47
Section 12.4	Seller’s Remedies Upon Occurrence of a Buyer Default	47
Section 12.5	Preservation of Rights	47
Section 12.6	Force Majeure	48
Section 12.7	Termination of PPAs	48

ii

TABLE OF CONTENTS

(continued)

ARTICLE XIII. INDEMNIFICATION		48
Section 13.1	IP Indemnity	48
Section 13.2	Indemnification of Seller by Buyer	50
Section 13.3	Indemnification of Buyer by Seller	50
Section 13.4	Indemnity Claims Procedure	51
Section 13.5	Limitation of Liability	51
Section 13.6	Survival	52
ARTICLE XIV. MISCELLANEOUS PROVISIONS		52
Section 14.1	Amendment and Modification	52
Section 14.2	Waiver of Compliance; Consents	52
Section 14.3	Notices	53
Section 14.4	Assignment; Subcontractors	53
Section 14.5	Dispute Resolution; Governing Law	53
Section 14.6	Governing Law, Jurisdiction, Venue	54
Section 14.7	Counterparts	54
Section 14.8	Interpretation	54
Section 14.9	Entire Agreement	54
Section 14.10	Construction of Agreement	55
Section 14.11	Severability	55
Section 14.12	Further Assurances	55
Section 14.13	Independent Contractors	55
Section 14.14	Limitation on Export	55
Section 14.15	Time of Essence	55
Section 14.16	No Rights in Third Parties	55

ANNEXES

Annex A	Minimum Power Product Example Calculation
Annex B	Insurance
Annex C	Capacity Warranty Claim Example Calculation and Amounts Payable

EXHIBITS

Exhibit A	Form of Purchase Order
Exhibit B	Form of Bill of Sale
Exhibit C	Facilities
Exhibit D	Service Fees
Exhibit E	Form of Certification of Installation
Exhibit F	Form of Independent Engineer Certification of Commencement of Operations

iii

AMENDED AND RESTATED

MASTER ENERGY SERVER PURCHASE AND SERVICES AGREEMENT

This AMENDED AND RESTATED MASTER ENERGY SERVER PURCHASE AND SERVICES AGREEMENT (this “Agreement”), dated as of September 25, 2013 (the “Agreement Date”), is entered into by and between BLOOM ENERGY CORPORATION, a Delaware corporation (“Seller”), and 2013B ESA PROJECT COMPANY, LLC, a Delaware limited liability company (“Buyer”), and amends and restates that certain Master Energy Server Purchase and Services Agreement, dated as of July 19, 2013, by and between Seller and Buyer. Seller and Buyer are referred to in this Agreement individually, as a “Party” and, collectively, as the “Parties”.

RECITALS

WHEREAS, Seller is in the business of designing, constructing and installing on-site solid oxide fuel cell power generating systems capable of being powered by renewable fuels;

WHEREAS, Buyer is a company formed at the direction of Seller for the purpose of purchasing and owning Bloom Systems for the generation of electricity and sale of electricity generated by the Bloom Systems;

WHEREAS, Buyer desires to purchase, and Seller desires to sell, Bloom Systems which will have an aggregate Baseload Capacity of up to 6.1 MW, and which Bloom Systems will be installed in certain Facilities in California and Connecticut when and as the conditions to such installation are met as provided in this Agreement; and

WHEREAS, Seller has agreed to provide certain operation and maintenance services to Buyer subject to the conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements hereinafter set forth, and intending to be legally bound hereby, the Parties agree as follows:

AGREEMENT

ARTICLE I.

DEFINITIONS

Section 1.1 Definitions. As used in this Agreement, capitalized terms not otherwise defined shall have the meanings set forth below:

“Actual kWh” means the actual energy output in kWh produced by a Bloom System, and, where appropriate in the context of this Agreement, aggregated together.

“Administrative Services Agreement” means the Amended and Restated Administrative Services Agreement, dated as of September 25, 2013, among Seller, Buyer and HoldCo, as amended from time to time.

“Affiliate” of any Person means a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person specified, provided that neither Buyer’s Lender nor the Class A Member shall be considered an Affiliate of either Party.

“Agreement” is defined in the preamble.

“Agreement Date” is defined in the preamble.

“Annual Capacity Warranty” is defined in Section 5.2.

“Annual Capacity Warranty Period” means, with respect to a Bloom System, each calendar year following the Commencement of Operations of the Facility into which such Bloom System is incorporated (or, in the case of the calendar year in which delivery of a Bloom System has occurred, the portion of such calendar year commencing on the date such Facility achieved Commencement of Operations).

“Annual Reports” is defined in Section 4.2.

“Appraisal Procedure” means within fifteen (15) days of a Party invoking the procedure described in this definition the Buyer and the Seller shall engage a Qualified Appraiser, mutually acceptable to them, to determine the Fair Market Value of a Bloom System.

“Approved LDC” means (i) Pacific Gas & Electric Company, (ii) Southern California Gas Company, (iii) Yankee Gas, and (iv) such other local natural gas distribution companies as may be mutually agreed by Buyer and Seller in writing from time to time. For the avoidance of doubt, natural gas supplied by any Approved LDC shall be deemed to satisfy Seller’s requirements regarding the quality and composition of natural gas supplied to the Bloom Systems sold to Buyer hereunder.

“Assignment and Assumption Agreement” means the Assignment and Assumption Agreement, effective as of May 15, 2013, by and between 2012 ESA, as assignor, and Buyer, as assignee.

“Baseload Capacity” means, with respect to a Bloom System, the “Baseload Capacity” set forth on the applicable specification sheet provided by the manufacturer of such Bloom System.

“Bill of Sale” means a bill of sale in substantially the form attached hereto as Exhibit B.

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“Bloom Systems” means all on-site solid oxide fuel cell power generating systems capable of being powered by natural gas designed, constructed and installed by Seller, including, where applicable, any UPMs installed in connection therewith, which will have an aggregate Baseload Capacity of up to 6.1 MW and which will be installed in the Facilities, and “Bloom System” means each such system.

“Bloom System Purchase Conditions” means for a relevant Bloom System that the Bloom System has not been Placed in Service, including specifically because the events described in clauses (2), (3), (4), (5)(a)(i) and 5(b)(i) of the definition of Placed in Service have not occurred, and that Commencement of Operations is reasonably expected to occur within thirty (30) days following Delivery.

“BOF” means, for each Site, the Electrical Interconnection Facilities, the natural gas supply facilities, the water supply facilities, the data communications facilities, the foundations for the Bloom Systems, and any other ancillary facilities and equipment installed in connection with the Facility at each Site and all other things ancillary to the Bloom Systems and required on or in the vicinity of the Site which are necessary to achieve Commencement of Operations at each such Site.

“BOF Work” is defined in Section 3.3(a).

“Business Day” means a day other than a Saturday, Sunday or other day on which banks in New York, New York, or San Francisco, California, are authorized or required to close.

“Buyer” is defined in the preamble.

“Buyer Default” is defined in Section 12.2.

“Buyer Indemnitee” is defined in Section 13.3.

“Buyer’s Lender” means Silicon Valley Bank, any trustee or agent acting on its behalf, and its permitted successors and assigns as referred to in the Loan Agreement.

“Calendar Quarter” means each period of three months ending on March 31, June 30, September 30 and December 31.

“Capacity Warranty” means the Quarterly Capacity Warranty or the Annual Capacity Warranty, as applicable.

“Capacity Warranty Period” means the Quarterly Capacity Warranty Period or the Annual Capacity Warranty Period, as applicable.

“Claiming Party” is defined in Section 12.6.

“Class A Member” has the meaning set forth in the Holdco LLC Agreement.

3

“Code” means the Internal Revenue Code of 1986, as amended.

“Commencement of Operations” means, with respect to any Facility, the completion and the performance of all of the following activities:

(a) each Bloom System comprising such Facility has been Delivered;

(b) each Bloom System comprising such Facility has been Placed in Service;

(c) each Bloom System comprising such Facility (i) has been attached to the load at the applicable Site and (ii) is providing the Minimum Power Product;

(d) Seller has performed and successfully completed all necessary acts under the applicable Interconnection Agreement (including performance testing) and has obtained permission from the applicable Person granting Buyer permission to interconnect such Facility with the distribution or transmission facilities of the Transmitting Utility;

(e) Seller shall have furnished a written certification, in the form attached hereto as Exhibit E from Seller addressed to Buyer with a copy to the Independent Engineer certifying, without any qualification, that Seller has installed each Bloom System comprising such Facility in accordance with the Performance Standards;

(f) Seller shall have provided to the Independent Engineer, on behalf of Buyer, all Documentation reasonably required by the Independent Engineer for the Bloom System to achieve commercial operation; and

(g) Seller shall have furnished a written certification from the Independent Engineer in the form of Exhibit F addressed to Buyer and to Buyer’s Lender certifying, without any qualification, that (i) such Facility’s installation and commissioning requirements pursuant to this Agreement have been successfully completed, (ii) such Facility has achieved commercial operation, (iii) Seller has installed all BOF Work necessary for the operation of such Facility, and (iv) each of the requirements set out in paragraphs (a) to (f) of this definition have been satisfied.

“Confidential Information” is defined in Section 10.1.

“Corresponding Entitlement” is defined in Section 4.9.

“DDP (Incoterms 2010)” means Delivered Duty Paid (DDP) as such term is used in the International Rules for the Interpretation of Trade Terms (identified as “INCOTERMS® 2010”) as prepared by the International Chamber of Commerce.

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“Delivery” is defined in Section 2.3.

“Delivery Date” means, with respect to each Bloom System, the date of Delivery as described in Section 2.3.

“Documentation” means all documentation, including testing, engineering, specification and operation and maintenance manuals, training materials, drawings, reports, standards, schematics, directions, samples and patterns in computer and readable form, which is necessary to meet the requirements of Section 3.4.

“ECCA” means that certain Equity Capital Contribution Agreement, dated as of August 2, 2013, as amended by that certain First Amendment to Equity Capital Contribution Agreement, dated as of September 25, 2013, by and between Firstar Development, LLC and Clean Technologies 2013B, LLC, as may be amended, amended and restated, supplemented, or otherwise modified from time to time.

“Efficiency” means the quotient of E/F, where E = the electricity produced by the applicable Fleet, Facility or Bloom System, measured in BTUs (British Thermal Units) at a conversion rate of 3,412 BTUs per kWh, and F = the fuel consumed by such Fleet, Facility or Bloom System, as applicable, measured in BTUs on a lower heating value basis.

“Efficiency Warranty” has the meaning provided in Section 5.3.

“Efficiency Warranty Period” means each calendar month following the Commencement of Operations of the Facility (or, in the case of the calendar month in which Commencement of Operations occurred, the portion of such calendar month commencing on the date such Facility achieved Commencement of Operations), but excluding with respect to each relevant Bloom System any period when such Bloom System was (i) was subject to a Force Majeure Event, (ii) was not delivering Energy because of a failure to perform by the applicable PPA Customer, except to the extent caused or contributed to by Seller or its employees, agents, subcontractors or representatives, or (iii) was required by a Legal Requirement (which for this purpose shall include any utility requirement) to be disconnected from the distribution or transmission facilities of the Transmitting Utility or otherwise required not to deliver Energy as the result of a Legal Requirement or action by or a directive from the applicable Transmitting Utility with respect to such Bloom System (e.g., due to a grid event), except to the extent caused or contributed to by Seller or its employees, agents, subcontractors and representatives.

“Electrical Interconnection Facilities” means the equipment and facilities required to safely and reliably interconnect a Facility to the transmission system of the Transmitting Utility, including the collection system between each Bloom System, transformers and all switching, metering, communications, control and safety equipment, including the facilities described in any applicable Interconnection Agreement.

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“Energy” means three-phase, 60-cycle alternating current electric energy constituting the Actual kWh.

“Facility” means the Bloom Systems and the BOF at a Site.

“Facility Meter” means the revenue quality electricity generation meter to be located at the metering point (the proposed location of which is to be identified in the applicable Interconnection Agreement), which shall register all Energy produced by a Facility and delivered to the Interconnection Point.

“Fair Market Value” means, with respect to any Facility, Bloom System or part thereof, the price at which such asset would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell, and both having reasonable knowledge of the relevant facts, and specifically with respect to the Facility or any portion thereof, as determined consistently with Section 4.05 of Revenue Procedure 2007-65.

“FERC” means the Federal Energy Regulatory Commission and any successor.

“Fleet” means on an aggregate basis, all Bloom Systems owned by Buyer that (i) are purchased pursuant to this Agreement, (ii) have been Placed in Service, and (iii) are installed pursuant to a given PPA.

“Force Majeure Event” means any event or circumstance that (a) prevents a Party from performing its obligations under this Agreement; (b) was not reasonably foreseeable by such Party; (c) was not within the reasonable control of, or the result of the negligence of such Party or a breach of this Agreement by such Party; and (d) such Party is unable to reasonably mitigate, avoid or cause to be avoided with the exercise of due diligence. “Force Majeure Events” shall include failure or interruption of performance due to: an act of God, civil or military authority, war, civil disturbances, terrorist activities, fire, explosions, the external power delivery system (a/k/a the grid) being out of the required specifications or totally failing (a/k/a brownout or blackout), or electric grid curtailment. Force Majeure Event does not include the lack of economic resources of a Party, Seller’s failure to design and construct the Bloom Systems and the BOF so as to meet the respective warranties hereunder, or the supply of natural gas from any source other than an Approved LDC. If an event or circumstance gives rise to a Force Majeure Event as defined herein under this Agreement, but such event or circumstance does not also constitute a ‘Force Majeure Event’ as defined under the applicable PPA (depending on which Facilities are affected), then for the purposes of any rights and obligations of the parties under this Agreement that relate to corresponding rights or obligations under such PPA such event or circumstance will not constitute a Force Majeure Event under this Agreement.

“Funding Date” means either the Initial Funding Date or the True Up Funding Date, as applicable.

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“Governmental Approvals” means (a) any authorizations, consents, approvals, licenses, rulings, permits, tariffs, rates, certifications, variances, orders, judgments, decrees by or with a relevant Governmental Authority and (b) any required notice to, any declaration of, or with, or any registration or filing by, or with, any relevant Governmental Authority.

“Governmental Authority” means any foreign, federal, state, local or other governmental, regulatory or administrative agency, court, commission, department, board, or other governmental subdivision, legislature, rulemaking board, court, tribunal, arbitrating body or other governmental authority.

“HoldCo” means 2013B ESA HoldCo, LLC, a Delaware limited liability company.

“Holdco LLC Agreement” means that certain Amended and Restated Operating Agreement of HoldCo, dated as of August 2, 2013.

“Indemnifiable Loss” means any claim, demand, suit, loss, liability, damage, obligation, payment, cost or expense (including the cost and expense of any action, suit, proceeding, assessment, judgment, settlement or compromise relating thereto and reasonable attorneys’ fees and reasonable disbursements in connection therewith).

“Indemnified Party” is defined in Section 13.4.

“Indemnifying Party” is defined in Section 13.4.

“Independent Engineer” means SAIC Energy, Environment & Infrastructure, LLC.

“Initial Funding Date” is defined in the ECCA.

“Intellectual Property” shall mean any or all of the following and all rights therein, whether arising under the laws of the United States or any other jurisdiction (i) all patents and patent applications (and all reissues, divisions, re-examinations, renewals, extensions, provisionals, continuations and continuations-in-part thereof), patent disclosures and inventions (whether patentable or not); (ii) all trade secrets, know-how and confidential and proprietary information; (iii) all copyrights and copyrightable works (including computer programs) and registrations and applications therefor and any renewals, modifications and extensions thereof; (iv) all moral and economic rights of authors and inventors, however denominated, throughout the world; (v) unregistered and registered design rights and any registrations and applications for registration thereof; (vi) trademarks, service marks, trade names, service names, brand names, trade dress, logos, slogans, corporate names, trade styles, domain names and other source or business identifiers, whether registered or not, together with all applications therefor and all extensions and renewals thereof and all goodwill associated therewith; (vii) semiconductor chip “mask” works, and registrations and applications for registration thereof, (viii) database rights; (ix) all other forms of intellectual property, including waivable or assignable rights of publicity or moral rights; and (x) any similar, corresponding or equivalent rights to any of the foregoing anywhere in the world.

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“Interconnection Agreement” means an agreement between the PPA Customer (or the Buyer (as required)) and the applicable Transmitting Utility regarding interconnection of a Facility to the transmission or distribution system of such Transmitting Utility.

“Interconnection Point” means, with respect to each Facility, the point at which title and risk of loss with respect to the electricity produced by such Facility passes to the applicable PPA Customer.

“IP Infringement Liability Cap” means the greater of (i) the aggregate Purchase Price of all Bloom Systems; and (ii) any liability cap that limits the Seller’s liability for any infringement of any third party Intellectual Property which is agreed in writing by the Seller and any other purchaser of a Bloom system at any time after the date of this Agreement.

“IRS” means the Internal Revenue Service.

“kW” means kilowatt.

“kWh” means kilowatt-hour.

“Legal Requirement” means any law, statute, act, decree, ordinance, rule, directive (to the extent having the force of law), tariff, order, treaty, code or regulation or any interpretation of any of the foregoing, as enacted, issued or promulgated by any Governmental Authority, including all amendments, modifications, extensions, replacements or re-enactments thereof, in each case applicable to or binding upon such Person or any of its properties or to which such Person or any of its property is subject.

“Liens” means any lien, security interest, mortgage, hypothecation, encumbrance or other restriction on title or property interest.

“Loan Agreement” means the agreement between the Buyer and the Buyer’s Lender or thereafter any subsequent, additional or alternative lenders pursuant to which the Buyer’s Lender provides finance or enters into a funding arrangement with Buyer to finance all or part of the costs of the Purchase Price of the Bloom Systems.

“Maintenance Reserve Account” is defined in the Holdco LLC Agreement.

“Maintenance Reserve Account Release Date” means the first date upon which all Power Modules in all of the Bloom Systems comprising the Portfolio have been replaced at least once since their original installation.

“Maintenance Reserve Account Release Date Balance” means all amounts in the Maintenance Reserve Account as of the Maintenance Reserve Account Release Date.

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“Maximum Liability” means, with respect to Seller, the aggregate Residual Value of the Portfolio as of such date, and with respect to Buyer, One Million Dollars ($1,000,000); provided that a reduction in the Maximum Liability of Seller shall never result in a requirement for Buyer or any Buyer Indemnitee to return any money to Seller.

“Minimum Efficiency Level” means (i) an Efficiency quotient of 45% measured over the Efficiency Warranty Period and (ii) for purposes of the PPA, an efficiency quotient meeting the requirements under the PPA and measured at the times required therein.

“Minimum kWh” means the product of (x) the number of hours in the applicable Capacity Warranty Period minus the number of hours for each Bloom System at the applicable Site or in the Portfolio, as applicable, as of the last day of the applicable Capacity Warranty Period following Commencement of Operations with respect to such Bloom System when each such Bloom System (i) was subject to a Force Majeure Event, (ii) was not delivering Energy because of a failure to perform by the applicable PPA Customer, except to the extent caused or contributed to by Seller or its employees, agents, subcontractors or representatives, or (iii) was required by a Legal Requirement (which for this purpose shall include any utility requirement) to be disconnected from the distribution or transmission facilities of the Transmitting Utility or otherwise required not to deliver Energy as the result of a Legal Requirement or action by or a directive from the applicable Transmitting Utility with respect to such Bloom System (e.g., due to a grid event), except to the extent caused or contributed to by Seller or its employees, agents, subcontractors and representatives, and (y) the Minimum Power Product for the applicable Capacity Warranty Period.

“Minimum Power Product” means (1) when this term is used for the Quarterly Capacity Warranty, the aggregate Baseload Capacity of the Bloom Systems in the Portfolio in kW for the applicable Quarterly Capacity Warranty Period multiplied by 80%, (2) when this term is used for the Annual Capacity Warranty, the aggregate Baseload Capacity of the Bloom Systems in the Portfolio in kW for the applicable Annual Capacity Warranty Period multiplied by 95% and (3) when this term is used for the determination of Commencement of Operations, the aggregate Baseload Capacity of the Bloom Systems in the Facility in kW for a 24 hour period multiplied by 100%. An example of a calculation of the Minimum Power Product is set forth in Annex A.

“MW” means megawatt.

“Original Model” has the meaning provided in Section 6.2(a).

“Party” and “Parties” have the meanings set forth in the preamble.

“Performance Standards” has the meaning provided in Section 3.9.

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“Permits” means all Governmental Approvals that are necessary under applicable Legal Requirements or this Agreement to have been obtained at such time in light of the stage of development of the Portfolio to site, construct, test, operate, maintain, repair, lease, own or use each Facility as contemplated in this Agreement to sell electricity from the Portfolio or for a Party to enter into this Agreement or to consummate any transaction contemplated hereby, in each case in accordance with all applicable Legal Requirements.

“Permitted Liens” means any (a) Liens that are released or otherwise terminated at or prior to the Delivery Date of the encumbered assets; (b) obligations or duties to any Governmental Authority arising in the ordinary course of business (including under licenses and Permits held by Buyer and under all applicable laws, rules, regulations and orders of any Governmental Authority); (c) obligations or duties under easements, leases or other property rights; (d) Liens in favor of Buyer’s Lender; and (e) any other Liens agreed to in writing by Seller and Buyer.

“Person” means any individual, partnership, limited liability company, joint venture, corporation, trust, unincorporated organization, or governmental entity or any department or agency thereof.

“Physical Delivery” means for each Bloom System, physical delivery of such Bloom System to its Site.

“Physical Delivery Date” means for each Bloom System, the date of Physical Delivery.

“Placed in Service” means, with respect to any Bloom System, the completion and performance of all of the following activities: (1) obtaining the necessary licenses and Permits for the operation of such Bloom System and the sale of power generated by the Bloom System in accordance with clause (4) of this definition, (2) completion of critical tests necessary for the proper operation of such Bloom System in accordance with clause (4) of this definition, (3) synchronization of such Bloom System onto the electric distribution and transmission system of the applicable Transmitting Utility, (4) the commencement of regular, continuous, daily operation of such Bloom System, and (5) (i) the Interconnection Notice (under and as defined in the applicable PPA) has been received by the applicable PPA Customer and the date specified in such Interconnection Notice for the “Commencement of Operations” has occurred, and (ii) the Independent Engineer is reasonably satisfied that the applicable PPA Customer has not disputed “Commencement of Operations” for those Bloom Systems.

“Portfolio” means, on an aggregate basis, all Bloom Systems owned by Buyer that are purchased pursuant to this Agreement and that have been Placed in Service.

“Portfolio Warranty” is defined in Section 5.5.

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“Power Module” means the power module component of a Bloom System in the Portfolio, including any replacement power module component. For the avoidance of doubt, each Power Module has a rated capacity equal to 33 and 1/3 kW.

“Power Module Replacement Fee Rate” means [***] per kW.

“Power Module Replacement Fee Maximum” means, at any time, the amount equal to (A) the aggregate Baseload Capacity of the Bloom Systems in the Portfolio in kW, multiplied by (B) the Power Module Replacement Fee Rate.

“PPA” means collectively:

(i) that certain Energy System Use Agreement No. 20130430.072.C, dated as of May 15, 2013, by and between Pacific Bell Telephone Company (“Pac Bell”) and Buyer (as amended by Amendment No. 1 to Energy System Use Agreement No. 20130430.072.C, effective as of May 15, 2013, by and between Pac Bell and Buyer, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time), which was partially assigned by Buyer to 2012 ESA Project Company, LLC, a Delaware limited liability company (“2012 ESA”), pursuant to that certain Assignment and Assumption Agreement, dated as of July 5, 2013 (the “PPA E/G Assignment”), and which PPA E/G Assignment has been terminated pursuant to a termination agreement;

(ii) that certain Energy System Use Agreement No. 20130430.076.C, dated as of May 15, 2013, by and between Pac Bell and Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time;

(iii) that certain Energy System Use Agreement No. 20130430.078.C, dated as of May 15, 2013, by and between AT&T Corp. (“AT&T Corp”) and Buyer (as amended by Amendment No. 1 to Energy System Use Agreement No. 20130430.078.C, effective as of May 15, 2013, by and between AT&T Corp and Buyer, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time), which was partially assigned by Buyer to 2012 ESA pursuant to the PPA E/G Assignment, and which PPA E/G Assignment has been terminated pursuant to a termination agreement; and

(iv) that certain Energy System Use Agreement No. 20130403.076.C, dated as of May 15, 2013 (“PPA-C”), by and between AT&T Corp and 2012 ESA (as amended by that certain Acknowledgement and Consent Regarding Assignment and Amendment, effective as of May 15, 2013, by and between AT&T Corp and 2012 ESA, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time), which was assigned by 2012 ESA to Buyer pursuant to that certain Assignment and Assumption Agreement, dated as of July 5, 2013 (the “PPA B/C Assignment”), which PPA B/C Assignment has been terminated pursuant to a termination agreement and which PPA-C has been assigned by 2012 ESA to Buyer pursuant to the Assignment and Assumption Agreement.

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“PPA Customer” means each non-Buyer counter-party to a PPA.

“PPA Warranties” has the meaning provided in Section 5.8.

“Primary Service Fees” has the meaning provided in Section 4.3(a)(i).

“Prudent Electrical Practices” means those practices, methods, equipment, specifications and standards of safety and performance, as the same may change from time to time, as are commonly used by a significant portion of the grid-tied electrical generation industry operating in the United States as good, safe and prudent engineering practices in connection with the design, construction, operation, maintenance, repair and use of electrical and other equipment, facilities and improvements of such electrical generating facility, including any applicable practices, methods, acts, guidelines, standards and criteria of FERC and all applicable Legal Requirements.

“Purchase Order” means a purchase order for Bloom Systems to be purchased by Buyer in substantially the form of Exhibit A.

“Purchase Price” means a purchase price for each Bloom System, based on the Baseload Capacity for such Bloom System, calculated at [***] per kW, plus (i) any Taxes for the account of Buyer under Section 2.2(d) in respect of such Bloom System and (ii) with respect to any Bloom System that includes a UPM, [***] for each UPM.

“Qualified Appraiser” means a nationally recognized third-party appraiser reasonably acceptable to Buyer and Seller which shall (i) be qualified to appraise power systems similar to the Bloom Systems, and/or experienced in such businesses in the general geographic region of the relevant Facility, (ii) have been engaged in the appraisal or business valuation and consulting business for a period of not less than five years, and (iii) not be associated with either Buyer or Seller or any Affiliate thereof.

“Quarterly Capacity Payment” has the meaning provided in Section 5.4.

“Quarterly Capacity Warranty” has the meaning provided in Section 5.4.

“Quarterly Capacity Warranty Period” means, with respect to a Bloom System, each Calendar Quarter following the Commencement of Operations of the Facility into which such Bloom System is incorporated (or, in the case of the Calendar Quarter in which delivery of a Bloom System has occurred, the portion of such Calendar Quarter commencing on the date such Facility achieved Commencement of Operations).

“Recoverable Amount” is defined in Section 4.9(a)(vi).

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“Refund Value” means, with respect to any Bloom System (including any Underperforming System), the Residual Value of such Bloom System, as calculated as of the date that Seller becomes obligated to refund such amount to Buyer.

“Representatives” of a Party means such Party’s authorized representatives, including its professional and financial advisors.

“Residual Value” means, for any Bloom System, the greater of (a) the Fair Market Value of that Bloom System (as determined under the Appraisal Procedure if the Buyer and Seller cannot agree as to that Fair Market Value within [***] ([***]) days), and (b) 100% of the Purchase Price for such Bloom System until the first anniversary of Commencement of Operations of the Facility into which such Bloom System is incorporated, declining by [***] (i.e. [***]) on each anniversary of such date thereafter (for example, on the fifth anniversary of Commencement of Operations, the Residual Value will be [***] of the Purchase Price).

“SCADA” means the supervisory control and data acquisition systems.

“Seller” is defined in the preamble.

“Seller Default” is defined in Section 12.1.

“Seller Indemnitee” is defined in Section 13.2.

“Service Provider” means an operation and maintenance contractor appointed by the Seller and approved by the Buyer pursuant to Section 4.6.

“Service Technicians” is defined in Section 4.2(c).

“Shortfall Event License” means the Intellectual Property license issued by Seller to the Buyer titled “INTELLECTUAL PROPERTY LICENSE” and dated on or around July 19, 2013.

“Site” means the parcel of land leased or licensed from a PPA Customer to Buyer under a Site Lease and all easements appurtenant, easements in gross, license agreements and other rights running in favor of Buyer which provide access to the applicable Facility.

“Site Lease” means each agreement between Buyer and a PPA Customer regarding the lease, license, or similar contractual arrangement providing Buyer with the right of access to a Site for the purposes of performing Buyer’s obligations pursuant to the applicable PPA.

“Site Preparation Services” means preparing each Site for installation of a Facility, obtaining the required Permits to construct, operate and maintain the Facility, and providing for natural gas interconnection facilities, the Electrical Interconnection

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Facilities and any other ancillary facilities and equipment between the Bloom Systems and the applicable Transmitting Utility and otherwise performing the tasks required to prepare each Site for the Facility at the Site to attain Commencement of Operations.

“State Incentive Program” is defined in the PPAs.

“Software” shall mean all computer software that is necessary for Buyer to own and operate the Systems in compliance with the terms of this Agreement and the PPAs.

“Software License” is defined in Section 11.2.

“Tax” (and, with correlative meaning, “Taxes” and “Taxable”) means:

(i) any taxes, customs, duties, charges, fees, levies, penalties or other assessments imposed by any federal, state, local or foreign taxing authority, including, but not limited to, income, gross receipts, windfall profit, severance, property, production, sales, use, license, excise, franchise, net worth, employment, occupation, payroll, withholding, social security, alternative or add-on minimum, ad valorem, transfer, stamp, or environmental tax, or any other tax, custom, duty, fee, levy or other like assessment or charge of any kind whatsoever, together with any interest, penalty, addition to tax, or additional amount attributable thereto; and

(ii) any liability for the payment of amounts with respect to payment of a type described in clause (i), including as a result of being a member of an affiliated, consolidated, combined or unitary group, as a result of succeeding to such liability as a result of merger, conversion or asset transfer or as a result of any obligation under any tax sharing arrangement or tax indemnity agreement.

“Term” means the period which (a) shall commence on the first day of the Warranty Period for the first Facility to achieve Commencement of Operation and (b) shall, unless terminated earlier under ARTICLE XII of this Agreement or unless extended by mutual agreement of the Parties, terminate on the date that is the last day of the Warranty Period for the last Facility to achieve Commencement of Operations.

“Third Party Claim” means any claim, action, or proceeding made or brought by any Person who is not (a) a Party to this Agreement, or (b) an Affiliate of a Party to this Agreement (and that is not a claim based on breach by the Indemnified Party of its obligations under this Agreement).

“Transaction Documents” means this Agreement, the Administrative Services Agreement and the Shortfall Event License.

“Transmitting Utility” means, with respect to a Facility, the local electric utility company in whose territory the Facility is located.

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“True Up Funding Date” is defined in the ECCA.

“Underperforming Systems” means any Bloom System that fails to deliver, in any Calendar Quarter during which the Portfolio fails to satisfy Quarterly Capacity Warranty, a number of kWh greater than or equal to the product of (x) such Bloom System’s Baseload Capacity multiplied by [***] and (y) the number of hours in such quarter minus the number of hours as of the last day of such quarter when such Bloom System (i) was subject to a Force Majeure Event, (ii) was not delivering Energy because of a failure to perform by the applicable PPA Customer, except to the extent caused or contributed to by Seller or its employees, agents, subcontractors or representatives, or (iii) was required by a Legal Requirement (which for this purpose shall include any utility requirement) to be disconnected from the distribution or transmission facilities of the Transmitting Utility or otherwise required not to deliver Energy as the result of a Legal Requirement or action by or a directive from the applicable Transmitting Utility with respect to such Bloom System (e.g., due to a grid event), except to the extent caused or contributed to by Seller or its employees, agents, subcontractors and representatives.

“UPM” means Uninterruptible Power Module.

“Warranty Period” means, for each Bloom System, the period beginning on the date the Bloom System achieves the requirements of subsections (a), (c) and (d) of the definition of “Commencement of Operations” and ending on the fifteenth (15th) anniversary of the date of Commencement of Operations of the Facility into which such Bloom System is incorporated.

“Warranty Specifications” means the Annual Capacity Warranty, the Quarterly Capacity Warranty and the Efficiency Warranty.

Section 1.2 Other Definitional Provisions.

(a) As used in this Agreement and in any certificate or other documents made or delivered pursuant hereto or thereto, financial and accounting terms not defined in this Agreement or in any such certificate or other document, and financial and accounting terms partly defined in this Agreement or in any such certificate or other document to the extent not defined, will have the respective meanings given to them under GAAP. To the extent that the definitions of financial and accounting terms in this Agreement or in any such certificate or other document are inconsistent with the meanings of such terms under GAAP, the definitions contained in this Agreement or in any such certificate or other document will control.

(b) The words “hereof”, “herein”, “hereunder”, and words of similar import when used in this Agreement will refer to this Agreement as a whole and not to any particular provision of this Agreement. Section references contained in this Agreement are references to Sections in this Agreement unless otherwise specified. The term “including” will mean “including without limitation”.

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(c) The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms.

(d) Any agreement, instrument or statute defined or referred to herein or in any instrument or certificate delivered in connection herewith means (unless otherwise indicated herein) such agreement, instrument or statute as from time to time amended, modified or supplemented and includes (in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein.

(e) Any references to a Person are also to its permitted successors and assigns.

ARTICLE II.

PURCHASE AND SALE

Section 2.1 Purchase Orders.

(a) In accordance with the terms hereof, Buyer may, from time to time, submit Purchase Orders to Seller for the purchase of Bloom Systems (not to exceed, in the aggregate, 6.1 MW in Baseload Capacity) in accordance with the terms hereof. So long as no Buyer Default has occurred and is continuing hereunder, Seller shall promptly accept each such Purchase Order by countersigning and returning it to Buyer; provided that the failure of Seller to countersign or return to Buyer a Purchase Order shall not invalidate such Purchase Order and Seller shall be obligated to deliver the Bloom System under such Purchase Order as contemplated by this Agreement.

(b) Each Purchase Order shall specify, among other details required by the terms thereof, (i) the aggregate Baseload Capacity of Bloom Systems ordered, (ii) the Sites to which such Bloom Systems shall be delivered, (iii) the aggregate Baseload Capacity to be delivered to each Site, (iv) the requested Physical Delivery Date for the Bloom Systems, and (v) whether such Bloom Systems will include a UPM.

Section 2.2 Payment of Purchase Price. For each Bloom System for which Buyer has submitted a Purchase Order:

(a) Seller shall invoice Buyer for payment of the Purchase Price for such Bloom System as follows:

(i) upon the Physical Delivery Date of the Bloom System, [***] ([***]) of the Purchase Price (including 100% of the Taxes included in the Purchase Price) for each Bloom System for which Physical Delivery has occurred; and

(ii) upon Commencement of Operations for the Facility into which each Bloom System is incorporated, [***] ([***]) of the Purchase Price (excluding all Taxes included in the Purchase Price) for such Bloom System.

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(b) Each invoice shall include the following information for each applicable Bloom System:

(i) the Site on which the Bloom System is installed or will be installed;

(ii) the serial number, Baseload Capacity and purchase order number;

(iii) the Purchase Price, including details of (x) all amounts previously paid towards or credited against the Purchase Price, and (y) all amounts remaining due and payable on the Purchase Price;

(iv) the Physical Delivery Date or expected Physical Delivery Date, as applicable;

(v) the date of Delivery or expected date of Delivery, as applicable;

(vi) for each invoice provided upon Commencement of Operations for a Facility, a copy of the written certification by the Independent Engineer for that Facility as required by paragraph (g) of the definition of ‘Commencement of Operations’; and

(vii) such other information as Buyer may reasonably request.

(c) Buyer shall pay all state and local sales, use or other transfer Taxes required to be paid by Buyer and attributable to the transfer of the Bloom System to Buyer, except that Seller shall be responsible for and pay any Taxes arising as a result of any components of such Bloom Systems or any Bloom Systems being acquired from a source outside of the United States.

(d) Payments of the portion of Purchase Price set forth in Section 2.2(a)(i) for a Bloom System shall be payable on the date of receipt by Buyer of an invoice pursuant to Section 2.2(a)(i) with respect to such Bloom System and must be paid no later than the date that is five (5) Business Days following both (i) the first Funding Date for such Bloom System following Physical Delivery of such Bloom System, and (ii) the date of certification to Buyer that on the date of Physical Delivery of such Bloom System, the Bloom System Purchase Conditions were true and correct. Interest shall accrue daily on sums not paid by the latter of the dates set forth in the preceding clauses (i) and (ii), at the lesser of a monthly rate of one and five-tenths percent (1.5%) or the highest rate permissible by law on the unpaid balance.

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(e) Final payments of the Purchase Price set forth in Section 2.2(a)(ii) shall be payable on the date of receipt by Buyer of an invoice pursuant to Section 2.2(a)(ii) with respect to a Bloom System and must be paid no later than the date that is five (5) Business Days following the latest of (i) the next Funding Date following the receipt by Buyer of an invoice pursuant to Section 2.2(a)(ii) with respect to such Bloom System, (ii) the date of funding of the portion of the final payment of the Purchase Price set forth in Section 2.2(a)(ii) that is to be funded under the Loan Agreement with respect to such Bloom System and (iii) the date of certification to Buyer that Commencement of Operations of the Facility into which such Bloom System is incorporated has occurred. Interest shall accrue daily on sums not paid by the latest of the dates set forth in the preceding clauses (i), (ii) and (iii), at the lesser of a monthly rate of one and five-tenths percent (1.5%) or the highest rate permissible by law on the unpaid balance.

(f) If Buyer defaults in any payment when due for any Bloom System (other than with respect to amounts being disputed in good faith), Seller may, on not less than five (5) Business Days prior notice to Buyer, at its option and without prejudice to its other remedies, (i) suspend performance of its obligations hereunder for such Bloom System, or defer delivery of such Bloom System to Buyer and (ii) require that (until all such outstanding payment defaults have been cured) the payment of the portion of the Purchase Price for future Bloom Systems required under Section 2.2(a)(ii) above be made immediately prior to the delivery of such Bloom System, but Seller shall not be able to otherwise suspend performance of its obligations hereunder for other Bloom Systems for which no such default exists.

(g) Seller shall promptly pay all subcontractors working on the Bloom Systems delivered and installed under this Agreement. Seller shall discharge any Liens by such subcontractors within thirty (30) days of receiving notice thereof. Seller shall release all Liens in favor of Seller on each Bloom System upon final payment of the Purchase Price for such Bloom System. After receipt of the portion of the Purchase Price for each Bloom System as provided in Section 2.2(a)(i), Seller will issue a statement of the balance of the Purchase Price for such Bloom System, being the amount which, once paid to Seller, will cause Seller to release its lien on the Bloom System. Seller hereby agrees that third parties, such as, without limitation, Buyer’s Lender, may rely on each such statement.

(h) Notwithstanding the foregoing in this Section 2.2 or any other provision of this Agreement to the contrary, if Buyer (a) admits in writing its inability to pay its debts generally as they become due; (b) files a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other applicable law or statute of the United States of America or any State, district or territory thereof; (c) makes an assignment for the benefit of creditors; (d) consents to the appointment of a receiver of the whole or any substantial part of its assets; (e) has a petition in bankruptcy filed against it, and such petition is not dismissed within ninety (90) days after the filing thereof; or if (f) a court of competent jurisdiction enters an order, judgment, or decree

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appointing a receiver of the whole or any substantial part of Buyer’s assets, and such order, judgment or decree is not vacated or set aside or stayed within ninety (90) days from the date of entry thereof; or (g) under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the whole or any substantial part of Buyer’s assets and such custody or control is not terminated or stayed within ninety (90) days from the date of assumption of such custody or control, then Seller shall have no obligation to deliver any Bloom System hereunder, or if Physical Delivery for a Bloom System has already occurred, Seller shall have the right to require immediate payment of any amount due under Section 2.2(a)(i) and the right to require that the final payment of the Purchase Price for such Bloom System be made promptly (but no earlier than Commencement of Operations of such Bloom System).

Section 2.3 Purchase and Sale of Bloom Systems. Upon the “Delivery Date” for a Bloom System as provided in the invoice described in Section 2.2(a)(i) above, which date in any case may not be earlier than when Physical Delivery occurs, nor any later than the date for which the Bloom System Purchase Conditions for the Bloom System are and remain true and correct, (i) Seller shall have sold, assigned, conveyed, transferred and delivered to Buyer, and Buyer shall have purchased, assumed and acquired from Seller, all of Seller’s right, title and interest in and to such Bloom System, (ii) the sale of such Bloom System shall occur, and (iii) Seller shall provide Buyer with (a) a Bill of Sale evidencing the same, (b) lien waivers from each subcontractor performing BOF Work at the applicable Site, stating that such subcontractor has been paid all amounts owed to it as of the date of the lien waiver and (c) a certification from Seller that on the date of Physical Delivery of such Bloom System, the Bloom System Purchase

Conditions were true and correct (the foregoing being “Delivery”).

Section 2.4 PPA Termination and Re-Purchase of Bloom Systems. Subject to Section 12.7, in the event that (i) a PPA Customer terminates a PPA with respect to a Bloom System prior to its expiration, (ii) the applicable PPA Customer pays Buyer the termination value due under the applicable PPA, and (iii) Buyer has paid all amounts owed by it to Buyer’s Lender under the Loan Agreement in respect of the applicable PPA termination and Buyer’s Lender has released the applicable collateral then Seller shall be obligated to purchase from Buyer, and Buyer shall be obligated to sell to Seller, the Bloom System for which the PPA is being terminated for a purchase price of $1.00 in consideration of Seller hereby agreeing to take all responsibilities to the applicable PPA Customer under the relevant PPA and otherwise for relocating, redeploying and paying the PPA Customer any moneys in relation thereto if applicable. The Seller hereby indemnifies Buyer against all claims made by, and liabilities to, the PPA Customer in respect of such Bloom System after such PPA termination. Title to such Bloom System shall transfer to Seller upon the date that Seller pays the purchase price of $1.00 to Buyer.

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ARTICLE III.

DELIVERY AND INSTALLATION OF SYSTEMS AND BALANCE OF FACILITIES

Section 3.1 Access to Site. Seller shall be responsible for ascertainment of the suitability of the Sites, the environment around the Sites, the Sites’ soil condition and other ground conditions for construction of the Facilities. As between Seller and Buyer, Seller shall be solely responsible for all Site Preparation Services at Seller’s cost. Seller, as administrator for Buyer pursuant to the Administrative Services Agreement, shall provide access to the Sites to permit Seller to deliver and install each Bloom System and the BOF to the Sites and to connect the applicable Facility to the distribution and transmission facilities of the Transmitting Utility, as applicable. If a PPA Customer requires a change in the location of a Site from that specified in a Purchase Order, (a) Buyer shall submit a written notice to Seller setting forth the details of such location change, (b) the Seller shall administer and perform the Site Preparation Services as required for that changed location to the extent required and in accordance with the relevant PPA and (c) to the extent that such PPA Customer pays to Buyer an amount under the applicable PPA in connection with such required change in the location of a Site, Buyer shall pay the same to Seller promptly upon receipt from such PPA Customer.

Section 3.2 Physical Delivery of Bloom Systems.

(a) Physical Delivery of each Bloom System shall occur no more than sixty (60) days after the issuance of the applicable Purchase Order.

(b) Physical Delivery of each Bloom System shall be DDP (Incoterms 2010) to its Site, in accordance with the New York Uniform Commercial Code then in effect. Title to each Bloom System shall pass to Buyer upon Seller’s Delivery of such Bloom System, and such title shall be good and marketable and free of all Liens, except for Permitted Liens. From and after Seller’s Delivery of each Bloom System to Buyer all risk of loss or damage to such Bloom System shall be borne by Buyer.

(c) To the extent any Facility has not achieved Commencement of Operations within the earlier of (i) six (6) months of the payment of the portion of Purchase Price set forth in Section 2.2(a)(i) for the final Bloom System to be incorporated into such Facility and (ii) March 31, 2014, then Buyer shall have the ongoing right for the period from the end of that six-month period until the earlier of the date that such Facility has achieved Commencement of Operations and ninety (90) days after the end of that six-month period, to elect that each Bloom System to be incorporated into such Facility be removed from its Site and delivered to Seller at Seller’s expense in an AS IS condition and that Seller promptly (but in no event later than thirty (30) days thereafter) (i) pay Buyer the excess of the Residual Value over the remaining Purchase Price to be paid for that Bloom System in accordance with Section 2.2(a)(ii), at which time title and risk of loss with respect to such Bloom System shall pass back to Seller, and (ii) restore that portion of the Site which was improved to accept the installation of such removed Bloom System.

Section 3.3 Delivery of Balance of Facility; Installation of Bloom Systems.

(a) Seller shall be responsible for engineering, procuring, constructing, installing and commissioning the BOF, and Seller shall cause each Facility to achieve

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Commencement of Operations without any compensation or reimbursement by Buyer, other than the Purchase Price under this Agreement, in accordance with the following (collectively, the “BOF Work”):

(i) Seller shall perform and complete all BOF Work in accordance and consistent with the Performance Standards;

(ii) Seller shall cause to be performed any and all studies, reports and applications (in the name of Buyer, if Seller is an Affiliate of Buyer) that are necessary for interconnection to the distribution and transmission facilities of the Transmitting Utility;

(iii) Seller shall perform the BOF Work and act at all times as an independent contractor. Seller shall at all times maintain such supervision, direction and control over its employees, agents, subcontractors and representatives as is consistent with and necessary to preserve its independent contractor status. Seller is permitted to enter into contracts or otherwise hire one or more subcontractors to perform the Seller’s work on its behalf. Each subcontractor must be a reputable, qualified firm with an established record of successful performance in its trade, and shall obtain and maintain such insurance coverages having such terms as set forth in Annex B. Seller shall not be relieved from its obligation to provide the BOF Work if a subcontractor agrees to provide any or all of such BOF Work. No subcontractor is intended to be or will be deemed a third-party beneficiary of this Agreement. Nothing contained herein shall create any contractual relationship between any subcontractor and Buyer or obligate Buyer to pay or cause the payment of any amounts to any subcontractor, including any payment due to any third party. Seller shall not permit any subcontractor to assert any Lien against any Facility or Bloom System, or attach any Lien other than a Permitted Lien. None of Seller’s employees, subcontractors or any such subcontractor’s employees will be or will be considered to be employees of Buyer. Seller shall be fully responsible to Buyer for the acts and omissions of each such employee or subcontractor. Seller will be fully responsible for the payment of all wages, salaries, benefits and other compensation to its employees and for payment of any Taxes due because of the BOF Work;

(iv) Seller shall, and shall cause each of its subcontractors to, install the Bloom Systems and the BOF at each Site using items that are new, and undamaged at the time of such use or installation;

(v) Seller shall install, test, and cause the Commencement of Operations with respect to each Facility as provided in Section 3.4;

(vi) Seller shall pay all amounts owed to its subcontractors and vendors in connection with the performance of the BOF Work on a timely basis and shall hold Buyer harmless against any claims asserted by such subcontractors and vendors;

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(vii) Seller shall obtain and maintain, or cause to be obtained and maintained (where required, in the name of the Buyer or each PPA Customer, as the case may be), all Permits necessary to design, install, and commission each Bloom System and to construct, occupy, and operate each Facility and each Site; and

(viii) Seller shall cause BOF Work to be completed in a good and workmanlike manner and in accordance with the Performance Standards, free and clear of all Liens other than Permitted Liens. The BOF Work shall not be considered complete until Seller shall have procured the issuance of a certificate from the Independent Engineer addressed to Seller and Buyer, certifying without qualification, that the BOF has been completed and is available for commercial operation.

(b) Title and risk of loss to each component of such BOF Work for the Site which is not performed and provided on assets owned by a relevant PPA Customer or relevant Transmitting Utility shall pass to Buyer upon the later of the Delivery Date of the first Bloom System at the Site and the date such component is installed as part of the Facility at the Site. For the avoidance of doubt, the passage of title and risk of loss with respect to the Bloom Systems shall have passed to Buyer prior to any Bloom System being Placed in Service. From and after the Commencement of Operations of the Facility of which particular BOF Work is a part, all risk of loss or damage to such BOF Work which is owned by Buyer shall be borne by Buyer.

Section 3.4 Commissioning; Commencement of Operations.

(a) Upon the occurrence of the Physical Delivery for a Bloom System, Seller shall promptly perform the following:

(i) Seller shall provide installation, inspection, commissioning and start-up for each Bloom System and the BOF at the applicable Site in accordance with the installation manuals provided for such Bloom System and the applicable Site Lease, and in conformance with Prudent Electrical Practices. Without limitation of the foregoing, each Bloom System will be connected by the Seller to the natural gas source, water source and SCADA at the applicable Site and to the applicable Facility’s Electrical Interconnection Facilities;

(ii) Prior to Commencement of Operations of each Facility, Seller shall perform an acceptance test as is required and approved by the Independent Engineer (but not less stringent than the testing applied to its fuel cell power generating systems for any other major customer of Seller) of each Bloom System incorporated into such Facility and the applicable BOF in the presence of the

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Independent Engineer (if so required by the Independent Engineer), and such Bloom Systems and applicable BOF shall have passed such test as witnessed by the Independent Engineer (if so required by the Independent Engineer). Seller shall provide Buyer and the Independent Engineer reasonable advance written notice of such testing;

(iii) Seller shall cause Commencement of Operations for such Facility to occur. Seller shall promptly certify in writing to Buyer when each Facility achieves Commencement of Operations;

(iv) Seller will provide to Buyer a single line diagram of the installation, electronic system manuals, copies of all relevant design documents, and printed system manuals, in each case relating to such Facility (in paper copy and electronic format). Seller shall deliver to Buyer any other documentation necessary to establish placement in service for purposes of section 48 of the Code;

(v) Until Commencement of Operations of the Facility, Seller shall be responsible for providing physical security of such Facility; and

(vi) If requested by Buyer, Seller shall provide operator training and associated training materials to personnel of Buyer sufficient to instruct Buyer on operation of such Bloom System in conformance with Prudent Electrical Practices.

(b) Seller’s services under this Section 3.4 shall be fully comprehensive of all services, labor, and equipment necessary to complete installation of a fully commissioned and operating Facility in accordance with this Agreement, the applicable PPA, the applicable Interconnection Agreement, and the applicable Site Lease.

(c) Seller shall be responsible, at its sole cost and expense, for maintaining and complying with all Permits required to perform its services under this Agreement and Buyer agrees to cooperate with and assist Seller in obtaining such Permits.

Section 3.5 Insurance. Seller shall maintain the insurance described in Annex B with respect to each Facility until the end of the Warranty Period with respect to such Facility.

Section 3.6 Disposal; Right of First Refusal.

(a) In the event that Buyer decides to scrap, abandon or otherwise dispose of any Bloom System, Buyer shall notify Seller and Seller shall have the right but not the obligation to obtain title to the Bloom System and remove the Bloom System at Seller’s cost; provided, however, that Seller will not be responsible for remediation of the Site in which the Bloom System was located.

(b) Except as set forth in Section 2.4, in the event that Buyer decides to sell or otherwise transfer title to any Bloom System to a transferee other than a PPA Customer pursuant to a PPA or to Buyer’s Lender or its designee (or any assignee of (or purchaser in foreclosure from) Buyer’s Lender) in connection with Buyer’s Lender’s exercise of its security interest in such Bloom System, Buyer shall notify Seller and Seller shall have the right of first refusal to purchase or acquire the Bloom System on the same terms and conditions of such sale. In the event that Seller exercises such right of first refusal, Seller shall, promptly following payment of the purchase price of such Bloom System, remove the Bloom System at Seller’s cost, including the remediation of the Site in which the Bloom System was located in accordance with the terms of the applicable Site Lease.

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Section 3.7 Buyer’s Lender. Seller shall furnish Buyer’s Lender such certifications regarding its actions under this ARTICLE III as Buyer’s Lender shall reasonably request and shall otherwise cooperate with Buyer’s Lender.

Section 3.8 Access; Cooperation. Seller shall provide to Buyer such other information that is in the possession of Seller or its Affiliates or is reasonably available to Seller regarding the permitting, engineering, construction, or operations of Seller, its subcontractors or the Facilities, and other data concerning Seller, its subcontractors or the Facilities that Buyer may, from time to time, reasonably request in writing, subject to Seller’s obligations of confidentiality to third parties with respect to such information.

Section 3.9 Performance Standards. For the purpose of this Agreement, Seller shall perform under this Agreement in accordance and consistent with each of the following (unless the context requires otherwise): (A) plans and specifications subject to Permits under applicable law and applicable to each Facility; (B) the manufacturer’s recommendations with respect to all equipment and all maintenance and operating manuals or service agreements, whenever furnished or entered into, including any subsequent amendments or replacements thereof, issued by the manufacturer, provided they are consistent with generally accepted practices in the fuel cell industry; (C) the requirements of all applicable insurance policies; (D) preserving all rights to any incentive payments, warranties, indemnities or other rights or remedies, and enforcing or assisting with the enforcement of the applicable warranties, making or assisting in making all claims with respect to all insurance policies; (E) all Legal Requirements and Permits/Governmental Approvals; (F) any applicable provisions of the Site Leases, including any landlord rules and regulations; a (G) Prudent Electrical Practices; and (H) the relevant provisions of each Interconnection Agreement, and each PPA (collectively, the “Performance Standards”); provided, however, that meeting the Performance Standards shall not relieve Seller of its other obligations under this Agreement.

Section 3.10 Appointment of Independent Engineer. For the purposes of this ARTICLE III, Seller and the Buyer appointed the Independent Engineer effective July 19, 2013. The Independent Engineer shall act as independent engineer, reviewer, and certifier as contemplated in this Agreement. The Independent Engineer’s duties will include a duty of care to the Buyer’s Lender. The Independent Engineer will, among other things, witness the

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commissioning and testing of each Bloom System and the BOF Work pursuant to this ARTICLE III (the  “Independent Engineer”). All fees and costs payable in respect of the Independent Engineer (including those incurred in making such appointment) shall be borne by Seller.

ARTICLE IV.

FACILITY SERVICES

Section 4.1 In General. During the Warranty Period, Seller shall service each Facility so that the Portfolio meets the Warranty Specifications and so that the BOF will not cause the Portfolio to fail to perform in accordance with the Warranty Specifications, as more fully set forth in ARTICLE V (such services, collectively, the “Facility Services”). The Facilities covered under this Agreement are set forth in Exhibit C hereto, which may be amended from time to time by written agreement between the Parties.

Section 4.2 Operation and Maintenance Services. Seller is hereby granted the right and authority (and, to the extent necessary to carry out its functions hereunder, a limited power of attorney) and agrees, for the benefit of Buyer, to operate safely and reliably each Facility and to maintain during the Warranty Period in accordance with the terms of this Agreement each such Facility in good condition and repair in accordance with the Warranty Specifications, Performance Standards and Prudent Electrical Practices. During the Warranty Period, the specific responsibilities of Seller under this Agreement shall include the following:

(a) Facility Operations. Seller shall ensure that all Facility components are operated and maintained in a manner designed to meet the Warranty Specifications and Performance Standards and as required under this Agreement.

(b) Facility Maintenance. Seller shall perform, or cause to be performed, all scheduled and unscheduled maintenance required on the Facilities in order to meet the Warranty Specifications and Performance Standards. In that regard, Seller’s responsibilities hereunder shall include, without limitation, promptly correcting any Bloom System or BOF malfunctions, either by (i) recalibrating or resetting the malfunctioning Bloom System or BOF, or (ii) subject to Section 5.7(b), repairing or replacing Bloom System or BOF components which are defective, damaged, worn or otherwise in need of repair or replacement.

(c) Personnel. Seller shall ensure that all operations and maintenance functions contemplated by this Section are performed by technically competent and qualified personnel (the “Service Technicians”). Seller shall ensure that all Service Technicians: (i) participate in a maintenance training program and receive confirmation of having achieved the requisite level of proficiency for the tasks they are assigned to perform, and (ii) attend periodic “refresher” training programs to the extent Seller deems necessary, in its reasonable judgment. The Seller shall at all times retain an operations manager who shall be dedicated to the overall supervision and management of performance of the Seller’s obligations under this Agreement.

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(d) Spare Parts. Seller shall establish and maintain an adequate spare parts inventory.

(e) Programs and Procedures. Prior to the date of the Commencement of Operations of the first Facility, Seller shall have adopted and implemented programs and procedures intended to ensure safe and reliable operation of the Facilities.

Section 4.3 Service Fees.

(a) Buyer shall compensate Seller for the Facility Services, on a Calendar Quarter basis, by paying Seller the “Service Fees” equal to the sum of:

(i) for each Facility, the “Primary Service Fees” in an amount equal to (A) the rate (in $/kW) specified in Exhibit D hereto for the applicable Calendar Quarter since the applicable Facility achieved Commencement of Operations, multiplied by (B) the aggregate Baseload Capacity (in kW) of the Bloom Systems comprising the applicable Facility, for the applicable Calendar Quarter, plus

(ii) an amount equal to (A) the Power Module Replacement Fee Rate, multiplied by (B) the aggregate rated capacity (in kW) of Power Modules replaced during the applicable Calendar Quarter, provided, however that aggregate payments made at any time in respect of this Section 4.3(a)(ii) for Power Module replacement shall not exceed the Power Module Replacement Fee Maximum; plus

(iii) upon occurrence of the Maintenance Reserve Account Release Date during the applicable Calendar Quarter, a one-time payment equal to the Maintenance Reserve Account Release Date Balance.

Commencing on date each Facility achieves Commencement of Operations, with respect to each quarter of such Facility’s Warranty Period, the Service Fees shall be invoiced not later than fifteen (15) days prior to the first day of such quarter, and, subject to Section 5.4 and Section 4.3(b), shall be payable within thirty (30) days of invoice. Interest shall accrue daily on the Service Fees not paid when due, at the lesser of the monthly rate of one and five-tenths percent (1.5%) or the highest rate permissible by law on such unpaid balance. Seller shall be under no obligation to provide or perform services hereunder for any Facility whose Service Fee, other than a Service Fee disputed in good faith, has not been paid (or offset pursuant to Section 5.4) in full within thirty (30) days of invoice until such date upon which the Service Fee has been paid.

(b) If Buyer disputes any amount shown in an invoice issued by Seller in accordance with Section 4.3(a): (i) Buyer must pay the undisputed portion of the invoice amount within the time prescribed by Section 4.3(a), and (ii) liability for the disputed portion of that invoice will be determined in accordance with the dispute resolution procedure set out in Section 14.5.

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(c) Any disputed portion of an invoiced amount which was not paid under Section 4.3(b) and is determined as being due to Seller in accordance with the dispute resolution procedure set out in Section 14.5 must be paid by Buyer within ten (10) days of the determination of the dispute in accordance with the procedure set out in Section 14.5 plus interest calculated in accordance with Section 4.3(a).

(d) In connection with Facility Services for the BOF, Seller shall provide all required labor and all required spare parts at Seller’s cost.

(e) Any payment of monies under this Section 4.3 is not: (i) evidence of the value of the Facility Services or that the Facility Services have been satisfactorily carried out in accordance with the Agreement, or (ii) an admission of liability, or (iii) approval by Buyer of Seller’s performance or compliance with the Agreement, but is only to be taken as payment on account.

Section 4.4 Remote Monitoring. For purposes of determining when repair services are necessary, Seller shall monitor and evaluate the information gathered through remote monitoring of each Facility as well as the maintenance and inspection Site visits.

Section 4.5 Permits.

(a) Seller shall be responsible, at its sole cost and expense, for maintaining and complying with all Permits required to perform the Facility Services under this Agreement;

(b) Buyer agrees to cooperate with and assist Seller in obtaining all Permits.

Section 4.6 Service Providers. Seller may appoint an unrelated third party, who is appropriately qualified, licensed, and financially responsible, to operate and maintain the Facilities throughout the Term (a “Service Provider”). Seller shall submit such appointment of any Service Provider to Buyer for its prior written approval, which approval shall not be unreasonably withheld or delayed. Seller will use commercially reasonable efforts to cause each Service Provider to enter into a direct agreement in reasonably satisfactory form with Buyer and/or Buyer’s Lender if requested by Buyer or Buyer’s Lender. No such appointment nor the approval thereof by Buyer, however, shall relieve Seller of any liability, obligation, or responsibility resulting from a breach of this Agreement.

Section 4.7 Rights to Deliverables. Buyer agrees that Seller shall, except as expressly set forth herein, retain all rights, title and interest, including Intellectual Property rights, in any Training Materials provided to Buyer in connection with the services performed hereunder. Seller grants to Buyer (and Buyer’s Lender or its designee (or any assignee of (or purchaser in foreclosure from) Buyer’s Lender) upon transfer of the Portfolio and underlying agreements to such party due to a foreclosure proceeding on account of Buyer’s Lender’s security interest herein) the limited right to use for the Bloom Systems, and to sub-license to its agents the right to use for the Bloom Systems, any Training Materials which are provided under this Agreement,

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and Buyer (and Buyer’s Lender as applicable) agrees that upon termination of this Agreement for any reason, Buyer (or Buyer’s Lender or its designee, as applicable) shall return all Training Materials, including any copies, to Seller, except that Buyer (or Buyer’s Lender or its designee, as applicable) may retain a copy of all Training Materials if needed in order to operate and maintain all Bloom Systems and BOF following termination of this Agreement. Except to the extent required to use the Training Materials in accordance with the terms hereof, Buyer (and Buyer’s Lender or its designee, as applicable) will not make copies nor will it permit its employees, contractors, affiliates, or representatives to make copies of any Training Materials without Seller’s prior written consent, such consent not to be unreasonably withheld or delayed. “Training Materials” means any and all materials, documentation, notebooks, forms, diagrams, manuals and other written materials and tangible objects, describing how to operate and maintain the Facilities, including any corrections, improvements and enhancements which are delivered by Seller to Buyer (or Buyer’s Lender or its designee, as applicable), but excluding any data and reports delivered to Buyer (or Buyer’s Lender or its designee, as applicable).

Section 4.8 Obligations of Seller Related to PPAs

(a) Notwithstanding any other provision of this Agreement, it is the intention of the Parties and it is agreed that all of Buyer’s obligations under the PPAs that relate to the preparation of each relevant Site and the installation and commissioning of each Facility will be performed by the Seller on behalf of the Buyer as separate obligations of the Seller under this Agreement (which obligations are parallel and equivalent to the obligations of the Buyer under the PPAs). Accordingly, Seller shall perform those obligations under this Agreement in a manner that is consistent with and enables performance of all such obligations of the Buyer under the PPAs.

(b) The Seller shall (i) undertake its obligations in accordance with this Agreement so as to enable Buyer to fulfill its obligations under the PPAs that relate to the preparation of each relevant Site and the installation, commissioning, maintenance and operation of each Facility; and (ii) in performing its obligations under this Agreement, not cause Buyer to be in breach of its obligations under the PPAs in relation to the Bloom Systems and BOF or interfere with, hinder or disrupt Buyer’s performance of its obligations under the PPAs and the Loan Agreement.

(c) The Parties acknowledge that other provisions of this Agreement may contain some of the same obligations of the Seller as those under this Section 4.8.

(d) Without affecting the generality of Sections 4.8(a) and 4.8(b), Seller shall perform on behalf of Buyer all of Buyer’s obligations as they relate to the preparation of each relevant Site and the purchase, installation, commissioning, maintenance and operation of all parts of each Facility under each of the following clauses of each PPA1:

(i) Section 1.2 – requirements for site layout and modifications for installation, as agreed with the PPA Customer;

1 In light of Bloom’s deletion of “all of” and “any of” prior to “obligations” in Section 4.8(b), we reverted to the approach from the December closing and listed the specific requirements of the AT&T PPA.

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(ii) Section 1.3(a) – requirement for the Buyer to relocate the systems to an alternative site;

(iii) Section 1.4 – requirement for removal of Bloom Systems;

(iv) Section 2.3, 5.1 and 5.2 – administration and billing including any State Incentive Program management;

(v) Section 3.2 – metering installation and maintenance obligations;

(vi) Sections 3.3 and 4.5 – natural gas interconnection infrastructure obligations;

(vii) Section 7.1(a) – health and safety obligations;

(viii) Section 9.3 – the requisite standards applicable to installation of the system;

(ix) Section 9.4 – the IP infringement warranty given by the Buyer;

(x) Section 12.1(a)(iii) – SGIP Performance Warranty (if applicable);

(xi) Section 16.2 – the IP indemnification given by the Buyer;

(xii) Section 17 – the insurance requirements applicable to the Buyer;

(xiii) Section 18.12 – the prohibition on offshore work;

(xiv) Section 18.14 – the requirements that apply to entry onto property owned or controlled by the PPA Customer;

(xv) Section 18.16 – the plant and work rules requirements that apply while on the premises of the PPA Customer;

(xvi) Section 18.17 – the method of procedure obligations;

(xvii) Section 18.18 – Quality Assurance obligations; and

(xviii) Section 19.1 – on-site services obligations with respect to Buyer’s personnel.

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Section 4.9 Corresponding Entitlements.

(a) A “Corresponding Entitlement” is an entitlement, or a claim to an entitlement, of Seller to the extent:

(i) Buyer has a claim against a PPA Customer or an entitlement under an equivalent provision of a PPA, as applicable, based on the same or similar events or circumstances as Seller’s entitlement or claim; or

(ii) Seller has rights against Buyer under a warranty or indemnity or specific right to compensation, negotiation, reimbursement or recovery and there is a corresponding warranty or indemnity or specific right to compensation, negotiation, reimbursement or recovery (even if expressed in different terms) in a PPA under which Buyer has rights.

(b) With respect to all Corresponding Entitlements,

(i) Seller will not be entitled to claim or recover from Buyer any amount greater than the compensation, relief or remedy payable or allowable from the PPA Customer to Buyer in respect of the Corresponding Entitlement of Seller.

(ii) Seller must, in relation to any claim by Seller arising out of or in connection with any Corresponding Entitlement, reasonably cooperate with and assist Buyer in negotiations and dispute resolutions with the applicable PPA Customer.

(iii) Buyer will pursue claims against the applicable PPA Customer which relate to Corresponding Entitlements provided the claim embodied in the Corresponding Entitlement is not frivolous, vexatious or trivial. Buyer may decide not to pursue a genuine Corresponding Entitlement (i.e. one which is not frivolous, vexatious or trivial) of Seller, if it agrees to pay Seller a reasonable settlement in relation to that Corresponding Entitlement.

(iv) Seller indemnifies Buyer for Buyer’s costs of pursuing a Corresponding Entitlement including adverse costs awards and judgments or other determinations provided that Buyer will bear such proportion of such costs as may be reasonably attributed to a Buyer claim which does not form part of a Corresponding Entitlement.

(v) Subject to Section 4.9(b)(vi) Seller will accept in full satisfaction of any Corresponding Entitlement the amount agreed by Buyer and the applicable PPA Customer (after due and proper consultation with Seller which shall be undertaken to determine the Seller’s proper entitlements under this Section 4.9) or determined under the applicable PPA.

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(vi) If any claim by Buyer under a PPA includes both a claim by Buyer not referable to Seller and a claim by Seller under this Agreement and the aggregate amount recoverable from the applicable PPA Customer (“Recoverable Amount”) is less than the amount claimed by Buyer and Seller, the Parties will seek to agree to that proportion of the Recoverable Amount to which they are entitled, and if the Parties fail to so agree, the determination as to the proportion of the Recoverable Amount to which they are each entitled will be referred to dispute resolution under this Agreement and be determined on the basis of what is fair and reasonable having regard to the proportionality principle stated in this Section 4.9(b)(vi).

(vii) Seller will be bound by the outcome of any binding settlement or determination by dispute resolution under a PPA between Buyer and the applicable PPA Customer contemplated under and effected in accordance with the mechanism set out in this Section 4.9.

ARTICLE V.

WARRANTIES

Section 5.1 Facility Services Warranty. During the Warranty Period, Seller shall perform the services to the Bloom Systems and the BOF necessary for the Portfolio to perform to the Warranty Specifications (the “Facility Services Warranty”).

Section 5.2 Annual Capacity Warranty. During the Warranty Period, Seller shall determine within ten (10) Business Days after the end of each calendar year, whether the Portfolio has delivered to the applicable Interconnection Points the Minimum kWh during such Capacity Warranty Period (“Annual Capacity Warranty”). If such calculation indicates that the Actual kWh delivered by the Portfolio was less than the Minimum kWh during such calendar year, then Seller shall so notify Buyer in writing of the basis of its determination and Buyer may make a claim under Section 5.7 based on the average tolling rate of the applicable Fleet during the Capacity Warranty Period in order to compensate for the Buyer’s loss of revenue resulting from the failure of the Bloom Systems to achieve the Minimum kWh. For the purposes of avoiding double counting of any kWh shortfalls in calculating Capacity Warranty payments, a claim made in respect of the Annual Capacity Warranty for a calendar year will be reduced by the total amount paid by the Seller in respect of claims under the Quarterly Capacity Warranty for the Calendar Quarters in that calendar year. If the Seller fails to perform any Capacity Warranty calculation within the periods required by this Section 5.2, the Buyer may perform its own calculations and may make a claim under Section 5.7. An example of an Annual Capacity Warranty calculation for purposes of a Section 5.7 claim is attached as Annex C.

Section 5.3 Efficiency Warranty. During the Warranty Period, Seller shall determine for each full calendar month within five (5) Business Days after the end of such month whether each Facility that has achieved Commencement of Operations has performed at the Minimum Efficiency Level (the “Efficiency Warranty”). If the Minimum Efficiency Level has not been met during such month, then Seller shall so notify Buyer in writing of the basis of its

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determination and Buyer may make a claim under Section 5.7. If the Seller fails to perform any Efficiency Warranty calculation within the periods required by this Section 5.3, the Buyer may perform its own calculations and may make a claim under Section 5.7.

Section 5.4 Quarterly Capacity Warranty.

(a) During the Warranty Period, Seller shall determine, on the first Business Day following the end of each Calendar Quarter, whether the Portfolio has delivered to the applicable Interconnection Points the Minimum kWh during the immediately preceding Capacity Warranty Period (the “Quarterly Capacity Warranty”). If such calculation indicates that the Actual kWh of the Portfolio was less than the Minimum kWh during such Calendar Quarter, then Seller shall (i) so notify Buyer in writing of the basis of its determination and (ii) immediately make a payment to Seller in an amount calculated as set forth on Annex C based on the average tolling rate of the applicable Fleet during the Capacity Warranty Period in order to compensate for the Buyer’s loss of revenue resulting from the failure of the Bloom Systems to achieve the Minimum kWh (such payment, a “Quarterly Capacity Payment”). If the Seller fails to perform any Capacity Warranty calculation within the periods required by this Section 5.4, the Buyer may perform its own calculations and may make a claim under this Section 5.4.

(b) Quarterly Capacity Warranty Payments owed pursuant to this Section 5.4 shall be paid as follows: first, the Service Fees owed by Buyer for a Calendar Quarter shall be offset to the extent of any Quarterly Capacity Warranty Payment arising out of such Calendar Quarter, and second, any remaining amount owed by Seller to Buyer after such offset shall be due and payable in cash, such payment to be paid no later than the fifth Business Day of the Calendar Quarter immediately following the Calendar Quarter with respect to which such Quarter Capacity Warranty Payment arose.

(c) In the event that Seller is liable to Buyer for any cash payment of a Quarterly Capacity Payment following the offset provided in Section 5.4(b) and has failed to make such cash payment within thirty (30) days of the final day of the Calendar Quarter in which the Portfolio fails to satisfy the Quarterly Capacity Warranty, Buyer may return a sufficient number of Underperforming Systems such that the remainder of the Portfolio would have satisfied such Quarterly Capacity Warranty had such returned Underperforming Systems been excluded from the calculation for such Calendar Quarter. With respect to each such returned Underperforming System, Seller shall immediately refund to Buyer the Refund Value of such Underperforming System, and shall promptly remove such returned Underperforming System from the applicable Site and be deemed to have taken title to such Underperforming System, and such Underperforming System shall be deemed to no longer constitute a portion of the Portfolio. If a Bloom System will be removed pursuant to this Section 5.4(c), Seller shall at its sole cost and expense remove the Bloom System and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable Site Lease) from the applicable Site, restoring the Site to its condition before

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the installation, including closing all utility connections in the manner required by all Legal Requirements and the applicable Site Lease. For the avoidance of doubt, Buyer’s return of Underperforming Systems pursuant to this Section 5.4(c) shall not relieve Seller of its obligation to pay to Buyer, or decrease the amount of, the Quarterly Capacity Payment set forth in Section 5.4(a).

Section 5.5 Portfolio Warranty.

(a) Subject to Section 13.5(a), Seller warrants to Buyer that (i) each Bloom System (other than any Software) and the BOF related to each Bloom System will be free from defects in materials and workmanship at the beginning of the Warranty Period for such Bloom System and (ii) the Portfolio, including the BOF related to the Bloom System, will comply with the Warranty Specifications during the Warranty Period, and the BOF will not cause the Portfolio to fail to perform in accordance with the Warranty Specifications (collectively, the “Portfolio Warranty”).

(b) The Portfolio Warranty is not transferable to any third person, including any person who buys a Bloom System from Buyer, without Seller’s prior written consent (which shall not unreasonably be withheld) other than to Buyer’s Lender or its designee (or any assignee of (or purchaser in foreclosure from) Buyer’s Lender) upon transfer of the Portfolio and underlying agreements to such party due to a foreclosure proceeding on account of Buyer’s Lender’s security interest herein and, if transferred to Buyer’s Lender or its designee (or any assignee of (or purchaser in foreclosure from) Buyer’s Lender), such party may freely transfer the Portfolio Warranty.

(c) Any period of time in which the Warranty Specifications are not met shall not extend the Warranty Period.

(d) The Portfolio Warranty shall survive any total or partial termination of this Agreement.

Section 5.6 Exclusions. The Portfolio Warranty shall not cover any obligations on the part of Seller to the extent caused by or arising from (a) the Bloom Systems or BOF being affected by vandalism or other third-party’s actions or omissions occurring after Commencement of Operations (other than to the extent that Seller, Seller’s Affiliate, or a Seller subcontractor fails to properly protect the Bloom Systems and was required to do so under the Transaction Documents); (b) any failure relating to natural gas quality or supply in relation to which Buyer is satisfactorily compensated by the applicable PPA Customer under a PPA; (c) Buyer’s (as opposed to Seller, Seller’s Affiliate, the Service Provider or a subcontractor thereof) or a PPA Customer’s (in which case the provisions of Section 4.9 apply) removal of any safety devices, (d) any conditions caused by unforeseeable movement in the environment in which the Bloom Systems are installed (provided that normal soil settlement, shifting, subsidence or cracking will not constitute ‘unforeseeable movement’), (e) accidents, abuse, neglect, improper third party testing (unless caused by Seller, Seller’s Affiliate, the Service Provider or a subcontractor thereof) or Force Majeure Events, or (f) installation, operation, repair or modification of the

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Bloom Systems or BOF by anyone other than Seller or Seller’s authorized agents. SELLER SHALL HAVE NO OBLIGATION UNDER THE PORTFOLIO WARRANTY AND MAKES NO REPRESENTATION AS TO BLOOM SYSTEMS OR BOF WHICH HAVE BEEN OPENED OR MODIFIED BY BUYER OR ANYONE OTHER THAN SELLER, SELLER’S AFFILIATE, THE SERVICE PROVIDER OR SUBCONTRACTOR, OR ANY OF SUCH PERSON’S REPRESENTATIVES, IN EACH CASE TO THE EXTENT OF ANY DAMAGE OR OTHER NEGATIVE CONSEQUENCE OF SUCH OPENING OR MODIFICATION.

Section 5.7 Portfolio Warranty Claims.

(a) Subject to the provisions of Section 13.5(a), if Buyer desires to make a Portfolio Warranty claim during the Warranty Period, Buyer must notify Seller of the defect or other basis for the claim in writing.

(b) In the case of a claim relating to the Efficiency Warranty, upon receipt of such notice and verification by Seller that such Efficiency Warranty is applicable, Seller or its designated subcontractor will promptly, and in all cases within ninety (90) days, repair or replace, at Seller’s sole option and discretion, any Bloom System(s) or any portion of the BOF whose repair or replacement is required in order for the applicable Facility to perform consistent with the Efficiency Warranty. Buyer is hereby notified that refurbished parts may be used in repair or replacement activities, provided that (i) any such refurbished parts will have passed the same inspections and tests performed by Seller on its new parts of the same type before such refurbished parts are used in any repair or replacement, and (ii) Seller shall within thirty (30) days of a written request therefor by Buyer, provide a report for any or all Bloom Systems purchased hereunder that lists all components that have been replaced in any individual Bloom System. If such repair or replacement of one or more Bloom Systems is not feasible (as determined at Seller’s sole option and discretion) and Seller notifies Buyer to such effect, Seller will refund to Buyer the Refund Value of such Bloom Systems (calculated as of the date of such refund), in which case Seller shall be deemed to have taken title to such Bloom System, and such Bloom System shall be deemed to no longer constitute a portion of the Portfolio. Seller shall make such determination as to the feasibility of repair or replacement as promptly as practicable, but in any event within ninety (90) days after Seller’s receipt of notice of the claim unless the specific nature of the problem requires a longer period in which to make such determination (in which case Seller must make a determination within a reasonable time) provided such longer period for a determination does not cause any breach of a PPA. In the event that Seller has not completed the repair or replacement of the Bloom System within ninety (90) days of the end of the calendar month in which Seller received notice of a claim (or within one hundred twenty (120) days if the specific nature of the problem required a period longer than ninety (90) days in which to determine the feasibility of repair or replacement), or repurchased the Bloom System as contemplated in this Section 5.7(b) in the time period in this Section 5.7(b) then Buyer has the right to require Seller (in which case Seller agrees) to procure return of the Bloom System(s) in question to Seller (at Seller’s cost) and Seller will refund to

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Buyer the Refund Value of such Bloom System, in which case Seller shall be deemed to have taken title to such Bloom Systems upon payment of the Refund Value, and such Bloom Systems shall be deemed to no longer constitute a portion of the Portfolio and shall be removed as described in the previous sentence. If it is determined that a Bloom System will be removed pursuant to this Section 5.7, Seller shall at its sole cost and expense remove the Bloom System and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable Site Lease) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections in the manner required by all Legal Requirements and the applicable Site Lease. The rights and obligations of the Parties under this Section 5.7(b) are in addition to and separate from any other rights of Buyer under this Article 5.

(c) In the case of a claim relating to the Annual Capacity Warranty, upon receipt of such notice and verification that such Annual Capacity Warranty is applicable, Seller shall make a payment to Buyer in an amount to be calculated pursuant to Section 5.2; provided that the cumulative aggregate amount of Seller’s liability for all claims under this Section 5.7(c) shall not exceed [***] ([***]) of the aggregate Purchase Price of all Bloom Systems in the Portfolio. For the avoidance of doubt, the cap set forth in this Section 5.7(c) does not apply where the Seller is required to repair or replace the Bloom Systems or pay the Refund Value and other amounts incurred to remove the Bloom Systems and ancillary equipment as set out in Section 5.4(c) or Section 5.7(b).

Section 5.8 Indemnification Regarding Performance Under PPAs. Without in anyway limiting and in addition to Buyer’s remedies pursuant to Section 5.2 to Section 5.7, inclusive, in the event that Buyer incurs any liability to a PPA Customer, whether to reimburse, credit or pay it any amount or otherwise in relation to any performance guarantee, power performance shortfall or any efficiency warranty or cost excess, including pursuant to Sections 3.4 or 12.1(a)(iii) of each PPA (collectively the “PPA Warranties”), Seller shall indemnify and hold Buyer harmless for any such liability, costs and expenses incurred by Buyer pursuant to such PPA Warranties. Without in anyway limiting and in addition to the foregoing, in the event that the failure of any Bloom System(s) to comply with any PPA Warranty causes the termination of a PPA (in whole or in part), then (a) Buyer may return the applicable Bloom System(s) to Seller and Seller will refund to Buyer the Refund Value of such Bloom Systems, in which case Seller shall be deemed to have taken title to such Bloom Systems, and such Bloom System shall be deemed to no longer constitute a portion of the Portfolio, and (b) Seller shall indemnify and hold Buyer harmless for any amount the Buyer is liable to a PPA Customer in connection with such termination. If it is determined that a Bloom System will be removed pursuant to this Section 5.8, Seller shall at its sole cost and expense remove the Bloom System and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable Site Lease) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections in the manner required by all Legal Requirements

[***] Confidential Treatment Requested

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and the applicable Site Lease. For the avoidance of doubt, claims, credits, reimbursements and any other payments made under this Section 5.8 are not subject to the cap set forth in Section 5.7(c) with respect to claims relating to the Annual Capacity Warranty and shall not count against such cap. Seller shall make any payment owed to Buyer in respect of the PPA Warranties under this Section 5.8 prior to or concurrently with Buyer’s corresponding payment to the PPA Customer.

Section 5.9 Disclaimers. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN ARTICLE VIII, THIS ARTICLE V AND THE OTHER TRANSACTION DOCUMENTS, THE BLOOM SYSTEMS ARE TRANSFERRED “AS IS, WHERE IS”, AND SELLER EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO LIABILITIES, OPERATIONS OF THE SYSTEMS, VALUE OR QUALITY OF THE BLOOM SYSTEMS OR THE PROSPECTS (FINANCIAL AND OTHERWISE), RISKS AND OTHER INCIDENTS OF THE BLOOM SYSTEMS. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN ARTICLE VIII, THIS ARTICLE V AND THE OTHER TRANSACTION DOCUMENTS, SELLER SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, USAGE, SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE BLOOM SYSTEMS, OR ANY PART THEREOF. NO PERSON IS AUTHORIZED TO MAKE ANY OTHER WARRANTY OR REPRESENTATION CONCERNING THE PERFORMANCE OF THE BLOOM SYSTEMS.

Section 5.10 Title. Title to all replacement items, parts, materials and equipment supplied under or pursuant to this Agreement to Buyer shall transfer to Buyer upon installation or inclusion in a Facility.

ARTICLE VI.

RECORDS

Section 6.1 Record-Keeping Documentation.

(a) Seller shall ensure that operation, service and maintenance records concerning Seller’s activities hereunder are properly created and maintained at all times. Such records shall include, but not be limited to, the following:

(i) a separate “Maintenance Specification Log” for each Bloom System in a paper or electronic format (with entries made for each inspection, including any discrepancies found during such inspection), a copy of which shall be submitted, in paper or electronic format, to Buyer along with the corresponding Annual Reports;

(ii) a Site service report completed in respect of each inspection, repair, replacement, service or other activity or observation made by Seller in connection with its responsibilities hereunder, detailing the nature of the problems

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with a Bloom System or the related BOF detected and the specifics of the problem resolution and submitted to Buyer within ten (10) Business Days of the date when such problem is resolved or within ten (10) Business Days of a routine inspection or service;

(iii) an annual report submitted to Buyer within forty-five (45) Business Days after the end of each calendar year (“Annual Report”) containing sufficient information, detail and documentation as may be reasonably requested by Buyer relating to the operating performance of the Bloom System for the preceding calendar year; and

(iv) any other records, reports, or other documentation required to be delivered by Buyer to Buyer’s Lender pursuant to any agreement to which both such entities are a party.

(b) All such records required to be created and maintained pursuant to Section 6.1(a) shall be kept available at the Seller’s office and made available for the Buyer’s inspection upon request at all reasonable times. Any documentation prepared by Seller during the Term for the purposes of this Agreement shall be directly prepared for Buyer’s benefit and immediately become Buyer’s property. Any such documentation shall be stored by Seller on behalf of Buyer until its final delivery to Buyer. Seller may retain a copy of all records related to each Facility for future analysis.

Section 6.2 Reports; Other Information. Without in any way limiting Seller’s other reporting, notification, and other similar obligations under this Agreement, during the Warranty Period, Seller shall furnish to Buyer the following reports, notices, and other information regarding the Systems:

(a) In the event that Seller proposes to replace any System with any replacement System of a model other than the model of the Bloom System that Seller proposes to replace (the “Original Model”), Seller shall notify Buyer of such intent prior to effecting such replacement, and Buyer shall have the right to consent to such replacement or to request that Seller effect such replacement with the Original Model; provided, however, that (i) Buyer’s consent to the replacement of a System with a model other than the Original Model shall not be withheld unless Buyer reasonably believes that such replacement would result in a material adverse impact to Buyer or the Systems, including but not limited to a material adverse impact under any insurance policy maintained by any party with respect to such Systems, and (ii) once Buyer has consented to replacement with a given model, Buyer shall be deemed to have consented to subsequent replacements with the same model unless Buyer notifies Seller otherwise;

(b) Promptly upon Seller’s knowledge of the occurrence of any damage to any System or any Site, notice of such damage in reasonable detail; and

(c) Any information Buyer may reasonably request in connection with any claim filed by Buyer under any insurance maintained with respect to the Systems, and any information such insurance providers may reasonably request in connection with such claim.

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ARTICLE VII.

DATA ACCESS

Section 7.1 Access to Data and Meters. Throughout the Term, and thereafter to the extent relevant to calculations necessary for periods prior to the end of the Term and subject to any confidentiality obligation owed to any third party and/or any restrictions on the disclosure of information which may be subject to intellectual property rights restricting disclosure:

(a) Buyer shall grant Seller access to all data relating to the electricity production of each Bloom System, it being understood that it is Seller’s responsibility to determine the performance of the Bloom System, and any other calculations as required under this Agreement, and that it is Buyer’s responsibility to handle all accounting and invoicing activities; and

(b) Buyer shall allow Seller access to all data from all Facility Meters.

(c) Seller shall be entitled to use the foregoing data for its internal purposes and make such data available to third parties for analysis.

ARTICLE VIII.

REPRESENTATIONS AND WARRANTIES OF SELLER

Section 8.1 Representations and Warranties as to Seller. Seller represents and warrants to Buyer as of the Agreement Date and as of each Delivery Date as follows:

(a) Incorporation; Qualification. Seller is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own, lease, and operate its business as currently conducted. Seller is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction that its business, as currently being conducted, shall require it to be so qualified, except where the failure to be so qualified would not have a material adverse effect on the Bloom Systems being sold under this Agreement.

(b) Authority. Seller has full corporate power and authority to execute and deliver the Transaction Documents to which it is a party and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Seller of the Transaction Documents to which it is a party and the consummation by Seller of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action required on the part of Seller and the Transaction

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Documents to which Seller is a party have been duly and validly executed and delivered by Seller. Each of the Transaction Documents to which Seller is a party constitutes the legal, valid and binding agreement of Seller, enforceable against Seller in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).

(c) Consents and Approvals; No Violation. Neither the execution, delivery and performance of the Transaction Documents to which Seller is a party nor the consummation by Seller of the transactions contemplated hereby and thereby will (i) conflict with or result in any breach of any provision of the certificate of incorporation or bylaws of Seller, (ii) with or without the giving of notice or lapse of time or both, conflict with, result in any violation or breach of, constitute a default under, result in any right to accelerate, result in the creation of any Lien on Seller’s assets, or create any right of termination under the conditions or provisions of any note, bond, mortgage, indenture, material agreement or other instrument or obligation to which Seller is a party or by which it, or any material part of its assets may be bound, in each case that would individually or in the aggregate result in a material adverse effect on the Seller or its ability to perform its obligations hereunder or (iii) constitute violations of any law, regulation, order, judgment or decree applicable to Seller, which violations, individually or in the aggregate, would result in a material adverse effect on the Seller or its ability to perform its obligations hereunder.

(d) Legal Proceedings. There are no pending or, to Seller’s knowledge, threatened claims, disputes, governmental investigations, suits, actions (including non-judicial real or personal property foreclosure actions), arbitrations, legal, administrative or other proceedings of any nature, domestic or foreign, criminal or civil, at law or in equity, by or against Seller that challenge the enforceability of the Transaction Documents to which Seller is a party or the ability of Seller to consummate the transactions contemplated hereby or thereby, in each case, that could reasonably be expected to result in a material adverse effect on Seller or its ability to perform its obligations hereunder.

(e) U.S. Person. Seller is not a “foreign person” within the meaning of Section 1445(b)(2) of the Code.

Section 8.2 Representations and Warranties as to Bloom Systems. Seller represents and warrants to Buyer as of the Delivery Date for each Bloom System solely with respect to such Bloom System, as follows: Seller has good title to each Bloom System and each such Bloom System is free and clear of all Liens other than Permitted Liens. Neither Seller nor any of its subcontractors have placed any Liens on the Sites or the Facilities other than Permitted Liens. To the extent that Seller has actual knowledge that any of its subcontractors has placed any Lien on a Bloom System or a Site, then Seller shall cause such Liens to be removed or bonded over in a

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manner reasonably satisfactory to Buyer. Buyer and Buyer’s Lender shall be indemnified against such lien claim, unless the applicable Site Lease requires additional or more stringent action, in which case the applicable Site Lease requirements shall control.

ARTICLE IX.

REPRESENTATIONS AND WARRANTIES OF BUYER

Buyer represents and warrants to Seller as of the Agreement Date and as of each Delivery Date, as follows with respect to Buyer:

Section 9.1 Organization. Buyer is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware and has all requisite limited liability company power and authority to own, lease, and operate its business as currently conducted.

Section 9.2 Authority. Buyer has full limited liability company power and authority to execute and deliver the Transaction Documents to which Buyer is a party and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Buyer of the Transaction Documents to which Buyer is a party and the consummation by Buyer of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary limited liability company action required on the part of Buyer and the Transaction Documents to which Buyer is a party have been duly and validly executed and delivered by Buyer. Each of the Transaction Documents to which Buyer is a party constitutes the legal, valid and binding agreement of Buyer, enforceable against Buyer in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).

Section 9.3 Consents and Approvals; No Violation. Neither the execution, delivery and performance by Buyer of the Transaction Documents to which Buyer is a party nor the consummation by Buyer of the transactions contemplated thereby will (a) conflict with or result in any breach of any provision of the Certificate of Formation or the limited liability company agreement of Buyer, or (b) result in a default (or give rise to any right of termination, cancellation or acceleration) under any of the terms, conditions or provisions of any note, bond, mortgage, indenture, material agreement or other instrument or obligation to which Buyer is a party or by which any of its assets are bound, except for such defaults (or rights of termination, cancellation or acceleration) as to which requisite waivers or consents have been obtained or (iii) constitute violations of any law, regulation, order, judgment or decree applicable to Buyer, which violations, individually or in the aggregate, would result in a material adverse effect on Buyer or its ability to perform its obligations hereunder.

Section 9.4 Legal Proceedings. There are no pending or, to Buyer’s knowledge, threatened claims, disputes, governmental investigations, suits, actions (including non-judicial real or personal property foreclosure actions), arbitrations, legal, administrative or other proceedings of any nature, domestic or foreign, criminal or civil, at law or in equity, by or

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against Buyer that challenges the enforceability the Transaction Documents to which Buyer is a party or the ability of Buyer to consummate the transactions contemplated thereby, in each case, that could reasonably be expected to result in a material adverse effect on Buyer or its ability to perform its obligations hereunder.

ARTICLE X.

CONFIDENTIALITY

Section 10.1 Confidential Information. Subject to the other terms of this ARTICLE X the Parties shall, and shall cause their Affiliates and their respective stockholders, members, subsidiaries and Representatives to, hold confidential all information they may have or obtain concerning the Seller and the Buyer and their respective assets, business, operations or prospects or this Agreement (the “Confidential Information”), including all materials and information furnished by Seller in performance of this Agreement, regardless of form conveyed or whether financial or technical in nature, including any trade secrets and proprietary know how and Software whether such information bears a marking indicating that they are proprietary or confidential or not; provided, however, that Confidential Information shall not include information that (x) is or becomes generally available to the public other than as a result of an unauthorized disclosure by a Party or any of its Representatives, (y) is or becomes available to a Party or any of its Representatives on a nonconfidential basis from a source other than the other Party or its Representatives, provided that such source was not and is not bound by any contractual, legal or fiduciary obligation of confidentiality with respect to such information or (z) was or is independently developed or conceived by a Party or its Representatives without reference to the Confidential Information of the other Party.

Section 10.2 Restricted Access.

(a) Buyer agrees that the Bloom Systems themselves contain Seller’s valuable trade secrets. Buyer agrees (i) to restrict the use of such information to matters relating to the Bloom Systems, and (ii) to restrict access to such information as provided in Section 10.3(b).

(b) Seller’s Confidential Information will not be reproduced without Seller’s prior written consent, and following termination of this Agreement all copies of such written information will be returned to Seller upon written request (not to be made while materials are still of use to the operation of a Bloom System and no Buyer Default has occurred and is continuing), unless otherwise agreed by the Parties. Buyer’s Confidential Information will not be reproduced by Seller without Buyer’s prior written consent, and following termination of this Agreement all copies of such written information will be returned to Buyer upon written request or shall be certified by Seller as having been destroyed.

(c) Subject to ARTICLE XI and Section 10.2(a) and (b) hereof, the Bloom Systems are offered for sale and are sold by Seller subject to the condition that such sale does not convey any license, expressly or by implication, to manufacture, reverse

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engineer, duplicate or otherwise copy or reproduce any part of the Bloom Systems, documentation or Software without Seller’s express advance written permission. Subject to ARTICLE XI hereof, Buyer agrees not to remove the covering, not to access the interior or to reverse engineer, or cause or knowingly allow any third party to open, access the interior or reverse engineer any Bloom System or Software provided by Seller. Subject to ARTICLE XI hereof, and anything contemplated pursuant to this Agreement, only Seller or its authorized representatives may open or access the interior of a Bloom System. Notwithstanding the foregoing, and without limitation of the rights set forth in ARTICLE XI hereof, if any Bloom System is no longer covered by this Agreement or another agreement between Buyer and Seller (or any Affiliate of Seller) regarding the operation and maintenance of such Bloom System, Buyer shall be entitled to maintain, or cause a third party to maintain, such Bloom System, including replacing parts or components as needed or desired; provided that Buyer shall use commercially reasonable efforts to engage a third party to provide such maintenance that is not a competitor of Seller or its Affiliates and is not in litigation or other material dispute with Seller.

Section 10.3 Permitted Disclosures.

(a) Legally Compelled Disclosure. Confidential Information may be disclosed (i) as required or requested to be disclosed by a Party or any of its Affiliates or their respective stockholders, members, subsidiaries or Representatives as a result of any applicable Legal Requirement or rule or regulation of any stock exchange, the Financial Industry Regulatory Authority, Inc. or other regulatory authority or self-regulatory authority having jurisdiction over such Party, (ii) as required or requested by the IRS, the Department of Justice or the Office of the Inspector General in connection with a Bloom System, cash grant, or tax credits relating thereto, including in connection with a request for any private letter ruling, any determination letter or any audit or (iii) as required under any Interconnection Agreement. If a Party becomes compelled by legal or administrative process to disclose any Confidential Information, such Party shall, to the extent permitted by Legal Requirements, provide the other Parties with prompt notice so that the other Parties may seek a protective order or other appropriate remedy or waive compliance with the non-disclosure provisions of this Section 10.3 with respect to the information required to be disclosed. If such protective order or other remedy is not obtained, or such other Parties waive compliance with the non-disclosure provisions of this Section 10.3 with respect to the information required to be disclosed, the first Party shall furnish only that portion of such information that it is advised, by opinion of counsel, is legally required to be furnished and shall exercise reasonable efforts, at the expense of the Party whose Confidential Information is being disclosed, to obtain reliable assurance that confidential treatment will be accorded such information, including, in the case of disclosures to the IRS described in clause (ii) above, to obtain reliable assurance that, to the maximum extent permitted by applicable Legal Requirements, such information will not be made available for public inspection pursuant to Section 6110 of the Code.

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(b) Disclosure to Representatives. Notwithstanding the foregoing, and subject always to the restrictions in Section 10.2, a Party may disclose Confidential Information received by it to its actual or potential financing parties (including, for the avoidance of doubt, disclosure by Buyer to Buyer’s Lender) and its and their employees, consultants, legal counsel or agents who have a need to know such information; provided that such Party informs each such Person who has access to the Confidential Information of the confidential nature of such Confidential Information, the terms of this Agreement, and that such terms apply to them. The Parties shall use commercially reasonable efforts to ensure that each such Person complies with the terms of this Agreement and that any Confidential Information received by such Person is kept confidential.

(c) Other Permitted Disclosures. Nothing herein shall be construed as prohibiting a Party hereunder from using such Confidential Information in connection with (i) any claim against another Party hereunder, (ii) any exercise by a Party hereunder of any of its rights hereunder, (iii) a financing or proposed financing by Seller or Buyer or their respective Affiliates; (iv) a disposition or proposed disposition by Seller or any Affiliate of Seller of all or a portion of such Person’s direct or indirect equity interest in the Buyer, (v) a disposition or proposed disposition by any direct or indirect Affiliate of Buyer of all or a portion of such Person’s equity interests in the Buyer, (vi) a disposition or proposed disposition by Buyer of any Bloom System; or (vii) any disclosure required to be made to a PPA Customer (or otherwise) under a PPA, provided that, in the case of items (iii), (iv), (v) and (vi), the potential financing party or purchaser has entered into a confidentiality agreement with respect to Confidential Information on customary terms used in confidentiality agreements in connection with corporate financings or acquisitions before any such information may be disclosed and such confidentiality agreement has been provided to the non-disclosing Party. No disclosures of Confidential Information shall be made by Buyer in exercise of its rights under this Section 10.3(c) until Seller has first had the opportunity to exercise its right to take or purchase the Bloom System in question, if applicable.

Section 10.4 Publicity. Notwithstanding the provisions of this ARTICLE X, the Parties shall consult with each other and agree in advance in connection with making public announcements regarding the transactions contemplated by the Transaction Documents.

Section 10.5 Shortfall Event License. If and to the extent Buyer is entitled to exercise its rights under the Shortfall Event License, nothing contained herein shall limit or otherwise adversely affect the Buyer’s right to disclose the Intellectual Property and other materials licensed thereunder to any sublicensee or subcontractor in accordance with the terms thereof.

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ARTICLE XI.

LICENSE AND OWNERSHIP; SOFTWARE

Section 11.1 IP License To Use. Subject to Section 11.2 and the terms of the Shortfall Event License, Seller grants to Buyer a limited (as described herein), non-exclusive, royalty-free, irrevocable (except as described in Article XII hereof), non-transferable (except as described herein) license to use the Intellectual Property contained in the Documentation and the Bloom Systems purchased hereunder (collectively, “Seller’s Intellectual Property”) in conjunction with the purchase and use of each Bloom System in accordance with the terms hereof and each PPA and Interconnection Agreement (the “IP License”); provided, that (a) such license may be transferred to Buyer’s Lender or its designee upon transfer of the Portfolio and underlying agreements to such party due to a foreclosure proceeding, deed-in-lieu-of-foreclosure or other similar remedy on account of Buyer’s Lender’s security interest herein and, if transferred to Buyer’s Lender or its designee, such license may be further transferred by such party to any other Person who acquires the Portfolio from Buyer’s Lender or its designee, (b) such license may be transferred by Buyer to any third party Buyer is entitled to engage to maintain any Bloom System pursuant to Section 10.2(c), and (c) such license may be transferred by Buyer to any successor or assign of Buyer permitted pursuant to Section 14.4. Seller shall retain all right, title and ownership of any and all Intellectual Property licensed by Seller hereunder. No right, title or interest in any such Intellectual Property is granted, transferred or otherwise conveyed to Buyer under this Agreement except as otherwise expressly set forth herein. Buyer shall not, except as otherwise provided herein, modify, network, rent, lease, loan, sell, distribute or create derivative works based upon the Seller’s Intellectual Property in whole or part, or cause or knowingly allow any third party to do so.

Section 11.2 Grant of Third Party Software License.

(a) Seller grants to Buyer a limited (as described herein), non-exclusive, royalty-free, irrevocable (except as described in ARTICLE XII hereof), non-transferable (except as described herein) license to use the Software (the “Software License”); provided, that (i) such license may be transferred to Buyer’s Lender or its designee upon transfer of the Portfolio and underlying agreements to such party due to a foreclosure proceeding, deed-in-lieu-of-foreclosure or other similar remedy on account of Buyer’s Lender’s security interest herein and, if transferred to Buyer’s Lender or its designee, such license may be further transferred by such party to any other Person who acquires the Portfolio from Buyer’s Lender or its designee, (ii) such license may be transferred by Buyer to any third party Buyer is entitled to engage to maintain any Bloom System pursuant to Section 10.2(c), and (iii) such license may be transferred by Buyer to any successor or assign of Buyer permitted pursuant to Section 14.4. No right, title or interest in any Software provided to Buyer (including all copyrights, patents, trade secrets or other intellectual or intangible property rights of any kind contained therein) is granted, transferred, or otherwise conveyed to Buyer under this Agreement except as expressly set forth herein. Buyer agrees not to reverse engineer or decompile the Software or otherwise use the Software for any purpose other than in connection with the use of the Bloom Systems. Further, Buyer shall not modify, network, rent, lease, loan, sell, distribute or create derivative works based upon the Software in whole or part, or cause or knowingly allow any third party to do so.

(b) All data collected on the Bloom Systems by Seller using the Software and data collected on the Bloom Systems using Seller’s internal proprietary software are the sole property of Seller to be used by Seller in accordance with applicable law, and Seller hereby grants to Buyer a limited, non-exclusive, irrevocable (except as set forth in ARTICLE XII hereof), royalty-free license to use the data collected on the Bloom Systems using such Software or the Seller’s internal proprietary software only for purposes of using such Bloom System and administering the Transaction Documents or as required pursuant to the terms of any PPA or Interconnection Agreement, provided the provisions of ARTICLE X on confidentiality are maintained.

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Section 11.3 No Software Warranty. Buyer acknowledges and agrees that the use of the Software is at Buyer’s sole risk. The Software and related documentation are provided “AS IS” and without any warranty of any kind and Seller EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

Section 11.4 Covenant. If Seller grants, bargains, sells, conveys, mortgages, assigns, pledges, warrants or transfers any Intellectual Property or Software that is required (a) for Seller or its Affiliates to perform their respective obligations under the Transaction Documents or (b) for the continued maintenance and operation of the Bloom Systems without a material decrease in performance of the Bloom Systems, Seller shall cause such act or transaction to be subject to the grant of the IP License and Software License under this Agreement and the terms of the Shortfall Event License.

Section 11.5 Representations and Warranties. Seller represents and warrants to Buyer as of the Agreement Date and as of each Delivery Date as follows with respect all Intellectual Property that is required (i) for Seller or its Affiliates to perform their respective obligations under the Transaction Documents, and (ii) for the continued operation of the Bloom Systems in accordance with the Transaction Documents, the PPAs and the Interconnection Agreements without a material decrease in performance of the Bloom Systems:

(a) Seller owns or has the right to use and to authorize Buyer to use all such Intellectual Property; and

(b) Seller and its Affiliates are not infringing on any Intellectual Property of any third party with respect to the actions described in Section 11.5(a)(i) and (ii) and the Bloom Systems do not infringe on any Intellectual Property of any third party.

ARTICLE XII.

EVENTS OF DEFAULT AND TERMINATION

Section 12.1 Seller Default. The occurrence at any time of any of the following events shall constitute a “Seller Default”:

(a) Failure to Pay. The failure of Seller to pay any amounts owing to Buyer on or before the day following the date on which such amounts are due and payable under the terms of this Agreement and Seller’s failure to cure each such failure within five (5) Business Days after Seller receives written notice from Buyer of each such failure;

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(b) Failure to Perform Other Obligations. Unless due to a Force Majeure Event, the failure of Seller to perform or cause to be performed any other obligation required to be performed by Seller under this Agreement, or the failure of any representation and warranty set forth herein to be true and correct as and when made; provided, however, that if such failure by its nature can be cured, then Seller shall have a period of thirty (30) days after receipt of written notice of such failure to cure the same and a Seller Default shall not be deemed to exist during such period; provided, further, that if Seller commences to cure such failure during such period and is diligently and in good faith attempting to effect such cure, said period shall be extended for sixty (60) additional days;

(c) Failure to Remedy Injunction. The failure of Seller to remedy any injunction that prohibits Buyer’s use of any Bloom System as contemplated by Section 13.1 within sixty (60) days of Seller’s receipt of written notice of Buyer being enjoined therefrom; or

(d) Bankruptcy. If Seller (i) admits in writing its inability to pay its debts generally as they become due; (ii) files a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other applicable law or statute of the United States of America or any State, district or territory thereof; (iii) makes an assignment for the benefit of creditors; (iv) consents to the appointment of a receiver of the whole or any substantial part of its assets; (v) has a petition in bankruptcy filed against it, and such petition is not dismissed within sixty (60) days after the filing thereof; or if (vi) a court of competent jurisdiction enters an order, judgment, or decree appointing a receiver of the whole or any substantial part of Seller’s assets, and such order, judgment or decree is not vacated or set aside or stayed within sixty (60) days from the date of entry thereof; or (vii) under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the whole or any substantial part of Seller’s assets and such custody or control is not terminated or stayed within sixty(60) days from the date of assumption of such custody or control.

Section 12.2 Buyer Default. The occurrence at any time of the following events with respect to Buyer shall constitute a “Buyer Default”:

(a) Failure to Pay. The failure of Buyer to pay any amounts owing to Seller on or before the day following the date on which such amounts are due and payable under the terms of this Agreement and Buyer’s failure to cure each such failure within five (5) Business Days after Buyer receives written notice of each such failure; or

(b) Failure to Perform Other Obligations. Unless due to a Force Majeure Event, the failure of Buyer to perform or cause to be performed any obligation required to be performed by Buyer under this Agreement or the failure of any representation and warranty set forth herein to be true and correct as and when made; provided, however, that if such failure by its nature can be cured, then Buyer shall have a period of thirty (30) days after receipt of written notice of such failure to cure the same and a Buyer Default shall not be deemed to exist during such period; provided, further, that if Buyer commences to cure such failure during such period and is diligently and in good faith attempting to effect such cure, said period shall be extended for sixty (60) additional days.

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Section 12.3 Buyer’s Remedies Upon Occurrence of a Seller Default. If a Seller Default has occurred under Section 12.1(d), Buyer may terminate this Agreement by written notice, and assert all rights and remedies available to Buyer under Legal Requirements subject to the limitations of liability set forth in Section 13.5. If a Seller Default has occurred under Section 12.1(a), Section 12.1(b) or Section 12.1(c), Buyer may terminate this Agreement only with respect to those Bloom Systems for which such Seller Default has occurred by written notice, and (i) assert all rights and remedies available to Buyer under Legal Requirements subject to the limitations of liability set forth in Section 13.5, or (ii) require the Seller and, if so required, Seller shall repurchase the relevant Bloom Systems in respect of which this Agreement is being terminated from the Buyer on an AS IS basis by paying the Refund Value of any such Bloom System, calculated as of the date of such refund, in which case Seller shall take title to such Bloom System upon paying the Refund Value, and such Bloom System shall no longer constitute a portion of the Portfolio. If a Bloom System will be removed pursuant to this Section 12.3, Seller shall at its sole cost and expense remove the Bloom System and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable Site Lease) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections in the manner required by all Legal Requirements and the applicable Site Lease.

Section 12.4 Seller’s Remedies Upon Occurrence of a Buyer Default. If a Buyer Default has occurred Seller may terminate this Agreement only with respect to those Bloom Systems for which a Buyer Default has occurred and remains uncured; provided that if such Buyer Default is a Buyer Default under Section 12.2(a) and has occurred and remains uncured with respect to ten (10) or more Bloom Systems, then Seller may terminate this Agreement with respect to all Bloom Systems not yet paid in full by Buyer by written notice, and assert all rights and remedies available to Seller under Legal Requirements with respect to those Bloom Systems for which a Buyer Default has occurred, subject to the limitations of liability set forth in Section 13.5, including without limitation retaining any prior payments with respect to such Bloom Systems and selling such Bloom Systems to another buyer.

Section 12.5 Preservation of Rights. Termination of this Agreement shall not affect any rights or obligations as between the Parties which may have accrued prior to such termination or which expressly or by implication are intended to survive termination whether resulting from the event giving rise to termination or otherwise, including, without limitation, Article XI.

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Section 12.6 Force Majeure. If either Party is rendered wholly or partially unable to perform any of its obligations under this Agreement by reason of a Force Majeure Event, that Party (the “Claiming Party”) will be excused from whatever performance is affected by the Force Majeure Event to the extent so affected; provided, however, that (a) the Claiming Party, within a reasonable time after the occurrence of such Force Majeure Event gives the other Party notice describing the particulars of the occurrence; (b) the suspension of performance shall be of no greater scope and of no longer duration than is reasonably required by the Force Majeure Event; (c) no liability of either Party for an event that arose before the occurrence of the Force Majeure Event shall be excused as a result of the Force Majeure Event; (d) the Claiming Party shall exercise commercially reasonable efforts to correct or cure the event or condition excusing performance and resume performance of all its obligations; and (e) when the Claiming Party is able to resume performance of its obligations under this Agreement, the Claiming Party shall promptly give the other Party notice to that effect and shall promptly resume performance.

Section 12.7 Termination of PPAs.

(a) In the event that a PPA is terminated with respect to a Bloom System, this Agreement is terminated with respect to that Bloom System and any amounts payable to the Seller in respect of such Bloom Systems after the date of termination shall cease to be payable.

(b) In the event that the termination of this Agreement under Section 12.7(a) results from the default of Seller under this Agreement or the Administrative Services Agreement, Seller shall repurchase the relevant Bloom Systems in respect of which this Agreement is being terminated from the Buyer on an AS IS basis by paying the Refund Value of any such Bloom System, calculated as of the date of such refund, in which case Seller shall take title to such Bloom System upon paying the Refund Value, and such Bloom System shall no longer constitute a portion of the Portfolio. If a Bloom System will be removed pursuant to this Section 12.7, Seller shall at its sole cost and expense remove (or cause the removal of) the Bloom System and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable Site Lease) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections in the manner required by all Legal Requirements and the applicable Site Lease.

ARTICLE XIII.

INDEMNIFICATION

Section 13.1 IP Indemnity.

(a) Except as expressly limited below, Seller agrees to indemnify, defend and hold Buyer, its members, and their Affiliates and their respective managers, officers,

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directors, employees and agents harmless from and against any and all Third Party Claims and Indemnifiable Losses (including in connection with obtaining any Intellectual Property necessary for continuation of completion, operation and maintenance of Bloom Systems purchased by Buyer from Seller), arising from or in connection with any alleged infringement, conflict, violation or misuse of any patents, copyrights, trade secrets or other third party Intellectual Property rights by Bloom Systems purchased by Buyer from Seller (or the use, operation or maintenance thereof) or the exercise of the IP License or the Software License granted pursuant to Section 11.1 and Section 11.2 hereunder. Buyer shall give Seller prompt notice of any such claims. Seller shall be entitled to participate in, and, unless in the opinion of counsel for Seller a conflict of interest between the Parties may exist with respect to such claim, assume control of the defense of such claim with counsel reasonably acceptable to the Buyer. Buyer authorizes Seller to settle or defend such claims in its sole discretion on Buyer’s behalf, without imposing any monetary or other obligation or liability on the Buyer and subject to Buyer’s participation rights set forth in this Section 13.1. Buyer shall assist Seller upon reasonable request by Seller and, at Seller’s reasonable expense, in defending any such claim. If Seller does not assume the defense of such claim, or if a conflict precludes Seller from assuming the defense, then Seller shall reimburse Buyer on a monthly basis for Buyer’s reasonable defense expenses of such claim through separate counsel of Buyer’s choice reasonably acceptable to Seller. Even if Seller assumes the defense of such claim, Buyer may, at its sole option, participate in the defense, at Buyer’s expense, without relieving Seller of any of its obligations hereunder. Should Buyer be enjoined from selling or using any Bloom System as a result of such claim, Seller will, at its sole option and discretion, either (i) procure or otherwise obtain for Buyer the right to use or sell the Bloom System; (ii) modify the Bloom System so that it becomes non-infringing but still substantially meets the original functional specifications of the Bloom System (in which event, for the avoidance of doubt, all warranties hereunder shall continue to apply unmodified); (iii) upon return of the Bloom System to Seller, as directed by Seller, provide to Buyer a non-infringing Bloom System meeting the functional specifications of the Bloom System, or (iv) when and if none of the first three options is reasonably available to Seller, authorize the return of the Bloom System to Seller and, upon receipt thereof, return to Buyer all monies paid by Buyer to Seller for the cost of the Bloom Systems and BOF, net of any monies paid by Seller to Buyer for any performance guaranties or other warranty claims; provided that Seller shall not elect the option in the preceding clause (i) without the Buyer’s written consent if such election is reasonably expected to materially decrease Buyer’s revenues or materially increase Buyer’s operating expenses.

(b) THIS INDEMNITY SHALL NOT COVER ANY CLAIM:

(i) for Intellectual Property infringement, conflict, violation or misuse arising from or in connection with any combination made by Buyer of any Bloom System with any other product or products or modifications made by or on behalf of Buyer to any part of the Bloom System, unless such combination or

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modification is (A) in accordance with Seller’s specifications for the Bloom System, or (B) made by or on behalf of or at the written request of Seller where Seller has requested the specific combination or modification giving rise to the claim by Seller; or

(ii) for infringement of any Intellectual Property rights arising in whole or in part from any aspect of the Bloom System which was designed by or requested by the Buyer on a custom basis.

Section 13.2 Indemnification of Seller by Buyer. Buyer shall indemnify, defend and hold harmless Seller, its officers, directors, employees, shareholders, Affiliates and agents (each, a “Seller Indemnitee”) from and against any and all Indemnifiable Losses asserted against or suffered by any Seller Indemnitee arising out of a claim by a third party (other than a claim for Seller Indemnitee’s breach of contract) and in any way relating to, resulting from or arising out of or in connection with any Third Party Claims against a Seller Indemnitee to the extent arising out of or in connection with (a) the negligent or intentional acts or omissions of Buyer or its subcontractors, agents or employees or others under Buyer’s control (excluding any Seller Affiliate) or breach by Buyer of its obligations under the Agreement, or (b) operation of Bloom Systems by any party other than Seller or an Affiliate or subcontractor of Seller after such Bloom Systems have been purchased by Buyer pursuant to this Agreement (but subject to Seller’s warranties, covenants and indemnities under this Agreement and any other Transaction Document to which Seller is a party); provided that Buyer shall have no obligation to indemnify Seller to the extent caused by or arising out of any negligence, fraud or willful misconduct of any Seller Indemnitee or the breach by Seller or any Seller Indemnitee of its covenants and warranties under this Agreement or any other Transaction Document.

Section 13.3 Indemnification of Buyer by Seller. Seller shall indemnify, defend and hold harmless Buyer, its members, managers, officers, directors, employees, Affiliates and agents (each, a “Buyer Indemnitee”) from and against any and all Indemnifiable Losses asserted against or suffered by any Buyer Indemnitee arising out of a claim by a third party (other than a claim for Buyer Indemnitee’s breach of contract) and in any way relating to, resulting from or arising out of or in connection with any Third Party Claims against a Buyer Indemnitee to the extent arising out of or in connection with the negligent or intentional acts or omissions of Seller or its subcontractors, agents or employees or others under Seller’s control (other than matters addressed separately in Section 13.1, which shall be governed by the terms thereof) or a breach by Seller of its obligations under the Agreement; provided that, Seller shall have no obligation to indemnify Buyer to the extent caused by or arising out of any negligence, fraud or willful misconduct of a Buyer Indemnitee, the breach by Buyer or any Buyer Indemnitee of its covenants and warranties under this Agreement or the inability to utilize any tax benefits.

(b) Except as otherwise set forth in this Agreement, in the event that Buyer incurs any liability, cost, loss or expense to a PPA Customer (including relating to a breach of a PPA) in relation to the repurchase by or return to Seller of any Bloom System under this Agreement, Seller shall indemnify and hold Buyer harmless for any such liability, cost, loss or expense incurred by Buyer.

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Section 13.4 Indemnity Claims Procedure. Except as otherwise provided in Section 13.1, if any indemnifiable claim is brought against a Party (the “Indemnified Party”), then the other Party (the “Indemnifying Party”) shall be entitled to participate in, and, unless in the reasonable opinion of counsel for the Indemnifying Party a conflict of interest between the Parties may exist with respect to such claim, assume the defense of such claim, with counsel reasonably acceptable to the Indemnifying Party. If the Indemnifying Party does not assume the defense of the Indemnified Party, or if a conflict precludes the Indemnifying Party from assuming the defense, then the Indemnifying Party shall reimburse the Indemnified Party on a monthly basis for the Indemnified Party’s reasonable defense expenses through separate counsel of the Indemnified Party’s choice. Even if the Indemnifying Party assumes the defense of the Indemnified Party with acceptable counsel, the Indemnifying Party, at its sole option, may participate in the defense, at its own expense, with counsel of its own choice without relieving the Indemnifying Party of any of its obligations hereunder.

Section 13.5 Limitation of Liability.

(a) Notwithstanding anything to the contrary in this Agreement, in no event shall a Party be liable to the other Party for an amount in excess of the Maximum Liability unless and to the extent such liability is the result of (i) (A) fraud, willful default, willful misconduct, or gross negligence of a Party or that Party’s employees, agents, subcontractors (except that for the purposes of this provision, the Seller and its employees, agents and subcontractors will not be deemed to be employees, agents or subcontractors of the Buyer), (B) a Third Party Claim, (C) a claim of Seller against Buyer for the Buyer’s failure to pay the Service Fees or Purchase Price for any Bloom System (which amounts shall not be included in calculating Buyer’s Maximum Liability), (D) a claim with respect to injury to or death of any person, (E) the Seller’s abandonment to the extent constituting a repudiation of this Agreement in respect of all or any part of the Bloom Systems or BOF, or (F) events or circumstances in respect of which insurance proceeds are available or that would have been available but for a failure by the Seller to maintain, or comply with the terms of, insurance that it is required to obtain and maintain under this Agreement, and any amounts so received will not be included when calculating the Seller’s Maximum Liability; or (ii) a claim against Seller under Section 13.1 for which Seller shall not have liability in excess of the IP Infringement Liability Cap. Subject always to the Maximum Liability limitations set forth in the preceding sentence, except for damages or amounts specifically provided for in this Agreement or in connection with the indemnification for damages awarded to a third party under a Third Party Claim, damages hereunder are limited to direct damages, and in no event shall a Party be liable to the other Party, and the Parties hereby waive claims, for (x) indirect, punitive, special or consequential damages or loss of profits; provided, however, that the loss of profits language set forth in this Section 13.5(a) shall not be interpreted to exclude from Indemnifiable Losses any claim, demand, suit, loss, liability, damage, obligation,

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payment, cost or expense (including the cost and expense of any action, suit, proceeding, assessment, judgment, settlement or compromise relating thereto and reasonable attorneys’ fees and reasonable disbursements in connection therewith) that would otherwise be included in the definition of Indemnifiable Losses because they result from a reduction in the profits of Buyer or interest, costs or expenses payable by Buyer to the Buyer’s Lender, and (y) losses or liabilities incurred by the officers, directors, members, managers, partners, shareholders or Affiliates of such Party (unless on behalf of Buyer).

(b) Each Party hereby waives any claim under this ARTICLE XIII irrespective of the legal theory under which it is brought to the extent such claim is covered by the insurance of the claiming Party.

(c) Seller agrees to notify Buyer of the change in the amount of the IP Infringement Liability Cap promptly after it agrees in writing to any liability cap that limits the Seller’s liability for any infringement of any third party intellectual property with any other purchaser of a Bloom system which is greater than the amount of part (i) of the definition of ‘IP Infringement Liability Cap’.

Section 13.6 Survival. The Parties’ respective rights and obligations under this ARTICLE XIII shall survive any total or partial termination of this Agreement.

ARTICLE XIV.

MISCELLANEOUS PROVISIONS

Section 14.1 Amendment and Modification. This Agreement may be amended, modified or supplemented only by written agreement of Buyer and Seller.

Section 14.2 Waiver of Compliance; Consents. Except as otherwise provided in this Agreement, any failure of any of the Parties to comply with any obligation, covenant, agreement or condition herein may be waived by the Party entitled to the benefits thereof only by a written instrument signed by the Party granting such waiver, but any such waiver of such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent failure to comply therewith.

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Section 14.3 Notices. All notices and other communications hereunder shall be in writing and shall be deemed given when received if delivered personally or by facsimile transmission with completed transmission acknowledgment or by electronic mail, or when delivered if mailed by overnight delivery via a nationally recognized courier or registered or certified first class mail (return receipt requested), postage prepaid, to the recipient Party at its below address (or at such other address or facsimile number for a Party as shall be specified by like notice; provided, however, that notices of a change of address shall be effective only upon receipt thereof):

To Seller:	Bloom Energy Corporation
	1299 Orleans Drive
	Sunnyvale, CA 94089-1137
	Attention:	[***]
	Telephone:	[***]
	Fax: [***]
	Email: [***]
To Buyer:	2013B ESA Project Company, LLC
	c/o Bloom Energy Corporation
	1299 Orleans Drive
	Sunnyvale, CA 94089-1137
	Attention:	[***]
	Telephone:	[***]
	Fax: [***]
	Email: [***]

Section 14.4 Assignment; Subcontractors. This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns (including by operation of law), but neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any Party, whether by operation of law or otherwise, without the prior written consent of the other Party, provided that Buyer may collaterally assign its rights under this Agreement to any party providing debt or equity financing to it without the consent of Seller. Notwithstanding the foregoing sentence, (a) Seller shall be entitled to assign its right, title and interest in and to this Agreement to an Affiliate under common ownership with Seller with the prior consent of Buyer, and (b) Seller shall be entitled to subcontract any of its obligations under this Agreement without consent, provided that such assignment or subcontracting shall not excuse Seller from the obligation to competently perform any subcontracted obligations or any of its other obligations under the Agreement.

Section 14.5 Dispute Resolution; Governing Law. In the event a dispute, controversy or claim arises hereunder, including any claim whether in contract, tort (including negligence), strict product liability or otherwise, the aggrieved Party will promptly provide written notification of the dispute to the other Party within ten (10) days after such dispute arises. Thereafter, a meeting shall be held promptly between the Parties, attended by representatives of the Parties with decision-making authority regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute. If the Parties are not successful in resolving a dispute within twenty-one (21) days of such meeting, then, subject to the limitations on remedies set forth in Section 12.3 and Section 12.4 and ARTICLE XIII, either Party may pursue whatever rights it has available under this Agreement, at law or in equity in accordance with Section 14.6 herein.

[***] Confidential Treatment Requested

53

(b) In the event of any dispute arising out of or relating to this Agreement, each Party hereby consents to service of process made to the addressees set forth in Section 14.3 herein either by overnight delivery by a nationally recognized courier or by certified first class mail, return receipt requested, and hereby acknowledges that service by such means shall constitute valid and lawful service of process against the Party being served.

(c) Each Party hereby agrees that, in the event of any dispute arising out of or relating to this Agreement, it will not oppose the joinder of Operator to such action or proceeding.

Section 14.6 Governing Law, Jurisdiction, Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW OR OTHER PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING TO ANY SUCH DISPUTE AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO.

Section 14.7 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signatures delivered by facsimile (or portable document format) will be considered original signatures, and each Party shall thereafter promptly deliver original signatures to the other Party.

Section 14.8 Interpretation. The articles, section and schedule headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the Parties and shall not in any way affect the meaning or interpretation of this Agreement.

Section 14.9 Entire Agreement. The Transaction Documents and the exhibits, schedules, documents, certificates and instruments referred to therein, embody the entire agreement and understanding of the Parties in respect of the transactions contemplated by this Agreement.

(a) Each Party acknowledges that, in agreeing to enter into this Agreement, it has not relied on any representation, warranty, collateral contract or other assurance (except those repeated in this Agreement and any other agreement entered into on the date of this Agreement between the Parties) made by or on behalf of any other Party at any time before the signature of this Agreement. Each Party waives all rights and remedies which, but for this clause (a), might otherwise be available to it in respect of any such representation, warranty, collateral contract or other assurance.

54

Section 14.10 Construction of Agreement. The terms and provisions of this Agreement represent the results of negotiations between Buyer and Seller, each of which has been represented by counsel of its own choosing, and neither of which has acted under duress or compulsion, whether legal, economic or otherwise. Accordingly, the terms and provisions of this Agreement shall be interpreted and construed in accordance with their usual and customary meanings, and Buyer and Seller hereby waive the application in connection with the interpretation and construction of this Agreement of any rule of law to the effect that ambiguous or conflicting terms or provisions contained in this Agreement shall be interpreted or construed against the Party whose attorney prepared the executed draft or any earlier draft of this Agreement.

Section 14.11 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party.

Section 14.12 Further Assurances. Each Party agrees to execute and deliver such additional documents and instruments and to perform such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions, and conditions of this Agreement and the transactions contemplated by this Agreement.

Section 14.13 Independent Contractors. The Parties acknowledge that, save as expressly set out in this Agreement to the contrary, each Party is entering into this Agreement as an independent contractor and nothing in this Agreement shall be interpreted or applied so as to make the relationship of any of the Parties that of partners, joint ventures or anything other than independent contractors.

Section 14.14 Limitation on Export. Buyer agrees that it will not export, re-export, resell, ship or divert directly or indirectly any Bloom System in any form or technical data or Software furnished hereunder to any country prohibited by the United States Government or any other Governmental Authority, or for which an export license or other Governmental Approval is required, without first obtaining such license or approval.

Section 14.15 Time of Essence. Time is of the essence with respect to all matters contained in this Agreement.

Section 14.16 No Rights in Third Parties. Except as otherwise specified herein, (a) nothing in this Agreement nor any action taken hereunder shall be construed to create any duty, liability or standard of care to any Person that is not a Party, (b) no person that is not a Party shall have any rights or interest, direct or indirect, in this Agreement or the services to be provided hereunder and (c) this Agreement is intended solely for the benefit of the Parties, and the Parties expressly disclaim any intent to create any rights in any third party as a third-party beneficiary to this Agreement or the services to be provided hereunder.

55

[Remainder of page intentionally left blank]

56

IN WITNESS WHEREOF, Buyer and Seller have caused this Amended and Restated Master Energy Server Purchase and Services Agreement to be signed by their respective duly authorized officers as of the Agreement Date.

BUYER:
2013B ESA PROJECT COMPANY, LLC
a Delaware limited liability company
By:	/s/ Sendil Atreya
Name:	Sendil Atreya
Title:	Vice President

[Signature Page to PPA IIIb Amended and Restated Master Energy Server Purchase and Services Agreement]

IN WITNESS WHEREOF, Buyer and Seller have caused this Amended and Restated Master Energy Server Purchase and Services Agreement to be signed by their respective duly authorized officers as of the Agreement Date.

SELLER:
BLOOM ENERGY CORPORATION
a Delaware corporation
By:	/s/ Martin J. Collins
Name:	Martin J. Collins
Title:	Vice President Corporate Development

[Signature Page to PPA IIIb Amended and Restated Master Energy Server Purchase and Services Agreement]

Annex A

Minimum Power Product Example Calculation

Sample Quarterly Minimum Power Product Example

Calculation

Assumptions
Number of active Systems	46
Nameplate capacity	200	kW
Quarterly Capacity Warranty	80%
Quarterly Minimum Power Product
Analysis
Minimum Power Product	7,360	kW

Sample Annual Minimum Power Product Example Calculation
Assumptions
Number of active Systems	46
Nameplate capacity	200	kW
Quarterly Capacity Warranty	95%
Quarterly Minimum Power Product
Analysis
Minimum Power Product	8,740	kW

Annex B

Insurance

Insurance. At all times during the Term without cost to Buyer, Seller shall maintain in force and effect the following insurance, which insurance shall not be subject to cancellation, termination or other material adverse changes unless the insurer delivers to Buyer written notice of the cancellation, termination or change at least thirty (30) days in advance of the effective date of the cancellation, termination or material adverse change or if notice from the insurer to the Buyer of material adverse change is not available on commercially reasonable terms then the Seller shall provide the Buyer with such notice as soon as reasonably possible after becoming aware of such change:

(a) Worker’s Compensation Insurance as required by the laws of the state where Buyer’s facilities are located;

(b) Employer’s liability insurance with limits at policy inception not less than One Million Dollars ($1,000,000.00);

(c) Commercial General Liability Insurance, including bodily injury and property damage liability (arising from premises, operations, contractual liability endorsements, products liability, or completed operations) with limits not less than Two Million Dollars ($2,000,000.00) at policy inception;

(d) If there is exposure, automobile liability insurance in accordance with prudent industry practice with a limit of not less than $1,000,000 per claim; and

(e) Umbrella liability insurance acting in excess of underlying employers liability, commercial general liability and automobile liability policies with limits not less than Fifteen Million Dollars ($15,000,000.00).

Seller shall cause Buyer to be included as additional insured to all insurance policies required in accordance with the provisions of this Agreement except worker’s compensation. The required insurance must be written as primary policy not contributing to or in excess of any policies carried by the Seller, and each contain a waiver of subrogation, in form and substance reasonably satisfactory to the Buyer, in favor of the Buyer.

The insurances contemplated in this clause are primary. The Parties acknowledge that if a claim is made under any of the insurances contemplated in this Agreement it is their intention that the insurer cannot require the Party first to exhaust indemnities referred to in this Agreement before the insurer’s obligation to perform is mature, subject to the insurer’s later pursuing subrogation, in which event any recovery will be credited by such insurer pro tanto in favor of the policyholder. The general liability and umbrella liability insurances required by this agreement shall provide blanket contractual cover to the full policy limit. Where applicable, each of these insurances will:

(a) be effected with an insurer reasonably acceptable to the Buyer;

59

(b) not contain any exclusion, endorsement, amendment or alteration, unless first approved by the Buyer (such approval not to be unreasonably withheld or delayed);

(c) contain a waiver of subrogation in favor of the Buyer;

(d) contain deductibles in accordance with prudent industry practice and approved by the Owner acting reasonably; and

(e) include a provision that such insurance is primary insurance with respect to the interests of the Buyer and Seller and that any other insurance maintained by the Buyer is excess and not contributory insurance with the insurances required under this Agreement.

Seller shall provide Buyer with evidence of compliance with these insurance requirements when requested by Buyer from time to time on a reasonable basis.

Annex C

Capacity Warranty Claim Example Calculation and Amounts Payable

Sample Quarterly Capacity Warranty Claim Example Calculation

Assumptions
		Number of Systems	46
		Baseload Capacity	200	kW
		Hours/Day	24	Hours
		Measurement Period	90	Days
		Force Majeure Outage in Period (1)		Hours
		PPA Customer Outage in Period(1)		Hours
		Legal/Grid Outage in Period(1)		Hours
		AverageTolling Rate	[***]	/kWh
Quarterly Capacity Warranty analysis
	Minimum kWh = ((Measurement Period Days * 24 Hours/Day)			kWh
		- Force Majeure Hours
		- PPA Customer Outage Hours
		- Legal/Grid Outage Hours)
		* Minimum Power Product (2)
		Actual kWh = Actual generation in Period		kWh
		Actual Capacity Factor = Actual kWh/(Minimum kWh/Quarterly Capacity Warranty Factor) * 100%
		Quarterly Capacity Warranty
		Factor	80%
		Actual Capacity Factor	78%
		Minimum kWh	15,897,600	kWh
		Actual kWh	15,500,160	kWh
		Underperformance (kWh)	397,440	kWh
Quarterly Capacity Warranty Payment			[***]

(1) As described in the “Minimum kWh” definition above.

(2) As calculated per Annex A herein

(3) With respect to Facilities located in the Los Angeles Department of Water and Power (LADWP) service territory, which the “Average Tolling Rate” for purposes of the calculation of Capacity Warranty Payment shall be calculated as follows:

Tolling Rate = [***].

[***] Confidential Treatment Requested

Sample One-Year Capacity Warranty Claim Example Calculation

Assumptions
		Number of Systems	46
		Baseload Capacity	200	kW
		Hours/Day	24	Hours
		Measurement Period		365	Days
		Force Majeure Outage in Period (1)			Hours
		PPA Customer Outage in Period(1)			Hours
		Legal/Grid Outage in Period(1)			Hours
	Average Tolling Rate		[***]/kWh

One-Year Capacity Warranty analysis
	Minimum kWh = ((Measurement Period Days * 24 Hours/Day)	kWh
	- Force Majeure Hours
	- PPA Customer Outage Hours
	- Legal/Grid Outage Hours)
	* Minimum Power Product (2)
	Actual kWh = Actual generation in Period	kWh

Actual Capacity Factor = Actual kWh/(Mini mum kWh/One -Year Capacity Warranty Factor) * 100%
One-Year Capacity Warranty	95%
Actual Output	90%
Minimum kWh	76,562,400

Actual kWh	72,532,800
Underperformance (kWh)	4,029,600
One-Year Capacity Warranty Payment	[***]

Notes:

(1) As described in the “Minimum kWh” definition above.

(2) As calculated per Annex A herein

(3) With respect to Facilities located in the Los Angeles Department of Water and Power (LADWP) service territory, which the “Average Tolling Rate” for purposes of the calculation of Capacity Warranty Payment shall be calculated as follows:

Tolling Rate = [***].

[***] Confidential Treatment Requested

Average Tolling Rate Example Calculation

Assumptions
Installed Capacity	Tolling Rate
2000kW	$[***]
1000kW	$[***]
Calculation
Tolling Rate	= (([***][***]/kWh) + ([***][***]/kWh)) / ([***]+[***])
	= [***]/kWh

[***] Confidential Treatment Requested

Exhibit A

Form of Purchase Order

PURCHASE ORDER

2013B ESA Project Company, LLC		Page 1 of 1
PO Number:	Supplier Details:
Revision:		Bloom Energy
PO Type:		1299 Orleans Drive
PO Status:		Sunnyvale, CA 94089
		United States
Ship-To Address:	Bill-To Address:
		1299 Orleans Drive
		Sunnyvale, CA 94089
		United States

Payment terms		Shipping Terms	Freight terms
Net 30
Creation Date	Buyer	Requestor	Vendor Contact
-    -13

Line	Deliver Date	Part Number / Part Description	Quantity	UOM	Unit Price (USD)	Taxable (Y/N)	Total (USD)
1		Ship-To:

Total PO Amount (Exclusive of Tax)

Note to Supplier:

Bloom Energy Standard Terms and Conditions apply.

Exhibit B

Form of Bill of Sale

BILL OF SALE

This BILL OF SALE, dated as of [            ] [    ], 201   is made by BLOOM ENERGY CORPORATION, a Delaware corporation (“Seller”), to 2013B ESA PROJECT COMPANY, LLC, a Delaware limited liability company (“Buyer”), and is delivered pursuant to the Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of September 25, 2013 (the “MESPSA”), between Seller and Buyer, in connection with the transfer of the assets described on Exhibit A attached hereto (the “Purchased System”).

Seller hereby assigns, conveys, sells, delivers, sets over and transfers to Buyer, for the consideration, and on the terms and conditions, set forth in the MESPSA, all of Seller’s rights, title and interest in, under and to the Purchased System, and Buyer hereby accepts such assignment.

This Bill of Sale shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.

This Bill of Sale shall be governed by, and construed in accordance with, the laws of the State of New York.

[Signature Page Follows]

IN WITNESS WHEREOF, the parties hereto have caused this Bill of Sale to be signed by their respective duly authorized officers as of the date first written above.

SELLER:

BLOOM ENERGY CORPORATION

By:

Name:

Title:

BUYER:

2013B ESA PROJECT COMPANY, LLC

By:

Name:

Title:

EXHIBIT A to Bill of Sale

Purchased System

Exhibit C

Facilities

Site No.	PPA Customer	Address	City	State	Size (kW)	Applicable Energy System Use Agreement No.
1	Pac Bell	[***]	Los Angeles	CA	[***]	[***]
2	Pac Bell	[***]	Gardena	CA	[***]	[***]
3	Pac Bell	[***]	Los Angeles	CA	[***]	[***]
4	Pac Bell	[***]	Fairfield	CA	[***]	[***]
5	AT&T Corp	[***]	New London	CT	[***]	[***]
6	AT&T Corp	[***]	Waterbury	CT	[***]	[***]
[***]	[***]	[***]	[***]	[***]	[***]	[***]
[***]	[***]	[***]	[***]	[***]	[***]	[***]
		[***]	[***]	[***]	[***]
				[***]	[***]

[***] Confidential Treatment Requested

Exhibit D

Primary Service Fees

Calendar Quarters since Commencement of Operations for the applicable Facility	Rate
1 through 4		[***]/kW
5 through 8		[***]/kW
9 through 12		[***]/kW
13 through 16		[***]/kW
17 through 20		[***]/kW
21 through 24		[***]/kW
25 through 28		[***]/kW
29 through 32		[***]/kW
33 through 36		[***]/kW
37 through 40		[***]/kW
41 through 44		[***]/kW
45 through 48		[***]/kW
49 through 52		[***]/kW
53 through 56		[***]/kW
57 through 60		[***]/kW

In addition, for each Facility that includes a UPM, Primary Services Fees for such System shall be increased by an amount equal to [***] per Calendar Quarter for each such UPM, commencing with the 4^th Calendar Quarter following the date on which the applicable Facility achieved Commencement of Operations.

[***] Confidential Treatment Requested

Exhibit E

Form of Certification of Installation

To:

1. 2013B ESA PROJECT COMPANY, LLC (Buyer); and

2. Silicon Valley Bank.

Copy: SAIC Energy, Environment & Infrastructure, LLC (Independent Engineer)

This Certificate is given pursuant to paragraph (e) of the definition of Commencement of Operations in the Amended and Restated Master Energy Server Purchase and Services Agreement between the BLOOM ENERGY CORPORATION (Seller) and the Buyer dated September 25, 2013 (MESPSA).

Terms defined in the MESPSA have the same meaning where used in this Certificate.

This certificate is provided in respect of the Site known as [insert Site where Facility is located] (Site).

The Seller hereby certifies that in respect of the Site:

1. each Bloom System comprising the Facility has been installed, commissioned and tested in accordance with the Performance Standards and all other requirements of the MESPSA; and

2. All BOF and BOF Work necessary for the operation of the Facility has been installed, commissioned and tested in accordance with the Performance Standards and all other requirements of the MESPSA.

This Certificate may be relied upon by the Buyer and the Buyer’s Lender.

Signed for and on behalf of BLOOM ENERGY CORPORATION

By:

Name:

Title:

Exhibit F

Form of Independent Engineer Certification of Commencement of Operations

[Date of Certificate]

To:

1. BLOOM ENERGY CORPORATION

2. 2013B ESA PROJECT COMPANY, LLC

Subject:	Independent Engineer’s Commencement of Operations Certificate
	PPA IIIb Project

Ladies and Gentlemen:

This certificate (“Certificate”) is being delivered to 2013B ESA Project Company, LLC, a Delaware limited liability company (“Buyer”), on behalf of SAIC Energy, Environment & Infrastructure, LLC (the ”Independent Engineer”) as required by clause (g) of the definition of “Commencement of Operations” in the Amended and Restated Master Energy Server Purchase and Services Agreement (the “MESPSA”), dated as of September 25, 2013, between Buyer and Bloom Energy Corporation, a Delaware corporation (“Seller”). Capitalized terms used, but not defined herein, shall have the meanings ascribed to them in the MESPSA.

As of the date of this Certificate, the Independent Engineer is of the opinion that:.

1. The installation, commissioning and testing of the Bloom System(s) listed in Table 1 on Attachment A, attached hereto, has been successfully completed in accordance with the requirements of the MESPSA;

2. Each of the requirements set out in paragraphs (a) to (f) of the definition of Commencement of Operations in the MESPSA have been satisfied with respect to the Facility listed in Table 1 on Attachment A, attached hereto;

3. Each Bloom System comprising the Facility listed in Table 1 on Attachment A, attached hereto, has achieved commercial operation; and

4. Seller has completed all BOF Work necessary for the operation of the Facility listed in Table 1 on Attachment A, attached hereto.

This Certificate was prepared with the understanding and assumption that the information provided to us in relation to this certificate is true, correct and complete. Our review and observations were performed pursuant to the scope of services under our Professional Services Agreement, dated as of July 3, 2013, as amended (the “Professional Services Agreement”) with Seller, Buyer, and the Buyer’s Lender and with the degree of skill and diligence normally practiced by professional engineers or consultants performing the same or similar services on like projects.

This Certificate is solely for the information of and assistance to the Buyer’s Lender in conducting and documenting their investigation of the matters in connection with the applicable System and is not to be used, circulated, quoted, or otherwise referred to within or without the lending group for any other purpose. The Independent Engineer disclaims any obligation to update this Certificate. This Certificate is not intended to, and may not, be relied upon by any party other than the Buyer’s Lender.

SAIC ENERGY, ENVIRONMENT & INFRASTRUCTURE, LLC

By:

Name:

Title:

ATTACHMENT A

COMPLETED BLOOM SYSTEMS

Table 1

Facility List and Commencement of Operations (“CO”) Date

Serial No. Location of Facility Unit
Model Net Capacity (kW-AC) CO Date

EX-10

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Exhibit 10.57

Execution Version

FIRST AMENDMENT TO AMENDED AND RESTATED

MASTER ENERGY SERVER PURCHASE and SERVICES AGREEMENT

This FIRST AMENDMENT TO AMENDED AND RESTATED MASTER ENERGY SERVER PURCHASE and SERVICES AGREEMENT (this “Amendment”) is executed as of March 28, 2014, by and between BLOOM ENERGY CORPORATION, a Delaware corporation (the “Seller”), and 2013B ESA PROJECT COMPANY, LLC, a Delaware limited liability company (the “Buyer”). The Seller and the Buyer shall be referred to individually herein as a “Party” and collectively as the “Parties”. Capitalized terms used herein and not otherwise defined have the meanings provided in the Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of September 25, 2013, as amended by this Amendment (the “MESPSA”), by and between the Parties.

RECITALS

A. WHEREAS, the Parties desire to amend the MESPSA as more fully set forth in this Amendment.

NOW, THEREFORE, in consideration of the mutual covenants set forth in this Amendment, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree to amend the MESPSA as follows:

AGREEMENT

1. Amendments.

a. The following definition of the capitalized term “2012 ESA” is inserted into Section 1.1 in the appropriate alphabetical location:

““2012 ESA” means 2012 ESA Project Company, LLC, a Delaware limited liability company.”

b. The definition of the capitalized term “Administrative Services Agreement” set forth in Section 1.1 is deleted in its entirety and replaced with the following text:

““Administrative Services Agreement” means the Amended and Restated Administrative Services Agreement, dated as of September 25, 2013, by and among the Seller, the Buyer and HoldCo, as may be amended, amended and restated, supplemented, or otherwise modified from time to time.”

c. Exhibit B is deleted in its entirety and replaced with the revised version of Exhibit B, attached hereto as Annex A.

d. Exhibit C is deleted in its entirety and replaced with the revised version of Exhibit C, attached hereto as Annex B.

e. Exhibit E is deleted in its entirety and replaced with the revised version of Exhibit E, attached hereto as Annex C.

f. Exhibit F is deleted in its entirety and replaced with the revised version of Exhibit F, attached hereto as Annex D.

1

2. Ratification. The MESPSA, as amended hereby, is in all respects ratified and confirmed and shall be and remain in full force and effect. All references to the MESPSA in any other document or instrument shall be deemed to mean such MESPSA as amended by this Amendment.

3. Amendments. No amendment, modification, termination or waiver of any provision of this Amendment shall be effective unless the same shall be in writing and duly executed by the Parties.

4. Enforceability. This Amendment shall be enforceable by and binding upon and shall inure to the benefit of the Parties hereto and their respective successors and assigns.

5. Governing Law. THIS AMENDMENT SHALL BE DEEMED MADE AND PREPARED AND SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS THEREOF WHICH MAY REQUIRE THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).

6. Counterparts and Facsimile Execution. This Amendment may be executed and delivered (including by “portable document format”) in one or more counterparts, all of which shall be considered one and the same and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to each other Party, it being understood that all Parties need not sign the same counterpart. Signatures of the Parties transmitted by electronic mail shall be deemed to be their original signatures for all purposes.

7. Severability. If any term or other provision of this Amendment is invalid, illegal, or incapable of being enforced by any rule of applicable law, or public policy, all other terms and provisions of this Amendment shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated herein are not affected in any manner materially adverse to any Party.

[Remainder of page intentionally left blank.]

2

IN WITNESS WHEREOF, each Party has caused this Amendment to be signed on its behalf as of the date first written above.

BUYER:
2013B ESA PROJECT COMPANY, LLC
a Delaware limited liability company
By:	/s/ Sendil Atreya
Name:	Sendil Atreya
Title:	Vice President

[Signature page to First Amendment to Amended and Restated

Master Energy Server Purchase and Services Agreement]

SELLER:
BLOOM ENERGY CORPORATION
a Delaware corporation
By:	/s/ Martin J. Collins
Name:	Martin J. Collins
Title:	Vice President Corporate Development

[Signature page to First Amendment to Amended and Restated

Master Energy Server Purchase and Services Agreement]

Execution Version

ANNEX A

Exhibit B

Form of Bill of Sale

BILL OF SALE

This Bill of Sale, dated as of [            ] [    ], 201   is made by BLOOM ENERGY CORPORATION, a Delaware corporation (“Seller”), to 2013B ESA PROJECT COMPANY, LLC, a Delaware limited liability company (“Buyer”), and is delivered pursuant to the Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of September 25, 2013, as may be amended, amended and restated, supplemented, or otherwise modified from time to time (the “MESPSA”), between Seller and Buyer, in connection with the transfer of the assets described on Exhibit A attached hereto (the “Purchased System”).

Seller hereby assigns, conveys, sells, delivers, sets over and transfers to Buyer, for the consideration, and on the terms and conditions, set forth in the MESPSA, all of Seller’s rights, title and interest in, under and to the Purchased System, and Buyer hereby accepts such assignment.

This Bill of Sale shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.

This Bill of Sale shall be governed by, and construed in accordance with, the laws of the State of New York.

[Signature Page Follows]

[Annex A to First Amendment to Amended and Restated Master Energy Server Purchase and Services Agreement]

IN WITNESS WHEREOF, the parties hereto have caused this Bill of Sale to be signed by their respective duly authorized officers as of the date first written above.

SELLER:

BLOOM ENERGY CORPORATION

By:

Name:

Title:

BUYER:

2013B ESA PROJECT COMPANY, LLC

By:

Name:

Title:

Execution Version

ANNEX B

Exhibit C

Facilities

Site No.	PPA Customer	Address	City	State	Size (kW)	Applicable Energy System Use Agreement No.
1	Pac Bell	[***]	Los Angeles	CA	[***]	[***]
2	Pac Bell	[***]	Gardena	CA	[***]	[***]
4	Pac Bell	[***]	Fairfield	CA	[***]	[***]
5	AT&T Corp.	[***]	New London	CT	[***]	[***]
6	AT&T Corp.	[***]	Waterbury	CT	[***]	[***]
7	AT&T Corp.	[***]	Meriden	CT	[***]	[***]
8	AT&T Corp.	[***]	Sherman Oaks	CA	[***]	[***]
				[***]	[***]

[Annex B to First Amendment to Amended and Restated Master Energy Server Purchase and Services Agreement]

[***] Confidential Treatment Requested

Execution Version

ANNEX C

Exhibit E

Form of Certification of Installation

To:

1. 2013B ESA PROJECT COMPANY, LLC (Buyer); and

2. Silicon Valley Bank.

Copy: SAIC Energy, Environment & Infrastructure, LLC (Independent Engineer)

This Certificate is given pursuant to paragraph (e) of the definition of Commencement of Operations in the Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of September 25, 2013, as may be amended, amended and restated, supplemented, or otherwise modified from time to time, between BLOOM ENERGY CORPORATION (“Seller”) and Buyer (the “MESPSA”).

Terms defined in the MESPSA have the same meaning where used in this Certificate.

This certificate is provided in respect of the Site known as [insert Site where Facility is located] (“Site”).

The Seller hereby certifies that in respect of the Site:

1. each Bloom System comprising the Facility has been installed, commissioned and tested in accordance with the Performance Standards and all other requirements of the MESPSA; and

2. All BOF and BOF Work necessary for the operation of the Facility has been installed, commissioned and tested in accordance with the Performance Standards and all other requirements of the MESPSA.

[Annex C to First Amendment to Amended and Restated Master Energy Server Purchase and Services Agreement]

This Certificate may be relied upon by the Buyer and the Buyer’s Lender.

Signed for and on behalf of BLOOM ENERGY CORPORATION

By:

Name:

Title:

ANNEX D

Exhibit F

Form of Independent Engineer Certification of Commencement of Operations

[Annex D to First Amendment to Amended and Restated Master Energy Server Purchase and Services Agreement]

[Date of Certificate]

To:

1. BLOOM ENERGY CORPORATION

2. 2013B ESA PROJECT COMPANY, LLC

Subject: Independent Engineer’s Commencement of Operations Certificate PPA IIIb Project

Ladies and Gentlemen:

This certificate (“Certificate”) is being delivered to 2013B ESA Project Company, LLC, a Delaware limited liability company (“Buyer”), on behalf of SAIC Energy, Environment & Infrastructure, LLC (the “Independent Engineer”) as required by clause (g) of the definition of “Commencement of Operations” in the Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of September 25, 2013, as may be amended, amended and restated, supplemented, or otherwise modified from time to time (the “MESPSA”), between Buyer and Bloom Energy Corporation, a Delaware corporation (“Seller”). Capitalized terms used, but not defined herein, shall have the meanings ascribed to them in the MESPSA.

As of the date of this Certificate, the Independent Engineer is of the opinion that:.

1. The installation, commissioning and testing of the Bloom System(s) listed in Table 1 on Attachment A, attached hereto, has been successfully completed in accordance with the requirements of the MESPSA;

2. Each of the requirements set out in paragraphs (a) to (f) of the definition of Commencement of Operations in the MESPSA have been satisfied with respect to the Facility listed in Table 1 on Attachment A, attached hereto;

3. Each Bloom System comprising the Facility listed in Table 1 on Attachment A, attached hereto, has achieved commercial operation; and

4. Seller has completed all BOF Work necessary for the operation of the Facility listed in Table 1 on Attachment A, attached hereto.

This Certificate was prepared with the understanding and assumption that the information provided to us in relation to this certificate is true, correct and complete. Our review and observations were performed pursuant to the scope of services under our Professional Services Agreement, dated as of July 3, 2013, as amended (the “Professional Services Agreement”) with Seller, Buyer, and the Buyer’s Lender and with the degree of skill and diligence normally practiced by professional engineers or consultants performing the same or similar services on like projects.

This Certificate is solely for the information of and assistance to the Buyer’s Lender in conducting and documenting their investigation of the matters in connection with the applicable System and is not to be used, circulated, quoted, or otherwise referred to within or without the lending group for any other purpose. The Independent Engineer disclaims any obligation to update this Certificate. This Certificate is not intended to, and may not, be relied upon by any party other than the Buyer’s Lender.

SAIC ENERGY, ENVIRONMENT & INFRASTRUCTURE, LLC

By:

Name:

Title:

ATTACHMENT A

COMPLETED BLOOM SYSTEMS

Table 1

Facility List and Commencement of Operations (“CO”) Date

Serial No. Location of Facility Unit
Model Net Capacity
(kW-AC) CO Date

EX-10

Exhibit 10.58

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Execution Version

SECOND AMENDMENT TO AMENDED AND RESTATED

MASTER ENERGY SERVER PURCHASE and SERVICES AGREEMENT

This SECOND AMENDMENT TO AMENDED AND RESTATED MASTER ENERGY SERVER PURCHASE and SERVICES AGREEMENT (this “Amendment”) is executed as of July 18, 2014, by and between BLOOM ENERGY CORPORATION, a Delaware corporation (the “Seller”), and 2013B ESA PROJECT COMPANY, LLC, a Delaware limited liability company (the “Buyer”). The Seller and the Buyer shall be referred to individually herein as a “Party” and collectively as the “Parties”. Capitalized terms used herein and not otherwise defined have the meanings provided in the Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of September 25, 2013, as amended by the First Amendment to the Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of March 28, 2014 (the “MESPSA”), by and between the Parties.

RECITALS

A. WHEREAS, the Parties desire to amend the MESPSA as more fully set forth in this Amendment.

NOW, THEREFORE, in consideration of the mutual covenants set forth in this Amendment, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree to amend the MESPSA as follows:

AGREEMENT

1. Amendments.

a. The definition of the capitalized term “Assignment and Assumption Agreement” set forth in Section 1.1 is deleted in its entirety and replaced with the following text:

““Assignment and Assumption Agreement #1” means the Assignment and Assumption Agreement, effective as of May 15, 2013, by and between 2012 ESA, as assignor, and the Buyer, as assignee.”

b. The following definition of the capitalized term “Assignment and Assumption Agreement #2” is inserted into Section 1.1 in the appropriate alphabetic allocation:

““Assignment and Assumption Agreement #2” means the Assignment and Assumption Agreement, dated as of May 22, 2014 and effective as of July 18, 2014, by and between ESU Company, as assignor, and the Buyer, as assignee.”

c. The following definition of the capitalized term “ESU Company” is inserted into Section 1.1 in the appropriate alphabetical location:

““ESU Company” means Energy Server Use Contracting Company, LLC, a Delaware limited liability company.”

1

d. The definition of the capitalized term “PPA” set forth in Section 1.1 is deleted in its entirety and replaced with the following text:

““PPA” means collectively

(i) that certain Energy System Use Agreement No. 20130430.072.C, dated as of May 15, 2013, by and between Pacific Bell Telephone Company (PacBell and Buyer (as amended by Amendment No. 1 to Energy System Use Agreement No. 20130430.072.C, effective as of May 15, 2013, by and between Pac Bell and Buyer, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time), which was partially assigned by Buyer to 2012 ESA, pursuant to that certain Assignment and Assumption Agreement, dated as of July 5, 2013 (the “PPA E/G Assignment”), and which PPA E/G Assignment has been terminated pursuant to a termination agreement;

(ii) that certain Energy System Use Agreement No. 20130430.076.C, dated as of May 15, 2013, by and between Pac Bell and Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time;

(iii) that certain Energy System Use Agreement No. 20130430.078.C, dated as of May 15, 2013, by and between AT&T Corp. (AT&T Corp. and Buyer (as amended by Amendment No. 1 to Energy System Use Agreement No. 20130430.078.C, effective as of May 15, 2013, by and between AT&T and Buyer, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time), which was partially assigned by Buyer to 2012 ESA pursuant to the PPA E/G Assignment, and which PPA E/G Assignment has been terminated pursuant to a termination agreement;

(iv) that certain Energy System Use Agreement No. 20130403.076.C, dated as of May 15, 2013 (“PPA-C”), by and between AT&T and 2012 ESA (as amended by that certain Acknowledgement and Consent Regarding Assignment and Amendment, effective as of May 15, 2013, by and between AT&T and 2012 ESA, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time), which was assigned by 2012 ESA to Buyer pursuant to that certain Assignment and Assumption Agreement, dated as of July 5, 2013 (the “PPA B/C Assignment”), which PPA B/C Assignment has been terminated pursuant to a termination agreement and which PPA-C has been assigned by 2012 ESA to Buyer pursuant to the Assignment and Assumption Agreement #1; and

(v) that certain Energy System Use Agreement, dated as of July 24, 2013, by and between [***] and ESU Company, as may be amended, amended and restated, supplemented or otherwise modified from time to time (the “[***] PPA”), which the [***] PPA was assigned by ESU Company to Buyer pursuant to the Assignment and Assumption Agreement #2.”

[***] Confidential Treatment Requested

2

e. Section 4.8(d) is deleted in its entirety and replaced with the following text:

“(d) Without affecting the generality of Sections 4.8(a) and 4.8(b), Seller shall perform on behalf of Buyer all of Buyer’s obligations as they relate to the preparation of each relevant Site and the purchase, installation, commissioning, maintenance and operation of all parts of each Facility under each of the following clauses:

(i) of each PPA except for the [***] PPA:

(1) Section 1.2 – requirements for site layout and modifications for installation, as agreed with the PPA Customer;

(2) Section 1.3(a) – requirement for the Buyer to relocate the systems to an alternative site;

(3) Section 1.4 – requirement for removal of Bloom Systems;

(4) Sections 2.3, 5.1 and 5.2 – administration and billing including any State Incentive Program management;

(5) Section 3.2 – metering installation and maintenance obligations;

(6) Sections 3.3 and 4.5 – natural gas interconnection infrastructure obligations;

(7) Section 7.1(a) – health and safety obligations;

(8) Section 9.3 – the requisite standards applicable to installation of the system;

(9) Section 9.4 – the IP infringement warranty given by the Buyer;

[***] Confidential Treatment Requested

3

(10) Section 12.1(a)(iii) – SGIP Performance Warranty (if applicable);

(11) Section 16.2 – the IP indemnification given by the Buyer;

(12) Article 17 – the insurance requirements applicable to theBuyer;

(13) Section 18.12 – the prohibition on offshore work;

(14) Section 18.14 – the requirements that apply to entry onto property owned or controlled by the PPA Customer;

(15) Section 18.16 – the plant and work rules requirements that apply while on the premises of the PPA Customer;

(16) Section 18.17 – the method of procedure obligations;

(17) Section 18.18 – Quality Assurance obligations; and

(18) Section 19.1 – on-site services obligations with respect to Buyer’s personnel.

(ii) of the [***] PPA:

(1) Section 1.3 – requirements for site change prior to commencement of installation, as agreed with the PPA Customer;

(2) Section 1.4(a) – requirement for the Buyer to relocate the systems to an alternative site;

(3) Sections 1.6, 1.7(a) and 12.1(b) – requirement for removal of Bloom Systems;

(4) Section 2.2 – requirement for installation of Bloom Systems;

(5) Sections 2.3, 4.2, 5.1, 5.2, and 5.4 – administration and billing including any State Incentive Program management;

(6) Section 3.2 – metering installation and maintenance obligations;

(7) Sections 3.3 and 4.5 – natural gas interconnection infrastructure obligations;

(8) Section 5.6 – maintenance of records;

[***] Confidential Treatment Requested

4

(9) Section 6.1 – operation and maintenance obligations;

(10) Section 6.2 – obligations to notify regarding malfunctions and System Emergencies (as defined in the [***] PPA);

(11) Section 6.3 – obligations to correct or cause to be corrected conditions that cause a System Emergency (as defined in the [***] PPA);

(12) Section 7.1(a) – health and safety obligations;

(13) Section 7.1(b) – installation and maintenance obligations;

(14) Section 7.1(d) – obligations to notify regarding damage or loss to aSystem;

(15) Section 9.2 – the requisite standards applicable to installation of the system;

(16) Section 16.2 – the IP indemnification given by the Buyer; and

(17) Section 17.1 – Buyer insurance requirements.”

f. Exhibit C is deleted in its entirety and replaced with the revised version of Exhibit C, attached hereto as Annex A.

2. Ratification. The MESPSA, as amended hereby, is in all respects ratified and confirmed and shall be and remain in full force and effect. All references to the MESPSA in any other document or instrument shall be deemed to mean such MESPSA as amended by this Amendment.

3. Amendments. No amendment, modification, termination or waiver of any provision of this Amendment shall be effective unless the same shall be in writing and duly executed by the Parties.

4. Enforceability. This Amendment shall be enforceable by and binding upon and shall inure to the benefit of the Parties hereto and their respective successors and assigns.

5. Governing Law. THIS AMENDMENT SHALL BE DEEMED MADE AND PREPARED AND SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS THEREOF WHICH MAY REQUIRE THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).

[***] Confidential Treatment Requested

5

6. Counterparts and Facsimile Execution. This Amendment may be executed and delivered (including by “portable document format”) in one or more counterparts, all of which shall be considered one and the same and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to each other Party, it being understood that all Parties need not sign the same counterpart. Signatures of the Parties transmitted by electronic mail shall be deemed to be their original signatures for all purposes.

7. Severability. If any term or other provision of this Amendment is invalid, illegal, or incapable of being enforced by any rule of applicable law, or public policy, all other terms and provisions of this Amendment shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated herein are not affected in any manner materially adverse to any Party.

[Remainder of page intentionally left blank.]

6

IN WITNESS WHEREOF, each Party has caused this Amendment to be signed on its behalf as of the date first written above.

BUYER:	SELLER:
2013B ESA PROJECT COMPANY, LLC	BLOOM ENERGY CORPORATION
Delaware limited liability company	a Delaware corporation

By:	/s/ W.E. Brockenborough	By:	/s/ Matt Ross
Name:	W.E. Brockenborough	Name:	Matt Ross
Title:	Vice President	Title:	Chief Marketing Officer

[Signature page to Second Amendment to Amended and Restated

Master Energy Server Purchase and Services Agreement]

ANNEX A

Exhibit C

Facilities

Site No.	PPA Customer	Address	City	State	Size (kW)	Applicable Energy System Use Agreement No.
1	Pac Bell	[***]	Los Angeles	CA	[***]	[***]
2	Pac Bell	[***]	Gardena	CA	[***]	[***]
4	Pac Bell	[***]	Fairfield	CA	[***]	[***]
5	AT&T Corp.	[***]	New London	CT	[***]	[***]
6	AT&T Corp.	[***]	Waterbury	CT	[***]	[***]
7	AT&T Corp.	[***]	Meriden	CT	[***]	[***]
8	AT&T Corp.	[***]	Sherman Oaks	CA	[***]	[***]
9	[***]	[***]	Bloomington	CA	[***]	[***]
				Total	[***]

[***] Confidential Treatment Requested

8

EX-10

Exhibit 10.59

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

EXECUTION VERSION

THIRD AMENDMENT TO AMENDED AND RESTATED

MASTER ENERGY SERVER PURCHASE and SERVICES AGREEMENT

This THIRD AMENDMENT TO AMENDED AND RESTATED MASTER ENERGY SERVER PURCHASE and SERVICES AGREEMENT (this “Amendment”) is effective as of October 24, 2014, by and between BLOOM ENERGY CORPORATION, a Delaware corporation (the “Seller”), and 2013B ESA PROJECT COMPANY, LLC, a Delaware limited liability company (the “Buyer”). The Seller and the Buyer shall be referred to individually herein as a “Party” and collectively as the “Parties”. Capitalized terms used herein and not otherwise defined have the meanings provided in the Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of September 25, 2013, as amended by the First Amendment to Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of March 28, 2014, and as further amended by the Second Amendment to Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of July 18, 2014, in each case, by and between the Parties (as so amended, the “MESPSA”).

RECITALS

A. WHEREAS, the Parties desire to amend the MESPSA as more fully set forth in this Amendment.

NOW, THEREFORE, in consideration of the mutual covenants set forth in this Amendment, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree to amend the MESPSA as follows:

AGREEMENT

1. Amendments.

a. The definition of the capitalized term “PPA” set forth in Section 1.1 is deleted in its entirety and replaced with the following text:

““PPA” means collectively

(i) that certain Energy System Use Agreement No. 20130430.072.C, dated as of May 15, 2013, by and between Pacific Bell Telephone Company (“Pac Bell”) and the Buyer (as amended by Amendment No. 1 to Energy System Use Agreement No. 20130430.072.C, effective as of May 15, 2013, by and between Pac Bell and the Buyer, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time), which was partially assigned by the Buyer to 2012 ESA, pursuant to that certain Assignment and Assumption Agreement, dated as of July 5, 2013 (the “PPA E/G Assignment”), and which PPA E/G Assignment has been terminated pursuant to a termination agreement;

1

(ii) that certain Energy System Use Agreement No. 20130430.076.C, dated as of May 15, 2013, by and between Pac Bell and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time;

(iii) that certain Energy System Use Agreement No. 20130430.078.C, dated as of May 15, 2013, by and between AT&T Corp. and the Buyer (as amended by Amendment No. 1 to Energy System Use Agreement No. 20130430.078.C, effective as of May 15, 2013, as further amended by Amendment No. 2 to Energy System Use Agreement No. 20130430.078.C, effective as of October 24, 2014, in each case, by and between AT&T Corp. and Buyer, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time), which was partially assigned by the Buyer to 2012 ESA pursuant to the PPA E/G Assignment, and which PPA E/G Assignment has been terminated pursuant to a termination agreement;

(iv) that certain Energy System Use Agreement No. 20130403.076.C, dated as of May 15, 2013 (“PPA-C”), by and between AT&T Corp. and 2012 ESA (as amended by that certain Acknowledgement and Consent Regarding Assignment and Amendment, effective as of May 15, 2013, by and between AT&T Corp. and 2012 ESA, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time), which was assigned by 2012 ESA to the Buyer pursuant to that certain Assignment and Assumption Agreement, dated as of July 5, 2013 (the “PPA B/C Assignment”), which PPA B/C Assignment has been terminated pursuant to a termination agreement and which PPA-C has been assigned by 2012 ESA to the Buyer pursuant to the Assignment and Assumption Agreement #1;

(v) that certain Energy System Use Agreement, dated as of July 24, 2013, by and between [***] and ESU Company, as may be amended, amended and restated, supplemented or otherwise modified from time to time (the “[***] PPA”), which the [***] PPA was assigned by ESU Company to the Buyer pursuant to the Assignment and Assumption Agreement #2; and

(vi) that certain Energy System Use Agreement, dated as of October 24, 2014, by and between [***] and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time (the “[***] PPA”).”

b. Exhibit C is deleted in its entirety and replaced with the revised version of Exhibit C, attached hereto as Annex A.

[***] Confidential Treatment Requested

2

2. Ratification. The MESPSA, as amended hereby, is in all respects ratified and confirmed and shall be and remain in full force and effect. All references to the MESPSA in any other document or instrument shall be deemed to mean such MESPSA as amended by this Amendment.

3. Amendments. No amendment, modification, termination or waiver of any provision of this Amendment shall be effective unless the same shall be in writing and duly executed by the Parties.

4. Enforceability. This Amendment shall be enforceable by and binding upon and shall inure to the benefit of the Parties hereto and their respective successors and assigns.

5. Governing Law. THIS AMENDMENT SHALL BE DEEMED MADE AND PREPARED AND SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS THEREOF WHICH MAY REQUIRE THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).

6. Counterparts and Facsimile Execution. This Amendment may be executed and delivered (including by “portable document format”) in one or more counterparts, all of which shall be considered one and the same and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to each other Party, it being understood that all Parties need not sign the same counterpart. Signatures of the Parties transmitted by electronic mail shall be deemed to be their original signatures for all purposes.

7. Severability. If any term or other provision of this Amendment is invalid, illegal, or incapable of being enforced by any rule of applicable law, or public policy, all other terms and provisions of this Amendment shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated herein are not affected in any manner materially adverse to any Party.

[Remainder of page intentionally left blank.]

3

IN WITNESS WHEREOF, each Party has caused this Amendment to be signed on its behalf effective as of the date first written above.

BUYER:	SELLER:
2013B ESA PROJECT COMPANY, LLC,	BLOOM ENERGY CORPORATION,
a Delaware limited liability company	a Delaware corporation

By:	By:	/s/ Illegible
Name:	Name:
Title:	Title:

[Signature page to Third Amendment to Amended and Restated

Master Energy Server Purchase and Services Agreement]

IN WITNESS WHEREOF, each Party has caused this Amendment to be signed on its behalf effective as of the date first written above.

BUYER:	SELLER:
2013B ESA PROJECT COMPANY, LLC,	BLOOM ENERGY CORPORATION,
a Delaware limited liability company	a Delaware corporation

By:	/s/ William E. Brockenborough	By:
Name:	William E. Brockenborough	Name:
Title:	Vice President	Title:

[Signature page to Third Amendment to Amended and Restated

Master Energy Server Purchase and Services Agreement]

ANNEX A

Exhibit C

Facilities

Site No.	PPA Customer	Address	City	State	Size (kW)	Applicable Energy System Use Agreement No.
1	Pac Bell	[***]	Los Angeles	CA	[***]	[***]
2	Pac Bell	[***]	Gardena	CA	[***]	[***]
4	Pac Bell	[***]	Fairfield	CA	[***]	[***]
5	[***]		New London	CT	[***]	[***]
6	[***]	[***]	Waterbury	CT	[***]	[***]
7	AT&T Corp.	[***]	Meriden	CT	[***]	[***]
8	AT&T Corp.	[***]	Sherman Oaks	CA	[***]	[***]
9	[***]	[***]	Bloomington	CA	[***]	[***]
				Total:	[***]

[***] Confidential Treatment Requested

EX-10

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Exhibit 10.60

Execution Version

FOURTH AMENDMENT TO AMENDED AND RESTATED

MASTER ENERGY SERVER PURCHASE and SERVICES AGREEMENT

This FOURTH AMENDMENT TO AMENDED AND RESTATED MASTER ENERGY SERVER PURCHASE and SERVICES AGREEMENT (this “Amendment”), dated as of May 5, 2015, by and between BLOOM ENERGY CORPORATION, a Delaware corporation (the “Seller”), and 2013B ESA PROJECT COMPANY, LLC, a Delaware limited liability company (the “Buyer”). The Seller and the Buyer shall be referred to individually herein as a “Party” and collectively as the “Parties”. Capitalized terms used herein and not otherwise defined have the meanings provided in the Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of September 25, 2013, as amended by the First Amendment to Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of March 28, 2014, as further amended by the Second Amendment to Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of July 18, 2014, and as further amended by the Third Amendment to Amended and Restated Master Energy Server Purchase and Services Agreement, effective as of October 24, 2014, in each case, by and between the Parties (as so amended, the “MESPSA”).

RECITALS

WHEREAS, the Parties desire to amend the MESPSA as more fully set forth in this Amendment.

NOW, THEREFORE, in consideration of the mutual covenants set forth in this Amendment, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree to amend the MESPSA as follows:

AGREEMENT

1. Amendments.

a. The following definition of the capitalized term “2015 ESA” is inserted into Section 1.1 in the appropriate alphabetical location:

““2015 ESA” means 2015 ESA Project Company, LLC, a Delaware limited liability company.”

b. The following definition of the capitalized term “Assignment and Assumption Agreement #3” is inserted into Section 1.1 in the appropriate alphabetical location:

““Assignment and Assumption Agreement #3” means the Assignment and Assumption Agreement, effective as of December 17, 2014, by and between 2015 ESA, as assignor, and the Buyer, as assignee, executed in connection with the [***] PPA.”

[***] Confidential Treatment Requested

1

c. The definition of the capitalized term “PPA” set forth in Section 1.1 is deleted in its entirety and replaced with the following text:

““PPA” means collectively

(i) that certain Energy System Use Agreement No. 20130430.072.C, dated as of May 15, 2013, by and between Pacific Bell Telephone Company (“Pac Bell”) and the Buyer (as amended by Amendment No. 1 to Energy System Use Agreement No. 20130430.072.C, effective as of May 15, 2013, by and between Pac Bell and the Buyer, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time), which was partially assigned by the Buyer to 2012 ESA, pursuant to that certain Assignment and Assumption Agreement, dated as of July 5, 2013 (the “PPA E/G Assignment”), and which PPA E/G Assignment has been terminated pursuant to a termination agreement;

(ii) that certain Energy System Use Agreement No. 20130430.076.C, dated as of May 15, 2013, by and between Pac Bell and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time;

(iii) that certain Energy System Use Agreement No. 20130430.078.C, dated as of May 15, 2013, by and between AT&T Corp. and the Buyer (as amended by Amendment No. 1 to Energy System Use Agreement No. 20130430.078.C, effective as of May 15, 2013, as further amended by Amendment No. 2 to Energy System Use Agreement No. 20130430.078.C, effective as of October 24, 2014, in each case, by and between AT&T Corp. and Buyer, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time), which was partially assigned by the Buyer to 2012 ESA pursuant to the PPA E/G Assignment, and which PPA E/G Assignment has been terminated pursuant to a termination agreement;

(iv) that certain Energy System Use Agreement No. 20130403.076.C, dated as of May 15, 2013 (“PPA-C”), by and between AT&T Corp. and 2012 ESA (as amended by that certain Acknowledgement and Consent Regarding Assignment and Amendment, effective as of May 15, 2013, by and between AT&T Corp. and 2012 ESA, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time), which was assigned by 2012 ESA to the Buyer pursuant to that certain Assignment and Assumption Agreement, dated as of July 5, 2013 (the “PPA B/C Assignment”), which PPA B/C Assignment has been terminated pursuant to a termination agreement and which PPA-C has been assigned by 2012 ESA to the Buyer pursuant to the Assignment and Assumption Agreement #1;

2

(v) that certain Energy System Use Agreement, dated as of July 24, 2013, by and between [***] and ESU Company, as may be amended, amended and restated, supplemented or otherwise modified from time to time (the “[***] PPA”), which the [***] PPA was assigned by ESU Company to the Buyer pursuant to the Assignment and Assumption Agreement #2;

(vi) that certain Energy System Use Agreement, dated as of October 24, 2014, by and between [***] and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time (the “[***] PPA”); and

(vii) that certain Energy Services and License Agreement, dated as of December 17, 2014, by and between the [***] and 2015 ESA, as amended by the Amendment No. 1 to Energy Services and License Agreement, by and between [***] and the Buyer, effective as of December 17, 2014, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time (the “[***] PPA”), which [***] PPA was assigned by 2015 ESA to the Buyer pursuant to Assignment and Assumption Agreement #3.

d. Section 4.8(d) is deleted in its entirety and replaced with the following text:

“(d) Without affecting the generality of Sections 4.8(a) and 4.8(b), Seller shall perform on behalf of Buyer all of Buyer’s obligations as they relate to the preparation of each relevant Site and the purchase, installation, commissioning, maintenance and operation of all parts of each Facility under each of the following clauses:

(i) of each PPA except for the [***] PPA and the [***] PPA:

(1) Section 1.2 – requirements for site layout and modifications for installation, as agreed with the PPA Customer;

(2) Section 1.3(a) – requirement for the Buyer to relocate the systems to an alternative site;

(3) Section 1.4 – requirement for removal of Bloom Systems;

(4) Sections 2.3, 5.1 and 5.2 – administration and billing including any State Incentive Program management;

[***] Confidential Treatment Requested

3

(5) Section 3.2 – metering installation and maintenance obligations;

(6) Sections 3.3 and 4.5 – natural gas interconnection infrastructure obligations;

(7) Section 7.1(a) – health and safety obligations;

(8) Section 9.3 – the requisite standards applicable to installation of the system;

(9) Section 9.4 – the IP infringement warranty given by the Buyer;

(10) Section 12.1(a)(iii) – SGIP Performance Warranty (if applicable);

(11) Section 16.2 – the IP indemnification given by the Buyer;

(12) Article 17 – the insurance requirements applicable to the Buyer;

(13) Section 18.12 – the prohibition on offshore work;

(14) Section 18.14 – the requirements that apply to entry onto property owned or controlled by the PPA Customer;

(15) Section 18.16 – the plant and work rules requirements that apply while on the premises of the PPA Customer;

(16) Section 18.17 – the method of procedure obligations;

(17) Section 18.18 – Quality Assurance obligations; and

(18) Section 19.1 – on-site services obligations with respect to Buyer’s personnel.

(ii) of the [***] PPA:

(1) Section 1.3 – requirements for site change prior to commencement of installation, as agreed with the PPA Customer;

(2) Section 1.4(a) – requirement for the Buyer to relocate the systems to an alternative site;

(3) Sections 1.6, 1.7(a) and 12.1(b) – requirement for removal of Bloom Systems;

[***] Confidential Treatment Requested

4

(4) Section 2.2 – requirement for installation of Bloom Systems;

(5) Sections 2.3, 4.2, 5.1, 5.2, and 5.4 – administration and billing including any State Incentive Program management;

(6) Section 3.2 – metering installation and maintenance obligations;

(7) Sections 3.3 and 4.5 – natural gas interconnection infrastructure obligations;

(8) Section 5.6 – maintenance of records;

(9) Section 6.1 – operation and maintenance obligations;

(10) Section 6.2 – obligations to notify regarding malfunctions and System Emergencies (as defined in the [***] PPA);

(11) Section 6.3 – obligations to correct or cause to be corrected conditions that cause a System Emergency (as defined in the [***] PPA);

(12) Section 7.1(a) – health and safety obligations;

(13) Section 7.1(b) – installation and maintenance obligations;

(14) Section 7.1(d) – obligations to notify regarding damage or loss to a System;

(15) Section 9.2 – the requisite standards applicable to installation of the system;

(16) Section 16.2 – the IP indemnification given by the Buyer; and

(17) Section 17.1 – Buyer insurance requirements.

(iii) of the [***] PPA, each section that includes obligations similar to those set forth in the PPA sections referenced in Section 4.8(d)(i) or Section 4.8(d)(ii), above.”

e. Exhibit C is deleted in its entirety and replaced with the revised version of Exhibit C, attached hereto as Annex A.

2. Ratification. The MESPSA, as amended hereby, is in all respects ratified and confirmed and shall be and remain in full force and effect. All references to the MESPSA in any other document or instrument shall be deemed to mean such MESPSA as amended by this Amendment.

[***] Confidential Treatment Requested

5

3. Amendments. No amendment, modification, termination or waiver of any provision of this Amendment shall be effective unless the same shall be in writing and duly executed by the Parties.

4. Enforceability. This Amendment shall be enforceable by and binding upon and shall inure to the benefit of the Parties hereto and their respective successors and assigns.

5. Governing Law. THIS AMENDMENT SHALL BE DEEMED MADE AND PREPARED AND SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS THEREOF WHICH MAY REQUIRE THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).

6. Counterparts and Facsimile Execution. This Amendment may be executed and delivered (including by “portable document format”) in one or more counterparts, all of which shall be considered one and the same and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to each other Party, it being understood that all Parties need not sign the same counterpart. Signatures of the Parties transmitted by electronic mail shall be deemed to be their original signatures for all purposes.

7. Severability. If any term or other provision of this Amendment is invalid, illegal, or incapable of being enforced by any rule of applicable law, or public policy, all other terms and provisions of this Amendment shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated herein are not affected in any manner materially adverse to any Party.

[Remainder of page intentionally left blank.]

6

IN WITNESS WHEREOF, each Party has caused this Amendment to be signed on its behalf effective as of the date first written above.

BUYER:		SELLER:
2013B ESA PROJECT COMPANY, LLC, a Delaware limited liability company		BLOOM ENERGY CORPORATION, a Delaware corporation
By:		By:
Name:	William E. Brockenborough	Name:	William H. Kurtz
Title:	Vice President and Secretary	Title:	Chief Commercial Officer

[Fourth Amendment to Amended and Restated

Master Energy Server Purchase and Services Agreement]

ANNEX A

Exhibit C

Facilities

Site No.	PPA Customer	Address	City	State	Size (kW)		Applicable Energy System Use Agreement No.
1	Pac Bell	[***]	Los Angeles	CA		[***]	[***]
2	Pac Bell	[***]	Gardena	CA		[***]	[***]
4	Pac Bell	[***]	Fairfield	CA		[***]	[***]
5	[***]	[***]	New London	CT		[***]	[***]
6	[***]	[***]	Waterbury	CT		[***]	[***]
7	AT&T Corp.	[***]	Meriden	CT		[***]	[***]
8	AT&T Corp.	[***]	Sherman Oaks	CA		[***]	[***]
9	[***]	Bloomington		CA		[***]	[***]
10	[***]	Pasadena		CA		[***]	[***]
				[***]		[***]

[***] Confidential Treatment Requested

EX-10

Exhibit 10.61

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Execution Version

EQUITY CAPITAL CONTRIBUTION AGREEMENT

between

FIRSTAR DEVELOPMENT, LLC

and

CLEAN TECHNOLOGIES 2013B, LLC

AUGUST 2, 2013

TABLE OF CONTENTS
		Page
ARTICLE ONE			1
DEFINITIONS AND PRINCIPLES OF INTERPRETATION			1
1.1	Definitions		1
1.2	Rules of Interpretation		13
ARTICLE TWO EQUITY CAPITAL CONTRIBUTIONS			14
2.1	Execution Date		14
2.2	Initial Contributions		14
2.3	Use of Initial Funding Date Proceeds		15
2.4	Use of Account Following the True Up Funding Date Deadline		15
2.5	True Up Date Contributions		16
2.6	Use of True Up Funding Date Proceeds and Account on True Up Funding Date		16
2.7	Limits on Investor Funding		16
2.8	Final List of Facilities		17
ARTICLE THREE REPRESENTATIONS AND WARRANTIES REGARDING THE FACILITY ENTITIES AND EACH FACILITY			17
3.1	Organization and Good Standing		17
3.2	Authorization, Execution and Enforceability		17
3.3	No Violation		18
3.4	Subsidiaries; Non-Related Liabilities		18
3.5	Members of the Company; Additional Membership Interests		18
3.6	Warranty of Title; Personal Property		19
3.7	Facilities; Governmental Approvals		19
3.8	Employees		19
3.9	Brokers		19
3.10	Consents and Approvals		19
3.11	Compliance with Applicable Law		19
3.12	Litigation		19
3.13	Contracts		20
3.14	Default		20
3.15	Environmental Matters		20
3.16	Equipment and Facilities		21
3.17	Real Property		21
3.18	PUHCA and FPA Status		21
3.19	Affiliate Transactions		21
3.20	Information		21
3.21	Insurance		22
3.22	State Regulation		22
3.23	Taxes		22
3.24	Tax Representations		22
3.25	Bankruptcy		24

ii

3.26	Books and Records	24
3.27	Executive Order 13224 and the Patriot Act	24
3.28	Facility Costs	25
3.29	Commercial Completion	25
3.30	Financial Statements	25
ARTICLE FOUR REPRESENTATIONS AND WARRANTIES OF CLASS B MEMBER		25
4.1	Representations and Warranties Regarding the Class B Member	25
ARTICLE FIVE REPRESENTATIONS AND WARRANTIES OF THE INVESTOR		28
5.1	Organization and Good Standing	28
5.2	Authorization, Execution and Enforceability	29
5.3	No Violation	29
5.4	Consents and Approvals	29
5.5	Litigation	29
5.6	Investment Intent; Unregistered Securities	29
5.7	Accredited Investor	30
5.8	Regulation D Compliance	30
5.9	Brokers	30
5.10	United States Person	30
5.11	PUHCA and FPA Status	30
5.12	Disqualified Person	30
5.13	Bankruptcy	31
5.14	No Other Representations	31
ARTICLE SIX CONDITIONS PRECEDENT		31
6.1	Execution Date Conditions Precedent	31
6.2	Initial Funding Date Conditions Precedent	33
6.3	Obligations of the Equity Investors and Facility Entities on each Initial Funding Date	36
6.4	Investor True Up Funding Date Conditions Precedent	37
6.5	Obligations of the Equity Investors and Facility Entities on each True Up Funding Date	39
ARTICLE SEVEN GENERAL PROVISIONS		40
7.1	Notices	40
7.2	No Third Party Beneficiaries	40
7.3	Amendment and Waiver	40
7.4	Binding Nature; Assignment	41
7.5	Governing Law	41
7.6	Jurisdiction; Service of Process	41
7.7	Counterparts	41
7.8	Headings	41
7.9	Severability	41
7.10	Entire Agreement	42

iii

7.11	No Solicitation	42
7.12	WAIVER OF JURY TRIAL	42
7.13	Expenses	42
7.14	Confidentiality	42
7.15	Further Assurances; Amendments to Governmental Approvals and Principal Facility Documents; Reports	43
7.16	LIMITATIONS OF LIABILITY	44

iv

LIST OF ANNEXES TO

EQUITY CAPITAL CONTRIBUTION AGREEMENT

Annex 1-A	List of Proposed Facilities and Locations
Annex 1-B	Base Case Model
Annex 2	Insurance Requirements
Annex 3	List of all Contracts
Annex 4	“Knowledge” Persons
Annex 5	Form of Interparty Agreement
Annex 6	Third Party Consents and Approvals
Annex 7	Form of Company LLC Agreement
Annex 8-A	Form of O’Melveny & Myers LLP Opinion
Annex 8-B.1	Form of Local Counsel Opinion (California)
Annex 8-B.2	Form of Local Counsel Opinion (Connecticut)
Annex 8-C.1	Form of Permitting Counsel Opinion (California)
Annex 8-C.2	Form of Permitting Counsel Opinion (Connecticut)
Annex 9	Forms of Estoppel Certificates (Seller and Administrator)
Annex 10-A	Form of Amendment to Power Purchase Agreement (ATT PPA Customer 1)
Annex 10-B	Form of Amendment to Power Purchase Agreement (ATT PPA Customer 2)
Annex 11	Affiliate Transactions
Annex 12	Tax Matters
Annex 13	Forms of Financing Documents
Annex 14	Form of Amended and Restated Facility Company LLC Agreement
Annex 15-A	Preliminary Form of Exhibit D to Company LLC Agreement (Form of Quarterly Renewable Energy Certificate)
Annex 15-B	Preliminary Form of Exhibit E to Company LLC Agreement (Form of Renewable Energy Monthly Report)

v

EQUITY CAPITAL CONTRIBUTION AGREEMENT

This EQUITY CAPITAL CONTRIBUTION AGREEMENT (the “Agreement”) dated as of August 2, 2013 (the “Execution Date”) entered into by and between Firstar Development, LLC, a Delaware limited liability company (the “Investor”), and Clean Technologies 2013B, LLC, a Delaware limited liability company (the “Class B Member”).

PRELIMINARY STATEMENTS:

1. 2013B ESA Project Company, LLC, a Delaware limited liability company (the “Facility Company”), has entered into a Master Energy Server Purchase and Services Agreement with Bloom Energy Corporation (“Seller”), dated as of July 19, 2013 (the “MESPSA”), pursuant to which the Facility Company will purchase, subject to the terms and conditions set for therein, on-site fuel cell power generating systems (each a “System”) with an aggregate Baseload Capacity of up to 6.1 MW, to be installed on, together with the relevant “BOF” (as defined in the MESPSA), each relevant “Site” (as defined in the MESPSA) located in California and Connecticut, as identified more specifically on Annex 1-A attached hereto (each System together with the relevant “BOF” at a “Site”, a “Facility”).

2. 2013B ESA Holdco, LLC, a Delaware limited liability company (the “Company”), wholly-owns the Facility Company.

3. The Investor desires to make capital contributions to the Company, and the Class B Member and the Facility Company desire that the Investor make such capital contributions, in the manner and subject to the terms and conditions set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual agreements, covenants, representations and warranties set forth herein and intending to be legally bound hereby, the Parties (as defined herein) agree as follows:

ARTICLE ONE

DEFINITIONS AND PRINCIPLES OF INTERPRETATION

1.1 Definitions. The following capitalized terms shall have the respective meanings set forth below:

“2012 ESA” means 2012 ESA Project Company, LLC, a Delaware limited liability company.

“Account” means that certain account, established in the name of the Company with a financial institution that is reasonably satisfactory to the Investor, which account shall not be pledged, or become pledged, as security for any obligation of the Company, the Facility Company or any other Person.

“Accountants” means Novogradac or such other firm of independent certified public accountants as may be engaged by the Class B Member with the consent of the Investor to prepare the Cost Allocations (Preliminary), the Cost Allocations (Final) and certain other documents and reports as provided herein.

“Administrator” means Bloom Energy Corporation, or any other Person who may serve as administrator from time to time under the ASA.

“Affiliate” means, with respect to any specified Person, any Person directly or indirectly controlling, controlled by or under common control with such Party. The term “control” (including the terms “controlled by” or “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership, by contract, or otherwise. Any Person shall be deemed to be an Affiliate of any specified Person if such Person owns more than 50% of the voting securities of the specified Person, if the specified Person owns more than 50% of the voting securities of such Person, or if more than 50% of the voting securities of the specified Person and such Person are under common control.

“Agreement” means this Equity Capital Contribution Agreement, as amended from time to time.

“Applicable Law” means any treaty, constitution, law, statute, ordinance, rule, order, decree, regulation or other directive which is legally binding and has been enacted, issued or promulgated by any Governmental Authority.

“Appraisal” means, to the reasonable satisfaction of the Investor, that certain appraisal of Marshall & Stevens, including the following conclusions: (a) the economic useful life of each Facility from the date of its Commercial Completion, (b) the Appraised Value for each Facility as of the Execution Date, and (c) the Appraised Residual Value for each Facility.

“Appraised Residual Value” means the expected Fair Market Value of an Asset, determined without regard to inflation or deflation, on the expected Class A Flip Point (as such term is defined in the Company LLC Agreement).

“Appraised Value” means the Fair Market Value of each Facility, based on the Baseload Capacity for such Facility, calculated on a per kW basis.

“ASA” means the Administrative Services Agreement, dated as of July 19, 2013, by and among the Administrator, the Company and the Facility Company.

“Assets” means, with respect to any Person, all right, title and interest of such Person in land, properties, buildings, improvements, fixtures, foundations, assets and rights of any kind, whether tangible or intangible, real, personal or mixed, including contracts, equipment, systems, books and records, proprietary rights, intellectual property, Governmental Approvals, rights under or pursuant to all warranties, representations and guarantees, cash, accounts receivable, deposits and prepaid expenses.

“Assignment and Assumption Agreement #1” means the Assignment and Assumption Agreement, dated as of July 5, 2013, by and between the Facility Company as assignor and 2012 ESA as assignee.

2

“Assignment and Assumption Agreement #2” means the Assignment and Assumption Agreement, dated as of July 5, 2013, by and between 2012 ESA as assignor and the Facility Company as assignee.

“AT&T PPA Customer 1” means Pacific Bell Telephone Company.

“AT&T PPA Customer 2” means AT&T Corp.

“Bankruptcy” or “Bankrupt” as to any Person means the filing of a petition for relief as to any such Person as debtor or bankrupt under the Bankruptcy Code or like provision of law (except if such petition is contested by such Person and has been dismissed within sixty (60) days); insolvency of such Person as finally determined by a court proceeding; filing by such Person of a petition or application to accomplish the same or for the appointment of a receiver or a trustee for such Person or a substantial part of its assets; commencement of any proceedings relating to such Person under any other reorganization, arrangement, insolvency, adjustment of debt or liquidation law of any jurisdiction, whether now in existence or hereinafter in effect, either by such Person or by another, provided that if such proceeding is commenced by another, such Person indicates its approval of such proceeding, consents thereto or acquiesces therein, or such proceeding is contested by such Person and has not been finally dismissed within sixty (60) days.

“Bankruptcy Code” means any and all sections and chapters of Title 11 of the United States Code, as in effect from time to time.

“Base Case Model” means the financial model attached hereto as Annex 1-B, as may be revised from time to time pursuant to this Agreement.

“Bill of Sale” has the meaning set forth in the MESPSA.

“Bloom Entities” means the Class B Member, the Guarantor, the Company, the Facility Company, the Seller and the Administrator.

“Business Day” means any day other than a Saturday, a Sunday or any other day on which banks are authorized to be closed in New York City.

“Casualty Defect” means any destruction by fire, explosion or other casualty or any taking, or pending or threatened (in writing) taking, in condemnation or under the right of eminent domain, of a Facility or any portion thereof, that constitutes or could reasonably be expected to constitute a Material Adverse Effect with respect to such Facility.

“Class A Member” shall have the meaning assigned to such term in the Company LLC Agreement.

“Class A Units” shall have the meaning assigned to such term in the Company LLC Agreement.

“Class B Member” has the meaning set forth in the Preamble hereto.

3

“Class B Member Initial Funding Date Contribution” has the meaning set forth in Section 2.2(b).

“Class B Member True Up Date Funding Contribution” has the meaning set forth in Section 2.5(b).

“Class B Units” shall have the meaning assigned to such term in the Company LLC Agreement.

“Code” means the Internal Revenue Code of 1986, as amended and any successor federal tax statute.

“Commercial Completion” means with respect to a System, that the Facility into which such System is incorporated has achieved Commencement of Operations (as such term is defined in the MESPSA).

“Company” has the meaning specified in the Preliminary Statements hereto.

“Company LLC Agreement” shall mean that certain Amended and Restated Operating Agreement of the Company, entered into on or before first Initial Funding Date, substantially in the form attached hereto as Annex 7, and as modified or supplemented from time to time.

“Cost Allocation (Final)” means, with respect to a Tranche, a cost allocation as prepared by the Accountants, and delivered with an audit report, detailing Qualified Investment with respect to the Tranche, including, but not limited to, the depreciable basis in the Tranche and the tax basis for the ITC, as set forth in the Base Case Model; provided, however, that in no event shall the tax basis for the ITC be an amount greater than set forth as the fair market value of the Facilities within the Tranche in the applicable Appraisal or Subsequent Facility Appraisal (if any), as applicable to such Tranche.

“Cost Allocation (Preliminary)” means a cost allocation as prepared by the Accountants, and delivered with an audit report, detailing Qualified Investment with respect to all of the Facilities to be funded pursuant to this Agreement, including, but not limited to, the depreciable basis of the Facilities and the tax basis for the ITC, as set forth in the Base Case Model; provided, however, that in no event shall the tax basis for the ITC be an amount greater than set forth as the fair market value of the Facilities in the applicable Appraisal or Subsequent Facility Appraisal (if any).

“Credit Agreement” means that certain Credit Agreement, dated as of July 19, 2013, by and between 2013B ESA Project Company, LLC and Silicon Valley Bank.

“Disqualified Person” means (a) the United States, any state or political subdivision thereof, any possession of the United States, or any agency or instrumentality of any of the foregoing, (b) any organization which is exempt from tax imposed by the Code (including any former tax-exempt organization within the meaning of Code Section 168(h)(2)(E) and any tax-exempt controlled entity within the meaning of Code Section 168(h)(6)(F)(iii) if such entity has not made the election provided in Code Section 168(h)(6)(F)(ii)), (c) any Person who is not a United States Person, and (d) any Indian tribal government described in Section 7701(a)(40) of the Code, or (e) any partnership or other pass-through

4

entity, any direct or indirect partner (or other holder of an equity or profits interest) of which is an organization or entity described in clauses (a)-(d); provided, however, that any such Person described in clauses (a) – (d) shall not be considered a Disqualified Person to the extent that (i) the exception under Code Section 168(h)(1)(D) applies with respect to the income from the Facility Company for that Person, (ii) the Person is described within clause (c) of this definition, and the exception under Code Section 168(h)(2)(B)(i) applies with respect to the income from the Facility Company for that Person, or (iii) the Person’s ownership of an Asset for federal income tax purposes, would not result in either the loss, disallowance, reduction or recapture of the ITC or application of Code sections 168(g) or 168(h).

“Encumbrance” means any lien (statutory or otherwise), mortgage, deed of trust, claim, option, lease, easement, charge, pledge, security interest, hypothecation, assignment, use restriction or other encumbrance of any kind or nature whatsoever, whether voluntary or involuntary, choate or inchoate (including any agreement to give any of the foregoing, any conditional sale or other title retention agreement).

“Environmental Claim” means any demand order, suit, action or proceeding before any Governmental Authority or arbitral body, or any claim, in each such case, brought or made by a third party, relating in any way to any Environmental Law or Environmental Permit.

“Environmental Laws” means all Applicable Laws pertaining to Hazardous Substances, the environment, human health, safety and natural resources, including, but not limited to, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42 U.S.C. § 9601 et seq.) (“CERCLA”) as amended, the Emergency Planning and Community Right to Know Act (42 U.S.C. §§ 11001 et seq.), the Resource Conservation and Recovery Act of 1976 (42 U.S.C. §§ 6901 et seq.) as amended, the Clean Air Act (42 U.S.C. § 7401 et seq.), the Federal Water Pollution Control Act (also known as the Clean Water Act) (33 U.S.C. §§ 1251 et seq.), Rivers and Harbors Act of 1899, as amended (33 U.S.C. § 403), the Toxic Substances Control Act (15 U.S.C. §§ 2601 et seq.), the Safe Drinking Water Act (42 U.S.C. §§ 300f et seq.), the Endangered Species Act (16 U.S.C. §§ 1531 et seq.), the Migratory Bird Treaty Act (16 U.S.C. §§ 703 et seq.), the Bald and Golden Eagle Protection Act (16 U.S.C. §§ 668 et seq.), the Oil Pollution Act of 1990 (33 U.S.C. §§ 2701 et seq.), the Hazardous Materials Transportation Act (49 U.S.C. §§ 5101 et seq.), the National Environmental Policy Act of 1969 (42 U.S. C. §§4321 to 4370h), the National Historic Preservation Act (16 U.S.C §§ 470 et seq.), Title 14 Code of Federal Regulations Part 77 and 49 U.S.C. §44718, and any similar or analogous state and local statutes or regulations promulgated thereunder and decisional law of any Governmental Authority, as each of the foregoing may be amended or supplemented from time to time in the future, in each case to the extent applicable with respect to the property or operation to which application of the term “Environmental Laws” relates.

“Environmental Permits” means all licenses, approvals, consents, permits and other authorizations or registrations required under all Environmental Laws.

“Equity Capital Contributions” means the capital contributions provided to be made pursuant to Article Two.

“Equity Investors” means Class B Member and the Investor and their respective successors and permitted assigns.

5

“Execution Date” has the meaning provided in the Preamble hereto.

“Execution Date Conditions Precedent” has the meaning set forth in Section 6.1.

“Executive Order 13224” has the meaning set forth in Section 3.27.

“Facility” has the meaning specified in the Preliminary Statements hereto.

“Facility Company” has the meaning specified in the Preliminary Statements hereto.

“Facility Company LLC Agreement” means the Amended and Restated Limited Liability Company Operating Agreement of the Facility Company, substantially in the form attached hereto as Annex 14, to be entered into on the date hereof.

“Facility Costs” means, without duplication, all costs (other than Transaction Expenses) incurred by the Facility Company or the Company in connection with the acquisition, ownership, financing, leasing, occupation, construction, design, equipping, installation, testing, start-up, initial operation, and commissioning of the applicable Facility, all of which shall be included in the Base Case Model, including: (a) all amounts payable to third parties under the Principal Facility Documents, (b) all payments required to be made to the interconnection utility and Governmental Authorities, (c) all out-of-pocket fees and expenses of the Facility Company’s consultants, appraisers and engineers, (d) the interest, fees and expenses owing to the Facility Lender under the Financing Documents, (e) all out-of-pocket fees and expenses of the Facility Company’s counsel and (f) all Prepaid Expenses.

“Facility Entities” means the Company and the Facility Company.

“Facility Lender” means Silicon Valley Bank.

“Facility Purchase Conditions” means, with respect to a Facility, that the Facility has not been Placed in Service (as such term is defined in the MESPSA), at least in part because (a) the System incorporated in such Facility has not been synchronized onto the electric distribution and transmission system of the applicable Transmitting Utility, (b) the critical tests necessary for the proper operation of the System incorporated in such Facility have not been completed, (c) the System has not commenced regular, continuous, daily operation, and (d) the System incorporated in such Facility has generated no revenue.

“Fair Market Value” means, with respect to any Asset, the price at which such Asset would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell, and both having reasonable knowledge of the relevant facts, and specifically with respect to a Facility or any Membership Interest in the Company, as determined consistently with Section 4.05 of Revenue Procedure 2007-65.

“FERC” means the Federal Energy Regulatory Commission.

“Financing Documents” means the Credit Agreement, security agreement, pledge agreement and depositary agreement between the Facility Company and the Facility Lender,

6

substantially in the forms attached hereto as Annex 13, or as otherwise reasonably approved by the Investor, pursuant to which the Facility Lender provides senior secured debt financing to the Facility Company, and any other material agreement entered into in connection therewith.

“Flow of Funds” means, with respect to each Initial Funding Date and each True Up Funding Date, the funding memorandum to be entered into as of such date, setting forth in detail, all sources and uses of funds to be received and paid on such date, including the exact amounts to be paid on such date and the Persons (and the account information related thereto) to whom such amounts are to be paid, which memorandum shall be reasonably satisfactory to the Equity Investors.

“FPA” means the Federal Power Act, as amended, 16 U.S.C. §§ 791a et seq.

“Governmental Approval” means all permits, licenses, approvals and authorizations of any Governmental Authority.

“Governmental Authority” means any national, provincial, regional, municipal or local authority, body, agency, ministry, court, judicial or administrative body, taxing authority, regulatory authority or other governmental organization having jurisdiction or effective control over any of the Parties or any Facility.

“Government Official” has the meaning set forth in Section 4.1(k).

“Guarantor” means Bloom Energy Corporation, a Delaware corporation.

“Guarantor Account” means the account at U.S. Bank, N.A. funded and maintained in accordance with the Guaranty and governed by the Guarantor Account Agreement.

“Guarantor Account Agreement” means that certain Blocked Account Control Agreement, dated as of the date hereof, by and among the Guarantor, the Investor and U.S. Bank National Association, as the “Depositary Bank” thereunder.

“Guaranty” means that certain Amended and Restated Guaranty, dated as of the date hereof, issued by the Guarantor.

“Hazardous Substances” means any hazardous or toxic material, substance or waste, pollutant, contaminant or solid waste as defined under applicable Environmental Laws, including petroleum, petroleum products, asbestos, polychlorinated biphenyls and radioactive materials.

“Independent Engineer” means SAIC Energy, Environment & Infrastructure, LLC.

“Independent Engineer Report” means the report of the Independent Engineer delivered to the Investor on the Execution Date.

“Initial Funding Date” means, with respect to a Tranche, the first Business Day on which the satisfaction or waiver of all of the Initial Funding Date Conditions Precedent for such Tranche occurs.

“Initial Funding Date Conditions Precedent” has the meaning set forth in Section 6.2.

7

“Initial Funding Date Contribution” means, with respect to the Investor, an Investor Initial Funding Date Contribution, and, with respect to the Class B Member, a Class B Member Initial Funding Date Contribution.

“Initial Maintenance Reserve Amount” means an amount equal to $[***] per kW for each System that has been Placed in Service (as such term is defined in the MESPSA).

“Insurance Consultant” means Moore-McNeil, LLC.

“Insurance Report” means a letter from the Insurance Consultant which confirms that the insurance coverages for both the construction and operation periods of the Facility comply with the insurance described in Annex 2.

“Intellectual Property” means any or all of the following and all rights therein, whether arising under the laws of the United States or any other jurisdiction (i) all patents and patent applications (and all reissues, divisions, re-examinations, renewals, extensions, provisionals, continuations and continuations-in-part thereof), patent disclosures and inventions (whether patentable or not); (ii) all trade secrets, know-how and confidential and proprietary information; (iii) all copyrights and copyrightable works (including computer programs) and registrations and applications therefor and any renewals, modifications and extensions thereof; (iv) all moral and economic rights of authors and inventors, however denominated, throughout the world; (v) unregistered and registered design rights and any registrations and applications for registration thereof; (vi) trademarks, service marks, trade names, service names, brand names, trade dress, logos, slogans, corporate names, trade styles, domain names and other source or business identifiers, whether registered or not, together with all applications therefor and all extensions and renewals thereof and all goodwill associated therewith; (vii) semiconductor chip “mask” works, and registrations and applications for registration thereof, (viii) database rights; (ix) all other forms of intellectual property, including waivable or assignable rights of publicity or moral rights; and (x) any similar, corresponding or equivalent rights to any of the foregoing anywhere in the world.

“Interconnection Agreement” has the meaning set forth in the MESPSA.

“Interparty Agreement” means that certain Interparty Agreement, to be entered into as of the Execution Date, among the Facility Company, the Investor and the Facility Lender, substantially in the form attached hereto as Annex 5.

“Investment Documents” means this Agreement, the Guaranty, the Guarantor Account Agreement, the MESPSA, the Company LLC Agreement, the Facility Company LLC Agreement, the ASA and the Interparty Agreement.

“Investor” has the meaning set forth in the Preamble hereto.

“Investor Commitment Amount” means $[***].

“Investor Contribution Amount” [***].

[***] Confidential Treatment Requested

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“Investor Initial Funding Date Contribution” means, for a Tranche, [***] of the Investor Contribution Amount, as determined using the ITC Amount provided in the Cost Allocation (Preliminary).

“Investor Interest” means the Investor’s Membership Interest in the Company having the rights, preferences and designations provided for such interest in the Company LLC Agreement.

“Investor True Up Funding Date Contribution” means, for a Tranche, the excess, if any, of the Investor Contribution Amount, as determined using the ITC Amount provided by the Cost Allocation (Final), minus the Investor Initial Funding Date Contribution.

“IP License” means the Intellectual Property license, titled “INTELLECTUAL PROPERTY LICENSE”, by and between Bloom Energy Corporation and the Facility Company, entered into in connection with the MESPSA, in form and substance acceptable to the Investor.

“IP Security Agreement” means the Intellectual Property Security Agreement, by and between Bloom Energy Corporation and the Facility Company, as referred to in Section 4.5 of the IP License, in form and substance acceptable to the Investor.

“ITC” means an investment tax credit pursuant to Code Sections 38(b)(1), 46 and 48(a).

“ITC Amount” means an amount that is equal to 30% of the Qualified Investment.

“ITC Eligible Property” means property that is described in Code Sections 48(a)(2)(i)(I) and 48(c).

“Knowledge” means (a) as it applies to the Class B Member, the actual knowledge of those individuals listed on Annex 4, or (b) as to any other Person (other than a natural person), the actual knowledge of the officers of such Person having responsibility for and direct involvement in the transactions contemplated by this Agreement and (c) in respect of any Person who is a natural Person, the actual knowledge of such Person.

“LADWP” means the Los Angeles Department of Water and Power.

“LLC Agreements” means, collectively, the Company LLC Agreement and the Facility Company LLC Agreement.

“LREC Agreement” means each Standard Contract for the Purchase and Sale of Connecticut Class I Renewable Energy Credits from Low and Zero Emission Projects, entered into by and between The Connecticut Light and Power Company and the Facility Company (as assignee of BE 2012 A LLC, a Delaware limited liability company (“BE 2012 A”)).

“Material Adverse Effect” means, for any Person, any material adverse effect on the business, earnings, Assets, results of operations or financial condition of such Person taken as a whole or on its ability to perform its obligations under this Agreement, any other Investment Document or any Principal Facility Document.

[***] Confidential Treatment Requested

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“Membership Interest” means, for a limited liability company, the membership interest of a member in such company including, without limitation, its right to a share of the profits, losses, deductions and credits of the company and its right to a distributive share of the Assets of the company in accordance with the provisions of such company’s operating agreement.

“MESPSA” has the meaning set forth in the Preliminary Statements.

“MESPSA Final Invoice” means that certain invoice for one or more Facilities delivered pursuant to Section 2.2(a)(ii) of the MESPSA.

“MESPSA Initial Invoice” means that certain invoice for one or more Facilities delivered pursuant to Section 2.2(a)(i) of the MESPSA.

“MW” means megawatt.

“Necessary Approvals” has the meaning set forth in Section 6.2(e).

“Party” means one of the parties to this Agreement, its successors and permitted assigns.

“Patriot Act” has the meaning set forth in Section 3.27.

“Permitted Encumbrances” means (a) liens, security interests, mortgages, hypothecations, encumbrances or other restrictions on title or property interest that are released or otherwise terminated at or prior to the date of delivery of the encumbered assets to the Site; (b) obligations or duties to any Governmental Authority arising in the ordinary course of business (including under licenses and permits held by the Facility Company and under all applicable laws, rules, regulations and orders of any Governmental Authority); (c) obligations or duties under easements, leases or other property rights; (d) liens in favor of the Facility Lender; (e) liens for taxes not yet due or that are being contested in good faith by appropriate proceedings and for which adequate reserves have been established in accordance with GAAP; (f) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s, employees’, contractors’, operators’ or other similar liens or encumbrances securing the payment of expenses not yet due and payable that were incurred in the ordinary course of business of the Facility Company or for amounts being contested in good faith and by appropriate proceedings; (g) encumbrances created pursuant to the Investment Documents; (h) all other Encumbrances that are incurred in the ordinary course of business of the Facility Company, are not incurred for borrowed money, and do not have a Material Adverse Effect on either the use of any material Assets of the Facility Company or the value of any such Assets; (i) easements, rights-of-way, restrictions, reservations and other similar encumbrances and exceptions to title existing or incurred in the ordinary course of business that, in the aggregate, do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the Facility Company; (j) Encumbrances (including purchase options) created pursuant to the Power Purchase Agreements; (k) trade contracts or other obligations of a like nature incurred in the ordinary course of business of the Facility Company; (l) liens arising out of judgments or awards so long as an appeal or proceeding for review is being prosecuted in good faith and for the payment of which adequate reserves in accordance with GAAP or bonds or other security have been provided or which are fully covered by insurance; (m) liens of record and zoning and other land use restrictions that do

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not impair the value or intended use of a Facility; (n) restrictions on transfer of membership interests provided for in any Investment Document or under any applicable federal, state or foreign securities law and (o) any other liens agreed to in writing by the parties.

“Person” means any individual, partnership, joint venture, company, corporation, limited liability company, limited duration company, limited life company, association, trust or other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.

“Plan” means any “employee benefit plan” as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended.

“Power Purchase Agreement” means collectively (i) that certain Energy System Use Agreement No. 20130430.072.C dated as of May 15, 2013, by and between AT&T PPA Customer 1 and the Facility Company, as amended from time to time, except to the extent assigned to 2012 ESA pursuant to Assignment and Assumption Agreement #1, (ii) that certain Energy System Use Agreement No. 20130430.076.C dated as of May 15, 2013, by and between AT&T PPA Customer 1 and the Facility Company, as amended from time to time, (iii) that certain Energy System Use Agreement No. 20130430.078.C dated as of May 15, 2013, by and between AT&T PPA Customer 2 and the Facility Company, as amended from time to time, except to the extent assigned to 2012 ESA pursuant to Assignment and Assumption Agreement #1, (iv) that certain Energy System Use Agreement No. 20130403.075.C dated as of May 15, 2013, by and between AT&T PPA Customer 1 and 2012 ESA, as amended from time to time, as and to the extent assigned by 2012 ESA to the Facility Company pursuant to Assignment and Assumption Agreement #2 and (v) that certain Energy System Use Agreement No. 20130403.076.C, dated as of May 15, 2013, by and between AT&T PPA Customer 2 and 2012 ESA, as amended from time to time, as assigned by 2012 ESA to the Facility Company pursuant to Assignment and Assumption Agreement #2.

“PPA Customers” means collectively (i) AT&T PPA Customer 1 and (ii) AT&T PPA Customer 2.

“Prepaid Expenses” means, on a True Up Funding Date, $[***]/kW for each Facility that is receiving a True Up Funding Date Contribution, as such amount may be updated pursuant to Section 6.02(t) of the Credit Agreement.

“Principal Facility Documents” means all of the agreements and documents necessary or required to install, operate, maintain, test, repair and/or use the Facilities and described in Annex 3 hereto, including the Power Purchase Agreements, the MESPSA, the Site Leases, each Bill of Sale, the Interconnection Agreements, agreements evidencing the Facility Company’s claim to the state rebates, subsidies or incentives and the interconnection approval or authorization notice from the applicable utility. Reference to any Principal Facility Document shall include all appendices, annexes, exhibits, riders and schedules thereto.

“Prohibited Payment” has the meaning set forth in Section 4.1(k).

“PUHCA” means the Public Utility Holding Company Act of 2005.

[***] Confidential Treatment Requested

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“Qualified Investment” means the cost basis of ITC Eligible Property with respect to a Tranche as determined by the Accountants in the Cost Allocation (Preliminary) or Cost Allocation (Final), as applicable.

“Seller” has the meaning set forth in the Preliminary Statements hereto.

“Site” means the parcel of land leased or licensed from each PPA Customer to the Facility Company under each Site Lease and all easements appurtenant, easement in gross, license agreements and other rights running in favor of Facility Company which provide access to the Facilities.

“Site Leases” means each agreement between Facility Company and a PPA Customer regarding the lease, license, or similar contractual arrangement providing Facility Company with the right of access to, and use of, a Site for the purposes of performing Facility Company’s obligations pursuant to the applicable Power Purchase Agreement. If Facility Company’s right of access to, and use of, a Site is contained within a Power Purchase Agreement, then the term “Site Lease”, with respect to such Site, shall mean the provisions for access to, and use of, that Site contained in such Power Purchase Agreement.

“Subsequent Facility Appraisal” means an update by Marshall & Stevens, or any other nationally recognized third-party appraiser mutually acceptable to the Parties, of an Appraisal.

“System” has the meaning set forth in the Preliminary Statements hereto.

“Tax Information” has the meaning set forth in Section 7.14(b).

“Tax Law Change” means (i) a bill passed by either house of the United States Congress, (ii) a bill reported by the United States House Committee on Ways and Means or United States Senate Committee on Finance, (iii) a bill proposed by any member of either the United States House Committee on Ways and Means or United States Senate Committee on Finance, the Speaker of the House of Representatives, the Senate Majority Leader, or the U.S. Department of the Treasury, (iv) the issuance or amendment of proposed, temporary or final Treasury Regulations, (v) any change in the interpretation of the Code or proposed, temporary or final Treasury Regulations by a controlling decision of the United States Tax Court, United States District Court, United States Court of Appeals or United States Supreme Court or (vi) any guidance, notice, announcement or ruling issued by the Treasury, IRS or any other Governmental Authority, that may reasonably have a material impact on one or more federal income tax assumptions or results within or contemplated by the Base Case Model.

“Tax Return” means any return, report, information return, attachment, declaration, election, claim for refund or other document (including any schedule or related or supporting information) filed or supplied or required to be filed or supplied to any taxing authority with respect to Taxes including amendments thereto.

“Taxes” or “Tax” means all taxes, charges, fees, levies, duties, tariffs, imposts, penalties or other assessments imposed by any Governmental Authority or other taxing authority, including, but not limited to, income, excise, ad valorem, real or personal property, sales, use transfer, capital stock,

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franchise, payroll, withholding, social security, gross receipts, license, stamp, occupation, wage, employment, workers’ compensation or other taxes, including any interest, penalties or additions attributable thereto, that are owed or were paid by the Facility Company or with respect to the Facility Company’s Assets or operations.

“Taxing Authority” means the agency or department of the Governmental Authority responsible for the administration and collection of Taxes.

“Tranche” means one or more Facilities, collectively, for which an Investor Initial Funding Date Contribution or an Investor True Up Funding Date Contribution, applicable, is requested.

“Transaction” has the meaning provided in Section 7.14.

“Transaction Expenses” means (i) filing and recording fees and transfer and mortgage taxes; (ii) the documented, reasonable fees (including legal fees), expenses and disbursements of the Facility Lender, the Company, the Facility Company and the Class B Member; and (iii) the reasonable out-of-pocket expenses and disbursements (including reasonable legal fees and disbursements) incurred by the Investor subsequent to February 6, 2013, in connection with this Agreement, in each case, whether or not assumed and payable by the Class B Member or its Affiliate. For the avoidance of doubt, Transaction Expenses shall not include any Facility Costs.

“Transmitting Utility” means, with respect to a Facility, the local electric utility company in whose territory the Facility is located.

“Treasury” means the United States Department of the Treasury.

“True Up Funding Date” means, with respect to a Tranche, the first Business Day on which the satisfaction or waiver of all of the True Up Funding Date Conditions Precedent for such Tranche occurs.

“True Up Funding Date Conditions Precedent” has the meaning set forth in Section 6.4.

“True Up Funding Date Contribution” means, with respect to the Investor, an Investor True Up Funding Date Contribution, and, with respect to the Class B Member, a Class B Member True Up Date Funding Contribution.

“True Up Funding Date Deadline” means the earliest to occur of (a) an “Event of Default” as defined in the Financing Documents, (b) a material breach by Seller under the MESPSA, and (c) March 31, 2014.

“United States Person” means a “United States person” as defined in Code Section 7701(a)(30).

1.2 Rules of Interpretation.

In this Agreement:

(a) The singular shall include the plural and the masculine shall include the feminine and neuter as the context requires.

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(b) References to “Articles,” “Sections,” or “Annexes” shall be to articles, sections or annexes of this Agreement.

(c) Unless otherwise expressly specified, any agreement, contract or document defined or referred to herein (including in any exhibit, schedule or annex hereto) shall mean such agreement, contract or document as the same may be amended, amended and restated, supplemented or otherwise modified from time to time in accordance with this Agreement and (once executed and delivered by the signatories thereto) the LLC Agreements, as applicable.

(d) References to “days” shall mean calendar days, unless otherwise indicated.

(e) The words “herein,” “hereof” and “hereunder” shall refer to this Agreement as a whole and not to any particular section or subsection of this Agreement; the words “include,” “includes” or “including” shall mean “including, but not limited to.”

ARTICLE TWO

EQUITY CAPITAL CONTRIBUTIONS

2.1 Execution Date. Subject to the satisfaction of, or waiver by the Investor and the Class B Member, as applicable, of the Execution Date Conditions Precedent on the Execution Date each of the Investor and the Class B Member shall execute and deliver this Agreement. For the avoidance of doubt, neither the Investor nor the Class B Member shall be required to make any capital contributions pursuant to clauses (a) and (b) of Section 2.2 on the Execution Date.

2.2 Initial Contributions. Subject to the satisfaction of, or waiver by the Investor and the Class B Member, as applicable, of the Initial Funding Date Conditions Precedent for a Tranche on each Initial Funding Date; provided, that the transactions contemplated by clause (c) shall be applicable only on the first Initial Funding Date:

(a) The Investor shall contribute to the Company the Investor Initial Funding Date Contribution and, in the Investor’s sole discretion, shall pay (or have already paid) certain Transaction Expenses of the Company;

(b) the Class B Member shall contribute (or shall have already contributed) an amount equal to the aggregate amount of all Facility Costs for the applicable Tranche expected to be due and payable as of the Initial Funding Date less the Investor Initial Funding Date Contribution for such Tranche (the “Class B Member Initial Funding Date Contribution”); and

(c) each of the Investor and the Class B Member agree to execute and deliver the Company LLC Agreement and, simultaneously with the making of the capital contributions pursuant to clauses (a) and (b) of this Section 2.2, the Company shall, and the Class B Member shall cause the Company to, issue Class A Units to the Investor and issue Class B Units to the Class B Member, in each case in accordance with the terms of the Company LLC Agreement.

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2.3 Use of Initial Funding Date Proceeds. On each Initial Funding Date, the Investor Initial Funding Date Contribution and the Class B Member Initial Funding Date Contribution for the relevant Tranche shall be wired to such Persons and the proceeds applied as follows (as provided for in greater detail in the Flow of Funds):

(a) First, to pay, for the benefit of the Facility Company, any MESPSA Initial Invoice submitted on or prior to such date and any other applicable Facility Costs that are payable on such date for the relevant Tranche;

(b) Second, to pay Transaction Expenses that are payable on such date; and

(c) Third, any balance to the Account.

2.4 Use of Account Following the True Up Funding Date Deadline. If the satisfaction of, or waiver by, the Investor and the Class B Member, as applicable, of the True Up Funding Date Conditions Precedent for a relevant Tranche do not occur on or before the True Up Funding Date Deadline, all funds in the Account shall be wired to such Persons and the proceeds applied as follows:

(a) First, without written direction of or any other discretion of the Class A Member, to pay, for the benefit of the Facility Company, the balance, if any, of any MESPSA Initial Invoice that is due and payable on such date for the relevant Tranche;

(b) Second, at the written direction of the Class A Member and in its sole discretion, to pay, for the benefit of the Facility Company, any MESPSA Final Invoice and any other applicable Facility Costs that are due and payable on such date for the relevant Tranche and any Transaction Expenses that are due and payable on such date (provided, that for the avoidance of doubt, the Class A Member may determine not to give any such direction);

(c) Third, if the Class A Member acknowledges and agrees in writing that no amount is due and payable by the Facility Company under any MESPSA Initial Invoice, MESPSA Final Invoice and/or otherwise under the MESPSA or for other applicable Facility Costs for the relevant Tranche and no Transaction Expenses are due and payable on such date, or that the full amount due and payable by the Facility Company under any MESPSA Initial Invoice, MESPSA Final Invoice and/or otherwise under the MESPSA and for other applicable Facility Costs for the relevant Tranche and the full amount of Transaction Costs due and payable have been paid, then any balance shall be distributed solely to the Class B Member; and

(d) Fourth, if the Class A Member does not acknowledge and agree in writing either that no amount is due and payable under any MESPSA Initial Invoice, MESPSA Final Invoice and/or otherwise under the MESPSA from the Facility Company or for other applicable Facility Costs for the relevant Tranche, or that the full amount due and payable under any MESPSA Initial Invoice, MESPSA Final Invoice and/or otherwise under the MESPSA from the Facility Company for the relevant Tranche has been paid then any balance shall remain in the Account to be distributed or paid as provided in the Company LLC Agreement.

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2.5 True Up Date Contributions. Subject to the satisfaction of, or waiver by the Investor and the Class B Member, as applicable, of the True Up Funding Date Conditions Precedent for a Tranche on each True Up Funding Date:

(a) The Investor shall contribute to the Company the Investor True Up Date Funding Contribution and, in the Investor’s sole discretion, shall pay (or have already paid) certain Transaction Expenses of the Company; and

(b) The Class B Member shall contribute (or shall have already contributed) an amount equal to the aggregate amount of all Facility Costs for the applicable Tranche expected to be due and payable as of or after the True Up Funding Date (including the Initial Maintenance Reserve Amount with respect to each System in such Tranche), less the Investor True Up Date Funding Contribution, and, to the extent applicable, less the proceeds of any loan made (or to be made on such True Up Funding Date) pursuant to the Financing Documents applicable to such Tranche (the “Class B Member True Up Date Funding Contribution”).

2.6 Use of True Up Funding Date Proceeds and Account on True Up Funding Date. On each True Up Funding Date, the Investor True Up Funding Date Contribution and the Class B Member True Up Date Funding Contribution and all funds in the Account for the relevant Tranche shall be wired to such Persons and the proceeds applied as follows (as provided for in greater detail in the Flow of Funds):

(a) First, to pay, for the benefit of the Facility Company, the balance, if any, of the MESPSA Initial Invoice, the MESPSA Final Invoice and any other applicable Facility Costs that are payable on such date for the relevant Tranche;

(b) Second, to fund in full (i) for the benefit of the Facility Company, any reserves required by the Financing Documents and (ii) the Initial Maintenance Reserve Amount to be deposited into the Maintenance Reserve Account (as defined in the Company LLC Agreement);

(c) Third, to pay Transaction Expenses that are payable on such date;

(d) Fourth, an amount equal to the Pre-paid Expenses for the applicable Tranche shall be contributed by the Company to the Facility Company’s “Revenue Account” (as such term is defined in the Financing Documents); and

(e) Fifth, any balance shall be distributed solely to the Class B Member and will be treated as a distribution under the “pre-formation expense” safe harbor in Treasury Regulation 1.707-4(d).

2.7 Limits on Investor Funding. Notwithstanding anything contained herein to the contrary, (a) the aggregate amount paid as the Investor Initial Funding Date Contributions and the Investor True Up Funding Date Contributions shall not exceed the Investor Commitment Amount, (b) the Investor shall not be required to make more than one Investor Initial Funding Date Contribution per each thirty (30) day period and (c) the Investor shall not be required to make more than one Investor True Up Funding Date Contribution per each thirty (30) day period.

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2.8 Final List of Facilities. No later than the True Up Funding Date Deadline: (i) the Facility Company shall use commercially reasonable efforts to amend or otherwise modify Exhibit A (“PREMISES LIST, DESCRIPTION AND APPLICABLE LOCAL UTILITY”) to each Power Purchase Agreement to list all Sites applicable to such Power Purchase Agreement that have been funded by an Investor Initial Funding Date Contribution and/or an Investor True Up Funding Date Contribution, and no other Sites or Facilities; and (ii) the Class B Member shall provide to the Investor an update to Annex 1-A (List of Proposed Facilities and Locations), which lists all Facilities that have been funded by an Investor Initial Funding Date Contribution and/or an Investor True Up Funding Date Contribution, and no other Sites or Facilities.

ARTICLE THREE

REPRESENTATIONS AND WARRANTIES REGARDING THE FACILITY ENTITIES AND EACH FACILITY

The Class B Member represents and warrants to the Investor as follows on each Initial Funding Date and each True Up Funding Date; provided, that any representations and warranties that expressly apply to an Initial Funding Date or a True Up Funding Date shall be made solely as of such Initial Funding Date or True Up Funding Date, as applicable:

3.1 Organization and Good Standing. Each Facility Entity is a limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, with full limited liability company power and authority to carry on its business as such business is now conducted and as proposed to be conducted in the Investment Documents and Principal Facility Documents. The Class B Member has previously delivered to the Investor true, correct and complete copies of the Facility Company’s organizational documents, with all amendments thereto, in effect as of the date thereof, and, except as otherwise delivered to the Investor, there have been no changes, amendments, modification or terminations of such organizational documents as of the Initial Funding Date or True Up Funding Date, as applicable.

3.2 Authorization, Execution and Enforceability. Each Facility Entity has full limited liability company power and authority to execute and deliver each Investment Document and each Principal Facility Document to which it is a party and to consummate the transactions contemplated thereunder. The execution and delivery by each Facility Entity of each Investment Document and Principal Facility Document to which it is a party and the consummation by such Facility Entity of the transactions contemplated thereunder, have been duly authorized by all necessary limited liability company action required on the part of such Facility Entity. Each Investment Document and Principal Facility Document to which such Facility Entity is a party has been duly executed and delivered by such Facility Entity. Each Investment Document and Principal Facility Document to which such Facility Entity is a party constitutes the valid and binding obligation of such Facility Entity, enforceable against such Facility Entity in accordance with its terms, except as such enforcement may be limited by (i) bankruptcy, insolvency or similar laws affecting creditors’ rights generally or (ii) general principles of equity, whether considered in a proceeding in equity or at law.

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3.3 No Violation. The execution, delivery and performance by each Facility Entity of this Agreement and each Investment Document and Principal Facility Document to which it is a party and the consummation of the transactions contemplated hereunder and thereunder, do not and will not: (a) violate or conflict with any provision of the certificates of formation or operating agreement of such Facility Entity; (b) violate any provision or requirement of Applicable Law applicable to such Facility Entity to the extent that such violation could be reasonably expected to result in a Material Adverse Effect; (c) violate in any material respect, result in a material breach of, constitute (with due notice or lapse of time or both) a material default or cause any material penalty or right of termination to arise or accrue under, any Investment Document or Principal Facility Document to which such Facility Entity is a party; (d) result in the breach of, or constitute a default under, any indenture, mortgage, deed of trust, lease or sublease agreement to which any Facility Entity is bound; (e) violate any judgment, decree or order of any court or arbiter to which any Facility Entity is a party or by which any Facility Entity is bound; or (f) result in the creation or imposition of any Encumbrance on the Assets of any Facility Entity other than Permitted Encumbrances upon any of the Assets of such Facility Entity.

3.4 Subsidiaries; Non-Related Liabilities. The Company directly owns 100% of the Membership Interests in the Facility Company free and clear of all Encumbrances other than Permitted Encumbrances of the type described in clauses (d) and (n) of such term’s definition. The Company has no, and has never had, any Assets or any liabilities which do not arise from or otherwise relate to the ownership or operation of the Facility Company or the ownership or operation of the Facilities. The Facility Company has no, and has never had, any Assets or any liabilities that do not arise from or otherwise relate to the ownership or operation of the Facilities. The Facility Company has no, and has never had any, subsidiaries.

3.5 Members of the Company; Additional Membership Interests. Immediately prior to the execution and delivery of this Agreement and the Company LLC Agreement, the Class B Member is the sole member of the Company and there have never been any other members or owners of the Company. Upon execution and delivery of the Company LLC Agreement, the Class B Member and the Investor shall hold the respective membership interests in the Company as set forth in the Company LLC Agreement and said interests shall constitute the entire membership interests in the Company. Other than as set forth in this Agreement, the Financing Documents, the Power Purchase Agreements and the Company LLC Agreement, none of the Facility Entities or the Class B Member have any contract, arrangement or commitment to issue or sell any of its membership interests or any interest in the Company, the Facility Company or the Facilities or any securities or obligations convertible into or exchangeable for, or giving any Person any right to acquire from it, any of its membership interests or any interest in the Company, the Facility Company or the Facilities, and no such securities or obligations are issued or outstanding other than as contemplated by this Agreement or the Company LLC Agreement. Upon the execution and delivery of the Company LLC Agreement and payment to the Company of the Investor’s Initial Funding Date Contribution on the first Initial Funding Date, the Class A Units will be validly issued and duly authorized and the Investor will have good title to the Class A Units free and clear of all Encumbrances, other than Permitted Encumbrances of the type described in clause (n) of such term’s definition.

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3.6 Warranty of Title; Personal Property. The Facility Company is the sole owner of each of the Facilities that has been delivered to a Site and the Facility Company has good and valid title to all of the Facility Company’s Assets free and clear of all Encumbrances except Permitted Encumbrances. All of the Bloom Systems (as defined in the MESPSA) located in the State of California are considered personal property and not real property under the laws of the State of California. All of the Bloom Systems (as defined in the MESPSA) located in the State of Connecticut are considered personal property and not real property under the laws of the State of Connecticut.

3.7 Facilities; Governmental Approvals. As of the date this representation is made or confirmed, the Facility Company owns (or holds enforceable leasehold rights or easements to) all properties necessary for the construction, installation, operation and maintenance of the Facilities and has obtained all Governmental Approvals, and holds a license with respect to all intellectual property rights, required as of such date to own any installed Facilities and operate and sell electric power from any operating Facilities in compliance with Applicable Law, and to execute and deliver, and perform obligations as of such date under, the Investment Documents and all Principal Facility Documents to which the Facility Company is a party. Each of the Governmental Approvals obtained as of such date is validly issued, final and in full force and effect and is not subject to any current legal proceeding or to any unsatisfied condition which is reasonably likely to have a Material Adverse Effect on the Facility Company and if there is a specific period for administrative or judicial appeals of such permits, all such appeal periods have expired. The Facility Company is in compliance in all material respects with all applicable Governmental Approvals and no Facility Entity has received written notice from a Governmental Authority of an actual or potential violation of any such Governmental Approval that could reasonably be expected to have a Material Adverse Effect on the Facility Company.

3.8 Employees. None of the Facility Entities has, or has had since the date of its creation, any employees or any applicable Plan.

3.9 Brokers. No broker, finder, investment banker, or other Person is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated hereunder, based upon arrangements made by or on behalf of any Facility Entity for which any Facility Entity or the Investor will be responsible.

3.10 Consents and Approvals. Except as set forth on Annex 6, each Facility Entity has received all third party consents which are required as of such date for the consummation and performance of the transactions contemplated hereunder by such Facility Entity.

3.11 Compliance with Applicable Law. Each of the Facility Entities, the business and operations of the Facility Entities and, with respect to the Facility Company, the development and construction of the Facilities are and have been, conducted in all respects in compliance with all Applicable Law (except that this representation does not apply to Environmental Laws, which are addressed in Section 3.15, and Taxes, which are addressed in Section 3.23), except to the extent such non-compliance could not reasonably be expected to result in a Material Adverse Effect.

3.12 Litigation. There is no action, suit, claim, investigation or proceeding (including, but not limited to, any arbitration proceeding) of any nature pending or, to the Knowledge of the Class B Member, threatened in writing against any Facility Entity involving, affecting or relating to the transactions contemplated hereunder or any Facility Entity’s ability to complete the

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transactions contemplated hereunder, or involving the ownership or operation of any Facility, at law or in equity, or before or by any Governmental Authority or arbitral body that in each such case, could be reasonably expected to result in a Material Adverse Effect. No Facility Entity is subject to any order, writ, judgment, award, injunction or decree of any Governmental Authority or arbitral body involving, affecting or relating to the transactions contemplated hereunder or its ability to complete the transactions contemplated hereunder that could be reasonably expected to result in a Material Adverse Effect.

3.13 Contracts. Annex 3 lists each material written contract or agreement (other than Governmental Approvals) to which each Facility Entity is a party. The Facility Company is a party to all contracts that are necessary for it to be a party to as of such date for the ownership, installation, financing and operation of the Facilities. Each contract identified on Annex 3 is in full force and effect and constitutes a valid and binding obligation of the applicable Facility Entity, enforceable against such Facility Entity in accordance with its terms, except as such enforceability may be limited by (i) bankruptcy, insolvency or similar laws affecting creditors’ rights generally or (ii) general principles of equity, whether considered in a proceeding in equity or at law. There are no material disputes or legal proceedings between any Facility Entity and any counterparty to any Principal Facility Document. No Facility Entity (x) owes any indemnity payment to any counterparty to any Principal Facility Document that could be reasonably expected to result in a Material Adverse Effect and (y) has any Knowledge of any event, act, circumstance or condition which constitutes, or, with the passage of time could reasonably be expected to constitute, an event of force majeure under any Principal Facility Document. The consummation of the transactions contemplated by the Investment Documents would not give any party to any Principal Facility Document the right to terminate or alter the terms of such contract or a right to claim damages thereunder.

3.14 Default. None of the Facility Entities nor, to the Knowledge of the Class B Member, any of the other parties to the Principal Facility Documents in effect with respect to the Facilities, is in default under, nor has any event occurred and is continuing which, with notice or the lapse of time or both, would result in a default under, any of such Principal Facility Documents or Governmental Approvals, whether caused by a Facility Entity or any other party to any of the Principal Facility Documents or any Governmental Approval, which, in each such case, could be reasonably expected to result in a Material Adverse Effect.

3.15 Environmental Matters.

(a) The Facility Company has not failed to perform or suffered any act which could give rise to, or has otherwise incurred, liability to any person (governmental or not) under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq., or any other Environmental Laws, nor has it received notice of any such liability or any claim therefor, which, in each such case, could be reasonably expected to result in a Material Adverse Effect.

(b) To the Knowledge of Class B Member, there are no existing conditions at any Facility that, individually or collectively, could be reasonably expected to give rise to any liability of the Investor, Company or the Facility Company under any applicable Environmental Law or any applicable standard of conduct under any common law doctrine, including negligence, nuisance or trespass, personal injury or property damage related to or arising out of the presence, Release or exposure to Hazardous Substances, which, in each such case, could be reasonably expected to result in a Material Adverse Effect.

(c) To the Knowledge of Class B Member, there are no existing facts or circumstances that, individually or collectively, could reasonably be expected to result in the revocation of the Environmental Permits, if any, or an order prohibiting, terminating or modifying any Facility’s operations, which, in each such case, could be reasonably expected to have a Material Adverse Effect.

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3.16 Equipment and Facilities. The Facility Company owns or leases or, prior to the Initial Funding Date for a Facility, will acquire ownership of or a leasehold interest in or a contractual right to use, all equipment and facilities (other than the applicable System itself and the relevant BOF) necessary for the operation and maintenance of such Facility. There is no Casualty Defect (regardless of whether covered by insurance) in existence with respect to such Facility.

3.17 Real Property. The real property described in the Site Leases is all the real property that is necessary for the construction, installation, operation and maintenance of the Facilities other than those real property interests that can be reasonably expected to be available on commercially reasonable terms as and to the extent required. To the Knowledge of the Class B Member, none of the real property on which the Facilities will be located is subject to any condemnation proceedings, lawsuits, or administrative actions that could be reasonably expected to have a Material Adverse Effect on the transactions contemplated by the Investment Documents and the Principal Facility Documents.

3.18 PUHCA and FPA Status. The Company has received a waiver of the FERC’s regulations under PUHCA regarding accounting, record-retention and reporting requirements of 18 C.F.R. § 366.21 pursuant to the notification procedures in 18 C.F.R. § 366.4(c), as a holding company solely with respect to a single-state holding company system deriving no more than 13 percent of its public-utility company revenues from outside a single state. The Facility Company is not, and following the time that one or more Facilities commences the generation of electric energy for sale will not be, a “public utility” within the meaning of Section 201(e) of the FPA.

3.19 Affiliate Transactions. Except as listed on Annex 3 and Annex 11, there are no existing contracts between any Facility Entity, on the one hand, and any affiliate of the Class B Member, on the other hand. Each contract, arrangement or agreement between the Class B Member or its Affiliates and the Facility Company or the Company, is on arms’ length terms and conditions, and any compensation provided in such contract, arrangement or agreement is reasonable in relation to the value of the services provided.

3.20 Information. All of the factual information or representations, taken as a whole, furnished in writing by or on behalf of the Facility Entities, the Class B Member or any of their respective Affiliates to the Investor or any of its respective Affiliates, the Independent Engineer, the Accountants or any of the respective consultants of each of the foregoing with respect to any Facility Entity, the Class B Member or any Facility (including the factual information furnished by the Class B Member or any of its Affiliates to the Independent Engineer for the purposes of the Independent Engineer’s certification in connection with the achievement of Commencement of Operations (as such term is defined in the MESPSA) with respect to the applicable Facility, and the factual information included within the Base Case Model) (excluding, for the avoidance of doubt, information regarding

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the identity of the Investor), taken as a whole, was accurate and complete (or, where appropriate, estimated in good faith) in all material respects when furnished and none of such information supplied as of the Initial Funding Date (or, in the case of any such information supplied subsequent to the Initial Funding Date, as of the date such information was supplied), taken as a whole, contained an untrue statement of a material fact or omitted to state any material fact which was necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided that no representation or warranty is made with regard to projections or other forward-looking statements provided by or on behalf of the Facility Entities, the Class B Member or any of their respective Affiliates (including the Base Case Model and the assumptions therein) except that, to the Class B Member’s Knowledge, the assumptions in the Base Case Model (other than as to energy production) are reasonable in all material respects.

3.21 Insurance. Insurance policies maintained by the Facility Entities and for the Facilities meet the requirements of Annex 2 and such insurance policies are in full force and effect.

3.22 State Regulation. The Facility Company will not be subject to regulation as a “public utility” or an “electrical corporation” as such terms are defined, respectively, in sections 216 and 218 of the California Public Utilities Code. The Facility Company will not be subject to regulation as a “public service company” or an “electric company” as such terms are defined, respectively, in section 16-1 of the Connecticut General Statutes.

3.23 Taxes. None of the Facility Entities is a corporation or has ever been a corporation. None of the Facility Entities, the Class B Member or any Affiliate thereof has filed Internal Revenue Service Form 8832 (or any alternative or successor form) to elect to have, or taken any other action which would result in, any Facility Entity being classified as a corporation for federal income tax purposes under Treasury Regulation Section 301.7701-3. All Tax Returns that were required to be filed have been timely and properly filed. All Tax Returns were true, correct and complete in all material respects as they refer to any Facility Entity or the operations or Assets or any Facility Entity. All Taxes (whether or not shown on any Tax Return) attributable to the operations or Assets of any Facility Entity, or for which the Facility Entity may be liable, that are due and payable have been timely and properly paid. Except as disclosed in Annex 12, no Facility Entity has any Taxes which are currently due and payable. No Facility Entity has requested or had requested on its behalf or agreed to any extensions of time within which to file any waivers or comparable consents of the statute of limitation with respect to Taxes and is not currently the subject of any audit or other examination or other administrative or court proceeding with respect to Taxes and none have been threatened in writing. No Facility Entity has received any notice or inquiry from any jurisdiction where Tax Returns have not been filed that Tax Returns may be required. No Facility Entity has any powers of attorney relating to Taxes in effect. No Facility Entity has or has had any tax sharing agreement in effect respect to Taxes.

3.24 Tax Representations.

(a) No Facility Entity has leased any part of any Facility to a Disqualified Person or has taken any other action that results in any Facility becoming “tax-exempt use property” within the meaning of Code Section 168(h).

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(b) Each System is a fuel cell power plant that generates at least 0.5 kilowatts of electricity using an electrochemical process and has an electricity-only generation efficiency greater than 30 percent. Each System will function independently of each other Systems to generate electricity for transmission and sale to a PPA Customer and has all the necessary components to convert a fuel into electricity using electrochemical means.

(c) As of the Initial Funding Date, no federal, state, or local tax credit (including the ITC) has been claimed with respect to any property that is part of the applicable Tranche. As of the True Up Funding Date, no federal, state, or local tax credit, except for the ITC, has been claimed with respect to any property that is part of the applicable Tranche. No application has been submitted, nor will be submitted, for a grant provided under Section 1603 of the American Recovery and Reinvestment Tax Act of 2009, as amended by the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010, with respect to any property that is part of any Facility.

(d) No private letter ruling has been, nor will be, obtained for the transactions contemplated hereunder from the IRS.

(e) No System or BOF that is part of a Facility will be originally placed in service by the Facility Company or the Company within the meaning of Section 48(b)(2) and (3) of the Code (as in effect on the day before the date of the enactment of the Revenue Reconciliation Act of 1990) before the Initial Funding Date with respect to such Facility. As of the True Up Funding Date, no improvements, modifications or additions (other than ancillary items of equipment of a kind customarily selected and furnished by lessees or owners of property substantially similar to the Facilities) will be required in order to render the applicable Tranche complete for its intended use.

(f) No Facility is comprised of any property that (i) is “used predominately outside of the United States” within the meaning of Code Section 168(g), (ii) is imported property of the kind described in Code Section 168(g)(6), (iii) is “tax-exempt use property” within the meaning of Code Section 168(h), or (iv) is not eligible for an ITC pursuant to Code Section 50(b).

(g) Each Facility consists of property, materials or parts not used by any person prior to being placed in service as part of the Facility.

(h) The Qualified Investment as set forth on the Cost Allocation (Final) is ITC Eligible Property for federal income tax purposes.

(i) No portion of the real property comprising the site of the Facility is enrolled in the U.S. Department of Agriculture’s Conservation Reserve Program.

(j) No portion of the basis of the Facility is attributable to “qualified rehabilitation expenditures” within the meaning of Section 47(c)(2)(A) of the Code.

(k) No grants have been provided by the United States, a state, a political subdivision of a state, or any other Governmental Authority for use in constructing or financing any Facility or with respect to which the Class B Member, the Company, the Facility Company, or

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any Facility is the beneficiary. No proceeds of any issue of state or local government obligations have been used to provide financing for any Facility the interest on which is exempt from tax under Code Section 103. No subsidized energy financing (within the meaning of Code Section 45(b)(3)) has been provided, directly or indirectly, under a federal, state, or local program provided in connection with any Facility.

(l) No taxes, fees or other charges imposed by the State of California, the State of Connecticut or of any county, municipal or other local government therein are payable by any of Class B Member, the Company or the Facility Company solely as a result of the execution and delivery of the Principal Facility Documents and Investment Documents to which it is a party and all other instruments delivered in connection with the transactions contemplated thereby, or as a result of performance under any Principal Facility Documents and Investment Documents to which it is a party, in each case except for such taxes, fees and other charges which have been properly accounted for in the Base Case Model.

(m) The Company’s rates for the furnishing or sale of electrical energy from the Facilities have not been established or approved on a rate of return basis, that is, pursuant to an authorization by a regulatory body permitting the Company to collect revenues that cover the Company’s cost of providing goods or services, including a fair return on the Company’s investment in providing such goods or services, where the Company’s costs and investment are determined by use of a uniform system of accounts prescribed by the regulatory body.

(n) No Power Purchase Agreement for which the Facility is within the service territory of LADWP imposes any greater financial burden as a result of Facility non-performance upon the applicable PPA Customer than is imposed for any Facility outside such LADWP service territory.

3.25 Bankruptcy. No event of Bankruptcy has occurred with respect to any Facility Entity.

3.26 Books and Records. The minute book and membership interest register of the Facility Company is a complete and true copy thereof and has been provided to the Company. All other books, accounts, ledgers and files of the Facility Company are complete in all material respects and have been maintained in accordance with good business practices.

3.27 Executive Order 13224 and the Patriot Act. None of the Bloom Entities or any person or entity that holds any direct or indirect interest in the Facility Company, Company, the Class B Member, or any Facility (other than the Investor or any Affiliate thereof), or is in any way affiliated with or will benefit from any of the above, (i) is described in, covered by, or specially designated pursuant to or affiliated with any person or entity described in, covered by, or specially designated pursuant to “Executive Order 13224 Blocking Terrorist Property and a Summary of the Terrorism Sanctions Regulations (Title 31, Part 595 of the U.S. Code of Federal Regulations), Terrorism List Governments Sanctions Regulations (Title 31, Part 596 of the U.S. Code of Federal Regulations), and Foreign Terrorist Organizations Sanctions Regulations (Title 31, Part 597 of U.S. Code of Federal Regulations)” (“Executive Order 13224”), or any other list or designation promulgated by the United States of America or any department or agency thereof of persons or entities transactions with which are blocked or prohibited by any statute, regulation or governmental order and (ii) is, or is reasonably

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likely to become, a person or entity with which any individual or entity is restricted from doing business under the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56, as amended from time to time (the “Patriot Act”) or Executive Order 13224, and any regulations promulgated pursuant thereto.

3.28 Facility Costs. As of an Initial Funding Date, each MESPSA Initial Invoice delivered as of such date for the applicable Tranche is true, correct and complete, and the Facility Company will have paid, or caused to be paid or otherwise provided for to the reasonable satisfaction of the Investor, such MESPSA Initial Invoice and any other applicable Facility Costs, other than those costs or expenses that are to be paid pursuant to Section 2.6. As of a True Up Funding Date, each MESPSA Final Invoice delivered as of such date for the applicable Tranche is true, correct and complete, and the Facility Company will have paid, or caused to be paid or otherwise provided for to the reasonable satisfaction of the Investor, the corresponding MESPSA Initial Invoice, such MESPSA Final Invoice and any other applicable Facility Costs.

3.29 Commercial Completion. As of a True Up Funding Date, each Facility in the applicable Tranche has achieved Commercial Completion, and, as of the Initial Funding Date for such Facility, the Facility Purchase Conditions were true and correct for such Facility.

3.30 Financial Statements. Each of the balance sheets of the Facility Company delivered pursuant to Sections 6.1(k) and 6.2(n) presents fairly in all material respects the financial position of the Facility Company as of the date of such balance sheet.

ARTICLE FOUR

REPRESENTATIONS AND WARRANTIES OF CLASS B MEMBER

4.1 Representations and Warranties Regarding the Class B Member. The Class B Member represents and warrants to the Investor as follows on each Initial Funding Date and each True Up Funding Date:

(a) Organization and Good Standing. The Class B Member is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware, with full limited liability company power and authority to carry on its business as such business is now conducted and as proposed to be conducted in the Investment Documents and Principal Facility Documents.

(b) Authorization, Execution and Enforceability. The Class B Member has full limited liability company power and authority to execute and deliver this Agreement and each other Investment Document to which it is a party and to consummate the transactions contemplated hereunder and thereunder. The execution and delivery by it of this Agreement and each other Investment Document to which it is a party and the consummation by it of the transactions contemplated hereunder and thereunder, have been duly authorized by all necessary limited liability company action required on its part. This Agreement and each other Investment Document to which it is a party has been duly executed and delivered by it. This Agreement constitutes the valid and binding obligation of it, enforceable against it in accordance with its respective terms, except as such enforcement may be limited by (i) bankruptcy, insolvency or similar laws affecting creditors’ rights generally or (ii) general principles of equity, whether considered in a proceeding in equity or at law.

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(c) No Violation. The execution, delivery and performance of this Agreement and each other Investment Document to which the Class B Member is a party, the consummation of the transactions contemplated hereunder and thereunder do not or will not materially: (a) violate or conflict with any provision of its certificate of formation or operating agreement; (b) violate any provision or requirement of any Applicable Law applicable to the Class B Member to the extent that such violation could be reasonably expected to result in a Material Adverse Effect; (c) violate in any material respect, result in a material breach of, constitute (with due notice or lapse of time or both) a material default or cause any material penalty or right of termination to arise or accrue under, any Principal Facility Document; or (d) result in the creation or imposition of any Encumbrance on its Assets other than a Permitted Encumbrance.

(d) Brokers. No broker, finder, investment banker or other Person is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated hereunder, based upon arrangements made by or on behalf of the Class B Member for which any Facility Entity or the Investor will be responsible.

(e) Consents and Approvals. Except as set forth on Annex 6, the Class B Member has received all third party consents which are required as of such date for the consummation and performance of the transactions contemplated hereunder by the Class B Member.

(f) Litigation. There is no claim, action, suit, investigation or proceeding (including, but not limited to, any arbitration proceeding) of any nature, at law or in equity, pending or, to the Knowledge of the Class B Member, threatened by or against the Class B Member, the Class B Member’s directors, officers, employees, agents, any of the Class B Member’s Affiliates involving, affecting or relating to the transactions contemplated hereunder or the Class B Member’s ability to consummate the transactions contemplated hereunder or involving the ownership or operation of the Facilities, at law or at equity, or before or by any Governmental Authority or arbitral body, in each case, which could be reasonably expected to have a Material Adverse Effect. The Class B Member is not subject to any order, writ, judgment, award, injunction or decree of any Governmental Authority or arbitral body involving, affecting or relating to the transactions contemplated hereunder or the Class B Member’s ability to consummate the transactions contemplated hereunder which could be reasonably expected to have a Material Adverse Effect.

(g) United States Person. The Class B Member is a United States person not subject to withholding under Section 1446 of the Code.

(h) Disqualified Person. The Class B Member is not a Disqualified Person.

(i) Ownership. The Class B Member directly owns, and will continue to directly own until the first Investor Initial Funding Date Contribution, 100% of the Membership Interests in the Company, free and clear of all Encumbrances other than Permitted Encumbrances.

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(j) No Options. Except as set forth herein and in the other Investment Documents and Financing Documents, there are no outstanding options, warrants or other rights (including conversion or preemptive rights, preferential rights to purchase and rights of first refusal) obligating the Class B Member to transfer any rights, interests or properties to any party relating to any applicable Facility Entity or any Facility.

(k) Compliance with Law. The Class B Member, in respect of itself, warrants that in performing its obligations pursuant to this Agreement and the other Investment Documents to which it is a party, that the Class B Member, its officers, directors, employees and agents have not and will not, directly or indirectly, offer, give, make, promise, pay or authorize the offering, giving, making, promising or payment of any Prohibited Payment (as defined below) to any officer or employee of any government, or any department, agency or instrumentality thereof, any public international organization, any person acting in an official capacity on behalf of such government, any candidate for or appointee to a political or government office, or any political party (each a “Government Official”). As used herein the term “Prohibited Payment” means any offer, gift, payment, promise to pay, or authorization of the payment of any money or anything of value, directly or indirectly, to a Government Official, including for the use or benefit of any other person or entity, to the extent that one knows or has reasonable grounds for believing that all or a portion of the money or thing of value which was given or is to be given to such other person or entity, will be paid, offered, promised or given or authorized to be paid by such other person or entity, directly or indirectly, to a Government Official, for the purpose of either (i) influencing any act or decision of the Government Official in his official capacity; (ii) inducing the Government Official to do or omit to do any act in violation of his lawful duty; (iii) securing any improper advantage; or (iv) inducing the Government Official to use his influence with such government or instrumentality thereof to affect or influence any act or decision of such government or instrumentality, in order to assist in obtaining or retaining business or in directing business to any party. The Class B Member further affirms that it shall promptly report to the other parties hereto any Prohibited Payment of which it obtains knowledge with respect to the services performed under this Agreement.

(l) The Class B Member Investment Intent; Unregistered Securities. The Membership Interest in the Company to be held by the Class B Member will be acquired for investment for the Class B Member’s own account, not with a view to the distribution of any part thereof and, without in any way affecting the Class B Member’s right to dispose of such Membership Interests, as permitted by the Company LLC Agreement; the Class B Member has no present intention of selling, granting any participation in, or otherwise distributing the same; the Class B Member understands that the Membership Interests in the Company are characterized as a “restricted security” under federal and state securities laws inasmuch as such securities are being acquired in a transaction not involving a public offering and that under such laws and applicable regulations such securities may not be resold in the absence of an effective registration statement covering such Membership Interests in the Company or an exemption from registration under federal and state securities laws.

(m) The Class B Member Accredited Investor. The Class B Member is an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act of 1933, as amended. The Class B Member has such knowledge and

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experience in financial and business matters that the Class B Member is capable of independently evaluating the risks and merits of acquiring the Membership Interests in the Company; the Class B Member has independently evaluated the risks and merits of acquiring the Membership Interests in the Company and has independently determined that such Membership Interests are a suitable investment for the Class B Member; and the Class B Member has sufficient financial resources to bear the loss of its entire investment in the Membership Interest in the Company.

(n) Regulation D Compliance. Neither the Class B Member nor anyone acting on its behalf has offered any or all of the Membership Interests in the Company or any similar securities for sale to, or solicited any offer to buy any of the same from, or otherwise approached or negotiated in respect thereof with, any person other than the Investor and its Affiliates and not more than thirty-five (35) non-accredited investors, each of which has been offered Membership Interests in the Company in a private sale for investment purposes only. Neither the Class B Member nor anyone acting on its behalf has taken, or will take, any action that would subject the issuance or sale of any or all of the Membership Interests in the Company or any similar securities to the registration requirements of Section 5 of the Securities Act of 1933, as amended.

(o) Bankruptcy. No event of Bankruptcy has occurred with respect to the Class B Member.

(p) Purchase Option. There are no agreements, side letters or other legal arrangements or understandings (written or unwritten, enforceable or unenforceable) between the Class B Member (or any of its Affiliates) and any other Person that requires or compels the exercise of the Purchase Option (as defined in the Company LLC Agreement).

(q) Fees. All fees to be paid to the Class B Member or its Affiliates, as well as the other terms and conditions, under the MESPSA and the ASA are reasonable in relation to the services actually performed under such agreements.

(r) Related Person. The Class B Member is not a “related person” with respect to any lender under the Financing Documents for purposes of Treasury Regulation Section 1.752- 4(b). Prior to the end of any taxable year of the Company beginning on or before the Class A Flip Point, any purchaser under any power purchase agreement for power delivered from any Facility is not a “related person” to the Company for purposes of Sections 267 or 707 of the Code, assuming the Company is not a “related person” on account of a relationship with any holder of Class A Units or any Affiliate thereof.

ARTICLE FIVE

REPRESENTATIONS AND WARRANTIES OF THE INVESTOR

The Investor hereby represents and warrants to the Class B Member as follows on each Initial Funding Date and each True Up Funding Date:

5.1 Organization and Good Standing. It is duly organized, validly existing and in good standing under the laws of the state of its formation, with full power and authority to carry on its business as such business is now conducted and as proposed to be conducted.

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5.2 Authorization, Execution and Enforceability. It has full limited liability company power and authority to execute and deliver this Agreement and each other Investment Document to which it is a party, to make its respective Equity Capital Contributions and to consummate the transactions contemplated hereunder and thereunder. The execution and delivery by it of this Agreement and each other Investment Document to which it is a party and the consummation by it of the transactions contemplated hereunder and thereunder, have been duly authorized by all necessary limited liability company action. This Agreement and each other Investment Document to which it is a party has been duly executed and delivered by it. This Agreement and each other Investment Document to which it is a party constitute its valid and binding obligation, enforceable against it in accordance with its respective terms except as such terms may be limited by (i) bankruptcy, insolvency or similar laws affecting creditors’ rights generally or (ii) general principles of equity, whether considered in a proceeding in equity or at law.

5.3 No Violation. The execution, delivery and performance by it of this Agreement and each other Investment Document to which it is a party and the consummation by it of the transactions contemplated hereunder or thereunder do not and will not materially: (a) violate or conflict with any provision of its organizational documents; (b) violate any provision or requirement of any Applicable Law applicable to it; or (c) violate in any material respect, result in a breach of, constitute (with due notice or lapse of time or both) a default, or result in an Encumbrance being created or imposed upon any of the properties or Assets of the Investor, under any material contract to which the Investor is a party or by which its property is bound, which violation, breach, default or Encumbrance would adversely affect the ability of such Investor to perform its obligations under this Agreement and the other Investment Documents to which it is a party.

5.4 Consents and Approvals. There is no requirement applicable to it to make any filing with, or to obtain the consent or approval of any Person as a condition to the consummation of the transactions contemplated hereunder, other than those that have already been obtained. All third-party consent requirements which are a condition to the execution, delivery and performance by the Investor of this Agreement and the other Investment Documents to which it is a party and the consummation of the transactions contemplated hereunder have been satisfied.

5.5 Litigation. There is no claim, action, suit, investigation or proceeding (including, but not limited to, any arbitration proceeding) of any nature, at law or in equity, pending or, to its Knowledge, threatened (in writing) by or against it, its directors, officers, employees, agents of it, or any of its Affiliates involving, affecting or relating to the transactions contemplated hereunder or its ability to complete the transactions contemplated hereunder. It is not subject to any order, writ, judgment, award, injunction or decree of any Governmental Authority or arbitral body involving, affecting or relating to the transactions contemplated hereunder or its ability to complete the transactions contemplated hereunder.

5.6 Investment Intent; Unregistered Securities. The Investor Interests to be held by it will be acquired for investment for its own account, not with a view to the distribution of any part thereof and, without in any way affecting its right to dispose of its Membership Interest in the

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Company as permitted by the Company LLC Agreement, it has no present intention of selling, granting any participation in, or otherwise distributing the same. It understands that the Membership Interests in the Company are characterized as a “restricted security” under federal and state securities laws inasmuch as such securities are being acquired in a transaction not involving a public offering and that under such laws and applicable regulations such securities may not be resold in the absence of an effective registration statement covering such Membership Interests or an exemption from registration under federal and state securities laws.

5.7 Accredited Investor. It is an “accredited investor” as defined in Rule 501(a)(1), (2), (3) or (7) of Regulation D promulgated under the Securities Act of 1933, as amended. It has such knowledge and experience in financial and business matters that it is capable of independently evaluating the risks and merits of purchasing the Membership Interests in the Company; it has independently evaluated the risks and merits of purchasing the Membership Interests in the Company and has independently determined that the Membership Interests in the Company is a suitable investment for it; and it has sufficient financial resources to bear the loss of its entire investment in the Membership Interests in the Company. It has received all the information it considers necessary or appropriate for deciding whether to make its respective Equity Capital Contributions and acquire its respective Membership Interests in the Company and further represents that it has had an opportunity to ask questions and receive answers from the Class B Member regarding the terms and conditions of the offering of the Membership Interests in the Company and the business, properties, prospects and financial condition of the Facility Entities.

5.8 Regulation D Compliance. Neither the Investor nor anyone acting on its behalf has offered any or all of the Membership Interests in the Company or any similar securities for sale to, or solicited any offer to buy any of the same from, or otherwise approached or negotiated in respect thereof with, any person other than the Class B Member and its Affiliates and not more than thirty-five (35) non-accredited investors, each of which has been offered the Membership Interests in the Company in a private sale for investment purposes only. Neither the Investor nor anyone acting on its behalf has taken, or will take, any action that would subject the issuance or sale of any or all of the Membership Interests in the Company or any similar securities to the registration requirements of Section 5 of the Securities Act of 1933, as amended.

5.9 Brokers. No broker, finder, investment banker, or other person is entitled to any brokerage, finder’s or other fee or commission in connection with the transactions contemplated hereunder, based upon arrangements made by or on behalf of it for which the Class B Member or each Facility Entity will be responsible.

5.10 United States Person. It is a United States person not subject to withholding under Section 1446 of the Code.

5.11 PUHCA and FPA Status. It either is not a holding company under PUHCA or, if it is a holding company, is exempt from FERC access to books and records and is entitled to waivers of accounting, record-retention and reporting requirements pursuant to 18 C.F.R. § 366.3(a) of the FERC’s regulations under PUHCA, and it is not a “public utility” as such term is defined in Section 201(e) of the FPA.

5.12 Disqualified Person. The Investor is not a Disqualified Person.

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5.13 Bankruptcy. No event of Bankruptcy has occurred with respect to the Investor.

5.14 No Other Representations. The Investor is not relying on any representations or warranties whatsoever, express, implied, at common law, statutory or otherwise, except for the representations or warranties expressly set out in this Agreement and the other Investment Documents.

ARTICLE SIX

CONDITIONS PRECEDENT

6.1 Execution Date Conditions Precedent.

The obligations of the Investor and the Class B Member to consummate the transactions contemplated by this Agreement on the Execution Date are subject to the satisfaction of or waiver by Investor and the Class B Member, as applicable, of each of the following conditions: (“Execution Date Conditions Precedent”):

(a) the Investor has received fully executed copies of each of the Principal Facility Documents, each in form and substance reasonably satisfactory to the Investor, and each such Principal Facility Document is in full force and effect;

(b) the Investor has received fully executed copies of this Agreement, the Guaranty, the Guarantor Account Agreement, the MESPSA, the ASA, the Facility Company LLC Agreement, the IP License and the IP Security Agreement, each in form and substance reasonably satisfactory to the Investor, and each is in full force and effect;

(c) the Investor has received (i) a legal opinion of O’Melveny & Myers LLP, substantially in the form of Annex 8-A hereto, (ii) a legal opinion of O’Melveny & Myers LLP, special California counsel, substantially in the form of Annex 8-B.1 hereto, (iii) a legal opinion of Brown Rudnick LLP, special Connecticut counsel, substantially in the form of Annex 8-B.2, and (iv) a legal opinion of Orrick, Herrington & Sutcliffe LLP, special permitting counsel for California, substantially in the form of Annex 8-C.1 hereto;

(d) the Investor has received the Insurance Report, in form and substance reasonably satisfactory to it, and a letter executed by the Insurance Consultant permitting the Investor to rely on such Insurance Report, if not addressed to the Investor;

(e) the Investor has received a tax opinion from Winston & Strawn LLP, which opinion shall be in form and substance reasonably satisfactory to it;

(f) the Investor has received necessary approval from its internal investment committee, board of directors or other governing body to enter into the transactions contemplated hereunder and to make the capital contributions and payments in accordance with Article Two, subject only to the satisfaction or waiver of the conditions set forth in Section 6.2 or Section 6.4, as applicable;

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(g) the Investor has received, as applicable, (i) an incumbency certificate dated as of the Execution Date from the Facility Entities, from the Class B Member and the Guarantor, (ii) from the Class B Member, on behalf of each Facility Entity, a certificate from an authorized officer dated as of the Execution Date to the effect that to such officer’s Knowledge the conditions set forth in Section 6.1 have been satisfied, (iii) a good standing certificate of the Guarantor, the Class B Member and the Facility Entities, each dated as of a recent date, from the applicable Secretary of State, (iv) resolutions of the Board of Directors, or other equivalent governing body, of the Facility Entities, the Class B Member and the Guarantor authorizing and approving the execution of this Agreement, the other Investment Documents and the transactions contemplated hereunder certified by a secretary or an assistant secretary as of the Execution Date and (v) formation documents certified by a secretary or an assistant secretary as of the Execution Date, in each case, unless otherwise noted, of the Guarantor, the Class B Member and the Facility Entities as are customary for transactions of this type, each of which shall be reasonably satisfactory to the Investor;

(h) the Class B Member shall have delivered to the Investor an affidavit of non-foreign status dated the Execution Date that complies with Section 1445 of the Code;

(i) the Investor has received the Base Case Model, including a compilation report, in form and substance reasonably satisfactory to it;

(j) the Investor has received the annual budget for the Facility Company, and the balance sheet of the Facility Company as of the Execution Date;

(k) the Investor has received copies of searches of all financing statements of public record and of judgment, litigation and tax lien records that relate or pertain to the Facilities, the Company and the Facility Company;

(l) the Investor has received the Appraisal, in form and substance reasonably satisfactory to it;

(m) the Investor has received satisfactory evidence of the transfer of the membership interests in the Facility Company from the Class B Member to the Company;

(n) the Investor has received fully executed copies of the Interparty Agreement and the Financing Documents that have been executed as of such date;

(o) the Investor has received the Independent Engineer Report and a letter executed by the Independent Engineer permitting the Investor to rely on such Independent Engineer Report, if not addressed to the Investor, in each case in form and substance reasonably satisfactory to the Investor;

(p) the Investor has received evidence that the Class B Member has, by electronic mail, overnight delivery or registered or certified mail (A) notified AT&T PPA Customer 1 of the partial assignment to 2012 ESA of the document listed in clause (i) of the definition of Power Purchase Agreement and of the partial assignment to the Facility Company of the document listed in clause (iv) of the definition of Power Purchase Agreement, and (B) notified

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AT&T PPA Customer 2 of the partial assignment to 2012 ESA of the document listed in clause (iii) of the definition of Power Purchase Agreement and the assignment to the Facility Company of the document listed in clause (v) of the definition of Power Purchase Agreement;

(q) the Investor has received evidence that the Class B Member has, by electronic mail, overnight delivery or registered or certified mail to each of AT&T PPA Customer 1 and AT&T PPA Customer 2, submitted a request for clarification that the use of the word “lease” in Exhibit C to each of the AT&T Power Purchase Agreements associated with Facilities in the service territory of LADWP was unintended and/or a mistake and, in connection therewith, a request for an acknowledgment that a corrected Exhibit C will be substituted; and

(r) the Class B Member shall have paid (or caused to be paid) or shall have made arrangements in the manner reasonably satisfactory to the payee for the payment of all outstanding amounts due, as of the Execution Date, and owing to with respect to Transaction Expenses for all services rendered and billed prior to the Execution Date.

6.2 Initial Funding Date Conditions Precedent.

The obligations of the Investor and the Class B Member to make an Initial Funding Date Contribution on an Initial Funding Date are subject to the satisfaction of or waiver by Investor and the Class B Member, as applicable, of each of the following conditions with respect to the applicable Tranche to be funded on such Initial Funding Date (“Initial Funding Date Conditions Precedent”):

(a) The Investor has received within not less than seven (7) Business Days’ written notice from the Class B Member of the anticipated Initial Funding Date and at least three (3) Business Days’ notice from the Class B Member of the actual Initial Funding Date (which notice of the actual Initial Funding Date includes the number of Facilities to be funded, the kW of the Facilities to be funded, the location of the Facilities to be funded, the estimated date of Commencement of Operations (as such term is defined in the MESPSA) for the Facilities to be funded and a notice from the Class B Member addressed to the Investors specifying in detail the Persons (and the account information with respect thereto) designated to receive the payments set forth in Section 2.3, following receipt of the Investor’s Initial Funding Date Contribution); provided, however, any failure to provide such notice shall affect only the timing of the Initial Funding Date, but shall not affect in any way the obligations of the Equity Investors to make Equity Capital Contributions hereunder subject to the other conditions set forth in this Section 6.2;

(b) with respect to the first Initial Funding Date, the Investor has received fully executed copy of the Company LLC Agreement, in form and substance reasonably satisfactory to the Investor, which is in full force and effect;

(c) no material default caused by any Bloom Entity exists under any of the Principal Facility Documents or under the Investment Documents and to Class B Member’s Knowledge, no material default caused by a party other than a Bloom Entity exists under any of the Principal Facility Documents or under the Investment Documents;

(d) the Investor has received true, correct and complete copies of all of the insurance certificates from the insurance broker with respect to the insurance policies for the

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Company, the Facility Company and the applicable Tranche that are described in Annex 2, or such other evidence reasonably satisfactory to the Investor that such insurance policies are in full force and effect;

(e) each Facility Entity and each Equity Investor has received all necessary third party consents, waivers, authorizations and approvals required as of such date (“Necessary Approvals”) in connection with the execution, delivery and performance of this Agreement and the transactions contemplated hereunder;

(f) the Facility Company is not subject to regulation as (i) a “public utility” or an “electrical corporation” as such terms are defined, respectively, in sections 216 and 218 of the California Public Utilities Code, or (ii) a “public service company” or an “electric company” as such terms are defined, respectively, in section 16-1 of the Connecticut General Statutes;

(g) each of the representations and warranties in this Agreement and the other Investment Documents (other than those made as of a later date) is true and correct in all material respects as of the Initial Funding Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date);

(h) no change adverse to any Facility Entity, the PPA Customers, counterparties to the Interconnection Agreements, Seller or Administrator has occurred since February 6, 2013, except to the extent such change does not constitute or could not reasonably be expected to constitute a Material Adverse Effect with respect to any Facility Entity, the PPA Customers, the counterparties to the Interconnection Agreements, Seller or Administrator;

(i) no Tax Law Change has occurred subsequent to the Execution Date;

(j) the Investor has received reasonably satisfactory evidence that the Class B Member’s Initial Funding Date Contribution has been made or shall be made contemporaneously with the Investor’s Initial Funding Date Contribution;

(k) the Class B Member shall have executed and delivered to the Investor a certificate, dated the Initial Funding Date, certifying the matters set forth in Sections 6.2 and that all amounts then payable to the Seller pursuant to the MESPSA have been paid or shall be paid with the proceeds of the Investor Initial Funding Date Contribution and Class B Member Initial Funding Date Contribution to be made on such date;

(l) no election shall have been filed with the IRS to treat any of the Company or the Facility Company as an association taxable as a corporation for federal income tax purposes;

(m) the Investor has received copies of site maps, site plans and design drawings (available at such time) relating to the Facility, in form and substance reasonably satisfactory to the Investor;

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(n) the Investor has received the balance sheet of the Facility Company as of the last day of the calendar month immediately preceding the calendar month in which the applicable Initial Funding Date is to occur;

(o) with respect to the first Initial Funding Date, the Investor has received a Cost Allocation (Preliminary) with respect to all of the Facilities to be funded pursuant to this Agreement, in form and substance reasonably satisfactory to it;

(p) the Investor has received either (i) a certification from the Class B Member that the circumstances underlying the Appraisal with respect to the applicable Tranche have not materially changed subsequent to the delivery of such Appraisal, or (ii) in the event the circumstances underlying the Appraisal with respect to the applicable Tranche have materially changed subsequent to the delivery of the Appraisal, and if requested by the Investor, the Investor has received a Subsequent Facility Appraisal, in form and substance reasonably satisfactory to it;

(q) with respect to the first Initial Funding Date, the Investor has received estoppel certificates from the Seller and the Administrator relating to the MESPSA and the ASA respectively, substantially in the applicable form for each attached hereto as Annex 9 (or such other form as the Class B Member may propose and is reasonably satisfactory to the Investor) dated the first Initial Funding Date;

(r) the amounts funded on the Initial Funding Date shall be sufficient to fund all amounts required to be paid (through offset or otherwise) or deposited under Section 2.3, as indicated in the Flow of Funds;

(s) the Flow of Funds for the Initial Funding Date shall have been executed and delivered by the parties thereto;

(t) except as provided by the Financing Documents and except for Permitted Encumbrances, there are no Encumbrances against the Company, the Facility Company or the Facilities;

(u) the Investor has received reasonably satisfactory evidence that the Guarantor maintains $10,000,000 in cash equivalent investments;

(v) the Investor has received a certificate from the Class B Member certifying to the Investor that the Facility Purchase Conditions are true and correct for each Facility in the applicable Tranche as of such Initial Funding Date and that it is reasonable to expect that Commencement of Operations (as such term is defined in the MESPSA) of each Facility in the applicable Tranche will occur no later than thirty (30) days following the Initial Funding Date (such certification to also include the number of Facilities for which the confirmation is provided, the kW of the Facilities for which the confirmation is provided, the location of the Facilities for which the confirmation is provided and the estimated date of Commencement of Operations (as such term is defined in the MESPSA) for the Facilities for which the confirmation is provided) and the Independent Engineer has confirmed the same to the Investor by email;

(w) the Account has been established;

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(x) with respect to the first Initial Funding Date, the Investor has received a legal opinion of Morris James LLP, special Delaware counsel, covering the enforceability of the Company LLC Agreement, which opinion shall be in form and substance reasonably satisfactory to it;

(y) the Investor has received fully executed copies of the Financing Documents that have been executed as of such date and which have not been previously delivered to the Investor;

(z) with respect to the first Funding Date on which Facilities located in the State of Connecticut are funded, the Investor shall have received a legal opinion of Brown Rudnick LLP, special permitting counsel for Connecticut, which opinion shall be in form and substance reasonably satisfactory to it;

(aa) the Guarantor has deposited into the Guaranty Account the amount then required to have been deposited, including for the applicable Tranche, in accordance with the Guaranty;

(bb) the Investor has received any agreements, documents and/or other deliverables required to be delivered on or prior to the date of such Initial Funding Date under the Power Purchase Agreements by either the PPA Customers or the Facility Company;

(cc) [reserved];

(dd) the Investor has received (i) for any Facility located in California, the California Self-Generation Incentive Program Reservation Confirmation Letter and (ii) for any Facility located in Connecticut, the LREC Agreement associated with such Facility; and

(ee) with respect to any Initial Funding Date that occurs more than sixty (60) days after the Execution Date for an AT&T Facility that is the subject of the Power Purchase Agreement described in clause (i), (iv) or (v) of the definition thereof, as applicable: (A) (i) the Facility Company and AT&T PPA Customer 1 have executed the Amendment to Power Purchase Agreement (AT&T PPA Customer 1), substantially in the form attached hereto as Annex 10-A, (ii) 2012 ESA and AT&T PPA Customer 1 have executed the Amendment to Power Purchase Agreement (AT&T PPA Customer 1), substantially in the form attached hereto as Annex 10-A and (iii) the Facility Company and AT&T PPA Customer 2 have executed the Amendment to Power Purchase Agreement (AT&T PPA Customer 2), substantially in the form attached hereto as Annex 10-B; or (B) the Class B Member shall have provided other evidence that is reasonably acceptable to the Investor which demonstrates AT&T PPA Customer 1’s, AT&T PPA Customer 2’s, the Facility Company’s and 2012 ESA’s understanding and agreement that the use of the word “lease” in Exhibit C to each of the Power Purchase Agreements associated with Facilities in the service territory of LADWP was unintended and/or a mistake and a corrected Exhibit C is substituted.

6.3 Obligations of the Equity Investors and Facility Entities on each Initial Funding Date. On each Initial Funding Date, subject to satisfaction of the conditions set forth in Section 6.2, the Equity Investors shall make capital contributions and deposits and apply funds in accordance with Section 2.3 hereof.

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6.4 Investor True Up Funding Date Conditions Precedent. The obligations of the Investor and the Class B Member to make a True Up Funding Date Contribution on a True Up Funding Date are subject to the satisfaction of or waiver by the Investor and the Class B Member of each of the following conditions with respect to the applicable Tranche to be funded on such True Up Funding Date (“True Up Funding Date Conditions Precedent”):

(a) the Investor has received within not less than seven (7) Business Days’ written notice from the Class B Member of the anticipated True Up Funding Date and at least three (3) Business Days’ notice from the Class B Member of the actual True Up Funding Date (which notice of the actual True Up Funding Date includes the number of Facilities to be funded, the kW of the Facilities to be funded, the location of the Facilities to be funded, the estimated date of Commencement of Operations (as such term is defined in the MESPSA) for the Facilities to be funded and a notice from the Class B Member addressed to the Investors specifying in detail the Persons (and the account information with respect thereto) designated to receive the payments set forth in Section 2.6, following receipt of the Investor’s True Up Funding Date Contribution); provided, however, any failure to provide such notice shall affect only the timing of such True Up Funding Date, but shall not affect in any way the obligations of the Equity Investors to make Equity Capital Contributions hereunder subject to the other conditions set forth in this Section 6.4;

(b) Commercial Completion of each Facility in the applicable Tranche has occurred and the Independent Engineer has confirmed the same to the Investor in writing (such confirmation to include the number of Facilities for which the confirmation is provided, the kW of the Facilities for which the confirmation is provided and the location of the Facilities for which the confirmation is provided) and the applicable Tranche shall be producing electricity in commercial quantities;

(c) the Investor has received fully executed copies of each of the Principal Facility Documents which has been executed and delivered after the Execution Date but prior to the True Up Funding Date, each in form and substance reasonably satisfactory to the Investor, and each such Principal Documents is in full force and effect, and a fully executed copy of each amendment or additional document entered into in accordance with Section 7.16(b);

(d) no material default caused by any Bloom Entity exists under any of the Principal Facility Documents or under the Investment Documents and to Class B Member’s Knowledge, no material default caused by a party other than a Bloom Entity exists under any of the Principal Facility Documents or under the Investment Documents;

(e) each Facility Entity and each Equity Investor has received all Necessary Approvals required as of such date in connection with the purchase, sale, installation and operation of the relevant Facilities that are the subject of the True Up Funding Date Contribution;

(f) each of the representations and warranties in this Agreement and the other Investment Documents (other than those made as of a later date) is true and correct in all material respects as of the True Up Funding Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date);

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(g) no Tax Law Change has occurred subsequent to the Initial Funding Date;

(h) the Investor has received reasonably satisfactory evidence that the Class B Member’s True Up Funding Date Contribution with respect to the applicable Tranche to be funded has been made or shall be made contemporaneously with the Investor’s True Up Funding Date Contribution;

(i) the Investor has received either (i) a certification from the Class B Member that the circumstances underlying the Appraisal with respect to the applicable Tranche have not materially changed subsequent to the delivery of such Appraisal, or (ii) in the event the circumstances underlying the Appraisal with respect to the applicable Tranche have materially changed subsequent to the delivery of the Appraisal, and if requested by the Investor, the Investor has received a Subsequent Facility Appraisal, in form and substance reasonably satisfactory to it;

(j) with respect to the last True Up Funding Date only, the Investor has received an updated Base Case Model, including a compilation report, rerun to reflect actual applicable Facility Costs and all other updated model inputs (including the effect of any Tax Law Change), and such updated Base Case Model shall be in form and substance reasonably satisfactory to the Investor.

(k) the Investor has received a Cost Allocation (Final) with respect to the applicable Tranche to be funded, in form and substance reasonably satisfactory to it;

(l) the amounts funded on the True Up Funding Date shall be sufficient to fund all amounts required to be paid (through offset or otherwise) or deposited under Section 2.6, as indicated in the Flow of Funds, and the Investor shall have received copies of the lien waivers from the Seller in connection with all amounts paid to the Seller thereunder, which, so long as such lien waivers are unconditional, may be dated as of an earlier date

(m) the Flow of Funds for the True Up Funding Date shall have been executed and delivered by the parties thereto;

(n) the Investor has received reasonably satisfactory evidence that the Guarantor continues to maintain $[***] in cash equivalent investments;

(o) except as provided by the Financing Documents and except for Permitted Encumbrances, there are no Encumbrances against the Company, the Facility Company or the Facilities;

(p) funding has occurred, or will occur simultaneously with the True Up Funding Date, with respect to the loan to be made under the Financing Documents with respect to the applicable Tranche, or the Investor has received confirmation from the Facility Lender that such loan will be made upon the receipt by the applicable parties of the payments or deposits to be made pursuant to clauses (a), (b) and (c) of Section 2.6;

[***] Confidential Treatment Requested

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(q) the Investor has received satisfactory evidence that the reserve for Prepaid Expenses has been established and funded with respect to the applicable Tranche;

(r) the Class B Member shall have executed and delivered to the Investor a certificate, dated the True Up Funding Date, certifying the matters set forth in Section 6.4 and that all amounts then payable to the Seller pursuant to the MESPSA have been paid, or shall be paid with the proceeds of the Investor True Up Funding Date Contribution, Class B Member True Up Funding Date Contribution and the loan to be made under the Financing Documents, in each case, to be made on (or prior to) such date;

(s) the Investor has received the balance sheet of the Facility Company as of the last day of the calendar month immediately preceding the calendar month in which the applicable True Up Funding Date is to occur;

(t) the Investor has received the MESPSA Final Invoice for each Facility to be funded on such True Up Funding Date;

(u) the Investor has received any agreements, documents and/or other deliverables required to be delivered on or prior to the date of such True Up Funding Date under the Power Purchase Agreements by either the PPA Customers or the Facility Company; and

(v) with respect to any True Up Funding Date that occurs for an AT&T Facility that is the subject of the Power Purchase Agreement described in clause (i), (iv) or (v) of the definition thereof, as applicable: (A) (i) the Facility Company and AT&T PPA Customer 1 have executed the Amendment to Power Purchase Agreement (AT&T PPA Customer 1), substantially in the form attached hereto as Annex 10-A, (ii) 2012 ESA and AT&T PPA Customer 1 have executed the Amendment to Power Purchase Agreement (AT&T PPA Customer 1), substantially in the form attached hereto as Annex 10-A and (iii) the Facility Company and AT&T PPA Customer 2 have executed the Amendment to Power Purchase Agreement (AT&T PPA Customer 2), substantially in the form attached hereto as Annex 10-B; or (B) the Class B Member shall have provided other evidence that is reasonably acceptable to the Investor which demonstrates AT&T PPA Customer 1’s, AT&T PPA Customer 2’s, the Facility Company’s and 2012 ESA’s understanding and agreement that the use of the word “lease” in Exhibit C to each of the Power Purchase Agreements associated with Facilities in the service territory of LADWP was unintended and/or a mistake and a corrected Exhibit C is substituted.

6.5 Obligations of the Equity Investors and Facility Entities on each True Up Funding Date. On each True Up Funding Date, subject to satisfaction of the conditions set forth in Section 6.4, the Equity Investors shall make capital contributions and deposits and apply funds in accordance with Section 2.6 hereof.

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ARTICLE SEVEN

GENERAL PROVISIONS

7.1 Notices. Any notice or other communication to be given hereunder shall be in writing and shall be delivered by hand (including, without limitation, by express courier against written receipt) or sent by registered prepaid first class mail, facsimile copy or by email transmission to the persons or addresses specified below (or such other Person or address as a Party may previously have notified all other Parties in writing for that purpose). A notice or other communication shall be deemed to have been served when delivered by hand at that address or received by email or facsimile copy (provided the sender can and does provide evidence of successful transmission), or, if sent by registered prepaid first class mail as aforesaid, on the date delivered. Any notice or other communication received on a day that is not a Business Day or later than 5:00 p.m. on a Business Day shall be deemed to be received on the next Business Day. The names and addresses for the service of notices referred to in this Section 7.1 are:

If to the Class B Member, to:

Clean Technologies 2013B, LLC

c/o Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, CA 94089-1137

Attention: [***]

Telephone: [***]

Fascimile: [***]

Email: [***]

If to the Investor, to:

Firstar Development, LLC

1307 Washington, Suite 300

St. Louis, MO 63103

Attention: [***]

Telephone: [***]

Facsimile: [***]

Email: [***]

Any Party may change the address or number to which notices to such Party are to be delivered by providing notice of such change to each other Party in the manner set forth above.

7.2 No Third Party Beneficiaries. This Agreement is solely for the benefit of the Parties and their respective successors and permitted assigns and this Agreement shall not otherwise be deemed to confer upon or give to any other third party any right, claim, cause of action, or other interest herein.

7.3 Amendment and Waiver. Neither this Agreement nor any term hereof may be changed, amended or terminated orally, but only by written act of the Parties (or, in respect of a

[***] Confidential Treatment Requested

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waiver, the waiving Party or Parties). No failure or delay on the part of a Party hereto in the exercise of any right hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof or of any other right.

7.4 Binding Nature; Assignment. This Agreement shall bind and inure to the benefit of the Parties hereto and their respective successors and legal representatives and permitted assigns. No Party shall assign its rights and obligations under this Agreement, without the prior written consent of the other Parties hereto and any such assignment contrary to the terms hereof shall be null and void and of no force and effect; provided, however, that each of the Parties shall be entitled to assign its rights and obligations under this Agreement to an Affiliate thereof; provided that to the extent the Investor is assigning its rights and obligations under this Agreement to an Affiliate, such Affiliate’s creditworthiness is equal to or better than that of the Investor as of the date hereof and the Investor has provided documentation to the Class B Member that is reasonably acceptable to the Class B Member and evidences such creditworthiness; provided, however, that each Facility Entity may assign its rights under this Agreement to the Facility Lender as collateral for the obligations of the Facility Company under the Financing Documents.

7.5 Governing Law. THIS AGREEMENT SHALL BE DEEMED MADE AND PREPARED AND SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS THEREOF WHICH MAY REQUIRE THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).

7.6 Jurisdiction; Service of Process. Each of the parties hereto hereby irrevocably consents to the non-exclusive jurisdiction of the courts of the State of New York located in New York County and of the United States District Court for the Southern District of New York in connection with any suit, action or other proceeding arising out of or relating to this Agreement or the transactions contemplated hereby; agrees to waive any objection to venue in the State and County of New York; and agrees that, to the extent permitted by law, service of process in connection with any such proceeding may be effected by mailing in the same manner provided in Section 7.1 hereof.

7.7 Counterparts. This Agreement may be executed in counterparts, each of which shall be an original, but each of which, when taken together, shall constitute one and the same instrument.

7.8 Headings. The section and paragraph headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning and interpretation of this Agreement.

7.9 Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, (provided the substance of the agreement between the Parties is not thereby materially altered) and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by Applicable Law, the Parties hereto hereby waive any provision of law which renders any provision hereof prohibited or unenforceable in any respect.

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7.10 Entire Agreement. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior statements or agreements, whether oral or written, among the Parties with respect to such subject matter.

7.11 No Solicitation. The transaction described in this Agreement has been discussed with a limited number of prospective institutional equity investors. No Equity Investor may solicit, directly or indirectly, whether through an agent or otherwise, the participation of another investor without the prior written approval of the Class B Member.

7.12 WAIVER OF JURY TRIAL. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING TO A DISPUTE AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO.

7.13 Expenses. The Class B Member will cause all Transaction Expenses (other than those that are paid pursuant to Section 2.3(b), Section 2.6(c) or Section 6.1(r) or otherwise expressly assumed and separately payable by the Class B Member or its Affiliate) to be paid no later than thirty (30) days after the submission of the relevant invoice by the Investor to the Class B Member. All Transaction Expenses so paid under this Section 7.13 or otherwise assumed and paid by the Class B Member or its Affiliate shall be treated as Capital Contributions to the Company.

7.14 Confidentiality

(a) With respect to each of the Facility Entities, the Investor and their respective Affiliates, except to the extent necessary for the exercise of its rights and remedies and the performance of its obligations under this Agreement, such party will not itself use or intentionally disclose (and will not permit the use or disclosure by any of its Affiliates or its advisors, counsel and public accountants (collectively, “advisors”)) of, directly or indirectly, any of the Principal Facility Documents or information furnished thereunder, or the Investment Documents or information furnished thereunder (the “Transaction”) and will use all reasonable efforts to have all such information kept confidential (consistent with its own practices) and not used in any way known to such party to be detrimental to any of the others; provided that (i) any such party and its advisors may use, retain and disclose any such information to its special counsel and public accountants or any Governmental Authority, (ii) any such party and its advisors may use, retain and disclose any such information that has been publicly disclosed (other than by such party or any Affiliate thereof or any of its advisors in breach of this Section 7.14(a)) or has rightfully come into the possession of such party or any Affiliate thereof or any of its advisors other than from another party hereto or a Person acting on such other party’s behalf, (iii) to the extent that any such party or any Affiliate thereof or its advisors is required or requested to disclose any such information as a result of any Applicable Law or may have received a subpoena or other written demand under color of legal right for such information, such party or such Affiliate or advisor may disclose such information, but such party shall first, as soon as practicable upon receipt of such demand or request, furnish a copy thereof to the other parties and, if practicable so long as such party shall not be in violation of such subpoena, demand or request or likely to become liable to any penalty or sanctions thereunder, afford the other parties reasonable

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opportunity, at any other party’s cost and expense, to obtain a protective order or other reasonably satisfactory assurance of confidential treatment for the information required to be disclosed, (iv) disclosures to lenders, potential lenders or other Persons providing financing to the Facility Entities or any member in any Facility Entity, if such Persons have agreed to abide by the terms of this Section 7.14(a), (v) any such party and its advisors may disclose any such information and make such filings, as may be required by this Agreement, the other Investment Documents or the Principal Facility Documents, (vi) any such party and its Affiliates and advisors may disclose information relating to the Facilities (but not information relating to a member’s equity investment in any Facility Entity) to lenders, potential lenders or other Persons providing financing to any Person developing or proposing to develop the remaining phases of the Facilities and potential purchasers of Membership Interests in such Person if such Persons have agreed to the terms of this Section 7.14(a) and (vii) any such party which is an insurance company or an Affiliate thereof may disclose such information to the National Association of Insurance Commissioners and any rating agency requiring access to its investment portfolio. Notwithstanding anything herein to the contrary, a Party may disclose information to its Affiliates and other advisors in accordance with this Agreement if such Persons have agreed with the other Parties in writing to the terms of this Section 7.14(a) and, additionally, the Class B Member and any of its Affiliates (including entities that become Affiliates subsequent to the date hereof) may use any operational data with respect to the Facilities for the purpose of researching, analyzing, designing, improving, developing, manufacturing, installing, modifying or operating other fuel cell-powered electric generating facilities, whether similar to or different from the Facilities.

(b) Notwithstanding anything to the contrary, the foregoing obligations shall not apply to the tax treatment or tax structure of the Transaction and each party hereto (and any employee, representative, or agent of any party) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all other materials of any kind (including opinions or other tax analyses) that are provided to any party hereto to the extent relating to such tax treatment and tax structure (all such information that may be so disclosed hereunder is hereinafter referred to as the “Tax Information”). For purposes of this Section 7.14(b), the Tax Information includes only those facts that may be relevant to understanding the purported or claimed U.S. federal income tax treatment or tax structure of the Transaction and, to eliminate any doubt, therefore specifically does not include information that either reveals or standing alone or in the aggregate with other information so disclosed tends of itself to reveal or allow the recipient of the information to ascertain the identity of any of the Facility Entities, any member (or potential member) of the Facility Entities, or any other third parties involved in any of the Transaction or any other potential transactions with any of the foregoing. However, any Tax Information is required to be kept confidential to the extent necessary to comply with any applicable securities laws. This Section 7.14(b) is intended to prevent such an investment in the Facility Entities from being treated as “reportable transaction” as a result of it being a transaction offered to a taxpayer under conditions of confidentiality within the meaning of Code Sections 6011, 6111 and 6112 (or any successor provision) and the Treasury Regulations thereunder (as clarified by Notice 2004-80 and Notice 2005-22) and shall be construed in a manner consistent with such purpose.

7.15 Further Assurances; Amendments to Governmental Approvals and Principal Facility Documents; Reports.

(a) Each Party hereto covenants and agrees promptly to execute, deliver, file, or record such agreements, instruments, certificates and other documents and to do and perform such other and further acts and things as any other Party hereto may reasonably request or as may be otherwise be necessary or proper to consummate the transactions contemplated hereby and to carry out the provisions of this Agreement.

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(b) Prior to any True Up Funding Date with respect to a Tranche, the Bloom Entities shall not, without the prior consent of the Investor (such consent not to be unreasonably withheld, delayed or conditioned) (i) waive the provisions of, terminate or materially amend any of the Financing Documents, (ii) waive the provisions of, terminate or materially amend any Governmental Approval in effect as of the Initial Funding Date for such Tranche, (iii) waive the provisions of, terminate or materially amend any of the Principal Facility Documents or (iv) enter into any Principal Facility Document or any additional material project document not in effect on the Initial Funding Date for such Tranche.

(c) Each Party hereto covenants and agrees to promptly deliver the information requested by any other Party in order to allow such party to comply with the Patriot Act, including, without limitation, the names, addresses and other information that will allow the requesting Party to identify the other Party in accordance with the requirements of the Patriot Act.

7.16 LIMITATIONS OF LIABILITY. NO PARTY SHALL BE LIABLE (WHETHER IN CONTRACT, TORT, STRICT LIABILITY, EQUITY, OR OTHERWISE) FOR ANY SPECIAL, INDIRECT, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, INCLUDING LOST PROFITS AND ANY OTHER DAMAGES WHICH CANNOT BE READILY ASCERTAINED AND QUANTIFIED, FOR ANY BREACH OF A REPRESENTATION OR WARRANTY UNDER THIS AGREEMENT; PROVIDED, HOWEVER, THAT IF, AFTER THE INVESTOR SHALL HAVE ACTUALLY FUNDED ITS INVESTOR INITIAL FUNDING DATE CONTRIBUTION IN RESPECT OF THE FACILITY COMPANY, ANY PART OF THE ITC IS LOST, REDUCED, RECAPTURED, DISALLOWED OR NOT CLAIMED BECAUSE CLASS B MEMBER OR ITS AFFILIATE, PERSON WITH A DIRECT OR INDIRECT INTEREST THEREIN OR ANY FACILITY ENTITY BREACHES ANY REPRESENTATION, WARRANTY, COVENANT OR OBLIGATION, ANY FEDERAL TAX DETRIMENTS SUFFERED AS RESULT OF SUCH RECAPTURE, LOSS, REDUCTION, DISALLOWANCE OR INABILITY TO CLAIM (INCLUDING WITHOUT LIMITATION, RECOMPUTATION OF TAX, CHANGE IN DISTRIBUTIVE SHARE OF TAX DEPRECIATION OR TAXABLE INCOME OR LOSS, PENALTIES, INTEREST AND ADDITIONS TO TAX) SHALL NOT CONSTITUTE CONSEQUENTIAL DAMAGES. THE OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT ARE OBLIGATIONS OF THE PARTIES ONLY AND NO RECOURSE SHALL BE AVAILABLE UNDER THIS AGREEMENT AGAINST ANY OFFICER, DIRECTOR, MANAGER, MEMBER, PARTNER, OR AFFILIATE OF ANY PARTY.

[SIGNATURE PAGE FOLLOWS]

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IN WITNESS WHEREOF, the parties hereto have caused this Equity Capital Contribution Agreement to be duly executed by their respective officers thereunto duly authorized as of the date first set forth above.

FIRSTAR DEVELOPMENT, LLC
By:	/s/ Matthew Ulrich
Name:	Matthew Ulrich
Title:	Officer

[Signature Page to Equity Capital Contribution Agreement]

CLEAN TECHNOLOGIES 2013B, LLC
By:	/s/ SENDIL ATREYA
Name:	SENDIL ATREYA
Title:	VICE PRESIDENT

[Signature Page to Equity Capital Contribution Agreement]

ANNEX 1-A

List of Prospective Facilities and Locations

Site No.	PPA Customer	Address	City	State		Size (kW)
1	Pac Bell	[***]	Los Angeles		CA		[***]
2	Pac Bell	[***]	Los Angeles		CA		[***]
3	Pac Bell	[***]	Fairfield		CA		[***]
4	AT&T Corp.	[***]	New London		CT		[***]
5	AT&T Corp.	[***]	Waterbury		CT		[***]
6	AT&T Corp.	[***]	Meriden		CT		[***]
7	Pac Bell	[***]	Gardena		CA		[***]
8	AT&T Corp.	[***]	Sherman Oaks		CA		[***]
9	AT&T Corp.		Rialto		CA		[***]
					Total:		[***]

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

Block DocID

[***] Confidential Treatment Requested

ANNEX 1-B

Base Case Model

[See Attached]

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

Block DocID

ANNEX 2

Insurance Requirements

[See Attached]

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

Block DocID

Insurance Requirements

FIRSTAR DEVELOPMENT, LLC

INSURANCE REQUIREMENTS CHECKLIST

Tax Credit Agreement Insurance Requirements

The insurance coverage set forth below constitutes Tax Credit Investor’s operational coverage requirements through the time of investment maturation with gap and are subject to increase, from time to time, at the written request of the Tax Credit Investor.

Immediately upon ownership, and throughout the term of this Agreement, the Developer shall obtain, and maintain in full force and effect, the following policies of insurance on behalf of the Project and Holding Co.; provided that the coverage amounts set forth below are subject to increase, from time to time, at the written request of the Tax Credit Investor:

1. Commercial Property Insurance: insuring for all risks of physical loss or damage to:

• Flood/Earthquake/Windstorm with limits /deductibles evaluated and approved by Investor on an annual basis

• Mechanical and electrical breakdown including all forms of testing;

• Hail, lighting, strike, riot, vandalism, and malicious mischief;

• All real and personal property of the Project Company whether fixed, in-transit, or stored off-site including warehouse facilities. The limits shall be sufficient to cover the maximum potential loss any one occurrence;

• Extra expense including expediting expense;

• Debris removal;

• Automatic reinstatement of limits except for flood, quake;

Policy shall provide for claims to be paid based upon replacement cost of the lost or damaged property without deduction for depreciation. Limits of policy will be at least the replacement value of the Project (excluding the value of the land, foundations and engineering expenses). The policy shall have a deductible of no greater than $50,000 per occurrence. The policy shall not contain Coinsurance provisions unless Agreed Amount is endorsed. Coverage shall provide for claims to be paid based upon replacement cost of the lost or damaged property without deduction for depreciation. Business Interruption is required in an amount enough to cover gross projected revenues for 12 months OR the longest lead time to repair or replace major equipment; whichever is greater. Contingent Business Income is also required in an amount sufficient to cover contingent related supplier / offtaker losses.

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

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The Project and Holding Co. shall be a Named Insured on the policy. The policy shall include an endorsement naming Firstar Development, LLC as Additional Insured and, to the extent permitted under the Financing Documents, Loss Payee, and shall allow the Tax Credit Investor to be associated in the adjustment of any claim.

2. Commercial General Liability insurance, insuring for third party claims of legal liability against the Project and Holding Companies and caused by bodily injury, property damage, personal injury or advertising injury, arising out of the ownership or management of fuel cell equipment including the costs to defend such actions brought against the Project and Holding Co. The Project and Holding Co. shall be a Named Insured on the policy. The policy shall include an endorsement adding Firstar Development, LLC as Additional Insured, and shall be primary coverage for the Project and Holding Co., without contribution from other valid insurance policies. Firstar Development, LLC shall be endorsed as Additional Insured using an endorsement approved by the Insurance Consultant. Limits of the policy shall be at least $1 million per occurrence and $2 million in the general aggregate. The Products Completed Operations limit shall be no less than $10 million. The commercial general liability policy shall apply only to this subject project and include a severability of interest clause with no exclusions or limitations on cross liability.

3. Umbrella/Excess Liability insurance, with the Commercial General Liability scheduled as underlying policies. Limits of the policy shall be at least $10 million per occurrence and in the annual aggregate. The Project and Holding Co. shall be a Named Insured on the policy. The policy shall include an endorsement adding Firstar Development, LLC as Additional Insured and shall be primary coverage without contribution from other valid insurance policies.

4. Pollution Legal Liability / Environmental Liability insurance including On-Site and Off-Site Clean-Up, Non-Owned Disposal, and In-Bound and Out-Bound Contingent Transportation shall be provided for no less than $1,000,000 each occurrence and $1,000,000 in the aggregate. The policy shall include Business Income and Extra Expense as a result of a covered peril. The maximum deductible / self-insured retention shall be $50,000 or less. The Project and Holding Co. shall be a Named Insured on the policy. The policy shall include an endorsement adding Firstar Development, LLC as Additional Insured and shall be primary coverage without contribution from other valid insurance policies.

5. A Professional Liability (E&O) policy purchased by Bloom Fuel Cells for all design work and defects in an amount of not less than $1 million per occurrence with a max $250,000 deductible. If the policy is written on a claims-made basis, the retroactive date may not be advanced beyond the date of this agreement and coverage shall be maintained in full force and effect for two (2) years after Final Completion, which coverage may be in the form of tail coverage or extended reporting period coverage if agreed to by the Investor.

6. Other forms or types of insurance which the Tax Credit Investor, lender, or other party of interest may now or hereafter require throughout the term of this Agreement (all of which should include an endorsement naming Firstar Development, LLC and any Investment Fund, as additional insureds and with Firstar Development, LLC as loss payee, as its interest may appear.

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(BLOOM)

Block DocID

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General Requirements

a. Insurer Ratings. All insurance policies shall be underwritten by companies rated in the latest A.M. Best’s Insurance Rating Guide with a rating of at least A-, and be in a financial category of at least IX.

b. Policy Copies. The Owner/Partnership shall furnish to the Tax Credit Investor a complete copy of each such policy of insurance required under #1-5 above. If an insurance policy is not available when required, as set forth above, then Certificates of Insurance detailing the policy terms and conditions as noted above shall be provided, but the policies must then be provided within sixty days after closing.

c. Notice of Cancellation. All such policies shall include endorsements requiring at least 30 days prior written notice to the Tax Credit Investor of any cancellation, termination or reduction of coverage therein. Notice of the renewal of any policy shall be made at least 10 days prior to the scheduled date of such renewal, and shall be in the form of endorsement to the policy. Notice to the Tax Credit Investor of any replacement of any policy shall be made at least 10 days prior to such replacement, and shall be in the form of a copy of the replacement policy, or by certificate, as noted above.

d. Renewal Certificates. Prior to renewal, all coverages listed above must be forwarded to Firstar’s insurance consultant for review. Notice of the renewal of any policy shall be made at least 10 days prior to the scheduled date of such renewal, and shall be in the form of Certificates or Policy Copies.

Please forward Certificates/Binders to the following address and direct questions to:

Firstar Development, LLC	Sam Jensen
PO Box 279	Traxler & Tong Inc.
San Anselmo, CA 94979	(415) 331-0580 x205
	sam@traxlertong.com

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

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ANNEX 3

List of All Contracts

(terms as defined in this Agreement, unless noted otherwise)

1. Power Purchase Agreements

2. Site Leases

3. MESPSA

4. ASA

5. Facility Company LLC Agreement

6. Agreement with SAIC Energy, Environment & Infrastructure, LLC for Use of Work Products in connection with PPA IIIb

7. IP License

8. IP Security Agreement

9. Interparty Agreement

10. Indemnity Agreement

11. Credit Agreement

12. Security Agreement

13. Equity Pledge Agreement

14. Accounts Agreement

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Block DocID

ANNEX 4

“Knowledge” Persons

[***]

[***]

[***]

[***]

[***]

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

Block DocID

[***] Confidential Treatment Requested

ANNEX 5

Form of Interparty Agreement

[See Attached]

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

Block DocID

Execution Version

INTERPARTY AGREEMENT

among

FIRSTAR DEVELOPMENT, LLC,

a Delaware limited liability company

(Investor)

and

2013B ESA PROJECT COMPANY, LLC,

a Delaware limited liability company

(Borrower)

and

SILICON VALLEY BANK,

(Lender)

Dated as of August 2, 2013

INTERPARTY AGREEMENT

This INTERPARTY AGREEMENT (this “Agreement”), dated as of August 2, 2013 (“Effective Date”), is entered into by and among FIR.STAR DEVELOPMENT, LLC, a Delaware limited liability company (together with its permitted successors and assigns, the “Investor”), 2013B ESA PROJECT COMPANY, LLC, a Delaware limited liability company (together with its permitted successors and assigns, the “Borrower”), and SILICON VALLEY BANK (the “Lender”).

RECITALS

A.    The Borrower has entered into the Master Energy Server Purchase and Services Agreement with Bloom Energy Corporation, dated as of July 19, 2013 (the “MESPSA”), pursuant to which the Borrower will purchase, subject to the terms and conditions set forth therein, on-site fuel cell power generating systems (each a “System”), with an aggregate baseload capacity of approximately 6 MW, to be installed on, together with the relevant “BOF’’ (as defined in the MESPSA), each relevant “Site” (as defined in the MESPSA) (each System together with the relevant “BOF” at a “Site”, a “Facility”).

B.    In order to finance the development, construction, installation, testing, operation and use of the Facilities, the Borrower has entered into that certain Credit Agreement, dated as of July 19, 2013 (as amended, amended and restated, modified or supplemented from time to time, the “Financing Agreement”), by and between the Borrower and the Lender, pursuant to which, among other things, the Lender has extended commitments to make loans to, and for the benefit of, the Borrower.

C.    The Investor is party, among others, to that certain Equity Capital Contribution Agreement dated as of August 2, 2013 (the “Tax Equity ECCA”), pursuant to which the Investor shall make certain contributions, in the amounts and subject to the terms and conditions set forth therein, to 2013B ESA Holdco, LLC, a Delaware limited liability company (“Holdco”), which owns all of the membership interests in the Borrower.

AGREEMENT

NOW THEREFORE, in consideration of the foregoing, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound, the parties hereto hereby agree as follows:

SECTION 1. DEFINITIONS AND RULES OF INTERPRETATION

(a)    Except as otherwise indicated, capitalized terms not defined in this Agreement (including in the recitals hereto) shall have the meanings given to them in Exhibit A to the Financing Agreement. The following terms when used in this Agreement, including its preamble and recitals, shall have the following meanings:

“Affiliate” of a specified Person means any other Person that directly, or indirectly through one or more intermediaries, Controls, is Controlled by or is under common Control with such Person; provided, that neither a Lender that also holds equity interests in Sponsor, nor any of such Lender’s Affiliates, shall be deemed to be an Affiliate of Sponsor.

“Agreement” shall have the meaning given in the preamble

“Borrower” shall have the meaning given in the preamble.

“Clean Technologies” means Clean Technologies 2013B, LLC, a Delaware limited liability company.

“Control” or “Controlled by” means the possession, directly or indirectly, of either of the following: (a) (i) in the case of a corporation, more than 50% of theoutstanding voting securities thereof; (ii) in the case of a limited liability company, partnership, limited partnership or joint venture, the right to more than 50% of the distributions (including liquidating distributions) therefrom; (iii) in the case of a trust or estate, including abusiness trust, more than 50% of the beneficial interest therein; and (iv) in the case of any other entity, more than 50% of the economic or beneficial interest therein; or (b) in the case of any entity, the power or authority, through ownership of voting securities, by contract or otherwise, to exercise a controlling influence over the management of the entity.

“Default Notice” shall have the meaning given in Section 2(b).

“Effective Date” shall have the meaning given in the recitals.

“Facility” shall have the meaning given in the recitals.

“Facility Asset Sale” shall have the meaning given in Section 2(f).

“Financing Agreement” shall have the meaning given in the recitals.

“Holdco” shall have the meaning given in the recitals.

“Holdco LLC Agreement” means the Amended and Restated Operating Agreement of Holdco, to be executed by Investor and Clean Technologies pursuant to the terms of the Tax Equity ECCA.

“Holdco Pledge Agreement” means, the Equity Pledge Agreement, dated as of July 19, 2013, among Holdco and the Lender.

“Investor” shall have the meaning given in the preamble.

“Investor Cure Periods” shall have the meaning given in Section 2(c)(i).

“Investor Retained Rights” shall have the meaning given in Section 2(h). “ITC Loss Event” shall have the meaning given in the Holdco LLC Agreement.

“ITCs” shall mean the investment tax credit pursuant to Sections 38(b)(l), 46 and 48(a) of the Internal Revenue Code of 1986, as amended.

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“Lender” shall have the meaning given in the preamble.

“Monetary Cure Period” shall have the meaning given in Section 2(c)(i).

“Non-Monetary Cure Period” shall have the meaning given in Section 2(c)(i).

“Sponsor” means Bloom Energy Corporation, a Delaware corporation.

“Tax Equity ECCA” shall have the meaning given in the recitals.

“Term” shall have the meaning given in Section 3(a).

(b)    The rules of interpretation set forth in Section 1.02 to the Financing Agreement shall apply to this Agreement.

SECTION 2. INVESTOR CURE RIGHTS.

(a) During the Term of this Agreement, the Investor shall have the rights set forth in this Section 2.

(b) Notices to Investor. Whenever the Lender shall provide to the Borrower any written notice of an Event of Default (each such notice, a “Default Notice”) pursuant to the Financing Documents, the Lender shall, promptly (but in no event later than three (3) days following delivery of such Default Notice to the Borrower) deliver to the Investor a copy of such Default Notice, in accordance with the notice provisions as set forth in Section 3(c). Notwithstanding anything to the contrary herein, the Investor and the Borrower hereby acknowledge and agree that the Lender shall have no liability as a result of any failure or omission to send a Default Notice, and such failure by the Lender to send any Default Notice shall not otherwise extend any Investor Cure Period in connection therewith; provided that no Investor Cure Period shall commence until the Default Notice for such Event of Default is delivered to the Investor.

(c) Investor’s Right to Cure

(i) Right to Cure.

(A) Subject to the terms of this Section 2, the Investor shall have the right, but not the obligation, to cure or procure the cure of the Event(s) of Default listed in any Default Notice. The Investor shall have the right to cure, or procure the cure, of any such Event of Default that is curable by the payment of money (including, without limitation, an Event of Default under Sections 8.0l(a), 8.0l(e), 8.0l(t) or8.0l(c)(i) (with respect to the failure to pay insurance premiums for the insurance required to be maintained pursuant to Section 7.0l (h) of the Financing Agreement) during a period of twenty (20) days (the “Monetary Cure Period”) and the Investor shall have the right to cure any

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other Event of Default during a period of sixty (60) days (the “Non-Monetary Cure Period” and, together with the Monetary Cure Period, the “Investor Cure Periods”). An Investor Cure Period shall commence upon the expiration of the relevant cure period afforded to the Borrower under the Financing Agreement, but only if, within ten (10) Business Days following the receipt of a Default Notice by the Investor, the Investor confirms in writing to the Lender (such written confirmation, a “Confirmation Notice”) (i) that the Investor reasonably believes that the relevant Event(s) of Default is or are capable of cure by the Investor within the relevant Investor Cure Period and its basis for such belief and (ii) the intent of the Investor to make a good faith and diligent attempt to cure all such Events of Default. If such a Confirmation Notice has not been received by the Lender within the required time period, the applicable Investor Cure Period shall not be available to the Investor; provided, that no Investor Cure Period shall be available to the Investor with respect to any Event of Default occurring as a result of a Bankruptcy Event occurring with respect to the Borrower, Holdco or the Sponsor or an Event of Default directly or indirectly caused by Investor. A Non-Monetary Cure Period may be extended with further written notices from the Investor every fifteen (15) days to the Lender (x) updating the Lender on the continuing diligent efforts by the Investor to cure such Event of Default and (y) confirming that Investor reasonably expects to cure such Event of Default by not later than one hundred twenty (120) days after the date the Investor received the applicable Default Notice; provided, however, that, in any event, no Non-Monetary Cure Period shall extend beyond the date that is one hundred and twenty (120) days after the date the Investor received the applicable Default Notice (or such other period as may be agreed among the parties). Except for the Lender’s retained enforcement rights with respect to Collateral described in Section 2(c)(i)(B), the Lender shall not exercise any remedies with respect to the Collateral or exercise any of its other rights and remedies hereunder or under the Financing Documents (other than as specified below) or otherwise under applicable law during any Investor Cure Period.

(B)    Nothing in this Section 2 shall affect the right of the Lender, during the applicable Investor Cure Period, to the extentpermitted under the Financing Documents upon the occurrence and during the continuation of an Event of Default, to (i) block, or instructthe Accounts Bank to block, distributions to the Borrower pursuant to the Financing

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Agreement or the Accounts Agreement and apply such distributions for the payment of the Obligations under the Financing Agreement; (ii) block, instruct the Borrower to block, or exercise any of its rights and remedies under the Holdco Pledge Agreement to vote the pledged equity interests, to act as managing member or to control or direct the affairs, of the Borrower, including, without limitation, taking action in order to block, any dividend payment or other distribution (in cash, assets, property, rights, obligations or securities) on, or other payment on account of, any equity interest in Borrower; (iii) access and withdraw funds from the Accounts Collateral in accordance with the Accounts Agreement (including applying funds deposited in or credited to the Debt Service Reserve Account for the making of any payments then due and payable to the Lender under the Financing Agreement); (iv) take such action (including making any filings, renewals or initiating any proceedings, providing any notices or demands), or refrain from taking such action, in order to preserve or protect the continued perfection and priority of Liens of the Lender on and the value of the Collateral (including, without limitation, to prevent the termination of any Offtake Agreement or any other Major Project Document); (v) accrue interest at the Default Rate on the Obligations; (vi) take any action to amend or modify any of the Financing Documents pursuant to the terms thereof (other than as specified below) (vii) waive an Event of Default or grant an extension of any cure period afforded to the Borrower under the Financing Documents with respect to any Event of Default or (viii) exercise any of its other rights and remedies under the Financing Documents (other than as specified below, to the extent that any such exercise would not result in an ITC Loss Event.

(C)    If there is an Event of Default caused by the action or failure to act of Administrator under the Administrative Services Agreement, and Sponsor or an Affiliate of Sponsor is the Administrator, or by the action or failure to act of Seller under the MESPSA, and Sponsor or an Affiliate of Sponsor is the Seller, such default may, without limiting any other possible cures, be cured by the Investor taking the following actions during the applicable Investor Cure Period: (a) unless the Lender has replaced the Administrator or Seller, following the occurrence of such Event of Default and upon 5 business days’ notice to the Lender, the Investor removing the Administrator or Seller and retaining a new Administrator or Seller, subject to the Lender’s approval (such approval not to be unreasonably withheld or delayed), and (b) Investor commencing a recovery plan for such action or failure to act of Administrator or Seller within the applicable Investor Cure Period (provided that the completion of such recovery plan may extend beyond the initial sixty (60) days of the applicable Non-Monetary Cure Period so long as the Investor is diligently proceeding to cure the applicable defaults and causing the periodic written notices to the Lender to be provided in accordance with Section 2(c)(i)(A), but shall not extend beyond the date that is one hundred and twenty (120) days after the date the Investor received the applicable Default Notice); and

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(D)    Notwithstanding any other provision of this Agreement, upon the occurrence and during the continuation of an Event of Default and during any period in which the Investor has the right to cure the same as provided in this Section 2, the Lender shall not execute or consent to any amendment to any Financing Document or any Project Document that would materially adversely affect the Investor’s ability to cure such Event of Default without the prior written consent of the Investor, such consent not to be unreasonably withheld or delayed.

(d)    Restriction on Sale of Collateral.

(i) Foreclosure on Collateral.

(A) After the expiration of the applicable Investor Cure Period, if any, (subject to the extensions described in Section 2(c)(i)(A)), the Lender may, subject to the provisions of this Section 2(d)(i), in respect of any uncured and continuing Event of Default, exercise any and all of its rights and remedies under the Financing Documents or otherwise under applicable law with respect to the Collateral; provided that, unless such Event of Default was reasonably capable of being cured by the Investor within the applicable Investor Cure Period (including any Event of Default in respect of nonpayment of principal and interest due under the Financing Agreement), if any (x) no membership interests in the Borrower and (y) no part of the assets of any Facility may be foreclosed on or sold, assigned, leased or otherwise transferred by the Lender if such foreclosure or sale, assignment, lease or other transfer would cause an ITC Loss Event; provided further that in no event shall the foregoing proviso limit the rights and remedies of the Lender with respect to the Accounts Collateral, including the right to access and withdraw funds from the Accounts in accordance with the Accounts Agreement.

(B)    Notwithstanding anything in Section 2(d)(i)(A) to the contrary, the Lender may foreclose on any membership interests in the Borrower or Holdco constituting Collateral (or on any other Collateral) without regard to any Investor Cure Period if (i) the relevant uncured and continuing Event of Default shall be for (x) the occurrence of any of the events under Section 8.0l(g) of the Financing Agreement with respect to the Borrower, Pledgor or Sponsor or (y) a default by the Borrower pursuant to Section 8.0l(c)(i) (with respect to failure to comply with

6

Section 7.0 l(n) or Section 7.0l(r) of the Financing Agreement) of the Financing Agreement or (ii) the Investor defaults in any of its funding obligations to Holdco under the Tax Equity ECCA or the Holdco LLC Agreement.

(e)    Purchase Right.

(i) Right to Purchase. Without prejudice to the enforcement of the rights and remedies of the Lender under the Collateral Documents or the other Financing Documents, the Lender agrees that at any time following the occurrence of an Event of Default and until the date that is 5 days after the end of the applicable Investor Cure Period (subject to the extensions described in Section 2(c)(i)(A)) with respect to such Event of Default, the Investor shall have the right (but not the obligation) to purchase (without warranty or representation or recourse other than as to title) the entire (but not part) aggregate amount of outstanding Obligations (including unfunded commitments thereunder and the total aggregate amount of all accrued and unpaid fees) at par (including all outstanding principal, accrued and unpaid interest, and any other amounts due and payable to the Lender in accordance with the terms of the Financing Documents, including any amounts owed pursuant to Sections 4.01, 4.02, 4.03 and 9.06 of the Financing Agreement).

(ii) Third Party Sale of Obligations. If an Event of Default shall occur that is not cured by the end of the applicable Investor Cure Period (subject to the extensions described in Section 2(c)(i)(A)) and the 5-day period referred to in Section 2(e)(i) has elapsed without the Investor purchasing the Obligations, and the Lender shall elect to sell the aggregate amount of outstanding Obligations pursuant to a public or private sale process, the Lender shall provide the Investor with written notice of such sale with a description in reasonable detail of the process which the Lender intends to follow in conducting such sale. If the Investor complies with the bid and sale procedures established by the Lender (including with respect to criteria for qualified bidders, confidentiality and time deadlines), the Investor shall have the right to bid and the Lender shall not discriminate against the Investor in connection therewith. The Investor shall have voting rights with respect to the Obligations only if they purchase the entire amount of the outstanding Obligations.

(f)    Facility Asset Sale.

(i)    Facility Asset Sale. If an Event of Default shall occur that is not cured by the end of the applicable Investor Cure Period (subject to the extensions described in Section 2(c)(i)(A)) and the Lender is permitted hereunder to elect and shall elect to conduct a public or private sale of all or any part of the assets of any Facility or the membership interests in the Borrower (each, a “Facility Asset Sale”), the Lender shall conduct such sale in accordance with the following:

(C)    the Lender shall deliver an written notice of such sale to the Investor with a description in reasonable detail of the process which the Lender intends to follow in conducting such sale; and

7

(D)    If the Investor complies with the bid and sale procedures established by the Lender (including with respect to criteria for qualified bidders, confidentiality and time deadlines), the Investor shall have the right to bid in such Facility Asset Sale, and the Lender shall not discriminate against the Investor in connection therewith.

(g)    Additional Actions. Borrower agrees to execute and deliver all documentation, and to take any and all actions, reasonably requested by the Investor to further the enforcement of the Investor’s rights under this Section 2 and/or by the Lender to further the enforcement of its rights under this Section 2.

(h)    Reserved Rights. The Lender acknowledges that the Investor retains all right, title or interest of Investor: (i) against Clean Technologies under the Tax Equity ECCA; (ii) against the Sponsor Guarantor under the Guaranty, dated as of August 2, 2013, by Sponsor in favor of Investor; (iii) under any deficit restoration obligation under the Holdco LLC Agreement; (iv) for any indemnity payable to the Investor by Clean Technologies pursuant to the Holdco LLC Agreement; (v) to insurance proceeds, if any, payable only to Investor under insurance separately maintained by Investor; provided such insurance does not reduce or limit any benefit to the Lender with respect to insurance maintained for its benefit pursuant to the Financing Documents; (vi) for any indemnity payable to the Investor and its Affiliates and their respective partners, directors, officers, employees, agents, trustees, administrators, managers, advisers and representatives by Sponsor, Clean Technologies or any of their Affiliates (other than Holdco or the Borrower) or under the Offtake Agreements; provided in each such case, such indemnity does not reduce or limit any benefit or right of the Lender, (vii) to the Maintenance Reserve Account; (viii) to any payments in respect of interest, or any payments made on an after-tax basis, to the extent attributable to payments referred to in clauses (i) through (vii) above; (ix) to proceeds of the items referred to in clause (i) through (viii) above; and (x) to demand, collect, sue for, or otherwise receive and enforce payment of the foregoing amounts, in each case against the Sponsor, Clean Technologies or any Affiliate thereof, as applicable under the relevant document (the “Investor Retained Rights”). In no event shall the Investor Retained Rights be considered included in the Collateral.

(i)    Applicability of Rights. Notwithstanding anything to the contrary herein, the rights of the Investor under this Section 2 shall be subject to the following: none of the Investor or any other tax equity investor, directly or indirectly, in the Borrower shall have any rights under this Agreement (A) if the Investor (alone or together with any other tax equity investor, directly or indirectly, in the Borrower) Controlled the Borrower as of the occurrence of such Event of Default, (B) if such Event of Default was directly or indirectly in whole or in part caused by any act or failure to perform an express obligation of the Investor or any other tax equity investor, directly or indirectly, in the Borrower, (C) at any time when the Investor (alone or with any other tax equity investor, directly or indirectly, in the Borrower) Controls the Borrower or (D) with respect to any membership interests in Holdco held by Sponsor or any Affiliate of Sponsor that may be pledged to secure the obligations of the Borrower under the Financing Agreement. For purposes of the foregoing, the Investor or any other tax equity investor in the Borrower shall not be deemed to Control or have Controlled the Borrower until such time as any such Person acquires the membership interests in the Holdco held by any

Affiliate of Sponsor or becomes the Managing Member (or the equivalent) of the Holdco or the Borrower.

8

SECTION 3. MISCELLANEOUS

(a)    Term. The Term of this Agreement shall commence on the Effective Date and shall terminate on the date that is the Class A Flip Point (as defined in the Holdco LLC Agreement); provided that (A) if prior to the Class A Flip Point the Investor has commenced the exercise any of its cure rights with respect to an Event of Default under the Financing Documents as provided in Section 2 hereof and as of the Class A Flip Point the Investor is continuing to exercise such rights in accordance with Section 2, the Term of this Agreement shall be automatically extended until the earlier of such time as (i) the Investor has cured such Event of Default as provided under Section 2, (ii) the Investor has notified the Lender in writing that it no longer intends to continue to exercise such rights or (iii) the Investor has failed to cure such Event of Default within time periods set forth in Section 2, and (B) if the Lender has received written notice of the exercise of the Purchase Option (as defined in the Holdco LLC Agreement), the Term of this Agreement shall be automatically extended until the earlier of such time as (i) the purchase that is the subject of the Purchase Option is consummated or (ii) the period for closing on the purchase that is the subject of the Purchase Option expires. Upon termination of this Agreement, all rights and obligations of the parties under this Agreement will terminate as of the effective date of termination, except that any liabilities accrued under this Agreement prior to termination of this Agreement will continue in full force and effect.

(b)    No Third Party Beneficiaries. This Agreement is solely for the benefit of the parties hereto and their respective successors and permitted assigns and this Agreement shall not otherwise be deemed to confer upon or give to any other third party any right, claim, cause of action, or other interest herein.

(c)    Notices. Any communications between the parties to the Financing Agreement relating to (i) the Lender and the Borrower shall be given in accordance with Section 9.11 of the Financing Agreement and at the addresses set forth on Schedule 9.1l(a) of the Financing Agreement, and (ii) the Investor relating to this Agreement shall be given in accordance with Section 9.11 of the Financing Agreement to the following address:

Firstar Development, LLC

1307 Washington, Suite 300 St.

Louis, MO 63103

Attention: [***]

Telephone: [***]

Facsimile: [***]

provided, however, that any delay in providing any notice of an Event of Default to the Investor shall not affect the rights of the Lender under the Financing Documents except to determine the commencement of any Investor Cure Period.

(d)    Governing Law. THIS AGREEMENT SHALL BE DEEMED MADE AND PREPARED AND SHALL BE CONSTRUED AND INTERPRETED IN

*** Confidential Treatment Requested

9

ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS THEREOF WHICH MAY REQUIRE THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.

(e)    Headings. The section and paragraph headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning and interpretation of this Agreement.

(f)    Counterparts. This Agreement may be executed in one or more duplicate counterparts, and when executed and delivered by all the parties listed below, shall constitute a single binding agreement. Signatures delivered by facsimile or by PDF shall have the same effect as original signatures.

(g)    Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, (provided the substance of the agreement between the Parties is not thereby materially altered) and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. To the extent permitted by Applicable Law, the Parties hereto hereby waive any provision of law which renders any provision hereof prohibited or unenforceable in any respect.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]

10

IN WITNESS WHEREOF, the parties hereto by their officers thereunto duly authorized, have duly executed this Agreement as of the date first set forth above.

FIRSTAR DEVELOPMENT, LLC, a

Delaware limited liability company

By:	/s/ Matthew Ulrich
Name:	Matthew Ulrich
Title:	Officer

[Signature Page to Interparty Agreement]

2013B ESA PROJECT COMPANY, LLC,

a Delaware limited liability company

By:

Name:

Title:

[Signature Page to Interparty Agreement]

ACCEPTED AND AGREED AS TO THE PROVISIONS OF SECTION 2(c)(i)(C) OF THIS AGREEMENT WITH RESPECT TO THE ABILITY OF THE INVESTOR TO REPLACE BLOOM ENERGY CORPORATION AS THE ADMINISTRATOR OR SELLER, WITHOUT RECOURSE TO OR LIABILITY OF BORROWER OR LENDER.

Bloom Energy Corporation

By	/s/ Martin J. Collins
Name Martin J. Collins Vice President Corporate Development

[Signature Page to Interparty Agreement]

SILICON VALLEY BANK,

asLender

By:

Name:

Title:

[Signature Page to Interparty Agreement]

ANNEX 6

Third Party Consents and Approvals

None.

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

Block DocID

ANNEX 7

Form of Company LLC Agreement

[See Attached]

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

Block DocID

ANNEX 8

Forms of Opinions

[See Attached]

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

Block DocID

CityPlace I

185 Asylum

Street

Hartford

Connecticut

06103

tel 860.509.6500

fax 860.509.6501

August 2, 2013

Firstar Development, LLC

1307 Washington, Suite 300

St. Louis, MO 63103

Attention: Director of Asset Management

Re: Equity Capital Contribution Agreement, dated as of August 2, 2013 by and among

the Class B Member and Firstar Development, LLC (the “ECCA”)

Ladies and Gentlemen:

We have acted as special Connecticut counsel to Clean Technologies 2013B, LLC, a Delaware limited liability company (the “Class B Member”) and 2013B ESA Project Company, LLC, a Delaware limited liability company (the “2013 Project Company”, and together with the Class B Member the “Opinion Parties” and each an “Opinion Party”) in connection with the ECCA. This opinion letter, including the schedules hereto (the “Opinion Letter”), is being furnished to you pursuant to Sections 6.l(c)(iii) and 6.2(f) of the ECCA. Capitalized terms used in this Opinion Letter and not otherwise defined herein shall have the meanings specified in the ECCA.

We note that our representation of the Opinion Parties has been limited to the ECCA and other discrete matters for which we have been engaged.

In connection with this Opinion Letter, we have examined the documents listed as Items I through 4 in Schedule A attached hereto (collectively, the “Documents”). The documents listed as Items I through 3, in Schedule A are referred to herein as the “Transaction Documents.”

We have, without independent investigation, relied upon the representations and warranties of the various parties as to matters of objective fact contained in the Documents.

Except as specifically noted herein, we have not made any independent review or investigation of orders, judgments, rules and regulations decrees, contracts, or agreements by which any Opinion Party or its respective property may be bound, nor have we made any independent investigation as to the existence of actions, suits, investigations, or proceedings, if any, pending or threatened against any Opinion Party.

With your concurrence, the opinions hereinafter expressed, whether or not qualified by language such as “to our knowledge,” are based solely upon (1) our review of the Documents; (2)

Brown Rudnick LLP     an international law firm     Boston | Dublin | Hartford | London | New York | Providence | Washington

Letter to Firstar Development, LLC

August 2, 2013

Page 2 of 5

such review of published sources of law as we have deemed necessary in our professional judgment; and (3) the conscious knowledge of those partners of the firm who have given substantive legal representation to the Opinion Parties.

This firm, in rendering legal opinions, customarily makes certain assumptions which are described in Schedule B attached hereto. In the course of our representation of the Opinion Parties, nothing has come to our attention which causes us to believe that reliance upon any of those assumptions is inappropriate, and thus with your concurrence, the opinions hereinafter expressed are based upon those assumptions.

Our opinions hereafter expressed are limited to the laws of the State of Connecticut.

The opinions hereafter expressed with respect to enforceability are subject to the general qualifications that the parties’ rights and remedies under the Transaction Documents may be subject to and affected by:

(i)    applicable bankruptcy, insolvency, reorganization, receivership, moratorium, assignment for the benefit of creditors laws and other similar laws affecting the rights and remedies of creditors generally under Federal and state law as well as judicially developed doctrines relevant thereto, including without limitation laws regarding fraudulent transfers, fraudulent conveyances, preferences, discharge, conversion of claims, substantive consolidation of entities, avoidance, automatic stay and turn-over;

(ii)    general principles of equity, including without limitation those governing the availability of equitable remedies, affording equitable defenses, requiring good faith, fair dealing and reasonableness in the performance and enforcement of a contract, and affording defenses based upon unconscionability, lack of notice, lack of materiality in any Opinion Party’s breach, impracticability or impossibility of performance;

(iii)    general rules of contract law with respect to matters such as the election of remedies, mutuality of obligations, contribution or exculpation provisions under applicable securities laws or other rules or laws and limitations on the enforceability of provisions related to such matters which are in violation of public policy; and

(iv)    generally applicable rules of law that (a) limit or affect the enforcement of contract provisions that purport to waive obligations of good faith, fair dealing, diligence, and reasonableness; (b) provide that forum selection clauses in contracts are not necessarily binding on the courts in the forum selected; (c) limit the availability of a remedy under certain circumstances where another remedy has been elected; (d) limit the right of a creditor to use force or cause a breach of the peace in enforcing rights; (e) relate to the sale or disposition of collateral or the requirements of a commercially reasonable sale, including, without limitation, statutory cure provisions and rights. of reinstatement and limitations on deficiency judgments; (f) limit the enforceability of provisions releasing, exculpating or exempting a party from, or requiring indemnification of a party for, liability for its own action or inaction, to the extent the action or inaction involves negligence, gross negligence, recklessness, willful misconduct or unlawful conduct; (g) govern and afford judicial discretion regarding the determination of

Letter to Firstar Development, LLC

August 2, 2013

Page 3 of 5

damages and entitlement to attorneys’ fees and other costs; (h) limit the enforceability of disclaimers or waiver of warranties; (i) specify the standard for judicial review of arbitration decisions; and (i) limit or affect the interpretation or enforcement of contract provisions relating to liquidated or stipulated damages.

Certain of the remedial provisions of the Transaction Documents may be further limited or rendered unenforceable by applicable law, but such law would not make the remedies provided under such Transaction Documents and agreements which are otherwise enforceable inadequate for the practical realization of the benefits purported to be provided thereunder, taken as a whole, except for the consequences of procedural or other delays.

We express no legal opinion upon any matter other than those explicitly addressed in numbered paragraphs 1 through 3 below, and our express opinions therein contained shall not be interpreted to be implied opinions upon any other matter. For example, without limiting the generality of the foregoing, unless expressly stated herein, we are rendering no opinion upon the following legal issues, laws or provisions of the Transaction Documents: (a) Federal securities laws and regulations administered by the Securities and Exchange Commission, state “Blue Sky” laws and regulations, and laws and regulations relating to commodity (and other) futures and indices and other similar instruments; (b) Federal Reserve Board margin regulations; (c) pension, labor and employee benefit laws and regulations (e.g., ERISA and the Fair Labor Standards Act); (d) Federal and state antitrust and unfair competition laws and regulations; (e) Federal and state laws and regulations concerning filing and notice requirements (e.g., Hart-Scott-Rodino and Exon-Florio); (f) the Equal Credit Opportunity Act; (g) compliance with fiduciary duty requirements; (h) the ordinances, bylaws, administrative decisions, rules and regulations of municipalities, counties and special political subdivisions (e.g., water agencies, port and transportation authorities, joint power districts and turnpike authorities); (i) the creation, attachment, perfection or priority of any lien on any real or personal property; (i) fraudulent transfer and fraudulent conveyance laws; (k) Federal, state and local environmental laws, land use and subdivision laws and regulations; (l) Federal and state tax laws and regulations (including FIR.PTA); (m) Federal patent, copyright and trademark, state trademark, and other Federal and state intellectual property laws and regulations; (n) Federal and state racketeering laws and regulations (e.g., RICO); (o) Federal and state health and safety laws and regulations (e.g., OSHA); (p) Federal and state laws, regulations and policies concerning (i) national and local emergency; (ii) homeland security or terrorism; (iii) judicial deference to acts of sovereign states; and (iv) criminal and civil forfeiture laws; (q) other Federal and state statutes of general application to the extent they provide for criminal prosecution (e.g., mail fraud and wire fraud statutes); (r) the validity or enforceability under certain circumstances of any provisions which waive statutory rights to receive notice or to be allowed to cure, reinstate or redeem in the event of default; (s) state, county and local road use, building, or construction matters; and (t) permits issued by municipalities under state law.

In rendering this Opinion Letter, we are not passing or opining upon and do not assume any responsibility for the accuracy, sufficiency, completeness or fairness of any statements, representations, warranties, descriptions, information or financial data supplied to the parties with respect to the Documents and we advise you that we have not independently verified the accuracy, sufficiency, completeness or fairness of any of the foregoing.

Letter to Firstar Development, LLC

August 2, 2013

Page 4 of 5

For purposes of this Opinion Letter, we have assumed, without any investigation or inquiry, that (a) each party to the Documents is validly existing and in good standing in the state of its creation and is authorized to do business in and is in good standing in the State of Connecticut; (b) each party to the Documents has full power and authority to execute, deliver and perform its obligations under the Documents; (c) each party to the Documents has been duly authorized to execute and deliver the Documents and all actions or approvals necessary to bind each such party under the Documents have been taken or obtained; (d) the Documents have been duly executed and delivered by all parties thereto; (e) other than the Transaction Documents, each of the Documents is valid, binding and enforceable in accordance with its terms; and (f) the Opinion Parties do not own, lease, maintain, operate, manage or control poles, wires, conduits or other fixtures in, along, over or crossing any public highway, public street or public right-of-way for the transmission or distribution of electricity, for the sale of electricity or for electric distribution-related services.

Based upon and subject to the foregoing, we are of the opinion that:

1. Each Transaction Document constitutes a valid and binding obligation of each Opinion Party that is a party thereto, enforceable under Connecticut law against such Opinion Party in accordance with its terms.

2. The execution and delivery by each of the Opinion Parties of the Transaction Documents to which it is a party does not, and the performance by each Opinion Party of its respective obligations thereunder will not violate any applicable law or any provision of any law of the State of Connecticut, or any regulation thereunder.

3. None of the Opinion Parties is, solely by virtue of entering into and performing its obligations under the Transaction Documents to which it is a party, subject to regulation by the Connecticut Public Utilities Regulatory Authority under Title 16 of the Connecticut General Statutes as a “public service company,” an “electric company” or an “electric distribution company” as such terms are defined in Section 16-1 of the Connecticut General Statutes.

This Opinion Letter is rendered to you for your benefit in connection with the ECCA described in the first paragraph of this Opinion Letter and may not be delivered to, or relied upon by any other party without our prior written consent, except that copies of this Opinion Letter may be furnished to independent auditors and legal counsel in connection with their providing advice regarding such ECCA and to appropriate regulatory authorities or pursuant to an order or legal process of any relevant governmental authority and to your permitted successors and assigns and prospective successors and assigns. We disclaim any obligation to update this Opinion Letter for events occurring or coming to our attention after the date hereof. We hereby consent to reliance hereon by your successors or assigns pursuant to the Transaction Documents, on the condition and understanding that (i) this letter speaks only as of the date hereof, (ii) we have no responsibility or obligation to consider the applicability or correctness of this letter to

Letter to Firstar Development, LLC

August 2, 2013

Page 5 of 5

anyone other than its addressees, or to take into account changes in law, facts or any other developments of which we may later become aware, and (iii) any such reliance by a successor or assign must be actual and reasonable under the circumstances existing at the time of assignment, including any changes in law, facts or any other developments known to or reasonably knowable by the successor or assign at such time.

Very truly yours,

BROWN RUDNICK LLP

PMS/TJR/ARS

SCHEDULE A

LIST OF DOCUMENTS

(1) Energy System Use Agreement No. 20130430.078.C, dated as of May 15, 2013, by and between AT&T Corp. and 2013 Project Company;

(2) Site Lease Agreement dated as of May 15, 2013, by and between The Southern New England Telephone Company by AT&T Services, Inc. and 2013 Project Company;

(3) Site Lease Agreement dated as of May 15, 2013, by and between AT&T Capital Services, Inc. by AT&T Services, Inc. and 2013 Project Company; and

(4) Equity Capital Contribution Agreement, dated as of August 2, 2013 by and among the Class B Member and Firstar Development, LLC (the “ECCA”).

A-1

SCHEDULE B

BROWN RUDNICK LLP STANDARD ASSUMPTIONS

In rendering legal opinions in third party transactions, Brown Rudnick LLP makes certain customary assumptions described below:

1.    Each natural person executing the Documents has sufficient legal capacity to enter

into such Documents.

2.    Each Opinion Party and each other person that is a party to the Documents holds requisite title and rights to any property involved in the Documents and purported to be owned by such person or party.

3.    Except for legal requirements relating to status which we, in the exercise of customary professional diligence, would reasonably recognize as being generally and customarily applicable directly to loan transactions, each party to the Documents has complied with all legal requirements pertaining to its status as such status relates to its rights to enforce the Documents and has satisfied all legal requirements necessary to make the Documents enforceable against such party.

4.    Each Document is accurate, complete and authentic, each original is authentic, each copy conforms to an authentic original and all signatures are genuine.

5.    All official public records are accurate, complete and properly indexed and filed and all statutes, judicial and administrative decisions and agency regulations are available in a format that makes legal research reasonably feasible.

6.    There has not been any mutual mistake of fact or misunderstanding, fraud, duress, or undue influence by or among any of the parties to the Documents.

7.    The conduct of the parties to the Documents has complied in the past and will comply in the future with any requirement of good faith, fair dealing and conscionability.

8.    The Opinion Parties and each other person that is party to the Documents have acted in good faith and without notice of any defense against the enforcement of any rights created by, or adverse claim to any property or security interest transferred or created as part of the Documents.

9.    There are no agreements or understandings among the parties to or bound by the Documents, written or oral, and there is no usage of trade or course of prior dealing among such parties, that would define, modify, waive, or qualify the terms of the Documents.

10.    All parties to or bound by the Documents will refrain from taking any action that is forbidden by, the terms and conditions of the Documents.

B-1

11.    The Opinion Parties will obtain all permits and governmental approvals required in the future, and take all actions similarly required, relevant to subsequent performance of the Documents.

12.    No agreement, franchise, or governmental permit, license, or approval which has been collaterally assigned to the Opinion Parties in the Documents, is subject to any restriction upon assignment or transfer which has not been satisfied.

13.    Each party to the Documents has received the consideration recited in the Documents and that such consideration is adequate in each instance.

B-2

BEIJING BRUSSELS CENTURY CITY HONG KONG JAKARTA! LONDON LOS ANGELES NEWPORT BEACH Times Square Tower 7 Times Square New York, New York 10036-6524   TELEPHONE (212) 326-2000 FACSIMILE (212) 326-2061 www.omm.com SAN FRANCISCO SEOUL SHANGHAI SILICON VALLEY SINGAPORE TOKYO WASHINGTON, D.C.

August 2, 2013

Firstar Development, LLC

1307 Washington, Suite 300

St. Louis, MO 63103

Attention: Director of Asset Management

Re: 2013B BSA Holdco, LLC — Execution Date

Ladies and Gentlemen:

This opinion letter consists of two parts. Part I addresses certain corporate law matters and Part II addresses certain federal regulatory matters.

We have acted as counsel to (i) 2013B BSA Project Company, LLC, a Delaware limited liability company (the “Project Company”), (ii) 2013B BSA Holdco, LLC, a Delaware limited liability company (“Holdco”), (iii) Clean Technologies 2013B, LLC, a Delaware limited liability company (“Class B Member”) and (iv) Bloom Energy Corporation, a Delaware corporation (“Sponsor” and, together with the Project Company, Holdco and the Class B Member, the “Opinion Parties”), in connection with the preparation, execution and delivery of (A) the Equity Capital Contribution Agreement, dated as of August 2, 2013 (the “ECCA”), by and between the Class B Member and Firstar Development, LLC (“Investor”) and (B) the other Transaction Documents (as defined below). Unless otherwise indicated, capitalized terms used but not defined herein shall have the respective meanings set forth in the ECCA.

In our capacity as such counsel, we have examined originals or copies of those corporate and other records and documents we considered appropriate, including the following:

(i) the ECCA;

(ii) the Guaranty;

(iii) the Interparty Agreement;

(iv) the Guarantor Account Agreement;

(v) the MESPSA

† In association with Tumbuan & Partners

(vi) the Administrative Services Agreement;

(vii) the Energy System Use Agreement No. 20130430.072.C, dated as of May 15, 2013, by and between the Project Company and Pacific Bell Telephone Company (“PPAl”);

(viii) the Energy System Use Agreement No. 20130430.076.C, dated as of May 15, 2013, by and between the Project Company and Pacific Bell Telephone Company (“PPA2”);

(ix) the Site Lease Agreement, dated as of May 15, 2013, by and between Project Company and Pacific Bell Telephone Company, relating to PPAl ;

(x) the Site Lease Agreement, dated as of May 15, 2013, by and between Project Company and Pacific Bell Telephone Company, relating to PPA2;

(xi) the IP License;

(xii) the IP Security Agreement;

(xiii) the Energy System Use Agreement No. 20130430.078.C, dated as of May 15, 2013, by and between the Project Company and AT&T Corp. (“PPA3”);

(xiv) the Site Lease Agreement, dated as of May 15, 2013, by and between Project Company and AT&T Corp, relating to PPA3;

(xv) the Site Lease Agreement, dated as of May 15, 2013, by and between the Project Company and AT&T Corp., relating to PPA3;

(xvi) the Site Lease Agreement, dated as of May 15, 2013, by and between the Project Company and Southern New England Company, relating to PPA3;

(xvii) the Energy System Use Agreement No. 20130403.075.C, dated as of May 15, 2013, by and between the 2012 ESA and Pacific Bell Telephone Company (“PPA4”);

(xviii) the Site Lease Agreement, dated as of May 15, 2013, by and between 2012 ESA and Pacific Bell Telephone Company, relating to PPA4;

(xix) the Energy System Use Agreement No. 20130403.076.C, dated as of May 15, 2013, by and between the 2012 ESA and AT&T Corp. (“PPA5”); and

(xx) the Site Lease Agreement, dated as of May 15, 2013, by and between 2012 ESA and AT&T Corp., relating to PPA5.

The documents described in the foregoing clauses (i) through (xvi) are collectively referred to herein as the “Transaction Documents”. The documents described in the foregoing clauses (i) through (vi) are collectively referred to herein as the ‘’New York Transaction Documents”. The documents described in the foregoing clauses (vii) through (x) are collectively referred to herein as the “California Transaction Documents”.

[***] Confidential Treatment requested.

2

In our capacity as such counsel, we have examined executed counterparts of each of the Transaction Documents. We have also examined and relied upon the accuracy of the originals or certified, conformed, photocopied or telecopied copies of such corporate records, certificates (including (i) officer’s certificates, dated the date hereof, delivered by the Opinion Parties relating to certain corporate and factual matters of the Opinion Parties, and (ii) incumbency certificates, dated the date hereof, delivered by the Opinion Parties), instruments and other documents as we have deemed necessary or appropriate to enable us to render the opinions expressed herein.

In our review of the Transaction Documents and other documents, we have assumed the genuineness of signatures on original documents and the conformity to such original documents of all copies submitted to us as certified, conformed, photocopied or telecopied copies, and as to certificates and telegraphic and telephonic confirmations given by public officials, we have assumed the same to have been properly given and to be accurate. As to all matters of fact material to our opinions, we have relied, without investigation, upon representations and warranties contained in the Transaction Documents and upon the statements and certificates furnished thereunder or by public officials.

PART — CORPORATE

Part I of this opinion is being furnished to you pursuant to Section 6.l(c)(i) and 6.l(c)(ii) of the ECCA. On the basis of such examination, our reliance upon the assumptions in this opinion and our consideration of those questions of law we considered relevant, and subject to the limitations and qualifications in this opinion, we are of the opinion that:

1.    Based solely on the certificates of good standing issued by the Secretary of State of the State of Delaware attached hereto as Exhibit A (which we have assumed remain accurate on the date of this opinion letter), each Opinion Party is a limited liability company or corporation, as applicable, validly existing and in good standing under the laws of the State of Delaware.

2.    Each of the Opinion Parties has the power under the current Delaware Limited Liability Company Act (the ‘‘Delaware LLC Act”) and the Delaware General Corporation Law (the “DGCL”), as applicable, and its certificate of formation and limited liability company agreement or its articles of incorporation and bylaws, as applicable (together, its “Organizational Documents”), to enter into and perform its obligations under each Transaction Document to which it is a party.

3.    The execution, delivery and performance by each Opinion Party of each Transaction Document to which such Opinion Party is a party have been duly authorized by all necessary action on the part of such Opinion Party under the Delaware LLC Act and the DGCL, as applicable, and such Opinion Party’s Organizational Documents, and each such Transaction Document has been duly executed and delivered by such Opinion Party.

3

4.    The execution and delivery by each Opinion Party of each Transaction Document to which such Opinion Party is a party do not, and such Opinion Party’s performance of its respective obligations thereunder will not, violate the Organizational Documents of such Opinion Party.

5.    The execution and delivery by each Opinion Party of each Transaction Document to which such Opinion Party is a party do not, and such Opinion Party’s performance of its respective obligations thereunder will not, (i) violate the Delaware LLC Act or the DGCL, as applicable, or any current California (with respect to the California Transaction Documents), New York (with respect to the New York Transaction Documents) or federal statute, rule or regulation that we have, in the exercise of customary professional diligence, recognized as applicable to such Opinion Party or to transactions of the type contemplated by the Transaction Document(s) to which such Opinion Party is a party or (ii) result in the breach, or constitute a default under, any of the other Transaction Documents.

6.    No order, consent, permit, approval or any other action of, notice to, or qualification or filing with, of any California (with respect to the California Transaction Documents), New York (with respect to the New York Transaction Documents) or federal governmental authority that we have, in the exercise of customary professional diligence, recognized as applicable to any of the Opinion Parties or to transactions of the type contemplated by the Transaction Documents, is required on the part of any Opinion Party for the execution and delivery nor for the performance of such Party’s obligations under of the Transaction Document(s) to which such Opinion Party is a party, except for such as have been obtained.

7.    Each of the California Transaction Documents and New York Transaction Documents to which an Opinion Party is a party constitutes a legally valid and binding obligation of such Opinion Party, enforceable against such Opinion Party in accordance with its respective terms, except as may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws relating to or affecting creditors’ rights generally (including, without limitation, :fraudulent conveyance laws) and by general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific performance or injunctive relief, regardless of whether considered in a proceeding in equity or at law.

8.    A California court, in applying the law to the relevant facts, should give effect to the parties’ choice of law by applying the substantive laws of the State of New York or, in the case of each of the Facility Company LLC Agreement, the Company LLC Agreement, and the Limited Liability Company Agreement of the Class B Member (the “Class B Member LLC Agreement”), Delaware (rather than those of the State of California) in construing and enforcing those provisions of the Transaction Documents which call for the application of New York or Delaware law.

9.    If, notwithstanding the choice of New York law or, in the case of each of the Facility Company LLC Agreement, the Company LLC Agreement, and the Class B Member LLC Agreement, Delaware law made by the parties to govern any Transaction Document, the Transaction Documents were deemed to be governed by the laws of California, upon their execution and delivery, each shall constitute the legal, valid and binding obligations of the

4

parties thereto, enforceable in accordance with the terms thereof, subject, in each case, as to enforceability, bankruptcy, insolvency, reorganization and other similar laws affecting the enforcement of creditor rights generally, and, as to the availability of specific performance or other injunctive relief, subject to the discretionary power of a court to deny such relief and to general equitable principles.

10.    None of any of Holdco, Project Company, Sponsor, the Class B Member or the Investor will by virtue of entering into and performing its obligations under the Transaction Documents, to which it is a party, be subject to the regulatory jurisdiction of the California Public Utilities Commission as a “public utility” or an “electrical corporation, as defined in Sections 216 or 218, respectively, of the California Public Utilities Code.

11.    Assuming that the Investor’s contact with California is solely as a passive equity investor in Holdco, as more particularly set forth in the Transaction Documents (as to which we express no opinion), it is not necessary for the Investor to qualify to do business in the State of California solely to enter the Transaction Documents to which it is a party, and enforce the provisions thereunder against any Opinion Party.

PART 11 — FEDERAL REGULATORY

Part II of this opinion is being furnished to you pursuant to Section 6.l(c)(i) of the ECCA.

12.    Each of Sponsor, Class B Member, and Holdco (collectively, “Holdco Parties”) is, or will be as a consequence of the transactions contemplated under the Transaction Documents, a “holding company’’ as defined in the Public Utility Holding Company Act of 2005 (“PUHCA”). In its capacity as a holding company, each of the Holdco Parties qualifies for the waiver provided in 18 C.F.R. Section 366.3(c) from the Federal Energy Regulatory Commission’s (“FERC”) accounting, record-retention and reportingrequirements of 18 C.F.R. Sections 366.21, 366.22, and 366.23.

13.    The execution and delivery by each Opinion Party of the Transaction Document to which such Opinion Party is a party, and the performance of its obligations thereunder, does not require any consent, approval or authorization from, or any other action of, notice to, qualification or filing with, FERC other than notifications with respect to the Opinion Parties’ holding company status and qualification for waiver under 18 C.F.R. Sections 366.4 and 366.3(C)(1).

OTHER MATTERS

In rendering the opinions expressed herein, we have assumed that as of the date hereof and at all other times relevant for this opinion (i) each of the parties to each of the Transaction Documents (other than, to the extent of our opinions set forth above, each of the Opinion Parties) is duly incorporated, organized or formed, validly existing and in good standing under the laws of all jurisdictions where they are conducting their businesses (including their jurisdiction of incorporation, organization or formation), (ii) each of the parties to each of the Transaction Documents (other than, to the extent of our opinions set forth above, each of the Opinion Parties) has the requisite power, authority and legal right to enter into, and perform its respective

5

obligations under the Transaction Documents to which it is a party, (iii) each of the Transaction Documents has been duly authorized, executed and delivered by each respective party thereto (other than, to the extent of our opinions set forth above, each of the Opinion Parties), (iv) each Transaction Document constitutes a legally valid and binding obligation of each party thereto (other than, to the extent of our opinions set forth above, each of the Opinion Parties), enforceable against each of such . parties in accordance with the terms thereof, and (v) the transactions provided for in the Transaction Documents are exempt from, or will not involve any transaction which is subject to, the prohibitions of Section 406 of the Employee Retirement Income Security Act of 1974, as amended (“BRISA”) or Section 4975 of the Internal Revenue Code of 1986, as amended (the “Code”), and will not involve any transaction in connection with which a penalty could be imposed under Section 502(1) of BRISA or a tax could be imposed under Section 4975 of the Code.

For purposes of the opinions expressed in paragraphs 4 and 5, we have assumed that the Opinion Parties will not in the future take any discretionary action (including a decision not to act) permitted by the Transaction Documents that would cause the performance of any Transaction Document to (i) violate the Delaware LLC Act, the DGCL or any current California (with respect to the California Transaction Documents), New York (with respect to the New York Transaction Documents or federal statute, rule or regulation or (ii) violate the Organizational Documents of any Opinion Party. In addition, we do not express any opinion with respect to any orders, consents, permits, filings or approvals that may be necessary in connection with the business or operations of any Opinion Party (other than to the extent of our opinion set forth in Paragraph 6).

Our opinion in paragraph 7 above as to the enforceability of the California Transaction Documents and New York Transaction Documents is subject to: (i) public policy considerations, statutes or court decisions that may limit the rights of a party to obtain indemnification against its own negligence, willful misconduct or unlawful conduct; (ii) the unenforceability under certain circumstances of broadly or vaguely stated waivers or waivers of rights granted by law where the waivers are against public policy or prohibited by law; (iii) the unenforceability under certain circumstances of provisions imposing penalties, liquidated damages or other economic remedies; (iv) the unenforceability under certain circumstances of provisions appointing one party as trustee for an adverse party or provisions for the appointment of a receiver; (v) the unenforceability of covenants not-to-compete; (vi) the unenforceability under certain circumstances of choice of law provisions; (vii) the unenforceability of confession of judgment provisions; and (viii) the unenforceability of provisions waiving a right to a jury trial.

For purposes of paragraph 12 above we also have relied on the Form FERC-65, Revised Notification of Holding Company Status, filed by Sponsor with FERC in Docket No. HCB-1- 000 on January 14, 2013, and the Form FERC-65 B, Notification of Waiver of Bloom Energy Corporation, filed by Sponsor with FERC in Docket No. PHB-9-000 on January 14, 2013. In addition, we have assumed, with your permission, that Sponsor, on behalf of the Holdco Parties, will file with FERC on or before the Initial Funding Date (and, to the extent, if any, required, each True Up Funding Date) the appropriate notifications of holding company status and waiver, consistent with the requirements of 18 C.F.R. Section 366.4, informing FERC of each additional “holding company” and “public-utility company’’ (as such terms are defined in PUHCA) in the Sponsor holding company system and any other material change resulting from such funding and

6

notifying FERC that the Holdco Parties qualify for the waiver from the FERC regulatory requirements under 18 C.F.R. Section 366.3(c)(l). In addition, we assume, with your permission, that at the time of each Initial Funding Date and each True Up Funding Date, that Sponsor, together with each subsidiary in which it owns, controls, or holds with power to vote 10 percent or more of the outstanding voting securities, or any other company that has been determined by FERC to be a “subsidiary company” (as such term is defined in PUHCA) of Sponsor, derives no more than 13 percent of its public-utility company revenues from outside the State of California. For the purpose of the immediately preceding sentence, “public-utility company revenues” means revenues from any company that owns or operates facilities used for (i) generation, transmission, or distribution of electric energy for sale (not including companies that engage only in marketing of electric energy, “exempt wholesale generators,” “qualifying facilities,” or “foreign utility companies” (as such terms are defined in 18 C.F.R. Sections 366.1 and 292.101) or (ii) distribution at retail of natural or manufactured gas for heat, light, or power (not including companies that engage only in marketing of natural and manufactured gas).

We express no opinion with respect to your ability to collect attorneys’ fees and costs in an action involving the California Transaction Documents if you are not the prevailing party in that action (we call your attention to the effect of Section 1717 of the California Civil Code, which provides that where a contract permits one party thereto to recover attorneys’ fees, the prevailing party in any action to enforce any provision of the contract shall be entitled to recover its reasonable attorneys’ fees).

We express no opinion as to any provision of any of the Transaction Documents requiring written amendments or waivers of the Transaction Documents insofar as it suggests that oral or other modifications, amendments or waivers could not be effectively agreed upon by the parties or that the doctrine of promissory estoppel might not apply.

We express no opinion as to the effect of non-compliance by you with any state or federal laws or regulations applicable to the transactions contemplated by the Transaction Documents because of the nature of your business.

We express no opinion as to any provision of the Transaction Documents insofar as they purport to grant a right of setoff in respect of any Opinion Party’s assets to any person other than a creditor of such Opinion Party.

We advise you that any provisions of the California Transaction Documents providing for exclusive or non-exclusive jurisdiction of the courts of the State of California and federal courts sitting in the State of California, may not be binding on the courts in the forum(s) selected or excluded.

We express no opinion as to (i) provisions that attempt to change or waive rules of evidence or fix the method or quantum of proof to be applied in litigation or similar proceedings or (ii) arbitration provisions that provide for judicial review of arbitration awards.

The law covered by this opinion is limited to the present federal law of the United States, the present law of the State of California, the present law of the State of New York, the present Delaware LLC Act, the present DGCL and Article 9 of the Delaware Uniform Commercial Code

7

as in effect on the date hereof. We express no opinion as to the laws of any other jurisdiction and no opinion regarding the statutes, administrative decisions, rules, regulations or requirements of any county, municipality, subdivision or local authority of any jurisdiction. We express no opinion concerning, or with respect to the effect of, (i) federal or state securities laws or regulations, (ii) federal or state antitrust, unfair competition or trade practice laws or regulations, (iii)    pension and employee benefit laws and regulations, (iv) compliance with fiduciary requirements, (v) federal or state environmental laws and regulations, (vi) federal, state or local land use, zoning or subdivision laws or regulations, (vii) federal or state laws with respect to public utilities, except, with respect to the opinions in paragraph 10, the California Public Utilities Code, and with respect to the opinions in Part II of this opinion, the Federal Power Act, the Public Utility Regulatory Policies Act of 1978 and PUHCA, or (viii) the Trading with the Enemy Act, as amended, the foreign assets control regulations of the United States Treasury Department, the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT Act) Act of 2001, as amended, Executive Order No. 13,224 of September 24, 2001, Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit or Support Terrorism, as amended, and any enabling legislation, rules, regulations or executive orders relating thereto.

This opinion is furnished by us as counsel for the Opinion Parties and may be relied upon by you only in connection with the transactions contemplated by the Transaction Documents. It may not be used or relied upon by you for any other purpose or by any other person, nor may copies be delivered to any other person, without in each instance our prior written consent. You may, however, deliver a copy of this opinion to your accountants, attorneys, and other professional advisors, to governmental regulatory agencies having jurisdiction over you which require you to furnish this opinion. This opinion is expressly limited to the matters set forth above, and we render no opinion, whether by implication or otherwise, as to any other matters. This letter speaks only as of the date hereof and we assume no obligation to update or supplement this opinion to reflect any facts or circumstances that arise after the date of this opinion and come to our attention, or any future changes in laws.

Very Truly Yours

8

EXHIBIT A

Good Standings

9

Delaware   The First State   PAGE 1

I , JEFFREY W. BULLOCK , SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THAT “BLOOM ENERGY CORPORATION” IS DULY INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE AND IS IN GOOD STANDING AND HAS A LEGAL CORPORATE BX I STENCB NOT HAVING BEBN CANCELLED OR DISSOLVED SO FAR AS THE RECORDS OF THIS OFFICE SHOW AND IS DULY AUTHORIZED TO TRANSACT BUSINESS.

THE FOLLOWING DOCUMBNTS HAVE BEEN FILED:

CERTIFICATE OF INCORPORATION, FILED THE EIGHTEENTH DAY OF JANUARY, A.D. 2001, AT 2 O’CLOCK P.M.

RESTATED CERTIFICATE, FILED TBE SECOND DAY OF MAY, A. D. 2002, AT 9 O ‘CLOCK A.M.

RESTATED CERTIFICATE, FILED THE TWENTY-EIGHTH DAY OF AUGUST, A.D. 2003, AT 4:54 O ‘CLOCK P.M.

RESTATED CERTIFICATE, FILED THE TWENTY-EIGHTH DAY OF JANUARY, A.D. 2004, AT 8:17 O ‘ CLOCK P.M.

RESTATED CERTIFICATE, FILED THE EIGHTS DAY OF SEPTEMBER, A.D. 2004, AT 8:17 O ‘CLOCK A.M.

RESTATED _ CERTIFICATE, FILED THE TWENTY-SECOND DAY OF DECEMBER, A.D. 2004, AT 7:42 O ‘CLOCK P.M.

RESTATED CERTIFICATE, FILED THE SEVENTH DAY OF MARCH, A.D. 2006, AT 8:06 O ‘CLOCK P.M.

Delaware   The First State PAGE 2

CERTIFICATE OF AMENDMENT, CHANGING ITS NAME .FROM “ION AMERICA CORPORATION” TO “BLOOM ENERGY CORPORATION”, FILED THE TWENTIETH DAY OF SEPTEMBER , A.D. 2006, AT 10 O ‘CLOCK A.M.

RESTATED CERTIFICATE, FILED THE THIRTY-FIRST DAY OF OCTOBER, A.D. 2007, AT 9:44 O ‘ CLOCK A.M.

RESTATED CERTIFICATE, FILED THE THIRD DAY OF MARCH, A.D. 2009, AT 8:55 O ‘CLOCK A.M.

RESTATED CERTIFICATE, FILED THE FIRST DAY OF APRIL, A.D. 2009, AT 4:11 O ‘CLOCK P.M.

CERTIFICATE OF AMENDMENT, FILED THE TWENTY-SECOND DAY OF DECEMBER, A.D. 2009, AT 6:40 O ‘ CLOCK P.M.

CERTIFICATE OF AMENDMENT, FILED THE SECOND DAY OF JUNE, A.D. 2010, AT 4:33 O ‘CLOCK P.M.

CERTIFICATE OF AMENDMENT, FILED THE TWENTY-NINTH DAY OF OCTOBER, A.D. 2010, AT 11:54 O ‘CLOCK A.M.

CERTIFICATE OF AMENDMENT, FILED THE FIFTEENTH DAY OF MARCH, A.D. 2011, AT 2:30 O ‘ CLOCK P.M.

RESTATED CERTIFICATE, FILED THE TWENTY-NINTH DAY OF JUNE, A.D. 2011, AT 7:53 O ‘CLOCK P.M.

Delaware   The First State PAGE 3

CERTIFICATE OF AMENDMENT, FILED THE SEVENTH DAY OF MAY, A.D. 2012, AT 1:44 O’CLOCK P.M

CERTIFICATE OF AMENDMENT, FI LED TBE SEVENTH DAY OF MARCH, A.D. 2013, AT 3: 24 O ‘ CLOCK P.M.

CERTIFICATE OF AMENDMENT, FILED THE TWENTIETH DAY OF MAY, A.D. 2013, AT 8 O ‘CLOCK A.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATES ARE THE ONLY CERTIFICATES ON RECORD OF THE AFORESAID CORPORATION, “BLOOM ENERGY CORPORATION”.

AND I DO HEREBY FURTHER CERTIFY THAT THE ANNUAL REPORTS HAVE BEEN FILED TO DATE.

AND I DO HEREBY FURTHER CERTIFY THAT THE FRANCHISE TAXES HAVE BEEN PAID TO DATE.

Delaware   The First State PAGE 1

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THAT “CLEAN TECHNOLOGIES 2013B, LLC” IS DULY FORHBD UNDER THE LAWS OF THE STATE OF DELAWARE AND IS IN GOOD STANDING AND HAS A LEGAL EXISTENCE NOT HAVING BEEN CANCELLED OR REVOKED SO FAR AS THE RECORDS OF THIS OFFICE SHOW AND IS DULY AUTHORIZED TO TRANSACT BUSINESS.

THE FOLLOWING DOCUNENT HAS BEEN FILED:

CERTIFICATE OF FORMATION, FILED THE NINETEENTH DAY OF FEBRUARY, A.D. 2013, AT’ 5:02 O ‘CLOCK P.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATE IS THE ONLY PAPER OF RECORD, THE LIMITED LIABILITY COMPANY IN QUESTION NOT HAVING FILED AN AMENDMENT NOR HAVING MADE ANY CHANGE WHATSOEVER IN THE ORIGINAL CERTIFICATE AS FILED.

AND I DO HEREBY FURTHER CERTIFY THAT THE ANNUAL TAXES HAVE NOT BEEN ASSESSED TO DATE.

Delaware   The First State PAGE 1

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THAT “2013B ESA HOLDCO, LLC” IS DULY FORMED UNDER THE LAWS OF THE STATE OF DELAWARE AND IS IN GOOD STANDING AND HAS A LEGAL EXISTENCE NOT HAVING BEEN CANCELLED OR REVOKED SO FAR AS THE RECORDS OF THIS OFFICE SHOW AND IS DULY AUTHORIZED TO TRANSACT BUSINESS.

THE FOLLOWING DOCUMENT HAS BEEN FILED:

CERTIFICATE OF FORMATION, FILED THE NINETEENTH DAY OF FEBRUARY, A.D. 2013, AT 5:03 O ‘CLOCK P.M.

AND I DO HEREBY FURTHER CERTIFY THAT THE AFORESAID CERTIFICATE IS THE ONLY PAPER OF RECORD, THE LIMITED LIABILITY COMPANY IN QUESTION NOT HAVING FILED AN AMENDMENT NOR HAVING MADE ANY CHANGE WHATSOEVER IN THE ORIGINAL CERTIFICATE AS FILED.

AND I DO HEREBY FURTHER CERTIFY THAT THE ANNUAL TAXES HAVE NOT BEEN ASSESSED TO DATE.

Delaware   The First State PAGE 1

I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY THAT “2013B ESA PROJECT COMPANY, LLC” I S DULY FORMED UNDER THE LAWS OF THE STATE OF DELAWARE AND I S IN GOOD STANDING AND HAS A LEGAL EXI STENCE NOT HAVING BEEN CANCELLED OR REVOKED SO FAR AS THE RECORDS OF THIS OFFICE SHOW AND I S DULY AUTHORIZED TO TRANSACT BUSINESS.

THE FOLLOWING DOCUMENT HAS BEEN FILED:

CERTIFICATE OF FORMATION, FILED THE NINETEENTH DAY OF FEBRUARY, A.D. 2013, AT 5:04 O’CLOCK P.M.

AND I DO HEREBY FURTHER CERTIFY THAT TBE AFORESAID CERTIFICATE IS THE ONLY PAPER OF RECORD, THE LIMITED LIABILI TY COMPANY IN QUESTION NOT HAVING FILED AN AMENDMENT NOR HAVING MADE ANY CHANGE WHATSOEVER IN THE ORIGINAL CERTIFICATE AS FILED.

AND I DO HEREBY FURTHER CERTIFY THAT THE ANNUAL TAXES HAVE NOT BEEN ASSESSED TO DATE.

ANNEX 9

Form of Estoppel Certificate

ESTOPPEL CERTIFICATE

This ESTOPPEL CERTIFICATE (this “Estoppel Certificate”), dated as of [●], is executed by Bloom Energy Corporation (the “Undersigned”).

A. Firstar Development, LLC, a Delaware limited liability company (the “Investor”) will make certain investments in 2013B ESA Holdco, LLC (the “Company”), which is the sole member of 2013B ESA Project Company, LLC (“Facility Company”);

B. The Undersigned, the Company and the Facility Company have entered into that certain Administrative Services Agreement, dated as of [●] (the “ASA”);

C. The Undersigned and the Facility Company have entered into that certain Master Energy Server Purchase and Services Agreement, dated as of [●], dated as of [●], (together with the ASA, the “Agreements”); and

D. The delivery of this Estoppel Certificate by the Undersigned is a condition to the investments by the Investor in the Company.

The Undersigned hereby confirms to the Investor as of the date first written above that:

1. The Undersigned is not in default under any of the Agreements, and to the knowledge of the Undersigned, no default, breach or other event has occurred or circumstances exist that constitute or, with the giving of notice or the passage of time (including during any applicable grace period) or both, would constitute a default under any of the Agreements.

2. As of the date hereof, (i) each Agreement is the entire agreement between the Undersigned and the Facility Company with respect to the matters set forth therein, and each Agreement is in full force and effect and has not been amended, supplemented or modified since the date of execution thereof (other than as described above), (ii) all of the conditions precedent to the effectiveness of each Agreement as against the Undersigned have been satisfied, (iii) there are no disputes or proceedings between the Undersigned and the Facility Company, (iv) the Undersigned is not aware of any event, act, circumstance or condition constituting an event of force majeure (as defined in the applicable Agreement), (v) each of the Undersigned and the Facility Company does not currently owe any indemnity payments under any of the Agreements and (vi) to the Undersigned’s knowledge there are no facts entitling the Undersigned to any claim, counterclaim, offset or defense against the Facility Company in respect of any of the Agreements.

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

Block DocID

3. All payments, costs and expenses required to be paid by the Facility Company to the Undersigned under the Agreements as of the date hereof have been paid by or on behalf of the Facility Company.

4. All representations made by the Undersigned under the Agreements are true and correct as of the date hereof.

5. The execution, delivery and performance by the Undersigned of this Estoppel Certificate have been duly authorized by all necessary corporate action and do not and will not require any further consents, filings or approvals that have not been made or obtained or violate any order, judgment, injunction or similar matters or breach any agreement presently in effect with respect to or binding on the Undersigned.

6. This Estoppel Certificate is a legal, valid and binding obligation of the Undersigned, enforceable against the Undersigned in accordance with its terms except as may be limited by bankruptcy, reorganization, insolvency, moratorium and other laws affecting creditors’ rights in general and except to the extent that the availability of equitable remedies is subject to the discretion of the court before which any proceeding therefore may be brought.

7. Except as pursuant to the Security Agreement, dated as of [●], [●], between the Facility Company and Silicon Valley Bank, the Undersigned has not received notice of any assignment of the right, title and interest of the Facility Company in, to and under any of the Agreements, nor has the Undersigned assigned any of its right, title and interest or liabilities and obligations in, to and under any of the Agreements.

9. There are no proceedings pending or, to the Undersigned’s present knowledge, threatened against or affecting the Undersigned in any court or by or before any governmental authority or arbitration board or tribunal that could reasonably be expected to have a material adverse effect on the ability of the Undersigned to perform its obligations under, or that purport to affect the legality, validity or enforceability of, any of the Agreements.

10. This Estoppel Certificate shall be governed by the laws of the State of New York, without regard to principles of conflicts of law.

Executed this [●] day of [●], [●].

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

Block DocID

Bloom Energy Corporation

By:

Print Name:

Title:

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

Block DocID

ANNEX 10-A

Form of Amendment to Power Purchase Agreement (AT&T PPA Customer 1)

[Please see attached]

ANNEX 10-A

Form of Amendment to Power Purchase Agreement (AT&T PPA Customer 1)

THIS FIRST AMENDMENT TO ENERGY SYSTEM USE AGREEMENT, dated as of                     , 2013 (this “First Amendment”), is by and between [2012 ESA Project Company, LLC] [2013B ESA Project Company, LLC], a Delaware limited liability company (“Supplier”) and Pacific Bell Telephone Company, a California corporation (“Customer”, and together with Supplier, the “Parties”).

A.    The Parties entered into that certain Energy System Use Agreement No. [20130403.075.C] [20130430.072.C], dated as of May 15, 2013, as amended, modified, or supplemented from time to time (the “Energy System Use Agreement”).

A. The Parties desire to delete Exhibit C to the Energy System Use Agreement and to replace it with the revised version of such exhibit, attached hereto as Attachment A.

NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, and subject to the conditions set forth herein, the Parties hereby agree as follows:

SECTION 1. Amendment. Exhibit C to the Energy System Use Agreement is hereby amended by deleting entirely such exhibit and replacing it with the Exhibit C to Energy System Use Agreement, attached hereto as Attachment A.

SECTION 2. Governing Law; Venue. This First Amendment will be governed and construed in accordance with the laws of the State of California (without giving effect to its conflicts of laws provisions that could apply the law of another jurisdiction). All lawsuits shall be filed in or removed to state or federal court in Santa, Clara County, California.

SECTION 3. Counterparts. This First Amendment may be executed by one or more of the Parties on any number of separate counterparts, by facsimile or electronic mail, and all of said counterparts taken together shall be deemed to constitute one and the same instrument; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signatures are physically attached to the same document. A facsimile or portable document format (“pdf”) signature page shall constitute an original for all purposes hereof.

SECTION 4. Headings. The Section headings used herein are for convenience of reference only, are not part of this First Amendment and shall not affect the construction of, or be taken into consideration in interpreting, this First Amendment.

SECTION 5. Severability. Any provision of this First Amendment that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

[SIGNATURE PAGES FOLLOW]

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

Block DocID

IN WITNESS WHEREOF, the Parties have caused this First Amendment to be executed and delivered as of the date first above written.

SUPPLIER [2012 ESA PROJECT COMPANY, LLC]	CUSTOMER PACIFIC BELL TELEPHONE COMPANY
[2013B ESA PROJECT COMPANY, LLC]	By: AT&T SERVICES, INC., its authorized representative

By:	By:
Name:	Name:
Title:	Title:

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

Block DocID

Attachment A

EXHIBIT C TO ENERGY SYSTEM USE AGREEMENT

ENERGY SERVER MONTHLY RATE

The total monthly usage fee will be calculated using the following formula:

Monthly Rate X mmBTU consumed X system Efficiency

MONTHLY RATE:

Rate in Year	Monthly Rate ($/mmBTU)
1	$	[***]
2	$	[***]
3	$	[***]
4	$	[***]
5	$	[***]
6	$	[***]
7	$	[***]
8	$	[***]
9	$	[***]
10	$	[***]
11	$	[***]
12	$	[***]
13	$	[***]
14	$	[***]
15	$	[***]
16	$	[***]
17	$	[***]
18	$	[***]
19	$	[***]
20	$	[***]

[***] Confidential Treatment Requested

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

Block DocID

ANNEX 10-B

Form of Amendment to Power Purchase Agreement (AT&T PPA Customer 2)

[Please see attached]

ANNEX 10-B

Form of Amendment to Power Purchase Agreement (AT&T PPA Customer 2)

THIS FIRST AMENDMENT TO ENERGY SYSTEM USE AGREEMENT, dated as of ,

2013 (this “First Amendment”), is by and between 2012 ESA Project Company, LLC, a Delaware limited liability company (“Supplier”) and AT&T Corp., a Delaware corporation (“Customer”, and together with Supplier, the “Parties”).

A.    The Parties entered into that certain Energy System Use Agreement No. 20130403.076.C, dated as of May 15, 2013, as amended, modified, or supplemented from time to time (the “Energy System Use Agreement”).

B.    The Parties desire to delete Exhibit C to the Energy System Use Agreement and to replace it with the revised version of such exhibit, attached hereto as Attachment A.

NOW, THEREFORE, in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, and subject to the conditions set forth herein, the Parties hereby agree as follows:

SECTION 1. Amendment. Exhibit C to the Energy System Use Agreement is hereby amended by deleting entirely such exhibit and replacing it with the Exhibit C to Energy System Use Agreement, attached hereto as Attachment A.

SECTION 2. Governing Law; Venue. This First Amendment will be governed and construed in accordance with the laws of the State of California (without giving effect to its conflicts of laws provisions that could apply the law of another jurisdiction). All lawsuits shall be filed in or removed to state or federal court in Santa, Clara County, California.

SECTION 3. Counterparts. This First Amendment may be executed by one or more of the Parties on any number of separate counterparts, by facsimile or electronic mail, and all of said counterparts taken together shall be deemed to constitute one and the same instrument; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signatures are physically attached to the same document. A facsimile or portable document format (“pdf”) signature page shall constitute an original for all purposes hereof.

SECTION 4. Headings. The Section headings used herein are for convenience of reference only, are not part of this First Amendment and shall not affect the construction of, or be taken into consideration in interpreting, this First Amendment.

SECTION 5. Severability. Any provision of this First Amendment that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

[SIGNATURE PAGES FOLLOW]

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

Block DocID

IN WITNESS WHEREOF, the Parties have caused this First Amendment to be executed and delivered as of the date first above written.

SUPPLIER	CUSTOMER
2012 ESA PROJECT COMPANY, LLC	AT&T CORP. By: AT&T SERVICES, INC., its authorized representative
By:	By:
Name:	Name:
Title:	Title:

EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

Block DocID

Attachment A

EXHIBIT C TO ENERGY SYSTEM USE AGREEMENT

ENERGY SERVER MONTHLY RATE

The total monthly usage fee will be calculated using the following formula:

Monthly Rate X mmBTU consumed X system Efficiency

MONTHLY RATE:

Rate in Year	Monthly Rate ($/mmBTU)
1	$	[***]
2	$	[***]
3	$	[***]
4	$	[***]
5	$	[***]
6	$	[***]
7	$	[***]
8	$	[***]
9	$	[***]
10	$	[***]
11	$	[***]
12	$	[***]
13	$	[***]
14	$	[***]
15	$	[***]
16	$	[***]
17	$	[***]
18	$	[***]
19	$	[***]
20	$	[***]

[***] Confidential Treatment Requested

2             EQUITY CAPITAL CONTRIBUTION AGREEMENT

(BLOOM)

Block DocID

ANNEX 11

Affiliate Transactions

(terms as defined in this Agreement, unless noted otherwise)

1. MESPSA

2. ASA

3. Facility Company LLC Agreement

4. IP License

5. IP Security Agreement

6. Indemnity Agreement

3 EQUITY CAPITAL CONTRIBUTION AGREEMENT (BLOOM)

Block DocID

ANNEX 12

Tax Matters

None.

4 EQUITY CAPITAL CONTRIBUTION AGREEMENT (BLOOM)

Block DocID

ANNEX 13

Forms of Financing Documents

[See Attached]

5 EQUITY CAPITAL CONTRIBUTION AGREEMENT (BLOOM)

Block DocID

ANNEX 14

Form of Amended and Restated Facility Company LLC Agreement

[See Attached]

6 EQUITY CAPITAL CONTRIBUTION AGREEMENT (BLOOM)

Block DocID

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

EXECUTION VERSION

AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT

OF

2013B ESA PROJECT COMPANY, LLC

A DELAWARE LIMITED LIABILITY COMPANY

Dated as of August 2, 2013

The member interests represented by this agreement have been acquired for investment and were issued without registration under the Securities Act of 1933, as amended (the “Securities Act”), or under the securities laws of any state. These interests may not be sold, pledged, hypothecated, or otherwise transferred at any time except (i) in accordance with the restrictions contained in this agreement, and (ii) pursuant to an effective registration statement under the Securities Act and any applicable state securities laws unless an exemption from registration under the Securities Act and under any applicable state securities laws is available in connection with the transfer.

TABLE OF CONTENTS

		Page
ARTICLE I     DEFINITIONS			1
Section 1.1	Definitions		1
Section 1.2	Terms Generally		1
ARTICLE II     ORGANIZATION OF THE COMPANY			1
Section 2.1	Formation		1
Section 2.2	Name		1
Section 2.3	Term		2
Section 2.4	Purpose		2
Section 2.5	Powers		2
Section 2.6	Offices		2
Section 2.7	Title to Company Assets		2
ARTICLE III     MEMBER; CREATION AND TRANSFER OF MEMBERSHIP INTERESTS			2
Section 3.1	Member		2
Section 3.2	Membership Interests		2
Section 3.3	Admission of Additional Members		3
Section 3.4	No Withdrawal		4
Section 3.5	Liability to Third Parties		4
ARTICLE IV     CAPITALIZATION			4
Section 4.1	Initial Membership Interests		4
Section 4.2	Subsequent Contributions		4
Section 4.3	Advances by Member		4
ARTICLE V     DISTRIBUTIONS AND ALLOCATIONS			5
Section 5.1	Distributions		5
Section 5.2	Allocations		5
ARTICLE VI     MANAGEMENT			5
Section 6.1	Management by the Manager		5
Section 6.2	Manager		6
Section 6.3	Officers		6

-i-

TABLE OF CONTENTS

(continued)

		Page
ARTICLE VII     STANDARD OF CARE; EXCULPATION AND INDEMNIFICATION			8
Section 7.1	Standard of Care		8
Section 7.2	Exculpation		8
Section 7.3	Right to Indemnification		8
Section 7.4	Advance Payment		9
Section 7.5	Indemnification of Employees and Agents		9
Section 7.6	Appearance as a Witness		10
Section 7.7	Nonexclusivity of Rights		10
Section 7.8	Insurance		10
Section 7.9	Savings Clause		10
Section 7.10	Contract Rights		10
Section 7.11	Indemnification by Member		10
Section 7.12	Negligence, etc		11
ARTICLE VIII     REPORTS; ACCESS TO INFORMATION			11
Section 8.1	Reports		11
Section 8.2	Access to Information		11
ARTICLE IX     TAXES			11
Section 9.1	Tax Returns		11
Section 9.2	Tax Character		11
Section 9.3	Tax Elections		11
ARTICLE X     BOOKS AND BANK ACCOUNTS			12
Section 10.1	Maintenance of Books		12
Section 10.2	Accounts		12
ARTICLE XI     DISSOLUTION, WINDING-UP AND TERMINATION			12
Section 11.1	Dissolution		12
Section 11.2	Winding-Up and Termination		12
Section 11.3	Certificate of Cancellation		13
ARTICLE XII     GENERAL PROVISIONS			13
Section 12.1	Third Party Beneficiaries		13

-ii-

TABLE OF CONTENTS

(continued)

		Page
Section 12.2	Offset		13
Section 12.3	Notices		14
Section 12.4	Entire Agreement, Supersedure		14
Section 12.5	Effect of Waiver or Consent		14
Section 12.6	Amendment or Restatement		14
Section 12.7	Binding Effect		14
Section 12.8	Governing Law; Severability		14
Section 12.9	Further Assurances		15
Section 12.10	Waiver of Certain Rights		15
Section 12.11	Directly or Indirectly		15
Section 12.12	Counterparts		15

SCHEDULES:

I	Member and Membership Interests
II	Board of Managers
III	Officers
IV	Financing Documents
V	Investment Documents
VI	Principal Facility Documents

EXHIBITS:

A	Defined Terms
B	Form of Certificate for Units
C	Form of Adoption Agreement

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AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT

OF

2013B ESA PROJECT COMPANY, LLC

THIS AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (this “Agreement”) of 2013B ESA PROJECT COMPANY, LLC, a Delaware limited liability company (the “Company”), is made and entered into as of August 2, 2013 by 2013B ESA HOLDCO, LLC, as the sole member of the company (the “Member”). This Agreement amends and restates the Limited Liability Company Agreement of the Company, dated as of February 19, 2013, including all amendments thereto, in its entirety in accordance with the following terms and conditions:

ARTICLE I

DEFINITIONS

Section 1.1 Definitions. Capitalized terms used in this Agreement (including any Schedules or Exhibits attached hereto) but not defined in the body hereof shall have the meanings ascribed to them in Exhibit A.

Section 1.2 Terms Generally. The definitions used in this Agreement shall apply equally to both the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. Unless the context requires otherwise, the words “include,” “includes” and “including’’ shall be deemed to be followed by the phrase “without limitation.” Finally, references to Articles and Sections refer to Articles and Sections of this Agreement and references to Exhibits are to the Exhibits attached to this Agreement, each of which is made a part hereof for all purposes.

ARTICLE II

ORGANIZATION OF THE COMPANY

Section 2.1 Formation. The Company is organized under the provisions of the Delaware Limited Liability Company Act, as amended from time to time (the “Act”). The Company’s Certificate of Formation (as amended and restated from time to time, the “Certificate”) was filed on February 19, 2013, with the Secretary of State of the State of Delaware.

Section 2.2 Name. The name of the Company is, and the business of the Company shall be conducted under the name of, “20l3B ESA Project Company, LLC.” The name of the Company may be changed from time to time by amendment of the Certificate. The Company may transact business under an assumed name by filing an assumed name certificate in the manner prescribed by applicable Law.

Section 2.3 Term. The Company’s existence shall be perpetual unless earlier terminated pursuant to the provisions of this Agreement.

Section 2.4 Purpose. The Company has been formed for the object and purpose of: (i) acquiring and owning a portfolio of Systems, (ii) entering into and performing under the MESPSA, Administrative Services Agreement, Financing Documents, Power Purchase Agreements, and Site Leases and any other documents in connection with acquiring, financing, installing, owning or operating Systems as contemplated in the foregoing purposes, (iii) making tax and other filings and (iv) all such other actions reasonably related to carrying out the foregoing.

Section 2.5 Powers. The Company shall have the power and authority to do any and all acts necessary or convenient to or for the furtherance of the purposes described herein, and shall have and may exercise all powers and authorities, statutory or otherwise, conferred upon limited liability companies under the laws of the State of Delaware.

Section 2.6 Offices. The registered office of the Company required by the Act to be maintained in the State of Delaware shall be the office of the registered agent named in the Certificate or such other office (which need not be a place of business of the Company) as the Board of Managers may designate in the manner provided by Law. The registered agent of the Company in the State of Delaware shall be the registered agent named in the Certificate or such other Person or Persons as the Board of Managers may designate in the manner provided by Law. The principal office of the Company shall be 1299 Orleans Drive, Sunnyvale, California 94089, or at such other location as may be from time to time determined by the Member. The Company may have such other offices as the Board of Managers may designate.

Section 2.7 Title to Company Assets. Title to Company assets, whether real, personal or mixed and whether tangible or intangible, shall be deemed to be owned by the Company as an entity, and no Member, Manager or Officer, individually or collectively, shall have any ownership interest in such Company assets or any portion thereof. Title to any or all of the Company assets shall be held in the name of the Company. All Company assets shall be recorded as the property of the Company in its books and records, irrespective of the name in which record title to such Company assets is held.

ARTICLE ITI

MEMBER; CREATION AND TRANSFER OF MEMBERSHIP INTERESTS

Section 3.1 Member. 2013B ESA Holdco, LLC is the sole Member of the Company. The business, residence or mailing address of the Member is set forth on Schedule I.

Section 3.2 Membership Interests.

(a)    The Membership Interests shall (i) have the rights and obligations ascribed to such Membership Interests in this Agreement and the Act; (ii) be recorded in a register of Membership Interests, which register the Secretary shall maintain; (iii) be transferable only on recordation of such Transfer in the register of Membership Interests, which recordation the Secretary shall make, upon compliance with the provisions of ARTICLE III hereof and upon presentation of the unit certificates duly endorsed for transfer; (iv) be “securities” governed by Article 8 of the UCC in any jurisdiction (x) that has adopted revisions to Article 8 of the UCC substantially consistent with the 1994 revisions to Article 8 adopted by the American Law

2

Institute and the National Conference of Commissioners on Uniform State Laws and (y) whose laws may be applicable, from time to time, to the issues of perfection, the effect of perfection or non-perfection, and the priority of a security interest in Membership Interests in the Company; and (v) be personal property.

(b)    The form of certificate evidencing ownership of Units is set forth as Exhibit B. Additional forms of certificates shall be approved by the Board of Managers from time to time in the event additional classes or series of Membership Interests are created in accordance with this Agreement. The Company shall issue one or more certificates to the Member, which certificates need not bear a seal of the Company but shall be signed by the President or any Vice President certifying the number, class and series of Units represented by such certificate. The unit certificate books shall be kept by the Secretary or at the office of such transfer agent or transfer agents as the Board of Managers may from time to time by resolution select. In the event any officer, transfer agent or registrar who shall have signed, or whose facsimile signature or signatures shall have been placed upon, any such certificate or certificates shall have ceased to be such officer, transfer agent or registrar before such certificate is issued by the Company, such certificate may nevertheless be issued by the Company with the same effect as if such person were such officer, transfer agent or registrar at the date of issue. The unit certificates shall be consecutively numbered and shall be entered in the books of the Company as they are issued and shall exhibit the holder’s name and number of Units. The Board of Managers may determine the conditions upon which a new unit certificate may be issued in place of a certificate which is alleged to have been lost, stolen or destroyed and may, in its discretion, require the owner of such certificate or its legal representative to give bond, with sufficient surety, to indemnify the Company and each transfer agent and registrar against any and all loss or claims which may arise by reason of the issuance of a new certificate in the place of the one so lost, stolen or destroyed. Each unit certificate shall bear a legend on the reverse side thereof substantially in the following form:

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURIDES ACT”), AND MAY NOT BE OFFERED OR SOLD, UNLESS IT HAS BEEN REGISTERED UNDER THE SECURITIES ACT OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE (AND, IN SUCH CASE, IF REQUESTED BY THE COMPANY, AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY SHALL HAVE BEEN DELIVERED TO THE COMPANY TO THE EFFECT THAT SUCH OFFER OR SALE IS NOT REQUIRED TO BE REGISTERED UNDER THE SECURITIES ACT). THIS SECURITY IS SUBJECT TO RESTRICTIONS ON TRANSFER AND OTHER TERMS AND CONDITIONS SET FORTH IN THE LIMITED LIABILITY COMPANY AGREEMENT OF THE COMPANY, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY AT ITS PRINCIPALEXECUTIVE OFFICES.

Section 3.3 Acknowledgement of Pledge. Pursuant to the Equity Pledge Agreement, dated as of July 19, 2013 (the “Pledge Agreement”), among the Company, the Member and Silicon Valley Bank (the “Lender”), the Member has granted a lien and security interest in the Membership Interests, and all of its rights and interests under this Agreement (such lien and security interest as more fully described in the Pledge Agreement, the “Pledge”), to theLender to secure certain obligations under the Credit Agreement, dated as of July 19, 2013, among the Company and the Lender (the “Credit Agreement”).

3

Section 3.4 Admission of Additional Members. Notwithstanding any provision of this Agreement including the Exhibits hereto to the contrary, no additional Person (including an Assignee) that acquires a Membership Interest, whether pursuant to a Voluntary Transfer or an Involuntary Transfer, shall be admitted to the Company as a member without (i) the consent of the Board of Managers, which consent (a) is hereby granted with respect to any Transfer to the Lender or any other Person resulting from the exercise of the Lender’s rights and remedies under the Pledge Agreement and (b) otherwise may be given or withheld in the Board of Managers’ sole discretion, (ii) until the date on which there are no obligations remaining under the Credit Agreement and all amounts payable in respect of the Credit Agreement have been indefeasibly paid in full, the consent of the Lender (the “Discharge Date”), and (iii) becoming a party to this agreement by executing an Adoption Agreement in substantially the form of Exhibit C attached hereto. An Assignee, in its capacity as such, of a Membership Interest shall only be entitled to receive allocations and distributions pursuant to ARTICLE V and shall not have any other rights or powers of a member including any voting rights. Until an Assignee becomes a member pursuant to this Section 3.4, the Member shall continue to be a member for all purposes hereof and have the power to exercise any rights or powers as a member, but shall not have the right to receive allocations or distributions pursuant to ARTICLE V. Upon the admission of any additional member to the Company, this Agreement shall be amended as the members shall agree to reflect the admission of such additional member.

Section 3.5 No Withdrawal. The Member may withdraw from the Company only following a permitted Transfer of all of such Member’s Membership Interest in accordance with this Agreement. Except as provided herein, in accordance with the provisions of Section 18-603 of the Act, no Member may withdraw prior to the dissolution and winding up of the Company.

Section 3.6 Liability to Third Parties. The Member shall not be liable for the debts, obligations or liabilities of the Company solely by reason of being the Member.

Section 3.7    Meetings of Member.

(a)    Annual Meetings. The Company shall annually conduct a meeting of the Member for the purpose of electing Managers and conducting such other business as may properly come before such meeting or, in lieu thereof, effect such business by written consent pursuant to Section 3.7(c). The annual meeting of the Member for the election of Managers, and for the transaction of such other business as may properly come before such meeting, shall be held at such place, date and time as shall be fixed by the Board of Managers and designated in the notice or waiver of notice of such annual meeting.

(b)    Special Meetings. Special meetings of the Member may be called for any proper purpose or purposes, including voting on matters on which the Member is entitled to vote as determined in accordance with the terms of this Agreement. Special meetings of the Member shall be called by the Secretary upon the written request of at least two Managers. Such written requests shall state the time, place and purpose or purposes of the proposed meeting.

(c)    Action Without a Meeting. Notwithstanding anything contained in this Agreement to the contrary, any action required or permitted by law to be taken at any meeting of the Member may be taken without a meeting, and without a vote, if a consent in writing, setting

4

forth the action so taken, shall be signed by the holders of the Membership Interests entitled to vote on such action having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all of the Membership Interests entitled to vote were present and voted.

ARTICLE IV

CAPITALIZATION

Section 4.1 Initial Membership Interests. The Member shall hold 100% of the Membership Interests of the Company.

Section 4.2 Capital Contributions. The Member shall contribute capital to the Company as provided in the Contribution Agreement. Without limiting the foregoing, the Member shall pay certain costs and expenses on behalf of the Company and fund certain reserves of the Company, in each case, in accordance with the terms of the Contribution Agreement. Any such payment or funding by the Member on behalf of the Company shall be deemed a capital contribution by the Member to the Company. The Member shall not have any obligation to make capital contributions to the Company except as provided in this Section 4.2, but may contribute additional capital to the Company as it may determine in its sole discretion.

ARTICLE V

DISTRIBUTIONS AND ALLOCATIONS

Section 5.1 Distributions. Subject in each case to restrictions imposed by Law including the Act, all distributions by the Company shall be made as follows:

(a)    Except as described in Sections 5.l(b) and (c), the Company may make distributions of cash or other property to the Member at any time, and from time to time, and in such amounts as the Board of Managers may determine.

(b)    Upon the dissolution and winding up of the Company, after making all allocations under Section 5.2, all assets and proceeds shall be distributed to the Member as provided in Section 11.2.

(c)    In the event of a repurchase of a System by, or a refund of any or all of the purchase price for a System from, Bloom Energy Corporation (or its successor as seller of Systems) to the Company, such repurchase or refunded amounts shall be applied in accordance with the Credit Agreement.

Section 5.2 Allocations. Profit and loss and all items included in the computation thereof shall be allocated to the Member.

5

ARTICLE VI

MANAGEMENT

Section 6.1 Management by the Board of Managers.

(a) The business and affairs of the Company shall be managed by the Board of Managers. Under the direction of the Board of Managers, the day-to-day activities of the Company shall be conducted on the Company’s behalf by the Officers, who shall be agents of the Company and who may exercise all of the Company’s powers, rights, duties and obligations, except as otherwise provided by law, or by this Agreement and subject to the provisions set forth in this ARTICLE VI and ARTICLE XIII.

(b) Subject to ARTICLE XIII, in addition to the powers that now or hereafter can be granted under the Act and to all other powers granted under any other provision of this Agreement, but only to the extent within the purposes of the Company set forth in Section 2.4, the Board of Managers and the Officers (subject to the direction of, and limitations imposed by, the Board of Managers) shall have full power and authority to do all things on such terms as they may deem necessary or appropriate to conduct, or cause to be conducted (by delegating such responsibilities as in the case of the delegation to the Administrator under the Administrative Services Agreement), the business and affairs of the Company, including the following:

(i)    the making of any expenditures, the lending or borrowing of money, the assumption or guarantee of, or other contracting for, indebtedness and other liabilities, the issuance of evidences of indebtedness and the incurring of any other obligations;

(ii)    the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Company;

(iii)    the merger or other combination or conversion of the Company with or into another Person;

(iv)    the use of the assets of the Company (including cash on hand) for any purpose consistent with the terms of this Agreement and the repayment of obligations of the Company;

(v)    the negotiation, execution and performance of any contracts, conveyances or other instruments;

(vi)    the distribution of Company cash;

(vii)    the selection, engagement and dismissal of Officers, employees and agents, outside attorneys, accountants, engineers, consultants and contractors and the determination of their compensation and other terms of employment or hiring;

(viii)    the maintenance of such insurance for the benefit of the Company, as it deems necessary or appropriate;

(ix)    the acquisition or disposition of assets, including securities;

(x)    the formation of, or acquisition of an interest in, or the contribution of property to, any Person;

6

(xi)    the control of any matters affecting the rights and obligations of the Company, including the commencement, prosecution and defense of actions at law or in equity and otherwise engaging in the conduct of litigation and the incurring of legal expense and the settlement of claims and litigation; and

(xii)    the indemnification of any Person against liabilities and contingencies to the extent permitted by Law and this Agreement;

provided, however, in no event will the Board of Managers or any Officer cause or permit the Company to take any action that requires approval of the members under the Holdco LLC Agreement except in accordance with the terms of the Holdco LLC Agreement.

Section 6.2 Board of Managers. Initially, the Board of Managers shall consist of the three (3) Persons, one (1) of whom shall be an Independent Manager. The Board of Managers shall initially be as set forth on Schedule II, and thereafter shall be elected annually pursuant to Section 3.3(a). Each Manager shall have one (1) vote. Each Manager shall serve until his or her successor is duly elected and qualified or until his or her earlier death, resignation or removal. No decrease in the number of Managers constituting the Board of Managers shall shorten the term of any incumbent Manager. Each Manager is an agent of the Company’s business and, except as otherwise provided herein, may bind the Company in accordance with authority set forth in this Agreement or vested in a resolution of the Board of Managers.

Section 6.3 Resolutions. All resolutions adopted by the Board of Managers shall be reduced to writing.

Section 6.4 Location; Order of Business. The Board of Managers may have an office and keep the books of the Company, in such place or places, within or without the State of Delaware, as the Board of Managers may from time to time determine by resolution.

Section 6.5 Resignation. Any Manager may resign at any time by deliver his or her written resignation to the Board of Managers, such resignation to specify whether it will be effective at a particular time, upon receipt by the Board of Managers or at the pleasure of the Board of Managers.

Section 6.6 Removal. Any Manager or the entire Board of Manager may be removed from office at any time, with or without cause, by the Member.

Section 6.7 Vacancies. Any vacancy on the Board of Managers resulting from (i) the resignation, disqualification, retirement or death of any Manager shall be filled by the affirmative vote of a majority of the remaining Managers, and (ii) removal by the Member in accordance with Section 6.6 shall be filled by the affirmative vote of the Member; provided, that any vacancy resulting in there being no Independent Managers on the Board of Managers shall be filled only by an Independent Manager. Such new Manager or Managers will serve the remaining term of the Manager such new Manager is replacing and until a successor Manager is elected and qualified. In the event of a vacancy on the Board of Managers, the remaining Managers, except as otherwise provided by law, may exercise the power of the full Board of Managers until the vacancy is filled, subject to Article XIII.

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Section 6.8 Meetings. The Board of Managers shall hold regularly scheduled meetings. The initial schedule for such meetings shall be determined by the initial Board of Managers once it has been constituted in accordance with the terms and conditions of this Agreement. Regularly scheduled meetings of the Board of Managers may be held upon not less than fourteen (14) days’ prior notice, at such time, date and place, within or outside the State of Delaware, as the Board of Managers may from time to time decide. Special meetings of the Board of Managers may be called, in writing, on at least twenty-four (24) hours’ prior notice, designating the time, date, place and purpose thereof, by the Secretary at the written request of any two (2) Managers. Managers may participate in meetings of the Board of Managers by means of conference telephone or other communications equipment; provided that all Managers participating in the meeting can hear each other, and such participation in a meeting shall constitute presence in person at such meeting.

Section 6.9 Notice of Meetings. Notice of the time, date and place of all meetings of the Board of Managers (and, in the case of a special meeting, the purpose(s) thereof) shall be given to each Manager and each Member by the Secretary of the Company, or in case of death, absence, incapacity or refusal of such individuals, by an officer of the Company or one of the Managers calling the meeting. Notice need not be given to any Manager if: (i) action is taken under Section 6.12; (ii) a written waiver of notice is executed before or after the meeting by such Manager; (iii) communication with such Manager is unlawful; or (iv) such Manger attends the meeting in question, unless such attendance was for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting was not lawfully called or convened. A notice or waiver of notice of a meeting of the Board of Managers need not specify the purposes of the meeting. Any unintentional failure to provide such notice of any such meeting to any Member shall not invalidate any action otherwise appropriately taken by the Managers at such meeting.

Section 6.10 Quorum. At any meeting of the Board of Managers, a majority of the entire Board of Managers shall constitute a quorum. If there is less than a quorum at any meeting of the Board of Managers, such Managers present at the meeting shall adjourn the meeting from time to time for such period of time as may be approved by a majority of the votes present and shall cause notice of such adjournment to be delivered to all of the Managers who were absent from the adjourned meeting.

Section 6.11 Action at Meeting. At any meeting of the Board of Managers at which a quorum is present, a majority of Managers present may take any action that the Board of Managers may take under this Agreement on behalf of the Board of Managers, unless a larger or other number is required by law or this Agreement, in which case such larger or other number shall be required to take such action. In the situation that two (2) Managers constitute a quorum pursuant to Section 6.10, unanimous approval of both Managers is required to take any action on behalf of the Board of Managers.

Section 6.12 Action by Consent. Any action required or permitted to be taken at any meeting of the Board of Managers may be taken without a meeting if a written consent thereto is signed by a majority of the entire Board of Managers and filed with the records of the meetings of the Board of Managers. Such consent shall be treated as a vote of the Board of Managers.

8

Prompt notice of the taking of the action without a meeting of the Board of Managers shall be given to those Managers who have not consented, if any, and to each Member, but the failure to give such notice shall not affect in any manner the validity or effectiveness of the consent given.

ARTICLE VII

OFFICERS

Section 7.1 Officers Generally. The Board of Managers, as set forth below in this ARTICLE VII, shall appoint certain agents of the Company to be referred to as “Officers” of the Company. The initial Officers shall be the persons listed on Schedule III. The Officers shall have the titles, power, authority and duties described below in this ARTICLE VII, and such other power, authority and duties as generally pertain to their respective offices except as otherwise (i) provided by resolution of the Board of Managers or (ii) delegated by the Board of Managers to the Administrator under the Administrative Services Agreement.

Section 7.2 Number, Titles and Term of Office. The Officers of the Company shall be a President and one or more Vice Presidents (any one or more of whom may be designated Executive Vice President or Senior Vice President), a Secretary, a Comptroller and such other officers as the Board of Managers may from time to time elect or appoint. Each Officer shall hold office until his successor shall be duly elected and shall qualify or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. Any number of offices may be held by the same person. No Officer need be a Manager. Any Officer may be an employee or an Affiliate of a Member.

Section 7.3 Powers. Each Officer is an agent of the Company’s business and, except as otherwise provided herein, each Officer may bind the Company in accordance with the authority set forth in this Agreement or vested in a resolution of the Board of Managers; provided, however, that so long as the Member is the sole member of the Company, in no event will any officer cause or permit the Company to take any action that requires approval of the members under the Holdco LLC Agreement except in accordance with the terms of the Holdco LLC Agreement.

Section 7.4 Salaries. No Officer shall be entitled to receive a salary or any other compensation.

Section 7.5 Removal. Any Officer elected or appointed by the Board of Managers or named in Schedule III of this Agreement may, subject to any contractual obligations of the Company with respect to such Officer, be removed, either with or without cause, by the Board of Managers, at any regular meeting, or at a special meeting called for such purpose; provided the notice for such meeting shall specify that such proposed removal will be considered at the meeting; provided, however, that such removal shall be without prejudice to the contractual rights, if any, of the Person so removed. Election or appointment of an Officer shall not of itself create contractual rights.

Section 7.6 Vacancies. Any vacancy occurring in any office of the Company may be filled by the Board of Managers.

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Section 7.7 Powers and Duties of the President. The President shall have general executive charge, management and control of the properties, business and operations of the Company with all such powers as may be reasonably incident to such responsibilities and in connection therewith shall have the authority to agree upon and execute all leases, contracts, evidences of indebtedness and other obligations in the name of the Company and may sign all Unit certificates of the Company.

Section 7.8 Powers and Duties of the Vice Presidents. Each Vice President shall perform such duties and have such powers as the Board of Managers may from time to time prescribe. In addition, in the absence of the President, or in the event of the President’s inability or refusal to act, a Vice President designated by the Board of Managers or, in the absence of such designation, a Vice President who is present and who is senior in terms of time as a Vice President of the Company, shall perform the duties of the President, and when so acting shall have all powers of and be subject to all restrictions upon the President.

Section 7.9 Powers and Duties of the Secretary. The Secretary shall keep the minutes of all meetings of the Board of Managers, and committees thereof in books provided for such purpose; the Secretary shall attend to the giving and serving of all notices; the Secretary may in the name of the Company affix the seal of the Company to all contracts of the Company and attest thereto; the Secretary may sign with the other appointed Officers all Unit certificates; the Secretary shall have charge of the certificate books, transfer books and Unit ledgers, and such other books and papers as the Board of Managers may direct, all of which shall at all reasonable times be open to inspection by any Manager upon application at the office of the Company during business hours; the Secretary shall have such other powers and duties as may be prescribed from time to time by the Board of Managers; and shall in general perform all acts incident to the office of Secretary, subject to the control of the President and the Board of Managers.

Section 7.10 Action with Respect to Securities of Other Companies. Unless otherwise determined by the Board of Managers, the President shall have the power to vote and to otherwise act on behalf of the Company, in person or by proxy, at any meeting of security holders of any other company, or with respect to any action of security holders thereof, in which the Company may hold securities and otherwise to exercise any and all rights and powers which the Company may possess by reason of its ownership of securities in such other company.

ARTICLE VIII

STANDARD OF CARE; EXCULPATION AND INDEMNIFICATION

Section 8.1 Standard of Care. The Board of Managers shall perform its duties in good faith and in accordance with the Prudent Operator Standard.

Section 8.2 Exculpation. To the fullest extent permitted by Law, neither the Member nor any Manager, authorized person, employee or agent of the Company nor any employee, representative, agent or affiliate of the Member (collectively, the “Covered Persons”) shall be liable to the Company or any other person or entity that is bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to

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be within the scope of the authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct.

Section 8.3 [Intentionally Omitted].

Section 8.4 [Intentionally Omitted].

Section 8.5 [Intentionally Omitted].

Section 8.6 [Intentionally Omitted].

Section 8.7 [Intentionally Omitted].

Section 8.8 [Intentionally Omitted].

Section 8.9 [Intentionally Omitted].

Section 8.10 Contract Rights. The rights granted pursuant to this ARTICLE VIII shall be deemed contract rights, and no amendment, modification or repeal of this ARTICLE VIII shall have the effect of limiting or denying any such rights with respect to actions taken or Proceedings arising prior to any such amendment, modification or repeal.

Section 8.11 Indemnification by Member. To the fullest extent permitted by Law, the Member shall indemnify the Company and hold it harmless from and against all losses, costs, liabilities, damages and expenses (including costs of suit and attorney’s fees) it may incur on account of any breach by the Member of this Agreement

Section 8.12 Negligence, etc. IT IS EXPRESSLY ACKNOWLEDGED THAT THE INDEMNIFICATION PROVIDED IN THIS ARTICLE VII COULD INVOLVE INDEMNIFICATION FOR NEGLIGENCE OR UNDER THEORIES OF STRICT LIABILITY.

ARTICLE IX

REPORTS; ACCESS TO INFORMATION

Section 9.1 Reports. The Company shall provide to the Member such reports as the Board of Managers shall determine in its discretion.

Section 9.2 Access to Information.

(a)    In addition to the other rights to information specifically set forth in this Agreement, the Member shall be entitled to all information to which a member is entitled to have. access pursuant to Section 18-305 of the Act under the circumstances and subject to the conditions therein stated. Without limiting the foregoing, the Member shall be entitled to receive all information from the Company which it requires in order to comply with its reporting obligations to each of its members.

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(b)    The Member shall reimburse the Company for all out-of-pocket costs and expenses incurred by the Company in connection with the Member’s inspection and copying of the Company’s books and records. The Member shall not be required to reimburse the Company for any time spent by its regular employees in connection with such inspection and copying.

ARTICLE X

TAXES

Section 10.1 Tax Returns. The Company shall prepare and timely file all federal, state and local tax returns required to be filed by the Company. The Member shall furnish to the Company all pertinent information in its possession relating to the Company’s operations that is necessary to enable the Company’s tax returns to be timely prepared and filed. The Company shall deliver a copy of each such return to the Member on or before ten days prior to the due date of any such return (including extensions), together with such additional information as may be required by the Member in order for the Member to file its individual returns reflecting the Company’s operations. The Company shall bear the costs of the preparation and filing of its returns.

Section 10.2 Tax Character. The Company shall be treated as a disregarded entity for federal income tax purposes.

Section 10.3 Tax Elections. Neither the Company nor the Member may make an election for the Company to be treated as an association or corporation for federal income tax purposes.

ARTICLE XI

BOOKS AND BANK ACCOUNTS

Section 11.1 Maintenance of Books. The Company shall keep or cause to be kept at its principal office complete and accurate books and records of the Company, supporting documentation of the transactions with respect to the conduct of the Company’s business and minutes of the Proceedings of the Board of Managers and any committee thereof. The records shall include, but not be limited to, a copy of the Certificate and this Agreement and all amendments thereto; a current list of the names and last known business, residence, or mailing addresses of the Member; and the Company’s federal, state, and local tax returns for the Company’s six most recent tax years.

Section 11.2 Accounts. The Member shall establish one or more separate bank and investment accounts and arrangements for the Company, which shall be maintained in the Company’s name with financial institutions and firms that the Board of Managers may determine. The Company may not commingle the Company’s funds with the funds of the Member; provided, however, that the Company funds may be invested in a manner the same as or similar to the Member’s investment of their own funds or investments by their Affiliates.

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ARTICLE XII

DISSOLUTION, WINDING-UP AND TERMINATION

Section 12.1 Dissolution. The Company shall dissolve and its affairs shall be wound up on the first to occur of the following events (each a “Dissolution Event”) and no other event shall cause the Company’s dissolution:

(a)    the entry of a decree of judicial dissolution of the Company under Section 18-802 of the Act;

(b)    after the Discharge Date, the consent of the Member; and

(c)    after the Discharge Date, the termination of the legal existence of the Member or the occurrence of any other event that terminates the continued membership of the Member in the Company, unless the Company is continued without dissolution in a manner permitted by the Act.

Section 12.2 Winding-Up and Termination. On the occurrence of a Dissolution Event, the Board of Managers may select one or more Persons to act as liquidator or may itself act as liquidator. The liquidator shall proceed diligently to wind up the affairs of the Company and make final distributions as provided herein and in the Act. The costs of winding up shall be borne as a Company expense, including reasonable compensation to the liquidator if approved by the Board of Managers. Until final distribution, the liquidator shall continue to operate the Company properties with all of the power and authority of the Board of Managers. The steps to be accomplished by the liquidator are as follows:

(a)    as promptly as possible after dissolution and again after final winding up, the liquidator shall cause a proper accounting to be made of the Company’s assets, liabilities, and operations through the last calendar day of the month in which the dissolution occurs or the final winding up is completed, as applicable;

(b)    the liquidator shall pay, satisfy or discharge from Company funds all of the debts, liabilities and obligations of the Company (including all expenses incurred in winding up and any advances described in Section 4.3) or otherwise make adequate provision for payment and discharge thereof (including the establishment of a cash escrow fund for contingent liabilities in such amount and for such term as the liquidator may reasonably determine); and follows:

(i)    the liquidator may sell any or all Company property, including to the Member, and any resulting gain or loss from each sale shall be computed and allocated to the Member; provided, that the liquidator shall use its reasonable best efforts to not sell, but to retain for distribution in kind as provided herein, any securities in which the Company may have invested; and

(ii)    Company property shall be distributed to the Member by the end of the taxable year of the Company (or the Member’s taxable year if there is no Company taxable year) during which the liquidation of the Company occurs (or, if later, 90 days after the date of the liquidation).

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All distributions in kind to the Member shall be made subject to the liability of the Member for costs, expenses, and liabilities theretofore incurred or for which the Company has committed prior to the date of termination and those costs, expenses, and liabilities shall be allocated to the Member pursuant to this Section 12.2. The distribution of cash and/or property to the Member in accordance with the provisions of this Section 12.2 constitutes a complete return to the Member of its capital contributions and a complete distribution to the Member of its Membership rights and all the Company’s property and constitutes a compromise to which the Member has consented within the meaning of Section I 8-502(b) of the Act.

Section 12.3 Certificate of Cancellation. On completion of the distribution of Company assets as provided herein, the Board of Managers shall direct such Person or Persons as the Act may require or permit to file a Certificate of Cancellation with the Secretary of State of Delaware and take such other actions as may be necessary to terminate the existence of the Company. Upon the effectiveness of the Certificate of Cancellation, the existence of the Company shall cease, except as may be otherwise provided by the Act or other applicable Law.

ARTICLE XIII

SEPARATENESS PROVISIONS

Section 13.1 Limitations on the Company’s Activities. This Section 13.1 is being adopted in order to comply with certain provisions required in order to qualify the Company as a “special purpose entity.” Notwithstanding anything in this Agreement to the contrary:

(a) Notwithstanding any other provision of this Agreement and any provision of Law that otherwise so empowers the Company, the Member or the Board of Managers, neither the Member nor the Board of Managers shall be authorized or empowered, nor shall they permit the Company or any Person on behalf of the Company, without the prior unanimous written consent of the Member and the entire Board of Managers, including the Independent Manager, to take any of the following actions:

(i)    to consolidate or merge the Company with or into any Person;

(ii)    sell all or substantially all of the assets of the Company;

(iii)    institute or cause to be instituted any proceeding seeking to adjudicate the Company bankrupt or insolvent, or seek a liquidation, winding up, reorganization, dissolution, arrangement, adjustment, protection, relief or composition of the Company under any law relating to bankruptcy, insolvency or relief of debtors, or seek or consent to the entry of an order for relief or the appointment of a receiver, trustee, liquidator, assignee, sequestrator, custodian or other similar official for the Company or for any substantial part of the property of the Company under any law related to bankruptcy, insolvency or relief of debtors, consent to the filing of any bankruptcy or other similar proceeding, or admit in writing the Company’s inability to pay its debts generally as they become due, or seek an assignment of property for the benefit of creditors, or take any action that might reasonably cause the Company to become insolvent, or take any action in furtherance of any of the foregoing, or to the fullest extent permitted by law, take action in furtherance of any such action, or dissolve or liquidate the Company; or

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(iv)    amend, or consent to any waiver of compliance with respect to the matters set forth in Section 2.4, 6.1, 13.1, or 13.2 of this Agreement.

(b) The Board of Managers and the Member shall cause the Company to be operated in such a manner that it would not be substantially consolidated in the bankruptcy estate of any of the Member or any other Person such that its separate existence from any such Member or other Person would be disregarded in the event of a bankruptcy or insolvency of any such Member or other Person and in such regard, the Board of Managers and the Member shall cause the Company to:

(i)    maintain its assets separately from the assets of any other Person or entity;

(ii)    maintain its books and records and bank accounts separate from those of any other Person or entity;

(iii)    at all times hold itself out to the public as a legal entity separate from the Member and any other Person;

(iv)    file its own tax return, if any, as may be required under applicable law, to the extent (a) not part of a consolidated group filing a consolidated return or returns or (b) not treated as a division or branch for tax purposes of another taxpayer, and pay any taxes so required to be paid under applicable law;

(v)    conduct its business in its own name or under any trade name as will not be reasonably likely to cause confusion as to its separate existence;

(vi)    maintain financial statements separate from those of any other Person (except that the Company may be included in the consolidated financial statements of another Person where required by GAAP; provided that such financial statements contain a footnote to the effect that the Company is a separate legal entity, the assets of which are not available to satisfy the debts of such Person);

(vii)    pay its own liabilities only out of its own funds and pay the salaries of its own employees, if any;

(viii)    participate in the fair and reasonable allocation of any and all overhead expenses and other common expenses for facilities, goods or services provided to multiple entities;

(ix)    use stationery, invoices and checks separate from those of the Member or its Affiliates;

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(x)    deposit all of its funds in checking accounts, savings accounts, time deposits or certificates of deposit in its own name or invest such funds in its own name;

(xi)    correct any known misunderstanding regarding its separate identity;

(xii)    remain solvent and pay its debts and liabilities (including, a fairly-allocated portion of any personnel and overhead expenses that it shares with any Affiliate) from its assets as the same shall become due, and maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business purposes;

(xiii)    hold title to its assets in its own name;

(xiv)    not acquire any obligations or securities of a Member;

(xv)    observe all limited liability company formalities necessary to maintain its identity as an entity separate and distinct from the Member and all of its other Affiliates;

(xvi)    observe all other Delaware limited liability company formalities;

(xvii)    not pledge its assets for the benefit of any other entity or make loans or advances to any entity, except, in each case, as may be permitted by the terms of the Credit Agreement; and

(xviii)     not enter into any transaction with any Member or any Affiliate, except upon terms and conditions that are intrinsically fair and substantially similar to those that would be available on an arm’s-length basis with third parties other than any Member or Affiliate as permitted by the terms of the Credit Agreement.

Section 13.2 Independent Manager. The Member shall cause the Company at all times to have at least one Independent Manager who will be appointed by the Member. To the fullest extent permitted by Section 18-110I (c) of the Act, the Independent Manager shall consider only the interests of the Company and its creditors (including the Lender), in acting or otherwise voting on the matters referred to in Section 13.l(a). All right, power and authority of the Independent Manager shall be limited to the extent necessary to exercise those rights and perform those duties specifically set forth in this Agreement. The Independent Manager shall take into account the interests of Silicon Valley Bank prior to consenting to any item addressed in Section 13.l(a) and, for the avoidance of doubt, the only actions of the Company that shall require the consent of the Independent Manager shall be those contained and those referenced in Section 13.l(a).

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ARTICLE XIV

GENERAL PROVISIONS

Section 14.1 Third Party Beneficiaries. None of the provisions of this Agreement shall be for the benefit of, or enforceable by, any creditor of the Company or by any creditor of the Member. Nothing in this Agreement shall be deemed to create any right in any Person (except as expressly set forth in ARTICLE VIII) not a party hereto, and this Agreement shall not be construed in any respect to be a contract in whole or in part for the benefit of any third Person (except as expressly set forth in ARTICLE VIII).

Section 14.2 Offset. Whenever the Company is to pay any sum to the Member, any amounts that the Member, in its capacity as a Member, owes the Company may be deducted from that sum before payment.

Section 14.3 Notices. Except as expressly set forth to the contrary in this Agreement, all notices, requests or consents provided for or permitted to be given under this Agreement must be in writing and must be delivered to the recipient in person, by courier or mail or by facsimile, email or similar transmission; and a notice, request or consent given under this Agreement is effective on receipt by the Person to receive it if during the normal business hours of such Person on a Business Day or, if not received during such normal business hours, on the next succeeding Business Day. All notices, requests and consents to be sent to the Member must be sent to or made at the address given for the Member on Schedule I, or such other address as the Member may specify by notice. Any notice, request or consent to the Company must be given to the Member. Whenever any notice is required to be given by Law, the Certificate or this Agreement, a written waiver thereof, signed by the Person entitled to notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice.

Section 14.4 Entire Agreement, Supersedure. This Agreement constitutes the entire agreement of the Member relating to the Company and supersedes all prior contracts or agreements with respect to the Company, whether oral or written.

Section 14.5 Effect of Waiver or Consent. A waiver or consent, express or implied, to or of any breach or default by any Person in the performance by that Person of its obligations with respect to the Company is not a consent or waiver to or of any other breach or default in the performance by that Person of the same or any other obligations of that Person with respect to the Company. Failure on the part of a Person to complain of any act of any Person or to declare any Person in default with respect to the Company, irrespective of how long that failure continues, does not constitute a waiver by that Person of its rights with respect to that default until the applicable statute-of-limitations period has run.

Section 14.6 Amendment or Restatement.

(a) This Agreement (including the Exhibits) may be amended or restated only by a written instrument adopted, executed and agreed to by the Member; provided, that the Member shall not, so long as the Credit Agreement is in effect, amend, alter, change or repeal this ARTICLE XIII, without the unanimous written consent of the Member and the Lender.

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(b) The Certificate may be amended or restated only with the approval of the Board of Managers, provided, however, that no such amendment or restatement of the Certificate may affect any change that adversely affects the Member without the consent of the Member.

Section 14.7 Binding Effect. Subject to the restrictions on Transfers set forth in this Agreement, this Agreement is binding on and inures to the benefit of the Member and its respective successors and assigns.

Section 14.8 Governing Law; Severability. THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE, EXCLUDING ANY CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF THIS AGREEMENT TO THE LAW OF ANOTHER JURISDICTION. In the event of a direct conflict between the provisions of this Agreement and (a) any provision of the Certificate, or (b) any mandatory, nonwaivable provision of the Act, such provision of the Certificate or the Act shall control. If any provision of the Act provides that it may be varied or superseded in the agreement of a limited liability company (or otherwise by agreement of the members or managers of a limited liability company), such provision shall be deemed superseded and waived in its entirety if this Agreement contains a provision addressing the same issue or subject matter. If any provision of this Agreement or the application thereof to any Person or circumstance is held invalid or unenforceable to any extent, the remainder of this Agreement and the application of that provision to other Persons or circumstances shall not be affected thereby and that provision shall be enforced to the greatest extent permitted by Law.

Section 14.9 Further Assurances. In connection with this Agreement and the transactions contemplated hereby, the Member shall execute and deliver any additional documents and instruments and perform any additional acts that may be necessary or appropriate to effectuate and perform the provisions of this Agreement and those transactions.

Section 14.10 Waiver of Certain Rights. The Member irrevocably waives any right it may have to maintain any action for dissolution of the Company or for partition of the property of the Company.

Section 14.11 Directly or Indirectly. Where any provision of this Agreement refers to action to be taken by any Person, or which such Person is prohibited from taking, such provision shall be applicable whether such action is taken directly or indirectly by such Person, including actions taken by or on behalf of any Affiliate of such Person.

Section 14.12 Counterparts. This Agreement may be executed in any number of counterparts with the same effect as if all signing parties had signed the same document. All counterparts shall be construed together and constitute the same instrument.

[SIGNATURE PAGE FOLLOWS]

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IN WITNESS WHEREOF, the Member has executed this Agreement effective as of the date first set forth above.

2013B ESA HOLDCO, LLC

By:

Name:

Title:

[Signature Page to Project Company LLCA]

SCHEDULE I

MEMBER AND MEMBERSHIP INTERESTS

Member	Membership Interests
2013B ESA Holdco. LLC c/o Bloom Energy Corporation 1299 Orleans Drive Sunnyvale, California 94089 Email: [***]	1000 Units

[***] Confidential Treatment Requested

Schedule I-1

SCHEDULEII

BOARD OF MANAGERS

Sendil Atreya, as Manager

William E. Brockenborough, as Manager

Benjamin Rose, as Independent Manager

Schedule II-1

SCHEDULEIII

OFFICERS

Name	Title
William H. Kurtz	President
William E.Brockenborough	Vice President
Martin J. Collins	Vice President, Secretary
Paul Goldstein	Vice President
Alan Russo	Vice President
Michael Fuss	Vice President
Charles Fox	Vice President
Sendil Atreya	Vice President
Tim Gray	Comptroller

Schedule III-1

SCHEDULE IV

FINANCING DOCUMENTS

1. The Credit Agreement.

2. The Promissory Note, dated as of July 19, 2013, issued by the Company to the Lender.

3. The Accounts Agreement, dated as of July 19, 2013, by and among the Company, the Lender and the Bank of New York Mellon, a New York banking corporation (the “Accounts Bank”).

4. The Pledge Agreement.

5. The Assignment and Security Agreement, dated as of July 19, 2013, by and between the Company and the Lender.

6. The Interparty Agreement, dated as of August 2, 2013 (the “Interparty Agreement”), by and among the Company, the Lender, and Firstar Development, LLC, a Delaware limited liability company (the “Investor”).

7. Any swap agreement (as such term is defined in Section 101 of the Bankruptcy Code) and all other agreements or documents now existing or hereafter entered into by the Company that provide for an interest rate, credit, commodity or equity swap, cap, floor, collar, forward foreign exchange transaction, currency swap, cross currency rate swap, currency option or any similar transaction, or any combination of, or option with respect to, these or similar transactions, for the purpose of hedging the Company’s exposure to fluctuations in interest rates, currency exchange rates, loan, credit exchange, security, or commodity prices.

8. Any Consent and Agreement entered into among each Person (other than the Company) who is a party to a Principal Facility Document (“Project Party”), the Company and the Lender, under which the relevant Project Party consents to, among other things, the security interest created in favor of the Lender.

9. The Credit Protection Insurance Policy to be issued by Indian Harbor Insurance Company on the date on which funds are initially disbursed by the Lender to the Company.

10. The Intellectual Property License, dated as of July 19, 2013 (the “IP License”), between the Company and Bloom Energy Corporation (“Bloom”).

11. The Intellectual Property Security Agreement, dated as of July 19, 2013 (the “IP Security Agreement”), between the Company and Bloom.

12. The Indemnity Agreement, dated as of July 19, 2013 (the “Indemnity Agreement”), between the Company and Bloom.

Schedule IV-1

SCHEDULE V

INVESTMENT DOCUMENTS

1. The Contribution Agreement.

2. The Interparty Agreement.

3. The Amended and Restated Guaranty, dated as of August 2, 2013, issued by Bloom.

4. The IP License.

5. The IP Security Agreement.

6. The Indemnity Agreement.

Schedule V-1

SCHEDULE VI

PRINCIPAL FACILITY DOCUMENTS

1. That certain Master Energy Server Purchase and Services Agreement, dated July 19, 2013, between Bloom and the Company (the “MESPSA”).

2. Administrative Services Agreement, dated as of July 19, 2013, by and. among the Member, the Company and Bloom.

3. The Reservation Letter for each site eligible to receive payments under the California Self-Generation Incentive Program.

4. That certain Energy System Use Agreement (Number 20130430.072.C), dated May 15, 2013, by and between the Company and Pacific Bell Telephone Company (“Pac Bell”) (“ESA-E”) and the related Site Lease Agreement of the same date, by and between the Company and Pac Bell (“SLA-E”).

5. That certain Energy System Use Agreement (Number 20130430.078.C), dated May 15, 20B, by and between the Company and AT&T Corp. (“AT&T”) (“ESA-G”) and the related (i) Site Lease Agreement of the same date, by and between the Company and AT&T (“SLA-G”), (ii) the Site Lease Agreement, dated as of the same date, by and between the Company and Southern New England Telephone Company, and (iii) the Site Lease Agreement, dated as of the same date, by and between the Company and AT&T Capital Services, Inc.

6. That certain Assignment and Assumption Agreement, to be entered into by and between the Company and 2012 BSA Project Company, LLC (“2012 BSA”) with respect to ESA- E, ESA-G, SLA-E and SLA-G.

7. That certain Notice of Assignment and Clerical Error Correction, to be entered into by and between Company, 2012 ESA, the Lender, Pac Bell, AT&T and PE12GVVC (Bloom PPA) Ltd. with respect to Energy System Use Agreement Numbers 20130403.075. C, 20130403.076.C, 20130403.072.C and 20130403.078.C.

8. That certain Energy System Use Agreement (Number 20130430.076.C), dated May 15, 2013, by and between the Company and Pac Bell and the related Site Lease Agreement of the same date, by and between the Company and Pac Bell.

9. That certain Assignment and Assumption Agreement, to be entered into by and between the Company and 2012 BSA, with respect to (i) that certain Energy System Use Agreement (Number 20130403.075.C), dated May 15, 2013, by and between 2012 ESA and Pac Bell and the related Site Lease Agreement of the same date, by and between 2012 BSA and Pac Bell and (ii) that certain Energy System Use Agreement (Number 20130403.076.C), dated May 15, 2013, by and between 2012 BSA and AT&T, and the related Site Lease Agreement of the same date, by and between 2012 BSA and AT&T.

Schedule VI-I

EXHIBIT A

DEFINED TERMS

“Act” means the Delaware Limited Liability Company Act and any successor statute, as amended from time to time.

“Administrative Services Agreement” shall have the meaning set forth in Schedule VI.

“Administrator” means Bloom Energy Corporation or any replacement administrator under an Administrative Services Agreement.

“Affiliate” of a Person means, any Person Controlling, Controlled by, or Under Common Control with such Person.

“Agreement” means this Amended and Restated Limited Liability Company Agreement of 2013B ESA Project Company, LLC, as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with the terms thereof.

“Assignee” means any Person that acquires a Membership Interest or any portion thereof through a Transfer made in accordance with this Agreement or pursuant to an Involuntary Transfer and that has not been admitted as a Member.

“Certificate” shall have the meaning set forth in Section 2.1.

“Code” means the United States Internal Revenue Code of 1986, as amended from time to time. All references herein to Code Sections shall include any corresponding provision or provisions of succeeding Law.

“Company” means 2013B ESA Project Company, LLC, a Delaware limited liability company, and any successor thereto.

“Contribution Agreement” means that certain Equity Capital Contribution Agreement, dated as of the date hereof, by and between Firstar Development, LLC and Clean Technologies 2013B, LLC.

“Control” including the correlative terms “Controlling”, “Controlled by” and “Under Common Control with” means possession, directly or indirectly, of the power to direct or cause the direction of management or policies (whether through ownership of securities or any partnership or other ownership interest, by contract or otherwise) of a Person. For the purposes of the preceding sentence, control shall be deemed to exist when a Person possesses, directly or indirectly, through one or more intermediaries (i) in the case of a corporation, more than 50% of the outstanding voting securities thereof; (ii) in the case of a limited liability company, partnership, limited partnership or venture, the right to more than 50% of thedistributions therefrom (including liquidating distributions); or (iii) in the case of any other Person, more than 50% of the economic or beneficial interest therein.

“Covered Person” shall have the meaning set forth in Section 8.2.

“Discharge Date” shall have the meaning set forth in Section 3 .4.

“Dissolution Event” shall have the meaning set forth in Section 12.1.

“Financing Documents” are set forth on Schedule IV.

“Holdco LLC Agreement” means the Amended and Restated Limited Liability Company Agreement of 2013B ESA Holdco, LLC, as the same may be amended, supplemented or replaced from time to time.

“Independent Manager” means a duly appointed Manager who shall not have been, at the times of such appointment or at any time in the preceding five (5) years (a) a direct or indirect legal or beneficial owner in the Company or any of its Affiliates (other than his or her service as an “Independent Manager”), (b) a creditor, supplier, employee, officer, director, family member, manager, advisor or contractor of the Company orany of its Affiliates, (c) a Person who Controls the Company or its Affiliates or any creditor, supplier, employee, officer, director, manager or contractor of the Company or any of its Affiliates, (d) a Person who is affiliated with a significant customer, supplier or other person who derives more than ten percent (10%) of its purchases or revenues from its activities with the Company or any of its Affiliates, (e) a Person who is affiliated with a tax-exempt entity that receives significant contributions from the Company or any of its Affiliates or (f) a Person who is engaged under significant personal service contracts with the Company or any of its Affiliates.

“Investment Documents” are set forth on Schedule V.

“Involuntary Transfer” means a Transfer resulting from the death of a Person or any other Transfer occurring by operation of Law, including a Transfer resulting from a bankruptcy or other insolvency proceeding, termination of existence of an entity, divorce or legal incapacity.

“ITCs” means investment tax credits allowed by Section 48 of the Code or any successor to such section.

“Law” means any applicable constitutional provision, statute, act, code (including the Code), law, regulation, rule, ordinance, order, decree, ruling, proclamation, resolution, judgment, decision, declaration, or interpretative or advisory opinion or letter of a governmental authority.

“Manager” shall have the meaning as set forth in Section 6.2.

“Member” means any Person executing this Agreement as of the date of this Agreement as a member.

“Membership Interest” means the limited liability interest of the Member in the Company, including, without limitation, rights to distributions (liquidating or otherwise), allocations, information, all other rights, benefits and privileges enjoyed by the Member (under the Act, the Certificate, this Agreement or otherwise) in its capacity as the Member and otherwise to participate in the management of the Company; and all obligations, duties and liabilities imposed on the Member (under the Act, the Certificate, this Agreement, or otherwise) in its capacity as the Member.

“MESPSA” shall have the meaning set forth in Schedule VI.

“Officer” means any Person designated as an officer of the Company as provided in Section 7.1, but such term does not include any Person who has ceased to be an officer of the Company.

“Person” means any natural person, corporation, limited partnership, general partnership, joint stock company, joint venture, association, limited liability company, company, trust, bank trust company, land trust, business trust, or other organization, whether or not a legal entity, and any government or agency or political subdivision thereof.

“Power Purchase Agreements” shall have the meaning set forth in Schedule VI.

“Principal Facility Documents” are set forth on Schedule VI.

“Proceeding” shall have the meaning set forth in Section 8.3.

“Prudent Operator Standard” means that a Person will (i) perform its duties in compliance in all material respects with the requirements of the Investment Documents and Principal Facility Documents, (ii) perform the duties in accordance with commercially reasonable applicable fuel cell industry standards, taking into account the need to maintain qualification for ITCs and to avoid (a) any recapture of all or any portion of the ITC pursuant to Code Section 50(a) or (b) any disallowance of deferral of, lack of the right to claim, or delay inclaiming, all or any portion of the ITC, in each case at the Member level or the level of any equity owner of the Member for any reason, and (iii) use sufficient and properly trained and skilled personnel.

“Securities Act” means the Securities Act of 1933, as amended from time to time.

“Site Lease” shall have the meaning set forth in Schedule VI.

“Systems” means the on-site fuel cell power generating systems purchased by the Company pursuant to the MESPSA.

“Transfer” including the correlative terms “Transferring” or “Transferred”, means a transaction by which the Member or an Assignee of the Member transfers its respective Membership Interest to another Person and includes a sale, assignment, pledge, encumbrance, hypothecation, mortgage, exchange or any other disposition by Law or otherwise. When used in the context of a Transfer, the term “Membership Interest” shall include any Membership Interest and any interest (pecuniary or otherwise) therein or rights thereto. Notwithstanding the foregoing, the term “Transfer” shall not-include the sale or other disposition of a Member’s respective Membership Interest in connection with (i) the sale of all or substantially all assets of the Member or (ii) the sale of all or substantially all equity interests in the Member.

“Units” means, collectively, the Membership Interests as measured in unit increments and “Unit” shall refer to any one of the Units.

“Voluntary Transfer” means any Transfer other than an Involuntary Transfer.

EXHIBIT B

Units

Certificate No.        

FORM OF CERTIFICATE FOR UNITS

REPRESENTING MEMBERSHIP INTERESTS IN

2013B ESA PROJECT COMPANY, LLC

2013B BSA Project Company, LLC, a Delaware limited liability company (the “Company”), hereby certifies that                    is a Member of the Company and that this Certificate represents such Member’s ownership of                    (                     ) units

representing membership interests in the Company (“Units”).

This Certificate is not negotiable or transferable except upon death or by operation of law or as otherwise provided in the Limited Liability Company Agreement of the Company, as the same may be amended, restated, supplemented or otherwise modified from time to time in accordance with the terms thereof, and the exhibits thereto to which reference is hereby made for a statement of the rights, preferences and limitations pertaining to the Units.

Dated:            

2013B ESA PROJECT COMPANY, LLC

By:

Name:

Title:

RESTRICTIONS UPON THE ASSIGNMENT OR OTHER DISPOSITION OF THE UNITS EVIDENCED BY THIS CERTIFICATE ARE SET FORTH ON THE REVERSE SIDE HEREOF.

Exhibit B-1

2013B ESA PROJECT COMPANY, LLC

CERTIFICATE FOR

UNITS

Dated:                     

THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND MAY NOT BE OFFERED OR SOLD, UNLESS IT HAS BEEN REGISTERED UNDER THE SECURITIES ACT OR UNLESS AN EXEMPTION FROM REGISTRATION IS AVAILABLE (AND, IN SUCH CASE, THE COMPANY MAY REQUIRE AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY TO BE DELIVERED TO IT TO THE EFFECT THAT SUCH OFFER OR SALE IS NOT REQUIRED TO BE REGISTERED UNDER THE SECURITIES ACT). THIS SECURITY IS SUBJECT TO CERTAIN VOTING AGREEMENTS, RESTRICTIONS ON TRANSFER AND OTHER TERMS AND CONDITIONS SET FORTH IN THE LIMITED LIABILITY COMPANY AGREEMENT OF THE COMPANY, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICES.

Exhibit B-2

EXIDBIT C

FORM OF ADOPTION AGREEMENT

This Adoption Agreement is executed by the undersigned transferee (“Transferee”) pursuant to the terms of Section 3.4 to the Amended and Restated Limited Liability Company Agreement of 2013B ESA Project Company, LLC (the “Company”), dated as of August 2, 2013, a copy of which is attached hereto and is incorporated herein by reference (the “Operating Agreement”). By the execution of this Adoption Agreement, the Transferee agrees as follows:

1.    Acknowledgment. Transferee acknowledges that Transferee is acquiring certain Units, subject to the terms and conditions of the Operating Agreement (including the Exhibits thereto). Capitalized terms used herein without definition are defined in the Operating Agreement and are used herein with the same meanings set forth therein.

2.    Agreement. Transferee (a) agrees that Units acquired by Transferee shall be bound by and subject to the terms of the Operating Agreement (including the Exhibits thereto) and (b) hereby joins in, and agrees to be bound by, the Operating Agreement (including the Exhibits thereto) with the same force and effect as if it were originally a party thereto; provided, Transferee’s joinder in the Operating Agreement shall not constitute its admission as a Member unless and until such Transferee is duly admitted in accordance with the terms of the Operating Agreement.

3.    Notice. Any notice required or permitted by the Operating Agreement shall be given to Transferee at the address listed beside Transferee’s signature below.

EXECUTED AND DATED on this day of            , 20    .

TRANSFEREE:
By:
	Notice
	Address:

ANNEX 15-A

Form of Quarterly Renewable Energy Certificate

[See Attached]

7 EQUITY CAPITAL CONTRIBUTION AGREEMENT (BLOOM)

Block DocID

USBCDC RENEWABLE ENERGY COMPLIANCE CERTIFICATE
Usbancorp.
Deal Name: Project ID #: Fund: Deal Type ITC Compliance Period: Quarter 4 ending December 31st, 2012
ITC RECAPTURE
Has there been a change in ownership of any system (or turbine)?
If yes, explain: Yes No
Has any system (or turbine) been taken out of operation?
If yes, explain: Yes No
OPERATIONS
Has there been a default on a PPA or Lease? If yes, explain: Yes No
If PPAs, have systems been generating sufficient power to support the projections that were prepared at closing? If no, explain: Yes No
Any major concerns with system operations or maintenance? If yes, explain: Yes No
Are there any known substantial negative changes in the financial condition of any PPA or Lease counterparty? If yes, explain:
Yes No
Are there any known substantial negative changes in the financial condition of the Guarantor(s)? If yes, explain: Yes No
Has there been a distribution of Net Cash Flows? If yes, please include report. Yes No
Has there been a default on any mortgage, taxes, interest or other obligation? If yes, explain: Yes No
Has there been a death, dissolution, or Bankruptcy of any Owner as defined in the Operating Agreement? If yes, explain: Yes No
Are there any current or pending lawsuits, legal proceedings, or alleged violations of law as defined in the Operating Agreement? If yes, please include copies. Yes No
Are there any alleged violations of health, safety, or building codes as defined in the Operating Agreement? If yes, please include copies. Yes No
Date the last facility was placed in service (PIS) as defined in transaction documents. Leave blank if not PIS. Date:
RESERVES (please skip section if not applicable)
Please list reserve accounts and balances:
Bank Name Account Owner Purpose of the Account As of Date Balance $ - $ - $ - $ - $ - $ - $ - $ -
REC Revenue (please skip section if not applicable) REC Revenue status: Projected REC revenue to investor: $ -
Amount of REC applied for: $ - REC revenue received: $ - Amount transferred to investor: $ -

(BLOOM)

Block DocID

LOAN STATUS (please skip section if not applicable)
Please list Loans: Lender Borrower Type of Loan Original Loan Commitment As of Date Current Balance $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ - $ -
Are there any covenant defaults? If yes, explain: Yes No
Are there any monetary defaults? If yes, explain: Yes No
What is the expected conversion date on any construction loans?
Date:
EQUIPMENT WARRANTY STATUS
Are all equipment warranties still in full force and effect? If No, explain Yes No
ATTACHMENTS (Please mark an “X” below pertaining to items attached.)
Operations & Maintenance Report
Cash Flow Report
Copies of violation of code
Copies of violation of law
Additional comments and/or support
Certification
I hereby certify that I am an authorized signer of the Sponsor and that the above and attached information is true. X Comments:
Please return the completed certificate to usbcdc.renewableenergy@usbank.com no later than 45 days after current period.

(BLOOM)

Block DocID

ANNEX 15-A

Form of Renewable Energy Monthly Report

[See Attached]

10 EQUITY CAPITAL CONTRIBUTION AGREEMENT (BLOOM)

Block DocID

Renewable Energy Monthly Report

(ITC)

Fund Name:	As of Date:
Original Fund Amount: $[***]

Instructions:

• Please input the following

• The projected final Placed in Service date for the fund.

• The stage of installation percentage as outlined below

• The total should equal 100%.

• Any additional comments concerning the fund in the notes section.

• The document should be certified by an authorized signor.

• Attach any supporting documents to support installation.

Installation and Milestone Tracking

Projected final Placed in Service date for the fund: mm/dd/yyyy

Stage of Installation	31-Dec Actual			31-Jan Forecast			28-Feb Forecast
Inspection (Permits)		0.00	%		0.00	%		0.00	%
Site Construction		0.00	%		0.00	%		0.00	%
Commissioning (Start-up Sequence)		0.00	%		0.00	%		0.00	%
Placed In Service (PTO)		0.00	%		0.00	%		0.00	%
Total		100.00	%		100.00	%		100.00	%

Notes and Additional Comments

Notes

Certification

X

Signature

usbank.com

(BLOOM)

Block DocID

[***] Confidential Treatment Requested

EX-10

Exhibit 10.62

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Execution Version

FIRST AMENDMENT TO

EQUITY CAPITAL CONTRIBUTION AGREEMENT

THIS FIRST AMENDMENT TO EQUITY CAPITAL CONTRIBUTION AGREEMENT (this “Amendment”) is executed as of September 25, 2013, by and between Firstar Development, LLC, a Delaware limited liability company (the “Investor”), and Clean Technologies 2013B, LLC, a Delaware limited liability company (the “Class B Member”). The Investor and the Class B Member shall be referred to individually herein as a “Party” and collectively as the “Parties”. Capitalized terms used herein and not otherwise defined have the meanings provided in the Equity Capital Contribution Agreement, dated as of August 2, 2013 (the “ECCA”), by and between the Parties.

RECITALS

A. WHEREAS, the Parties executed the ECCA on August 2, 2013.

B. WHEREAS, the Parties desire to amend the ECCA as more fully set forth in this Amendment.

NOW, THEREFORE, in consideration of the mutual covenants set forth in this Amendment, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree to amend the ECCA as follows:

AGREEMENT

1. Amendments.

a. Preliminary Statement #1 is deleted in its entirety and replaced with the following text:

“2013B ESA Project Company, LLC, a Delaware limited liability company (the “Facility Company”), has entered into that certain Amended and Restated Master Energy Server Purchase and Services Agreement with Bloom Energy Corporation (“Seller”), dated as of September 25, 2013 (the “MESPSA”), which amends and restates that certain Master Energy Server Purchase and Services Agreement, dated as of July 19, 2013 by and between such parties, and pursuant to the MESPSA the Facility Company will purchase, subject to the terms and conditions set for therein, on-site fuel cell power generating systems (each a “System”) with an aggregate Baseload Capacity of up to 6.1 MW, to be installed on, together with the relevant “BOF” (as defined in the MESPSA), each relevant “Site” (as defined in the MESPSA) located in California and Connecticut, as identified more specifically on Annex 1-A attached hereto (each System together with the relevant “BOF” at a “Site”, a “Facility”).”

b. The following definition of the capitalized term “Accounts Agreement” is inserted into Section 1.1 in the appropriate alphabetical location:

“Accounts Agreement” means that certain Accounts Agreement, dated as of July 19, 2013, by and among the Facility Company, the Facility Lender and The Bank of New York Mellon, as the accounts bank.

c. The definition of the capitalized term “ASA” set forth in Section 1.1 is deleted in its entirety and replaced with the following text:

“ASA” means the Amended and Restated Administrative Services Agreement, dated as of September 25, 2013, by and among the Administrator, the Company and the Facility Company.

d. The definition of the capitalized term “Assignment and Assumption Agreement #1” and the definition of the capitalized term “Assignment and Assumption Agreement #2”, each set forth in Section 1.1, are deleted in their entirety and replaced with the following text:

““Assignment and Assumption Agreement” means the Assignment and Assumption Agreement, effective as of May 15, 2013, by and between 2012 ESA, as assignor, and the Facility Company, as assignee.”

e. The definition of the capitalized term “Company LLC Agreement” set forth in Section 1.1 is deleted in its entirety and replaced with the following text:

“Company LLC Agreement” means that certain Amended and Restated Operating Agreement of the Company, dated as of August 2, 2013, by and between the Investor and the Class B Member.

f. The definition of the capitalized term “Credit Agreement” set forth in Section 1.1 is deleted in its entirety and replaced with the following text:

“Credit Agreement” means that certain Amended and Restated Credit Agreement, dated as of September 25, 2013, by and between the Facility Company and the Facility Lender.

g. The following definition of the capitalized term “Equity Pledge Agreement” is inserted into Section 1.1 in the appropriate alphabetical location:

“Equity Pledge Agreement” means that certain Equity Pledge Agreement, dated as of July 19, 2013, by and between the Company and the Facility Lender.

h. The following definition of the capitalized term “Indemnity Agreement” is inserted into Section 1.1 in the appropriate alphabetical location:

“Indemnity Agreement” means that certain Amended and Restated Indemnity Agreement, dated as of September 25, 2013, by and between the Facility Company and Seller.

2

i. The definition of the capitalized term “Interparty Agreement” set forth in Section 1.1 is deleted in its entirety and replaced with the following text:

“Interparty Agreement” means that certain Amended and Restated Interparty Agreement, dated as of August 2, 2013, by and among the Facility Company, the Investor and the Facility Lender.

j. The definition of the capitalized term “Power Purchase Agreement” set forth in Section 1.1 is deleted in its entirety and replaced with the following text:

““Power Purchase Agreement” means collectively

(i) that certain Energy System Use Agreement No. 20130430.072.C dated as of May 15, 2013, by and between AT&T PPA Customer 1 and the Facility Company, as amended by Amendment No. 1 to Energy System Use Agreement No. 20130430.072.C, effective as of May 15, 2013, by and between AT&T PPA Customer 1 and the Facility Company, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time, which was partially assigned by the Facility Company to 2012 ESA Project Company, LLC, a Delaware limited liability company (“2012 ESA”), pursuant to that certain Assignment and Assumption Agreement, dated as of July 5, 2013 (the “PPA E/G Assignment”), and which PPA E/G Assignment has been terminated pursuant to a termination agreement;

(ii) that certain Energy System Use Agreement No. 20130430.076.C dated as of May 15, 2013, by and between AT&T PPA Customer 1 and the Facility Company, as may be amended, amended and restated, supplemented or otherwise modified from time to time;

(iii) that certain Energy System Use Agreement No. 20130430.078.C dated as of May 15, 2013, by and between AT&T PPA Customer 2 and the Facility Company, as amended by Amendment No. 1 to Energy System Use Agreement No. 20130430.078.C, effective as of May 15, 2013, by and between AT&T PPA Customer 2 and the Facility Company, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time, which was partially assigned by the Facility Company to 2012 ESA pursuant to the PPA E/G Assignment, and which PPA E/G Assignment has been terminated pursuant to a termination agreement;

3

(iv) that certain Energy System Use Agreement No. 20130403.076.C, dated as of May 15, 2013, by and between AT&T PPA Customer 2 and 2012 ESA, as amended by that certain Acknowledgement and Consent Regarding Assignment and Amendment, effective as of May 15, 2013, by and between PPA Customer 2 and 2012 ESA, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time (“PPA-C”), which PPA-C was assigned by 2012 ESA to the Facility Company pursuant to that certain Assignment and Assumption Agreement, dated as of July 5, 2013 (the “PPA B/C Assignment”), which PPA B/C Assignment has been terminated pursuant to a termination agreement and which PPA-C has been assigned by 2012 ESA to the Facility Company pursuant to the Assignment and Assumption Agreement.”

k. The following definition of the capitalized term “Security Agreement” is inserted into Section 1.1 in the appropriate alphabetical location:

“Security Agreement” means that certain Assignment and Security Agreement, dated as of July 19, 2013, by and between the Facility Company and the Facility Lender.

l. The text “and” is added to the end of Section 6.1(o).

m. Section 6.1(p) and Section 6.1(q) are deleted in their entirety.

n. The text “; and” is deleted from the end of Section 6.2(dd) and is replaced with “.”

o. Section 6.2(ee) is deleted in its entirety.

p. The reference to “Section 7.16(b)” included in Section 6.4(c) shall be changed to “Section 7.15(b)”.

q. The text “; and” is deleted from the end of Section 6.4(u) and is replaced with “.”

r. Section 6.4(v) is deleted in its entirety.

s. Annex 1-A is deleted in its entirety and replaced with the revised version of Annex 1-A, attached hereto as Exhibit A.

t. Annex 10-A and Annex 10-B are deleted in their entirety.

u. Recital B of Annex 9 is deleted in its entirety and replaced with the following:

“B. The Undersigned, the Company and the Facility Company have entered into that certain Amended and Restated Administrative Services Agreement, dated as of September 25, 2013, as amended, amended and restated, supplemented or otherwise modified from time to time (the “ASA”);”

4

v. Recital C of Annex 9 is deleted in its entirety and replaced with the following:

“C. The Undersigned and the Facility Company have entered into that certain Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of September 25, 2013, as amended, amended and restated, supplemented or otherwise modified from time to time (together with the ASA, the “Agreements”); and”

2. Ratification. The ECCA, as amended hereby, is in all respects ratified and confirmed and shall be and remain in full force and effect. All references to the ECCA in any other document or instrument shall be deemed to mean such ECCA as amended by this Amendment.

3. Amendments. No amendment, modification, termination or waiver of any provision of this Amendment shall be effective unless the same shall be in writing and duly executed by the Parties.

4. Enforceability. This Amendment shall be enforceable by and binding upon and shall inure to the benefit of the Parties hereto and their respective successors and assigns.

5. Governing Law. THIS AMENDMENT SHALL BE DEEMED MADE AND PREPARED AND SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS THEREOF WHICH MAY REQUIRE THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).

6. Counterparts and Facsimile Execution. This Amendment may be executed and delivered (including by “portable document format”) in one or more counterparts, all of which shall be considered one and the same and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to each other Party, it being understood that all Parties need not sign the same counterpart. Signatures of the Parties transmitted by electronic mail shall be deemed to be their original signatures for all purposes.

7. Severability. If any term or other provision of this Amendment is invalid, illegal, or incapable of being enforced by any rule of applicable law, or public policy, all other terms and provisions of this Amendment shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated herein are not affected in any manner materially adverse to any Party.

[Remainder of page intentionally left blank.]

5

IN WITNESS WHEREOF, each Party has caused this Amendment to be signed on its behalf as of the date first written above.

FIRSTAR DEVELOPMENT, LLC, a Delaware limited liability company
By:	/s/ Lan Adair Sasa
Name:	Lan Adair Sasa
Title:	Authorized Officer
CLEAN TECHNOLOGIES 2013B, LLC, a Delaware limited liability company
By:
Name:
Title:

[Signature page to First Amendment to Equity Capital Contribution Agreement]

IN WITNESS WHEREOF, each Party has caused this Amendment to be signed on its behalf as of the date first written above.

CLEAN TECHNOLOGIES 2013B, LLC, a Delaware limited liability company
By:	/s/ Sendil Atreya
Name:	Sendil Atreya
Title:	Vice President

[Signature page to First Amendment to Equity Capital Contribution Agreement]

Execution Version

EXHIBIT A

ANNEX 1-A

List of Prospective Facilities and Locations

Site  No	PPA Customer	Address	City	State	Size (kW)	Applicable Energy System Use Agreement No.
1	Pac Bell	[***]	Los Angeles	CA	[***]	[***]
2	Pac Bell	[***]	Gardena	CA	[***]	[***]
3	Pac Bell	[***]	Los Angeles	CA	[***]	[***]
4	Pac Bell	[***]	Fairfield	CA	[***]	[***]
5	AT&T Corp.	[***]	New London	CT	[***]	[***]
6	AT&T Corp	[***]	Waterbury	CT	[***]	[***]
7	AT&T Corp	[***]	Meriden	CT	[***]	[***]
8	AT&T Corp	[***]	Sherman Oaks	CA	[***]	[***]
		[***]	Rialto	CA	[***]
				[***]	[***]

[Exhibit A to First Amendment to Equity Capital Contribution Agreement]

[***] Confidential Treatment Requested

EX-10

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Exhibit 10.63

Execution Version

SECOND AMENDMENT TO

EQUITY CAPITAL CONTRIBUTION AGREEMENT

THIS SECOND AMENDMENT TO EQUITY CAPITAL CONTRIBUTION AGREEMENT (this “Amendment”) is executed as of March 28, 2014, by and between Firstar Development, LLC, a Delaware limited liability company (the “Investor”), and Clean Technologies 2013B, LLC, a Delaware limited liability company (the “Class B Member”). The Investor and the Class B Member shall be referred to individually herein as a “Party” and collectively as the “Parties”. Capitalized terms used herein and not otherwise defined have the meanings provided in the Equity Capital Contribution Agreement, dated as of August 2, 2013, as amended by the First Amendment to Equity Capital Contribution Agreement, dated as of September 25, 2013 (the “ECCA”), by and between the Parties.

RECITALS

A. WHEREAS, the Parties desire to amend the ECCA as more fully set forth in this Amendment.

NOW, THEREFORE, in consideration of the mutual covenants set forth in this Amendment, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree to amend the ECCA as follows:

AGREEMENT

1. Amendments.

a. Preliminary Statement #1 is deleted in its entirety and replaced with the following text:

“2013B ESA Project Company, LLC, a Delaware limited liability company (the “Facility Company”), has entered into that certain Amended and Restated Master Energy Server Purchase and Services Agreement with Bloom Energy Corporation (“Seller”), dated as of September 25, 2013, as may be amended, amended and restated, supplemented, or otherwise modified from time to time (the “MESPSA”), by and between such parties, and pursuant to the MESPSA the Facility Company will purchase, subject to the terms and conditions set for therein, on-site fuel cell power generating systems (each a “System”) with an aggregate Baseload Capacity of up to 6.1 MW, to be installed on, together with the relevant “BOF” (as defined in the MESPSA), each relevant “Site” (as defined in the MESPSA) located in California and Connecticut, as identified more specifically on Annex 1-A attached hereto (each System together with the relevant “BOF” at a “Site”, a “Facility”).”

b. The definition of the capitalized term “Accounts Agreement” set forth in Section 1.1 is deleted in its entirety and replaced with the following text:

““Accounts Agreement” means that certain Accounts Agreement, dated as of July 19, 2013, as amended by the First Amendment to Accounts Agreement, dated as of December 30, 2013, by and among the Facility Company, the Facility Lender and The Bank of New York Mellon, as the accounts bank, as may be amended, amended and restated, supplemented, or otherwise modified from time to time.”

c. The definition of the capitalized term “ASA” set forth in Section 1.1 is deleted in its entirety and replaced with the following text:

““ASA” means the Amended and Restated Administrative Services Agreement, dated as of September 25, 2013, by and among the Administrator, the Company and the Facility Company, as may be amended, amended and restated, supplemented, or otherwise modified from time to time.”

d. The definition of the capitalized term “Credit Agreement” set forth in Section 1.1 is deleted in its entirety and replaced with the following text:

““Credit Agreement” means that certain Amended and Restated Credit Agreement, dated as of September 25, 2013, by and between the Facility Company and the Facility Lender, as may be amended, amended and restated, supplemented, or otherwise modified from time to time.”

e. The following definition of the capitalized term “Equity Commitment Fee” is inserted into Section 1.1 in the appropriate alphabetical location:

““Equity Commitment Fee” has the meaning set forth in Section 2.9.”

f. The following definition of the capitalized term “Projected Date” is inserted into Section 1.1 in the appropriate alphabetical location:

““Projected Date” has the meaning set forth in Section 2.9.”

g. The definition of the capitalized term “True Up Funding Date Deadline” set forth in Section 1.1 is deleted in its entirety and replaced with the following text:

““True Up Funding Date Deadline” means the earliest to occur of (a) an “Event of Default” as defined in the Financing Documents, (b) a material breach by Seller under the MESPSA, and (c) December 31, 2014.”

h. A new Section 2.9 is inserted at the end of Article II as follows:

“2.9. Equity Commitment Fee.

In the event that, with respect to the Facilities listed on Schedule 2.9 hereto, Commencement of Operations (as defined in the MESPSA) for such Facility has not occurred by the last day of the month specified under “Projected Date of Commencement of Operations” in Schedule 2.9 (such date, the “Projected Date”),

2

then the Class B Member shall pay to the Investor a monthly equity commitment fee (the “Equity Commitment Fee”) for the period commencing on the first day of the calendar month immediately following the Projected Date and ending on the earlier of (x) the date such Facility in Schedule 2.9 has achieved Commencement of Operations or (y) the True-Up Funding Deadline, calculated as follows: such fee shall be equal to the product of $200 multiplied by the size (in kW) of such Facility for which Commencement of Operations has not been achieved by the Projected Date; provided that, notwithstanding the foregoing, the Class B Member shall not be obligated to pay the first month’s Equity Commitment Fee with respect to the Facility located at Site No. 8 on Schedule 2.9 so long as (a) the Facility Company has provided notice, at least 30 days prior to the Projected Date for such Facility, that such Facility will not reach Commencement of Operations by such Projected Date and (b) such Facility does reach Commencement of Operations within the calendar month immediately following the Projected Date; provided, further, that the Class B Member shall not be obligated to pay the Equity Commitment Fee with respect to any Facility, or shall pay the Equity Commitment Fee based on a reduced size, as applicable (x) if the Facility Company has provided notice, at least 30 days prior to the Projected Date, that such Facility shall be removed from Schedule 2.9 or that the size of such Facility shall be reduced or (y) from and after the first day of the calendar month immediately following the month in which the Facility Company has provided notice that such Facility shall be removed from Schedule 2.9 or that the size of such Facility shall be reduced, so long as such notice was provided by the 15th (fifteenth) day of such calendar month. Any Equity Commitment Fee payable pursuant to this Section 2.9 shall be paid within 15 days after the end of each calendar month with respect to which payment becomes due in accordance with this provision (commencing on May 15, 2014).”

i. Annex 1-A is deleted in its entirety and replaced with the revised version of Annex 1-A, attached hereto as Exhibit A.

j. A new Schedule 2.9 is added, attached hereto as Schedule 2.9.

2. Ratification. The ECCA, as amended hereby, is in all respects ratified and confirmed and shall be and remain in full force and effect. All references to the ECCA in any other document or instrument shall be deemed to mean such ECCA as amended by this Amendment.

3. Amendments. No amendment, modification, termination or waiver of any provision of this Amendment shall be effective unless the same shall be in writing and duly executed by the Parties.

4. Enforceability. This Amendment shall be enforceable by and binding upon and shall inure to the benefit of the Parties hereto and their respective successors and assigns.

5. Governing Law. THIS AMENDMENT SHALL BE DEEMED MADE AND PREPARED AND SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS THEREOF WHICH MAY REQUIRE THE

3

APPLICATION OF THE LAW OF ANOTHER JURISDICTION (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).

6. Counterparts and Facsimile Execution. This Amendment may be executed and delivered (including by “portable document format”) in one or more counterparts, all of which shall be considered one and the same and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to each other Party, it being understood that all Parties need not sign the same counterpart. Signatures of the Parties transmitted by electronic mail shall be deemed to be their original signatures for all purposes.

7. Severability. If any term or other provision of this Amendment is invalid, illegal, or incapable of being enforced by any rule of applicable law, or public policy, all other terms and provisions of this Amendment shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated herein are not affected in any manner materially adverse to any Party.

8. Conditions Precedent to Effectiveness of Amendment. The effectiveness of this Amendment and the obligations of the Investor to consummate the transactions contemplated by this Amendment are subject to the satisfaction of or waiver by Investor of each of the following conditions not later than March 25, 2014 (“Amendment Date Conditions Precedent” and the date of satisfaction or waiver thereof the “Amendment Date”):¹

a. the Investor has received fully executed copies of this Amendment, a reaffirmation of the Guaranty in the form attached hereto as Exhibit B, amendments to the MESPSA and the ASA in the forms attached hereto as Exhibits C-1 and C-2, and an amendment to the Company LLC Agreement in the form attached hereto as Exhibit D, or otherwise each in form and substance reasonably satisfactory to the Investor, and each is in full force and effect;

b. the Investor has received (i) a legal opinion of O’Melveny & Myers LLP, substantially in the form of Annex 8-A to the ECCA but covering only the documents described in Section 8(a) above and the related transactions and (ii) a legal opinion of O’Melveny & Myers LLP, special California counsel, substantially in the form of Annex 8-B.1 to the ECCA but covering only the documents described in Section 8(a) above and the related transactions;

c. the Investor has received a bring down of the tax opinion from Winston & Strawn LLP, which opinion shall be in form and substance reasonably satisfactory to it;

d. the Investor has received necessary approval from its internal investment committee, board of directors or other governing body to enter into the transactions contemplated under this Amendment, subject only to the satisfaction or waiver of the conditions set forth in this Section 8;

¹  The following conditions precedent are adapted from Section 6.1 of the ECCA, except where otherwise noted.

4

e. the Investor has received, as applicable, (i) an incumbency certificate dated as of the Amendment Date from the Facility Entities, from the Class B Member and the Guarantor, (ii) from the Class B Member, on behalf of each Facility Entity, a certificate from an authorized officer dated as of the Amendment Date to the effect that to such officer’s Knowledge the conditions set forth in this Section 8 have been satisfied, (iii) a Delaware good standing certificate of the Guarantor, the Class B Member and the Facility Entities, each dated as of a recent date, from the applicable Secretary of State, (iv) resolutions of the Board of Directors, or other equivalent governing body, of the Facility Entities, the Class B Member and the Guarantor authorizing and approving the execution of this Amendment, the amendments to the other Investment Documents and the transactions contemplated hereunder certified by a secretary or an assistant secretary as of the Amendment Date and (v) formation documents certified by a secretary or an assistant secretary as of the Amendment Date, in each case, unless otherwise noted, of the Guarantor, the Class B Member and the Facility Entities as are customary for transactions of this type, each of which shall be reasonably satisfactory to the Investor;

f. the Investor has received an update of the Base Case Model in form and substance reasonably satisfactory to it;

g. the Investor has received an update of the annual budget for the Facility Company;

h. the Investor has received fully executed copies of the amendments to the Financing Documents that have been executed as of such date;

i. the Class B Member shall have paid (or caused to be paid) or shall have made arrangements in the manner reasonably satisfactory to the payee for the payment of all outstanding amounts due, as of the Amendment Date, and owing to with respect to Transaction Expenses for all services rendered and billed prior to the Amendment Date;

j. the Class B Member shall have paid (or caused to be paid) a fee to the Investor in consideration of the extension and other accommodations granted by this Amendment in the amount of $[***];

k. each of the representations and warranties in the ECCA and the other Investment Documents as amended by this Amendment and the other documents contemplated hereby (other than those made as of a later date) is true and correct in all material respects as of the Amendment Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date); and

l. the Investor has received reasonably satisfactory evidence that the Guarantor maintains $[***] in cash equivalent investments.

[Remainder of page intentionally left blank.]

[***] Confidential Treatment Requested

5

IN WITNESS WHEREOF, each Party has caused this Amendment to be signed on its behalf as of the date first written above.

FIRSTAR DEVELOPMENT, LLC, a Delaware limited liability company
By:	/s/ Nicholas Brinker
	Name:	Nicholas Brinker
	Title:	Authorized Officer
CLEAN TECHNOLOGIES 2013B, LLC, a Delaware limited liability company
By:
	Name:
	Title:

[Signature page to Second Amendment to Equity Capital Contribution Agreement]

CLEAN TECHNOLOGIES 2013B, LLC, a Delaware limited liability company
By:	/s/ Sendil Atreya
	Name:	Sendil Atreya
	Title:	Vice President

[Signature page to Second Amendment to Equity Capital Contribution Agreement]

EXHIBIT A

ANNEX 1-A

List of Prospective Facilities and Locations

Site No.	PPA Customer	Address	City	State	Size (kW)	Applicable Energy System Use Agreement No.
1	Pac Bell	[***]	Los Angeles	CA	[***]	[***]
2	Pac Bell	[***]	Gardena	CA	[***]	[***]
4	Pac Bell	[***]	Fairfield	CA	[***]	[***]
5	AT&T Corp.	[***]	New London	CT	[***]	[***]
6	AT&T Corp.	[***]	Waterbury	CT	[***]	[***]
7	AT&T Corp.	[***]	Meriden	CT	[***]	[***]
8	AT&T Corp.	[***]	Sherman Oaks	CA	[***]	[***]
				Total	[***]

[Exhibit A to Second Amendment to Equity Capital Contribution Agreement]

[***] Confidential Treatment Requested

Schedule 2.9

Projected Dates of Commencement of Operations²

Site No.	PPA Customer	Address	City	State	Size (kW)		Projected Date of Commencement of Operations
2	Pac Bell	[***]	[***]	[***]		400	June 2014
4	Pac Bell	[***]	[***]	[***]		1000	March 2014
8	AT&T Corp.	[***]	[***]	[***]		1000	October 2014
				Total		2400

²  As defined in the MESPSA

[Schedule 2.9 to Second Amendment to Equity Capital Contribution Agreement]

[***] Confidential Treatment Requested

Exhibit B

Form of Reaffirmation of Guaranty

[separately provided]

9

Exhibit C-1

Form of Amendment to MESPSA

[separately provided]

10

Exhibit C-2

Form of Amendment to ASA

[separately provided]

11

Exhibit D

Form of First Amendment to Company LLC Agreement

[separately provided]

12

EX-10

Exhibit 10.64

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

EXECUTION VERSION

THIRD AMENDMENT TO

EQUITY CAPITAL CONTRIBUTION AGREEMENT

THIS THIRD AMENDMENT TO EQUITY CAPITAL CONTRIBUTION AGREEMENT (this “Amendment”) is executed as of July 18, 2014, by and between Firstar Development, LLC, a Delaware limited liability company (the “Investor”), and Clean Technologies 2013B, LLC, a Delaware limited liability company (the “Class B Member”). The Investor and the Class B Member shall be referred to individually herein as a “Party” and collectively as the “Parties”. Capitalized terms used herein and not otherwise defined have the meanings provided in the Equity Capital Contribution Agreement, dated as of August 2, 2013, as amended by the First Amendment to Equity Capital Contribution Agreement, dated as of September 25, 2013 and Second Amendment to Equity Capital Contribution Agreement, dated as of March 28, 2014 (the “ECCA”), by and between the Parties.

RECITALS

A. WHEREAS, the Parties desire to amend the ECCA as more fully set forth in this Amendment.

NOW, THEREFORE, in consideration of the mutual covenants set forth in this Amendment, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree to amend the ECCA as follows:

AGREEMENT

1. Amendments.

a. The definition of the capitalized term “Assignment and Assumption Agreement” set forth in Section 1.1 is deleted in its entirety and replaced with the following text:

““Assignment and Assumption Agreement #1” means the Assignment and Assumption Agreement, effective as of May 15, 2013, by and between 2012 ESA, as assignor, and the Facility Company, as assignee.”

b. The following definition of the capitalized term “Assignment and Assumption Agreement #2” is inserted into Section 1.1 in the appropriate alphabetical location:

““Assignment and Assumption Agreement #2” means the Assignment and Assumption Agreement, dated as of May 22, 2014 and effective as of July 18, 2014, by and between ESU Company, as assignor, and the Facility Company, as assignee.”

c. The following definition of the capitalized term “ESU Company” is inserted into Section 1.1 in the appropriate alphabetical location:

““ESU Company” means Energy Server Use Contracting Company, LLC, a Delaware limited liability company.”

d. The following definition of the capitalized term [***] Consent” is inserted into Section 1.1 in the appropriate alphabetical location:

““[***] Consent” means the Acknowledgment and Consent Regarding Assignment with respect to PPA-D and related Site Lease, dated as of May 22, 2014, by and among ESU Company, the Facility Company, [***] PPA Customer and consented to by Guarantor.”

e. The following definition of the capitalized term “[***] Guaranty” is inserted into Section 1.1 in the appropriate alphabetical location:

““[***] Guaranty” means that certain guaranty by [***] Corporation in favor of the Facility Company, dated as of June 5, 2014.”

f. The following definition of the capitalized term “[***] PPA Customer” is inserted into Section 1.1 in the appropriate alphabetical location:

““[***] PPA Customer” means [***]

g. The definition of the capitalized term “Indemnity Agreement” set forth in Section 1.1 is deleted in its entirety and replaced with the following text:

““Indemnity Agreement” means that certain Amended and Restated Indemnity Agreement, dated as of September 25, 2013, by and between the Facility Company and Seller, as may be amended, amended and restated, supplemented, or otherwise modified from time to time.”

h. The definition of the capitalized term “Power Purchase Agreement” set forth in Section 1.1 is deleted in its entirety and replaced with the following text:

““Power Purchase Agreement” means collectively

(i) that certain Energy System Use Agreement No. 20130430.072.C dated as of May 15, 2013, by and between AT&T PPA Customer 1 and the Facility Company, as amended by Amendment No. 1 to Energy System Use Agreement No. 20130430.072.C, effective as of May 15, 2013, by and between AT&T PPA Customer 1 and the Facility Company, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time, which was partially assigned by the Facility Company to 2012 ESA Project Company, LLC, a Delaware limited liability company (“2012 ESA”), pursuant to that certain Assignment and Assumption Agreement, dated as of July 5, 2013 (the “PPA E/G Assignment”), and which PPA E/G Assignment has been terminated pursuant to a termination agreement;

(ii) that certain Energy System Use Agreement No.

[***] Confidential Treatment Requested

2

20130430.076.C dated as of May 15, 2013, by and between AT&T PPA Customer 1 and the Facility Company, as may be amended, amended and restated, supplemented or otherwise modified from time to time;

(iii) that certain Energy System Use Agreement No. 20130430.078.C dated as of May 15, 2013, by and between AT&T PPA Customer 2 and the Facility Company, as amended by Amendment No. 1 to Energy System Use Agreement No. 20130430.078.C, effective as of May 15, 2013, by and between AT&T PPA Customer 2 and the Facility Company, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time, which was partially assigned by the Facility Company to 2012 ESA pursuant to the PPA E/G Assignment, and which PPA E/G Assignment has been terminated pursuant to a termination agreement;

(iv) that certain Energy System Use Agreement No. 20130403.076.C, dated as of May 15, 2013, by and between AT&T PPA Customer 2 and 2012 ESA, as amended by that certain Acknowledgement and Consent Regarding Assignment and Amendment, effective as of May 15, 2013, by and between AT&T PPA Customer 2 and 2012 ESA, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time (“PPA-C”), which PPA-C was assigned by 2012 ESA to the Facility Company pursuant to that certain Assignment and Assumption Agreement, dated as of July 5, 2013 (the “PPA B/C Assignment”), which PPA B/C Assignment has been terminated pursuant to a termination agreement and which PPA-C has been assigned by 2012 ESA to the Facility Company pursuant to the Assignment and Assumption Agreement #1; and

(v) that certain Energy System Use Agreement, dated as of July 24, 2013, by and between [***] PPA Customer and ESU Company, as may be amended, amended and restated, supplemented or otherwise modified from time to time (“PPA-D”), which PPA-D was assigned by ESU Company to the Facility Company pursuant to the Assignment and Assumption Agreement #2.”

i. The definition of the capitalized term “PPA Customers” set forth in Section 1.1 is deleted in its entirety and replaced with the following text:

““PPA Customers” means collectively (i) AT&T PPA Customer 1, (ii) AT&T PPA Customer 2 and (iii) [***] PPA Customer.”

j. Annex 1-A is deleted in its entirety and replaced with the revised version of Annex 1-A, attached hereto as Exhibit A.

[***] Confidential Treatment Requested

3

k. Annex 3 is deleted in its entirety and replaced with the revised version of Annex 3, attached hereto as Exhibit B.

l. Schedule 2.9 is deleted in its entirety and replaced with the revised version of Schedule 2.9, attached hereto as Exhibit C.

2. Ratification. The ECCA, as amended hereby, is in all respects ratified and confirmed and shall be and remain in full force and effect. All references to the ECCA in any other document or instrument shall be deemed to mean such ECCA as amended by this Amendment.

3. Amendments. No amendment, modification, termination or waiver of any provision of this Amendment shall be effective unless the same shall be in writing and duly executed by the Parties.

4. Enforceability. This Amendment shall be enforceable by and binding upon and shall inure to the benefit of the Parties hereto and their respective successors and assigns.

5. Governing Law. THIS AMENDMENT SHALL BE DEEMED MADE AND PREPARED AND SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS THEREOF WHICH MAY REQUIRE THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).

6. Counterparts and Facsimile Execution. This Amendment may be executed and delivered (including by “portable document format”) in one or more counterparts, all of which shall be considered one and the same and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to each other Party, it being understood that all Parties need not sign the same counterpart. Signatures of the Parties transmitted by electronic mail shall be deemed to be their original signatures for all purposes.

7. Severability. If any term or other provision of this Amendment is invalid, illegal, or incapable of being enforced by any rule of applicable law, or public policy, all other terms and provisions of this Amendment shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated herein are not affected in any manner materially adverse to any Party.

8. Conditions Precedent to Effectiveness of Amendment. The effectiveness of this Amendment and the obligations of the Investor to consummate the transactions contemplated by this Amendment are subject to the satisfaction of or waiver by Investor of each of the following conditions not later than July 18, 2014 (“Amendment Date Conditions Precedent” and the date of satisfaction or waiver thereof the “Amendment Date”):

a. the Investor has received fully executed copies of each of the [***] Guaranty, PPA-D, the Site Lease related to PPA-D, the [***] Consent, and Assignment and Assumption Agreement #2, each in form and substance reasonably satisfactory to the Investor, and each such [***] Guaranty, PPA-D, Site Lease and [***] Consent is in full force and effect;

[***] Confidential Treatment Requested

4

b. the Investor has received fully executed copies of this Amendment and an amendment to the MESPSA in the form attached hereto as Exhibit D (the “MESPSA Amendment”), or otherwise in form and substance reasonably satisfactory to the Investor, and each is in full force and effect;

c. the Investor has received (i) a legal opinion of O’Melveny & Myers LLP, substantially in the form of Annex 8-A to the ECCA but covering only the enforceability of this Amendment and the MESPSA Amendment, (ii) a legal opinion of O’Melveny & Myers LLP, special California counsel, substantially in the form of Annex 8-B.1 to the ECCA but covering only the enforceability of PPA-D, the Site Lease related to PPA-D and the [***] Consent and (iii) a legal opinion of Morris James LLP, special Delaware counsel, covering only the enforceability of the [***] Guaranty;

d. the Investor has received an update of the Insurance Report with respect to PPA-D and any Facility contemplated thereunder, in form and substance reasonably satisfactory to it, and a letter executed by the Insurance Consultant permitting the Investor to rely on such Insurance Report, if not addressed to the Investor;

e. the Investor has received necessary approval from its internal investment committee, board of directors or other governing body to enter into the transactions contemplated under this Amendment, subject only to the satisfaction or waiver of the conditions set forth in this Section 8;

f. the Investor has received, as applicable, (i) an incumbency certificate dated as of the Amendment Date from the Facility Company, from the Class B Member and the Guarantor, (ii) from the Class B Member, on behalf of the Facility Company, a certificate from an authorized officer dated as of the Amendment Date to the effect that to such officer’s Knowledge the conditions set forth in this Section 8 have been satisfied, (iii) a Delaware good standing certificate of the Guarantor, the Class B Member and the Facility Company, each dated as of a recent date, from the applicable Secretary of State, (iv) resolutions of the Board of Directors, or other equivalent governing body, of the Facility Company, the Class B Member and the Guarantor authorizing and approving the execution of this Amendment, the amendments to the other Investment Documents and the transactions contemplated hereunder certified by a secretary or an assistant secretary as of the Amendment Date and (v) formation documents certified by a secretary or an assistant secretary as of the Amendment Date, in each case, unless otherwise noted, of the Guarantor, the Class B Member and the Facility Company as are customary for transactions of this type, each of which shall be reasonably satisfactory to the Investor;

g. the Investor has received fully executed copies of the amendments to the Financing Documents that have been executed as of such date, which shall include an amendment to the Credit Agreement entered into in connection with the [***] Guaranty, PPA-D, the related Site Lease and the [***] Consent;

[***] Confidential Treatment Requested

5

h. the Investor has received reasonably satisfactory evidence that the Facilities to be installed pursuant to PPA-D and the related Site Lease are the same in all material respects as the Facilities included in the Independent Engineer Report;

i. the Class B Member shall have paid (or caused to be paid) or shall have made arrangements in the manner reasonably satisfactory to the payee for the payment of all outstanding amounts due, as of the Amendment Date, and owing to with respect to Transaction Expenses for all services rendered and billed prior to the Amendment Date;

j. each of the representations and warranties in the ECCA and the other Investment Documents as amended by this Amendment and the other documents contemplated hereby (other than those made as of a later date) is true and correct in all material respects as of the Amendment Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date); and

k. the Investor has received reasonably satisfactory evidence that the Guarantor maintains $[***] in cash equivalent investments.

[Remainder of page intentionally left blank.]

[***] Confidential Treatment Requested

6

IN WITNESS WHEREOF, each Party has caused this Amendment to be signed on its behalf as of the date first written above.

FIRSTAR DEVELOPMENT, LLC, a Delaware limited liability company
By:	/s/ Nicholas Brinker
Name:	Nicholas Brinker
Title:	Authorized Officer

[Signature page to Third Amendment to Equity Capital Contribution Agreement]

CLEAN TECHNOLOGIES 2013B, LLC, a Delaware limited liability company
By:	/s/ W. E. Brockenborough
Name:	W. E. Brockenborough
Title:	Vice President

[Signature page to Third Amendment to Equity Capital Contribution Agreement]

EXHIBIT A

ANNEX 1-A

List of Prospective Facilities and Locations

Site No.	PPA Customer	Address	City	State	Size (kW)	Applicable Energy System Use Agreement No.
1	Pac Bell	[***]	Los Angeles	CA	[***]	[***]
2	Pac Bell	[***]	Gardena	CA	[***]	[***]
4	Pac Bell	[***]	Fairfield	CA	[***]	[***]
5	AT&T Corp.	[***]	New London	CT	[***]	[***]
6	AT&T Corp.	[***]	Waterbury	CT	[***]	[***]
7	AT&T Corp.	[***]	Meriden	CT	[***]	[***]
8	AT&T Corp.	[***]	Sherman Oaks	CA	[***]	[***]
9	[***]	[***]	Bloomington	CA	[***]	[***]

[Exhibit A to Third Amendment to Equity Capital Contribution Agreement]

[***] Confidential Treatment Requested

EXHIBIT B

ANNEX 3

List of All Contracts

(terms as defined in this Agreement, unless noted otherwise)

1. Power Purchase Agreements

2. Site Leases

3. MESPSA

4. ASA

5. Facility Company LLC Agreement

6. Agreement with SAIC Energy, Environment & Infrastructure, LLC for Use of Work Products in connection with PPA IIIb

7. IP License

8. IP Security Agreement

9. Interparty Agreement

10. Indemnity Agreement

11. Credit Agreement

12. Security Agreement

13. Equity Pledge Agreement

14. Accounts Agreement

15. [***] Consent

16. [***] Guaranty

[Exhibit B to Third Amendment to Equity Capital Contribution Agreement]

[***] Confidential Treatment Requested

EXHIBIT C

Schedule 2.9

Projected Dates of Commencement of Operations¹

Site No.	PPA Customer	Address	City	State	Size (kW)	Projected Date of Commencement of Operations
2	Pac Bell	[***]	[***]	[***]	[***]	[***]
4	Pac Bell	[***]	[***]	[***]	[***]	[***]
8	AT&T Corp.	[***]	[***]	[***]	[***]	[***]
9	[***]	[***]	[***]	[***]	[***]	[***]
				[***]	[***]

¹  As defined in the MESPSA

[Exhibit C to Third Amendment to Equity Capital Contribution Agreement]

[***] Confidential Treatment Requested

Exhibit D

Form of Amendment to MESPSA

[separately provided]

[Exhibit D to Third Amendment to Equity Capital Contribution Agreement]

EX-10

Exhibit 10.65

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

EXECUTION VERSION

FOURTH AMENDMENT TO

EQUITY CAPITAL CONTRIBUTION AGREEMENT

THIS FOURTH AMENDMENT TO EQUITY CAPITAL CONTRIBUTION AGREEMENT (this “Amendment”) is effective as of October 24, 2014, by and between Firstar Development, LLC, a Delaware limited liability company (the “Investor”), and Clean Technologies 2013B, LLC, a Delaware limited liability company (the “Class B Member”). The Investor and the Class B Member shall be referred to individually herein as a “Party” and collectively as the “Parties”. Capitalized terms used herein and not otherwise defined have the meanings provided in the Equity Capital Contribution Agreement, dated as of August 2, 2013, as amended by the First Amendment to Equity Capital Contribution Agreement, dated as of September 25, 2013, as further amended by the Second Amendment to Equity Capital Contribution Agreement, dated as of March 28, 2014, and as further amended by the Third Amendment to Equity Capital Contribution Agreement, dated as of July 18, 2014, in each case, by and between the Parties (as so amended, the “ECCA”).

RECITALS

A. WHEREAS, the Parties desire to amend the ECCA as more fully set forth in this Amendment.

NOW, THEREFORE, in consideration of the mutual covenants set forth in this Amendment, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree to amend the ECCA as follows:

AGREEMENT

1. Amendments.

a. The definition of the capitalized term “Accounts Agreement” set forth in Section 1.1 is deleted in its entirety and replaced with the following text:

““Accounts Agreement” means that certain Accounts Agreement, dated as of July 19, 2013, as amended by the First Amendment to Accounts Agreement, dated as of December 30, 2013, and as further amended by the Second Amendment to Accounts Agreement, effective as of October 24, 2014, by and among the Facility Company, the Facility Lender and The Bank of New York Mellon, as the accounts bank, as may be further amended, amended and restated, supplemented, or otherwise modified from time to time.”

b. The following definition of the capitalized term “AT&T Guaranty” is inserted into Section 1.1 in the appropriate alphabetical location:

““AT&T Guaranty” means that certain Guaranty, dated as of October 24, 2014, issued by AT&T PPA Customer 2 in connection with the [***] PPA and in favor of the Facility Company.”

[***] Confidential Treatment Requested

c. The following definition of the capitalized term “[***] PPA Customer” is inserted into Section 1.1 in the appropriate alphabetical location:

“[***] PPA Customer” means [***] a Delaware corporation.”

d. The definition of the capitalized term “Power Purchase Agreement” set forth in Section 1.1 is deleted in its entirety and replaced with the following text:

““Power Purchase Agreement” means collectively

(i) that certain Energy System Use Agreement No. 20130430.072.C dated as of May 15, 2013, by and between AT&T PPA Customer 1 and the Facility Company, as amended by Amendment No. 1 to Energy System Use Agreement No. 20130430.072.C, effective as of May 15, 2013, by and between AT&T PPA Customer 1 and the Facility Company, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time, which was partially assigned by the Facility Company to 2012 ESA Project Company, LLC, a Delaware limited liability company (“2012 ESA”), pursuant to that certain Assignment and Assumption Agreement, dated as of July 5, 2013 (the “PPA E/G Assignment”), and which PPA E/G Assignment has been terminated pursuant to a termination agreement;

(ii) that certain Energy System Use Agreement No. 20130430.076.C dated as of May 15, 2013, by and between AT&T PPA Customer 1 and the Facility Company, as may be amended, amended and restated, supplemented or otherwise modified from time to time;

(iii) that certain Energy System Use Agreement No. 20130430.078.C dated as of May 15, 2013, by and between AT&T PPA Customer 2 and the Facility Company, as amended by Amendment No. 1 to Energy System Use Agreement No. 20130430.078.C, effective as of May 15, 2013, as further amended by Amendment No. 2 to Energy System Use Agreement No. 20130430.078.C, effective as of October 24, 2014, in each case, by and between AT&T PPA Customer 2 and the Facility Company, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time, which was partially assigned by the Facility Company to 2012 ESA pursuant to the PPA E/G Assignment, and which PPA E/G Assignment has been terminated pursuant to a termination agreement;

[***] Confidential Treatment Requested

2

(iv) that certain Energy System Use Agreement No. 20130403.076.C, dated as of May 15, 2013, by and between

AT&T PPA Customer 2 and 2012 ESA, as amended by that certain Acknowledgement and Consent Regarding Assignment and Amendment, effective as of May 15, 2013, by and between AT&T PPA Customer 2 and 2012 ESA, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time (“PPA-C”), which PPA-C was assigned by 2012 ESA to the Facility Company pursuant to that certain Assignment and Assumption Agreement, dated as of July 5, 2013 (the “PPA B/C Assignment”), which PPA B/C Assignment has been terminated pursuant to a termination agreement and which PPA-C has been assigned by 2012 ESA to the Facility Company pursuant to the Assignment and Assumption Agreement #1;

(v) that certain Energy System Use Agreement, dated as of July 24, 2013, by and between [***] PPA Customer and ESU Company, as may be amended, amended and restated, supplemented or otherwise modified from time to time (“PPA-D”), which PPA-D was assigned by ESU Company to the Facility Company pursuant to the Assignment and Assumption Agreement #2; and

(vi) that certain Energy System Use Agreement, dated as of October 24, 2014, by and between [***] PPA Customer and the Facility Company, as may be amended, amended and restated, supplemented or otherwise modified from time to time (the “[***] PPA”).”

e. The definition of the capitalized term “PPA Customers” set forth in Section 1.1 is deleted in its entirety and replaced with the following text:

““PPA Customers” means collectively (i) AT&T PPA Customer 1, (ii) [***] PPA Customer 2, (iii) [***] PPA Customer and (iv) [***] PPA Customer.”

f. Annex 1-A is deleted in its entirety and replaced with the revised version of Annex 1-A, attached hereto as Exhibit A.

g. Annex 3 is deleted in its entirety and replaced with the revised version of Annex 3, attached hereto as Exhibit B.

2. Ratification. The ECCA, as amended hereby, is in all respects ratified and confirmed and shall be and remain in full force and effect. All references to the ECCA in any other document or instrument shall be deemed to mean such ECCA as amended by this Amendment.

3. Amendments. No amendment, modification, termination or waiver of any provision of this Amendment shall be effective unless the same shall be in writing and duly executed by the Parties.

[***] Confidential Treatment Requested

3

4. Enforceability. This Amendment shall be enforceable by and binding upon and shall inure to the benefit of the Parties hereto and their respective successors and assigns.

5. Governing Law. THIS AMENDMENT SHALL BE DEEMED MADE AND PREPARED AND SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS THEREOF WHICH MAY REQUIRE THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).

6. Counterparts and Facsimile Execution. This Amendment may be executed and delivered (including by “portable document format”) in one or more counterparts, all of which shall be considered one and the same and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to each other Party, it being understood that all Parties need not sign the same counterpart. Signatures of the Parties transmitted by electronic mail shall be deemed to be their original signatures for all purposes.

7. Severability. If any term or other provision of this Amendment is invalid, illegal, or incapable of being enforced by any rule of applicable law, or public policy, all other terms and provisions of this Amendment shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated herein are not affected in any manner materially adverse to any Party.

8. Conditions Precedent to Effectiveness of Amendment. The effectiveness of this Amendment and the obligations of the Investor to consummate the transactions contemplated by this Amendment are subject to the satisfaction of or waiver by Investor of each of the following conditions not later than April 7, 2015 (“Amendment Date Conditions Precedent” and the date of satisfaction or waiver thereof the “Amendment Date”):

a. the Investor has received fully executed copies of each of the AT&T Guaranty, [***] PPA, Site Lease related to [***] PPA, and Amendment No. 2 to Energy System Use Agreement No. 20130430.078.C, each in form and substance reasonably satisfactory to the Investor, and each such AT&T Guaranty, [***] PPA, Site Lease related to [***] PPA, and Amendment No. 2 to Energy System Use Agreement No. 20130430.078.C is in full force and effect;

b. the Investor has received fully executed copies of this Amendment and an amendment to the MESPSA in the form attached hereto as Exhibit C, or otherwise in form and substance reasonably satisfactory to the Investor, and each is in full force and effect;

c. the Investor has received necessary approval from its internal investment committee, board of directors or other governing body to enter into the transactions contemplated under this Amendment, subject only to the satisfaction or waiver of the conditions set forth in this Section 8;

[***] Confidential Treatment Requested

4

d. the Investor has received fully executed copies of the amendments to the Financing Documents that have been executed as of such date, which shall include an amendment to the Credit Agreement entered into, in connection with the AT&T Guaranty, [***] PPA, Site Lease related to [***] PPA, and Amendment No. 2 to Energy System Use Agreement No. 20130430.078.C;

e. the Class B Member shall have paid (or caused to have been paid) or shall have made arrangements in the manner reasonably satisfactory to the payee for the payment of all outstanding amounts due, as of the Amendment Date, and owing, with respect to, Transaction Expenses for all services rendered and billed prior to the Amendment Date; and

f. each of the representations and warranties in the ECCA and the other Investment Documents as amended by this Amendment and the other documents contemplated hereby (other than those made as of a later date) is true and correct in all material respects as of the Amendment Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date).

[Remainder of page intentionally left blank.]

[***] Confidential Treatment Requested

5

IN WITNESS WHEREOF, each Party has caused this Amendment to be signed on its behalf effective as of the date first written above.

CLEAN TECHNOLOGIES 2013B, LLC,
a Delaware limited liability company
By:	/s/ William E. Brockenborough
Name:	William E. Brockenborough
Title:	Vice President

[Signature page to Fourth Amendment to Equity Capital Contribution Agreement]

FIRSTAR DEVELOPMENT, LLC,
a Delaware limited liability company
By:	/s/ Josh Kittrell
Name:	Josh Kittrell
Title:	Officer

[Signature page to Fourth Amendment to Equity Capital Contribution Agreement]

EXHIBIT A

ANNEX 1-A

List of Prospective Facilities and Locations

Site No.	PPA Customer	Address	City	State	Size (kW)	Applicable Energy System Use Agreement No.
1	Pac Bell	[***]	LosAngeles	CA	[***]	[***]
2	Pac Bell	[***]	Gardena	CA	[***]	[***]
4	Pac Bell	[***]	Fairfield	CA	[***]	[***]
5	[***]	[***]	NewLondon	CT	[***]	[***]
6	[***]	[***]	Waterbury	CT	[***]	[***]
7	A&T Corp.	[***]	Meriden	CT	[***]	[***]
8	AT&T Corp.	[***]	Sherman Oaks	CA	[***]	[***]
9	[***]	[***]	Bloomington	CA	[***]	[***]
				[***]	[***]

[Exhibit A to Fourth Amendment to Equity Capital Contribution Agreement]

[***] Confidential Treatment Requested

EXHIBIT B

ANNEX 3

List of All Contracts

(terms as defined in this Agreement, unless noted otherwise)

1. Power Purchase Agreements

2. Site Leases

3. MESPSA

4. ASA

5. Facility Company LLC Agreement

6. Agreement with SAIC Energy, Environment & Infrastructure, LLC for Use of Work Products in connection with PPA IIIb

7. IP License

8. IP Security Agreement

9. Interparty Agreement

10. Indemnity Agreement

11. Credit Agreement

12. Security Agreement

13. Equity Pledge Agreement

14. Accounts Agreement

15. [***] Consent

16. [***] Guaranty

17. AT&T Guaranty

[Exhibit B to Fourth Amendment to Equity Capital Contribution Agreement]

[***] Confidential Treatment Requested

Exhibit C

Form of Amendment to MESPSA

[separately provided]

[Exhibit C to Fourth Amendment to Equity Capital Contribution Agreement]

EX-10

Exhibit 10.66

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Execution Version

FIFTH AMENDMENT TO

EQUITY CAPITAL CONTRIBUTION AGREEMENT

THIS FIFTH AMENDMENT TO EQUITY CAPITAL CONTRIBUTION AGREEMENT (this “Amendment”), dated as of May 5, 2015 (the “Amendment Date”), by and between Firstar Development, LLC, a Delaware limited liability company (the “Investor”), and Clean Technologies 2013B, LLC, a Delaware limited liability company (the “Class B Member”). The Investor and the Class B Member shall be referred to individually herein as a “Party” and collectively as the “Parties”. Capitalized terms used herein and not otherwise defined have the meanings provided in the Equity Capital Contribution Agreement, dated as of August 2, 2013, as amended by the First Amendment to Equity Capital Contribution Agreement, dated as of September 25, 2013, as further amended by the Second Amendment to Equity Capital Contribution Agreement, dated as of March 28, 2014, as further amended by the Third Amendment to Equity Capital Contribution Agreement, dated as of July 18, 2014, and as further amended by the Fourth Amendment to Equity Capital Contribution Agreement, effective as of October 24, 2014, in each case, by and between the Parties (as so amended, the “ECCA”).

RECITALS

WHEREAS, the Parties desire to amend the ECCA as more fully set forth in this Amendment.

NOW, THEREFORE, in consideration of the mutual covenants set forth in this Amendment, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree to amend the ECCA as follows:

AGREEMENT

1. Amendments.

a.    Preliminary Statement #1 is deleted in its entirety and replaced with the following text:

“2013B ESA Project Company, LLC, a Delaware limited liability company (the “Facility Company”), has entered into that certain Amended and Restated Master Energy Server Purchase and Services Agreement with Bloom Energy Corporation (“Seller”), dated as of September 25, 2013, as amended by the First Amendment to Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of March 28, 2014, as further amended by the Second Amendment to Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of July 18, 2014, as further amended by the Third Amendment to Amended and Restated Master Energy Server Purchase and Services Agreement, effective as of October 24, 2014, as further amended by the Fourth Amendment to Amended

and Restated Master Energy Server Purchase and Services Agreement, dated as of May 5, 2015, and as may be further amended, amended and restated, supplemented, or otherwise modified from time to time (the “MESPSA”), by and between such parties, and pursuant to the MESPSA the Facility Company will purchase, subject to the terms and conditions set for therein, on-site fuel cell power generating systems (each a “System”) with an aggregate Baseload Capacity of up to [***] MW, to be installed on, together with the relevant “BOF” (as defined in the MESPSA), each relevant “Site” (as defined in the MESPSA) located in California and Connecticut, as identified more specifically on Annex 1-A attached hereto (each System together with the relevant “BOF” at a “Site”, a “Facility”).”

b.    The following definition of the capitalized term “2015 ESA” is inserted into Section 1.1 in the appropriate alphabetical location:

““2015 ESA” means 2015 ESA Project Company, LLC, a Delaware limited liability company.”

c.    The following definition of the capitalized term “Assignment and Assumption Agreement #3” is inserted into Section 1.1 in the appropriate alphabetical location:

““Assignment and Assumption Agreement #3” means the Assignment and Assumption Agreement, effective as of December 17, 2014, by and between 2015 ESA, as assignor, and the Facility Company, as assignee, executed in connection with the [***] PPA.”

d.    The following definition of the capitalized term “[***] Consent” is inserted into Section 1.1 in the appropriate alphabetical location:

““[***] Consent” means the Acknowledgment and Consent to Assignment with respect to [***] PPA, effective as of December 17, 2014, by and between [***] PPA Customer and the Facility Company and acknowledged by 2015 ESA.”

e.    The following definition of the capitalized term “[***] PPA Customer” is inserted into Section 1.1 in the appropriate alphabetical location:

““[***] PPA Customer” means the [***].”

f.    The definition of the capitalized term “Interparty Agreement” set forth in Section 1.1 is deleted in its entirety and replaced with the following text:

“Interparty Agreement” means the Interparty Agreement, dated as of August 2, 2013, by and among the Facility Company, the Investor and the Facility Lender, as may be amended, amended and restated, supplemented, or otherwise modified from time to time.

*** Confidential Treatment Requested

2

g.    The definition of the capitalized term “Power Purchase Agreement” set forth in Section 1.1 is deleted in its entirety and replaced with the following text:

““Power Purchase Agreement” means collectively

(i)    that certain Energy System Use Agreement No. 20130430.072.C dated as of May 15, 2013, by and between AT&T PPA Customer 1 and the Facility Company, as amended by Amendment No. 1 to Energy System Use Agreement No. 20130430.072.C, effective as of May 15, 2013, by and between AT&T PPA Customer 1 and the Facility Company, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time, which was partially assigned by the Facility Company to 2012 ESA Project Company, LLC, a Delaware limited liability company (“2012 ESA”), pursuant to that certain Assignment and Assumption Agreement, dated as of July 5, 2013 (the “PPA E/G Assignment”), and which PPA E/G Assignment has been terminated pursuant to a termination agreement;

(ii)    that certain Energy System Use Agreement No. 20130430.076.C dated as of May 15, 2013, by and between AT&T PPA Customer 1 and the Facility Company, as may be amended, amended and restated, supplemented or otherwise modified from time to time;

(iii)    that certain Energy System Use Agreement No. 20130430.078.C dated as of May 15, 2013, by and between AT&T PPA Customer 2 and the Facility Company, as amended by Amendment No. 1 to Energy System Use Agreement No. 20130430.078.C, effective as of May 15, 2013, as further amended by Amendment No. 2 to Energy System Use Agreement No. 20130430.078.C, effective as of October 24, 2014, in each case, by and between AT&T PPA Customer 2 and the Facility Company, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time, which was partially assigned by the Facility Company to 2012 ESA pursuant to the PPA E/G Assignment, and which PPA E/G Assignment has been terminated pursuant to a termination agreement;

(iv)    that certain Energy System Use Agreement No. 20130403.076.C, dated as of May 15, 2013, by and between AT&T PPA Customer 2 and 2012 ESA, as amended by that certain Acknowledgement and Consent Regarding Assignment and Amendment, effective as of May 15, 2013, by and between AT&T PPA Customer 2 and 2012 ESA, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time (“PPA-C”), which PPA-C was assigned by 2012 ESA to the Facility Company pursuant to that certain Assignment and Assumption Agreement, dated as of July 5, 2013 (the “PPA B/C Assignment”), which PPA B/C Assignment has been terminated pursuant to a termination agreement and which PPA-C has been assigned by 2012 ESA to the Facility Company pursuant to the Assignment and Assumption Agreement #1;

3

(v)    that certain Energy System Use Agreement, dated as of July 24, 2013, by and between [***] PPA Customer and ESU Company, as may be amended, amended and restated, supplemented or otherwise modified from time to time (“PPA-D”), which PPA-D was assigned by ESU Company to the Facility Company pursuant to the Assignment and Assumption Agreement #2;

(vi)    that certain Energy System Use Agreement, dated as of October 24, 2014, by and between Frontier PPA Customer and the Facility Company, as may be amended, amended and restated, supplemented or otherwise modified from time to time (the “[***] PPA”); and

(vii)    that certain Energy Services and License Agreement, dated as of December 17, 2014, by and between [***] PPA Customer and 2015 ESA, as amended by the Amendment No. 1 to Energy Services and License Agreement, by and between [***] PPA Customer and the Facility Company, effective as of December 17, 2014, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time (the “[***] PPA”), which [***] PPA was assigned by 2015 ESA to the Facility Company pursuant to Assignment and Assumption Agreement #3.

h.    The definition of the capitalized term “PPA Customers” set forth in Section 1.1 is deleted in its entirety and replaced with the following text:

““PPA Customers” means collectively (i) AT&T PPA Customer 1, (ii) AT&T PPA Customer 2, (iii) [***] PPA Customer, (iv) [***] PPA Customer and (v) [***] PPA Customer.”

i.    The definition of the capitalized term “True Up Funding Date Deadline” set forth in Section 1.1 is deleted in its entirety and replaced with the following text:

““True Up Funding Date Deadline” means the earliest to occur of (a) an “Event of Default” as defined in the Financing Documents, (b) a material breach by Seller under the MESPSA, and (c) June 30, 2015.”

j.    The text “.” is deleted from the end of Section 6.4(u) and is replaced with “; and”

k.    A new Section 6.4(v) at the end of Section 6.4 as follows:

“with respect to any True Up Funding Date that occurs for a Facility that is the subject of the [***] PPA, the Investor shall have received either (i) reasonably satisfactory evidence that the Facilities to be installed pursuant to [***] PPA are the same in all material respects as the Facilities included in the Independent Engineer Report or (ii) a written confirmation from the Independent Engineer, in form and substance reasonably acceptable to the Investor, that the Independent Engineer expects that the Facilities to be installed pursuant to the [***] PPA will perform at least as well as, and operate substantially similar to, the Facilities included in the Independent Engineer Report.”

*** Confidential Treatment Requested

4

l.    Annex 1-A is deleted in its entirety and replaced with the revised version of Annex 1-A, attached hereto as Exhibit A.

m.    Annex 1-B is deleted in its entirety and replaced with the revised version of Annex 1-B, attached hereto as Exhibit B.

n.    Annex 3 is deleted in its entirety and replaced with the revised version of Annex 3, attached hereto as Exhibit C.

2.    Ratification. The ECCA, as amended hereby, is in all respects ratified and confirmed and shall be and remain in full force and effect. All references to the ECCA in any other document or instrument shall be deemed to mean such ECCA as amended by this Amendment.

3.    Amendments. No amendment, modification, termination or waiver of any provision of this Amendment shall be effective unless the same shall be in writing and duly executed by the Parties.

4.    Enforceability. This Amendment shall be enforceable by and binding upon and shall inure to the benefit of the Parties hereto and their respective successors and assigns.

5.    Governing Law. THIS AMENDMENT SHALL BE DEEMED MADE AND PREPARED AND SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS THEREOF WHICH MAY REQUIRE THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK).

6.    Counterparts and Facsimile Execution. This Amendment may be executed and delivered (including by “portable document format”) in one or more counterparts, all of which shall be considered one and the same and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to each other Party, it being understood that all Parties need not sign the same counterpart. Signatures of the Parties transmitted by electronic mail shall be deemed to be their original signatures for all purposes.

7.    Severability. If any term or other provision of this Amendment is invalid, illegal, or incapable of being enforced by any rule of applicable law, or public policy, all other terms and provisions of this Amendment shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated herein are not affected in any manner materially adverse to any Party.

8.    Conditions Precedent to Effectiveness of Amendment. The effectiveness of this Amendment and the obligations of the Investor to consummate the transactions contemplated by this Amendment are subject to the satisfaction of or waiver by Investor of each of the following conditions not later than the Amendment Date:

a.    the Investor has received fully executed copies of each of the [***] PPA, [***] Consent, and Assignment and Assumption Agreement #3, each in form and substance reasonably satisfactory to the Investor, and each such [***] PPA, [***] Consent and Assignment and Assumption Agreement #3 is in full force and effect;

*** Confidential Treatment Requested

5

b.    the Investor has received fully executed copies of this Amendment, an amendment to the MESPSA in the form attached hereto as Exhibit D, or otherwise in form and substance reasonably satisfactory to the Investor, and an amendment to the Interparty Agreement, in the form attached hereto as Exhibit E, or otherwise in form and substance reasonably satisfactory to the Investor, and each is in full force and effect;

c.    the Investor has received a legal opinion of O’Melveny & Myers LLP, substantially in the form of Annex 8-A to the ECCA but covering only the enforceability of the documents described in Sections 8(a) and 8(b) above;

d.    the Investor has received necessary approval from its internal investment committee, board of directors or other governing body to enter into the transactions contemplated under this Amendment, subject only to the satisfaction or waiver of the conditions set forth in this Section 8;

e.    the Investor has received fully executed copies of the amendments to the Financing Documents that have been executed as of such date, which shall include an amendment to the Credit Agreement entered into, in connection with the [***] PPA, [***] Consent, and Assignment and Assumption Agreement #3;

f.    the Investor has received an update of the annual operating budget for the Facility Company to include the Facilities to be installed pursuant to the [***] PPA;

g.    the Class B Member shall have paid (or caused to have been paid) or shall have made arrangements in the manner reasonably satisfactory to the payee for the payment of all outstanding amounts due, as of the Amendment Date, and owing, with respect to, Transaction Expenses for all services rendered and billed prior to the Amendment Date;

h.    the Investor has received reasonably satisfactory evidence that the Guarantor maintains $[***] in cash equivalents, and

i.    each of the representations and warranties in the ECCA and the other Investment Documents as amended by this Amendment and the other documents contemplated hereby (other than those made as of a later date) is true and correct in all material respects as of the Amendment Date (unless such representation or warranty relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date).

9.    Acknowledgment Regarding the last True Up Funding Date. The Parties acknowledge and agree that, in accordance with Section 6.4(j) of the ECCA, delivery to the Investor of an updated Base Case Model, including a compilation report, rerun to reflect actual applicable Facility Costs and all other updated model inputs (including the effect of any Tax Law Change), in form and substance reasonably satisfactory to the Investor, shall be a True Up Funding Date Condition Precedent to the True Up Funding Date for the Facility to be installed pursuant to the [***] PPA.

[Remainder of page intentionally left blank.]

*** Confidential Treatment Requested

6

IN WITNESS WHEREOF, each Party has caused this Amendment to be signed on its behalf effective as of the date first written above.

FIRSTAR DEVELOPMENT, LLC,
a Delaware limited liability company
By:	/s/ Josh Kittrell
Name:	Josh Kittrell
Title:	Officer

[Signature Page to Fifth Amendment to Equity Capital Contribution Agreement]

CLEAN TECHNOLOGIES 2013B, LLC,
a Delaware limited liability company
By:	/s/ William E. Brockenborough
Name:	William E. Brockenborough
Title:	Vice President

[Signature Page to Fifth Amendment to Equity Capital Contribution Agreement]

EXHIBIT A

ANNEX 1-A

List of Prospective Facilities and Locations

Site No.	PPA Customer	Address	City	State		Size (kW)	Applicable Energy System Use Agreement No.
1	Pac Bell	[***]	Los Angeles		CA	[***]	[***]
2	Pac Bell	[***].	Gardena		]CA	[***]	[***]
4	Pac Bell	[***]	Fairfield		CA	[***]	[***] [***]
5	[***] Corporation	[***]	New London		CT	[***]	N/A
6	[***] Corporation	[***].	Waterbury		CT	[***]	N/A
7	AT&T Corp.	[***]	Meriden		CT	[***]	[***]
8	AT&T Corp.	[***]	Sherman Oaks		CA	[***]	[***]
9	[***], Inc.	[***]	Bloomington		CA	[***]	[***]
10	[***]	[***]	Pasadena		CA	[***]	N/A
			Total:	[***]

*** Confidential Treatment Requested

[Exhibit A to Fifth Amendment to Equity Capital Contribution Agreement]

EXHIBIT B

ANNEX 1-B

Base Case Model

[to be separately provided in accordance with Section 6.4(j) of the ECCA]

[Exhibit B to Fifth Amendment to Equity Capital Contribution Agreement]

[Exhibit B to Fifth Amendment to Equity Capital Contribution Agreement]

EXHIBIT C

ANNEX 3

List of All Contracts

(terms as defined in this Agreement, unless noted otherwise)

1. Power Purchase Agreements

2. Site Leases

3. MESPSA

4. ASA

5. Facility Company LLC Agreement

6. Agreement with SAIC Energy, Environment & Infrastructure, LLC for Use of Work Products in connection with PPA IIIb

7. IP License

8. IP Security Agreement

9. Interparty Agreement

10. Indemnity Agreement

11. Credit Agreement

12. Security Agreement

13. Equity Pledge Agreement

14. Accounts Agreement

15. [***]Consent

16. [***] Guaranty

17. AT&T Guaranty

18. [***] Consent

*** Confidential Treatment Requested

[Exhibit C to Fifth Amendment to Equity Capital Contribution Agreement]

EXHIBIT D

Form of Amendment to MESPSA

[separately provided]

[Exhibit D to Fifth Amendment to Equity Capital Contribution Agreement]

EXHIBIT E

Form of Amendment to Interparty Agreement

[separately provided]

[Exhibit E to Fifth Amendment to Equity Capital Contribution Agreement]

Execution Version

FIRST AMENDMENT TO

INTERPARTY AGREEMENT

THIS FIRST AMENDMENT TO INTERPARTY AGREEMENT (this “Amendment”) is executed as of September 25, 2013 by and among Firstar Development, LLC, a Delaware limited liability company (the “Investor”), 2013B ESA Project Company, LLC, a Delaware limited liability company (the “Borrower”), and Silicon Valley Bank (the “Lender”). Each of the foregoing entities shall be referred to individually herein as a “Party” and collectively as the “Parties”. Capitalized terms used herein and not otherwise defined have the meanings provided in the Interparty Agreement, dated as of August 2, 2013 (the “Agreement”), by and among the Parties.

RECITALS

A.    WHEREAS, the Parties executed the Agreement on August 2, 2013.

B.    WHEREAS, the Parties desire to amend the Agreement as more fully set forth in this Amendment.

NOW, THEREFORE, in consideration of the mutual covenants set forth in this Amendment, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree to amend the Agreement as follows:

AGREEMENT

1. Amendments.

a. Recital “A” is deleted in its entirety and replaced with the following text:

“The Borrower has entered into that certain Amended and Restated Master Energy Server Purchase and Services Agreement with Bloom Energy Corporation, dated as of September 25, 2013 (the “MESPSA”), which amended and restated that certain Master Energy Server Purchase and Services Agreement, dated as of July 19, 2013 by and between such parties, and pursuant to the MESPSA, the Borrower will purchase, subject to the terms and conditions set forth therein, on-site fuel cell power generating systems (each a “System”), with an aggregate baseload capacity of approximately 6 MW, to be installed on, together with the relevant “BOF” (as defined in the MESPSA), each relevant “Site” (as defined in the MESPSA) (each System together with the relevant “BOF” at a “Site”, a “Facility”).”

b. Recital “C” is deleted in its entirety and replaced with the following text:

“The Investor is party, among others, to that certain Equity Capital Contribution Agreement dated as of August 2, 2013, as amended by that certain First Amendment to Equity Capital Contribution Agreement dated as of September 25, 2013 (the “Tax Equity ECCA”), pursuant to which the

Investor shall make certain contributions, in the amounts and subject to the terms and conditions set forth therein, to 2013B ESA Holdco, LLC, a Delaware limited liability company (“Holdco”), which owns all of the membership interests in the Borrower.”

c. The definition of the capitalized term “Holdco LLC Agreement” set forth in Section 1(a) is deleted in its entirety and replaced with the following text:

“Holdco LLC Agreement” means that certain Amended and Restated Operating Agreement of the Company, dated as of August 2, 2013, by and between the Investor and Clean Technologies.

2. Ratification. The Agreement, as amended hereby, is in all respects ratified and confirmed and shall be and remain in full force and effect. All references to the Agreement in any other document or instrument shall be deemed to mean such Agreement as amended by this Amendment.

3. Amendments. No amendment, modification, termination or waiver of any provision of this Amendment shall be effective unless the same shall be in writing and duly executed by the Parties.

4. Enforceability. This Amendment shall be enforceable by and binding upon and shall inure to the benefit of the Parties hereto and their respective successors and assigns.

5. Governing Law. THIS AMENDMENT SHALL BE DEEMED MADE AND PREPARED AND SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS THEREOF WHICH MAY REQUIRE THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.

6. Counterparts and Facsimile Execution. This Amendment may be executed and delivered (including by “portable document format”) in one or more counterparts, all of which shall be considered one and the same and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to each other Party, it being understood that all Parties need not sign the same counterpart. Signatures of the Parties transmitted by electronic mail shall be deemed to be their original signatures for all purposes.

7. Severability. If any term or other provision of this Amendment is invalid, illegal, or incapable of being enforced by any rule of applicable law, or public policy, all other terms and provisions of this Amendment shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated herein are not affected in any manner materially adverse to any Party.

[Remainder of page intentionally left blank.]

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IN WITNESS WHEREOF, each Party has caused this Amendment to be signed on its behalf as of the date first written above.

FIRSTAR DEVELOPMENT, LLC, a Delaware limited liability company
By:	/s/ Lan Adair Sasa
Name:	Lan Adair Sasa
Title:	Authorized Officer
2013B ESA PROJECT COMPANY, LLC, a Delaware limited liability company
By:
Name:
Title:
SILICON VALLEY BANK, as Lender
By:
Name:
Title:

[Signature page to First Amendment to Interparty Agreement]

2013B ESA PROJECT COMPANY, LLC, a Delaware limited liability company
By:	/s/ Sendil Atreya
Name:	Sendil Atreya
Title:	Vice President

[Signature page to First Amendment to Interparty Agreement]

SILICON VALLEY BANK,

as Lender

By:

Name:

Title:

[Signature page to First Amendment to Interparty Agreement]

EX-10

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Exhibit 10.67

EXECUTION VERSION

AMENDED AND RESTATED

ADMINISTRATIVE SERVICES AGREEMENT

by and between

BLOOM ENERGY CORPORATION,

2013B ESA HOLDCO, LLC

and

2013B ESA PROJECT COMPANY, LLC

Dated as of September 25, 2013

TABLE OF CONTENTS

		Page
ARTICLE I	DEFINITIONS AND USAGE		1
Section 1.01    Definitions			1
ARTICLE II	RESPONSIBILITIES		5
Section 2.01    Administrator’s Responsibilities			5
Section 2.02    Separateness			10
ARTICLE III	STANDARD OF PERFORMANCE		10
Section 3.01    Standard of Performance			10
Section 3.02    No Liability			11
Section 3.03    PPA Obligations			11
ARTICLE IV	REIMBURSEMENT AND PAYMENT		12
Section 4.01    Reimbursable Expenses			12
Section 4.02    Billing and Payment			13
Section 4.03    Records			13
ARTICLE V	DELAYS		14
Section 5.01    Conditions			14
Section 5.02    Mitigation of Delay			14
ARTICLE VI	DISPUTE RESOLUTION		14
Section 6.01    Procedure			14
ARTICLE VII	COMMENCEMENT AND TERMINATION		15
Section 7.01    Term			15
Section 7.02    Resignation of Administrator			15
Section 7.03    Early Termination			15
Section 7.04    Accrued Fees			15
ARTICLE VIII	DEFAULT		15
Section 8.01    Events of Default			15
Section 8.02    Bankruptcy			16
Section 8.03    Remedies			17
ARTICLE IX	INDEMNIFICATION AND LIMITATION OF DAMAGES		17
Section 9.01    Indemnification			17
Section 9.02    Liability			18
Section 9.03    Supremacy			18

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TABLE OF CONTENTS

(continued)

		Page
ARTICLE X	REPRESENTATIONS AND WARRANTIES		18
Section 10.01    Representations and Warranties			18
ARTICLE XI	MISCELLANEOUS		19
Section 11.01    Assignment			19
Section 11.02    Authorization			19
Section 11.03    Governing Law, Jurisdiction, Venue			19
Section 11.04    Independent Contractor			20
Section 11.05    Notice			20
Section 11.06    Usage			21
Section 11.07    Entire Agreement			22
Section 11.08    Amendment			22
Section 11.09    Confidential Information			22
Section 11.10    Third Party Beneficiaries			23
Section 11.11    Discharge of Obligations			24
Section 11.12    Severability			24
Section 11.13    Binding Effect			24
Section 11.14    No Liens			24

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AMENDED AND RESTATED

ADMINISTRATIVE SERVICES AGREEMENT

THIS AMENDED AND RESTATED ADMINISTRATIVE SERVICES AGREEMENT (the “Agreement”) is made as of September 25, 2013, by and among 2013B ESA HOLDCO, LLC, a Delaware limited liability company (the “Company”), 2013B ESA PROJECT COMPANY, LLC, a Delaware limited liability company (the “Project Company”), and BLOOM ENERGY CORPORATION, a Delaware corporation (the “Administrator”), and amends and restates that certain Administrative Services Agreement, dated as of July 19, 2013, by and among the Company, the Project Company and the Administrator. The Company, the Project Company, and the Administrator are sometimes referred to herein individually as a “Party” and collectively as the “Parties”.

PRELIMINARY STATEMENTS

A. The Company owns 100% of the issued and outstanding membership interests in the Project Company.

B. Through its ownership of the Project Company, the Company will own an indirect 100% interest in the Portfolio (as defined below).

C. Clean Technologies 2013B, LLC, a Delaware limited liability company (“Clean Technologies”), and Firstar Development, LLC, a Delaware limited liability company (“Investor”), entered into that certain Amended and Restated Limited Liability Company Agreement of 2013B ESA Holdco, LLC, dated as of August 2, 2013 (the “Company LLC Agreement”).

D. The Members of the Company have agreed in the Company LLC Agreement to delegate day-to-day management of the Company to the Administrator, in conjunction with the services to be provided by Bloom Energy Corporation under the MESPSA.

E. The Company, as sole member of the Project Company (“Sole Member”), has also agreed in the Project Company LLC Agreement to cause the Project Company to delegate day-to-day management of the Project Company to the Administrator.

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein, the parties, intending to be legally bound, agree as follows:

ARTICLE I

DEFINITIONS AND USAGE

Section 1.01 Definitions. Unless the context requires otherwise or this Agreement expressly provides otherwise, capitalized terms used in this Agreement have the following meanings and capitalized terms not defined in this Agreement have the meanings given to such terms in the Company LLC Agreement (without giving effect to any amendments or modifications thereto following the date hereof):

“Accountants” is defined in the ECCA.

“Administration Fee” is defined in Section 4.01(a).

“Administrator” is defined in the Preamble.

“Affiliate” is defined in the MESPSA.

“Agreement” is defined in the Preamble.

“Annual Budget” has the meaning set forth in the Company LLC Agreement.

“Available Cash Flow” has the meaning set forth in the Company LLC Agreement.

“Baseload Capacity” is defined in the MESPSA.

“Bloom System” or “Bloom Systems” is defined in the MESPSA.

“BOF” is defined in the MESPSA.

“Business Day” is defined in the MESPSA.

“Calendar Year” means the calendar year beginning January 1 and ending on December 31, and in the case of the initial Calendar Year, the period beginning on the Initial Funding Date and ending on December 31, 2013.

“Clean Technologies” is defined in the Preliminary Statements.

“Code” means the Internal Revenue Code of 1986, as amended.

“Commencement of Operations” is defined in the MESPSA.

“Company” is defined in the Preamble.

“Company LLC Agreement” is defined in the Preliminary Statements.

“Confidential Information” is defined in Section 11.09.

“Documentation” means all written invoices, receipts, billing statements, payment notices, wire receipt and payment notifications, bank statements and other similar written evidence of (i) amounts payable by the Company or the Project Company to any Person and (ii) amounts received or receivable by the Company or the Project Company from any Person.

“ECCA” means the Equity Capital Contribution Agreement with respect to the Company, dated as of August 2, 2013, as amended by the First Amendment to Equity Capital Contribution Agreement, dated as of September 25, 2013, by and between Clean Technologies and Investor (without giving effect to any subsequent amendments or modifications thereto).

“Emergency Expenditure” is defined in Section 4.01(b).

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“Environmental Laws” is defined in the ECCA.

“Event of Default” is defined in Section 8.01.

“Excluded Expenses” is defined in Section 4.01(b).

“Facility” means the Bloom Systems and the BOF at a Site.

“Financing Documents” is defined in the ECCA.

“Initial Funding Date” is defined in the ECCA.

“Interconnection Agreement” is defined in the MESPSA.

“Investment Documents” is defined in the ECCA.

“Investor” is defined in the Preliminary Statements.

“kW” means kilowatt.

“Legal Requirement” is defined in the MESPSA.

“Lender” means “Buyer’s Lender” as defined in the MESPSA.

“Losses” is defined in Section 9.01(a).

“MESPSA” means the Amended and Restated Master Energy Server Purchase and Services Agreement between the Project Company and the Seller, dated as of September 25, 2013, as such agreement may be amended, supplemented, or replaced from time to time.

“Nonreimbursable Services” shall consist of the following services to be provided with respect to the Company and the Project Company, as applicable: (a) supervision and monitoring of the Service Providers and Seller, (b) bookkeeping and record keeping, (c) overall coordination of the day-to-day operation of the Portfolio and Project Company (including the overall coordination of the performance of the Services and performance by Project Company of all its obligations under the PPAs), (d) preparing a draft operating budget for the Project Company for consideration and approval by the Managing Member, (e) reporting to and communication with the Managing Member or the Sole Member, as applicable, regarding matters subject to the supervision of the Administrator under this Agreement, (f) preparation and submittal of (i) Documentation, and, in the case of an Emergency Expenditure, oral notification, necessary in order to remit funds of the Company or the Project Company for payment of the Company’s or Project Company’s expenses and (ii) other Documentation necessary to perform the obligations hereunder, (g) depositing funds into the accounts maintained on behalf of the Company and the Project Company pursuant to Section 2.01(u) hereof, (h) payment of the Company’s and Project Company’s expenses, (i) the making of distributions from Available Cash Flow in accordance with the provisions hereof and the Company LLC Agreement or the Project Company LLC Agreement, (j) preparation and submittal of capital contribution draw requests for either the Company or the Project Company, as contemplated by the Company LLC Agreement or the

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Project Company LLC Agreement, as applicable, (k) preparation and submittal of purchase orders and other work on behalf of the Project Company in connection with ordering Bloom Systems under the MESPSA and receiving and accepting, on behalf of the Project Company, title to and all incidents of ownership of those Bloom Systems, (l) interacting and communicating with Seller on behalf of the Project Company under the MESPSA, (m) interacting and communicating with Operator on behalf of the Project Company under the MESPSA, (n) causing the insurance and related obligations required under Section 8.4 of the Company LLC Agreement and Section 3.5 of the MESPSA, and otherwise required under the other Principal Facility Documents, to be obtained and maintained; (o) interacting and communicating, on behalf of the Project Company, with the Lender, (p) audit and tax-related services, and (q) performing all other administrative tasks, as required under the Financing Documents and under the Investment Documents.

“Operator” means the operation and maintenance contractor for the Bloom Systems, which at the date of this Agreement is the “Seller” as defined in the MESPSA.

“Party” and “Parties” have the meanings set forth in the Preamble.

“Permits” is defined in the MESPSA.

“Person” is defined in the MESPSA.

“Portfolio” is defined in the MESPSA.

“PPA” is defined in the MESPSA.

“PPA Customer” is defined in the MESPSA.

“Principal Facility Documents” is defined in the ECCA.

“Project Company” is defined in the Preamble.

“Project Company LLC Agreement” means the limited liability company agreement of the Project Company, dated as of August 2, 2013 as such agreement may be amended, supplemented, or replaced from time to time.

“Prudent Administrative Practices” means performing the Services with the degree of professional skill, care and diligence as that expected of a competent professional manager experienced in carrying out services of the same or similar size, scope and nature of the Services and to the extent required, those practices, methods, specifications and standards of safety and performance, as the same may change from time to time, as are commonly used by a significant portion of the grid-tied electrical generation industry operating in the United States as good, safe and prudent practices in connection with the administration of electrical and other equipment, facilities and improvements of such electrical generating facility and the other services contemplated herein, including any applicable practices, methods, acts, guidelines, standards and criteria of FERC and all applicable Legal Requirements.

“Representative” is defined in the MESPSA.

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“Seller” means Bloom Energy Corporation, in its capacity as seller under the MESPSA.

“Service Provider” means each third party hired by the Company or the Project Company to perform fiscal, administrative or other services for the Company or the Project Company, including the Operator.

“Services” means the responsibilities of the Administrator under Article II.

“Site” is defined in the MESPSA.

“Sole Member” is defined in the Preliminary Statements.

“Term” is defined in Section 7.01.

“Transmitting Utility” is defined in the MESPSA.

ARTICLE II

RESPONSIBILITIES

Section 2.01 Administrator’s Responsibilities. During the Term, the Administrator shall provide the following Services on behalf of the Company and the Project Company:

(a) Supervise and monitor, in accordance with the Prudent Administrative Practices, (i) the Service Providers with respect to their performance of services for the Project Company, including maintenance, diagnostic, warranty and remedial obligations thereof (including performance by the Operator of its obligations under the MESPSA), and (ii) the Seller with respect to its installation of the Facilities and the sale of Bloom Systems to the Project Company, including warranty and remedial obligations thereof;

(b) Where necessary or desirable, at the Company’s or the Project Company’s sole expense, as applicable, (i) subject to Section 4.01(c), taking of such actions as are necessary to enforce each Service Provider’s or Seller’s compliance with its obligations to the Company or Project Company and (ii) subject to Section 4.01(c) and in accordance with the Member consent requirements set forth in Section 6.2 of the Company LLC Agreement, hiring, firing and/or replacing any Service Provider;

(c) (i) Supervise and monitor (A) the installation of the Facilities and the purchase of Bloom Systems by Project Company under the MESPSA and (B) the day-to-day operations, maintenance and repair activities with respect to the Facilities, including planned and unplanned maintenance and repairs to the Facilities, and coordinate all such activities with those of the Operator and the Seller (and, with respect to such activities that are not required to be performed by the Operator under the MESPSA, causing such activities to be performed), and (C) the performance by Project Company of its obligations under the PPAs, and (ii) represent the Company and the Project Company in local community relations (including assisting in the coordination of public statements regarding the Company and the Project Company); provided, however, that the Administrator shall not be permitted to hire any employees on behalf of the Company or the Project Company;

5

(d) (i) Prepare and promptly pay, or cause to be paid, on behalf of the Project Company, any amounts required to be paid by the Project Company under any contract to which the Company is a party or otherwise and (ii) subject to the expenditure limitations contained in the Project Company LLC Agreement and the Company LLC Agreement and adopted or implemented by the Sole Member or the Members, as applicable, purchase or lease, at the sole expense (but subject to Section 4.01(c)) of the Project Company, any materials, supplies and equipment necessary for (A) the performance of the Services for the Project Company, (B) operation and maintenance services for the Project Company or (C) the sale of energy and environmental attributes from the Bloom Systems; provided that nothing herein shall imply any duty of the Administrator under any circumstances to expend its own funds in payment of the expenses of the Project Company;

(e) Prepare and promptly pay, or cause to be paid, on behalf of the Company, any amounts required to be paid by the Company under any contract to which the Company is a party or otherwise; provided that nothing herein shall imply any duty of the Administrator under any circumstances to expend its own funds in payment of the expenses of the Company;

(f) Maintain major maintenance and other reserves for the Company and the Project Company from time to time as directed by, and upon terms established by, the Managing Member or the Company or under the Financing Documents;

(g) In accordance with and subject to the provisions of the Company LLC Agreement, maintain complete and accurate financial books and records of the operations of the Company and the Project Company on an accrual basis in accordance with prudent business practices and GAAP and make such books and records available for inspection and copying during normal business hours on its premises, upon reasonable prior notice, by any Person authorized under the Company LLC Agreement or by the Managing Member to inspect or copy such books and records, subject to appropriate confidentiality safeguards;

(h) In accordance with and subject to the provisions of the Company LLC Agreement, maintain at the Company’s and Project Company’s principal office (and permit access thereof during normal business hours to any Person authorized under the Company LLC Agreement or by the Managing Member to have such access) (i) true and full information regarding the status of the financial condition of the Company and the Project Company, including any financial statements that are available, until the statute of limitations expires on any IRS audit of the Company or Project Company tax year to which such information and financial statements relate; (ii) minutes of the proceedings of the Members; (iii) promptly after becoming available, copies of the federal, state, and local income tax returns of the Company and the Project Company for each year; (iv) a current list of the name and last known business, residence or mailing address of each member of the Company and the Project Company; (v) a copy of the Company LLC Agreement, the Company’s certificate of formation, the Project Company LLC Agreement, the Project Company’s certificate of formation, and all amendments thereto, and copies of written consents of the members or managers of the Company and the Project Company; (vi) true and full information regarding the amount of cash and a description and statement of the agreed value of any other property and services contributed by each Member, and the date upon which each became a Member; (vii) copies of records that would enable a Member to determine the Member’s relative shares of the Company’s distributions from Available Cash Flow and the Member’s relative voting rights; and (viii) all records related to the production and sale of energy and environmental attributes from the Bloom Systems;

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(i) Perform on behalf of the Company and Project Company all reporting and other routine management responsibilities reasonably believed by the Administrator to be required under the contracts to which the Company or Project Company is a party (including the PPAs), including representing the Company and the Project Company in ordinary course business matters with third parties (including the PPA Customers) arising thereunder;

(j) Perform on behalf of the Company and the Project Company all routine administrative services reasonably required in connection with maintaining the Company’s and the Project Company’s existence and operations, such as the filing of limited liability company reports;

(k) Notify the Managing Member and the Members of any variance or anticipated variance in the aggregate expense amount for the Company in any Calendar Year by [***] or more from the amount set forth in the applicable Annual Budget, promptly after learning of such variance or anticipated variance;

(l) (i) Provide such readily available information to the Members as they may reasonably request from time to time and (ii) subject to site rules established by the Company or the Project Company, provide access as reasonably requested for the Members, and their personnel and accompanied agents or consultants, to the Facilities;

(m) (i) Advise the Company and the Project Company to engage Service Providers as reasonably believed by the Administrator to be necessary or desirable, or (ii) if instructed by the Managing Member with respect to the Company or the Sole Member with respect to the Project Company, perform services for the Company or the Project Company which are not being performed by the Operator under the MESPSA;

(n) (i) Procure and maintain all required Permits, prepare and submit all filings of any nature which are required to be made thereunder and represent the Company and the Project Company in matters with governmental authorities relating thereto, and (ii) prepare and submit, or cause to be prepared and submitted, all filings and notices of any nature which are required to be made by the Company or the Project Company under the terms of any Permit held by the Company the Project Company or any laws, regulations or ordinances applicable to the Company, Project Company or the Facilities;

(o) Not take any action or omit to take any action as would cause the Company or the Project Company in any material respect to violate any federal, state or local laws and regulations, including Environmental Laws, and to the extent that the Administrator has knowledge of any such existing or prospective violation take, or direct Service Providers to take, commercially reasonable actions, at the sole expense (but subject to Section 4.01(c)) of the Company or the Project Company (unless such existing or prospective violation arises from breach of the Administrator’s duties hereunder), to redress or mitigate any such violation;

(p) (i) Give prompt written notice to the Members and the Company of any litigation, material disputes with governmental authorities, or material force majeure events under the

[***] Confidential Treatment Requested

7

Principal Facility Documents and material losses suffered by the Project Company promptly after learning of the same, (ii) furnish to the Members and the Company, or direct a Service Provider to so furnish, copies of all material documents furnished to the Company, the Project Company or the Administrator by any governmental authority or furnished to any governmental authority by the Company or the Project Company;

(q) Notify the Members within five (5) Business Days of obtaining actual knowledge of any (i) notice of default delivered by a party to a Principal Facility Document to the Project Company, the Administrator or the Managing Member or (ii) material default by a party to a Principal Facility Document (other than the Project Company, the Administrator or any Affiliate thereof) under such Principal Facility Document; provided that, with respect to a notice of default or any material default by any party under the Financing Documents, the Administrator shall notify the Members within one (1) Business Day of obtaining actual knowledge thereof;

(r) In accordance with and subject to the provisions of the Company LLC Agreement, submit for approval of the Managing Member (or, if required under the terms of the Company LLC Agreement, for Consent of the Class A Members), a proposed annual operating budget for the Project Company, which, subject to the provisions of the Company LLC Agreement, would become the Annual Budget;

(s) Perform and discharge all responsibilities and functions assigned to the Administrator under or pursuant to the Company LLC Agreement as in effect as of the date hereof (or as amended and accepted by the Administrator) in accordance with the terms set forth in the Company LLC Agreement;

(t) Prepare, or cause to be prepared, each of the reports, updated schedules and notices required to be prepared pursuant to the Company LLC Agreement and the Financing Documents and deliver such reports, updated schedules and notices to the Company and any Member or such other Person to whom any such report, schedule or notice is to be provided under the terms of the Company LLC Agreement and Financing Documents within the time periods specified therein;

(u) Maintain, in the name and for the exclusive benefit of the Company or the Project Company, accounts at one or more banks or other financial institutions for the deposit of all funds received by the Company or the Project Company during the Term, and invest such funds in accordance with the investment provisions of the Company LLC Agreement or the Project Company LLC Agreement and the Financing Documents, as applicable; provided, that nothing herein shall imply any guarantee or undertaking by the Administrator with respect to the collection of amounts due to the Company or the Project Company or return on such investments;

(v) In accordance with and subject to the provisions of the Company LLC Agreement (i) prepare and file or cause to be prepared and filed by the Accountants on behalf of the Company and the Project Company, on a timely basis, all federal, state and local income tax returns and related information and filings required to be filed by the Company and the Project Company or deliver to the Members such tax returns pursuant to the Company LLC Agreement, including each Member’s IRS Form K-1, and (ii) pay out of the Company’s or the Project

8

Company’s funds, as applicable, all taxes and other governmental charges shown to be due thereon before they become delinquent and make all federal, state and local income tax elections in accordance with the provisions of the Company LLC Agreement or the Project Company LLC Agreement, as applicable;

(w) Promptly inform the Company and the Members of any proposed action or decision that would require the Consent of the Class A Members or the Consent of the Members, as applicable, under the Company LLC Agreement, and not take or permit any such action or decision without the prior required consent, as applicable, in accordance with the Company LLC Agreement;

(x) In accordance with and subject to the provisions of the Company LLC Agreement, if so instructed by the Tax Matters Member, (i) direct the defense of any claims made by the IRS to the extent that such claims relate to the adjustment of Company items at the Company level, (ii) promptly deliver to each Member a copy of all notices, communications, reports and writings received from the IRS relating to or potentially resulting in an adjustment of Company items, (iii) promptly advise each Member of the substance of any conversations with the IRS in connection therewith and keep the Members advised of all developments with respect to any proposed adjustments that come to its attention; (iv) provide each Member with a draft copy of any correspondence or filing to be submitted by the Company in connection with any administrative or judicial proceedings relating to the determination of Company items at the Company level reasonably in advance of such submission; (v) incorporate all reasonable changes or comments to such correspondence or filing requested by any Member; (vi) provide each Member with a final copy of correspondence or filing; and (vii) provide each Member with notice reasonably in advance of any meetings or conferences with respect to any administrative or judicial proceedings relating to the determination of Company items at the Company level (including any meetings or conferences with counsel or advisors to the Company with respect to such proceedings);

(y) Prepare (or cause to be prepared) the financial statements required to be prepared pursuant to the Company LLC Agreement or the Financing Documents, as applicable, within the time periods specified therein;

(z) Make distributions from Available Cash Flow as provided under the relevant provisions of the Company LLC Agreement;

(aa) [Reserved];

(bb) At the Project Company’s sole expense, obtain and maintain, or cause the Project Company to obtain and maintain, insurance meeting the requirements of the Company LLC Agreement and the Principal Facility Documents;

(cc) Make draws under any working capital facilities or credit facilities for the Company or the Project Company, as applicable, and cause such funds to be deposited into the Company’s or the Project Company’s, as applicable, accounts and in accordance with such working capital facilities’ or credit facilities’ documentation;

9

(dd) Establish and administer any escrow arrangements to which the Company or the Project Company is a party, including those for the refund of canceled Bloom Systems as provided in the MESPSA, as well as any letters of credit, bonds or other similar support instruments posted by the Company or the Project Company;

(ee) Notify the Members promptly of the receipt of any communication as to any deficiencies in the Company’s or Project Company’s accounting practices from the Accountants, or of the resignation of the Accountants;

(ff) Maintain a register of membership interests of the Company and record therein any (i) transfers of membership interests made in accordance with the terms of the Company LLC Agreement and (ii) security interests of a secured party pursuant to any security interest permitted under the Company LLC Agreement;

(gg) Prepare equity contribution notices (and accompanying documentation) in accordance with the Company LLC Agreement, and deliver them to the Managing Member and each Member of the Company;

(hh) Prepare and submit purchase orders and perform other work on behalf of the Project Company in connection with ordering Bloom Systems under the MESPSA, including interacting and communicating with Seller on behalf of the Project Company under the MESPSA;

(ii) Perform all other administrative tasks required in relation to and for the Project Company under the Financing Documents and under the Investment Documents;

(jj) Maintain the insurance required to be maintained under Section 3.5 of the MESPSA; and

(kk) Perform such other administrative tasks related to and consistent with the scope of the Services described herein and in the Company LLC Agreement and in the Project Company LLC Agreement, as the Managing Member in respect of the Company and the Sole Member in respect of the Project Company may reasonably request from time to time.

Section 2.02 Separateness. The Administrator shall maintain its existence separate and distinct from any other Person, including maintaining in full effect its existence, rights and franchises as a corporation under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or will be necessary to protect the validity and enforceability of this Agreement.

ARTICLE III

STANDARD OF PERFORMANCE

Section 3.01 Standard of Performance. The Administrator shall perform the Services in accordance with applicable law and Prudent Administrative Practices; provided that the Administrator shall be deemed to have satisfied its duties in respect of any specific matter or circumstance requiring interpretation, application, or enforcement of Principal Facility Documents, by relying conclusively on the advice of qualified legal counsel and/or qualified

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industry consultants engaged to advise the Company or the Project Company with respect to such matter or circumstance; and provided, further, that it shall not be a breach of Prudent Administrative Practices and the Administrator shall not be responsible hereunder for the gross negligence or willful misconduct of, or breach of contract by, any Service Provider engaged by the Administrator pursuant to a contract that requires such Service Provider to perform its duties in accordance with Prudent Administrative Practices and if such Person is sufficiently qualified to perform such duties and the Administrator is diligent in its oversight of such Persons; provided that (i) the immediately foregoing proviso shall not be applicable to any agreement with the Administrator or an Affiliate of the Administrator (and if such an agreement shall be with the Administrator or an Affiliate of the Administrator, then the Administrator shall continue to be bound by Prudent Administrative Practices), (ii) the Administrator shall be obligated to administer the agreements to which the Company or the Project Company is a party in accordance with their respective terms, and (iii) the Administrator shall be obligated to enforce or cause the Company or the Project Company, as applicable, to enforce the Principal Facility Documents in accordance with their respective terms upon the gross negligence, willful misconduct or breach of contract of the counterparty to any such Principal Facility Document. Without limiting the foregoing, in its performance of the obligations described in the immediately preceding clause (iii), the Administrator may enter into any settlement of claims, litigation or arbitration relating to the agreements described therein unless such settlement requires the Consent of the Class A Members or the Consent of the Members as provided in Section 6.2 of the Company LLC Agreement. It is understood and agreed by the Company, the Project Company and the Administrator that the Administrator is not guaranteeing or undertaking, in its capacity as Administrator, to procure any financial or other outcome with respect to the Company or the Portfolio, or providing any guarantees relating to the performance of the Portfolio.

Section 3.02 No Liability. The Administrator shall have no liability under this Agreement for (a) failure to take actions which it is not obligated to take pursuant to this Agreement and as to which it has requested the consent of the Managing Member (and/or the applicable Members where consent of any Members other than or in addition to the Managing Member is required under the Company LLC Agreement) for the Administrator to perform such actions if such consent is not timely given (including actions requiring a variance from the Annual Budget for which a request for variance by the Administrator has been made and not timely approved), or (b) actions taken at the direction of the Managing Member in accordance with the terms of the Company LLC Agreement (and/or the applicable Members where consent of any Members other than or in addition to the Managing Member is required under the Company LLC Agreement), or (c) failure to take actions requiring the expenditure of Company or Project Company funds in accordance with the Annual Budget if such funds are not available (for reasons other than a failure of the Administrator to provide, or cause a third party to provide, the Nonreimbursable Services or Services, as applicable, in accordance with this Agreement).

Section 3.03 PPA Obligations. The Administrator shall (i) undertake its obligations in accordance with this Agreement so as to enable Project Company to fulfill its corresponding obligations under the PPAs; and (ii) in performing its obligations under this Agreement, not cause Project Company to be in breach of its obligations under the PPAs in relation to the Bloom Systems or BOF or interfere with, hinder or disrupt Project Company’s performance of its obligations under the PPAs.

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ARTICLE IV

REIMBURSEMENT AND PAYMENT

Section 4.01 Reimbursable Expenses. (a) (i) The annual administration fee owed by the Company to the Administrator for the Services shall be an amount equal to $[***] per each kW of Baseload Capacity with respect to a Bloom System as of the date such Bloom System has achieved Commencement of Operations, and (ii) the annual administration fee owed by the Project Company to the Administrator for the Services shall be an amount equal to $[***] per each kW of Baseload Capacity with respect to a Bloom System as of the date such Bloom System has achieved Commencement of Operations (such administration fees, together, the “Administration Fee”), due in equal monthly installments (pro-rated, if applicable, for the first month after the execution of this Agreement) and in each case increasing by [***] on the first and each subsequent anniversary of the date of this Agreement. The parties acknowledge that the Administration Fee is a fair price, negotiated at arms-length, for the Services.

(b) In connection with matters within the Annual Budget, and matters outside of the parameters of the Annual Budget but authorized pursuant to this Section 4.01, the Company will reimburse the Administrator from the Company’s funds for the following expenses (other than any such expenses that constitute Excluded Expenses): (i) all reasonable out-of-pocket expenses of Administrator’s personnel performing work in the capacity as Administrator, (ii) all Emergency Expenditures and (iii) reasonable expenses of unaffiliated third parties (other than any such Persons performing Nonreimbursable Services) which, for the convenience of the Company or the Project Company, perform services by contract with the Administrator rather than directly with the Company or the Project Company, as applicable, provided that the Members have consented to such arrangement. For purposes of this Section 4.01(b), (x) “Excluded Expenses” shall mean costs incurred by Administrator in employing its personnel (other than amounts payable to its personnel as described in clause (i) above), including costs associated with wages, benefits, workers’ compensation insurance and home office expenses and costs incurred to retain unaffiliated third parties to perform Nonreimbursable Services, and (y) an “Emergency Expenditure” shall mean an expense with respect to the Company, the Project Company or the Portfolio that is not included in the Annual Budget and which is incurred, in the reasonable judgment of the Administrator, to avoid or to mitigate a risk of physical injury to any Person or damage to any property, or a violation of law and with respect to which there is not a reasonable opportunity to convene a meeting of the Members in order to obtain prior approval of the expense. The Administrator shall give prompt written notice to the Members of any Emergency Expenditure. Notwithstanding any of the foregoing, for the avoidance of doubt, to the extent an obligation of the Administrator is expressly to be performed at the sole expense of the Company or the Project Company, is not in violation of the express terms of this Agreement, and is not a Nonreimbursable Service, the Administrator shall be reimbursed by the Company or the Project Company, as applicable, for any amount (other than Excluded Expenses) expended from its own funds to perform such obligations.

(c) If the Administrator engages any third party to perform any Nonreimbursable Services, it shall be responsible for paying any fees and expenses of such third party and shall not be able to seek reimbursement therefor; provided that the Administrator shall not be responsible for paying any fees and expenses of such third party from its own funds (and shall be able to seek reimbursement therefor) if directed by the Members, the Managing Member or the Sole Member, or if otherwise required under the Investment Documents or Principal Facility Documents, to engage any third party to perform any Nonreimbursable Services.

[***] Confidential Treatment Requested

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(d) The Administrator shall obtain the Managing Member’s prior written approval before incurring any expenses that collectively exceed the aggregate expense amount provided in the Annual Budget by 5% in any Calendar Year; provided, however, that consent shall not be required (i) as to any Emergency Expenditure, or (ii) for reimbursement of the Administrator for any reasonable expense of an unaffiliated third party (other than a third party providing Nonreimbursable Services) that, for the convenience of the Company or the Project Company, performs services by contract with the Administrator rather than directly with the Company or the Project Company, as applicable, provided that the Members have consented to such arrangement.

Section 4.02 Billing and Payment. Within fifteen (15) days following the Administrator’s submission of an invoice to the Managing Member reflecting (i) any expenses due and payable by the Company or the Project Company (and including invoices and other material identifying and substantiating, in reasonable detail, the nature of such expenses and the basis for reimbursement thereof), and (ii) the monthly portion of the Administrative Fee due and payable by the Company or the Project Company, as applicable, (and including invoices and other material identifying and substantiating, in reasonable detail, the nature of such costs and the basis for reimbursements):

(a) The Managing Member or, as applicable, the Sole Member, shall approve such payment to the Administrator of (i) the expenses, and (ii) the portion of the Administrative Fee specified in such invoice, less any portion of such expenses and Administrative Fee that is disputed in good faith by a Member, which payment shall be made within thirty (30) days of such approval; provided that any invoiced amount incurred in accordance with the Annual Budget shall be deemed approved and shall be paid unless the Managing Member or Member, as applicable, shall dispute in good faith such payment for reasons unrelated to the Annual Budget; and

(b) The parties shall attempt to resolve any such disputed portion in accordance with Article VI hereof and any amount owed hereunder which remains unpaid more than ten (10) days after the date such amount is due and payable under this Agreement shall accrue interest at the lesser of a monthly rate of one and five-tenths percent (1.5%) or the highest rate permissible by law, with such interest beginning to accrue from the first (1st) day after such amount became due and payable.

Section 4.03 Records. The Administrator shall retain copies of invoices submitted by it under Section 4.02, and of any third party invoices or similar documentation contained or reflected therein, for a minimum period of three (3) years or such longer period as required by applicable law. Records maintained by the Administrator pursuant to this Section 4.03 shall be the property of the Company or the Project Company, as applicable, and shall not be destroyed, unless the Company or the Project Company, as applicable, shall have consented to such destruction in writing or declined in writing to accept possession of the records after the Administrator has advised the Company or the Project Company, as applicable, that the records will be destroyed.

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ARTICLE V

DELAYS

Section 5.01 Conditions. If the Administrator becomes aware of any event or circumstance that could materially delay or prevent its performance of any of its obligations hereunder, the Administrator shall give prompt notice thereof to the Managing Member or the Sole Member, as applicable.

Section 5.02 Mitigation of Delay. The Administrator shall attempt in good faith to minimize any such delay in or prevention of performance of its obligations hereunder, provided, however, that the Administrator shall not be obligated to undertake or perform any actions which are prohibited by contract or any applicable law or that would expose the Administrator to any material risk of liability or to any expense for which the Administrator is entitled to reimbursement or indemnification hereunder and which is not reasonably expected to be promptly reimbursed or indemnified hereunder.

ARTICLE VI

DISPUTE RESOLUTION

Section 6.01 Procedure.

(a) The parties shall attempt, in good faith, to resolve or cure all disputes, controversies or claims relating to this Agreement by mutual agreement in accordance with this Article VI before initiating any legal action or attempting to enforce any rights or remedies hereunder (including termination), at law or in equity (regardless of whether this Article VI is referenced in the provision of this Agreement which is the basis for any such dispute).

(b) If a party hereto believes that a dispute, controversy or claim under this Agreement has arisen, such party shall within ten (10) days after such dispute, controversy or claim arises, give notice thereof to the other affected party or parties hereto and the Managing Member, with respect to disputes involving the Company, or the Sole Member, with respect to disputes involving the Project Company, which notice shall describe in reasonable detail the basis and specifics of the dispute, controversy or claim. A meeting or conference call shall be held promptly, and in no case later than five (5) days following delivery of such notice, attended by representatives of the parties with decision-making authority regarding the dispute, controversy or claim to attempt in good faith to negotiate a resolution.

(c) If, within twenty-one (21) days following the meeting or conference call required pursuant to Section 6.01(b), the affected parties are unable to resolve the dispute, any affected party may pursue whatever rights it has available under this Agreement, at law or in equity in accordance with Section 11.03 herein and subject to the limitations of liability set forth herein.

(d) In the event of any dispute arising out of or relating to this Agreement, each Party hereby consents to service of process made to the addressees set forth in Section 11.05 herein either by overnight delivery by a nationally recognized courier or by certified first class mail, return receipt requested, and hereby acknowledges that service by such means shall constitute valid and lawful service of process against the Party being served.

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(e) Each Party hereby agrees that, in the event of any dispute arising out of or relating to this Agreement, it will not oppose the joinder of Seller or Operator to such action or proceeding.

ARTICLE VII

COMMENCEMENT AND TERMINATION

Section 7.01 Term. This Agreement commenced on July 19, 2013 and, except as otherwise provided in this Agreement, shall remain in full force and effect until the date that is fifteen (15) years following the date on which Commencement of Operations occurs for the last Bloom System in the Portfolio (the “Term”). In connection with the expiration of the Term or any termination pursuant to Section 7.02, the Administrator shall cooperate with all reasonable requests of the Company or the Project Company, as applicable, in connection with the transition of Services performed by Administrator (including the transferring of the records in Administrator’s possession) to the entity selected by the Company or the Project Company, as applicable, to undertake the Services.

Section 7.02 Resignation of Administrator. The Administrator may resign at any time following the sale of Clean Technologies to a non-Affiliate of Administrator or a Transfer of all Class A Interests held by Clean Technologies or an Affiliate of Clean Technologies made in accordance with the Company LLC Agreement, by giving not less than thirty (30) days prior written notice of such resignation to the Company and the Project Company; provided that Administrator’s resignation shall become effective only upon the appointment of a successor pursuant to the terms of the Company LLC Agreement that assumes (or causes an Affiliate to assume) the duties of the Administrator hereunder or that has engaged a Person that is recognized nationally as having substantial experience managing and operating fuel cell power facilities at a cost that is not substantially greater than as under this Agreement.

Section 7.03 Early Termination. This Agreement may not be terminated prior to the end of the Term except:

(a) by mutual agreement of the parties;

(b) pursuant to Section 8.02 or 8.03; or

(c) after the Class A Flip Point (as defined in the Company LLC Agreement), by Project Company, by giving six (6) months’ prior written notice to the Administrator.

Section 7.04 Accrued Fees. If this Agreement is terminated under Section 7.03(c), the Administrator will continue to be entitled to all Administration Fees and other amounts payable to it under this Agreement in respect of the period until the date of termination.

ARTICLE VIII

DEFAULT

Section 8.01 Events of Default. Subject to the provisions of Article VI (Dispute Resolution), each of the following events shall be an event of default (“Event of Default”) under this Agreement regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceeding which has or might have the effect of preventing such party from complying with the terms of this Agreement:

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(a) Failure by a party hereto to make any payment required to be made hereunder, if such failure shall continue for twenty (2) days after written notice thereof has been given to the non-paying party;

(b) If there shall occur (i) any failure by the Administrator to comply in any material respect with any term, provision or covenant of this Agreement (other than a failure addressed by another paragraph of this Section 8.01), or (ii) a gross dereliction by the Administrator of, or gross negligence or fraud by the Administrator in relation to, its duties under this Agreement, and such failure or act described in clause (i) or (ii) continues for thirty (30) days after receipt by the Administrator of written notice of such breach;

(c) Failure by the Company or the Project Company to comply in any material respect with any term, provision or covenant of this Agreement (other than a failure addressed by another paragraph of this Section 8.01), and such failure continues for thirty (30) days after receipt by the Company or the Project Company of written notice of such breach; or

(d) The occurrence of any event of default by the Administrator under the MESPSA or the Shortfall Event License (as defined in the MESPSA) which is not cured within any applicable cure period, or the existence of any formal dispute resolution proceeding (including litigation or arbitration proceedings) between the parties to the MESPSA or the Shortfall Event License in respect of the applicable agreement (unless the Administrator can demonstrate to the satisfaction of Project Company that it has put in place measures that allow the Administrator to perform the Services effectively and without any conflict of interest while the dispute resolution proceeding exists).

Section 8.02 Bankruptcy. Subject to the rights or remedies it may have, any party hereto shall have the right to terminate this Agreement, effective immediately, if, at any time, any other party hereto (or, in the case of the Administrator, any Person that Controls the Administrator) shall file a voluntary petition in bankruptcy, or shall be adjudicated bankrupt or insolvent, or shall file any petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute or law relating to bankruptcy, insolvency, or other relief for debtors, whether federal or state, or shall seek, consent to, or acquiesce in the appointment of any trustee, receiver, conservator or liquidator of such party or of all or any substantial part of its properties, or a court of competent jurisdiction shall enter an order, judgment or decree approving a petition filed against such party seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute or law relating to bankruptcy, insolvency or other relief for debtors, whether federal or state, and such party shall consent to or acquiesce in the entry of such order, judgment or decree, or the same shall remain unvacated and unstayed for an aggregate of sixty (60) days from the date or entry thereof, or any trustee, receiver, conservator or liquidator of such party or of all or any substantial part of its properties shall be appointed without the consent of or acquiescence of such party and such appointment shall remain unvacated and unstayed for an aggregate of sixty (60) days. The terms “acquiesce” and “acquiescence”, as used herein, include, but are not limited to, the failure to file a petition or motion to vacate or discharge any order, judgment or decree providing for such appointment within the time specified by law.

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Section 8.03 Remedies. If an Event of Default occurs and is continuing hereunder, then this Agreement may be terminated immediately by the non-defaulting party, without obligation to or recourse by the defaulting party. If a termination pursuant to Section 8.02 or this Section 8.03 occurs, the terminating party shall have all rights and remedies allowed at law or in equity, subject however, to the specific limitations of liability set forth in Article IX. For the avoidance of doubt, any termination of this Agreement by the Administrator for nonpayment or default by the Company or the Project Company, respectively, shall not result in termination of this Agreement by the Administrator as to the Project Company or the Company, respectively, as the case may be; and in such event, the Administrator shall continue performing hereunder for the nondefaulting counterparty.

ARTICLE IX

INDEMNIFICATION AND LIMITATION OF DAMAGES

Section 9.01 Indemnification.

(a) To the extent not otherwise covered by insurance and to the extent not prohibited by law, the Company and the Project Company each shall indemnify and hold harmless the Administrator, its officers, directors, employees, and Affiliates, from and against all losses, claims, demands, damages, costs, expenses of any nature (including, but not limited to, reasonable attorneys’ fees and disbursements) or liabilities (or actions, suits or proceedings including any inquiry or investigation or claims in respect thereof), judgments, fines, settlements and other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative, arbitral or investigative (collectively, “Losses”) which are being incurred in its capacity as the Administrator and are resulting from or arising out of the Administrator’s performance of its obligations hereunder with respect to the Company or Project Company, respectively; provided, however, that the Administrator shall not have the right to be so indemnified for Losses to the extent caused by or arising from the negligence or willful misconduct of the Administrator, Seller, Operator or any of their Affiliates or their respective subcontractors, or a breach of its or their obligations under this Agreement or other agreement with either the Project Company or the Company or for which any of such Persons are obligated to indemnify the Project Company, the Company or any Member (for the purposes of this Section 9.01(a), the Administrator shall not be deemed to be an “Affiliate” of the Company).

(b) To the extent not otherwise covered by insurance and to the extent not prohibited by law, subject to the specific limitations of liability set forth in this Article IX, the Administrator shall indemnify and hold harmless the Company and the Project Company, its officers, directors, employees and Affiliates from and against all Losses resulting from or arising out of the Administrator’s performance of its obligations hereunder; provided, however, that the Company or the Project Company shall not have the right to be so indemnified for Losses to the extent caused by or arising from the negligence or willful misconduct of the Company or the Project Company, or their respective Affiliates, officers, directors, and employees, if any, or a breach of the Company’s or the Project Company’s obligations under this Agreement (for the purposes of this Section 9.01(b), the Administrator shall not be deemed to be an “Affiliate” of the Company).

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(c) Exclusion of Consequential Damages. Neither the Administrator, in such capacity, nor the Company, nor the Project Company, nor any of their officers, members, employees or Affiliates shall be liable for punitive, consequential, special, indirect or exemplary damages of any nature including, but not limited to, damages for lost profits or revenues or the loss or use of such profits or revenues, loss by reason of plant shutdown or inability to operate at rated capacity, increased operating expenses of plant or equipment, increased costs of purchasing or providing equipment, materials, labor, services, costs of replacement power or capital, debt service fees or penalties, inventory or use charges, damages to reputation, damages for lost opportunities, or claims of any of the customers, members or affiliates of the Project Company or the Company, regardless of whether said claim is based upon contract, warranty, tort (including negligence and strict liability) or other theory of law; provided, however, that the indirect damages and loss of profits language set forth in this Section 9.01(c) shall not be interpreted to exclude from Losses any claim, demand, suit, loss, liability, damage, obligation, payment, cost or expense that would otherwise be included in the definition of Losses because they result from interest, cost or expense payable by Project Company to the Lenders.

Section 9.02 Liability. The aggregate liability of the Administrator under this Agreement shall be limited to the amount of the Administrative Fee actually paid to the Administrator; provided such limitation of liability shall not apply to any liability under this Agreement that is the result of gross negligence, fraud or willful misconduct of the Administrator.

Section 9.03 Supremacy. The provisions expressed in this Article IX shall prevail over any conflicting or inconsistent provisions contained elsewhere in this Agreement and shall survive termination of this Agreement.

ARTICLE X

REPRESENTATIONS AND WARRANTIES

Section 10.01 Representations and Warranties. Each party hereto represents and warrants, as of the date hereof, as follows:

(a) it is a limited liability company or a corporation, as applicable, duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;

(b) it has taken all necessary action to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder;

(c) this Agreement constitutes its legal, valid and binding obligation enforceable against it in accordance with its terms except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights and the enforcement of debtors’ obligations generally, and (ii) general principles of equity, regardless of whether enforcement is pursuant to a proceeding in equity or at law;

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(d) the execution, delivery and performance of this Agreement do not violate (i) its constituent documents, (ii) any contract to which it is a party or to which any of its properties are subject, or (iii) any law, rule, regulation, order, writ, judgment, injunction, decree or determination to which it is subject or by which its properties are bound;

(e) no consent, authorization, approval or other action by, and no notice to or filing with, any governmental authority or any other Person is required for the due execution, delivery or performance of this Agreement by such party; and

(f) there is no action, suit or proceeding at law or in equity or by or before any governmental authority, arbitral tribunal or other body now pending or threatened against it, which would reasonably be expected to have a material adverse effect on the transactions contemplated by this Agreement.

ARTICLE XI

MISCELLANEOUS

Section 11.01 Assignment.

(a) The Administrator may not assign its rights and obligations under this Agreement to any third party unless the prior written consent of the Company and the Project Company has been obtained; provided that, notwithstanding the foregoing, the Administrator may assign its rights and obligations under this Agreement to an Affiliate of the Administrator under common control with the Administrator; provided such assignment shall not excuse Administrator from any of its obligations under the Agreement.

(b) Neither the Company nor the Project Company may assign its rights and obligations under this Agreement to any third party without the prior written consent of the Administrator.

(c) Notwithstanding the foregoing clauses (a) and (b), any party hereto may collaterally assign its rights under this Agreement to any party providing debt or equity financing to such party without the consent of the other parties hereto.

Section 11.02 Authorization. Except as expressly authorized in writing by the Managing Member with respect to the Company, or the Sole Member with respect to the Project Company, or contemplated under the Services, the Administrator shall not have the right or the obligation to create any obligation or to make any representation on behalf of the Company or Project Company, as applicable.

Section 11.03 Governing Law, Jurisdiction, Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW OR OTHER PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN NEW YORK COUNTY, NEW YORK WITH RESPECT TO ANY DISPUTE ARISING

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OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING TO ANY SUCH DISPUTE AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO.

Section 11.04 Independent Contractor. Nothing contained in this Agreement and no action taken by any party to this Agreement shall be (a) deemed to constitute any party or any of such party’s employees, agents or representatives to be an employee, agent or representative of the other parties hereto; (b) deemed to create any company, partnership, joint venture, association or syndicate among or between the parties; or (c) except as contemplated under the Services, deemed to confer on any party hereto any expressed or implied right, power or authority to enter into any agreement or commitment, express or implied, or to incur any obligation or liability on behalf of the other parties hereto, except as expressly authorized in writing.

Section 11.05 Notice. All notices, requests, consents, demands and other communications (collectively “notices”) required or permitted to be given under this Agreement shall be in writing signed by the party giving such notice and shall be given to each other party hereto at its address or email address set forth in this Section 11.05 or at such other address or email address as such party may hereafter specify by notice to the other parties hereto and shall be either delivered personally or sent by email or registered or certified mail, return receipt requested, postage prepaid, or by a nationally recognized overnight courier service. A notice shall be deemed to have been given (a) when successfully transmitted if given by email or (b) when delivered, if given by any other means. Notices shall be sent to the following addresses:

To the Administrator:

Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, California 94089

Attn: [***]

Telephone: [***]

Fax: [***]

Email: [***]

To the Company:

2013B ESA Holdco, LLC

c/o Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, California 94089-1137

Attn: [***]

Telephone: [***]

Fax: [***]

Email: [***]

[***] Confidential Treatment Requested

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To the Project Company:

2013B ESA Project Company, LLC

c/o Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, California 94089-1137

Attn: [***]

Telephone: [***]

Fax: [***]

Email: [***]

With a copy to:

Silicon Valley Bank

555 Mission Street, 9th Floor

San Francisco, CA 94105

Attn: [***]

Telephone: [***]

Email: [***]

With a copy to:

Firstar Development, LLC

1307 Washington, Suite 300

St. Louis, MO 63103

Attention: [***]

Telephone: [***]

Facsimile: [***]

Email: [***] and [***]

Section 11.06 Usage. This Agreement shall be governed by the following rules of usage: (a) a reference in this Agreement to a Person includes, unless the context otherwise requires, such Person’s permitted assignees; (b) a reference in this Agreement to a law, license, or permit includes any amendment, modification or replacement to such law, license or permit; (c) accounting terms used in this Agreement shall have the meanings assigned to them by GAAP; (d) a reference in this Agreement to an article, section, exhibit, schedule or appendix is to an article, section, exhibit, schedule or appendix of this Agreement unless otherwise stated; (e) a reference in this Agreement to any document, instrument or agreement shall be deemed to include all appendices, exhibits, schedules and other attachments thereto and all documents, instruments or agreements issued or executed in substitution thereof, and shall mean such document, instrument or agreement, or replacement thereof, as amended, modified and supplemented from time to time in accordance with its terms and as the same is in effect at any given time; (f) unless otherwise specified, the words “hereof,” “herein” and “hereunder” and words or similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement; and (g) the words “include” and

[***] Confidential Treatment Requested

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“including” and words of similar import used in this Agreement are not limiting and shall be construed to be followed by the words “without limitation”, whether or not they are in fact followed by such words.

Section 11.07 Entire Agreement. This Agreement (including all appendices and exhibits thereto) constitutes the entire agreement and understanding of the parties hereto with respect to the subject matter hereof and supersedes all prior written and oral agreements and understandings with respect to such subject matter.

Section 11.08 Amendment. Neither this Agreement nor any of the terms hereof may be terminated, amended, supplemented, waived or modified orally, but only by a document in writing signed by all parties.

Section 11.09 Confidential Information. (a) Subject to the other terms of this Section 11.09, the Parties shall, and shall cause their Affiliates and their respective stockholders, members, subsidiaries and Representatives to, hold confidential all information they may have or obtain concerning Administrator, Company, and Project Company and their respective assets, business, operations or prospects or this Agreement (the “Confidential Information”), including, all materials furnished and information furnished by Administrator in performance of this Agreement, regardless of the form conveyed or whether financial or technical in nature, and including but not limited to, any trade secrets and propriety know how, all software, documentation, financial, marketing and nonpublic data with respect to the distribution and transmission facilities of the Transmitting Utility and other business information, all data related to the internal design and performance of the Bloom Systems and any other material or information that is either marked as confidential or disclosed under circumstances that one would reasonably expect it to be confidential. Furthermore, the Company and Project Company agree that the Bloom Systems and services performed hereunder contain Administrator’s valuable trade secrets, and further, Company and Project Company agree to maintain the secrecy of and not disclose without the express written permission of Administrator any trade secrets which the Project Company or Company may have received from Administrator; provided, however, that Confidential Information shall not include information that (A) is or becomes generally available to the public other than as a result of an unauthorized disclosure by a Party or any of its Representatives or (B) is or becomes available to a Party or any of its Representatives on a nonconfidential basis from a source other than the other Party or its Representatives, provided that such source was not and is not bound by any contractual, legal or fiduciary obligation of confidentiality with respect to such information or (C) was or is independently developed or conceived by a Party or its Representatives without reference to the Confidential Information of any other Party.

(b) Confidential Information may be disclosed (A) as required or requested to be disclosed by a Party or any of its Affiliates or their respective stockholders, members, subsidiaries or Representatives as a result of any applicable Legal Requirement or rule or regulation of any stock exchange, the Financial Industry Regulatory Authority, Inc. or other regulatory authority or self-regulatory authority having jurisdiction over such Party, (B) as required or requested by the IRS, the Department of Justice or the Office of the Inspector General in connection with a Bloom System, cash grant, or tax credits relating thereto, including in connection with a request for any private letter ruling, any determination letter or any audit or

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(C) as required under any Interconnection Agreement or PPA. If a Party becomes compelled by legal or administrative process to disclose any Confidential Information, such Party shall, to the extent permitted by Legal Requirements, provide the other Parties with prompt notice so that the other Parties may seek a protective order or other appropriate remedy or waive compliance with the non-disclosure provisions of this Section 11.09(b) with respect to the information required to be disclosed. If such protective order or other remedy is not obtained, or such other Parties waive compliance with the non-disclosure provisions of this Section 11.09(b) with respect to the information required to be disclosed, the first Party shall furnish only that portion of such information that it is advised, by opinion of counsel, is legally required to be furnished and shall exercise reasonable efforts, at the expense of the Party whose Confidential Information is being disclosed, to obtain reliable assurance that confidential treatment will be accorded such information, including, in the case of disclosures to the IRS described in clause (B) above, to obtain reliable assurance that, to the maximum extent permitted by applicable Legal Requirements, such information will not be made available for public inspection pursuant to Section 6110 of the Code.

(c) Notwithstanding the foregoing, a Party may disclose Confidential Information received by it to its actual or potential financing parties and its and their employees, consultants, legal counsel or agents who have a need to know such information or a right to receive such information pursuant to the terms of this Agreement; provided that such Party informs each such Person who has access to the Confidential Information of the confidential nature of such Confidential Information, the terms of this Agreement, and that such terms apply to them. The Parties shall use commercially reasonable efforts to ensure that each such Person complies with the terms of this Agreement and that any Confidential Information received by such Person is kept confidential.

(d) Nothing herein shall be construed as prohibiting a Party from using such Confidential Information in connection with (i) any claim against another Party, (ii) any exercise by a Party of any of its rights hereunder, (iii) a financing or proposed financing by Administrator or the Project Company or Company or their respective Affiliates, (iv) a disposition or proposed disposition by Administrator or any Affiliate of Administrator of all or a portion of such Person’s direct or indirect equity interest in Administrator or (v) a disposition or proposed disposition by any direct or indirect Affiliate of the Company or the Project Company of all or a portion of such Person’s equity interests in the Company or the Project Company, (vi) a disposition or proposed disposition by Project Company of any Bloom System; or (vii) any disclosure required to be made to a PPA Customer (or otherwise) under a PPA; provided that, in the case of items (iii), (iv), (v) and (vi), the potential financing party or purchaser has entered into a confidentiality agreement with respect to Confidential Information on customary terms used in confidentiality agreements in connection with corporate financings or acquisitions before any such information may be disclosed and such confidentiality agreement has been provided to the non-disclosing Party.

Section 11.10 Third Party Beneficiaries. Except as otherwise expressly stated herein, this Agreement is intended to be solely for the benefit of the Parties hereto and their permitted assignees and is not intended to and shall not confer any rights or benefits to the general public or any other third party not a signatory thereto.

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Section 11.11 Discharge of Obligations. With respect to any duties or obligations discharged hereunder by the Administrator, the Administrator may discharge such duties or obligations through the personnel of an Affiliate of the Administrator; provided that, notwithstanding the foregoing, the Administrator shall remain fully liable hereunder for such discharged duties and obligations.

Section 11.12 Severability. Any provision of this Agreement that shall be held to be invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without invalidating the remaining provisions hereof and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The parties shall negotiate in good faith a replacement provision or provisions that are valid and enforceable and that as closely as possible correspond to the spirit and purpose of the invalid or unenforceable provisions and this Agreement as a whole.

Section 11.13 Binding Effect. The terms of this Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their successors and permitted assigns.

Section 11.14 No Liens. To the extent that Administrator has actual knowledge that any of its subcontractors has placed any lien on a Bloom System or the Site for such System, then Administrator shall promptly cause such liens to be removed or bonded over in a manner reasonably satisfactory to the Company or the Project Company.

[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]

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IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed, this Administrative Services Agreement on the date first set forth above.

BLOOM ENERGY CORPORATION, a Delaware corporation
By:
	Name: Martin J. Collins
	Title:   Vice President Corporate Development

[Signature Page to Amended and Restated Administrative Services Agreement (PPA IIIb)]

2013B ESA HOLDCO, LLC, a Delaware limited liability company
By:
	Name: Sendil Atreya
	Title:   Vice President

[Signature Page to Amended and Restated Administrative Services Agreement (PPA IIIb)]

2013B ESA PROJECT COMPANY, LLC, a Delaware limited liability company
By:
	Name: Sendil Atreya
	Title:   Vice President

[Signature Page to Amended and Restated Administrative Services Agreement (PPA IIIb)]

EX-10

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Exhibit 10.69

Execution Version

AMENDED AND RESTATED CREDIT AGREEMENT

dated as of September 25, 2013,

by and between

2013B ESA PROJECT COMPANY, LLC,

as Borrower,

and

SILICON VALLEY BANK,

as Lender

TABLE OF CONTENTS

		Pages
Article I DEFINITIONS AND INTERPRETATION			1
Section 1.01	Defined Terms		1
Section 1.02	Principles of Interpretation		2
Article II COMMITMENT AND FUNDING			3
Section 2.01	Loans		3
Section 2.02	Notice of Fundings		4
Section 2.03	Funding of Loans		4
Section 2.04	Evidence of Indebtedness		4
Section 2.05	Termination or Reduction of Commitment		4
Article III REPAYMENTS, PREPAYMENTS, INTEREST AND FEES			5
Section 3.01	Repayment of Loans		5
Section 3.02	Interest Payment Dates		5
Section 3.03	Interest Rates		5
Section 3.04	Default Interest Rate		6
Section 3.05	Interest Rate Determination		6
Section 3.06	Computation of Interest and Fees		6
Section 3.07	Optional Prepayment		6
Section 3.08	Mandatory Prepayment		7
Section 3.09	Time and Place of Payments		8
Section 3.10	Fees		8
Section 3.11	Termination of Rate Contracts in Connection with Any Prepayment		9
Section 3.12	System Severance		9
Article IV LIBO RATE AND TAX PROVISIONS			11
Section 4.01	LIBO Rate Indemnity		11
Section 4.02	Additional Requirements/Provisions		11
Section 4.03	Net of Tax, Etc		13
Article V REPRESENTATIONS AND WARRANTIES			15
Section 5.01	Organization; Power; Compliance with Law and Contractual Obligations		15
Section 5.02	Due Authorization; Non-Contravention		16
Section 5.03	Governmental Approvals		16
Section 5.04	Investment Company Act		18
Section 5.05	Validity		18
Section 5.06	Financial Information		18
Section 5.07	No Material Adverse Effect		18
Section 5.08	System Compliance		18
Section 5.09	Litigation		19
Section 5.10	Sole Purpose Nature; Business		19

i

Section 5.11	Contracts	19
Section 5.12	Collateral	21
Section 5.13	Ownership of Properties	22
Section 5.14	Taxes	23
Section 5.15	Patents, Trademarks, Etc.	23
Section 5.16	ERISA Plans	23
Section 5.17	Property Rights, Utilities, Supplies, Etc.	24
Section 5.18	No Defaults	24
Section 5.19	Environmental Warranties	24
Section 5.20	Regulations T, U and X	25
Section 5.21	Accuracy of Information	26
Section 5.22	Indebtedness	26
Section 5.23	Separateness	26
Section 5.24	LLC Agreement of the Borrower	26
Section 5.25	Subsidiaries	26
Section 5.26	Foreign Assets Control Regulations, Etc.	26
Section 5.27	Legal Name and Place of Business	27
Section 5.28	No Brokers	27
Section 5.29	Insurance	27
Section 5.30	Accounts	27
Section 5.31	Public Utility Status	27
Article VI CONDITIONS PRECEDENT		28
Section 6.01	Conditions to Closing	28
Section 6.02	Conditions to Funding of any System	33
Article VII COVENANTS		38
Section 7.01	Affirmative Covenants	38
Section 7.02	Negative Covenants	46
Section 7.03	Reporting Requirements	53
Article VIII DEFAULT AND ENFORCEMENT		59
Section 8.01	Events of Default	59
Section 8.02	Action Upon Bankruptcy	65
Section 8.03	Action Upon Other Event of Default	65
Section 8.04	Application of Proceeds	66
Section 8.05	Special Cures; System Severance and Prepayment	66
Article IX MISCELLANEOUS PROVISIONS		67
Section 9.01	Amendments, Etc.	67
Section 9.02	Applicable Law; Jurisdiction; Etc.	67
Section 9.03	Assignments	68
Section 9.04	Benefits of Agreement; Non-Recourse	69
Section 9.05	Consultants	69
Section 9.06	Costs and Expenses	69
Section 9.07	Counterparts; Effectiveness	70
Section 9.08	Indemnification by the Borrower	70

ii

Section 9.09	Interest Rate Limitation	71
Section 9.10	No Waiver; Cumulative Remedies	71
Section 9.11	Notices and Other Communications	72
Section 9.12	Patriot Act Notice	73
Section 9.13	Right of Setoff	73
Section 9.14	Severability	73
Section 9.15	Survival	74
Section 9.16	Confidentiality	74
Section 9.17	Waiver of Consequential Damages, Etc.	74

iii

SCHEDULES

Schedule 1.01	Required Amortization Payments
Schedule 3.09(a)	Lender Wire Instruction
Schedule 5.03	Necessary Approvals
Part A	Necessary Approvals – Financing Documents
Part B	Necessary Approvals – Project Documents
Schedule 5.09	Litigation
Schedule 5.11	Necessary Contracts
Part A	Effective Date Contracts
Part B	Deferred Contracts
Schedule 5.12(c)	UCC Filing Offices
Schedule 5.14	Tax Returns Not Filed or Taxes Not Paid
Schedule `5.19	Environmental Matters (Representations and Warranties)
Schedule 5.24	Form of LLC Agreement of the Borrower
Schedule 6.02	Consents Required on or prior to the Funding Date for each System
Schedule 7.01(h)	Insurance Requirements
Schedule 9.11(a)	Notice Information

iv

EXHIBITS

Exhibit A	Defined Terms
Exhibit B	Form of Note
Exhibit C	Form of Funding Notice
Exhibit D	Form of Credit Protection Insurance Policy
Exhibit E	Form of Initial Funding Certificate from Insurance Consultant
Exhibit F	Form of Completion Certificate from Parent
Exhibit G	Form of Completion Certificate from Independent Engineer
Exhibit H	Financial Model
Exhibit I	Calculation of the Historical Debt Service Coverage Ratio and the Prospective Debt Service Coverage Ratio
Exhibit J	Form of Funding Certificate

v

CREDIT AGREEMENT

This AMENDED AND RESTATED CREDIT AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this “Agreement” or the “Credit Agreement”), is entered into as of September 25, 2013 (the “Effective Date”), by and between 2013B ESA PROJECT COMPANY, LLC, a Delaware limited liability company (the “Borrower”), and SILICON VALLEY BANK, a California corporation (the “Lender”), and amends and restates that certain Credit Agreement, dated as of July 19, 2013 (the “Original Credit Agreement”), by and between the Borrower and the Lender.

RECITALS

WHEREAS, the Borrower is a limited liability company formed solely for the purpose of developing, financing, owning, operating, maintaining and managing a portfolio (the “Portfolio”) of baseload fuel cell electricity generators (each, a “System”; for the avoidance of doubt, the term “System” shall not include any system that is not being financed pursuant to the Financing Documents and is not part of the Collateral), with an aggregate capacity of approximately 6.1 MW, which will sell power and capacity to Qualified Customers;

WHEREAS, as of the date of this Agreement, (a) 2013B ESA Holdco, LLC, a Delaware limited liability company (“Pledgor”), directly owns 100% of the Equity Interests of the Borrower, and (b) Clean Technologies 2013B, LLC, a Delaware limited liability company (“Bloom Investor”), and Firstar Development, LLC, a Delaware limited liability company (the “Tax Investor”), together, directly own 100% of the Equity Interests of the Pledgor;

WHEREAS, pursuant to the Original Credit Agreement the Lender agreed to make available Loans (as defined below) to the Borrower to finance a portion of the purchase price of the Systems and to pay certain related reserves, interest, fees and expenses associated with this Agreement and the Loans, in each case as further described herein;

WHEREAS, the Borrower and the Lender desire to amend and restate the Original Credit Agreement in order to, among other things, make certain changes in terms, as provided for on and subject to the terms and conditions set forth in this Agreement;

NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS AND INTERPRETATION

Section 1.01    Defined Terms.     Capitalized terms used and not otherwise defined in this Agreement, including in its preamble and recitals, shall have the meanings provided in Exhibit A.

1

Section 1.02    Principles of Interpretation.

(a)     Unless otherwise defined, terms for which meanings are provided in this Agreement shall have the same meanings when used in each other Financing Document and each other notice or other communication delivered from time to time in connection with any Financing Document.

(b)     Any reference in this Agreement to any Transaction Document shall mean such Transaction Document and all schedules, exhibits and attachments thereto.

(c)     All Contracts or documents defined or referred to herein shall mean such Contracts or documents as the same may from time to time be supplemented, amended or replaced or the terms thereof waived or modified to the extent permitted by, and in accordance with, the terms thereof and this Agreement, and shall disregard any supplement, amendment, replacement, waiver or modification made in violation of this Agreement.

(d)     Any reference in any Financing Document relating to a Default or an Event of Default that has occurred and is continuing (or words of similar effect) shall be understood to mean that (i) in the case of a Default only, such Default has not been cured or remedied to the reasonable satisfaction of, or waived by, the Lender, before becoming an Event of Default and (ii) in the case of an Event of Default, such Event of Default has not been cured to the reasonable satisfaction of, or waived, by the Lender.

(e)     The term “knowledge” and other similar expressions, when used in relation to the Borrower, shall mean the reasonable knowledge after due inquiry (including with respect to the affairs of the Borrower) of any Person listed in Schedule III of the LLC Agreement of the Borrower, and any Person replacing any such Person or serving in any office listed in such Schedule or in an office bearing a different title but having a substantially similar role in the decision-making regarding the Borrower and/or the Portfolio.

(f)    Defined terms in this Agreement shall include in the singular number the plural and in the plural number the singular.

(g)     Unless otherwise expressly specified: (i) the words “herein,” “hereof” and “hereunder” and words of similar import, when used in this Agreement, shall refer to this Agreement as a whole and not to any particular provision of this Agreement and (ii) references to Articles, Sections, Exhibits and Schedules are references to Articles, Sections, Exhibits and Schedules of this Agreement.

(h)    The words “include,” “includes” and “including” are not limiting.

(i)     Any reference to any Person shall include its permitted successors and permitted assigns in the capacity indicated, and in the case of any Governmental Authority, any Person succeeding to its functions and capacities.

(j)     The words “will” and “shall” have the same meaning and effect, both implying an obligation where the context requires.

(k)    Unless otherwise defined herein, terms used herein that are defined in the UCC have the respective meanings given to those terms in the UCC.

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(l)    Unless otherwise specified, all accounting terms used herein and in any other Financing Document shall be interpreted, all accounting determinations and computations hereunder or thereunder shall be made, and all financial statements required to be delivered hereunder or thereunder shall be prepared, in accordance with GAAP.

ARTICLE II

COMMITMENT AND FUNDING

Section 2.01    Loans.

(a)    Loans Generally. The Lender agrees, on the terms and subject to the conditions of this Agreement and in reliance upon the representations, warranties and covenants of the Borrower herein, to make loans (collectively, the “Loans”), in an aggregate principal amount not in excess of the Loan Commitment, to the Borrower to fund a portion of the Purchase Price of Systems that have achieved Commencement of Operations and to fund the Debt Service Reserve Account in accordance with Section 6.02(g) (Conditions to Funding of Any System – Reserve Accounts and Deposits) of this Agreement and Section 4.5 (Debt Service Reserve Account) of the Accounts Agreement. The maximum amount of each Loan corresponding to each System will be [***] of the Purchase Price for such System. Loans are expected to be made from time to time during the Availability Period but not more frequently than three (3) times each calendar month.

(b)     Proceeds. Proceeds of each Loan shall be (i) first, applied directly to the payment of fees and expenses due and payable to the Lender as of the date of such Funding pursuant to Section 3.10 (Fees), Article IV (LIBO Rate and Tax Provisions), Section 6.01(n) (Conditions to Closing – Fees; Expenses), Section 6.02(o) (Conditions to Funding of Any System – Fees; Expenses) and Section 9.06 (Costs and Expenses); (ii) second, and only to the extent any proceeds remain after application pursuant to Section 2.01(b)(i), deposited into the Debt Service Reserve Account at Funding in the amount required by and otherwise in accordance with Section 6.02(g) (Conditions to Funding of Any System – Reserve Accounts and Deposits) of this Agreement and Section 4.5 (Debt Service Reserve Account) of the Accounts Agreement, and (iii) third, and only to the extent any proceeds remain after application pursuant to Section 2.01(b)(i) and (ii), paid to Parent, on behalf of Borrower, as payment in full of the remaining unpaid portion of the purchase price of the Systems that are the subject of such Loan.

(c)    No Reborrowing. Loans repaid or prepaid may not be reborrowed.

(d)     Minimums. Each Funding of Loans shall be in a minimum amount of one million Dollars ($1,000,000).

(e)     Mutual Benefit. The Lender and the Borrower acknowledge and agree that the extension of Loans to the Borrower is of benefit not only to the Borrower but to the entire Portfolio. When, in this Agreement, there is a reference to a “Loan related to a particular System” or similar language, such language constitutes a reference to the portion of the relevant Loan that is or would be made available upon the satisfaction of the Loan Conditions related to the particular System so referenced.

[***] Confidential Treatment Requested

3

Section 2.02    Notice of Fundings.

(a)     From time to time, but not more frequently than three (3) times per calendar month, the Borrower may propose a Funding by delivering to the Lender a properly completed Funding Notice not later than noon, California time, three (3) Business Days prior to the proposed Funding Date.

(b)     Each Funding Notice delivered pursuant to this Section 2.02 shall be irrevocable and shall refer to this Agreement and specify (i) the requested Funding Date (which shall be a Business Day), and (ii) the amount of such requested Funding (which shall not be in excess of the amount specified in Section 2.01(a) (Loans Generally)).

Section 2.03    Funding of Loans.

Subject to the terms and conditions of this Agreement and the other Financing Documents, including the satisfaction of the applicable conditions precedent set forth in Article VI hereof, the Lender agrees to make a Loan, in the amount and in the manner requested by the Borrower in the applicable Funding Notice, on the proposed Funding Date. The Lender shall apply such Loans as specified in Section 2.01(b) (Proceeds).

Section 2.04    Evidence of Indebtedness.

(a)     Each Loan shall be evidenced by one or more accounts or records maintained by the Lender in the ordinary course of business. The accounts or records maintained by the Lender shall be conclusive evidence, absent manifest error, of the amount of the Loans made by the Lender to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations.

(b)     The Borrower agrees that in addition to any accounts and records maintained pursuant to Section 2.04(a), the Loans made by the Lender shall be evidenced by a Note duly executed on behalf of the Borrower. Such Note shall be payable to the order of the Lender in a principal amount equal to the Loan Commitment. The Lender may attach schedules to the Note and endorse thereon the date, amount and maturity of each Loan and payments with respect thereto.

Section 2.05    Termination or Reduction of Commitment.

(a)     Any unused Loan Commitment shall be automatically and permanently terminated on the Date Certain.

(b)     Upon any prepayment of the Loans pursuant to Section 3.08 (Mandatory Prepayment), the Loan Commitment shall be automatically and permanently reduced in an amount equal to such prepayment.

(c)     Any unused Loan Commitment shall be terminated upon the occurrence of an Event of Default if and to the extent required pursuant to Section 8.02 (Action Upon Bankruptcy) or Section 8.03 (Action Upon Other Event of Default) in accordance with the terms thereof.

4

ARTICLE III

REPAYMENTS, PREPAYMENTS, INTEREST AND FEES

Section 3.01    Repayment of Loans.

(a)     On Payment Dates.     The Borrower unconditionally and irrevocably promises to pay to the Lender (i) on July 1, 2014, and (ii) on each Quarterly Payment Date thereafter, the portion of the outstanding principal amount of the Loans equal to the Required Amortization Payment and as otherwise provided in the Accounts Agreement. It is intended that such payments be made from time to time from the Revenue Account in accordance with the priorities set forth in the Accounts Agreement; provided, that the Borrower remains liable for such payment whether or not sufficient funds are available in the Revenue Account at the time such payment is due.

(b)     Maturity.    Notwithstanding anything to the contrary set forth in Section 3.01(a), the final principal repayment installment on the Maturity Date shall in any event be in an amount equal to the aggregate principal amount of all Loans outstanding on such date.

Section 3.02    Interest Payment Dates.

(a)     Interest accrued on each Loan shall be payable, without duplication:

(i) on each Interest Payment Date for such Loan;

(ii) on the Maturity Date for such Loan; and

(iii) with respect to any Loan, on any date when such Loan is prepaid hereunder.

(b)     Interest accrued on the Loans or other monetary Obligations after the date such amount is due and payable (whether on the Maturity Date for such Loan, any Quarterly Payment Date, any Interest Payment Date, upon acceleration or otherwise) shall be payable upon demand.

(c)     Interest hereunder shall be due and payable in accordance with the terms hereof, before and after judgment, regardless of whether an Insolvency or Liquidation Proceeding exists in respect of the Borrower, and, to the fullest extent permitted by law, the Lender shall be entitled to receive post-petition interest during the pendency of an Insolvency or Liquidation Proceeding.

Section 3.03    Interest Rates.

(a)     Each Loan shall accrue interest at a rate per annum during each Interest Period applicable thereto equal to the sum of the LIBO Rate for such Interest Period plus [***].

[***] Confidential Treatment Requested

5

(b)     All Loans shall bear interest from and including the first day of the applicable Interest Period to (and excluding) the last day of such Interest Period at the interest rate applicable to such Loan.

Section 3.04    Default Interest Rate.

(a)     If (i) all or a portion of the principal amount of any Loan is not paid when due (whether on the Maturity Date for such Loan, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum equal to the rate that would otherwise be applicable thereto plus two percent (2%), or (ii) any Obligation (other than principal on the Loans) is not paid when due (whether on the due date thereof, by acceleration or otherwise), such overdue amount shall bear interest at a rate per annum equal to the rate then applicable to the Loans plus two percent (2%), in each case, with respect to clauses (i) and (ii) above, from the date of such non-payment until such amount is paid in full.

(b)     Upon the occurrence and during the continuance of any Event of Default (other than an Event of Default under Section 8.01(a) (Events of Default - Nonpayment), for which provision is made in Section 3.04(a)), the Borrower shall pay, but only to the extent permitted by Law, in addition to the interest then payable in respect of any Loan, additional interest (before as well as after judgment) on all Loans at two percent (2%) per annum (the rate in effect plus such two percent (2%) per annum the “Default Rate”) until such Event of Default is cured or waived.

Section 3.05    Interest Rate Determination. The Lender shall determine the interest rate applicable to the Loans in accordance with the terms of this Agreement, and shall give prompt notice to the Borrower of such determination, and its determination thereof shall be conclusive, absent manifest error.

Section 3.06    Computation of Interest and Fees.

(a)     All computations of interest for Loans shall be made on the basis of a 360-day year and actual days elapsed.

(b)     Interest shall accrue on each Loan from the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid; provided, that any Loan that is repaid on the same day on which it is made shall bear interest for one (1) day.

(c)     Each determination by the Lender of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

Section 3.07    Optional Prepayment.

(a)     Optional Prepayment Generally. The Borrower may, after having given the Lender at least five (5) Business Days’ prior irrevocable notice, prepay, in whole or in part, any or all of the Loans.

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(b)     Any optional prepayment under this Section 3.07 shall be applied to the remaining principal balance of such Loans in inverse order of maturity.

(c)     Any optional prepayment of any Loan shall be in a minimum amount of (i) two hundred fifty thousand Dollars ($250,000) and in integral multiples of fifty thousand Dollars ($50,000) in excess thereof or (ii) the remaining amount of the relevant Loan.

(d)     All prepayments under this Section 3.07 shall be accompanied by accrued interest on the principal amount being prepaid to but excluding the date of payment and by any fees, costs and expenses required to be paid under Section 3.10 (Fees), Article IV (LIBO Rate and Tax Provisions) and Section 9.06 (Costs and Expenses) (other than unmatured Obligations with respect to which no claim has been made by the Lender).

(e)    Amounts of Loans prepaid pursuant to this Section 3.07 may not be reborrowed.

(f)    Without limiting any of the foregoing, any voluntary prepayment of Loans prior to the third anniversary of the Closing Date shall be accompanied by a fee in an amount equal to the aggregate amount of interest that would have accrued on the prepaid principal of the relevant Loans from the date of the prepayment through the third anniversary of the Closing Date, based on the rate in effect as of the date of the prepayment.

Section 3.08 Mandatory Prepayment.

(a) Special Events.

(i) Events Relating to the Systems. The Borrower shall be required to prepay the Loans:

(A) upon receipt by the Borrower of Insurance Proceeds, Condemnation Proceeds or Extraordinary Proceeds with respect to any System, to the extent required pursuant to the Accounts Agreement;

(B) upon a credit rating downgrade below Investment Grade of a Qualified Customer that is then a party to an Offtake Agreement, to the extent required pursuant to Section 4.3(c) of the Accounts Agreement; and

(C) as required under Section 3.12(b)(iv) (System Severance – Severance Amount Payment).

(b)     Restricted Payments Account.    If funds have been on deposit in the Restricted Payments Account for more than four (4) consecutive Quarterly Periods, then the Borrower shall be required to prepay the Loans on any Quarterly Payment Date using all funds then on deposit in the Restricted Payments Account; provided, that if the sole reason that funds have remained on deposit in the Restricted Payments Account is that the Historical Debt Service Coverage Test and the Prospective Debt Service Coverage Test have not been satisfied, then funds on deposit in the Restricted Payments Account shall be applied as a mandatory prepayment of the Loans only until the Prospective Debt Service Coverage Ratio equals [***].

[***] Confidential Treatment Requested

7

(c)     Accompanied by Interest. All prepayments under this Section 3.08 shall be accompanied by accrued interest on the principal amount being prepaid to but excluding the date of payment and by any fees, costs and expenses required to be paid under Section 3.10 (Fees), Article IV (LIBO Rate and Tax Provisions) and Section 9.06 (Costs and Expenses) (other than unmatured Obligations with respect to which no claim has been made by the Lender), but otherwise without any premium or penalty.

(d)     Application of Payments. Amounts of principal repaid under clause (a) of this Section 3.08 shall be applied to the remaining principal balance of such Loans in inverse order of maturity. Amounts of principal repaid under clause (b) of this Section 3.08 shall be applied pro rata to the principal amount of all Loans then outstanding.

(e)     No Reborrowing. Amounts prepaid pursuant to this Section 3.08 may not be reborrowed.

Section 3.09    Time and Place of Payments.

(a)     The Borrower shall make each payment (including any payment of principal of or interest on any Loan or any Fees or other Obligations) hereunder and under any other Financing Document without setoff, deduction or counterclaim not later than noon, California time on the date when due, in immediately available funds to the Lender pursuant to the wire instruction listed on Schedule 3.09(a), or at such other office or account as may from time to time be specified by the Lender to the Borrower. Funds received after noon, California time shall be deemed to have been received by the Lender on the next succeeding Business Day.

(b)     Whenever any payment (including any payment of principal of or interest on any Loan or any Fees or other Obligations) hereunder or under any other Financing Document shall become due, or otherwise would occur, on a day that is not a Business Day, such payment shall (except as otherwise required by the proviso to the definition of “Interest Period” with respect to Loans) be made on the immediately succeeding Business Day, and such increase of time shall in such case be included in the computation of interest or Fees, if applicable.

Section 3.10    Fees.

(a) The Borrower agrees to pay to the Lender:

(i) On the Closing Date, a facility fee equal to [***] of the Loan Commitment less [***];

(ii) On the Effective Date, [***], which is the outstanding amount due to Lender pursuant to clause (i) above;

(iii) Beginning on the first anniversary of the Closing Date, on each Quarterly Payment Date, in advance, a maintenance fee equal to $18,750 per quarter; and

[***] Confidential Treatment Requested

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(iv) On the Date Certain, an unused commitment fee in an amount equal to [***] years of interest on the unused portion of the Loan Commitment as of the Date Certain (prior to giving effect to the automatic termination of the Loan Commitment on such date), with interest computed based on the rate in effect as of the Date Certain; provided, that the Borrower may borrow Loans to pay such fee so long as after giving effect to such Loan, the Prospective Debt Service Coverage Ratio is at least [***].

(b)     The Borrower agrees to pay to the Lender additional fees in the amounts and at the times from time to time agreed in writing by the Borrower and the Lender.

(c)     All Fees shall be paid on the dates due, in immediately available funds. Once paid, none of the Fees shall be refundable under any circumstances.

Section 3.11    Termination of Rate Contracts in Connection with Any Prepayment. The Borrower shall, in connection with any prepayment of Loans pursuant to Section 3.07 (Optional Prepayment) or Section 3.08 (Mandatory Prepayment), terminate an aggregate notional amount under the Rate Contracts with respect to interest rates equal to the amount (if any) by which the aggregate notional amount under such Rate Contracts would exceed the aggregate outstanding principal amount of the Loans, immediately after giving effect to such prepayment; and in each case, such termination shall be made within five (5) Business Days of the date of such prepayment and shall be accompanied by any additional amounts required to be paid under Article IV (LIBO Rate and Tax Provisions). For purposes of clarity, until the expiry of such five (5) Business Day period following such prepayments, the existence of Rate Contracts for notional amounts in excess of the aggregate principal amount of Loans due to the relevant prepayments shall not constitute a breach or Event of Default hereunder.

Section 3.12    System Severance.

(a)     General. At any time, the Borrower may prepay all of the applicable Loans in respect of any System and cause the applicable System to be released from the Collateral requirements hereunder (a “System Severance”) by satisfying the requirements of Section 3.12(b) (System Severance – Process and Requirements).

(b)     Process and Requirements. A System Severance, to the extent permitted under this Section 3.12 and Section 8.05 (Special Cures – System Severance and Prepayment), may be accomplished through the following process:

(i) System Severance Notice. The Borrower shall give the Lender an irrevocable notice of its intent to carry out a System Severance (a “Severance Notice”) at least ten (10) Business Days prior to the proposed date for such severance, which such Severance Notice shall indicate the System(s) to be so severed and the proposed date for such severance and shall be accompanied by the updated Financial Models contemplated in part (ii) below.

(ii) Updated Models. With each Severance Notice delivered under Section 3.12(b)(i), the Borrower shall deliver to the Lender proposed revised Financial Models for the Portfolio, reflecting the

[***] Confidential Treatment Requested

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removal of the System(s) to be severed. Such revised Financial Models will employ the methodology used in the Financial Models delivered by Borrower on the Closing Date. Any change in assumptions shall be specifically identified and any material change in assumptions must be reasonably acceptable to Lender, in consultation with the Independent Engineer (if applicable).

(iii) Debt Sizing.    The permitted size of all Loans shall then be reviewed by the Lender and, as necessary, reduced by mandatory prepayment, so that, under the updated Financial Models prepared in accordance with Section 3.12(b)(ii) above, the Debt Sizing Test shall be satisfied. The excess, if any, of the aggregate principal amount of Loans then outstanding over the adjusted permitted aggregate principal amount of Loans, determined based on the Debt Sizing Test, after giving effect to any Project Document Termination Payment or Insurance Proceeds, as applicable, received by the Borrower in connection with the severance that will be applied as a prepayment of Loans, shall constitute the “Additional Required Balance” required at such time.

(iv) Severance Amount Payment. On the date of the relevant System Severance, the Borrower will pay, as a mandatory prepayment of Loans, an amount (the “Severance Amount”) comprised of the Additional Required Balance, if any, to the Lender, with the Additional Required Balance applied pro rata as a prepayment of principal on the Loans. In addition, any payment of a Severance Amount prior to the third anniversary of the Closing Date shall be accompanied by a fee in an amount equal to the aggregate amount of interest that would have accrued on such Severance Amount from the date of the prepayment through the third anniversary of the Closing Date, based on the rate in effect as of the date of the prepayment.

(c)     Discharge.    Upon the satisfaction of the conditions set forth in Section 3.12(b) for a System Severance, the “System Discharge Date” with respect to the relevant System shall be deemed to have occurred. Promptly following, and with effect from, such System Discharge Date, (i) the readily identifiable assets of the relevant System shall be released from the Lien in favor of the Lender under the Security Agreement and related Security Documents, and (ii) the relevant System shall become a “Former System” for purposes of this Agreement and the other Financing Documents; provided, that such release shall not extend to the Account Collateral or any funds on deposit in them and shall not affect any portion of the Collateral other than the identifiable assets of the Former System.

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ARTICLE IV

LIBO RATE AND TAX PROVISIONS

Section 4.01    LIBO Rate Indemnity.    If and so long as the interest rate for the Loans shall be determined on the basis of the LIBO Rate, the Borrower agrees to indemnify the Lender for, and to hold the Lender harmless from, any loss or expense (excluding loss of any anticipated profits) that the Lender may sustain or incur as a consequence of (a) failure by the Borrower to make any prepayment after giving a notice thereof in accordance with the provisions of this Agreement or (b) the making of a prepayment of the Loans on a day that is not the last day of an Interest Period. Such indemnification shall be based upon the excess, if any, of (i) the amount of interest that would have accrued on the amount not prepaid (in the case of (a) above), or actually prepaid (in the case of (b) above) for the interim period from the date of such failure or prepayment until the end of the then-current Interest Period, in each case computed at the applicable LIBO Rate for such Interest Period over (ii) the amount of interest (as reasonably determined by the Lender) that would have accrued on such amount during such interim period based upon a determination of the LIBO Rate that would commence and end in accordance with such interim period. A certificate as to any amounts payable pursuant to this Section submitted by the Lender in reasonable detail shall be conclusive in the absence of manifest error. The parties understand and agree that the provisions of this Section 4.01 shall apply irrespective of whether the Lender has funded the Loans under this Agreement from deposits in the London interbank market or from other funding sources.

Section 4.02    Additional Requirements/Provisions.

(a)    The Borrower shall pay to the Lender, upon demand by the Lender, from time to time such amounts as the Lender may reasonably determine to be necessary to compensate it for any increased costs incurred by the Lender that the Lender determines are attributable to its making or maintaining of any amount receivable by the Lender hereunder in respect of the Loans relating thereto, in each case resulting from any change after the date hereof in applicable law that:

(i) changes the basis of taxation of any amounts payable to the Lender under this Agreement in respect of the Loans (other than changes which affect Excluded Taxes or in Non-Excluded Taxes or Other Taxes covered by Section 4.03); or

(ii) imposes or modifies any reserve, special deposit or similar requirements (other than the Reserve Requirement) relating to any extensions of credit or other assets of, or any deposits with or other liabilities of the Lender; or

(iii) imposes any other material condition affecting this Agreement (or any of such extensions of credit or liabilities).

(b)    If the Lender shall determine that the adoption or implementation of any applicable law, rule, regulation or treaty regarding capital adequacy, or any change therein, or any change in the interpretation or administration thereof by any Governmental Authority,

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central bank or comparable agency charged with the interpretation or administration thereof, or compliance by the Lender (or its applicable lending office) with any directive regarding capital adequacy of any such authority, central bank or comparable agency, in each case made after the date hereof, has or would have the effect of reducing the rate of return on capital of the Lender or any entity controlling the Lender as a consequence of its obligations hereunder to a level below that which the Lender (or such controlling entity) could have achieved but for such adoption, change or compliance (taking into consideration its policies with respect to capital adequacy) by an amount deemed by the Lender to be material, then from time to time, the Borrower shall pay to the Lender such additional amount or amounts as will compensate the Lender for such reduction.

(c)    Sections 4.02(a) and (b) shall not apply to the extent (i) that the Lender shall not make demand for compensation for such increased costs or reduction from borrowers generally who are party to similar obligations as set forth in this Section 4.02 or (ii) such increased costs or reduction arise from failure of the Lender to comply with laws, regulations or minimum standards provided in such laws or regulations applicable to the Lender or (iii) are the result of the Lender’s lending or business activities which expose the Lender to more risk than that incurred by other comparable financial institutions.

(d)    The Lender will notify the Borrower within three (3) months of any event occurring after the date of this Agreement which will entitle the Lender to compensation pursuant to this Section 4.02 or as promptly thereafter as practicable after it obtains knowledge thereof and determines to request such compensation. Concurrent with each request by the Lender for compensation under this Section, the Lender will furnish the Borrower with a statement setting forth the basis, computation and amount of such request by the Lender for compensation. The Borrower shall pay to the Lender such amount or amounts as may be requested under and in compliance with this Section 4.02 within thirty (30) days after such request. Failure or delay on the part of the Lender to provide notice under this Section 4.02(d) or to request compensation shall not constitute a waiver of the Lender’s right to demand such compensation; provided, that the Borrower shall not be required to compensate the Lender for any increased costs incurred or reductions suffered more than six (6) months prior to the date that the Lender requests compensation therefor (except that, if the change giving rise to such increased costs or reductions is retroactive, then the six (6)-month period referred to above shall be extended to include such period of retroactive effect).

(e)    If at any time the Lender, in its reasonable discretion, determines that adequate and reasonable means do not exist to determine the LIBO Rate at the commencement of any Interest Period, then the Lender shall promptly give notice thereof to the Borrower. The Lender and the Borrower shall promptly enter into negotiations to determine an alternative reference rate reasonably reflecting the cost of funds of the Lender to use for such Interest Period in lieu of the LIBO Rate; provided, that (x) unless and until the parties shall agree to such alternative reference rate, all references herein to LIBO Rate shall, at the commencement of each Interest Period from and after the date of such notice by the Lender under this Section 4.02(e), instead be deemed to be references to the Prime Base Rate, determined as of the first day of such Interest Period (provided, that, to the extent that the Prime Base Rate is used in computing an Interest Rate, the applicable margin shall be adjusted so that the sum of the Prime Base Rate plus the applicable margin approximates the Interest Rate that was in effect during the preceding

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Interest Period in which the LIBO Rate could be determined) and (y) if, following such notice from the Lender, reasonable means to determine the LIBO Rate shall once again exist, the Lender shall promptly so notify the Borrower and this Section 4.02(e) shall cease to apply at the end of the then-applicable Interest Period.

(f)    If it shall become unlawful for the Lender to continue to fund or maintain the Loans, or to perform its obligations hereunder, upon demand by the Lender (subject to Section 4.02(g) below), the Borrower shall prepay the Loans owing to the Lender in full with accrued interest thereon and all other amounts payable by the Borrower to the Lender hereunder on or prior to the date on which the Lender shall be required to be prepaid in accordance with such legal requirement.

(g)    If the Borrower is required to make any payments under this Section 4.02 or Section 4.03 hereof, or if notice is provided by the Lender under Section 4.02(d), then, at the request of the Borrower, the Lender shall use reasonable efforts to designate or assign to an Affiliate or alternative branch or lending office for funding or booking its loans and performing it obligations hereunder, or engage an alternative eligible lender acceptable to the Borrower, if, in the judgment of the Lender, such designation or assignment: (i) would eliminate or reduce amounts payable pursuant to this Section 4.02 or Section 4.03 hereof in the future, or eliminate the need for the notice pursuant to Section 4.02(d); and (ii) in each case, would not otherwise (in the opinion of the Lender) be disadvantageous to it. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by the Lender in connection with any such designation or assignment.

Section 4.03    Net of Tax, Etc.

(a)    All payments made by the Borrower with respect to any obligation under this Agreement shall be made free and clear of, and without deduction or withholding for or on account of, any present or future income, stamp or other Taxes, now or hereafter imposed, levied, collected, withheld or assessed by any Governmental Authority, excluding Excluded Taxes. If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded Taxes”) or Other Taxes are required to be withheld from any amounts payable to the Lender hereunder, the amounts so payable to the Lender shall be increased to the extent necessary to yield to the Lender (after payment of all Non-Excluded Taxes and Other Taxes) interest or any such other amounts payable hereunder at the rates or in the amounts specified in this Agreement; provided, that the Borrower shall not be required to increase any such amounts payable to the Lender with respect to any Non-Excluded Taxes (i) that are attributable to the Lender’s failure to comply with the requirements of Section 4.03(d) or (e) or failure to comply with laws, regulations or minimum standards provided in other laws or regulations applicable to the Lender or (ii) that are United States withholding Taxes imposed on amounts payable to the Lender on the date of this Agreement.

(b)    In addition, the Borrower shall pay any Other Taxes to the relevant Governmental Authority in accordance with applicable law.

(c)    Whenever any Non-Excluded Taxes or Other Taxes are payable by the Borrower, as promptly as possible thereafter the Borrower shall send to the Lender for its own

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account an original or copy of the official receipt received by the Borrower (or other evidence of payment that is reasonably satisfactory to Lender) showing payment thereof. If the Borrower fails to pay any Non-Excluded Taxes or Other Taxes when due to the appropriate taxing authority or fails to remit to the Lender receipts or other evidence of such payment by the Borrower, Borrower shall indemnify the Lender for any incremental taxes, interest or penalties that the Lender may reasonably incur as a result of any such failure.

(d)    The Lender hereby affirms to the Borrower that it is, on the date hereof, a “U.S. Person” as defined in Section 7701(a)(30) of the Internal Revenue Code and is not subject to Non-Excluded Taxes under Federal law or the law of any other Governmental Authority in the United States of America. The Lender (and any successor or assign of the Lender that is a U.S. Person) shall deliver to the Borrower on or prior to the date on which the Lender (or any successor or assign of the Lender that is a U.S. Person) becomes party to this Agreement (and from time to time thereafter upon the reasonable request of the Borrower ), executed originals of IRS Form W-9 certifying that the Lender (or any successor or assign of the Lender that is a U.S. Person) is exempt from U.S. federal backup withholding Tax. If at any time the Lender (or any successor or assign of the Lender) shall be or become a Person other than a U.S. Person (a “Non- U.S. Lender”), the Lender (or such successor or assign), as a condition precedent to any ability to thereafter make claims for Non-Excluded Taxes hereunder, shall deliver to the Borrower two copies of either United States Internal Revenue Service Form W-8BEN or Form W-8ECI, or, in the case of a Non-U.S. Lender claiming exemption from United States federal withholding Tax under Section 871(h) or 881(c) of the Internal Revenue Code with respect to payments of “portfolio interest,” a statement in the required form and a Form W-8BEN, or any subsequent versions thereof or successors thereto, properly completed and duly executed by such Non-U.S. Lender claiming complete exemption from, or a reduced rate of, United States federal withholding Tax on all payments by the Borrower under this Agreement and the other Financing Documents. Such forms shall be delivered by any Non U.S. Lender on or before the date it becomes a party to this Agreement. In addition, each Non-U.S. Lender shall deliver such forms promptly upon the obsolescence or invalidity of any form previously delivered by such Non-U.S. Lender. Each Non-U.S. Lender shall promptly notify the Borrower at any time it determines that it is no longer in a position to provide any previously delivered certificate to the Borrower (or any other form of certification adopted by the United States taxing authorities for such purpose). Notwithstanding any other provision of this paragraph, a Non-U.S. Lender shall not be required to deliver any form pursuant to this paragraph that such Non-U.S. Lender is not legally able to deliver.

(e)    If the Lender is entitled to an exemption from or reduction of withholding Tax with respect to payments under this Agreement, it shall deliver to the Borrower, at the time or times prescribed by applicable law or reasonably requested by the Borrower, such properly completed and executed documentation prescribed by applicable law as will permit such payments to be made without withholding or at a reduced rate; provided, that in such case the Lender is legally entitled to complete, execute and deliver such documentation and in the Lender’s judgment such completion, execution or submission would not materially prejudice the legal position of the Lender.

(f)    If a payment made to the Lender under this Agreement would be subject to U.S. federal withholding Tax imposed by FATCA if the Lender were to fail to comply with

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the applicable reporting requirements of FATCA (including those contained in Section 1471(b) or 1472(b) of the Code, as applicable), the Lender shall deliver to the Borrower at the time or times prescribed by law and at such time or times reasonably requested by the Borrower such documentation prescribed by applicable law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower as may be necessary for the Borrower to comply with its obligations under FATCA and to determine that the Lender has complied with the Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause (f), “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

(g)    If the Lender determines, in its sole discretion exercised in good faith, that it has received a refund of any Non-Excluded Taxes or Other Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has paid additional amounts pursuant to this Section, it shall pay over such refund to the Borrower (but only to the extent of indemnity payments made, or additional amounts paid, by the Borrower under this Section with respect to the Non-Excluded Taxes or Other Taxes giving rise to such refund), net of all out-of-pocket expenses of the Lender and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund); provided, that the Borrower, upon the request of the Lender, agrees to repay the amount paid over to the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) to the Lender in the event the Lender is required to repay such refund to such Governmental Authority. This paragraph shall not be construed to require the Lender to make available its Tax Returns (or any other information relating to its Taxes which it deems confidential) to the Borrower or any other Person.

(h)    This Section 4.03, and the obligations stated herein, shall survive termination of this Agreement.

ARTICLE V

REPRESENTATIONS AND WARRANTIES

In order to induce the Lender to enter into this Agreement and to make the Loans, the Borrower represents and warrants to the Lender as set forth in this Article V on the Closing Date, the Effective Date and on the date of each Funding Notice (except with respect to representations and warranties that expressly refer only to an earlier date) as set forth below.

Section 5.01    Organization; Power; Compliance with Law and Contractual Obligations. The Borrower (a) is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware, (b) is duly qualified to do business as is now being conducted and as is proposed to be conducted and is in good standing as a foreign limited liability company in each jurisdiction where the nature of its business requires such qualification, (c) has all requisite limited liability company power and authority required as of the date this representation is made or deemed repeated to enter into and perform its obligations under each Transaction Document to which it is a party at any time this representation is given or deemed repeated and to conduct its business as currently conducted by it and (d) is in compliance in all material respects with all Laws and Contractual Obligations applicable to it.

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Section 5.02    Due Authorization; Non-Contravention.    The execution, delivery and performance by the Borrower of each Transaction Document to which it is a party at any time this representation is given or deemed repeated are within the Borrower’s limited liability company powers, have been duly authorized by all necessary limited liability company action, and do not:

(a)    contravene its Organic Documents (including its LLC Agreement);

(b)    contravene in any material respect any Law binding on or affecting such Person;

(c)    contravene in any material respect any Contractual Obligation binding on or affecting such Person;

(d)    require any consent or approval under its Organic Documents that has not been obtained;

(e)    require any consent or approval under any Contractual Obligation binding on or affecting such Person other than any approvals or consents that have been obtained; or

(f)    result in, or require the creation or imposition of, any Lien on any of the Borrower’s properties or Equity Interests other than Permitted Liens.

Section 5.03    Governmental Approvals.

(a)    As of the Effective Date:

(i) all material Governmental Approvals that are required to be obtained by the Borrower in connection with (A) the due execution, delivery and performance by it of the Financing Documents, and (B) the grant by the Pledgor and the Borrower of the Liens granted under the Security Documents and the validity, perfection and enforceability of such Liens (the “Necessary Approvals – Financing Documents”) are listed in Part A of Schedule 5.03;

(ii) all material Governmental Approvals that are required to be obtained by the Borrower in connection with (A) the due execution, delivery and performance by it of the Project Documents to which it is then a party and (B) the ownership, use, construction and operation of each of the Systems as contemplated by such Project Documents (the “Necessary Approvals - Project Documents”) are listed in Part B of Schedule 5.03;

(iii) all Necessary Approvals listed in Part A of Schedule 5.03 and, with respect to the Systems that have been Funded, in Part B of Schedule 5.03 have been obtained, are in full force and effect, and are properly in the name of the appropriate Person and there is no reason to believe that any such Necessary Approvals will be appealed, revoked or not routinely renewed; and

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(iv) all Necessary Approvals listed in Part B of Schedule 5.03 with respect to the Systems have either (A) been obtained or (B) are not required to be obtained as of the Effective Date in light of the progress and business of all Systems as at such date (the Necessary Approvals referred to in clause (B), collectively, the “Deferred Approvals”), and the Borrower reasonably believes that the Deferred Approvals will be obtained in due course and acknowledges that the Deferred Approvals will be required, in form and substance reasonably acceptable to the Lender prior to the Funding in respect of the relevant Systems to which they relate;

(b)    On each date on which this representation is given or deemed repeated other than the Closing Date and the Effective Date, (i) all Necessary Approvals (including all Deferred Approvals) which as of such Funding Date are required by Law to be obtained or are otherwise reasonably necessary in light of the progress and business of all Systems as at such date have been validly issued and obtained, are in full force and effect, and are properly in the name of the appropriate Person and there is no reason to believe that any such Necessary Approvals will be appealed, revoked or not routinely renewed; (ii) the Borrower and the Parent are each in compliance in all material respects with all such Necessary Approvals, and each such Person has satisfied any conditions therein that are required to be satisfied by such Person by the date of the applicable Funding; and (iii) such Necessary Approvals do not contain any condition that the Borrower reasonably believes is not capable of being satisfied on or prior to the time required by Law (including in the relevant Necessary Approval itself) or would limit or restrict the ability of the relevant Systems to perform consistently, in all material respects, in accordance with the applicable Financial Model(s); provided, that the Borrower shall update and correct any reference to a Necessary Approval on Schedule 5.03 that has been replaced or modified in accordance with applicable Law.

(c)    The information set forth in each application (including any updates or supplements thereto) submitted by or on behalf of the Borrower in connection with each Necessary Approval that has been submitted as of any date on which this representation is made or deemed repeated, was accurate and complete in all material respects at the time of submission and continues to be accurate and complete in all material respects, in each case to the extent required for the issuance or continued effectiveness of such Necessary Approval, and the Borrower does not have any knowledge of any event, act, condition or state of facts inconsistent in any material respect with such information.

(d)    The Borrower reasonably believes that each Necessary Approval that remains to be obtained will be obtained in a final form in the ordinary course without undue delay or material expense and without unanticipated expensive or burdensome conditions prior to the time it is required to be obtained under applicable Law. There is no Law and there is no action, suit, investigation or proceeding pending or, to the knowledge of the Borrower, threatened in writing that would reasonably be expected to result in the material modification, rescission, termination, or suspension of any Necessary Approval referred to in Schedule 5.03 that was obtained prior to the date this representation is made or deemed made.

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Section 5.04    Investment Company Act.    The Borrower is not, and after giving effect to the Loans and the application of the proceeds of the Loans as described herein will not be, an “investment company” or a company “controlled” by an “investment company,” within the meaning of the Investment Company Act of 1940, as amended.

Section 5.05    Validity.    Each Transaction Document to which the Borrower is a party has been duly authorized, validly executed and delivered, and constitutes the legal, valid and binding obligations of the Borrower, enforceable against the Borrower, in each case in accordance with its respective terms, except as the enforceability hereof or thereof may be limited by (a) bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement of creditors’ rights generally and (b) general equitable principles (whether considered in a proceeding in equity or at law). The Borrower has no reason to believe that each such Transaction Document is not enforceable against each other party thereto, in each case in accordance with its respective terms, except as the enforceability hereof or thereof may be limited by (a) bankruptcy, insolvency, reorganization, or other similar laws affecting the enforcement of creditors’ rights generally and (b) general equitable principles (whether considered in a proceeding in equity or at law).

Section 5.06    Financial Information.

(a)    Each of the financial statements and balance sheets of the Borrower and the Parent delivered pursuant hereto, other than pro forma statements, has been prepared in accordance with GAAP, and fairly presents in all material respects the consolidated financial condition of such Person as at the dates thereof and the results of its operations for the period then ended (subject, in the case of unaudited financial statements, to changes resulting from audit and normal year-end adjustments and the absence of footnotes).

(b)    The pro forma balance sheet for the Borrower is true, correct and complete in all material respects and fairly presents the information contained therein as of the Closing Date, giving effect to the transactions contemplated hereby, and the Borrower’s good-faith estimate of the information contained therein as of each such date. The Borrower has no material liability, contingent or otherwise, including any material liability for Taxes, or any unusual forward or long-term commitment which is not disclosed by, or reserved against in, the pro forma balance sheet or in the notes thereto that is of a nature and an amount that would be required to be so disclosed or reserved in financial statements prepared in accordance with GAAP.

Section 5.07    No Material Adverse Effect.    Since the Closing Date, no Material Adverse Effect has occurred and is continuing.

Section 5.08    System Compliance.

(a)    Each System is and will continue to be owned, developed, constructed and maintained in compliance in all material respects with all applicable Laws, Permitted Liens and Necessary Approvals (including all Deferred Approvals).

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(b)    Each System is and will continue to be owned, developed and maintained in compliance in all material respects with all of the Borrower’s Contractual Obligations (including the Project Documents and the Credit Protection Insurance Policy).

Section 5.09    Litigation.

(a)    Except as set forth in Schedule 5.09, as of the Closing Date and the Effective Date, no action, suit, proceeding or investigation has been instituted or threatened in a writing delivered to or otherwise received by any of the Borrower, the Parent or the Pledgor that involves the Borrower or any of the Systems (including in connection with any Necessary Approval).

(b)    As of any other date on which this representation is given or deemed repeated, no action, suit, proceeding or investigation, other than those described in Schedule 5.09, has been instituted or threatened in a writing provided to any of the Borrower, the Parent or the Pledgor that involves the Borrower or any of the Systems (including in connection with any Necessary Approval) which has had or could reasonably be expected to have a Material Adverse Effect.

(c)    As of the Closing Date, the Effective Date and any other date on which this representation is given or deemed repeated, to the knowledge of the Borrower, without any inquiry, no action, suit, proceeding or investigation has been instituted or threatened against any Major Project Party that, individually or in the aggregate, has had or could reasonably be expected to have a Material Adverse Effect.

Section 5.10    Sole Purpose Nature; Business.    The Borrower has not conducted and is not conducting any business or activities other than businesses and activities relating to (a) the ownership, development, testing, financing, operation and maintenance of the Systems as contemplated by the Transaction Documents and (b) activities related thereto.

Section 5.11    Contracts.

(a)    As of the Effective Date:

(i) all Contracts that are required or reasonably necessary to be obtained by the Borrower in connection with the construction and operation of the Systems materially in accordance with the Financial Models and otherwise as contemplated by the Transaction Documents (collectively, the “Necessary Contracts”) and all other Contracts to which the Borrower is a party or by which it or any of its properties is bound are listed in Schedule 5.11, other than (x) any Immaterial Contracts and (y) the Financing Documents;

(ii) the Necessary Contracts listed in Part A of Schedule 5.11 have been obtained and are, to the knowledge of the Borrower, in full force and effect and the Borrower has provided true, correct and complete copies of all such Contracts to the Lender; and

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(iii) the Necessary Contracts listed in Part B of Schedule 5.11 are not required to be obtained as of the Effective Date in light of the progress and business of all Systems as at such date (collectively, the “Deferred Contracts”) and have not yet been obtained but the Borrower reasonably believes the Deferred Contracts will be obtained in due course and acknowledges that the Deferred Contracts will be required, in form and substance reasonably acceptable to the Lender prior to the Funding in respect of the relevant Systems to which they relate.

(b)    As of each date this representation and warranty is made or deemed repeated:

(i) all Contracts to which the Borrower is a party or by which it or any of its properties is bound (other than the Financing Documents), including the Major Project Documents, and all documents amending, supplementing, interpreting or otherwise modifying or clarifying such Contracts in any material respect are listed in Schedule 5.11 other than Immaterial Contracts and the Borrower has provided true, correct and complete copies of all such Contracts to the Lender;

(ii) (A) the Borrower has obtained all Necessary Contracts (including Deferred Contracts) that are required or reasonably necessary for the operation of the Systems (for which Fundings have been made or with respect to which a Funding Notice is pending), in each case materially in accordance with the Transaction Documents (and the Financial Models, but only with respect to each System for which a Funding is requested and only on the date of the applicable Funding Notice and such Funding) and (B) all such Necessary Contracts are, to the knowledge of the Borrower, in full force and effect;

(iii) the Borrower has no reason to believe that all representations, warranties and other factual statements made by each Project Party in each of the Transaction Documents to which such Project Party is a party are not true and correct as of the date(s) made or deemed repeated (except with respect to representations and warranties that expressly refer only to an earlier date) other than any such inaccuracies that have not had and could not reasonably be expected to have a Material Adverse Effect;

(iv) there are no Contracts between the Borrower and any other Person relating to the Borrower or the Systems or their respective properties other than (A) the Transaction Documents, (B) the Contracts listed in Schedule 5.11 as updated by the Borrower from time to time with the consent of the Lender (such consent not to be unreasonably withheld, conditioned or delayed), (C) the Immaterial Contracts, and (D) any other Contracts permitted by this Agreement; and

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(v) all conditions precedent to the obligations of the respective parties under the Major Project Documents that have been executed as of the date this representation is made or deemed repeated have been satisfied or waived by the parties thereto, except for such conditions precedent that cannot be satisfied until a later stage of development of the Systems, and the Borrower has no reason to believe that any such condition precedent cannot be satisfied on or prior to the commencement of the appropriate stage of development of the Systems.

(c) On each Funding Notice Date, all Necessary Contracts (including all Deferred Contracts) which as of such Funding Notice Date are required or reasonably necessary to be in place have been duly executed and delivered and are, to the knowledge of the Borrower, in full force and effect. Without limiting the foregoing, on the Funding Notice Date in respect of any System, all Necessary Contracts that are designated on Part B of Schedule 5.11 as being required for Funding in respect of such System(s) have been duly executed and delivered and are, to the knowledge of the Borrower, in full force and effect.

Section 5.12    Collateral.

(a)    The Collateral includes all of the Equity Interests in, and all of the tangible and intangible assets of, the Borrower.

(b)    The Liens and security interests granted to the Lender pursuant to the Security Documents in effect on each date this representation is made or deemed repeated constitute, as to personal property of the Borrower, a valid first-priority security interest in such personal property.

(b)    The security interest granted to the Lender pursuant to the Security Documents in the Collateral consisting of personal property (including fixtures) will be perfected (i) with respect to any property that can be perfected by filing of a UCC financing statement, upon the filing of UCC financing statements in the filing offices identified in Schedule 5.12(c), and (ii) with respect to any property (if any) that can be perfected solely by possession, upon the Lender receiving possession thereof, and in each case such security interest will be, as to Collateral perfected under the UCC or by possession as aforesaid, superior and prior to the rights of all third Persons now existing or hereafter arising whether by way of mortgage, lien, security interest, encumbrance, assignment or otherwise, in each case subject only to Permitted Liens. After giving effect to the filings, registrations and giving of notice referred to in the immediately preceding sentence, all such action as is necessary has been taken to establish and perfect the Lender’s rights in and to the Collateral covered by the Security Documents in effect on the date this representation is made or deemed repeated to the extent the Lender’s security interest can be perfected by filing, including any recordation, filing, registration, giving of notice or other similar action under the UCC. No filing, recordation, re-filing or re-recording other than those

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listed on Schedule 5.12(c) is necessary to perfect (or maintain the perfection of) the interest, title or Liens of the Security Documents (to the extent the Lender’s security interest can be perfected by filing under the UCC or recording), and on and as of each relevant date on which this representation and warranty is made or deemed repeated, all such filings or recordings have been made. The Borrower and the Pledgor have properly delivered or caused to be delivered to the Lender, or provided the Lender control of, all Collateral relating to assets of or equity in the Borrower that requires perfection of the Liens and security interests described above by possession or control. All or substantially all of the Collateral relating to assets of or equity in the Borrower (other than the Account Collateral, certificates, securities, investments, chattel paper, books and records and general intangibles), is or will (when acquired) be located on the Sites.

Section 5.13    Ownership of Properties.

(a)    The Borrower has valid and enforceable easements, rights of way or similar property rights in the Easements relating to each System.

(b)    The Borrower has a good and valid ownership interest, license interest or other right of use in all other property and assets (tangible and intangible other than real estate) included in the Collateral relating to assets of or equity in the Borrower under each Security Document. Such ownership interests or other rights of use are and will be, together with any other assets or interests contemplated to be acquired pursuant to the LTSA for each System, sufficient to permit operation of the Systems, substantially in accordance with the Project Documents.

(c)    All Equity Interests in the Borrower are owned by the Pledgor.

(d)    The properties and assets of the Borrower are separately identifiable and are not commingled with the properties and assets of any other Person and are readily distinguishable from the property and assets of other Persons.

(e)    Other than the interests in the Leasehold Property pursuant to the Major Project Documents, the Borrower does not have any leasehold interest in, and is not lessee of, any real property.

(f)    There are no Laws or similar restrictions of Governmental Authorities applicable to the Leasehold Property or Easements and no Claims are pending (or have been threatened in writing) whether by Governmental Authorities or third parties, in each case, where such Laws, restrictions or Claims could reasonably be expected to (i) adversely affect the Borrower’s ability to use and conduct the operations on such real property materially in accordance with the applicable Financial Models or (ii) in the aggregate, otherwise have a Material Adverse Effect. To the knowledge of the Borrower, there are no soil, structural, subsurface or other natural or artificial conditions upon or about, or other facts or conditions involving, any Leasehold Property or property subject to an Easement that could reasonably be expected to (i) adversely affect the Borrower’s ability to use and conduct the operations on such real property materially in accordance with the applicable Financial Models or (ii) in the aggregate, otherwise have a Material Adverse Effect. To the knowledge of the Borrower, without any inquiry, there are not any pending or planned changes to the Laws applicable to, or

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restrictions promulgated or enforced by Governmental Authorities with jurisdiction over, the Leasehold Property or property subject to Easements, where such pending or planned changes could reasonably be expected to (i) adversely affect the Borrower’s ability to use and conduct the operations on such real property materially in accordance with the assumptions set forth with respect thereto in the applicable Financial Models or (ii) in the aggregate, otherwise have a Material Adverse Effect.

Section 5.14    Taxes.

(a)    Except as disclosed on Schedule 5.14, the Borrower has:

(i) filed (A) all income Tax Returns required by U.S. federal law and (B) all other material Tax Returns, in each case, to have been filed by it; and

(ii) paid all Taxes thereby shown to be owing, as and when the same are due and payable, other than, in the case of this Section 5.14(a)(ii), (A) Taxes that are subject to a Contest or (B) the nonpayment of immaterial Taxes in an aggregate amount not in excess of [***] per System or[***] in the aggregate at any one time outstanding (taking into account any interest and penalties that could accrue or be applicable to such past-due Taxes), and provided, that such Taxes are no more than forty-five (45) days past due.

(b)    The Borrower will not be taxable as a corporation for federal, state or local tax purposes.

(c)    The Borrower has not agreed to extend the statute of limitations period applicable to the assessment or collection of any Tax.

(d)    The Borrower is not currently under any governmental audit with respect to any Tax for any period, there are no claims for additional Tax being pursued by any Governmental Authority with respect to the business, income or activities of the Borrower, and the Borrower has no knowledge of any such claims that have not yet been asserted but are likely to be asserted by a Governmental Authority.

Section 5.15    Patents, Trademarks, Etc.    The Borrower has obtained and holds in full force and effect all patents, trademarks, copyrights and other such rights or adequate licenses therein, free from unduly burdensome restrictions, that are necessary for the ownership, construction, operation and maintenance of the Systems, except where such failure to obtain and hold has not had and could not reasonably be expected to have a Material Adverse Effect.

Section 5.16    ERISA Plans.    Neither the Borrower nor any ERISA Affiliate has (or within the five (5) year period immediately preceding the date hereof had) any liability in respect of any Plan or Multiemployer Plan. The Borrower does not have any contingent liability with respect to any post-retirement benefit under any “welfare plan” (as defined in Section 3(1) of ERISA), other than liability for continuation coverage under Part 6 of Title I of ERISA or under applicable state insurance laws.

[***] Confidential Treatment Requested

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Section 5.17    Property Rights, Utilities, Supplies, Etc.

(a)    All material property interests, access rights, utility services, means of transportation, facilities and other materials and services necessary for the development, engineering, construction, testing, start-up, use and operation of the Systems are, or will be when needed, available to the Systems, and arrangements in respect thereof have been made on commercially reasonable terms.

(b)    There are no material supplies, materials or equipment necessary for construction, operation or maintenance of the Systems that are not expected to be available at the Sites on commercially reasonable terms consistent with the relevant Operating Budget.

Section 5.18    No Defaults. No Event of Default (or Default with respect to any System that is the subject of an outstanding Loan or for which a Funding Notice is then pending) has occurred and is continuing.

Section 5.19    Environmental Warranties.

(a)    Except as set forth in Schedule 5.19, (i) the Borrower and, to the knowledge of the Borrower, the Environmental Affiliates are in compliance in all material respects with all applicable Environmental Laws, (ii) the Borrower and, to the knowledge of the Borrower, the Environmental Affiliates have all Environmental Approvals required to operate their businesses, in all material respects, as such businesses are presently conducted or are reasonably anticipated to be conducted and are in compliance in all material respects with the terms and conditions thereof, (iii) none of the Borrower or, to the knowledge of the Borrower, any of the Environmental Affiliates has received any written communication from a Governmental Authority that alleges that the Borrower or any Environmental Affiliate is not in compliance in any material respect with any Environmental Law or Environmental Approval, and (iv) to the knowledge of the Borrower, there are no circumstances that could reasonably be expected to prevent or interfere in the future with the Borrower’s compliance in all material respects with all applicable Environmental Laws and Environmental Approvals.

(b)    Except in a manner that could not reasonably be expected to subject the Borrower to material liability or any Environmental Claim, no Materials of Environmental Concern are present on any property owned, leased or operated by the Borrower.

(c)    Except as set forth in Schedule 5.19, there is no Environmental Claim pending or, to the knowledge of the Borrower, threatened against the Borrower or any System or, to the knowledge of the Borrower, any Environmental Affiliate, that (i) could result in liability for the Borrower in an amount greater than [***] for any single claim or [***] for all such claims during any twelve-month period or (ii) otherwise could reasonably be expected to have a Material Adverse Effect.

(d)    To the knowledge of the Borrower, there are no present or past actions, activities, circumstances, conditions, events or incidents, including the Release, presence or

[***] Confidential Treatment Requested

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disposal of any Material of Environmental Concern, that could reasonably be expected to form the basis of any Environmental Claim against the Borrower or any Environmental Affiliate that (i) could result in liability for the Borrower in an amount greater than [***] for any single claim or [***] for all such claims during any twelve-month period for all such claims during any twelve-month period or (ii) otherwise could reasonably be expected to have a Material Adverse Effect.

(e)    Without in any way limiting the generality of the foregoing, (i) there are no on-site or off-site locations in which the Borrower or, to the knowledge of Borrower, any other Environmental Affiliate has stored, disposed or arranged for the disposal of Materials of Environmental Concern that could reasonably be expected to form the basis of a material Environmental Claim against the Borrower, (ii) to Borrower’s knowledge, there are no underground storage tanks located on property owned or leased by the Borrower, and (iii) no polychlorinated biphenyls (PCBs) are or will be used or stored by the Borrower at any property owned or leased by the Borrower, except in such form, condition and quantity as could not reasonably be expected to result in a material Environmental Claim against the Borrower.

(f)    The Borrower has not received any letter or request for information under Section 104 of the CERCLA, or comparable state laws, and to the knowledge of the Borrower, none of the operations of the Borrower is the subject of any investigation or proceeding by a Governmental Authority relating to a Release or Threat of Release of any Material of Environmental Concern at the Systems or at any other location, including any location to which the Borrower has transported, or arranged for the transportation of, any Material of Environmental Concern with respect to the Systems. None of the Borrower or any of the Environmental Affiliates has transported, disposed, released or arranged for the transport, disposal , or release of any Materials of Environmental Concern to any landfill or disposal site that to the knowledge of Borrower (i) has ever been listed or is proposed to be listed on the federal National Priorities List, State equivalent list or local equivalent list; (ii) has been subject to Federal information requests under Section 104(e) of CERCLA or Section 3007(a) of RCRA or, state or local equivalent requests; or (iii) is in bankruptcy or financial insolvency; and any such transport, disposal or release arranged by Borrower or any of the Environmental Affiliates shall be conducted by an unaffiliated licensed third party in accordance with approved chain of custody procedures. No action, proceeding, or claim exists or to the knowledge of Borrower is threatened against any such landfill or disposal site with respect to any transfer or release of Materials of Environmental Concern which could reasonably be expected to subject the Borrower or any of the Environmental Affiliates to material liability. Except as disclosed in Schedule Section 5.19, to the knowledge of the Borrower, all such landfill or disposal sites are in compliance in all material respects with Environmental Laws.

Section 5.20    Regulations T, U and X.    The Borrower is not engaged in the business of extending credit for the purpose of purchasing or carrying margin stock, and no proceeds of any Loan will be used for any purpose that violates, or would be inconsistent with, Regulations T, U or X of the Board of Governors. Terms for which meanings are provided in such Regulations T, U or X or any regulations substituted therefor, as from time to time in effect, are used in this Section 5.20 with such meanings.

[***] Confidential Treatment Requested

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Section 5.21    Accuracy of Information.

(a)    All factual information heretofore or contemporaneously furnished by the Borrower, the Pledgor or the Parent in this Agreement, in any other Transaction Document or otherwise in writing to the Lender or any Consultant for purposes of or in connection with this Agreement and the other Financing Documents or any transaction contemplated hereby or thereby (other than projections, budgets and other “forward-looking” information that have been prepared on a reasonable basis in good faith based on assumptions believed to be reasonable at the time) is, when taken as a whole, after giving effect to any supplemental information, and as of the date such information or supplemental information is furnished, true and accurate in all material respects; and such information or supplemental information is not, when taken as a whole, after giving effect to any supplemental information, as of the date such information or supplemental information is furnished, incomplete by omitting to state any material fact necessary to make such information not misleading in light of the circumstances.

(b)    The assumptions, formulas and methodology constituting the basis on which the Borrower prepared the Financial Models and Operating Budgets that are in effect on the Closing Date and the Effective Date, and the numbers set forth therein, were developed and consistently utilized in good faith, are reasonable, and represent the Borrower’s best estimate as of the date prepared as to the matters contained therein, based on all information known to the Borrower.

Section 5.22    Indebtedness. The Obligations are, after giving effect to the Financing Documents and the transactions contemplated thereby, the only outstanding Indebtedness of the Borrower other than Permitted Indebtedness. The Obligations rank senior to all other Indebtedness of the Borrower (other than Permitted Indebtedness, with respect to which the Obligations will rank at least pari passu).

Section 5.23    Separateness.

(a)    The Borrower maintains bank accounts and books of account that are separate from those of the Pledgor, the Parent and any Affiliate of the Parent. The liabilities of the Borrower are readily distinguishable from the liabilities of the Pledgor, the Parent and any Affiliate of the Parent.

(b)    The Borrower conducts its business solely in its own name in a manner that would not be misleading to reasonable Persons as to its identity.

Section 5.24    LLC Agreement of the Borrower. On and after the Effective Date, the LLC Agreement of the Borrower shall be in effect.

Section 5.25    Subsidiaries. The Borrower has no Subsidiaries.

Section 5.26    Foreign Assets Control Regulations, Etc.

(a)    The use of the proceeds of the Loan by the Borrower will not violate the Trading with the Enemy Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 C.F.R., Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto.

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(b)    Neither the Borrower nor the Parent:

(i) is and no such Person will become a Person or entity described by Section 1 of Executive Order 13224 of September 24, 2001 Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism (12 C.F.R. 595), and neither the Borrower nor the Parent engages in dealings or transactions with any such Persons or entities; or

(ii) is in violation of the Patriot Act.

Section 5.27    Legal Name and Place of Business.

(a)    The exact legal name and jurisdiction of formation of the Borrower is: 2013B ESA Project Company, LLC, a limited liability company organized and existing under the laws of Delaware, and the Borrower has not had any other legal names in the previous five (5) years.

(b)    The principal place of business and chief executive office of the Borrower is in care of 1299 Orleans Drive, Sunnyvale, CA 94089.

Section 5.28    No Brokers. The Borrower does not have any obligation to pay any finder’s, advisory, broker’s or investment banking fee, except for customary fees for legal advisors, accountants and engineering advisors and any fees payable pursuant to Section 3.10 (Fees).

Section 5.29    Insurance. All insurance required to be obtained and maintained pursuant to the Transaction Documents by the Borrower is in full force and effect as of each date this representation is made or deemed repeated and complies with the insurance requirements set forth on Schedule 7.01(h). All premiums then due and payable on all such insurance have been paid. To the knowledge of the Borrower, all insurance required to be obtained and maintained by any Major Project Party with respect to the Systems to protect, directly or indirectly, against loss or liability to the Borrower, the Systems or the Lender, as of the date this representation is made or deemed repeated, pursuant to any Project Document has been obtained, is in full force and effect and complies with the insurance requirements set forth on Schedule 7.01(h) and is otherwise in all material respects in accordance with such Project Document.

Section 5.30    Accounts. The Borrower does not have, and is not the beneficiary of, any bank account other than the Project Accounts.

Section 5.31    Public Utility Status. The Borrower is not, nor by reason of the ownership or operation of any System or any other transaction contemplated by the Transaction Documents will be, subject to financial, organizational or rate regulation as an “electric utility,” “electric utility company,” “electric corporation,” “electrical company,” “public utility,” “public service corporation,” “gas utility,” “natural gas company” (transporting gas in interstate commerce), “public service company,” “public utility holding company,” “electric utility holding company,” “holding company,” or “subsidiary company” of a holding company; or other similar entity, or a subsidiary or affiliate of any of the foregoing, under any Law; provided, however, that (i) it shall

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not constitute a Default of any kind hereunder for (A) the Borrower to be a “qualifying small power producer” which operates or controls a “qualifying small power production facility,” as those terms are defined under Section 3 of the Federal Power Act, as amended, and the regulations thereunder; or (B) the Borrower to receive authorization under applicable law to sell its electrical output and become subject to applicable regulatory requirements with an applicable exemption from utility regulation, howsoever defined, as provided for in and under 18 C.F.R. 292.601(c), 292.602(b) and 292.602(c).

ARTICLE VI

CONDITIONS PRECEDENT

Section 6.01    Conditions to Closing.    The availability of the Loan Commitment and the occurrence of the Closing Date are subject to the fulfillment or waiver of each of the following conditions precedent, each of which the Borrower and the Lender agree and acknowledge were satisfied on or prior to the Closing Date:

(a)    Delivery of Certain Documents.    The Lender shall have received each of the following fully executed documents on and as of the Closing Date, each of which shall be, except as noted below, originals or portable document format (“pdf”) or facsimiles (in each case followed promptly by originals), duly executed and delivered by each party thereto and in form and substance reasonably satisfactory to the Lender:

(i) the Original Credit Agreement;

(ii) the Accounts Agreement;

(iii) the other Security Documents;

(iv) the Warrant Agreement;

(v) the Warrant Side Letter; and

(vi) the Major Project Documents in effect on the Closing Date.

(b)    Note.    The Lender shall have received a Note payable to the Lender, dated as of the Closing Date and in the amount of the Loan Commitment. The Note shall be duly executed by the Borrower and otherwise comply with the provisions of Section 2.04 (Evidence of Indebtedness).

(c)    Bank Regulatory Requirements.    The Lender and the Accounts Bank shall have received all documentation and other information requested by them and required by bank regulatory authorities under applicable “know your customer” and anti-money-laundering rules and regulations, including the Patriot Act.

(d)    [Intentionally Omitted].

(e)    Financial Model; Operating Budget.    The Lender shall have received a duly executed certificate of a Financial Officer of the Borrower, dated as of the Closing Date and

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on which the Lender may conclusively rely, certifying that the assumptions constituting the basis on which the Borrower prepared the Financial Models and the Operating Budgets that are in effect on such date, and the figures set forth therein, were developed and consistently utilized in good faith, are reasonable and represent the Borrower’s best estimate as of the Closing Date as to the matters contained therein, based on all information known to the Borrower. Such assumptions and figures shall have been approved by the Lender, in consultation with the Independent Engineer, and shall incorporate such material terms and conditions imposed by the Project Documents as would be expected in accordance therewith.

(f)    Project Documents.    The Lender shall have received true, correct and complete copies of each Project Document that is in effect as of the Closing Date, each of which shall be in form and substance reasonably satisfactory to the Lender, in consultation with the Independent Engineer.

(g)    Officer’s Certificates.    The Lender shall have received the following certificates, dated as of the Closing Date, upon which the Lender may conclusively rely:

(i) a duly executed certificate of an Authorized Officer of the Borrower certifying, on behalf of the Borrower that (A) all conditions set forth in this Section 6.01 (Conditions to Closing) capable of being satisfied by the Loan Parties have been satisfied on and as of the Closing Date; and (B) all representations and warranties made by the Borrower in this Agreement and each other Financing Document to which the Borrower is a party were true and correct on and as of the Closing Date (except with respect to representations and warranties that expressly refer only to an earlier date);

(ii) a duly executed certificate of an Authorized Officer of the Borrower certifying, on behalf of the Borrower that (A) the list set forth in Part A of Schedule 5.11 is a true, correct and complete list of all Contracts to which the Borrower was a party as of the Closing Date other than any Immaterial Contracts; (B) the Contracts to which the Borrower is a party have been delivered in accordance with Section 6.01(f) (Conditions to Closing – Project Documents); (C) the copies of each Project Document or other document delivered pursuant to Section 6.01(f) (Conditions to Closing – Project Documents) are true, correct and complete copies of such document; (D) each such Project Document or other document is in full force and effect and no term or condition of any such Project Document or other document has been amended from the form thereof delivered to the Lender; (E) each of the conditions precedent set forth in each Project Document or other document delivered pursuant to Section 6.01(f) (Conditions to Closing – Project Documents) that is required to be satisfied on or before the Closing Date has been satisfied or waived by the parties thereto and copies of any such written waivers have been provided to the

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Lender; provided, that the Borrower shall obtain the Lender’s written consent prior to its waiver of any conditions precedent set forth in the LTSA or ASA; provided, further, that the Borrower shall obtain the Lender’s written consent prior to its waiver of any condition precedent adverse to the interests of the Lender set forth in any other Project Document; and (F) no material breach, material default or material violation by the Borrower, or to the knowledge of the Borrower, without any inquiry, by any Project Party under any such Project Document or other document has occurred and is continuing; and

(iii) a duly executed certificate of an Authorized Officer of the Parent certifying that all representations and warranties made by the Parent or the Pledgor in any Financing Document or Project Document to which such Person is a party were true and correct on and as of the Closing Date and are true and correct on and as of the Closing Date (except with respect to representations and warranties that expressly refer only to an earlier date).

(h)     Third Party Approvals.    The Lender shall have received documentation, reasonably acceptable to the Lender, of any approval by any Person required in connection with the authorization, execution, delivery or performance of this Agreement or any other Financing Document, including (x) the consents and approvals identified in Section 5.02(e) (Due Authorization; Non-Contravention) and (y) Consents from the Parent and any other Affiliate of the Parent that is a party to any Project Documents as of the Closing Date.

(i)    Resolutions, Incumbency, Organic Documents.    The Lender shall have received from each of the Borrower, the Parent, and the Pledgor, a duly executed certificate of an Authorized Officer of such Person dated as of the Closing Date, upon which the Lender may conclusively rely, which shall:

(i) certify the incumbency and signatures of those of its officers and representatives duly authorized to execute and otherwise act with respect to each Transaction Document to which it is (or is anticipated to be) a party;

(ii) attach satisfactory resolutions of such Person’s members, managers or directors, as the case may be, authorizing the execution, delivery and performance of each Transaction Document to which it is (or is anticipated to be) a party and the consummation of the transactions contemplated therein;

(iii) attach such Person’s Organic Documents, which shall be in form and substance reasonably satisfactory to the Lender, and, in the case of the Borrower, shall include the Required LLC Provisions; and

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(iv) certify that the copies of documents provided pursuant to parts (ii) and (iii) of this Section 6.01(a)(i) (Conditions to Closing – Resolutions, Incumbency, Organic Documents) are true, correct, complete, are in full force and effect and have not been amended, supplemented or otherwise modified.

(j)    Authority to Conduct Business.    The Lender shall have received satisfactory evidence, including certificates of good standing from the Secretaries of State of each relevant jurisdiction, dated no more than five (5) Business Days (or such other time period reasonably acceptable to the Lender) prior to the Closing Date, that:

(i) the Borrower is duly authorized as a limited liability company to carry on its business, and is duly formed, validly existing and in good standing in each jurisdiction in which it is required to be so authorized; and

(ii) each of the Parent and the Pledgor is duly authorized as a limited liability company to carry on its business, and is duly organized, validly existing and in good standing in each jurisdiction in which it is required to be so authorized.

(k)    Opinions of Counsel.    The Lender shall have received legal opinions from counsel to the Loan Parties, each addressed to the Lender and in form and substance reasonably satisfactory to the Lender.

(l)    Lien Search; Perfection.    The Lender shall have been granted a first-priority perfected security interest in all Collateral in which a first priority security interest can be perfected by possession or by filings under the UCC, including all Equity Interests in the Borrower, and substantially all of the assets relating to the Borrower and the Portfolio, and the Lender shall have copies or evidence, as the case may be, satisfactory to the Lender, of the following actions in connection with the perfection of the Liens:

(i) completed requests for information or lien search reports, dated no more than ten (10) days (or such other time period reasonably acceptable to the Lender) before the Closing Date, listing all effective UCC financing statements, fixture filings or other filings evidencing a security interest filed in the applicable Person’s jurisdiction of formation, the state of the Borrower’s location and the state of each System’s location and any other jurisdictions reasonably requested by the Lender that name the Borrower or the Pledgor as a debtor, together with copies of each such UCC financing statement, fixture filing or other filings, which shall show no Liens other than Permitted Liens;

(ii) UCC financing statements and other filings and recordations, in proper form for filing in all jurisdictions that the Lender deems necessary or desirable in order to perfect and protect the

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first-priority Liens and security interests created under the Security Documents, and each such UCC financing statement and other filing or recordation shall be duly filed on the Closing Date or promptly thereafter, and in any case prior to the Closing Date;

(iii) the original certificates representing all Equity Interests in the Borrower shall have been delivered to the Lender, together with a duly executed irrevocable proxy and a duly executed transfer power in the forms attached to the Pledge Agreement relating to such Equity Interests; and

(iv) evidence of all other actions, recordings and filings of or with respect to the Security Documents that the Lender reasonably deems necessary or desirable in order to perfect and protect the Liens created thereunder and to ensure that all such Liens are first-priority Liens (except as otherwise permitted under the Financing Documents).

(m)    Financial Statements.    The Lender shall have received accurate and complete copies of (i) the audited balance sheets and income and cash flow statements of the Parent as of and for the most recently ended Fiscal Year, (ii) the unaudited balance sheets of the Parent as of the most recently ended Fiscal Quarter, and (iii) the pro forma balance sheet of the Borrower as of the Closing Date giving effect to the transactions contemplated hereby.

(n)     Fees; Expenses.    The Lender shall have received all Fees due and payable on the Closing Date pursuant to Section 3.10 (Fees), and all costs and expenses for which the Borrower is responsible under Section 9.06 (Costs and Expenses) and for which invoices have been presented.

(o)     Establishment of Project Accounts.    Each of the Project Accounts shall have been established.

(p)    Insurance.    The Lender shall have received:

(i) satisfactory evidence that the insurance requirements (including environmental insurance requirements) set forth on Schedule 7.01(h) have been satisfied with respect to the Borrower, including binders or certificates evidencing the commitment of insurers to provide each insurance policy required by Schedule 7.01(h), evidence of the payment of all premiums then due and owing in respect of such insurance policies and a duly executed certificate of the Borrower’s insurance broker (or insurance carrier) evidencing that all such insurance policies are in full force and effect; and

(ii) a report from the Insurance Consultant in form and substance reasonably satisfactory to the Lender, discussing, among other matters that the Lender may require, the adequacy of the insurance coverage for the Systems.

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(q)    Independent Engineer’s Report.    The Lender shall have received a report of the Independent Engineer, which shall be in form and substance reasonably satisfactory to the Lender.

(r)    Representations and Warranties.    All representations and warranties of the Loan Parties contained in the Financing Documents shall be true and correct in all respects as of the Closing Date (except with respect to representations and warranties that expressly refer only to an earlier date).

Section 6.02    Conditions to Funding of any System.    The Funding for Loans with respect to any System is subject to the satisfaction of each of the following conditions precedent:

(a)    Satisfaction of Previously Waived Conditions.    Any conditions set forth in Section 6.02 (Conditions to Funding of any System) that were waived on the Effective Date or subsequent Funding Dates shall be met to the satisfaction of the Lender, except as otherwise provided in such waiver(s).

(b)    LTSA Invoice; Bill of Sale; Lien Waivers.    The Lender shall have received copies of (i) the purchase order and invoice(s) for the Purchase Price, (ii) a Bill of Sale and (iii) (A) conditional lien waivers from Parent and from each subcontractor retained by Parent performing BOF Work at the applicable Site with respect to the System(s) for which the Loan is to be applied and (B) absolute, irrevocable and unconditional sworn lien waivers from Parent and from each subcontractor retained by Parent performing BOF Work at the applicable Site with respect to the System(s) that are the subject to the last Funding, accompanied by a duly executed certificate by an Authorized Officer of the Borrower, upon which the Lender may conclusively rely, stating that such copies are true, correct, complete and in full force and effect.

(c)    Commencement of Operations.    The System(s) for which the Loan is requested has achieved Commencement of Operations, and the Lender shall have received from the Parent and the Independent Engineer duly completed Completion Certificates certifying that the System(s) for which the Loan is requested has achieved Commencement of Operations.

(d)    Equity Contributions.    The Lender shall have received satisfactory evidence that the Required Equity Contribution with respect to the relevant System(s) has been funded and disposed of in accordance with the Equity Funding Agreement and the Pledgor LLC Agreement, and that all conditions to the True Up Funding Date under, and as defined in, the Equity Funding Agreement have been satisfied with respect to the relevant System(s).

(e)    Delivery of Certain Documents.    The Lender shall have received each of the following fully executed documents, each of which shall be, except as noted below, originals or portable document format (“pdf”) or facsimiles (in each case, followed promptly by originals), duly executed and delivered by each party thereto:

(i) a Funding Notice, duly executed by the Borrower, as required by and in accordance with Section 2.02 (Notice of Fundings).

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(ii) all Deferred Contracts with respect to the relevant System(s), which shall be in form and substance reasonably acceptable to the Lender, taking into consideration the assumptions in the Financial Models delivered by Borrower on the Closing Date or such later date in accordance with the terms of the Credit Agreement;

(iii) (A) all Deferred Approvals provided to the Independent Engineer pursuant to the LTSA with respect to the System(s) for which the Loan is to be applied and (B) a copy of (x) the results of interconnection testing conducted and (y) the related permission to operate documentation, in each case, with respect to the relevant System(s) in accordance with the requirements of the relevant interconnecting utility;

(iv) all Required Consents with respect to the relevant System(s) in form and substance reasonably satisfactory to the Lender;

(v) [Intentionally Omitted];

(vi) such updates to the Security Documents (including Consents that are being assigned to the Lender and that relate to the Systems that are the subject of the applicable Funding), lien search reports, UCC financing statements and other recordings and filings referenced in Section 6.01(m) (Conditions to Closing - Lien Search; Perfection) as are requested by the Lender, including such documents as are reasonably necessary or advisable to ensure the continued perfection of a first-priority security interest in substantially all assets of the Borrower in which a first priority security interest can be perfected by possession or by filings under the UCC;

(vii) Rate Contracts, including in connection with the Effective Date a duly executed ISDA Schedule and related master agreement, evidencing the Borrower’s compliance with its obligations contained in Section 7.01(t) (Affirmative Covenants – Rate Contracts);

(viii) (A) the Credit Protection Insurance Policy in the form attached hereto as Exhibit D (which shall be delivered on or prior to the first Funding Date together with applicable letters from the Authorized Representative of the Credit Protection Insurer and a power of attorney by Borrower in favor of Lender), (B) written confirmation from either the Credit Protection Insurer or the Authorized Representative of Credit Protection Insurer of (x) payment of all premiums then due and payable in connection with the Credit Protection Insurance Policy, including with respect to the Systems that are the subject of the Funding, (y) satisfaction of all conditions precedent relating to the effectiveness of the Credit Protection

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Insurance Policy with respect to the Systems that are the subject of the Funding, and (C) receipt of a certification by the Independent Engineer that the Systems that are the subject of the Funding have achieved Commencement of Operations;

(ix) an Interconnection Notice, duly executed by the Borrower, as required by and in accordance with Section 2.4 of the Offtake Agreements;

(x) with respect to a Funding for a System to be installed at the Site located at [***] a written notice, duly executed by Pacific Bell Telephone Company, waiving its right to opt out of the obligation to permit such System to be installed;

(xi) on or prior to the Effective Date, the LLC Agreement of the Borrower and the Pledgor LLC Agreement; and

(xii) on or prior to the Effective Date, this Agreement, the Interparty Agreement, the Termination Agreement, the Assignment and Assumption Agreement, the PPA Amendments and the PPA Acknowledgement.

(f)    Borrower’s Certifications.    The Lender shall have received a duly executed certificate, in the form attached hereto as Exhibit J, upon which the Lender may conclusively rely, of an Authorized Officer of the Borrower (which certification may be contained in the relevant Funding Notice) certifying on behalf of the Borrower that:

(i) the Borrower is in compliance with all applicable conditions set forth in this Article VI on and as of the proposed Funding Date, before and after giving effect to such Funding or issuance and to the application of the proceeds from any such Funding;

(ii) all representations and warranties made by the Borrower and each other Affiliate of the Parent that is a party to any Financing Document, in this Agreement and each of the Financing Documents to which such Person is a party are true and correct in all material respects (except with regard to representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) on and as of such Funding Date (except with respect to representations and warranties that expressly refer only to an earlier date), before and after giving effect to such Funding and to the application of the proceeds from any such Funding;

(iii) all representations and warranties made by the Borrower in the Credit Protection Insurance Policy are true and correct in all respects on and as of such Funding Date (except with respect to

[***] Confidential Treatment Requested

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representations and warranties that expressly refer only to an earlier date), before and after giving effect to such Funding and to the application of the proceeds from any such Funding;

(iv) no Event of Default (or Default with respect to the System for which Funding is then requested or any other System that is the subject of an outstanding Loan or for which a Funding Notice is then pending) has occurred and is continuing, or would result from such Funding;

(v) since the Closing Date, there has been no event or occurrence that has had, or would reasonably be expected to have, a Material Adverse Effect which is continuing; and

(vi) there are no mechanic’s, workmen’s, materialmen’s, construction or other like Liens encumbering the Collateral (other than Permitted Liens).

(g)    Reserve Accounts and Deposits.    The Debt Service Reserve Account shall have been funded (or will be funded with Loan proceeds) in an amount equal to the Debt Service Reserve Required Amount (taking into account the requested Loans), the Maintenance Reserve Account shall have been funded in accordance with the Pledgor LLC Agreement with respect to the System(s) that are the subject of the Funding and the Revenue Account shall have been funded with the Prepaid Expenses applicable to the System(s) that are the subject of the Funding; provided, that the Maintenance Reserve Account does not have to be funded with the initial deposit applicable to the Systems that are the subject of the Funding in the event that the Borrower has provided the Lender a certified copy of the Equity Funding Agreement, Pledgor LLC Agreement or other documentation evidencing the removal of the obligation upon the Borrower to fund such Maintenance Reserve Account. All other Project Accounts shall continue to be maintained in accordance with this Agreement and the Accounts Agreement and shall contain all amounts required to be deposited therein as of the applicable Funding Date.

(h)    Security.    The Lender shall have received such evidence requested by it that (i) the Lender continues to have a perfected first priority security interest in all right, title and interest of the Borrower and the Pledgor in and to the Collateral in which a first priority security interest can be perfected by possession or by filings under the UCC prior to all other Liens thereon and subject only to Permitted Liens, and (ii) all Governmental Approvals that are necessary or desirable in order to establish, protect, preserve and perfect the Lender’s Liens with respect to Collateral in which a security interest can be perfected by possession or by making filings under the UCC have been duly made or taken and are in full force and effect.

(i)    Additional Project Documents.    An Authorized Officer of the Borrower shall have certified that the Borrower has provided to the Lender copies of any Additional Project Document (including any Project Documents required to be executed on or before the date of such Funding Notice in accordance with Section 6.02(d)(i) (Conditions to Funding of any System – Delivery of Certain Documents)), entered into by the Borrower since the Closing Date or the last Funding, as applicable, together with all amendments, supplements, schedules and

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exhibits thereto and the Ancillary Documents relating thereto, each of which (i) shall have been duly authorized, executed and delivered by each Person party thereto, and (ii) shall be in full force and effect.

(j)    Insurance.    A duly executed certificate of the Insurance Consultant, dated as of the Effective Date, substantially in the form of Exhibit E, which certificate shall be appropriately completed to the satisfaction of the Lender.

(k)    Governmental Approvals.    The Lender shall have received copies of all Necessary Approvals (including all Deferred Approvals) obtained since the Closing Date or the last Funding, as applicable.

(l)    Legal Opinions.    The Lender shall have received legal opinions from counsel to the Loan Parties, each addressed to the Lender and in form and substance reasonably satisfactory to the Lender, addressing those matters relating to the Systems, the Transaction Documents and the transactions contemplated therein, and the Collateral, as the Lender may reasonably request following the occurrence of a material change in (i) circumstances with respect to the Systems, the Transaction Documents (including the delivery of new Transaction Documents) and the transactions contemplated therein or (ii) Law.

(m)    No Default or Event of Default.    No Event of Default (or Default with respect to the System for which Funding is then requested or any other System that is the subject of an outstanding Loan or for which a Funding Notice is then pending) has occurred and is continuing, or would result from, such Funding.

(n)    Abandonment, Taking, Total Loss.    (i) No Event of Abandonment shall have occurred and be continuing with respect to any System, (ii) no Event of Total Loss shall have occurred and be continuing with respect to the System for which Funding is then requested unless a Restoration or Replacement Plan for such System shall have been approved by the Lender, in consultation with the Independent Engineer, in accordance with the Accounts Agreement related to such Event of Total Loss, (iii) no Event of Total Loss shall have occurred and be continuing with respect to more than three (3) of the other Systems, (iv) no Event of Taking relating to any Equity Interests in the Borrower shall have occurred and be continuing, and (v) no Event of Taking with respect to a material part of any System shall have occurred and be continuing.

(o)    Fees; Expenses.    The Lender shall have received all Fees due and payable as of the Effective Date or the date of such Funding, as applicable, pursuant to Section 3.10 (Fees), and all costs and expenses for which the Borrower is responsible under Article IV (LIBO Rate and Tax Provisions) and Section 9.06 (Costs and Expenses) or otherwise hereunder and for which invoices have been presented.

(p)    Satisfactory Legal Form.     All documents executed or submitted in accordance with this Article VI by or on behalf of the Borrower or any other Project Party shall, with respect to a Funding, be reasonably satisfactory in form and substance to the Lender.

(q)    Material Adverse Effect.    Since the Closing Date, no Material Adverse Effect shall have occurred and be continuing.

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(r)    Representations and Warranties.    All representations and warranties of the Loan Parties contained in the Financing Documents shall be true and correct in all material respects (except with regard to representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the Effective Date or the relevant Funding Date (except with respect to representations and warranties that expressly refer only to an earlier date), as applicable, before and after giving effect to the Funding and to the application of proceeds from any Funding.

(s)    Funding and Portfolio Ratio.    The ratio of the outstanding principal amount of Loans (after giving effect to the requested Funding) to the Loan Commitment does not exceed the ratio of the aggregate nameplate capacity of all Systems that have been Funded to 6.1 MW (representing the projected aggregate nameplate capacity of the Portfolio as of the Closing Date).

(t)    Update to Financial Model.    The Lender shall have received a duly executed certificate of a Financial Officer of the Borrower, dated as of the Effective Date and on which the Lender may conclusively rely, attaching (i) updated Financial Models that employ the methodology used in the Financial Models delivered by Borrower on the Closing Date, with no change in the assumptions set forth in such Financial Models, except to reflect an update to the effective interest rate paid by the Borrower on Loans pursuant to the Rate Contracts and a related update to the Prepaid Expenses, such that the ratio of Contracted Cash Flow to Debt Service for each Fiscal Quarter (assuming a fully amortizing loan with a final maturity date fifty-eight (58) Quarterly Payment Dates after the Date Certain) will be no less than [***] and (ii) a corresponding update to Schedule 1 of the Accounts Agreement.

(u)    Organic Documents.    With respect to the Funding on the Effective Date, the Lender shall have received from each of the Borrower and the Pledgor, a duly executed certificate of an Authorized Officer of such Person dated as of the Effective Date, upon which the Lender may conclusively rely, which shall attach such Person’s Organic Documents, which shall be in form and substance reasonably satisfactory to the Lender, and, in the case of the Borrower, shall include the Required LLC Provisions, and certify that the copies of documents provided pursuant to this Section 6.01(a)(i) (Conditions to Funding of Any System – Organic Documents) are true, correct, complete, are in full force and effect and have not been amended, supplemented or otherwise modified.

ARTICLE VII

COVENANTS

Section 7.01    Affirmative Covenants.    The Borrower agrees that, until the Discharge Date, the Borrower will perform the obligations set forth in this Section 7.01 (Affirmative Covenants).

(a)    Compliance with Laws.    The Borrower shall comply with all Laws applicable to it or to its business or property, except (other than with respect to Environmental Laws, exceptions for which are covered in Section 7.01(b) Affirmative Covenants –Environmental Matters) for such non-compliance which has not had and could not reasonably be expected to have a Material Adverse Effect.

[***] Confidential Treatment Requested

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(b)    Environmental Matters.    The Borrower shall (A) comply in all material respects with all Environmental Laws, (B) pay or cause to be paid when due and payable by the Borrower any and all costs required of the Borrower in connection with any Environmental Laws, including the cost of identifying the nature and extent of the presence of any Materials of Environmental Concern in, on or about the Systems or on any real property owned or leased by the Borrower, and the cost of delineation, management, remediation, removal, treatment and disposal of any such Materials of Environmental Concern, provided, that nothing in this Section 7.01(b) is intended to prevent the Borrower from diligently disputing, in good faith, that the payment of any such costs is required of the Borrower, and (C) use its commercially reasonable efforts to ensure that no Environmental Affiliate takes any action or violates any Environmental Law that could reasonably be expected to result in an Environmental Claim that could result in liability for the Borrower in an amount greater than fifty thousand Dollars ($50,000) for any single claim or one hundred thousand Dollars ($100,000) for all such claims in a twelve (12) month period or could otherwise reasonably be expected to have a Material Adverse Effect.

(c)    Operation of Systems.    The Borrower shall own, construct, operate and maintain (or cause to be operated and maintained by the Parent or an Affiliate of the Parent) the Systems in all material respects in accordance with (i) the terms and provisions of the Transaction Documents (including the Credit Protection Insurance Policy), (ii) all applicable Governmental Approvals and Laws and (iii) Prudent Operating Practice. For the avoidance of doubt, any System that is replaced with a model other than a Bloom Energy Corporation model ES-5700 must comply with the system replacement process pursuant to Section 5 of the Credit Protection Insurance Policy and Credit Protection Insurer must notify Lender that such replaced System is covered by the Credit Protection Insurance Policy.

(d)    Maintenance of Properties.

(i) The Borrower shall keep, or cause to be kept, in good working order and condition, ordinary wear and tear excepted, all of its properties and equipment related to the Systems that are necessary or useful in the proper conduct of its business.

(ii) The Borrower shall not permit any of the Systems or any material portion thereof to be removed from the relevant Site or demolished, unless (A) such System is the subject of a System Severance pursuant to Section 3.12 (System Severance) or (B) such material portion that has been removed or demolished has been replaced or repaired as permitted under this Agreement; provided, that upon the occurrence of an Event of Default, so long as Lender has not foreclosed upon the membership interests of the Borrower, the Borrower shall remove the System(s) from the relevant Site at the written request of the Lender.

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(iii) The Borrower shall continue to engage in business of the same type as now conducted by it and do or cause to be done all things necessary to preserve and keep in full force and effect (A) its limited liability company existence and good standing in its respective jurisdiction of formation and (B) its material patents, trademarks, trade names, copyrights, franchises, licenses and similar rights, loss of which could reasonably be expected to have a Material Adverse Effect.

(e)    Payment of Obligations.    The Borrower shall pay and discharge as the same shall become due and payable all of its obligations and liabilities, including (i) all tax liabilities, assessments and governmental charges or levies upon it or its properties or assets, unless the same (A) are subject to a Contest or (B) are immaterial Taxes in an aggregate amount not in excess of fifty thousand Dollars ($50,000) at any one time outstanding (taking into account any interest and penalties that could accrue or be applicable to such past-due Taxes), and provided, that such Taxes are no more than forty-five (45) days past due, (ii) all of its obligations and liabilities under its Contractual Obligations and (iii) all lawful claims that, if unpaid, would by law become a Lien upon its properties (other than Permitted Liens), unless the same are subject to a Contest.

(f)    Governmental Approvals.    The Borrower shall maintain in full force and effect, in the name of the Borrower, all material Governmental Approvals required by Law, including all Necessary Approvals set forth herein, and shall obtain all Deferred Approvals (all of which shall be reasonably satisfactory to the Lender) prior to the time such Approvals are required to be obtained hereunder, but in any event no later than the date required to be obtained under applicable Law (other than any such failure to maintain or obtain that could not reasonably be expected to have a Material Adverse Effect on the Borrower).

(g)    Use of Proceeds and Cash Flow.

(i) All proceeds of the Loans shall be applied in accordance with Section 2.02(b) (Loans - Proceeds) and, to the extent not inconsistent therewith, in accordance with the Funding Notice pursuant to which such Loans were funded.

(ii) The Borrower shall cause (x) all Cash Flow, and (y) any Insurance Proceeds, Condemnation Proceeds or other Extraordinary Proceeds received by it to be deposited and applied in accordance with the Accounts Agreement.

(h)    Insurance.    Without cost to the Lender, the Borrower shall at all times obtain and maintain, or cause to be obtained and maintained, the types and amounts of insurance (including environmental insurance requirements) listed and described on Schedule 7.01(h) in accordance with the terms and provisions set forth therein for the Systems and the Borrower, and shall obtain and maintain such other insurance as may be required pursuant to the terms of any Transaction Document (including any Major Project Document). Borrower shall cause each such insurance to be in place prior to the date required, and each required insurance policy shall

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be renewed or replaced no less than thirty (30) days prior to the expiration thereof. In the event the Borrower fails to take out or maintain the full insurance coverage required by this Section 7.01(h) (Affirmative Covenants – Insurance), the Lender may (but shall not be obligated to), after three (3) days’ written notice to the Borrower (unless such insurance would lapse during such notice period) take out the required policies of insurance and pay the premiums on the same, in which event the Lender shall promptly notify the Borrower of the same. All amounts so advanced by the Lender shall become an Obligation, and the Borrower shall forthwith pay such amounts to the Lender, together with interest from the date of payment by the Lender at the Default Rate.

(i)    Books and Records; Inspections.    The Borrower shall keep proper books of record and account in which complete, true and accurate entries in material conformity with GAAP and all requirements of Law shall be made of all financial transactions and matters involving the assets and business of the Borrower, and shall maintain such books of record and account in material conformity with applicable requirements of any Governmental Authority having regulatory jurisdiction over the Borrower. Except as contemplated by the Accounts Agreement, the Borrower shall keep its books and records separate from the books and records of any other Person (including any Affiliates of the Borrower) that accurately reflect in all material respects all of its business affairs, transactions and the documents and other instruments that underlie or authorize all of its limited liability company actions. The Borrower shall permit officers and designated representatives of the Lender and the Consultants to visit and inspect any of the properties of the Borrower (including its chief executive office, principal place of business, the Systems and the Sites, in each case subject to any restrictions contained in any related Leases), to examine its limited liability company, financial and operating records, and make copies thereof or abstracts therefrom, and to discuss its affairs, finances and accounts with its members, managers, directors, officers and independent public accountants and to otherwise inspect the Collateral and determine Borrower’s compliance with the Financing Documents, all at the expense of the Borrower but otherwise at the risk of Lender (provided, that so long as no Event of Default has occurred and is continuing, such visits or inspections shall be at the expense of the Borrower only once per fiscal year; otherwise such visits or inspections may occur as frequently as is desired by the Lender but at the Lender’s expense) and at such reasonable times during normal business hours for any System and as often as may be reasonably desired, upon reasonable advance notice to the Borrower; provided, that if an Event of Default has occurred and is continuing, the Lender or any Consultant (or any of their respective officers or designated representatives) may do any of the foregoing at the expense of the Borrower at any time during normal business hours and without advance notice. Any officers or designated representatives of the Lender or Consultants visiting and inspecting any of the properties of the Borrower shall do so at their own risk and shall exercise appropriate caution and otherwise use all commercially reasonable efforts to avoid damage or injury to the property and facilities that they are so visiting and inspecting.

(j)    Operating Budgets.

(i) No less than thirty (30) days in advance of the beginning of each Fiscal Year, the Borrower shall provide, to the Lender, a proposed Operating Budget for the Portfolio for the ensuing Fiscal Year (including any stub period of the current Fiscal Year). Each

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Operating Budget shall be prepared in accordance with a form approved by the Lender (in consultation with the Independent Engineer) and shall become effective upon approval by the Lender (acting in consultation with the Independent Engineer), which approval shall not be unreasonably withheld, conditioned or delayed. If the Borrower does not provide an Operating Budget for the Portfolio before the beginning of the relevant Fiscal Year or any Operating Budget for the Portfolio provided by the Borrower is not accepted by the Lender before the beginning of any upcoming Fiscal Year, then, (i) the Operating Budget for the preceding year shall (after adjusting any line items in which the relevant expenses are not otherwise fixed by Contract for (A) inflation in an amount equal to the percentage increase in the United States Department of Labor Consumer Price Index, U.S. City Average, All Urban Consumers during the immediately preceding twelve (12) calendar months, and (B) expenditures for regularly scheduled (or reasonably anticipated) major maintenance of the Portfolio that was budgeted to become due, but did not become due during the prior Fiscal Year and that are due or scheduled to become due during the ensuing Fiscal Year) be deemed to be in force and effective as the annual Operating Budget for the Portfolio for such upcoming Fiscal Year until the adoption of an annual Operating Budget for the Portfolio by the Borrower and acceptance of such Operating Budget by the Lender.

(ii) Each Operating Budget for a System delivered to the Lender pursuant to this Section 7.01(j) (Affirmative Covenants – Operating Budgets) shall contain a line item for each Operating Budget Category and shall specify for each month and for each such Operating Budget Category the amount budgeted for such category for such month.

(iii) The Borrower (x) shall endeavor to operate and maintain, or cause to be operated and maintained, each System materially in accordance with its Operating Budget as in effect from time to time after Commencement of Operations thereof and (y) shall not exceed the Annual Permitted Budgeted Operating Expenses Level for all such Systems taken as a whole, except in connection with Unscheduled Maintenance Expenses permitted under the Accounts Agreement; provided, that the Borrower may propose an amendment to any Operating Budget for the Lender’s approval if at any time Borrower cannot comply with these requirements (and the Lender shall consider each such amendment in good faith and shall not unreasonably withhold its consent to the approval of any such amendment).

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(k)    Performance Test.    The Lender and the Independent Engineer have the right to witness the Performance Tests for any System and inspect the relevant System in connection therewith. In furtherance of the foregoing, the Borrower shall give the Lender and the Independent Engineer notice of each Performance Test no later than five (5) days prior to the Borrower’s plan to carry out such test. Following such test, the Borrower shall deliver to the Lender a report that indicates the preliminary opinions as to the satisfactory achievement of the applicable Performance Test (each, a “Test Report”). The Independent Engineer will review such Test Report and, thereafter, will certify in writing to the Lender, within five (5) Business Days of the receipt of such Test Report, the satisfaction of the Performance Tests or deliver a report to the Lender and the Borrower setting forth in reasonable detail any objections to, or deficiencies noted in, such Test Report. The Borrower will address such objections and correct any deficiencies promptly and to the reasonable satisfaction of the Independent Engineer.

(l)    Project Documents.

(i) The Borrower shall maintain in full force and effect, preserve, protect and defend all of its material rights under, and take all actions (including those actions reasonably required by the Lender) necessary to prevent termination or cancellation (except by expiration in accordance with its terms) of, each Project Document and the Credit Protection Insurance Policy, including such actions that are reasonably requested by the Lender so that the representations and warranties contained in Section VI of the Credit Protection Insurance Policy remain true and correct in all respects and the Borrower shall comply at all times with the obligations that relate to such representations and warranties; provided, that the Borrower may permit termination and cancellation of Project Documents or renew Project Documents, extend the time period during which Project Documents are in effect or enter into modifications to Project Documents, in each case, to the extent permitted under Section 7.02(m) (Negative Covenants – Project Documents).

(ii) The Borrower shall exercise all material rights, discretion and remedies under each Major Project Document in accordance with its terms and in a manner consistent with (and subject to) the Borrower’s obligations under the Financing Documents, including without limitation causing the Parent to repair, replace, purchase or repurchase the Systems in accordance with the LTSA. The Borrower shall exercise all rights, discretion and remedies under each Project Document that is not a Major Project Document, in accordance with its terms except as could not reasonably be expected to have a Material Adverse Effect and in a manner consistent with (and subject to) the Borrower’s obligations under the Financing Documents.

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(iii) Promptly upon execution of any Additional Project Document by the Borrower, the Borrower shall deliver to the Lender a copy of such Project Document and, if reasonably requested by the Lender, any Ancillary Documents related thereto.

(m)    Preservation of Title; Acquisition of Additional Property.

(i) The Borrower shall preserve and maintain (A) a valid easement interest to all property subject to Easements and (B) good, legal and valid title to all of its other respective material properties and assets, in each case free and clear of all Liens other than Permitted Liens, other than any properties or assets disposed of in accordance with Section 7.02(f) (Negative Covenants - Asset Dispositions).

(ii) Prior to the acquisition or lease of any additional real property interests unrelated to any Systems, the Borrower shall obtain the written consent of the Lender (which such consent shall not be unreasonably withheld, conditioned or delayed, following reasonable due diligence by the Lender and the execution and delivery of all agreements, consents, reports and similar documents as may reasonably be requested by the Lender).

(n)    Maintenance of Liens; Creation of Liens on Newly Acquired Property.

(i) The Borrower shall take or cause to be taken all actions necessary or desirable to maintain and preserve Liens on substantially all assets of the Borrower and the Equity Interests in the Borrower and the first ranking priority of such Liens in which a security interest can be perfected by possession or by making UCC filings in accordance with the Security Documents, subject to any Permitted Liens.

(ii) The Borrower shall take all actions required to cause each Additional Project Document to be or become subject to the Lien of the Security Documents (whether by amendment to any Security Document or otherwise) and shall deliver or cause to be delivered to the Lender all Ancillary Documents related thereto.

(iii) Simultaneously with the making of any investment in Cash Equivalents, the Borrower shall take or cause to be taken all actions to require such Cash Equivalent in the Project Accounts to be or become subject to a first priority perfected Lien in favor of the Lender.

(o)    Certificate of Formation.    The Borrower shall observe all of the separateness and other provisions and procedures of its certificate of formation and LLC Agreement.

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(p)    Separateness.    The Borrower shall (i) take such actions as are reasonably necessary so that the representations and warranties contained in Section 5.23 (Separateness) remain true and correct, in all material respects, until the Discharge Date, and (ii) comply at all times with the provisions of the LLC Agreement of the Borrower that relate to such representations and warranties.

(q)    Further Assurances.    Upon written request of the Lender, the Borrower shall promptly perform or cause to be performed any and all acts and execute or cause to be executed any and all documents (including UCC financing statements and UCC continuation statements):

(i) that are necessary or advisable for compliance with Section 7.01(n) (Affirmative Covenants - Maintenance of Liens; Creation of Liens on Newly Acquired Property);

(ii) for the purposes of ensuring the validity and legality of this Agreement or any other Financing Document and the rights of the Lender hereunder or thereunder; and

(iii) for the purposes of facilitating the exercise of rights and powers granted to the Lender under this Agreement or any other Financing Document, or facilitating the making of a claim under the Credit Protection Insurance Policy, whether by the Borrower or the Lender.

(r)    First Priority Ranking.    The Borrower shall cause the Obligations to constitute direct senior secured obligations of the Borrower and to rank senior in priority of payment, in right of security with respect to all or any material part of the Collateral (except for Permitted Liens that are not required hereunder to be subordinated to the Liens created under the Financing Documents) and in all other respects to all other Indebtedness of the Borrower other than Permitted Indebtedness which is permitted by this Agreement to have an equal priority.

(s)    Quarterly Calculations.

(i) Not more than three (3) Business Days prior to each Quarterly Payment Date, beginning with the first Quarterly Payment Date on or after the Date Certain, the Borrower shall provide to the Lender a calculation of the Debt Service Reserve Required Amount, certified by a Financial Officer of the Borrower.

(ii) Not more than three (3) Business Days prior to each Quarterly Payment Date, beginning with the first Quarterly Payment Date on or after the Date Certain, the Borrower shall calculate the Historical Debt Service Coverage Ratio and the Prospective Debt Service Coverage Ratio and shall provide written evidence, to the Lender, of such calculations certified by a Financial Officer of the Borrower.

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Each such calculation shall be subject to review by the Lender.

(t)    Rate Contracts.    At all times when any Loans are outstanding, the Borrower shall maintain, or cause to be maintained, in effect one or more Rate Contracts with one or more Secured Swap Providers selected by the Lender and in form and substance satisfactory to the Lender and such Secured Swap Providers, which Rate Contracts shall be Secured Rate Contracts hereunder and shall hedge the interest rate with respect to 100% of the principal amount of the Loans. The Borrower shall provide Lender with copies of all such Rate Contracts to which Lender or any Affiliate of Lender is not a party.

(u)    Reserve Accounts.    The Borrower shall ensure that (i) the Debt Service Reserve Account is fully funded at the level required on each Funding Date and thereafter remains funded in accordance with the Accounts Agreement and (ii) the Maintenance Reserve Account is fully funded at the level required on each Funding Date and thereafter remains funded in accordance with the Pledgor LLC Agreement; provided, that the Maintenance Reserve Account does not have to be funded at the level required on each Funding Date in the event that the Borrower has provided the Lender a certified copy of the Equity Funding Agreement, Pledgor LLC Agreement or other documentation evidencing the removal of the obligation of the Borrower to fund such Maintenance Reserve Account.

(v)    Equity Contributions.    The Borrower shall cause all proceeds of the Required Equity Contributions received by the Borrower to be disposed of in accordance with the Equity Funding Agreement and the Pledgor LLC Agreement related to each System on or prior to the Funding Date related to such System.

(w)    Debt Sizing.    The Borrower shall ensure that the Debt Sizing Test is satisfied on any System-Specific Discharge Date.

Section 7.02    Negative Covenants.    The Borrower agrees with the Lender that, until the Discharge Date, the Borrower will perform the obligations set forth in this Section 7.02.

(a)    Restrictions on Indebtedness.    The Borrower will not create, incur, assume or suffer to exist any Indebtedness except:

(i) the Obligations;

(ii) accounts payable to trade creditors incurred in the ordinary course of business and not more than sixty (60) days past due;

(iii) Capitalized Lease Liabilities for the rental of any real or personal property for the Systems that (A) are entered in the ordinary course of business of the Systems, and (B) either (1) are budgeted for under an Operating Budget approved in accordance with the terms of this Agreement and clearly indicated as Capitalized Lease Liabilities in such budget or (2) do not entail payments to the lessors in excess of five hundred thousand Dollars ($500,000) in the aggregate for all Systems in any one fiscal year;

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(iv) Indebtedness related to the purchase of the discrete items of personal property contemplated in Section 7.02(b)(vii); provided, that all amounts secured by such Liens are paid when due and paid in full within three (3) months of the date such Lien attaches;

(v) unsecured Indebtedness for working capital and other general corporate purposes of the Borrower that is subordinate in priority of payment to the Loans and that does not exceed, in the aggregate, five hundred thousand Dollars ($500,000) at any one time outstanding with respect to all of the Systems, to be paid solely from cash available for distributions in accordance with the tenth priority of Section 4.2(c) of the Accounts Agreement;

(vi) Indebtedness owed by the Borrower to the Parent or any Affiliate thereof that is subordinated in writing on terms satisfactory to the Lender, in its sole discretion, to be paid solely from cash available for distributions in accordance with the tenth priority of Section 4.2(c) of the Accounts Agreement; and

(vii) Indebtedness under Secured Rate Contracts contemplated in Section 7.01(t) (Rate Contracts).

(b)    Liens.    The Borrower will not create, incur, assume or suffer to exist (i) any Mortgage in favor of any Person, or (ii) any other Lien upon any of its property, revenues or assets (including its Equity Interests), whether now owned or hereafter acquired, except, in the case of this Section 7.02(b)(ii), for the following (the “Permitted Liens”):

(i) Liens in favor, or for the benefit, of the Lender pursuant to the Security Documents;

(ii) Liens for taxes, assessments and other governmental charges that are not yet due or the payment of which is the subject of a Contest;

(iii) Liens of carriers, warehousemen, mechanics and materialmen and (to the extent subordinated in writing to the satisfaction of the Lender) landlords, in each case, incurred in the ordinary course of business for sums not yet due or the payment of which is the subject of a Contest;

(iv) Liens that constitute legal or equitable encumbrances (other than any attachment prior to judgment, judgment lien or attachment in aid of execution on a judgment) deemed to exist by reason of any pending litigation or other legal proceeding not constituting an Event of Default if the same is effectively stayed and the claims secured thereby are for amounts, in the aggregate, no greater than five hundred thousand Dollars ($500,000) and are subject to a Contest;

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(v) Liens of no more than five hundred thousand Dollars ($500,000) in the aggregate securing judgments for the payment of money not constituting an Event of Default; provided, that each such Lien is subject to a Contest and any appropriate legal proceedings which may have been initiated for the review of such judgment shall not have been terminated or the period within which such proceedings may have been initiated shall not have expired;

(vi) easements, restrictions, encumbrances and other exceptions to title that, where known to the Borrower, are disclosed in the site plan for such System, and which, in any case, could not reasonably be expected to (A) impair the relevant System’s ability to perform materially in accordance with the applicable Financial Models or (B) cause or result in a material breach of, or event of default under, any Major Project Document;

(vii) purchase money security interests in discrete items of personal property not comprising an integral part of any System or other Collateral when the obligation secured is incurred for the purchase of such equipment and does not exceed one hundred percent (100%) of the lesser of cost or fair market value thereof at the time of acquisition, and the security interest does not extend beyond the equipment involved and any proceeds therefrom; provided, that such Liens and the amount of materials, equipment and fixtures supplied or purchased pursuant to this clause (vii) will not, taken together, at any time exceed the maximum aggregate amount of five hundred thousand Dollars ($500,000);

(viii) Liens arising out of Capitalized Lease Liabilities that are permitted pursuant to Section 7.02(a)(iii), but only to the extent that such Liens are over those assets which are the object of any such Capitalized Lease Liabilities;

(ix) Liens arising out of subordinated debt permitted in accordance with Section 7.02(a)(vii) solely to the extent that such Liens are inferior in priority to the Liens created under the Financing Documents and are subject to subordination and intercreditor agreements satisfactory to the Lender, in its sole discretion; and

(x) Liens consisting of pledges of cash, cash equivalents or government securities to secure Secured Rate Contracts contemplated in Section 7.01(t) (Rate Contracts).

(c)    Permitted Investments.    The Borrower will not make any investments, loans or advances (whether by purchase of stocks, bonds, notes or other securities, loans, extensions of credit, advances or otherwise) except for (i) investments in Cash Equivalents, (ii) investments by the Borrower consisting of Secured Rate Contracts contemplated in

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Section 7.01(t) (Rate Contracts), (iii) Restricted Payments made as loans or advances, (iv) readily marketable securities received by the Borrower in lieu of defaulted payments owed to it, and (v) prepaid insurance premiums and other related expenses in the ordinary course.

(d)    Change in Business.    The Borrower will not (i) enter into or engage in any business other than the ownership, operation, maintenance, development, start-up, testing, use and financing of the Systems and all activities reasonably related thereto, without the prior written consent of the Lender, or (ii) change in any material respect the scope of the Portfolio from that which is contemplated as of the date hereof other than changes associated with the severance of Systems under Section 3.12 (System Severance).

(e)    Equity Issuances and Sales.    The Borrower will not allow to be sold, transferred or disposed any of its Equity Interests or issue any new Equity Interests in the Borrower to any Person.

(f)    Asset Dispositions.    The Borrower will not directly or indirectly sell, lease, sublease, license, assign, transfer or otherwise dispose of assets of the Systems or the Borrower (other than the sales contemplated or permitted under the Offtake Agreements and the REC Agreements) whether now owned or hereafter acquired, in each case except:

(i) disposal of assets that are replaced within sixty (60) days of such disposition and in accordance with the then-current Operating Budgets; provided, that during such sixty (60) day (or shorter) period prior to the acquisition of replacement assets, the relevant System remains continuously in operation, materially in accordance with the Financial Models and in a manner that could not reasonably be expected to result in a breach or event of default under any Major Project Document;

(ii) to the extent that such assets are excess, uneconomical, obsolete or no longer useful or no longer usable in connection with the operation or maintenance of any System;

(iii) disposal of assets with a fair market value, or at a disposal price, of less than five hundred thousand Dollars ($500,000) in the aggregate during any Fiscal Year; provided, that such disposal does not, and would not reasonably be expected to, adversely affect the construction, operation or maintenance of any System; or

(iv) disposal of all or substantially all of the assets, together with all liabilities, of any System, following a System Discharge Date related to such System in accordance with Section 3.12 (System Severance).

(g)    Consolidation, Merger.    The Borrower will not (i) directly or indirectly liquidate, wind up, terminate, reorganize or dissolve itself (or suffer any liquidation, winding up, termination, reorganization or dissolution) or otherwise wind up; or (ii) acquire (in one transaction or a series of related transactions) all or any substantial part of the assets, property or business of, or any assets that constitute a division or operating unit of, the business of any Person or otherwise merge or consolidate with or into any other Person.

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(h)    Transactions with Affiliates.    The Borrower will not enter into or cause, suffer or permit to exist any arrangement or contract with any of its Affiliates or any other Person that owns, directly or indirectly, any Equity Interest in the Borrower unless such arrangement or contract (i) is or has been designated as a Project Document by the Lender and the Borrower and (ii) is an arrangement or contract that is on an arm’s-length basis and contains terms no less favorable than those that would be entered into by a prudent Person in the position of the Borrower with a Person that is not one of its Affiliates.

(i)    Accounts.

(i) The Borrower will not maintain, establish or use any deposit account, securities account (as each such term is defined in the UCC) or other banking account other than the Project Accounts.

(ii) The Borrower shall not change the name or account number of any of the Project Accounts without the prior written consent of the Lender.

(j)    Subsidiaries.    The Borrower will not create or acquire any Subsidiary or enter into any partnership or joint venture without the prior written consent of the Lender.

(k)    ERISA.    The Borrower will not engage in any prohibited transactions under Section 406 of ERISA or under Section 4975 of the Code. The Borrower will not incur any obligation or liability in respect of any Plan, Multiemployer Plan or employee welfare benefit plan providing post-retirement welfare benefits (other than a plan providing continuing coverage under Part 6 of Title I of ERISA or applicable state insurance laws).

(l)    Taxes.    The Borrower will not make any election to be treated as an association taxable as a corporation for federal, state or local tax purposes.

(m)    Project Documents.

(i) The Borrower will not direct, consent to or agree to any amendment, modification, supplement, waiver, termination, consent in respect of, suspension of work under, renewal or extension of, or assignment, delegation or transfer of any material right, obligation or benefit under, any (A) Major Project Document or the Credit Protection Insurance Policy, in each case, without the prior written consent of the Lender or (B) Project Document that is not a Major Project Document without the prior written consent of the Lender unless any of the foregoing could not reasonably be expected to result in a Material Adverse Effect; provided, that no less than ten (10) Business Days after each Funding Date, the Borrower shall furnish to the Lender copies of each amendment to Exhibit A to the Offtake Agreements pursuant to Section 1.1 of the

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Offtake Agreements; provided, further, that the Borrower shall not terminate electrical service and remove any System pursuant to Section 5.2 of the Offtake Agreements without the Lender’s prior written consent.

(ii) Except for collateral assignments under the Security Documents, the Borrower will not assign or sublease any of its material rights under any Project Document to which it is a party to any Person, or consent to the assignment of any material obligations under any such Project Document by any other party thereto or any other replacement of the counterparty to any Project Document, without the prior written approval of the Lender.

(iii) The Borrower shall make (i) every warranty claim in accordance with Sections 5.2, 5.3 and 5.4 of the LTSA and (ii) any insurance claim as to which either (A) the Borrower reasonably expects that a payment would be made under the Credit Protection Insurance Policy or (B) the Lender has directed Borrower to make, in each case in accordance with Section VII of the Credit Protection Insurance Policy.

(n)    Additional Project Documents.     The Borrower will not enter into any Additional Project Document without (i) the prior written approval of the Lender, which approval will not be unreasonably withheld, conditioned or delayed and (ii) upon reasonable request of the Lender, delivering to the Lender all appropriate Ancillary Documents relating thereto.

(o)    Abandonment.     The Borrower will not permit or suffer to exist an Event of Abandonment.

(p)    Use of Proceeds; Margin Regulations.     The Borrower will not use any proceeds of any Loan other than in accordance with the provisions of Article II (Commitment and Funding) and Section 7.01(g) (Affirmative Covenants - Use of Proceeds and Cash Flow). The Borrower will not use any part of the proceeds of any Loan to purchase or carry any Margin Stock (as defined in Regulation U) or to extend credit to others for the purpose of purchasing or carrying any Margin Stock. The Borrower will not use the proceeds of any Loan in a manner that could violate or be inconsistent with the provisions of Regulations T, U or X.

(q)     Environmental Matters.     The Borrower will not (i) permit any underground storage tanks used for the storage of Materials of Environmental Concern to be located on any property owned or leased by the Borrower, or (ii) allow the Systems to generate, manufacture, refine, produce, treat, store, handle, dispose of, transfer, process or transport Materials of Environmental Concern, in each case, other than in compliance in all material respects with Environmental Laws.

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(r)    Restricted Payments.     The Borrower will not make any Restricted Payments unless each of the conditions set forth below has been satisfied:

(i) such Restricted Payment is made on, or within thirty (30) days following, a Quarterly Payment Date that is at least ninety (90) days after the Date Certain (provided, that such Restricted Payment is made only from funds on deposit in or standing to the credit of the Restricted Payments Account on such Quarterly Payment Date);

(ii) no Default or Event of Default has occurred and is continuing or would occur as a result of such Restricted Payment;

(iii) each of the Debt Service Reserve Account and the Maintenance Reserve Account is fully funded to any applicable required level; provided, that the requirement with respect to the Maintenance Reserve Account shall only be applicable for so long as the Maintenance Reserve Account is required to be maintained pursuant to the Pledgor LLC Agreement;

(iv) the Historical Debt Service Coverage Test is satisfied;

(v) the Prospective Debt Service Coverage Test is satisfied;

(vi) with respect to any Restricted Payment made other than pursuant to priority seventh of Section 4.2(c) of the Accounts Agreement, no Parent Cross Default Event has occurred; and

(vii) the Lender has received a Restricted Payment Certificate, duly executed by an Authorized Officer of the Borrower, confirming that each of the conditions set forth in this Section 7.01(r) (Negative Covenants – Restricted Payments) has been satisfied on and as of the date such Restricted Payment is requested to be made, and setting forth a detailed calculation of the Historical Debt Service Coverage Ratio and the Prospective Debt Service Coverage Ratio attached hereto as Exhibit I.

(s)     Accounting Changes.    The Borrower will not make any change in (i) its accounting policies or reporting practices, except as required by GAAP or as otherwise notified to the Lender in writing (provided, that the Borrower shall provide a historical reconciliation for the prior period addressing any such change in accounting practices) or (ii) its Fiscal Year without the prior written consent of the Lender (such consent not to be unreasonably withheld, conditioned or delayed).

(t)    Public Utility Status.    Neither the Borrower nor the Pledgor is, neither of them by reason of the ownership or operation of any System or any other transaction contemplated by the Transaction Documents will be, and none of them will permit itself to become, subject to financial, organizational or rate regulation as an “electric utility,” “electric utility company,” “electric corporation,” “electrical company,” “public utility,” “public service corporation,” “gas utility,” “natural gas company” (or similar entity transporting gas in interstate commerce), “public service company,” “public utility holding company,” “electric utility holding

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company,” “holding company,” “subsidiary company” of any such holding company, or any other similar entity, or a subsidiary or affiliate of any of the foregoing, under any Law; provided, that it shall not constitute a Default of any kind hereunder for (i) the Borrower to be a “qualifying small power producer” which operates or controls a “qualifying small power production facility,” as those terms are defined under Section 3 of the Federal Power Act, as amended, and the regulations thereunder; or (ii) the Borrower to receive authorization under applicable law to sell its electrical output and become subject to applicable regulatory requirements.

(u)    Qualified Appraiser.    The Borrower shall not change the Qualified Appraiser in accordance with the LTSA without the prior written consent of the Lender (such consent of the Lender not to be unreasonably withheld, conditioned or delayed).

(v)    Service Provider.     The Borrower shall not approve a Service Provider in accordance with Section 4.5 of the LTSA without the prior written consent of the Lender (such consent of the Lender not to be unreasonably withheld, conditioned or delayed).

Section 7.03    Reporting Requirements.    The Borrower will furnish to the Lender:

(a)    Quarterly Financial Statements.     As soon as available and in any event within thirty (30) days (or forty-five (45) days in the case of the Parent) after the end of each Fiscal Quarter (including the fourth Fiscal Quarter), unaudited balance sheets of the Borrower, unaudited balance sheets of the Parent, unaudited statements of income and cash flows (including aging accounts payable and accounts receivable) of the Borrower and unaudited statements of income and cash flows of the Parent for such Fiscal Quarter, prepared in accordance with GAAP.

(b)    Annual Financial Statements.    As soon as available and in any event within one hundred eighty (180) days after the end of Fiscal Year, a copy of the annual audit report for such Fiscal Year for each of the Borrower and the Parent, including therein balance sheets of the relevant Person as of the end of such Fiscal Year and statements of income and cash flows of the relevant Person for such Fiscal Year, and accompanied by an unqualified opinion of the Auditors stating that such financial statements present fairly in all material respects the financial position of the Borrower or the Parent, as applicable, for the periods indicated in conformity with GAAP applied on a basis consistent with prior periods, which report and opinion shall not be subject to any “going concern” or like qualification or exception and shall not be subject to any qualification or exception as to the scope of such audit or any adverse opinion or disclaimer of opinion.

(c)    Certificate of Financial Officer.    Concurrently with the delivery of the financial statements referred to in Section 7.03(a) (Reporting Requirements - Quarterly Financial Statements) and Section 7.03(b) (Reporting Requirements - Annual Financial Statements), a certificate duly executed by a Financial Officer of the applicable Loan Party stating that:

(i) such financial statements fairly present in all material respects the financial condition and results of operations of such Person on the dates and for the periods indicated in accordance with GAAP subject, in the case of interim financial statements, to the absence of notes and normally recurring year-end adjustments;

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(ii) in the case of the Borrower, such Financial Officer has reviewed the terms of the Financing Documents and has made, or caused to be made under his or her supervision, a review in reasonable detail of the business and financial condition of such Person during the accounting period covered by such financial statements; and

(iii) in the case of the Borrower, as a result of such review such Financial Officer has concluded that no Default or Event of Default has occurred during the period covered by such financial statements through and including the date of such certificate or, if any Default or Event of Default has occurred, specifying the nature and extent thereof and, if continuing, the action that such Loan Party has taken and proposes to take in respect thereof.

(d)    Insurance Matters.

(i) As soon as possible after the Borrower obtains knowledge thereof, notice of the expected non-renewal or cancellation of any insurance policy required hereunder, which notice will indicate the Borrower’s plans to replace such policy in accordance with Section 7.01(h) (Affirmative Covenants – Required Insurance).

(ii) As soon as possible and in any event within five (5) days after the Borrower obtains knowledge thereof, all ratings downgrades for the insurance carriers in place as of the Closing Date; provided that, failure to provide such notice shall constitute an Event of Default only to the extent Lender did not have, and could not with reasonable diligence have obtained, knowledge of any such ratings downgrade.

(e)     Notice of Default or Event of Default.    As soon as possible and in any event within five (5) days after the Borrower obtains, or with the exercise of ordinary diligence reasonably would have obtained, knowledge of the occurrence of any Default or Event of Default, a statement of an Authorized Officer of the Borrower setting forth details of such Default or Event of Default and the action that the Borrower has taken and proposes to take with respect thereto.

(f)    Notice of Other Events.    Within five (5) days after the Borrower obtains knowledge thereof, a statement of an Authorized Officer of the Borrower setting forth details of:

(i) any litigation or governmental proceeding pending or threatened in writing against the Borrower or any System;

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(ii) any litigation or governmental proceeding pending or threatened in writing against the Parent that involves claims in excess of [***] or involves claims arising out of or relating in any way to the development, construction, operation or ownership of any System;

(iii) any request by a Major Project Party to cause assets or equity of the Borrower to be pledged or similar security to be granted in support of obligations under a Major Project Document;

(iv) any litigation or governmental proceeding pending or threatened in writing against any Loan Party that has or could reasonably be expected to have a Material Adverse Effect;

(v) any other event, act or condition particular to the Borrower and its Affiliates (and not, for the avoidance of doubt, any event, act or condition that relates to general market, political, financial, social or similar trends or occurrences) that has or could reasonably be expected to have a Material Adverse Effect;

(vi) any notice of any event of force majeure or similar event that is given or received by the Borrower under a Project Document;

(vii) any Casualty Event, Event of Taking or similar occurrence expected to cause loss to the Borrower in excess of [***] whether or not covered by insurance; or

(viii) any other change in circumstances that could reasonably be expected to (A) lead to an event of default or the imposition of liquidated damages or other material charges under Major Project Documents related to any System, (B) alter in any material adverse respect any guaranty or warranty related to a System, (C) materially impair or reduce the ability of any System to operate and perform in accordance with the applicable Financial Models and in accordance with applicable Law, or (D) present a material risk of revocation or adverse modification of any Necessary Approval.

(g)     Project Document or Additional Project Document Notice.    Promptly after delivery or receipt thereof, copies of all material notices or documents given or received by the Borrower, pursuant to any of the Project Documents, any Additional Project Document, the Credit Protection Insurance Policy or any documentation related thereto, including:

(i) purchase orders and invoices given or received by the Borrower under the LTSA or the Administrative Services Agreement;

(ii) documentation relating to the performance of any System under the LTSA or the Offtake Agreements (including calculations relating to any warranties thereunder);

[***] Confidential Treatment Requested

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(iii) any written notice alleging any breach or default thereunder; and

(iv) any written notice regarding, or request for consent to, any assignment, termination, material modification, material waiver or material variation thereof.

(h)     ERISA Event.     As soon as possible and in any event within five (5) days after the Borrower knows, or has reason to know, that any of the events described below has occurred, a duly executed certificate of an Authorized Officer of the Borrower setting forth the details of each such event and the action that the Borrower proposes to take with respect thereto, together with a copy of any notice or filing from the PBGC, Internal Revenue Service or Department of Labor or that may be required by the PBGC or other U.S. Governmental Authority with respect to each such event:

(i) any Termination Event with respect to an ERISA Plan or a Multiemployer Plan has occurred or will occur that could reasonably be expected to result in any material liability to the Borrower;

(ii) any condition exists with respect to a Plan that presents a material risk of termination of a Plan (other than a standard termination under Section 4041(b) of ERISA) or imposition of an excise tax or other material liability on the Borrower;

(iii) an application has been filed for a waiver of the minimum funding standard under Section 412 of the Code or Section 302 of ERISA under any Plan;

(iv) the Borrower or any Plan fiduciary has engaged in a “prohibited transaction,” as defined in Section 4975 of the Code or as described in Section 406 of ERISA, that is not exempt under Section 4975 of the Code and Section 408 of ERISA that could reasonably be expected to result in material liability to the Borrower;

(v) there exists any Unfunded Benefit Liabilities under any ERISA Plan;

(vi) any condition exists with respect to a Multiemployer Plan that presents a risk of a partial or complete withdrawal (as described in Section 4203 or 4205 of ERISA) from a Multiemployer Plan that could reasonably be expected to result in any material liability to the Borrower;

(vii) a “default” (as defined in Section 4219(c)(5) of ERISA) occurs with respect to payments of withdrawal liability to a Multiemployer Plan and such default could reasonably be expected to result in any material liability to the Borrower;

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(viii) a Multiemployer Plan is in “reorganization” (as defined in Section 418 of the Code or Section 4241 of ERISA) or is “insolvent” (as defined in Section 4245 of ERISA);

(ix) the Borrower and/or any ERISA Affiliate has incurred any potential withdrawal liability (as defined in accordance with Title IV of ERISA) and such liability could reasonably be expected to result in a material liability to the Borrower; or

(x) there is an action brought against the Borrower or any ERISA Affiliate under Section 502 of ERISA with respect to its failure to comply with Section 515 of ERISA.

(i)    Notice of PBGC Demand Letter.    As soon as possible and in any event within five (5) days after the receipt by the Borrower of a demand letter from the PBGC notifying the Borrower of its final decision finding material liability and the date by which such liability must be paid, a copy of such letter, together with a duly executed certificate of the president or chief financial officer of the Borrower setting forth the action the Borrower proposes to take with respect thereto.

(j)    Notice of Environmental Event.     Promptly and in any event within five (5) days after the existence of any of the following conditions, a duly executed certificate of an Authorized Officer of the Borrower specifying in detail the nature of such condition and, if applicable, the Borrower’s proposed response thereto:

(i) receipt by the Borrower of any written communication from a Governmental Authority or any written communication from any other Person or other source of written information, including reports prepared by the Borrower, that alleges or indicates that the Borrower or an Environmental Affiliate is not in compliance in all material respects with applicable Environmental Laws or Environmental Approvals;

(ii) the Borrower obtains knowledge that there exists any material Environmental Claim (other than those listed in Schedule 5.19) pending or threatened in writing against the Borrower or any Environmental Affiliate;

(iii) the Borrower obtains knowledge of (A) any Release, Threat of Release or disposal of any Material of Environmental Concern or any material non-compliance with any Environmental Law that, in either case, could reasonably be expected to (x) form the basis of a material Environmental Claim against the Borrower or any Environmental Affiliate, or (y) otherwise give rise to any material liability of the Borrower or (B) any fact or circumstance that could reasonably be expected to lead to a revocation, rescission, non-renewal, materially adverse amendment or other materially adverse modification of any Environmental Approval; or

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(iv) any Removal, Remedial or Response action taken, or required to be taken, by the Borrower or, to the knowledge of the Borrower, any other Person in response to any Material of Environmental Concern in, at, on or under, a part of or about the Borrower’s properties or any other property (including the Sites) or any notice, claim or other information that the Borrower might be subject to a material Environmental Claim.

(k)     Inspection.     The Borrower shall maintain and make available for inspection by the Lender and the Consultants, on reasonable notice during regular business hours, accurate and complete records of all correspondence, investigations, studies, sampling and testing conducted, and any and all remedial actions taken, by the Borrower or, to the best of the Borrower’s knowledge and to the extent obtained by the Borrower, by any Governmental Authority or other Person in respect of Materials of Environmental Concern that could reasonably be expected to form the basis of an Environmental Claim on or affecting the Borrower or any System.

(l)    Deferred Approvals.    Promptly after receipt thereof, copies of each Deferred Approval obtained by the Borrower for the benefit of a System, together with such documents relating thereto as the Lender may reasonably request.

(m)    Operating Reports.     Within thirty (30) days after the end of each Fiscal Quarter, the Borrower shall furnish to the Lender a report (an “Operating Report”), in a form reasonably acceptable to the Lender, regarding the operation and performance of the Systems for each quarterly period. Such Operating Report shall contain in reasonable detail (i) all actual expenses, capital expenditures and revenues relating to the operation and maintenance of the Systems, (ii) the levels of operations of each System, including any forced or unforced outages and (iii) such other information which shall provide the Lender with information necessary to determine whether the Loan Parties are in compliance with their obligations under the Transaction Documents.

(n)    Cross-Default Notices.     Without prejudice to the Borrower’s obligations in Section 7.03(e) (Reporting Requirements – Notice of Default or Event of Default), promptly upon receipt thereof, any notice of breach, default, event of default, acceleration, foreclosure, exercise of remedies or other similar notice of events or circumstances under any Indebtedness that could reasonably be expected to give rise to a cross-default under Section 8.01(e) (Events of Default - Cross Default).

(o)     Other Information.     Other financial information concerning the Borrower, the Systems, the Parent and the Pledgor reasonably requested by the Lender.

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ARTICLE VIII

DEFAULT AND ENFORCEMENT

Section 8.01    Events of Default.    Each of the following events or occurrences described below shall constitute an Event of Default:

(a)     Nonpayment.    (i) The Borrower fails to pay any amount of principal of any Loan when the same becomes due and payable or (ii) the Borrower fails to pay any interest on any Loan or any fee or other Obligation or amount payable hereunder or under any other Financing Document within three (3) Business Days after the same becomes due and payable.

(b)     Breach of Warranty.    Any representation or warranty of any Loan Party made or deemed to be repeated in any Financing Document is incorrect or misleading in any material respect when made or deemed made; provided, that an incorrect representation or warranty shall not constitute an Event of Default if (i) such Loan Party did not have knowledge that such representation or warranty was incorrect or misleading at the time such representation or warranty was made or deemed repeated, (ii) the fact, event or circumstance resulting in such incorrect or misleading representation or warranty is capable of being cured, corrected or otherwise remedied, (iii) such fact, event or circumstance resulting in such incorrect or misleading representation or warranty is cured, corrected or otherwise remedied within thirty (30) days from the date any Loan Party obtains, or reasonably would have obtained with the exercise of customary diligence, knowledge thereof, or such longer period as may be necessary to cure, correct or otherwise remedy such incorrect or misleading representation so long as such Loan Party is diligently attempting to cure, provided, that the cure period shall in no event extend longer than ninety (90) days after such date, and (iv) no Material Adverse Effect shall have occurred as a result of such representation or warranty being incorrect or misleading.

(c)     Non-Performance of Certain Covenants and Obligations.    (i) The Borrower defaults in the due performance and observance of any of its obligations under Section 7.01(g) (Affirmative Covenants – Use of Proceeds and Cash Flow), Section 7.01(h) (Affirmative Covenants – Insurance), Section 7.01(n) (Affirmative Covenants – Maintenance of Liens), Section 7.01(r) (Affirmative Covenants – First Priority Ranking), Section 7.01(v) (Equity Contributions), or Section 7.02 (Negative Covenants) (other than Section 7.02(c) (Negative Covenants - Permitted Investments), Section 7.02(h) (Negative Covenants - Transactions with Affiliates), and Section 7.02(t) (Negative Covenants - Public Utility Status)) of this Agreement, or (ii) after giving effect to any applicable grace periods and notice requirements, any party (other than the Lender or the Accounts Bank) to the Accounts Agreement or the Interparty Agreement defaults in the due performance and observance of any of its material obligations under such agreement.

(d)    Non-Performance of Other Covenants and Obligations.

(i) (A) The Borrower shall default in the performance or observance of any covenant, condition or agreement contained in Section 7.02(c) (Negative Covenants - Permitted Investments) or Section 7.02(h) (Negative Covenants - Transactions with Affiliates) of this Agreement or (B) the Borrower or Pledgor shall

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default in the performance or observance of any covenant, condition or agreement contained in Section 7.02(t) (Negative Covenants - Public Utility Status) of this Agreement, and in each case such default shall continue unremedied for a period of thirty (30) days after the Borrower obtains knowledge thereof.

(ii) The Borrower, the Pledgor or the Parent defaults in the due performance and observance of any covenant or agreement (other than covenants and agreements referred to in Section 8.01(a) (Events of Default – Nonpayment) or Section 8.01(c) (Events of Default – Non-Performance of Certain Covenants and Obligations)) contained in any Financing Document, and such default continues unremedied for a period of thirty (30) days after the Borrower obtains knowledge thereof, provided, that, so long as the Borrower and any other applicable Loan Party is diligently seeking to remedy such default, the relevant cure period shall be extended for a further thirty (30) days (for a total of sixty (60) days) in respect of any default that, in the reasonable judgment of the Lender, is capable of remedy but would require a period of longer than thirty (30) days to be remedied.

(e)    Cross Defaults.    Any one of the following occurs (i) at any time, with respect to the Indebtedness of the Borrower (other than the Obligations) in an amount greater than or equal to five hundred thousand Dollars ($500,000) in the aggregate, or (ii) at any time, with respect to the Indebtedness of the Pledgor, and, in each such case:

(i) a default occurs in the payment when due (subject to any applicable grace period and notice requirements), whether by acceleration or otherwise, of such Indebtedness; or

(ii) such Person fails to observe or perform (subject to any applicable grace periods and notice requirements) any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause the holder or holders of such Indebtedness or the beneficiary or beneficiaries of any Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded.

(f)    Judgments.    Any judgment or order that has or could reasonably be expected to have a Material Adverse Effect is rendered against any Loan Party.

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(g)    Bankruptcy; Insolvency.     The Borrower, the Pledgor, the Parent or any other Major Project Party:

(i) becomes unable to, admits in writing its inability to, or fails to pay its debts generally as they become due;

(ii) applies for, consents to, or acquiesces in, the appointment of a trustee, receiver, sequestrator or other custodian for such Person or a substantial portion of its property, or makes a general assignment of any substantial portion of its property for the benefit of creditors;

(iii) in the absence of such application, consents or acquiescence, permits or suffers to exist the appointment of a trustee, receiver, sequestrator or other custodian for such Person or for a substantial part of its property, and such trustee, receiver, sequestrator or other custodian is not discharged within sixty (60) days; provided, that nothing in the Financing Documents shall prohibit or restrict any right the Lender may have under applicable Law to appear in any court conducting any relevant proceeding during such sixty (60) day period to preserve, protect and defend its rights under the Financing Documents (and a Loan Party shall not object to any such appearance);

(iv) permits or suffers to exist the commencement of any bankruptcy, reorganization, debt arrangement or other case or proceeding under any bankruptcy or insolvency law, or any dissolution, winding up or liquidation proceeding, in respect of such Person and, if any such case or proceeding is not commenced by such Person, such case or proceeding is consented to or acquiesced in by such Person or results in the entry of an order for relief or remains for sixty (60) days undismissed; provided, that nothing in the Financing Documents shall prohibit or restrict any right the Lender may have under applicable Law to appear in any court conducting any such case or proceeding during such sixty (60) day period to preserve, protect and defend its rights under the Financing Documents (and a Loan Party shall not object to any such appearance); or

(v) takes any limited liability company or similar corporate action authorizing any of the foregoing;

provided, that such occurrence shall not constitute an Event of Default with respect to any Major Project Party if: (A) an agreement replacing each Project Document to which such Major Project Party is a party, in form and substance, and with a counterparty, reasonably satisfactory to the Lender, is entered into (together with all applicable Ancillary Documents) within ninety (90) days thereof, or (B) such Major Project Party: (1) is substantially performing its remaining obligations with respect to the applicable Major Project Document; (2) has not rejected the Major

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Project Document under the powers granted under Title 11 of the United States Code or other such bankruptcy or insolvency law; and (3) assumes or affirms the applicable Major Project Document upon or before confirmation of the plan under Title 11 of the United States Code or other such bankruptcy or insolvency law.

(h)    Project Document Defaults; Termination.

(i) The Borrower or any Project Party shall be in material breach of or otherwise in material default under any Major Project Document, and such breach or default has continued beyond any applicable grace period expressly provided for in such Major Project Document; provided, that if (1) such breach or default cannot be cured within such cure period, (2) such breach or default is susceptible of cure within forty-five (45) days after the initial expiration of such cure period, (3) the Borrower or Project Party is proceeding with diligence and in good faith to cure such breach or default, and (4) the existence of such breach or default has not had and could not, after considering the nature of the cure, be reasonably expected to give rise to termination of such Major Project Contract or to otherwise result in a Material Adverse Effect, then the cure period shall be extended to such date, not to exceed a total of forty-five (45) days after the initial expiration of such cure period, as shall be necessary for the Borrower or applicable Project Party diligently to cure such breach or default.

(ii) The Borrower or any Project Party shall be in material breach of or otherwise in material default under any Project Document that is not a Major Project Document, and such breach or default has continued beyond any applicable grace period expressly provided for in such Project Document (or, if no such cure period is provided, sixty (60) days); provided, that any such breach or default by the Borrower or any Project Party shall not constitute an Event of Default if:

(A) such breach or default has not resulted in and could not reasonably be expected to result in a Material Adverse Effect; or

(B) an agreement replacing, renewing or reinstating such Project Document, in form and substance, and with a counterparty, reasonably satisfactory to the Lender, is entered into (together with all applicable Ancillary Documents) within thirty (30) days after the expiration of any applicable grace period.

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(iii) Any Project Document ceases to be in full force and effect prior to its scheduled expiration or is repudiated or terminated for convenience (or under similar provisions) by any party thereto, or its enforceability is challenged or disaffirmed by or on behalf of the Borrower; provided, that such occurrence shall not constitute an Event of Default if:

(A) in the case of any such Project Document that is a Major Project Document, an agreement replacing, renewing or reinstating such Major Project Document, in form and substance, and with a counterparty, reasonably satisfactory to the Lender, is entered into (together with all applicable Ancillary Documents) within thirty (30) days thereof;

(B) in the case of any such Project Document (including any Major Project Document), such repudiation, challenge or disavowal, or the termination of the relevant Project Document, has not resulted in and could not reasonably be expected to result in a Material Adverse Effect; or

(C) in the case of any such Project Document that is not a Major Project Document but the repudiation, challenge, disavowal, or the termination of which could reasonably be expected to result in a Material Adverse Effect, an agreement replacing, renewing or reinstating such Project Document, in form and substance, and with a counterparty, reasonably satisfactory to the Lender, is entered into (together with all applicable Ancillary Documents) within thirty (30) days thereof.

(iv) Any Loan Party directly or indirectly permits, consents to or acquiesces in the termination, suspension, revocation or cancellation of the Administrative Services Agreement or the LTSA for any reason or cause without the consent of the Lender.

(i)    Governmental Approvals.     The Borrower fails to obtain, renew, maintain or comply in all material respects with any Necessary Approval or any Necessary Approval is revoked, canceled, terminated, withdrawn or otherwise ceases to be in full force and effect, or any Necessary Approval is materially adversely modified without the consent of the Lender, in each case in a manner that could reasonably be expected to result in a Material Adverse Effect.

(j)    Unenforceability of Documentation.     At any time after the execution and delivery thereof:

(i) any material provision of any Financing Document ceases to be in full force and effect;

(ii) any Financing Document is revoked or terminated, becomes unlawful or is declared null and void by a Governmental Authority of competent jurisdiction;

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(iii) any Financing Document becomes unenforceable, is repudiated or the enforceability thereof is contested or disaffirmed by or on behalf of any party thereto other than the Lender; or

(iv) any Liens against any material portion of the Collateral in which a security interest can be perfected by possession or by making filings under the UCC cease to be a first-priority, perfected security interest in favor of the Lender (subject to Permitted Liens), any mortgage is granted by the Borrower providing a third-party with a perfected-security interest in the Leases, the Easements or other real property interests of the Borrower, or the enforceability of any Liens in favor of the Lender against any material portion of the Collateral in which a security interest can be perfected by possession or by making filings under the UCC is contested by any Loan Party or any party (other than the Lender), or any of the Security Documents ceases to provide the security intended to be created thereby with the priority purported to be created thereby.

(k)    Environmental Matters.    (i) Any Environmental Claim is brought against the Borrower, the Systems or any Environmental Affiliate, (ii) any release, Threat of Release, emission, discharge or disposal of any Material of Environmental Concern occurs and would reasonably be expected to form the basis of an Environmental Claim against any such Person, or (iii) any violation or alleged violation of any Environmental Law or Environmental Approval occurs that would reasonably be expected to result in an Environmental Claim against any such Person; provided, that if and for so long as the Borrower promptly undertakes any remedial or responsive actions required to be undertaken under applicable Law, an event or circumstance described in Section 8.01(k)(i), (ii) and (iii) (an “Environmental Event”) will not constitute an Event of Default hereunder if:

(A) such Environmental Event is cured within [***] days of the occurrence thereof, which cure period will be extended, in respect of any Environmental Event that, in the reasonable judgment of the Lender, is capable of remedy but would require a longer cure period, for a further thirty (30) days (which may be extended by the Lender, in its sole discretion, following consultation with the Borrower), for a total of ninety (90) days, in each case, if the Borrower is diligently seeking to remedy such default; or

(B) the Environmental Event could not reasonably be expected, in the reasonable judgment of the Lender, to result in a Material Adverse Effect.

(l)     Loss of Collateral.    Any portion of the Collateral is seized or appropriated; provided, that such an occurrence shall not constitute an Event of Default if the Borrower

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replaces such seized or appropriated Collateral (i) in accordance with the Accounts Agreement, or (ii) otherwise with the approval of the Lender, in consultation with the Independent Engineer; provided, that such approval is obtained within thirty (30) days thereof.

(m)    Event of Abandonment.     An Event of Abandonment occurs.

(n)     Taking or Total Loss.     An Event of Taking with respect to all or a material portion of any System or any Equity Interests in the Borrower occurs, or an Event of Total Loss occurs and the Borrower does not rebuild the affected System(s) in accordance with the Accounts Agreement or, to the extent permitted under Section 8.05 (Special Cures – System Severance and Prepayment) prepay any amounts necessary to effect a System Severance with respect to such Project.

(o)     Change of Control.     A Change of Control occurs or a “Liquidity Event” or Conditional Class A Member Withdrawal (in each case as defined in the Pledgor LLC Agreement) occurs.

(p)    [Intentionally Omitted].

(q)    Credit Protection Insurance Policy.     With respect to the Credit Protection Insurance Policy:

(i) the Credit Protection Insurance Policy at any time ceases to be in full force and effect or is otherwise voidable or cancelable in accordance with its terms;

(ii) the Credit Protection Insurer at any time fails to have a rating of at least A- and a financial size category of at least X by A.M. Best; or

(iii) the Credit Protection Insurer fails to (A) make a payment when due under the Credit Protection Insurance Policy or (B) pay at least the undisputed portion of a claim made upon the “Solvency Protection” coverage of the Credit Protection Insurance Policy within one hundred twenty (120) days after initial submission of such claim in accordance with the Credit Protection Insurance Policy.

Section 8.02    Action Upon Bankruptcy.     If any Event of Default described in Section 8.01(h) (Events of Default –Bankruptcy; Insolvency) occurs with respect to the Borrower, any outstanding Loan Commitment shall automatically terminate and the outstanding principal amount of the outstanding Loans and all other Obligations shall automatically be and become immediately due and payable, without notice, demand or further act of the Lender.

Section 8.03    Action Upon Other Event of Default.     If any other Event of Default occurs for any reason, whether voluntary or involuntary, and is continuing, the Lender may, by written notice to the Borrower, declare all or any portion of the outstanding principal amount of the Loans and other Obligations to be due and payable and/or any outstanding Loan Commitment (if not theretofore terminated) to be terminated, whereupon the full unpaid amount of such Loans

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and other Obligations that has been declared due and payable shall be and become immediately due and payable, without further notice, demand or presentment and/or, as the case may be, any outstanding Commitment shall terminate. During the continuance of an Event of Default, the Lender may exercise any or all remedies provided for under this Agreement or the other Financing Documents, including without limitation to demand cash collateral to secure unmatured obligations under the Rate Contracts.

Section 8.04    Application of Proceeds.     Any moneys received by the Lender after the occurrence and during the continuance of an Event of Default may be held by the Lender as Collateral and/or applied in accordance with this Agreement and the Accounts Agreement.

Section 8.05    Special Cures; System Severance and Prepayment.    Notwithstanding anything to the contrary in this Article VIII, the Borrower shall have the opportunity provided in this Section 8.05 (Special Cures – System Severance and Prepayment) to cure Defaults that meet the following requirements:

(i) Eligible Defaults.     To be eligible for this cure provision, the Default in question must (A) relate to one or more specific Systems (each, a “Defaulted System”), (B) not reasonably be expected to directly affect any Systems other than the Systems for which severance is proposed under part (ii) of this Section 8.05, (C) not result from or arise out of any event contemplated in Section 8.01(a) (Nonpayment) and (D) not result from or arise out of any event contemplated in Section 8.01(h) (Bankruptcy; Insolvency) other than such an event affecting a Major Project Party but not a Loan Party. Defaults that meet all such requirements are referred to as “Special System Events.”

(ii) Cure Right.     To cure a Special System Event, the Borrower will be entitled to sever the Defaulted System(s) in accordance with the terms of Section 3.12 (System Severance) by meeting all of the requirements for severance of the Defaulted System(s) thereunder; provided, that the Lender reasonably determines, in consultation with the Independent Engineer or other applicable Consultants, that after such severance, no Default or Event of Default would be existing with respect to any Systems other than the Defaulted System(s) to be so severed.

(iii) To exercise its System severance rights hereunder with respect to any Defaulted System affected by a Special System Event, the Borrower shall provide the notices and all related documents as required by Section 3.12(b) (System Severance – Process and Requirements). Thereafter, the process and requirements provided in such Section 3.12 will be followed.

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ARTICLE IX

MISCELLANEOUS PROVISIONS

Section 9.01    Amendments, Etc.     No amendment or waiver of any provision of the Financing Documents, and no consent to any departure by the Borrower, Pledgor, or any other party (other than the Lender) from any provision of the Financing Documents, shall be effective unless in writing signed by the Lender and the Borrower. Each waiver or consent under this Agreement and any other Financing Document shall be effective only in the specific instance and for the specific purpose for which given.

Section 9.02    Applicable Law; Jurisdiction; Etc.

(a)     CHOICE OF LAW.     THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO CONFLICTS OF LAW (OTHER THAN SECTION 5- 1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). JURISDICTION SHALL LIE IN THE STATE OF CALIFORNIA. ALL DISPUTES, CONTROVERSIES, CLAIMS, ACTIONS AND SIMILAR PROCEEDINGS ARISING WITH RESPECT TO THE BORROWER’S ACCOUNT OR ANY RELATED AGREEMENT OR TRANSACTION SHALL BE BROUGHT IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA.

(b)     WAIVER OF JURY TRIAL.     THE LENDER AND THE BORROWER EACH ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH OF THEM, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT, WITH COUNSEL OF THEIR CHOICE, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY RELATED INSTRUMENT OR FINANCING DOCUMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTION OF ANY OF THEM. THESE PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN MODIFIED IN ANY RESPECT OR RELINQUISHED BY LENDER OR BORROWER, EXCEPT BY A WRITTEN INSTRUMENT EXECUTED BY EACH OF THEM.

(c)     WAIVER OF VENUE.    EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER FINANCING DOCUMENT IN ANY COURT REFERRED TO IN Section 9.02(a). EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

(d)    [Intentionally Omitted].

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(e)     Immunity.     To the extent that the Borrower has or hereafter may acquire any immunity from jurisdiction of any court or from any legal process (whether through service or notice, attachment prior to judgment, attachment in aid of execution, execution or otherwise) with respect to itself or its property, the Borrower hereby irrevocably and unconditionally waives such immunity in respect of its obligations under the Financing Documents and, without limiting the generality of the foregoing, agrees that the waivers set forth in this Section 9.02(e) shall have the fullest scope permitted under the Foreign Sovereign Immunities Act of 1976 of the United States and are intended to be irrevocable for purposes of such Act.

Section 9.03    Assignments.

(a)    This Agreement shall bind and inure to the benefit of the respective successors and permitted assigns of each of the parties and shall bind all persons who become bound as a debtor to this Agreement; provided, that neither this Agreement nor any rights hereunder may be assigned by the Borrower without the Lender’s prior written consent, which consent may be granted or withheld in Lender’s sole discretion provided, further, that neither this Agreement nor any rights hereunder may be assigned by the Lender except as provided in this Section 9.03.

(b)     The Lender may not assign its rights as Lender hereunder, in whole or in part, without the Borrower’s prior written consent, which consent shall not be unreasonably withheld.

(c)    The Lender may at any time, without the consent of, or notice to, the Borrower, sell participations to any commercial bank, insurance company, investment or mutual fund or other entity that is an “accredited investor” (as defined in Regulation D under the Securities Act) and which extends credit or buys loans as part of its ordinary business (each, a “Participant”) in all or a portion of the Lender’s rights and obligations under this Agreement (including all or a portion of the Loans owing to it); provided, that (x) the Lender’s obligations under this Agreement shall remain unchanged, (y) the Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (z) the Borrower shall continue to deal solely and directly with the Lender in connection with the Lender’s rights and obligations under this Agreement. Any agreement pursuant to which the Lender sells such a participation shall provide that the Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided, that such agreement or instrument may provide that the Lender will not, without the consent of the Participant, agree to any amendment, modification or waiver that directly affects such Participant.

(d)     A Participant shall not be entitled to receive any greater payment under Section 9.03 than the Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent (not to be unreasonably withheld). A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 4.03 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section 4.03(d) and (e) as though it were a Lender.

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(e)     If the Lender sells any participation, it shall maintain a register for the recordation of the name and address of each Participant, and the principal amount (and stated interest) of each Participant’s interest in the Loans or other obligations under this Agreement (the “Participant Register”); provided, that the Lender shall have no obligation to disclose the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in the Loans) to any Person except to the extent that such disclosure is necessary to establish that the Loans or other obligations under this Agreement are in registered form for tax purposes under United States Treasury Regulation Section 5f.103-1(c).

Section 9.04    Benefits of Agreement; Non-Recourse.     Except as expressly provided in Section 9.08(b) (Indemnification by Borrower), nothing in this Agreement or any other Financing Document, express or implied, shall give to any Person, other than the parties hereto and thereto, and each of their successors and permitted assigns under this Agreement or any other Financing Document, any benefit or any legal or equitable right or remedy under this Agreement. Notwithstanding any representations or warranties made herein by the Borrower or in any other Financing Document by any other Loan Party with respect to the Parent or the delivery of any information regarding the Parent required hereunder (including, without limitation any financial statements or other information about, or provided or required to be provided by, such Person), the parties hereto each acknowledge and agree that (a) the Parent is not a party to this Agreement or any other Financing Documents; (b) the Parent shall not have any liability for breach by any Loan Party under any Financing Documents; and (c) nothing in this sentence shall in any way be deemed to limit the obligations or liabilities of any other Loan Parties (if any) with respect to any breach of representations, warranties or other obligations set forth in the Financing Documents applicable to the Parent.

Section 9.05    Consultants.

(a)    The Lender may, in its sole discretion, appoint any Consultant for the purposes specified herein. If any of the Consultants is removed or resigns and thereby ceases to act for purposes of this Agreement and the other Financing Documents, the Lender may designate a Consultant in replacement.

(b)     The Borrower shall reimburse each Consultant appointed hereunder for the reasonable fees and documented out-of-pocket expenses of such Consultant retained on behalf of the Lender pursuant to this Section 9.05 which are incurred in connection with the purposes specified in, and all reviews and consultations contemplated in, the Financing Documents.

Section 9.06    Costs and Expenses.    The Borrower shall pay (a) all reasonable and documented out-of-pocket expenses incurred by the Lender and the Accounts Bank (including all reasonable fees, costs and expenses of outside counsel for the Lender and the Accounts Bank), in connection with the preparation, negotiation, syndication, execution and delivery of this Agreement and the other Financing Documents (whether or not the transactions contemplated hereby or thereby are consummated); (b) all reasonable out-of-pocket expenses incurred by the Lender and the Accounts Bank (including all reasonable fees, costs and expenses of outside counsel for the Lender and the Accounts Bank), in connection with any amendments, modifications or waivers of the provisions of this Agreement and the other Financing Documents

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(whether or not the transactions contemplated hereby or thereby are consummated); (c) all out-of-pocket expenses incurred by the Lender and the Accounts Bank (including all reasonable fees, costs and expenses of outside counsel for the Lender and the Accounts Bank, and amounts paid by the Lender to the Accounts Bank), in connection with the administration of this Agreement and the other Financing Documents (whether or not the transactions contemplated hereby or thereby are consummated); (d) all out-of-pocket expenses incurred by the Lender and the Accounts Bank (including all fees, costs and expenses of outside counsel for the Lender and the Accounts Bank), in connection with the enforcement or protection of their rights in connection with this Agreement and the other Financing Documents, including their rights under this Section 9.06, including in connection with any workout, restructuring or negotiations in respect of the Obligations and (e) expenses of Lender pursuant to or in connection with the Credit Protection Insurance Policy.

Section 9.07    Counterparts; Effectiveness.     This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement shall become effective when it has been executed by the Lender and the Borrower. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or portable document format (“pdf”) shall be effective as delivery of a manually executed counterpart of this Agreement.

Section 9.08    Indemnification by the Borrower.

(a)     In addition to the indemnity by the Borrower set forth in Section 9.11(f) (Notices and Other Communications), the Borrower hereby agrees to indemnify the Lender and each Related Party of the Lender (each such Person being called an “Indemnitee”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including all reasonable fees, costs and expenses of outside counsel for any Indemnitee), incurred by any Indemnitee or asserted against any Indemnitee arising out of, in connection with, or as a result of:

(i) the execution or delivery of this Agreement, any other Transaction Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto or thereto of their respective obligations hereunder or thereunder or the consummation of the transactions contemplated hereby or thereby;

(ii) any Loan or the use or proposed use of the proceeds therefrom;

(iii) any actual or alleged presence, release or Threat of Release of Materials of Environmental Concern on or from any System or any property owned, leased or operated by the Borrower, or any liability pursuant to an Environmental Law related in any way to the Systems, the Sites or the Borrower;

(iv) any actual or prospective Claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on

70

contract, tort or any other theory, regardless of whether any Indemnitee is a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Financing Documents is consummated, in all cases, whether or not caused by or arising, in whole or in part, out of the comparative, contributory or sole negligence of the Indemnitee; and/or

(v) any Claim, demand or liability for broker’s or finder’s or placement fees or similar commissions, whether or not payable by the Borrower, alleged to have been incurred in connection with such transactions, other than any broker’s or finder’s fees payable to Persons engaged by the Lender without the knowledge of the Borrower;

provided, that such indemnity shall not, as to any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or related expenses are (x) determined by a court of competent jurisdiction by final and non-appealable judgment to have resulted from the gross negligence or willful misconduct of such Indemnitee, (y) arising out of any action, suit or proceeding brought by any Loan Party against an Indemnitee for such Indemnitee’s gross negligence or willful misconduct under this Agreement or any other Financing Document, if such Loan Party has obtained a final and non-appealable judgment in its favor on such claim as determined by a court of competent jurisdiction, or (z) arising out of any action, suit or proceeding that does not involve an act or omission of any Loan Party of any of its Affiliates and that is brought by an Indemnitee against another Indemnitee.

(b)    Except as otherwise provided in Article VI (Conditions Precedent), all amounts due under this Section 9.08 shall be payable not later than ten (10) Business Days after demand therefor.

Section 9.09    Interest Rate Limitation.    Notwithstanding anything to the contrary contained in any Financing Document, the interest paid or agreed to be paid under the Financing Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “Maximum Rate”). If the Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged, or received by the Lender exceeds the Maximum Rate, the Lender may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.

Section 9.10    No Waiver; Cumulative Remedies.    No failure by the Lender to exercise, and no delay by the Lender in exercising, any right, remedy, power or privilege hereunder or under any other Financing Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Financing

71

Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by Law. Resort to any or all Security now or hereafter held by the Lender may be taken concurrently or successively and in one or several consolidated or independent judicial actions or lawfully taken non-judicial proceedings, or both.

Section 9.11    Notices and Other Communications.

(a)    All notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by telecopier or electronic mail as follows:

(i) if to the Borrower, (A) to the address specified on Schedule 9.11(a) or (B) by the facsimile number specified on Schedule 9.11(a) to be confirmed by hand or overnight courier service or certified or registered mail; and

(ii) if to the Lender, to the address, facsimile number or electronic mail address specified on Schedule 9.11(a).

(b)    Notices sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices sent by telecopier shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices delivered through electronic communications to the extent provided in Section 9.11(c) shall be effective as provided in Section 9.11(a).

(c)    Unless the Lender otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement); provided, that if such notice or other communication is not received during the normal business hours of the recipient, such notice or communication shall be deemed to have been received at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in Section 9.11(c)(i) of notification that such notice or communication is available and identifying the website address therefor.

(d)    Each of the Borrower and the Lender may change its address or telecopier number for notices and other communications hereunder by notice to the other parties hereto.

(e)    The Lender shall be entitled to rely and act upon any written notices purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower shall indemnify the Lender and the Related Parties from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower.

72

(f)    The Borrower hereby agrees that it will provide to the Lender all information, documents and other materials that it is obligated to furnish to the Lender pursuant to the Financing Documents, including all notices, requests, financial statements, financial and other reports, certificates and other information materials, but excluding any such communication that (i) relates to the Funding, (ii) relates to the payment of any principal or other amount due under this Agreement prior to the scheduled date therefor, (iii) provides notice of any Default or Event of Default, or (iv) is required to be delivered to satisfy any condition precedent to Funding (all such non-excluded communications being referred to herein collectively as “Communications”), by transmitting the Communications in an electronic/soft medium in a format acceptable to the Lender to dbaldi@svb.com. In addition, the Borrower agrees to continue to provide the Communications to the Lender in the manner specified in the Financing Documents but only to the extent requested by the Lender.

(g)    The Lender agrees that the receipt of the Communications by the Lender at its e-mail address set forth in Schedule 9.11(a) shall constitute effective delivery of the Communications to the Lender for purposes of the Financing Documents.

(h)    Notwithstanding clauses (f) and (g) above, nothing herein shall prejudice the right of the Lender to give any notice or other communication pursuant to any Financing Document in any other manner specified in such Financing Document.

Section 9.12    Patriot Act Notice.    The Lender is subject to the Patriot Act and, accordingly, the Lender hereby notifies the Borrower that, pursuant to the requirements of the Patriot Act, it is required to obtain, verify and record information that identifies the Borrower, which information includes the name and address of the Borrower and other information that will allow the Lender to identify the Borrower in accordance with the Patriot Act.

Section 9.13    Right of Setoff.    The Lender and each of its Affiliates are hereby authorized from time to time during the continuance of an Event of Default, to the fullest extent permitted by applicable Law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other obligations (in whatever currency) at any time owing by the Lender or any such Affiliate to or for the credit or the account of the Borrower against any and all of the obligations of the Borrower now or hereafter existing under this Agreement or any other Financing Document to the Lender, irrespective of whether or not the Lender shall have made any demand under this Agreement or any other Financing Document and although such obligations of the Borrower may be contingent or unmatured or are owed to a branch or office of the Lender different from the branch or office holding such deposit or obligated on such indebtedness. The rights of the Lender and its Affiliates under this Section 9.13 are in addition to other rights and remedies (including other rights of setoff) that the Lender or its Affiliates may have. The Lender agrees to notify the Borrower promptly after any such setoff and application; provided, that the failure to give such notice shall not affect the validity of such setoff and application.

Section 9.14    Severability.    If any provision of this Agreement or any other Financing Document is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Financing Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith

73

negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

Section 9.15    Survival.    Notwithstanding anything in this Agreement to the contrary, Section 9.06 (Costs and Expenses) and Section 9.08 (Indemnification by the Borrower) shall survive any termination of this Agreement. In addition, each representation and warranty made hereunder and in any other Financing Document shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Lender, regardless of any independent knowledge of, or investigation made by, the Lender or on its behalf and notwithstanding that the Lender may have had notice or knowledge of any Default or Event of Default at the time of the Funding, and shall continue in full force and effect as long as any Loan or any other Obligation hereunder or under any other Financing Document shall remain unpaid or unsatisfied. Notwithstanding the foregoing, the Parties acknowledge that the representations and warranties set forth in Article V hereof are made only as of the Closing Date, the Effective Date and on each Funding Date and shall not be continued as continuing representations and warranties.

Section 9.16    Confidentiality.    In handling any information marked as confidential by the Borrower (including any Operating Budget), the Lender and all employees and agents of the Lender shall exercise the same degree of care that the Lender exercises with respect to its own proprietary information of the same types to maintain the confidentiality of any non-public information thereby received or received pursuant to this Agreement except that disclosure of such information may be made (a) to the subsidiaries or Affiliates of the Lender (such subsidiaries and Affiliates, collectively, “Bank Entities”), (b) subject to an agreement containing provisions substantially the same as this Section, to prospective Participants, transferees or purchasers of any interest in the Obligations, (c) as required by law, regulations, rule or order, subpoena, judicial order or similar order, (d) as may be required in connection with the examination, audit or similar investigation of the Lender and (e) as the Lender may reasonably consider necessary in connection with the enforcement of any remedies under the Financing Documents. Confidential information hereunder shall not include information that either: (i) is in the public domain or in the knowledge or possession of the Lender when disclosed to the Lender, or becomes part of the public domain after disclosure to the Lender through no fault of the Lender; or (ii) is disclosed to the Lender by a third party, provided, the Lender does not have actual knowledge that such third party is prohibited from disclosing such information. Bank Entities may use quarterly and annual financial information relating to the Borrower and the Parent for reporting purposes and the development and distribution of databases and market analyses so long as such confidential information is aggregated and anonymized prior to distribution unless otherwise expressly prohibited by the Borrower; provided, that in no event shall the foregoing permit the incorporation of any of the Borrower’s proprietary technology or processes, market analyses or business or strategic plans for such purposes. The provisions of the immediately preceding sentence shall survive the termination of this Agreement.

Section 9.17    Waiver of Consequential Damages, Etc.    Except as otherwise provided in Section 9.08 (Indemnification by Borrower) for the benefit of any Indemnitee, to the fullest extent permitted by applicable Law, the Borrower shall not assert, and the Borrower hereby

74

waives, any Claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Financing Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or the use of the proceeds thereof. No Indemnitee shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed by it through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Financing Documents or the transactions contemplated hereby or thereby.

[Remainder of page intentionally blank. Next page is the signature page.]

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered by their respective officers as of the day and year first above written.

2013B ESA PROJECT COMPANY, LLC,     as Borrower
By:
Name:	Sendil Atreya
Title:	Vice President

[Signature Page to the Amended & Restated Credit Agreement]

SILICON VALLEY BANK,
as the Lender
By:	/s/ Dan Baldi
Name:	DAN BALDI
Title:	MANAGING DIRECTOR

[Signature Page to the Amended & Restated Credit Agreement]

Schedule 1.01

Required Amortization Payments

Quarter Ending	Principal Payments		of Principal Balance
10/1/2013	$	0		0.0000	%
1/1/2014	$	0		0.0000	%
4/1/2014	$	0		0.0000	%
7/1/2014	$	481,469		1.4816	%
10/1/2014	$	217,627		0.6697	%
1/1/2015	$	108,952		0.3353	%
4/1/2015	$	100,033		0.3078	%
7/1/2015	$	107,087		0.3295	%
10/1/2015	$	109,215		0.3361	%
1/1/2016	$	104,582		0.3218	%
4/1/2016	$	95,421		0.2936	%
7/1/2016	$	102,611		0.3158	%
10/1/2016	$	68,936		0.2121	%
1/1/2017	$	99,940		0.3075	%
4/1/2017	$	127,306		0.3918	%
7/1/2017	$	135,368		0.4166	%
10/1/2017	$	64,354		0.1980	%
1/1/2018	$	153,616		0.4727	%
4/1/2018	$	183,041		0.5633	%
7/1/2018	$	192,460		0.5923	%
10/1/2018	$	196,285		0.6040	%
1/1/2019	$	228,694		0.7038	%
4/1/2019	$	259,389		0.7982	%
7/1/2019	$	270,586		0.8327	%
10/1/2019	$	275,964		0.8492	%
1/1/2020	$	309,491		0.9524	%
4/1/2020	$	342,262		1.0533	%
7/1/2020	$	355,377		1.0936	%
10/1/2020	$	362,441		1.1153	%

[***] Confidential Treatment Requested

Schedule 3.09(a)

Lender Wire Instruction

Bank Name:	Silicon Valley Bank
Address:	3003 Tasman Drive
	Santa Clara, California 95054
ABA:	121140399
Account Number:	[***]
Account Name:	[***]
Attention:	GLS Corp Finance – Participation Desk
For further credit to:	2013B ESAProject Company, LLC

[***] Confidential Treatment Requested

Schedule 5.03 Part A

Necessary Approvals - Financing Documents

UCC financing statements filed with the Delaware Secretary of State.

Schedule 5.03 Part B

Necessary Approvals - Project Documents

Borrower will require applicable permits from the applicable Area Having Jurisdiction (“AHJ”) with respect to each Site. Certain AHJs will require only a single building permit; others may require individual permits. A representative list of the potential permits required at any individual site includes:

• Electrical

• Plumbing

• Mechanical

• Building

• Fire

• Planning

• Connecticut Siting Council

• Encroachment Permit

• Land use entitlements

• Water Supply Permit

• Wastewater Discharge Permit

• Sewer Connection Permit

Additional permits and approvals that may be required on a Site-by-Site basis include:

• General National Pollutant Discharge Elimination System Permit for Stormwater Discharges Associated with Construction Activities, issued by the California Environmental Protection Agency, California State Water Resources Control Board, or the Connecticut Department of Environmental Protection

• General National Pollutant Discharge Elimination System Permit for Stormwater Discharges Associated with Industrial Activities, issued by the Connecticut Department of Environmental Protection

• Certificate of Environmental Compatability and Public Need, issued by the Connecticut Siting Council

• Class I Renewable Certification, issued by the Connecticut Energy Finance and Investment Authority

• Environmental Assessment, conducted by the Connecticut Department of Environmental Protection, the Connecticut Commission on Culture and Tourism, and/or the Connecticut State Historical Preservation office

Schedule 5.03 Part B – 1

Schedule 5.09

Litigation

None.

Schedule 5.09 – 1

Schedule 5.11 Part A

Necessary Contracts - Effective Date Contracts

1. the LTSA;

2. the Administrative Services Agreement;

3. the Reservation Letters for each Site eligible to receive payments under the California Self-Generation Incentive Program;

4. Energy System Use Agreement No. 20130430.072.C, dated as of May 15, 2013, by and between Pacific Bell Telephone Company (“Pac Bell”) and Borrower (as amended by Amendment No. 1 to Energy System Use Agreement No. 20130430.072.C, effective as of May 15, 2013, by and between Pac Bell and Borrower, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time), which was partially assigned by the Borrower to 2012 ESA Project Company, LLC, a Delaware limited liability company (“2012 ESA”), pursuant to that certain Assignment and Assumption Agreement, dated as of July 5, 2013 (the “PPA E/G Assignment”), and which PPA E/G Assignment has been terminated pursuant to the Termination Agreement (“PPA1”);

5. Energy System Use Agreement No. 20130430.076.C, dated as of May 15, 2013, by and between Pac Bell and Borrower, as may be amended, amended and restated, supplemented or otherwise modified from time to time (“PPA2”);

6. Energy System Use Agreement No. 20130430.078.C, dated as of May 15, 2013, by and between AT&T Corp. (“AT&T Corp”) and Borrower (as amended by Amendment No. 1 to Energy System Use Agreement No. 20130430.078.C, effective as of May 15, 2013, by and between AT&T Corp and Borrower, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time), which was partially assigned by the Borrower to 2012 ESA pursuant to the PPA E/G Assignment, and which PPA E/G Assignment has been terminated pursuant to the Termination Agreement (“PPA3”);

7. Energy System Use Agreement No. 20130403.076.C (“PPA4”), dated as of May 15, 2013, by and between AT&T Corp and 2012 ESA (as amended by the PPA Acknowledgement and as may be further amended, amended and restated, supplemented or otherwise modified from time to time,), which was assigned by 2012 ESA to Borrower pursuant to that certain Assignment and Assumption Agreement, dated as of July 5, 2013 (the “PPA B/C Assignment”), which PPA B/C Assignment has been terminated pursuant to the Termination Agreement and which PPA4 has been assigned by 2012 ESA to Borrower pursuant to the Assignment and Assumption Agreement;

8. Lender Agreement, dated May 15, 2013, by and among Pac Bell, Lender and Borrower relating to PPA1;

Schedule 5.11 Part A – 1

9. Lender Agreement, dated May 15, 2013, by and among Pac Bell Lender and Borrower relating to PPA2;

10. Lender Agreement, dated May 15, 2013, by and among AT&T Corp., Lender and Borrower relating to PPA3;

11. Lender Agreement, dated September     , 2013 and effective as of May 15, 2013, by and among AT&T Corp., Lender and Borrower relating to PPA4;

12. Site Lease Agreement, dated May 15, 2013, between Pac Bell and Borrower relating to PPA1;

13. Site Lease Agreement, dated May 15, 2013, between Pac Bell and Borrower relating to PPA2;

14. Site Lease Agreement, dated May 15, 2013, between AT&T and Borrower relating to PPA3;

15. Site Lease Agreement, dated May 15, 2013, between AT&T and Borrower relating to PPA3;

16. Site Lease Agreement, dated May 15, 2013, between [***] and Borrower relating to PPA3;

17. Site Lease Agreement, dated September     , 2013 and effective as of May 15, 2013, by and between AT&T Corp and Borrower relating to PPA4;

18. the IP License;

19. the IP Security Agreement;

20. the Indemnity Agreement;

21. the Assignment and Assumption Agreement;

22. the PPA Amendments;

23. the PPA Acknowledgement;

24. the Termination Agreement;

25. the LLC Agreement of the Borrower;

26. the Pledgor LLC Agreement; and

27. the Equity Funding Agreement.

[***] Confidential Treatment Requested

Schedule 5.11 Part A – 2

Schedule 5.11 Part B

Necessary Contracts - Deferred Contracts

1. Assignment and Assumption Agreement(s) to be entered into by the Borrower and BE 2012 A LLC, relating to the Standard Contract for the Purchase and Sale of Connecticut Class I Renewable Energy Credits from Low and Zero Emission Projects, entered into by and between The Connecticut Light and Power Company and BE 2012 A, LLC, with respect to each Site eligible for payments under such agreement;

2. Assignment and Assumption Agreement(s) to be entered into by the Borrower and BE 2012 A LLC, relating to any permits or other governmental approvals issued to BE 2012 A LLC with respect to any Site.

Schedule 5.12(c) – 1

Schedule 5.12(c)

UCC Filing Offices

Office of the Secretary of State of Delaware.

Schedule 5.12(c) – 1

Schedule 5.14

Tax Returns Not Filed or Taxes Not Paid

None.

Schedule 5.14 – 1

Schedule 5.19

Environmental Matters (Representations and Warranties)

None.

Schedule 5.19 – 1

Schedule 5.24

Form of LLC Agreement of the Borrower

[Provided Separately]

Schedule 5.24 – 1

Schedule 7.01(h)

Insurance Requirements

[Provided Separately]

Schedule 7.01(h)

Schedule 7.0l(h)

Insurance Requirements

The Borrower shall, without cost to the Lender, obtain and maintain (or cause to be obtained and maintained) in full force and effect with premium payments current and no premium overdue the insurance policies as required in this Schedule. For the avoidance of doubt, any reference to this Schedule shall incorporate by reference Appendix I attached hereto.

In each case, the policies must be with insurance carriers with a rating of at least A- and a financial size category of at least X by A.M. Best or A by S&P or otherwise reasonably acceptable to the Lender.

The policies specified in Appendices I and 2 of this Schedule shall be in full force and effect at all times on and after the Closing Date or at such later inception date as is permitted hereunder until the repayment of all obligations under the Loan. The policies stipulated in Appendix 1 shall be subject to renewal no more frequently than annually.

At no time shall there be any gap in coverage.

The policy limits and coverage of the insurances required in this Schedule shall be sufficient to satisfy the requirements set forth in the Project Documents, but in no event less than the limits and coverage provisions set forth in Appendices 1 and 2 herein. The obligation to verify that the insurances carried by the Borrower meet the requirements of the Project Documents shall rest solely with the Borrower.

The Borrower shall not violate (or permit to be violated) any condition, provision or requirement of any insurance policy required by this Schedule and the Borrower shall perform, satisfy and comply with all conditions, provisions and requirements of all insurance policies.

The Borrower hereby waives any and every claim for recovery against the Lender and its affiliates, directors, officers, employees and agents for any and all loss or damage covered by any insurance policies to be maintained under this Schedule to the extent such loss or damage is recovered under any such policy.

The Borrower shall inform the Lender as soon as reasonably possible if it becomes aware of (i) any cancellation, lapse, termination or suspension of any insurance policy required by this Schedule or (ii) any reasonable prospect of such, and shall further require that its placing broker do the same.

Schedule 7.0l(h) - 1

All policies of insurance required to be maintained pursuant to this Schedule (except workers compensation and employers liability) shall provide:

• Additional insured status for the Lender and its affiliates, directors, officers, employees and agents (collectively, the “Additional Insureds”). This requirement shall not apply to any professional indemnity policy.

• Waivers of subrogation from the insurers in favor of the Additional Insureds.

• The policies required in Appendix I are either (a) non-cancellable except for non-payment of premium with at least ten 10) days’ written notice of such to the Lender or (b) thirty (30) days’ notice of cancellation (ten (10) days non-payment of premium).

• The Lender will have the right, but not the obligation, to pay premiums on behalf of the Borrower in case of non-payment.

• Policies shall be unaffected by any bankruptcy or foreclosure relating to the Borrower or any System.

• Insurance shall be primary and not excess to or contributing with any other insurance or self-insurance maintained by the Borrower or the Additional Insureds. However, policies can act in excess of such project-specific policies provided by contractors in accordance with the requirements of this Schedule.

• The Additional Insureds shall have no obligations whatsoever, including, but not limited to, no obligation to pay premiums and deductibles.

• Policy limits shall act in excess of deductibles or self-insured retentions

In addition, all property policies, including marine cargo (if applicable) and any time element insurance, shall provide:

• That the Lender shall be sole loss payee of any amounts payable under the policies in relation to the Borrower and the Systems.

• Non-vitiation in accordance with a multiple insured clause acceptable to the Lender or equivalent protection.

• Coverage for accidental errors and omissions with, to the extent available on commercially reasonable terms, no sublimit applied (unless the sublimit is acceptable to the Lender acting reasonably).

• Replacement cost, new for old, with no deduction of any kind, including (i) no coinsurance provision or waiver thereof and (ii) no allowance for depreciation (accounting or otherwise), obsolescence or loss of value over time other than in a total constructive loss or other scenario where repair/replacement does not follow loss.

• An advance or partial payment endorsement.

• A clause requiring the insurer to make final payment on any claim within thirty (30) days after the submission of proof of loss and its acceptance by the insurer.

• A LEG2 exclusion or similar endorsement with no sublimit applied (except for marine transit policies).

In addition, all liability policies (except workers compensation and employers liability) shall provide:

• Severability

• Cross liability with no exclusions

Schedule 7.0l(h) - 2

The above requirements shall be referred to as the “Required Lender Provisions”. The Required Lender Provisions can be provided either as endorsements to, or in the main body of, the relevant policy. All policies that replace or renew policies shall contain provisions, including limits, sublimits, deductibles, exclusions and the Required Lender Provisions, that are, mutatis mutandis, in all material regards at least the same as those in place at the Closing Date or, if later, the date of first inception of such policy coverage, except in relation to risks where exposure no longer exists or where a better level of coverage is provided or which would be required in accordance with the provisions of this Schedule.

The Borrower shall provide the Lender (i) as soon as reasonably possible prior to the Closing Date, (ii) updated for the initial Funding Date and (iii) at least ten (10) days prior to any subsequent policy inception or renewal, a certificate of pre-agreed format from:

• Each placing Broker confirming that:

• Summary policy terms are in the pre-agreed format.

• All policies required by this Schedule are in full force and effect.

• All insurance premiums that are due and payable have been paid in full with no premium overdue.

Such broker certificate in relation to the policies required in Appendix I shall have attached to it certificates from the insurers for each policy required by Appendix 1 listing the major sublimits (to be agreed) and indicating that the Required Lender Provisions that apply to such policy are in place.

• The Insurance Consultant confirming that:

• The insurance provided complies with the requirements of this Agreement, including this Schedule, and further complies with the requirements on the Borrower in the Project Documents.

• That the undertakings made by each placing Broker conform to the requirements of prudent industry practice.

The Lender may, at its sole discretion, waive the requirement for a certificate from the Insurance Consultant at policy replacement/renewal.

The insurance provided by the Borrower shall be evidenced by certificate or other evidence provided by or on behalf of the Borrower.

Any of the requirements of this Schedule can be satisfied by single or combined policies. However, as would be deemed necessary in accordance with prudent industry practice, a joint loss agreement will be required and included as part of the respective policies (for example, if there were separate marine transit and builders all-risk policies, then a 50:50 clause would be required).

If, in the opinion of the Borrower (acting reasonably), any insurance, including the terms and conditions, Required Lender Provisions and limits or deductibles thereof, hereby required by this Schedule to be maintained, other than insurance required to be maintained by law which shall be maintained at all times, shall not be available on commercially

Schedule 7.0l(h) - 3

reasonable terms in the commercial insurance market, then the Borrower shall promptly inform the Lender of such purported unavailability and the Borrower shall seek a waiver from the Lender in relation to such purported unavailability in which case the Lender, acting after consultation with the Insurance Consultant, shall not unreasonably withhold agreement to waive such requirement to the extent the maintenance thereof is not so available. The granting by the Lender of any such waiver is conditional on: (i) the Borrower first requesting such waiver in writing, which request shall be accompanied by written reports prepared by the Borrower and its placing Broker certifying that such insurance is not available on commercially reasonable terms in the commercial insurance market for projects of similar type and capacity and, in any case where the required amount is not so available, certifying as to the maximum amount which is so available, and explaining in detail the basis for such conclusions and the form and substance of such reports to be reasonably acceptable to the Lender after consultation with the Insurance Consultant; (ii) at any time after the granting of any such waiver, the Lender may request, and the Borrower shall furnish to the Lender within fifteen (15) days after such request, supplemental reports reasonably acceptable to the Lender updating the prior reports and reaffirming such conclusion; (iii) any such waiver granted by the Lender can amend, to the extent reasonably required to mitigate any increased risks created by the absence of insurance coverage that is the subject of the waiver, any of the terms of this Schedule and this Agreement; (iv) the Lender may require the Borrower to obtain the best available insurance comparable to the requirements of this Schedule on commercially reasonable terms then available in the commercial insurance market (as determined by the Insurance Consultant); and (v) such waiver shall be effective only so long as such insurance shall not be available on commercially reasonable terms in the commercial insurance market, as determined by the Insurance Consultant (it being understood that the failure of the Borrower to furnish any supplemental reports shall be deemed to be conclusive evidence that such waiver is no longer effective because such condition no longer exists, but that such failure is not the only way to establish such non-existence).

Any failure on the part of the Lender to (i) pursue or obtain the evidence of insurance required by this Schedule from the Borrower or (ii) point out any non-compliance of such evidence of insurance shall, in any case, not constitute a waiver of any of the insurance requirements in this Schedule.

The Borrower, for each liability insurance policy required pursuant to this Schedule that is permitted to be written on a “claims made” basis, shall (a) provide a retroactive date (as such term is specified in each of such policies) that is no later than the Closing Date and (b) notify the Lender each time any policy written on a “claims made” basis is not renewed or the retroactive date of such policy is to be changed and the Borrower shall obtain and maintain ( or cause to be obtained or maintained) for each such policy or policies the broadest extended reporting period coverage, or “tail”, reasonably available in the commercial insurance market for each such policy or policies, but in no case less than three (3) years. The Borrower may satisfy the requirements of this Section by obtaining “prior acts” coverage from a subsequent insurance carrier on terms acceptable to the Lender, acting reasonably.

Schedule 7.0l(h) - 4

All property insurance including marine cargo and any time element insurance shall not include any annual or term aggregate limits or sublimits, except for the perils of named windstorm, flood, earth movement and land and water decontamination, but only to the extent permitted in Appendix 1. Liability policies may have general aggregate limits in accordance with prudent insurance market practice.

All insurance policies required to be maintained pursuant to this Schedule shall contain terms and conditions reasonably acceptable to the Lender following consultation with the Insurance Consultant.

In the event that at any time the insurance as herein provided or as evidenced shall be reduced or cease to be maintained, then (without limiting the rights of the Lender hereunder in respect of the Event of Default which arises as a result of such failure) the Lender may (but shall not be obligated to) take out the required policies of insurance and pay the premiums on the same upon ten (10) Business Days’ prior written notice to the Borrower of any such failure (unless such insurance coverage would lapse within such period, in which event notice should be given as soon as reasonably possible). All amounts so advanced for such purpose shall become an additional obligation of the Borrower to the Lender and the Borrower shall forthwith pay such amounts together with interest on such amounts at the Default Rate applicable to Loans from the date so advanced.

The Lender can, acting reasonably, require such additional coverage to be provided as is required to conform to prudent industry practice.

The Lender shall have the option to be present and/or to send representatives during meetings and/or negotiations with insurers of any loss settlement in relation to the Borrower or the Systems regarding (a) total constructive loss or any scenario in which repair/replacement will not follow loss, (b) any circumstance involving a claim in relation to an event or series of events which has or could be reasonably expected to lead to a Default, or (c) any claim or series of claims in excess of one (l) per policy year. Neither the Borrower nor any of its Affiliates shall be permitted to settle any such claim with an insurer without the approval of the Lender to the agreed settlement.

The Lender can, pursuant to its rights and obligations under this Agreement and this Schedule and the provisions therein and herein, consult with the Insurance Consultant and require reports, compliance certificates and other work product from the Insurance Consultant.

Terms used in this Schedule, unless otherwise specifically defined herein, shall have the meaning normally ascribed to them in accordance with prudent industry practice in relation to a project similar in type and jurisdiction as the Portfolio.

Schedule 7.0l(h) - 5

Appendix 1

“All Risk” Property and Business Interruption Insurance

“All-Risk” property form, as such term is used in the insurance industry, shall include coverage for the perils of flood, earthquake, hail, lightning, strike, riot and civil commotion, vandalism and malicious mischief. Such policy shall insure all real and personal property of the Borrower, whether at a fixed location (including non-owned location for off-Site repair or refurbishment), an off-Site storage location, a warehouse location or while in the course of inland or ocean transit (as the case may be), for an amount of not less than the greater of (a) $20,000,000; and (b) one-third of the current replacement cost of the Portfolio.

Sublimits are permitted with respect to the following perils:

• Earthquake and flood combined, aggregated sublimit as is commercially available, but in no event less than $12,500,000 provided that all assets as built are above the one-in-500 year flood level (usually depicted as areas C and X (unshaded) on Federal Emergency Management Agency (“FEMA”) flood maps) otherwise additional cover for flood may be required by the Lender acting reasonably;

• Named Windstorm for an amount of not less than the greater of (a) the aggregate value of Systems in Connecticut; and (b) $11,800,000;

• Unintentional errors and omissions, aggregated limit as commercially available, but in no event less than $7,000,000; and

• Such other coverages customarily sublimited and/or aggregated or restricted in reasonable amounts consistent with current industry practice, including without limitation, extra expense, debris removal, on site pollutant cleanup (resulting from a covered peril) and other perils normally sublimited.

Such policy shall include: (a) an automatic reinstatement of limits following each loss except for those perils normally aggregated (including the perils of earthquake, pollution cleanup and flood) and (b) replacement cost valuation with no deduction for depreciation and no coinsurance clauses (or a waiver thereof).

Business interruption insurance triggered by any and all losses covered for property damage subject to such additional exclusions as are customary for time element insurance shall be provided for (i) not less than twelve (12) months projected revenue less non-recurrent costs and (ii) an indemnity period of not less than twelve (12) months.

Such policy may have per occurrence deductibles of not greater than $100,000 for all perils except for five percent (5%) of total insurable value for earthquakes and flood, 2% of value at risk (being deemed to be the combined value of Systems located in Connecticut) for Named Windstorm and fourteen (14) days for business interruption.

Schedule 7.0l(h) - 6

Marine Cargo and Marine Business Interruption Insurance

To the extent a material exposure exists, transit coverage shall be included in either a property policy or under a separate policy (including air, land and ocean cargo, as applicable) on an “all-risk” basis and a “warehouse-to-warehouse” basis with a per occurrence limit equal to not less than 110% of the value including transit and insurance of such shipment involving any System or any other Collateral to or from any storage site or the Site at all times for which the Borrower has accepted risk of loss or has responsibility for providing insurance. Coverage shall include loading and unloading, temporary storage (as applicable) and a 50/50 clause (if applicable). Coverage shall be maintained in accordance with prudent industry practice in all regards with per occurrence deductibles of not more than $100,000 for physical damage and other terms and conditions acceptable to the Lender in consultation with the Insurance Consultant.

Marine business interruption insurance shall be attached to the marine cargo policy providing equivalent coverage, mutatis mutandis, to the business interruption coverage attached to the “All Risk” property policy in accordance with the terms of this Schedule.

General Liability

A limit of $1,000,000 per occurrence and in the aggregate shall be provided for:

• Property damage, death and injury (including mental injury)

• Broad form property damage

• Blanket contractual

• Products/completed operations

• Advertising injury

• Explosion, collapse and underground hazards

Deductibles shall be the best commercially available in accordance with prudent industry practice.

Automobile Liability

Automobile liability insurance, to the extent exposure exists, shall include coverage for owned, non-owned and hired automobiles for both bodily injury and property damage and contain appropriate no-fault insurance provisions or other endorsements in accordance with the states’ legal requirements, with a combined single limit of no less than $1,000,000 per accident with respect to bodily injury, property damage or death. Deductibles shall be the best commercially available in accordance with prudent industry practice.

Workers’ Compensation and Employer’ s Liability

If the Borrower has employees, workers’ compensation insurance shall be in compliance with statutory requirements and employer’s liability insurance, to the extent exposure exists, with a limit of not less than $1,000,000 per accident per employee and per disease, including such other forms of insurance that the Borrower is required by law to provide for the Portfolio including, but not limited to, all other states’ endorsements and, to the extent any exposure exists, coverage with

Schedule 7.0l(h) - 7

respect to the USL&H Act and Jones Act covering loss resulting from bodily injury, sickness, disability or death of the employees of the Borrower. Deductibles shall be the best commercially available in accordance with prudent industry practice.

Pollution Liability

Pollution liability insurance shall cover liability arising out of property damage or bodily injury to third parties as a result of sudden and accidental pollution, including the cost of on-site and off-site clean up in an amount not less than $1,000,000 per occurrence and in the aggregate. Deductibles shall be the best commercially available in accordance with prudent industry practice.

Umbrella Liability Insurance

An aggregate limit of $15,000,000 (or $20,000,000 if so required by any Project Document) shall be attached and in excess of the underlying general liability, automobile liability and employers liability policies on a following form basis with drop down provisions.

Errors and Omissions Liability

Errors and omissions insurance of $1,000,000 per claim and in the aggregate for liability arising out of property damage or bodily injury to third parties as a result of prototype manufacturing errors and omissions liability. Deductibles shall be the best commercially available in accordance with prudent industry practice.

Directors & Officers Insurance

Unless directors and officers are indemnified by the Parent to the reasonable satisfaction of the Lender, directors and officers insurance, including employment practices (if employees), in an amount not less than $I 0,000,000 on industry standard policy forms subject to a retention not to exceed $50,000.

Schedule 7.0l(h) - 8

Appendix 2

The Borrower hereby warrants and undertakes that (a) there follows a true and fair copy of the Credit Protection Insurance Policy to be executed as of the initial Funding Date which such policy shall be in full force and effect as such initial Funding Date in connection with this Credit Agreement; and (b) the Borrower shall agree to no changes to such policy so evidenced without the express written consent of the Lender.

Schedule 7.0l(h) - 9

Schedule 9.11(a)

Notice Information

1. If to the Borrower:

2013B ESA PROJECT COMPANY, LLC

1299 Orleans Drive

Sunnyvale, CA 94089

Attn:    [***]

Telephone: [***]

Fax: [***]

Email: [***]

2. If to the Lender:

Silicon Valley Bank

555 Mission Street, 9th Floor

San Francisco, CA 94105

Attn:     [***]

Telephone: [***]

Email: [***]

[***] Confidential Treatment Requested

Schedule 9.11(a) – 1

EXHIBIT A

to Amended and Restated Credit Agreement

Defined Terms

“Account Collateral” has the meaning set forth in the Accounts Agreement.

“Accounts” means all “accounts” as that term is defined in Section 9-102 of the UCC, now or hereafter owned by the Borrower.

“Accounts Agreement” means that certain Accounts Agreement, dated as of the Closing Date, by and among the Borrower, the Lender and the Accounts Bank.

“Accounts Bank” means The Bank of New York Mellon, as depository bank and securities intermediary under the Accounts Agreement, and includes each other Person that may, from time to time, be appointed as successor Accounts Bank pursuant to and in accordance with the Accounts Agreement.

“Additional Project Document” means each contract, agreement, letter agreement or other instrument to which the Borrower becomes a party after the date of the Credit Agreement, other than any contracts (a) with a scheduled term of less than one (1) year, (b) under which the Borrower could not reasonably be expected to have obligations, liabilities or revenues equal to or in excess of [***] per year or [***] in the aggregate or (c) a termination of which could not reasonably be expected to result in a Material Adverse Effect; provided, that for the purposes of this definition, any series of related transactions shall be considered as one transaction, and all contracts, agreements, letter agreements or other instruments in respect of such transactions shall be considered as one contract, agreement, letter agreement or other instrument, as applicable.

“Additional Required Balance” has the meaning set forth in Section 3.12(b)(iii) (System Severance – Debt Sizing).

“Administrative Services Agreement” means that certain Amended and Restated Administrative Services Agreement, dated as of September 25, 2013, by and among Pledgor, Borrower and Parent.

“Affiliate” of any Person means any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person. A Person shall be deemed to be “controlled by” any other Person if such other Person (a) possesses, directly or indirectly, power to direct or cause the direction of the management and policies of such Person whether by contract or otherwise or (b) owns at least fifty percent (50%) of the Equity Interests in such Person.

“Agreement” when used in the Credit Agreement, means the Credit Agreement and, when used in any other Financing Document that has a different definition for the term “Agreement” provided in the Preamble thereof, has the meaning set forth in such Preamble.

[***] Confidential Treatment Requested

1

“Ancillary Documents” means, with respect to each Additional Project Document, the following, each of which shall be in form and substance reasonably satisfactory to the Lender:

(i)    each security instrument and agreement necessary or desirable to grant to the Lender a first priority perfected Lien (subject only to Permitted Liens) in such Additional Project Document, to the extent a perfected security interest in such instrument or agreement can be obtained by possession or the making of filings under the UCC, and all property interests received by the Borrower in connection therewith;

(ii)     all recorded UCC financing statements and other filings required to perfect such Lien;

(iii)     if reasonably requested by the Lender, opinions of counsel for the Borrower, which may be completed by in-house counsel for Borrower or Parent to the extent reasonably acceptable to the Lender, addressing such matters relating to such Additional Project Document, each applicable Security Document and Lien as the Lender may reasonably request;

(iv)     if requested by the Lender with respect to (and in connection with the approval of) any Additional Project Document as to which the Lender reasonably believes termination could reasonably be expected to result in a Material Adverse Effect, the Borrower shall obtain a Consent with respect to such Additional Project Document from each Project Party thereto; and

(v)    certified evidence of the authorization of such Additional Project Document by the Borrower.

“Annual Permitted Budgeted Operating Expenses Level” for any Fiscal Year, means, for all Systems, taken as a whole, in the aggregate, the product of one hundred five percent (105%) multiplied by the Operation and Maintenance Expenses (other than Subordinated Affiliate Payments) projected in the Operating Budgets in force for all such Systems during such Fiscal Year (or for such partial portion of the Fiscal Year during which the relevant Systems have reached Commencement of Operations).

“Assignment and Assumption Agreement” means that certain Assignment and Assumption Agreement, effective as of May 15, 2013, by and between the Borrower and the IIIa Borrower with respect to the Energy System Use Agreement (Number 20130403.076.C) and the Site Lease Agreement related thereto.

“Auditors” means PricewaterhouseCoopers LLP, a Delaware limited liability partnership, or other firm of similar independent auditor of recognized national standing selected by the Borrower.

“Authorized Officer” means (i) with respect to any Person that is a corporation, the chief executive officer, the chief operating officer, the president, any vice president, the treasurer or the chief financial officer of such Person, (ii) with respect to any Person that is a partnership, an Authorized Officer of a general partner of such Person, (iii) with respect to any Person that is a limited liability company, any member or manager, the president, any vice president, the treasurer or the chief financial officer of such Person, or an Authorized Officer of the member or

EXHIBIT A

2

manager of such Person, or (iv) with respect to any Person, such other representative of such Person that is approved by the Lender in writing who, in each such case, has been named as an Authorized Officer on a certificate of incumbency of such Person delivered to the Lender on or after the Closing Date.

“Authorized Representative of Credit Protection Insurer” means Arthur J. Gallagher & Co.

“Availability Period” means the period from and including the Closing Date to and including the Date Certain.

“Bank Entities” has the meaning set forth in Section 9.16 to the Credit Agreement.

“Bill of Sale” has the meaning set forth in the LTSA.

“Bloom Investor” has the meaning set forth in the Recitals to the Credit Agreement.

“Board of Governors” means the Board of Governors of the Federal Reserve System of the United States of America, or any successor thereto.

“BOF Work” has the meaning set forth in the LTSA.

“Borrower” has the meaning set forth in the Preamble to the Credit Agreement.

“Business Day” means:

(i)    any day that is neither a Saturday or Sunday nor a day on which commercial banks are authorized or required to be closed in California; and

(ii)     relative to the making, continuing, prepaying or repaying of any LIBO Loans, any day on which dealings in Dollars are carried on in the London interbank market.

“Business Interruption Insurance Proceeds” means all proceeds of any insurance policies required pursuant to the Credit Agreement or otherwise obtained with respect to the Borrower or any of the Systems relating to business interruption or delayed start-up.

“Capitalized Lease Liabilities” of any Person means all monetary obligations of such Person under any leasing or similar arrangement that, in accordance with GAAP, would be classified as capitalized leases on a balance sheet of such Person or otherwise disclosed as such in a note to such balance sheet and, for purposes of the Financing Documents, the amount of such obligations shall be the capitalized amount thereof, determined in accordance with GAAP.

“Cash Equivalents” means:

(i)    readily marketable direct obligations of the government of the United States or any agency or instrumentality thereof, or obligations unconditionally guaranteed by the full faith and credit of the government of the United States, in each case maturing within one (1) year from the date of acquisition thereof;

EXHIBIT A

3

(ii) securities issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof having maturities of not more than one (1) year from the date of acquisition thereof and, at the time of acquisition, having a rating of AA- or higher from S&P or Aa3 or higher from Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized rating service);

(iii) investments in commercial paper maturing within one hundred eighty (180) days from the date of acquisition thereof and having, at such date of acquisition, a rating of at least A-1 or P-1 from either S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized rating service);

(iv) investments in certificates of deposit, banker’s acceptances, bank deposit accounts, and time deposits maturing within two hundred and seventy (270) days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, the Accounts Bank or any domestic office of any commercial bank organized under the laws of the United States, any State thereof, any country that is a member of the Organization for Economic Co-Operation and Development or any political subdivision thereof, that has a combined capital and surplus and undivided profits of not less than five hundred million Dollars ($500,000,000);

(v) fully collateralized repurchase agreements with a term of not more than thirty (30) days for securities described in clause (i) above and entered into with a financial institution satisfying the criteria of clause (iv) of this definition; and

(vi) investments in “money market funds” within the meaning of the Investment Company Act of 1940, as amended, substantially all of whose assets are invested in investments of the type described in clauses (i) through (v) of this definition.

“Cash Flow” means, for any period, the sum (without duplication) of the following: (i) all cash paid to the Borrower during such period in connection with the Offtake Agreements, the REC Agreements, the Administrative Services Agreement, the LTSA and any Solvency Protection payments received pursuant to and as defined under the Credit Protection Insurance Policy, (ii) all interest and investment earnings paid to the Borrower or the Project Accounts during such period on amounts on deposit in the Project Accounts, (iii) all cash paid to the Borrower during such period as Business Interruption Insurance Proceeds, (iv) Prepaid Expenses paid to the Borrower and budgeted to be used during such period, and (v) all other cash paid to the Borrower during such period; provided, that Cash Flow shall not include any proceeds of the Loans or any other Indebtedness incurred by the Borrower, Insurance Proceeds, Condemnation Proceeds, Extraordinary Proceeds, Required Equity Contributions or other amounts received (whether by way of a cash capital contribution, forgiveness of debt or otherwise) from any holders of Equity Interests of the Borrower, or any other extraordinary or non-cash income or receipt of the Borrower that is treated as such under GAAP.

EXHIBIT A

4

“Cash Flow Available for Debt Service” means, for any period, an amount equal to the amount of Cash Flow deposited in the Revenue Account during such period minus all amounts paid during such period pursuant to priorities first and second of
Section 4.2(c) (Withdrawals from the Revenue Account) of the Accounts Agreement.

“Casualty Event” means an event that causes any Project, or any material portion thereof, to be damaged, destroyed or rendered unfit for normal use for any reason whatsoever.

“CERCLA” means the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9604, et seq.), as amended, and rules, regulations, standards, guidelines and publications issued thereunder.

“Change of Control” means any transaction or series of related transactions (including any merger or consolidation) the result of which is that (a) the Parent fails to maintain direct operational control of the Portfolio, (b) Pledgor fails to maintain, directly, legally or beneficially, one hundred percent (100%) of the Equity Interests of the Borrower, (c) Pledgor ceases to be the “Member” of the Borrower pursuant to the LLC Agreement of the Borrower, (d) Parent ceases to be the “Administrator” of the Borrower or Pledgor pursuant to the Administrative Services Agreement or (e) Parent ceases to be the “Seller” pursuant to the LTSA.

“Claim” means any claim, suit, demand, proceeding, complaint, assessment, lien, injunction, order, judgment, notice of non-compliance, notice of violation, investigation or other action by or before any Governmental Authority or any other Person.

“Closing Date” means July 19, 2013.

“Code” means the Internal Revenue Code of 1986, as amended.

“Collateral” means (a) all assets of each System as and when the Borrower obtains ownership thereof or is otherwise Funded, (b) all Equity Interests in the Borrower, and (c) any and all other tangible and intangible assets of Borrower, including the Project Documents and the Account Collateral, in all such cases, whether now owned or hereinafter acquired or arising, upon which a Lien is required to be created in accordance with the Financing Agreements or is purported to be created by any Security Document then in effect or contemplated to be in effect.

“Commencement of Operations” has the meaning set forth in the LTSA.

“Communications” has the meaning set forth in Section 9.11(g) (Notices and Other Communications).

“Completion Certificate” for any System, means a certificate of the Independent Engineer, substantially in the form of Exhibit F, confirming that Commencement of Operations has occurred with respect to such System.

EXHIBIT A

5

“Condemnation Proceeds” means any amounts and proceeds of any kind (including instruments) payable in respect of any Event of Taking.

“Consents” means each consent and agreement entered into among a Project Party (including the Parent), the Borrower and the Lender (including by assignment to the Lender), under which the relevant Project Party consents to the Security, agrees to deposit amounts due to the Borrower into the Revenue Account, and consents and agrees to related matters, each in form and substance reasonably satisfactory to the Lender.

“Consultants” means the Independent Engineer and the Insurance Consultant.

“Contest” means, with respect to any matter or claim involving any Person, that such Person is contesting such matter or claim in good faith and by appropriate proceedings timely instituted; provided, that all of the following conditions are satisfied: (a) such contest and any resultant failure to pay or discharge the claimed or assessed amount during the pendency of such contest does not, and could not reasonably be expected to, (i) result in a Material Adverse Effect or (ii) involve a material risk of the sale, forfeiture or loss of, or the creation, existence or imposition of any Lien on, any of the Collateral; (b) during the period of such contest, the enforcement of any contested item is effectively stayed; and (c) none of such Person or any of its officers, directors or employees, or the Lender or its respective officers, directors or employees, is or would reasonably be expected to become subject to any criminal liability or sanction in connection with such contested items.

“Contract” means with respect to any Person any contract, instrument, agreement, letter agreement or other document to which such Person is a party or by which any of its properties is bound.

“Contracted Cash Flow” means Cash Flow that will be due to be received, on a fixed basis and for a fixed price attributable to firm Contractual Obligations (i.e., take-or-pay or substantially similar provisions), by the Borrower under the Offtake Agreements and REC Agreements.

“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or any provision of any agreement, contract, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.

“Credit Agreement” means that certain Amended and Restated Credit Agreement, dated as of September 25, 2013, by and between the Borrower and the Lender.

“Credit Protection Insurer” means Indian Harbor Insurance Company.

“Credit Protection Insurance Policy” means that certain Fuel Cell Energy Production Insurance to be issued by the Credit Protection Insurer on or before the Effective Date.

“Date Certain” means the first anniversary of the Closing Date.

EXHIBIT A

6

“Debt Service” means, for any period, the sum of (i) interest on the Loans (taking into account any Rate Contracts) scheduled to become due and payable during such period to the Lender, and (ii) principal payments of the Loans (excluding any mandatory prepayments) scheduled to become due and payable during such period to the Lender.

“Debt Service Reserve Account” has the meaning set forth in the Accounts Agreement.

“Debt Service Reserve Required Amount” means, as of any date, the amount equal to all of the following scheduled amounts payable in respect of any Loans that are then outstanding or that are pending pursuant to a Funding Notice for the period of time to and including [***] (or, in the case of any calculation prior to the Date Certain, for [***] (i) interest on the Loans (taking into account any Rate Contracts) scheduled to become due and payable during such period to the Lender, and (ii) principal payments of the Loans (excluding any mandatory prepayments) scheduled to become due and payable during such period to the Lender.

“Debt Sizing Test” means a test that is satisfied when the aggregate amount of all Loans has been reduced so that, under updated Financial Models (that employ the methodology used in the Financial Models delivered by Borrower on the Closing Date, with no change in the assumptions set forth in such Financial Models, except to reflect the removal of the applicable Systems or any change in the applicable Project Documents and Rate Contracts, and which are certified by a Financial Officer of the Borrower), the ratio of Contracted Cash Flow to Debt Service for each Fiscal Quarter (assuming a fully amortizing loan with a final maturity date fifty-eight (58) Quarterly Payment Dates after the Date Certain) will be no less than [***].

“Default” means any condition, occurrence or event that, after notice or passage of time or both, would be an Event of Default.

“Defaulted System” has the meaning set forth in 8.05 (Special Cures – System Severance and Prepayment).

“Default Rate” has the meaning set forth in Section 3.04(b) (Default Interest Rate).

“Deferred Approvals” has the meaning set forth in Section 5.03(a)(iv) (Representations and Warranties - Governmental Approvals).

“Deferred Contracts” has the meaning set forth in Section 5.11(a)(iii) (Representations and Warranties - Contracts).

“Discharge Date” means the date on which (a) the outstanding Loan Commitment has been terminated and (b) all amounts payable in respect of the Obligations have been irrevocably and indefeasibly paid in full in immediately available funds or cash-collateralized (other than obligations under the Financing Documents that by their terms survive and with respect to which no claim has been made by the Lender).

“Dollar” and the sign “$” mean lawful money of the United States.

[***] Confidential Treatment Requested

EXHIBIT A

7

“Easement Documents” means all of the documents named in the definition of “Easements” and any other documents pursuant to which the Borrower is granted rights of way, easements, access rights and similar rights over real property reasonably necessary to, install, own or operate the Systems materially in accordance with the applicable Financial Model(s).

“Easements” means all rights of way, easements, access rights and similar rights over real property reasonably necessary to, construct, own or operate the Projects materially in accordance with the applicable Financial Model(s).

“Effective Date” has the meaning set forth in the Recitals to the Credit Agreement.

“Environmental Affiliate” means any Person, only to the extent of, and only with respect to, matters or actions of such Person for which, the Borrower could reasonably be expected to have liability as a result of the Borrower retaining, assuming, accepting or otherwise being subject to liability for Environmental Claims relating to such Person, whether the source of the Borrower’s obligation is by contract or operation of Law.

“Environmental Approvals” means any Governmental Approvals required under applicable Environmental Laws.

“Environmental Claim” means any written notice, claim, demand or similar written communication by any Person alleging potential liability or requiring or demanding remedial or responsive measures (including potential liability for investigatory costs, cleanup, remediation and mitigation costs, governmental response costs, natural resources damages, property damages, personal injuries, fines or penalties), in each such case arising out of, based on or resulting from (i) the presence, Release or threatened Release into the environment, of any Materials of Environmental Concern at any location, whether or not owned by such Person, (ii) circumstances forming the basis of any violation, or alleged violation, of any Environmental Laws or Environmental Approvals, or (iii) human exposure to Materials of Environmental Concern.

“Environmental Event” has the meaning set forth in Section 8.01(l) (Events of Default - Environmental Matters).

“Environmental Laws” means all Laws applicable to any of the Projects relating to pollution or protection of human health, safety or the environment (including ambient air, surface water, ground water, land surface or subsurface strata), including Laws which prohibit, regulate or control Materials of Environmental Concern (including Laws relating to emissions, discharges, Releases or threatened Releases of Materials of Environmental Concern), or Laws which are otherwise applicable to any Project relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport, management, remediation or handling of Materials of Environmental Concern.

“Equity Funding Agreement” means that certain Equity Capital Contribution Agreement, dated as of August 2, 2013, by the Tax Investor and Bloom Investor, as amended by that certain First Amendment to Equity Capital Contribution Agreement, dated as of the Effective Date, by and between the Tax Investor and Bloom Investor.

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“Equity Interests” in or of a Person, means, with respect to any Person, all of the membership interests, shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of membership interests, shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for membership interests, shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such membership interests, shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such membership interests, shares, warrants, options, rights or other interests are outstanding on any date of determination, in each such case including all voting rights and economic rights related thereto.

“ERISA” means the Employee Retirement Income Security Act of 1974, as amended, and any successor statute of similar import, together with the regulations thereunder, in each case as in effect from time to time. References to sections of ERISA also refer to any successor sections.

“ERISA Affiliate” means any Person, trade or business that, together with the Borrower, is or was treated as a single employer under Section 414 of the Code or Section 4001 of ERISA.

“ERISA Plan” means any Plan that is not a Multiemployer Plan.

“Event of Abandonment” means any of the following shall have occurred: (i) the abandonment by the Borrower of the development, operation or maintenance of any System for a period of more than thirty (30) consecutive days (other than as a result of force majeure, an Event of Taking or a Casualty Event), (ii) the suspension of all or substantially all of the Borrower’s activities with respect to any System, other than as the result of a force majeure, Event of Taking or Casualty Event, for a period of more than thirty (30) consecutive days, or (iii) any written acknowledgement by the Borrower of a final decision to take any of the foregoing actions.

“Event of Default” means any one of the events or circumstances specified in Section 8.01 (Events of Default).

“Event of Taking” means any taking, exercise of rights of eminent domain, public improvement, inverse condemnation, condemnation or similar action of or proceeding by any Governmental Authority relating to any material part of any System, any Equity Interests of the Borrower, or any other assets of the Borrower.

“Event of Total Loss” means the occurrence of a Casualty Event affecting all or substantially all of any System or the assets of the Borrower.

“Excluded Taxes” means any of the following Taxes, imposed on or with respect to the Lender or required to be withheld or deducted from a payment to the Lender, (a) Taxes (including backup withholding with respect thereto) imposed on or measured by net income

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(however denominated) and franchise Taxes, (i) imposed by the United States of America or by the jurisdiction (or any political subdivision thereof) under the laws of which such recipient is organized or conducts business or in which its principal office or applicable lending office is located, or (ii) that are Other Connection Taxes, (b) any branch profits Taxes imposed by the United States or any similar Tax imposed by any other jurisdiction, (c) any US federal withholding Tax that is imposed on amounts payable to or for the account of such recipient with respect to an applicable interest in a Loan or Commitment pursuant to a law in effect at the time such recipient acquires such interest in the Loan or Commitment (or designates a new Lending Office), except to the extent that such recipient (or its assignor, if any) was entitled, at the time of designation of a new lending office (or assignment), to receive additional amounts from the Borrower with respect to such withholding Tax pursuant to Article IV (provided that such recipient has complied with Article IV), (d) Taxes attributable to such recipient’s failure or inability to comply with Article IV, and (e) any US federal withholding Taxes imposed under FATCA.

“Extraordinary Proceeds” means (i) all proceeds of asset disposals (other than sales pursuant to the Offtake Agreements and REC Agreements) that will not be used for replacement in accordance with Section 7.02(f)(i) (Negative Covenants – Asset Dispositions) of the Credit Agreement and other than disposal of assets of Former Systems; and (ii) all Project Document Termination Payments to be deposited into the Insurance, Condemnation and Extraordinary Proceeds Account.

“FATCA” means Sections 1471 through 1474 of the Code, as of the Closing Date (or any amended or successor version that is substantively comparable and not more onerous to comply with), any regulations or official interpretations thereof and any agreements entered into pursuant to Section 1471(b)(1) of the Code.

“Fees” means, collectively, all fees payable by the Borrower for the account of the Lender pursuant to Section 3.10 (Fees).

“Financial Models” means the pro forma financial statements and projections of revenue and expenses and cash flows with respect to the Borrower and the Portfolio for the period from the Closing Date through the date that is fifty-eight (58) Quarterly Payment Dates after the Date Certain, attached to the Credit Agreement as Exhibit G, as the same may be updated by the Borrower with the prior written approval of the Lender, including as of the Effective Date.

“Financial Officer” means, with respect to any Person, the controller, treasurer or chief financial officer of such Person and with respect to any person that is a limited liability company without its own officers, the chief financial officer of the sole or managing member of such Person.

“Financing Documents” means:

(i) the Credit Agreement;

(ii) the Accounts Agreement;

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(iii) the Note;

(iv) the Security Agreement;

(v) the Pledge Agreement;

(vi) the Interparty Agreement;

(vii) the Rate Contracts;

(viii) the other Security Documents and such other financing and security agreements, documents and instruments, including Funding Notices and other certificates delivered in connection with Fundings and otherwise in connection with the Financing Documents listed above;

(ix) the Warrant Agreement;

(x) the Warrant Side Letter; and

(xi) each other document designated as a Financing Document by the Borrower and the Lender.

“Fiscal Quarter” means any quarter of a Fiscal Year.

“Fiscal Year” means any period of twelve (12) consecutive calendar months ending on December 31.

“Foreign Lender” means any Lender that is organized under the laws of jurisdiction other than the jurisdiction where the Borrower is resident for tax purposes. Under this definition, the United States of America, each State thereof and the District of Columbia are considered to be one jurisdiction.

“Former System” has the meaning set forth in Section 3.12 (System Severance).

“Funding” means the incurrence of each Loan made by the Lender on a single date and “Fund” and “Funded” have correlative meanings.

“Funding Date” means, with respect to each Funding, the date on which funds are disbursed by the Lender to the Borrower in accordance with Section 2.03 (Funding of Loans).

“Funding Notice” means each request for Funding of Loans in the form of Exhibit C delivered in accordance with Section 2.02 (Notice of Fundings).

“Funding Notice Date” means, with respect to each Funding Notice, the date on which such Funding Notice was delivered to the Lender.

“GAAP” means generally accepted accounting principles in effect from time to time in the United States, applied on a consistent basis.

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“Governmental Approval” means any authorization, consent, approval, license, lease, ruling, permit, certification, exemption or filing for registration by or with any Governmental Authority.

“Governmental Authority” means any nation, state, sovereign, or government, any federal, regional, state, local or political subdivision and any entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.

“Guarantee” means, as to any Person, (a) any obligation, contingent or otherwise, of such Person guaranteeing or having the economic effect of guaranteeing any Indebtedness or other obligation payable or performable by another Person (the “primary obligor”) in any manner, whether directly or indirectly, and including any obligation of such Person, direct or indirect, (i) to purchase or pay (or advance or supply funds for the purchase or payment of) such Indebtedness or other obligation, (ii) to purchase or lease property, securities or services for the purpose of assuring the obligee in respect of such Indebtedness or other obligation of the payment or performance of such Indebtedness or other obligation, (iii) to maintain working capital, equity capital or any other financial statement condition or liquidity or level of income or cash flow of the primary obligor so as to enable the primary obligor to pay such Indebtedness or other obligation, or (iv) entered into for the purpose of assuring in any other manner the obligee in respect of such Indebtedness or other obligation of the payment or performance thereof or to protect such obligee against loss in respect thereof (in whole or in part), or (b) any Lien on any assets of such Person securing any Indebtedness or other obligation of any other Person, whether or not such Indebtedness or other obligation is assumed by such Person (or any right, contingent or otherwise, of any holder of such Indebtedness to obtain any such Lien).

“Historical Debt Service Coverage Ratio” or “HDSCR” means, as of any Quarterly Payment Date, for the four (4) Fiscal Quarters immediately preceding (including the then-current Fiscal Quarter) such Quarterly Payment Date (or, if less than four (4) Fiscal Quarters have elapsed since the Date Certain, for such number of full Fiscal Quarters that has elapsed since the Date Certain), the ratio of (i) Cash Flow Available for Debt Service during such period to (ii) Debt Service during such period.

“Historical Debt Service Coverage Test” is a test that is satisfied when the Historical Debt Service Coverage Ratio, as calculated as of a Quarterly Payment Date, is greater than or equal to [***].

“IIIa Borrower” means 2012 ESA Project Company, LLC, a Delaware limited liability company.

“Immaterial Contracts” means contracts, agreements, instruments, letter agreements, or other documents to which the Borrower is a party or any of its properties is bound: (a) that is not within the definition of Major Project Documents or Easement Documents, (b) under which the Borrower could not reasonably be expected to have obligations, liabilities or revenues equal to or in excess of [***] per year, and (c) a termination of which could not reasonably be expected to result in a Material Adverse Effect.

[***] Confidential Treatment Requested

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“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

(i) all obligations of such Person for or in respect of moneys borrowed or raised, whether or not for cash by whatever means (including acceptances, deposits, discounting, letters of credit, factoring, and any other form of financing which is recognized in accordance with GAAP in such Person’s financial statements as being in the nature of a borrowing or is treated as “off-balance sheet” financing);

(ii) all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;

(iii) all obligations of such Person for the deferred purchase price of property or services;

(iv) all obligations of such Person under conditional sale or other title retention agreements relating to property or assets acquired by such Person (even though the rights and remedies of the seller or lender under such agreement in the event of default are limited to repossession or sale of such property or are otherwise limited in recourse);

(v) the maximum amount of all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments;

(vi) all Capitalized Lease Liabilities;

(vii) net obligations of such Person under any Rate Contract;

(viii) all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interests in such Person or any other Person or any warrants, rights or options to acquire such Equity Interests, valued, in the case of redeemable preferred interests, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; and

(ix) all Guarantees of such Person in respect of any of the foregoing.

For all purposes of the Credit Agreement, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer, unless such Indebtedness is expressly made non-recourse to such Person.

“Indemnitee” has the meaning set forth in Section 9.08 (Indemnification by the Borrower).

“Independent Engineer” means SAIC Energy, Environment and Infrastructure, LLC or any supplementary or replacement independent engineer appointed by the Lender and reasonably acceptable to the Borrower.

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“Insolvency or Liquidation Proceeding” means, with respect to any Person:

(i) any case commenced by or against such Person under any Law for the relief of debtors, any other proceeding for the reorganization, recapitalization or adjustment or marshalling of the assets or liabilities of such Person, any receivership or assignment for the benefit of creditors relating to the Person or any similar case or proceeding relative to such Person, or their respective creditors, as such, in each case whether or not voluntary;

(ii) any liquidation, dissolution, marshalling of assets or liabilities or other winding up of or relating to such Person, in each case whether or not voluntary and whether or not involving bankruptcy or insolvency; or

(iii) any other proceeding of any type or nature in which substantially all claims of creditors of the relevant Person are determined and any payment or distribution is or may be made on account of such claims.

“Insurance, Condemnation Proceeds and Extraordinary Proceeds Account” has the meaning set forth in the Accounts Agreement.

“Insurance Consultant” means Moore-McNeil, LLC, or any replacement insurance consultant appointed by the Lender and reasonably acceptable to the Borrower.

“Insurance Proceeds” means all proceeds of any insurance policies, including the Credit Protection Insurance Policy (except to the extent such payments constitute “Cash Flow” pursuant to the definition of such term set forth herein), required pursuant to the Credit Agreement or otherwise obtained with respect to the Borrower or any System that are paid or payable to or for the account of the Borrower, or the Lender as loss payee, or additional insured (other than Business Interruption Insurance Proceeds, life insurance or key man insurance proceeds and proceeds of insurance policies relating to third party liability).

“Interconnection Notice” has the meaning set forth in the Offtake Agreements.

“Interparty Agreement” means that certain Interparty Agreement, dated as of August 2, 2013, by and among the Borrower, the Tax Investor and the Lender, as amended by that certain First Amendment to Interparty Agreement, dated as of the Effective Date, by and among the Borrower, the Tax Investor and the Lender.

“Interest Payment Date” means the last day of each applicable Interest Period.

“Interest Period” means, with respect to any Loan, the period beginning on (and including) the date on which such Loan is made pursuant to Section 2.03 (Funding of Loans) or the date on which each successive interest period for each such Loan is determined pursuant to Section 3.03 (Interest Rates) and ending on (and excluding) the day that numerically corresponds to such date three (3) months thereafter; provided, that (i) if such Interest Period would otherwise end on a day that is not a Business Day, such Interest Period shall end on the next following Business Day (unless such next following Business Day is in a different calendar

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month, in which case such Interest Period shall end on the next preceding Business Day), and (ii) any Interest Period that begins on the last Business Day of a month (or on a day for which there is no numerically corresponding day in the month at the end of such Interest Period) shall end on the last Business Day of the month at the end of such Interest Period.

“Investment Grade” means a long-term senior unsecured credit rating, long-term local issuer credit rating or insurer financial strength rating of at least BBB- by S&P or Baa3 by Moody’s, or, if either agency is not then in the business of providing ratings, equivalent ratings from any other entity that is then a nationally recognized statistical rating organization.

“IP License Agreement” means that certain Intellectual Property License, dated as of the Closing Date, between the Borrower and the Parent.

“IP License Security Agreement” means that certain Intellectual Property Security Agreement, dated as of the Closing Date, between the Borrower and the Parent.

“ISDA Schedule” means that certain ISDA Schedule, dated as of August 7, 2013, by and between the Borrower and the Lender.

“Law” means, with respect to any Governmental Authority, any constitutional provision, law, statute, rule, regulation, ordinance, treaty, order, decree, judgment, decision, holding, injunction, Governmental Approval or requirement of such Governmental Authority. Unless the context clearly requires otherwise, the term “Law” shall include each of the foregoing (and each provision thereof) as in effect at the time in question, including any amendments, supplements, replacements, or other modifications thereto or thereof, and whether or not in effect as of the Closing Date.

“Leasehold Property” means all leasehold interests and similar real property rights held by the Borrower under the Leases.

“Leases” means all agreements under which the Borrower acquires a leasehold interest or similar rights over real property, including those listed on Schedule 5.11.

“Lender” has the meaning set forth in the Preamble to the Credit Agreement.

“LIBO Base Rate” means, for any Interest Period, the rate per annum equal to the British Bankers Association LIBO Rate (“BBA LIBOR”), as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by Lender from time to time) at approximately 11:00 a.m., London time, two (2) Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term approximately equivalent to such Interest Period. In the event that the Lender determines that BBA LIBOR is not available, the “LIBO Base Rate” shall be determined by reference to the rate per annum equal to the offered quotation rate to first class banks in the London interbank market by the Lender for deposits (for delivery on the first day of the relevant Interest Period) in Dollars of amounts in same day funds comparable to the principal amount of the applicable Loan, for which the LIBO Base Rate is then being determined with maturities comparable to such period, as of approximately 11:00 A.M. (London, England time) two (2) Business Days prior to the beginning of such Interest Period.

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“LIBO Rate” means for any Interest Period, a rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to (i) the LIBO Base Rate for such Interest Period divided by (ii) one (1) minus the Reserve Requirement for such Interest Period.

“Lien” means any security interest, mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, bailment, conditional sales or title retention agreement, lien (statutory or otherwise), charge against or interest in property, in each case of any kind, to secure payment of a debt or performance of an obligation.

“LLC Agreement of the Borrower” means that certain Amended and Restated Limited Liability Company Agreement of the Borrower, dated as of August 2, 2013, by the Pledgor, and as may be amended thereafter from time to time in accordance with the Financing Documents.

“LLC Agreement” of a Person means the Limited Liability Company Agreement, Operating Agreement or other similar agreement of such Person.

“Loan Commitment” means the sum of Thirty-Two Million Five Hundred Thousand Dollars ($32,500,000), as the same may be reduced in accordance with Section 2.05 (Termination or Reduction of Commitment).

“Loan Conditions” means all conditions precedent for Funding a Loan, including all conditions precedent for Funding Loans in accordance with Article VI (Conditions Precedent).

“Loan Parties” means, collectively, the Borrower, the Pledgor and the Parent.

“Loans” has the meaning set forth in Section 2.01(a) (Loans – Loans Generally).

“LTSA” means that certain Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of September 25, 2013, between the Parent and the Borrower.

“Maintenance Reserve Account” has the meaning set forth in the Pledgor LLC Agreement.

“Maintenance Reserve Required Amount” means the amount required to be funded in the Maintenance Reserve Account in accordance with the Pledgor LLC Agreement.

“Major Project Documents” means the Offtake Agreements and each interconnection agreement related to any Offtake Agreement, the IP Security Agreement, the IP License Agreement, the PPA Indemnity Agreement, the PPA Amendments, the PPA Acknowledgement, the Assignment and Assumption Agreement, the LTSA, the Administrative Services Agreement, each of the Leases and Easement Documents, any REC Agreement, the LLC Agreement of the Borrower, the Pledgor LLC Agreement, the Equity Funding Agreement, any Project Document replacing any such Major Project Document or entered into in connection therewith, and any other Project Document and/or Contract entered into with an Affiliate of the Borrower identified as a Major Project Document on Schedule 5.11 or otherwise designated as a Major Project Document by the Lender and the Borrower.

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“Major Project Party” means each party to a Major Project Document (other than the Borrower), each party replacing any such Major Project Party under the relevant Project Document or an agreement replacing such relevant Project Document, and any other Project Party designated as a Major Project Party by the Lender and the Borrower.

“Mandatory Prepayment” means a prepayment in accordance with Section 3.08 (Mandatory Prepayment).

“Material Adverse Effect” means any event, development or circumstance that has had or could reasonably be expected to have (i) a material adverse effect on the business, assets, property, condition (financial or otherwise) or operations of the Borrower or, taken as a whole, the Portfolio, (ii) a material adverse effect on the ability of the Borrower or any Major Project Party to perform its material obligations under any Transaction Document to which it is a party, (iii) an adverse effect on the creation, perfection or priority of the Liens granted, or purported to be granted, in favor, or for the benefit, of the Lender on any material portion of the Collateral pursuant to the Security Documents, or (iv) a material adverse effect on the rights or remedies of the Lender under any Financing Document.

“Materials of Environmental Concern” means any chemical, material, emission, substance, discharge, or waste that is designated or listed by a Governmental Authority to be radioactive, hazardous, deleterious, a pollutant, or a contaminant, or is otherwise a danger to health, reproduction or the environment.

“Maturity Date” means October 1, 2020, or the Business Day immediately preceding such date if such date is not a Business Day.

“Maximum Rate” has the meaning set forth in Section 9.09 (Interest Rate Limitation).

“Moody’s” means Moody’s Investors Service, Inc., and any successor thereto that is a nationally recognized rating agency.

“Mortgage” means any mortgage (or deed of trust), assignment of leases and rents, security agreement, financing statement, fixture filing or similar document granting any Person a Lien, or perfecting any such Lien, on any Leasehold Property or other real property interests of the Borrower; provided, however, that any Lien on the fee interest of the real property subject to the Leases shall not be considered a Mortgage.

“Multiemployer Plan” means a Plan that is a “multiemployer plan” as defined in Section 4001(a)(3) of ERISA.

“Necessary Approvals” means, collectively, all Necessary Approvals – Financing Documents, all Necessary Approvals – Project Documents and all Deferred Approvals.

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“Necessary Approvals – Financing Documents” has the meaning set forth in Section 5.03(a)(i) (Representations and Warranties - Governmental Approvals).

“Necessary Approvals – Project Documents” has the meaning set forth in Section 5.03(a)(i) (Representations and Warranties - Governmental Approvals).

“Necessary Contracts” has the meaning set forth in Section 5.11(a)(i) (Representations and Warranties - Contracts).

“Non-Appealable” means, with respect to any specified time period allowing an appeal of any ruling under any constitutional provision, Law, statute, rule, regulation, ordinance, treaty, order, decree, judgment, decision, certificate, holding or injunction that such specified time period has elapsed without an appeal having been brought.

“Non-Excluded Taxes” has the meaning set forth in Section 4.03(a) of the Credit Agreement.

“Non-U.S. Lender” has the meaning set forth in Section 4.03(d) of the Credit Agreement.

“Note” means the promissory note issued by the Borrower, substantially in the form of Exhibit B, as may be amended, restated, supplemented or otherwise modified from time to time.

“Obligations” means and includes all loans, advances, debts, liabilities, Indebtedness, Secured Rate Contract obligations and other obligations, howsoever arising, owed by the Borrower to the Lender or any Secured Swap Provider of every kind and description (whether or not evidenced by any note or instrument and whether or not for the payment of money), direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against the Borrower of any Insolvency or Liquidation Proceeding naming the Borrower as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding, pursuant to the terms of the Credit Agreement, the Rate Contracts or any of the other Financing Documents, including all principal, interest, fees, charges, expenses, attorneys’ fees, costs and expenses, accountants’ fees and Consultants’ fees payable by the Borrower thereunder.

“Offtake Agreement” means each Contract under which the Borrower operates the Systems in order to generate and deliver electric energy to a Qualified Customer in exchange for the compensation set forth in such Contract, including those listed on Schedule 5.11.

“Operating Account” has the meaning set forth in the Accounts Agreement.

“Operating Budget” means each operating budget provided for a System setting forth in reasonable detail the projected revenues and the projected requirements for Operation and Maintenance Expenses of such System which is delivered to and approved by the Lender pursuant to Section 6.01(e) (Conditions to Closing – Financial Models; Operating Budget) and Section 7.01(j) (Affirmative Covenants – Operating Budgets).

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“Operating Report” has the meaning set forth in Section 7.03(m).

“Operation and Maintenance Expenses” means, for any period, the sum without duplication of all (i) reasonable and necessary expenses of administering, managing and operating, and generating energy for sale from the Systems and maintaining all Systems and other assets associated with the Systems in good repair and operating condition, including amounts payable by the Borrower pursuant to the LTSA and the Administrative Services Agreement, (ii) all reasonable and necessary insurance costs, (iii) property, sales and franchise taxes to the extent that the Borrower is liable to pay such taxes to the taxing authority (other than taxes imposed on or measured by income or receipts) to which the Systems, may be subject (or payment in lieu of such taxes to which the Borrower or the Systems may be subject), (iv) reasonable and necessary costs and fees incurred in connection with obtaining and maintaining in effect Necessary Approvals, (v) with respect each System, [***] per kW for such System, beginning on the fourth (4th) quarterly date after such System is placed in service through the sixteenth (16th) quarterly date after such system is placed in service, and (vi) all other costs and expenses included in the then-current Operating Budget(s); provided, that Restricted Payments and Subordinated Affiliate Payments shall not constitute Operation and Maintenance Expenses.

“Organic Documents” means, with respect to any Person that is a corporation, its certificate of incorporation, its by-laws and all shareholder agreements, voting trusts and similar arrangements applicable to any of its authorized shares of capital stock and, with respect to any Person that is a limited liability company, its certificate of formation or articles of organization and its limited liability company agreement.

“Other Connection Taxes” means, with respect to the Lender, Taxes imposed as a result of a present or former connection between the Lender and the jurisdiction imposing the Tax (other than a connection arising from the execution, delivery or enforcement of, or performance under, or receipt of payments under any Financing Document, or from the sale or assignment of an interest in any Loan or Financing Document).

“Other Taxes” means any and all present or future stamp, court, recording, filing, intangible, documentary or similar Taxes or any other excise or property Taxes, charges or similar levies arising from any payment made hereunder or under any other Financing Document or from the execution, delivery or enforcement or registration of, or performance under, or from the receipt or perfection of a security interest under or otherwise with respect to this Agreement or any other Financing Document (other than Excluded Taxes and Other Connection Taxes imposed with respect to an assignment).

“Parent” means Bloom Energy Corporation.

“Parent Cross Default Event” means, with respect to the Indebtedness of the Parent where the Lender or any Affiliate of the Lender is a counterparty, (i) a default occurs in the payment when due (subject to any applicable grace period and notice requirements), whether by acceleration or otherwise, of such Indebtedness, or (ii) the Parent fails to observe or perform (subject to any applicable grace periods and notice requirements) any other agreement or condition relating to any such Indebtedness or contained in any instrument or agreement

[***] Confidential Treatment Requested

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evidencing, securing or relating thereto, or any other event occurs, the effect of which default or other event is to cause the holder or holders of such Indebtedness or the beneficiary or beneficiaries of any Guarantee (or a trustee or agent on behalf of such holder or holders or beneficiary or beneficiaries) to cause, with the giving of notice if required, such Indebtedness to be demanded or to become due or to be repurchased, prepaid, defeased or redeemed (automatically or otherwise), or an offer to repurchase, prepay, defease or redeem such Indebtedness to be made, prior to its stated maturity, or such Guarantee to become payable or cash collateral in respect thereof to be demanded.

“Participant” has the meaning set forth in Section 9.03(c) (Assignments).

“Patriot Act” means United States Public Law 107-56, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) of 2001, and the rules and regulations promulgated thereunder from time to time that are in effect.

“PBGC” means the Pension Benefit Guaranty Corporation and any entity succeeding to any or all of its functions under ERISA.

“Performance Tests” for any System, means the performance or measurement tests for such System with respect to the achievement of Commencement of Operations.

“Permitted Indebtedness” means Indebtedness identified in Section 7.02(a) (Negative Covenants - Restrictions on Indebtedness of the Borrower).

“Permitted Liens” has the meaning set forth in Section 7.02(b) (Negative Covenants - Liens).

“Person” means any natural person, corporation, partnership, limited liability company, firm, association, trust, government, governmental agency or any other entity, whether acting in an individual, fiduciary or other capacity.

“Plan” means an employee pension benefit plan (as defined in Section 3(3) of ERISA) subject to Title IV of ERISA or Section 412 of the Code that is sponsored or maintained by the Borrower or any ERISA Affiliate, or in respect of which the Borrower or any ERISA Affiliate has any obligation to contribution or Liability.

“Pledge Agreement” means the Equity Pledge Agreement, dated as of the Closing Date, by and between the Pledgor and the Lender, pursuant to which the Pledgor pledges one hundred percent (100%) of the Equity Interests in the Borrower.

“Pledgor” has the meaning set forth in the Recitals to the Credit Agreement.

“Pledgor LLC Agreement” means that certain Amended and Restated Operating Agreement of Pledgor, dated as of August 2, 2013, by and between Bloom Investor and the Tax Investor.

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“Portfolio” has the meaning set forth in the Recitals to the Credit Agreement.

“PPA Acknowledgement” means that certain Acknowledgement and Consent Regarding Assignment and Amendment, effective as of May 15, 2013, by and among the IIIa Borrower, the Borrower, PE12GVVC (Bloom PPA) Ltd. and [***] and consented to by the Parent.

“PPA Amendments” means, collectively, that certain (i) Amendment No. 1 to Agreement No. 20130430.078.C, effective as of May 15, 2013, by and between the Borrower and AT&T Corp. and (ii) Amendment No. 1 to Agreement No. 20130430.072.C, effective as of May 15, 2013, by and between the Borrower and Pacific Bell Telephone Company.

“PPA Indemnity Agreement” means that certain Amended and  Restated Indemnity Agreement, dated as of September 25, 2013, between the Borrower and the Parent.

“Prepaid Expenses” means the amount, in $/kW, applicable to the System(s) that are the subject of the Funding, that is the amount of prepaid expenses set forth in the Financial Models delivered by Borrower to Lender on or prior to the first Funding Date pursuant to Section 6.02(t) of the Credit Agreement.

“Prime Base Rate” means the rate as published from time to time in the Wall Street Journal and identified as the “prime rate.”

“Project Accounts” means: (a) the Revenue Account, (b) the Operating Account, (c) the Restricted Payments Account, (d) the Debt Service Reserve Account and (e) the Insurance, Condemnation Proceeds and Extraordinary Proceeds Account.

“Project Document Termination Payments” means all payments that are required to be paid to or for the account of the Borrower as a result of the full or partial termination of, or any default under, any Project Document, including without limitation (a) any payments made by Qualified Customers under the Offtake Agreements in connection with any termination of all or any portion of such Offtake Agreements or any liquidated damages or indemnity obligations and (b) any payments made by the Parent under the LTSA or the Administrative Services Agreement in connection with any termination of all or any portion of such Project Documents or any liquidated damages, warranty, indemnification or System repurchase or refund payments.

“Project Documents” means:

(i)    all of the Major Project Documents;

(ii)    all other documents listed or required to be listed on Schedule 5.11;

(iii)    any other documents designated as a Project Document applicable to any System or the Borrower by the Borrower and the Lender;

(iv)    each Additional Project Document; and

(v)    any replacement agreement for any such agreement.

EXHIBIT A

21

“Project Party” means each Person (other than the Borrower) who is a party to a Project Document.

“Prospective Debt Service Coverage Ratio” or “PDSCR” means, as of any Quarterly Payment Date, the ratio of (i) Cash Flow Available for Debt Service that the Borrower projects will be available during the two (2) upcoming Fiscal Quarters to (ii) Debt Service projected for the same two (2) Fiscal Quarters. Projections of Cash Flow Available for Debt Service shall be based on the then-current Operating Budgets approved in accordance with Section 7.01(j) (Affirmative Covenants – Operating Budgets) (or, if one or more of the upcoming two Fiscal Quarters falls in a period for which an Operating Budget has not yet been so approved, based on the budget levels permitted under clause (ii) of such Section 7.01(j)); provided, that, if the Borrower has knowledge of any event(s) or circumstance(s) reasonably expected to materially alter the Cash Flow Available for Debt Service reflected in those budgets, the effects of such events or circumstances shall be reflected in the projections.

“Prospective Debt Service Coverage Test” means a test that is satisfied when the Prospective Debt Service Coverage Ratio is greater than or equal to [***] when considering Contracted Cash Flow.

“Prudent Operating Practice” means those reasonable practices, methods and acts that (i) are commonly used in the United States where the Systems are located to manage, operate and maintain fuel cell to energy facilities of the size and type that comprise the relevant System safely, reliably, and efficiently and in compliance with applicable Laws, manufacturers’ warranties and manufacturers’ and licensor’s recommendations and guidelines, and (ii) in the exercise of reasonable judgment, skill, diligence, foresight and care are expected of an operator of fuel cell to energy facilities, in order to efficiently accomplish the desired result consistent with safety standards, applicable Laws, manufacturers’ warranties, manufacturers’ recommendations and, in the case of the Systems, the Project Documents. Prudent Operating Practice does not necessarily mean one particular practice, method, equipment specifications or standard in all cases, but is instead intended to encompass a broad range of acceptable practices, methods, equipment specifications and standards.

“Purchase Price” has the meaning assigned to such term in the LTSA.

“Qualified Appraiser” has the meaning set forth in the LTSA.

“Qualified Customers” means AT&T Corp. and any other Person that is approved by the Lender in its sole discretion.

“Quarterly Payment Date” means each of January 1, April 1, July 1 and October 1.

“Quarterly Period” means each three (3) month period beginning on (and including) the day immediately following a Quarterly Payment Date and ending on (and including) the next Quarterly Payment Date.

“Rate Contracts” means any swap agreement (as such term is defined in Section 101 of the Bankruptcy Code) and all other agreements or documents now existing or hereafter entered

[***] Confidential Treatment Requested

EXHIBIT A

22

into by the Borrower that provide for an interest rate, credit, commodity or equity swap, cap, floor, collar, forward foreign exchange transaction, currency swap, cross currency rate swap, currency option or any similar transaction, or any combination of, or option with respect to, these or similar transactions, for the purpose of hedging the Borrower’s exposure to fluctuations in interest rates, currency exchange rates, loan, credit exchange, security, or commodity prices.

“RCRA” means the Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), as amended, and all rules, regulations, standards, guidelines, and publications issued thereunder.

“REC Agreement” means a Contract pursuant to which the Borrower is entitled to receive payment in exchange for the sale or assignment of renewable energy credits or similar environmental attributes.

“Regulation D” means Regulation D under the Securities Act, as in effect from time to time.

“Regulation T” means Regulation T of the Board of Governors, as in effect from time to time.

“Regulation U” means Regulation U of the Board of Governors, as in effect from time to time.

“Regulation X” means Regulation X of the Board of Governors, as in effect from time to time.

“Related Parties” means, with respect to any Person, such Person’s Affiliates and the partners, directors, officers, employees, agents and advisors of such Person and of such Person’s Affiliates.

“Release” means a “release” as defined in Section 9601 of CERCLA.

“Removal,” “Remedial” and “Response” actions shall include the types of activities identified in CERCLA, RCRA, and other comparable Environmental Laws to address Materials of Environmental Concern, whether the activities are those which might be taken by a Governmental Authority or those which a Governmental Authority or any other Person might seek to require potentially responsible parties, liable parties, waste generators, handlers, distributors, processors, users, disposers, storers, treaters, owners, operators, transporters, recyclers, reusers, disposers or other Persons to take.

“Reportable Event” means a “reportable event” within the meaning of Section 4043(c) of ERISA.

“Required Amortization Payment” means, on each Quarterly Payment Date, an amount equal to percentage amount specified in Schedule 1.01 of the aggregate principal balance of the Loans as of the Date Certain; provided, that for purposes of computing the Required Amortization Payment, the aggregate principal balance of the Loans shall be deemed to be reduced by the amount of any prepayment of Loans made in accordance with Section

EXHIBIT A

23

3.08(a)(i)(A) (Mandatory Prepayment – Insurance Proceeds, Condemnation Proceeds or Extraordinary Proceeds), Section 3.08(b) (Mandatory Prepayment – Restricted Payment Account) and Section 3.12 (System Severance).

“Required Consents” means all of the consents set forth in Schedule 6.02 and such other consents as may become Required Consents in connection with changes to the Necessary Contracts from the form such documents were in as at the Closing Date or upon the reasonable request of the Lender in light of additional Project Documents entered into following the Closing Date or factual developments related to existing or new Project Documents following the Closing Date that suggest the need for a third-party consent or clarification from the relevant Project Party.

“Required Equity Contribution” means for each System, an amount equal to [***] of the Purchase Price of such System.

“Required LLC Provisions” has the meaning set forth in Section 5.24 (Representations and Warranties - Required LLC Provisions).

“Reserve Requirement” means, for any Interest Period, the average maximum rate at which reserves (including any marginal, supplemental or emergency reserves) are required to be maintained during such Interest Period under Regulation D against “Eurocurrency liabilities” (as such term is used in Regulation D) by member agents of the Federal Reserve System.

“Restoration or Replacement Plan” means a plan and time schedule, reasonably satisfactory to the Lender and the Independent Engineer, for the application of Insurance Proceeds and Condemnation Proceeds arising from any Casualty Event or Event of Taking, respectively, and any other funds available to the Borrower with which to restore or replace the affected System, or any portion thereof, affected by such Casualty Event or Event of Taking.

“Restricted Payment Certificate” has the meaning set forth in the Accounts Agreement.

“Restricted Payments” means any (a) dividend or other distribution (whether in cash, securities or other property), or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any Equity Interests of the Borrower, or on account of any return of capital to any holder of any such Equity Interest in, or any other Affiliate of, the Borrower, or any option, warrant or other right to acquire any such dividend or other distribution or payment, (b) any payment of any management, consultancy, administrative, services, or other similar payments to any Person who owns, directly or indirectly, any Equity Interest in the Borrower, or any Affiliate of any such Person, or (c) any payment of indemnification obligations by the Borrower to the Parent or the Pledgor pursuant to the LLC Agreement of the Borrower or the LTSA or Administrative Services Agreement; provided, that service fees paid by the Borrower to the Parent pursuant to the Administrative Services Agreement and the LTSA shall not constitute Restricted Payments if such fees are provided for in the fixed price and budget under such contracts or the Operating Budget.

[***] Confidential Treatment Requested

EXHIBIT A

24

“Restricted Payments Account” has the meaning set forth in the Accounts Agreement.

“Revenue Account” has the meaning set forth in the Accounts Agreement.

“S&P” means Standard & Poor’s Financial Services, LLC and any successor thereto that is a nationally recognized rating agency.

“Secured Parties” means the Lender and any Secured Swap Provider.

“Secured Rate Contract” means any Rate Contract entered into in writing under an ISDA Master Agreement (a) between the Borrower and Secured Swap Provider, (b) that has been provided or arranged by the Lender or its Affiliate and (c) if the Swap Provider is not the Lender or its Affiliate at the time of execution and delivery of such Rate Contract, the Lender has acknowledged in writing such Rate Contract constitutes a “Secured Rate Contract” hereunder and the Lender and such Swap Provider have entered into an agency addendum to the ISDA Master Agreement.

“Secured Swap Provider” means (i) the Lender or an Affiliate of the Lender (or a Person who was the Lender or an Affiliate of the Lender at the time of execution and delivery of a Secured Rate Contract) who has entered into a Secured Rate Contract with the Borrower, or (ii) a Person with whom the Borrower has entered into a Secured Rate Contract provided or arranged by the Lender or an Affiliate of the Lender, and any assignee thereof.

“Securities Act” means the Securities Act of 1933, as now or hereafter in effect, and any successor statute.

“Security” means the security interest created in favor of the Lender (including in its role as agent for the Secured Swap Providers) pursuant to the Security Documents.

“Security Agreement” means the Assignment and Security Agreement, dated as of the Closing Date, by and between the Lender and the Borrower.

“Security Documents” means:

(i)    the Credit Agreement (to the extent that it relates to the Project Accounts or other Collateral);

(ii)    the Accounts Agreement;

(iii)    the Consents;

(iv)    the Pledge Agreement;

(v)    the Security Agreement;

(vi)    any other document designated as a Security Document by the Borrower and the Lender; and

EXHIBIT A

25

(vii)    any UCC or other financing statements, notices, authorization letters, or other certificates filed, recorded or delivered in connection with the foregoing.

“Service Provider” has the meaning set forth in the LTSA.

“Severance Amount” has the meaning set forth in Section 3.12(b)(iv) (System Severance-Process and Requirements).

“Severance Notice” has the meaning set forth in Section 3.12(b)(i) (System Severance-Process and Requirements).

“Sites” means the real property on which each of the Systems is or is to be located and all related easements, rights-of-way and other rights and interests.

“Special System Event” has the meaning set forth in Section 8.05(a) (Special Cures – System Severance and Prepayment).

“Subordinated Affiliate Payments” has the meaning set forth in the Accounts Agreement.

“Subsidiary” of any Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other Equity Interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person.

“Systems” has the meaning set forth in the Recitals to the Credit Agreement.

“System Severance” has the meaning set forth in Section 3.12 (System Severance).

“System Discharge Date” has the meaning set forth in Section 3.12 (System Severance).

“System-Specific Discharge Date” has the meaning set forth in Section 3.12 (System Severance).

“Tax” or “Taxes” means any present or future taxes (including income, gross receipts, license, payroll, employment, excise, severance, stamp, documentary, occupation, premium, windfall profits, environmental, capital stock, franchise, profits, withholding, social security (or similar), unemployment, disability, real property, personal property, sales, use, transfer, registration, value-added, ad valorem, alternative or add-on minimum, estimated, or other tax of any kind whatsoever), levies, imposts, duties, fees or charges (including any interest, penalty, or addition thereof) imposed by any government or any Governmental Authority or any international or multinational agency or commission.

“Tax Investor” has the meaning set forth in the Recitals to the Credit Agreement.

EXHIBIT A

26

“Tax Return” means all returns, declarations, reports, claims for refund and information returns and statements of any Person required to be filed with respect to, or in respect of, any Taxes, including any schedule or attachment thereto and any amendment thereof.

“Termination Agreement” means that certain Termination Agreement, dated  as of September 17, 2013, by and between the IIIa Borrower and the Borrower.

“Termination Event” means (i) a Reportable Event with respect to any ERISA Plan, (ii) the initiation of any action by the Borrower, any ERISA Affiliate or any ERISA Plan fiduciary to terminate an ERISA Plan (other than a standard termination under Section 4041(b) of ERISA) or the treatment of an amendment to an ERISA Plan as a termination under Section 4041(e) of ERISA, (iii) the institution of proceedings by the PBGC under Section 4042 of ERISA to terminate an ERISA Plan or to appoint a trustee to administer any ERISA Plan, (iv) the withdrawal of the Borrower or any ERISA Affiliate from a Multiemployer Plan during a plan year in which the Borrower or such ERISA Affiliate was a “substantial employer” as defined in Section 4001(a)(2) of ERISA or the cessation of operations which results in the termination of employment of twenty percent (20%) of Multiemployer Plan participants who are employees of the Borrower or any ERISA Affiliate, (v) the partial or complete withdrawal of the Borrower or any ERISA Affiliate from a Multiemployer Plan, or (vi) the Borrower or any ERISA Affiliate is in default (as defined in Section 4219(c)(5) of ERISA) with respect to payments to a Multiemployer Plan.

“Test Report” has the meaning set forth in Section 7.01(k) (Affirmative Covenants – Performance Test).

“Threat of Release” shall mean “threat of Release” as used in CERCLA.

“Tracking Account” has the meaning set forth in the Accounts Agreement.

“Transaction Documents” means, collectively, the Financing Documents and the Project Documents.

“Unfunded Benefit Liabilities” means, with respect to any ERISA Plan at any time, the amount (if any) by which (i) the present value of all accrued benefits calculated on an accumulated benefit obligation basis and based upon the actuarial assumptions used for accounting purposes (i.e., those determined in accordance with FASB statement No. 35 and used in preparing the ERISA Plan’s financial statements) exceeds (ii) the fair market value of all ERISA Plan assets allocable to such benefits, determined as of the then most recent actuarial valuation report for such ERISA Plan.

“Uniform Commercial Code” or “UCC” means the Uniform Commercial Code as in effect from time to time in the State of California; provided, in the event that, by reason of mandatory provisions of law, any or all of the perfection or priority of the security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of California, the term “UCC” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of provisions relating to such perfection or priority and for purposes of definitions related to such provisions.

EXHIBIT A

27

“United States” or “U.S.” means the United States of America, its fifty States and the District of Columbia.

“United States Person” means a “United States person” as defined in Section 7701(a)(30) of the Code.

“Unscheduled Maintenance Expenses” means all expenditures by the Borrower for unscheduled or emergency maintenance that are reasonably necessary or advisable to comply with any Law or to respond to acts of nature or other unforeseen circumstances in accordance with Prudent Operating Practice.

“Warrant Agreement” means that certain Agreement and Warrant to Purchase Series F Preferred Stock, dated as of the Closing Date, by the Parent.

“Warrant Side Letter” means that certain “Side Letter” to Agreement and Warrant to Purchase Series F Preferred Stock, dated as of the Closing Date, by the Parent to Lender.

EXHIBIT A

28

Exhibit B

to Credit Agreement

[FORM OF NOTE]

2013B ESA PROJECT COMPANY, LLC

THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MAY NOT BE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE TERMS AND PROVISIONS OF THE CREDIT AGREEMENT REFERRED TO BELOW. ANY TRANSFER IN VIOLATION OF SUCH TERMS AND PROVISIONS SHALL BE VOID. TRANSFERS OF THIS NOTE AND THE OBLIGATIONS REPRESENTED HEREBY MUST BE RECORDED IN THE REGISTER MAINTAINED BY LENDER PURSUANT TO THE TERMS OF SUCH CREDIT AGREEMENT.

$32,500,000 Santa Clara, California [insert Closing Date]

FOR VALUE RECEIVED, the undersigned, 2013B ESA Project Company, LLC, a Delaware limited liability company (“Borrower”), hereby unconditionally promises to pay to Silicon Valley Bank (“Lender”) or its registered assigns at the office of Lender pursuant to the Credit Agreement (as hereinafter defined) in Dollars and in immediately available funds, the principal amount of (a) Thirty-Two Million Five Hundred Thousand Dollars ($32,500,000) or, if less, (b) the aggregate unpaid principal amount of the Loans made by Lender pursuant to the Credit Agreement referred to below. The principal amount hereof shall be paid in the amounts and on the dates specified in Article III of the Credit Agreement. Borrower further agrees to pay interest in like money at such office on the unpaid principal amount hereof from time to time outstanding at the rates and on the dates specified in the Credit Agreement.

The holder of this Note is authorized to indorse on the schedules annexed hereto and made a part hereof, which shall be attached hereto and made a part hereof, the date and amount of each Loan and the date and amount of each payment or prepayment of principal with respect thereto. Each such indorsement shall constitute prima facie evidence of the accuracy of the information indorsed. The failure to make any such indorsement or any error in any such indorsement shall not affect the obligations of Borrower in respect of the Loans.

This Note (a) is the Note in respect of the Loans as referred to in the Credit Agreement, dated as of July 19, 2013, between Borrower and Lender (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), (b) is subject to the provisions of the Credit Agreement, and (c) is subject to optional and mandatory prepayment in whole or in part as provided in the Credit Agreement. This Note is secured as provided in the Financing Documents. Reference is hereby made to the Financing Documents for a description of the properties and assets in which a security interest has been granted, the nature and extent of the security, the terms and conditions upon which the security interests were granted and the rights of the holder of this Note in respect thereof.

B-1

Upon the occurrence and during the continuance of any one or more Events of Default, all principal and all accrued interest then remaining unpaid on this Note shall become, or may be declared to be, immediately due and payable, all as provided in the Credit Agreement.

All parties now and hereafter liable with respect to this Note, whether maker, principal, surety, guarantor, indorser or otherwise, hereby waive presentment, demand, protest and all other notices of any kind.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN OR IN THE CREDIT AGREEMENT, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AND IN ACCORDANCE WITH SECTION 9.03 OF THE LOAN AGREEMENT.

THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REFERENCE TO CONFLICTS OF LAWS (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

2013B ESA PROJECT COMPANY, LLC

By:

Name:  

Title:

B-2

Schedule to

Note

LOAN AMOUNT, MATURITIES AND PAYMENTS OF PRINCIPAL

Date Amount of Loan Maturity of
Loan Amount of
Principal Paid
or Prepaid Unpaid
Principal
Balance Notation
Made By

B-3

Exhibit C

to Loan Agreement

[FORM OF] FUNDING NOTICE

2013B ESA PROJECT COMPANY, LLC

Date:                     

TO: SILICON VALLEY BANK

555 Mission Street, 9th Floor

San Francisco, CA 94105

Attn: [***]

RE: Amended and Restated Credit Agreement, dated as of September 25, 2013 (as amended, modified, supplemented or restated from time to time, the “Credit Agreement”), by and between 2013B ESA Project Company, LLC, a Delaware limited liability company (“Borrower”), and Silicon Valley Bank (“Lender”). Capitalized terms used but not otherwise defined herein have the respective meanings given to such terms in the Credit Agreement.

Ladies and Gentlemen:

The undersigned refers to the Credit Agreement and hereby gives you irrevocable notice, pursuant to Section 2.02 of the Credit Agreement, of Borrower’s request for a Loan.

1.    Disbursement Request. Borrower hereby proposes a Loan (the “Proposed Loan”) as set forth below:

(a)    The requested date of the Loan, which shall be a Business Day, is                      (the “Proposed Loan Date”).¹

(b)    The amount of the Proposed Loan is $            .

2.    Requested Transfers. Borrower hereby requests that on the Proposed Loan Date, Lender applies the proceeds of the Proposed Loan in accordance with the Funds Flow attached as Exhibit A.

[Signature page follows]

¹  Insert date at least [***] Business Days after the date the Lender is to receive this funding notice.

[***] Confidential Treatment Requested

C-1

IN WITNESS WHEREOF, the undersigned has caused this Funding Notice to be duly executed and delivered by its proper and duly authorized officer as of the day and year first written above.

2013B ESA PROJECT COMPANY, LLC

By:

Name:

Title:

ACCEPTED AND AGREED:

SILICON VALLEY BANK

By:

Name:

Title:

C-2

Exhibit A

Funds Flow

C-3

Exhibit D

to Credit Agreement

FORM OF

CREDIT PROTECTION INSURANCE POLICY

[To be provided separately]

D-1

Exhibit E

to Credit Agreement

[FORM OF]

INITIAL FUNDING CERTIFICATE FROM INSURANCE CONSULTANT^1,2 Date:                     

TO: SILICON VALLEY BANK

555 Mission Street, 9th Floor

San Francisco, CA 94105

Attn: [***]

Telephone: [***]

Email: [***]

RE: Amended and Restated Credit Agreement, dated as of September     , 2013 (as amended, modified, supplemented or restated from time to time, the “Credit Agreement”), by and between 2013B ESA Project Company, LLC, a Delaware limited liability company (“Borrower”), and Silicon Valley Bank (“Lender”). Capitalized terms used but not otherwise defined herein have the respective meanings given to such terms in the Credit Agreement.

Ladies and Gentlemen:

The undersigned, a duly authorized officer of Moore McNeil, LLC (the “Insurance Consultant”), hereby provides this letter to you in accordance with Section 6.02(j) of the Credit Agreement.

The Insurance Consultant acknowledges that pursuant to the Credit Agreement, Lender will be providing Loans to Borrower to finance a portion of the purchase price of the Systems and to pay certain related reserves, interest, fees and expenses associated with the Credit Agreement and the Loans and in so doing will be relying on this certificate and the Insurance Consultant’s report dated July 18, 2013. Further, since the date of the aforementioned Insurance Consultant’s report, nothing has come to our attention that would cause us to change that report.

The Insurance Consultant hereby further certifies to Lender that:

(a)    Borrower has evidenced all insurance binders required pursuant to and in accordance with Section 6.01(p) and Section 7.01(h) of the Credit Agreement for the Systems, and the Borrower’s insurance broker has executed a letter to Borrower, with a copy to the Insurance Consultant, confirming that all such insurance policies are in full force and effect;

(b)    Borrower’s insurance broker has confirmed that all premiums due and payable with respect to each such insurance policy have been paid or that Borrower is not in arrears on any such premium due;

¹  Exhibit E only to be provided at the initial Funding Date.

[***] Confidential Treatment Requested

E-1

(c)    each such insurance policy is placed with insurance carriers with a rating at least A- and a financial size category of at least X by AM Best or A by S&P or otherwise reasonably acceptable to Lender;

(d)    Borrower’s insurance broker has evidenced certificates and has confirmed that all policies of insurance required to be maintained pursuant to Schedule 7.01(h) of the Credit Agreement, except workers compensation and employers liability, provide:

(i) Additional Insured status for Lender and its respective affiliates, directors, officers and employees and agents (collectively, the “Additional Insureds”);³

(ii) Waivers of subrogation from the insurers in favor of the Additional Insureds;

(iii) Policies either (a) non-cancellable except for non-payment of premium with at least 10 days written notice of such to the Lender or (b) 30 days’ notice of cancellation (10 days non-payment of premium);

(iv) A Lender right but not the obligation to pay premiums on behalf of the Borrower in case of non-payment;

(v) A minimum of 30-days’ written notice of cancellation to Lender, except for cancellation based on non-payment of premium which provides for 10 days’ prior written notice;

(vi) Policies unaffected by any bankruptcy or foreclosure relating to Borrower;

(vii) Insurance is primary and not excess to or contributing with any other insurance or self-insurance maintained by Borrower or the Additional Insureds;⁴

(viii) No obligations of Additional Insureds whatsoever including but not limited to no obligation to pay premium and no obligation to pay deductibles; and

(ix) Policy limits act in excess of deductibles including the indemnity period for time element insurance acts in excess of the delay deductible for such insurance.

(e)    Borrower’s insurance broker has evidenced certificates and has confirmed that all property policies including marine cargo (if applicable) and further including any time element insurance provide:

³  Does not apply to any professional indemnity policy.

⁴  Policies can act in excess of such project-specific policies provided by contractors in accordance with the requirements of Schedule 7.01(h) to the Credit Agreement.

E-2

(i) That Lender shall be sole loss payee of any amounts payable under the policies in relation to Borrower and the Systems;

(ii) Non vitiation in accordance with a multiple insured clause acceptable to Lender or equivalent protection;

(iii) Cover for accidental errors and omissions with, to the extent available on commercially reasonable terms, no sublimit applied otherwise a sublimit acceptable to Lender acting reasonably;

(iv) Replacement cost, new for old, with no deduction of any kind including no coinsurance provision or a waiver thereof and no allowance for depreciation (accounting or otherwise), obsolescence or loss of value over time other than in a total constructive loss or other scenario where repair/replacement does not follow loss;

(v) An advance or partial payment endorsement;

(vi) A clause requiring the insurer to make final payment on any claim within thirty days after the submission of proof of loss and its acceptance by the insurer; and

(vii) Except for marine transit policies, a LEG2 exclusion or similar endorsement with no sublimit applied.

(f) Borrower’s insurance broker has evidenced certificates and has confirmed that all liability policies except workers compensation and employers liability provide:

(i) Severability; and

(ii) Cross liability with no exclusions.

It is our opinion that on the basis of the binders and information evidenced to us by Borrower and its insurance broker, the insurance evidenced is in compliance with the insurance requirements of the Transaction Documents (including any Major Project Document).

Neither the aforementioned Insurance Consultant’s report nor this letter constitutes legal advice or a legal opinion and is not to be relied upon as legal advice. Such report does not warranty or guarantee that the insurance described therein will remain in full force and effect after the Funding Date.

The aforementioned Insurance Consultant’s report is based on information provided by Borrower’s representatives, and the Insurance Consultant, therefore, cannot be held responsible for the accuracy of such information or conclusions drawn from it. The Insurance Consultant makes no warranty, express or implied, with respect to the use of any information in such report and assumes no liability with respect thereto.

E-3

A copy of the Borrower’s insurance broker’s certificate confirming certain matters set forth above is attached hereto as Attachment 1.

By accepting this letter the recipient acknowledges and agrees that the Insurance Consultant’s liability is limited as indicated in the Legal Disclaimer contained in its report dated July 18, 2013.

[The remainder of this page is intentionally blank. The next page is the signature page.]

E-4

IN WITNESS WHEREOF, the undersigned has caused this Completion Certificate to be duly executed by an authorized offer as of the date first above written.

[                                             ],

as Insurance Consultant

By:

Name:

Title:

E-4

Attachment 1 to

Completion Certificate from Insurance Consultant

[FORM OF]

INITIAL FUNDING CERTIFICATE FROM INSURANCE BROKER¹  Date:                     

TO:	2013B ESA PROJECT COMPANY, LLC 1299 Orleans Drive Sunnyvale, CA 94089 Attn: [***]
Copy:	Moore McNeil, LLC 2002 Richard Jones Road Suite 307-A Nashville, TN 37215 Attn: [***]
RE:	Amended and Restated Credit Agreement, dated as of September 25, 2013 (as amended, modified, supplemented or restated from time to time, the “Credit Agreement”), by and between 2013B ESA Project Company, LLC, a Delaware limited liability company (“Borrower”), and Silicon Valley Bank (“Lender”). Capitalized terms used but not otherwise defined herein have the respective meanings given to such terms in the Credit Agreement.

Ladies and Gentlemen:

The undersigned, a duly authorized representative of Woodruff-Sawyer & Co. (the “Insurance Broker”), hereby provides this letter to you in connection with the Initial Funding Certificate from Insurance Consultant to be delivered in accordance with Section 6.02(j) of the Credit Agreement.

The Insurance Broker hereby further certifies that:

(a)    Borrower has obtained all insurance policies required pursuant to and in accordance with Section 6.01(p) and Section 7.01(h) of the Credit Agreement for the Systems, and all such insurance policies are in full force and effect;

(b) (i) All premiums due and payable with respect to each such insurance policy have been paid or (ii) Borrower is not in arrears on any such premium due;

(c)    All policies of insurance required to be maintained pursuant to Schedule 7.01(h) of the Credit Agreement, except workers compensation and employers liability, provide:

¹  Exhibit E only to be provided at the initial Funding Date.

[***] Confidential Treatment Requested

E-2

(x) Additional Insured status for Lender and its respective affiliates, directors, officers and employees and agents (collectively, the “Additional Insureds”);²

(xi) Waivers of subrogation from the insurers in favor of the Additional Insureds;

(xii) Policies either (a) non-cancellable except for non-payment of premium with at least 10 days written notice of such to the Lender or (b) 30 days’ notice of cancellation (10 days non-payment of premium);

(xiii) A Lender right but not the obligation to pay premiums on behalf of the Borrower in case of non-payment;

(xiv) A minimum of 30-days’ written notice of cancellation to Lender, except for cancellation based on non-payment of premium which provides for 10 days’ prior written notice;

(xv) Policies unaffected by any bankruptcy or foreclosure relating to Borrower;

(xvi) Insurance is primary and not excess to or contributing with any other insurance or self-insurance maintained by Borrower or the Additional Insureds;³

(xvii) No obligations of Additional Insureds whatsoever including but not limited to no obligation to pay premium and no obligation to pay deductibles; and

(xviii) Policy limits act in excess of deductibles including the indemnity period for time element insurance acts in excess of the delay deductible for such insurance.

(d) All property policies including marine cargo (if applicable) and further including any time element insurance provide:

(viii) That Lender shall be sole loss payee of any amounts payable under the policies in relation to Borrower and the Systems;

(ix) Non vitiation in accordance with a multiple insured clause acceptable to Lender or equivalent protection;

²  Does not apply to any professional indemnity policy.

³  Policies can act in excess of such project-specific policies provided by contractors in accordance with the requirements of Schedule 7.01(h) to the Credit Agreement.

[***] Confidential Treatment Requested

E-3

(x) Cover for accidental errors and omissions with, to the extent available on commercially reasonable terms, no sublimit applied otherwise a sublimit acceptable to Lender acting reasonably;

(xi) Replacement cost, new for old, with no deduction of any kind including no coinsurance provision or a waiver thereof and no allowance for depreciation (accounting or otherwise), obsolescence or loss of value over time other than in a total constructive loss or other scenario where repair/replacement does not follow loss;

(xii) An advance or partial payment endorsement;

(xiii) A clause requiring the insurer to make final payment on any claim within thirty days after the submission of proof of loss and its acceptance by the insurer; and

(xiv) Except for marine transit policies, a LEG2 exclusion or similar endorsement with no sublimit applied.

(e) All liability policies except workers compensation and employers liability provide:

(iii) Severability; and

(iv) Cross liability with no exclusions.

Respectfully submitted,
Woodruff-Sawyer & Co.
By:
Name:	Robin Fischer
Title:	Vice President

Attachments:

Appexdix A – Schedule 7.01(h) to the Credit Agreement

Appendix B – Copies of Certificates of Insurance

E-4

Appexdix A – Schedule 7.0l(h) to the Credit Agreement

E-5

Appendix B – Copies of Certificates of Insurance

E-5

Exhibit F

to Credit Agreement

[FORM OF]

COMPLETION CERTIFICATE FROM PARENT

Date:                         

TO: SILICON VALLEY BANK

[Address]

Attn:

RE: Amended and Restated Credit Agreement, dated as of September 25, 2013 (as amended, modified, supplemented or restated from time to time, the “Credit Agreement”), by and between 2013B ESA Project Company, LLC, a Delaware limited liability company (“Borrower”), and Silicon Valley Bank (“Lender”). Capitalized terms used but not otherwise defined herein have the respective meanings given to such terms in the Credit Agreement.

Ladies and Gentlemen:

The undersigned, on behalf of Bloom Energy Corporation (“Parent”), hereby represents and certifies to Lender as follows:

1.    The individual executing this Completion Certificate on behalf of Parent is an Authorized Officer of Parent.

2.    All conditions to Commencement of Operations were satisfied as of [            ].

3.     [(i)                ]Parent has provided to Borrower conditional sworn Lien waiver statements by Parent and all contractors, suppliers and other Persons retained by Parent and who worked on the Systems that are the subject of this Certificate.

[(ii) Parent has provided to Borrower absolute, irrevocable and unconditional sworn Lien waiver statements evidencing receipt of payment by Parent and all contractors, suppliers and other Persons retained by Parent and who worked on the Systems that are the subject to the last Funding.]1

4.     There are no mechanic’s, workmen’s, materialmen’s, construction or other like Liens encumbering the Collateral (other than Permitted Liens).

5.     All Governmental Approvals necessary to own and operate the Systems have been obtained, are in full force and effect and are Non-Appealable.

1 Paragraph 3, clause (ii) not to be provided at the initial Funding Date.

F-1

6.     All Systems that have achieved Commencement of Operations as of the date hereof are complete and usable facilities, capable of operating in accordance with the technical requirements of the LTSA and the applicable Offtake Agreement and applicable Laws and have completed and passed all performance and reliability testing and commissioning in accordance therewith.

7.     Parent has made available to the Independent Engineer all information relating to this Completion Certificate as the Independent Engineer has required or requested to prepare the Independent Engineer’s certificate, all of which information is accurate, true, correct and complete.

8.    All certifications made by Parent pursuant to the LTSA Certificate of Installation, dated [             ], are true and correct in all respects and such certificate is attached hereto as Attachment 1.

9.     All representations and warranties of the Parent contained in the Financing Documents are true and correct in all material respects (except with regard to representations and warranties that are qualified by materiality or Material Adverse Effect, which are true and correct in all respects) as of the date hereof (except with respect to representations and warranties that expressly refer only to an earlier date).

[The remainder of this page is intentionally blank. The next page is the signature page.]

F-2

IN WITNESS WHEREOF, the undersigned has caused this Completion Certificate to be duly executed as of the date first above written.

BLOOM ENERGY CORPORATION,

as Parent

By:

Name:

Title:

F-3

Attachment 1 to

Completion Certificate from Parent

F-4

Exhibit G

to Credit Agreement

[FORM OF]

COMPLETION CERTIFICATE FROM INDEPENDENT ENGINEER

Date:                     

TO: SILICON VALLEY BANK

[Address]

Attn:

RE: Amended and Restated Credit Agreement, dated as of September 25, 2013 (as amended, modified, supplemented or restated from time to time, the “Credit Agreement”), by and between 2013B ESA Project Company, LLC, a Delaware limited liability company (“Borrower”), and Silicon Valley Bank (“Lender”). Capitalized terms used but not otherwise defined herein have the respective meanings given to such terms in the Credit Agreement.

Ladies and Gentlemen:

SAIC Energy, Environment and Infrastructure, as the Independent Engineer, has reviewed Bloom Energy Corporation’s Completion Certificate, dated [              ], and other material relating to Commencement of Operations pursuant to the Amended and Restated Master Server Purchase and Services Agreement (the “MESPSA”) as it believes is necessary to establish the accuracy of this certificate. This Certificate was prepared with the understanding and assumption that the information provided to us in relation to this certificate is true, correct and complete. Our review and observations were performed pursuant to the scope of services under our Professional Services Agreement, dated as of July 3, 2013, with Bloom Energy Corporation and Lender, and with the degree of skill and diligence normally practiced by professional engineers or consultants performing the same or similar services on like projects. Based on the foregoing review and review procedures and on the understanding and assumption that we have been provided true, correct and complete information from Borrower and Parent as to the matters covered by the Completion Certificate, the Independent Engineer hereby represents and certifies to Lender that in the opinion of the Independent Engineer:

1.     The individuals executing this Completion Certificate are authorized representatives of the Independent Engineer.

2.     All conditions to Commencement of Operations for the System[s], listed on Attachment 1 attached hereto, that [is / are] the subject of a Funding on the date hereof were satisfied as of [                ].

3.     We have not been made aware of any mechanic’s, workmen’s, materialmen’s, construction or other like Liens (other than Permitted Liens) encumbering the System[s] that [is / are] the subject of a Funding on the date hereof.

G-1

4.     Each System that is the subject of a Funding on the date hereof is a complete and usable facility, capable of operating in accordance with the technical requirements of the MESPSA and the applicable Offtake Agreement and applicable Laws and has completed and passed all performance and reliability testing and commissioning in accordance therewith.

5.     All Governmental Approvals necessary to own and operate each System that is the subject of a Funding on the date hereof listed in the Independent Engineer’s report delivered to Lender pursusant to Section 6.01(q) of the Credit Agreement and attached hereto as Attachment 2 have been obtained.

6.    The certifications made in the Independent Engineer’s Commencement of Operations Certificate, dated [            ], as required by the MESPSA are true and correct in all respects and such certificate is attached hereto as Attachment 3.

This Certificate is solely for the information of and assistance to the Borrower and the Lender in conducting and documenting their investigation of the matters in connection with the Project and is not to be used, circulated, quoted, or otherwise referred to within or without the lending group for any other purpose. SAIC disclaims any obligation to update this Certificate. This Certificate is not intended to, and may not, be construed to benefit any party other than the Borrower and the Lender.

[The remainder of this page is intentionally blank. The next page is the signature page.]

G-2

IN WITNESS WHEREOF, the undersigned has caused this Completion Certificate to be duly executed as of the date first above written.

SAIC ENERGY, ENVIRONMENT & INFRASTRUCTURE, LLC

as Independent Engineer

By:

Name:

Title:

By:

Name:

Title:

G-3

Attachment 1 to

Completion Certificate from Independent Engineer

COMPLETED BLOOM SYSTEMS

Facility List and Commencement of Operations (“CO”) Date

Serial No. Location of Facility Unit
Model Net
Capacity
(kW-AC) CO
Date

G-4

Attachment 2 to

Completion Certificate from Independent Engineer

INDEPENDENT ENGINEER’S REPORT

G-5

Attachment 3 to

Completion Certificate from Independent Engineer

INDEPENDENT ENGINEER’S CERTIFICATE OF COMMENCEMENT OF OPERATIONS

G-6

Exhibit J

to Credit Agreement

FINANCIAL MODEL

[To be provided separately]

H-1

Exhibit I

to Credit Agreement

CALCULATION OF THE HISTORICAL DEBT SERVICE COVERAGE RATIO AND THE PROSPECTIVE DEBT SERVICE COVERAGE RATIO

[To be provided separately]

Credit Agreement

Sample HDSCR Calculation

	Q1 2016			Q2 2016			Q3 2016			Q4 2016			Total
Cash Flow (inc. prepaid expense amount / working capital)	$	1,810,645		$	1,815,586		$	1,797,666		$	1,770,451
Less: Waterfall Priority 1 (Operation & Maintenance Expenses)		[***	]		[***	]		[***	]		[***	]
Less: Waterfall Priority 2 (Fees and expenses)		[***	]		[***	]		[***	]		[***	]
Cash Flow Available for Debt Service		[***	]		[***	]		[***	]		[***	]		[***	]
Interest on Loans (Waterfall Priority 3)	$	532,544		$	531,933		$	531,253		$	530,699
Principal payments of the Loans (Waterfall Priority 4)	$	37,072		$	41,212		$	33,571		$	26,194
Debt Service	$	569,616		$	573,145		$	564,824		$	556,893		$	2,264,478
Historical Debt Service Coverage Ratio (end of Q4’16)														[***	]

*** Confidential Treatment Requested

Credit Agreement

Exhibit I

Sample PDSCR Calculation

	Q1 2017			Q2 2017			Total
Cash Flow (inc. prepaid expense amount I working capital)	$	1,791,319		$	1,796,685
Less: Waterfall Priority 1 (Operation & Maintenance Expenses)		[***	]		[***	]
Less: Waterfall Priority 2 (Fees and expenses)		[***	]		[***	]
Cash Flow Available for Debt Service		[***	]		[***	]		[***	]
Interest on Loans (Waterfall Priority 3)	$	530,267		$	529,530
Principal payments of the Loans (Waterfall Priority 4)	$	44,665		$	106,723
Debt Service	$	574,932		$	636,252		$	1,211,184
Prospective Debt Service Coverage Ratio (end of Q4’16)								[***	]

*** Confidential Treatment Requested

Exhibit J

to Credit Agreement

[FORM OF] OFFICER’S CERTIFICATE

2013B ESA PROJECT COMPANY, LLC

                     , 20    

I, [                                 ], am a duly elected, qualified and acting [                ] of 2013B ESA Project Company, LLC, a Delaware limited liability company (the“Company”). I am delivering this certificate from the Company pursuant to Sections 6.02(b), 6.02(f), 6.02(i), 6.02(k), 6.02(m), 6.02(n), 6.02(q), 6.02(r), and 6.02(s) of the Amended and Restated Credit Agreement (the “Credit Agreement”), dated as of September     , 2013, by and between the Company and Silicon Valley Bank (the“Lender”) in connection with the Funding occurring on the date hereof. Capitalized terms used but not defined herein shall have the meanings given to such terms in the Credit Agreement; references to sections and schedules herein shall be deemed to constitute references to the indicated section or schedule of the Credit Agreement unless otherwise noted herein.

I hereby certify on behalf of the Company, in each case, as of the date hereof, as follows:

1. The Company has provided the Lender with a copy of (i) the purchase order and invoice(s) for the Purchase Price, (ii) a Bill of Sale and (iii) (A) conditional lien waivers from Parent and from each subcontractor retained by Parent performing BOF Work at the applicable Site with respect to the System(s) for which the Loan is to be applied and (B) absolute, irrevocable and unconditional sworn lien waivers from Parent and from each subcontractor retained by Parent performing BOF Work at the applicable Site with respect to the System(s) that are the subject to the last Funding and such copies are true, correct, complete and in full force and effect.

2. The Company is in compliance with all applicable conditions set forth in Article VI of Credit Agreement on and as of the date hereof, before and after giving effect to this Funding or issuance and to the application of the proceeds from this Funding.

3. All representations and warranties made by the Company and each other Affiliate of the Parent that is a party to any Financing Document, in the Credit Agreement and each of the Financing Documents to which such Person is a party are true and correct in all material respects (except with regard to representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) on and as of the date hereof (except with respect to representations and warranties that expressly refer only to an earlier date), as applicable, before and after giving effect to this Funding and to the application of the proceeds from any this Funding.

4. In connection with this Funding, the Debt Service Reserve Account and the Maintenance Reserve Account will be funded in an amount equal to the Debt Service Reserve Required Amount and the Maintenance Reserve Required Amount, respectively (taking into account this Funding), and the Revenue Account will be funded with the Prepaid Expenses applicable to the Systems that are the subject of this Funding.

J-1

5. All representations and warranties made by the Company in the Credit Protection Insurance Policy are true and correct in all respects on and as of the date hereof (except with respect to representations and warranties that expressly refer only to an earlier date), before and after giving effect to this Funding and to the application of the proceeds from this Funding.

6. No Event of Default (or Default with respect to the System for which this Funding is being requested or any other System that is the subject of an outstanding Loan or for which a Funding Notice is now pending) has occurred and is continuing, or would result from such Funding.

7. Since the Closing Date, there has been no event or occurrence that has had, or would reasonably be expected to have, a Material Adverse Effect which is continuing.

8. There are no mechanic’s, workmen’s, materialmen’s, construction or other like Liens encumbering the Collateral (other than Permitted Liens).

9. The Company has provided the Lender with a copy of any Additional Project Document (including any Project Documents required to be executed on or before the date hereof in accordance with Section 6.02(e)(i) (Conditions to Funding of any System – Delivery of Certain Documents) of the Credit Agreement), entered into by the Company since the Closing Date, together with all amendments, supplements, schedules and exhibits thereto and the Ancillary Documents relating thereto. Each such Additional Project Document is (i) duly authorized, executed and delivered by each Person party thereto, and (ii) in full force and effect.

10. The Company has provided the Lender with copies of all Necessary Approvals (including all Deferred Approvals) obtained since the last Funding.

11. (i) no Event of Abandonment has occurred and is continuing with respect to any System, (ii) no Event of Total Loss has occurred and is continuing with respect to the System for which this Funding has been requested, (iii) no Event of Total Loss has occurred and is continuing with respect to more than three (3) of the other Systems, (iv) no Event of Taking relating to any Equity Interests in the Company has occurred and is continuing, and (v) no Event of Taking with respect to a material part of any System has occurred and is continuing.

12. The ratio of the outstanding principal amount of Loans (after giving effect to this Funding) to the Loan Commitment does not exceed the ratio of the aggregate nameplate capacity of all Systems that have been Funded to 6.1 MW (representing the projected aggregate nameplate capacity of the Portfolio as of the Closing Date).

[SIGNATURE PAGE FOLLOWS]

J-2

IN WITNESS WHEREOF, the undersigned has hereunto signed his name on behalf of the Company as of the date first set forth above.

Name:

Title:

J-3

EX-10

Exhibit 10.70

EXECUTION VERSION

FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT

This FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as of November 14, 2013 (this “Amendment”), is entered into by and between 2013B ESA PROJECT COMPANY, LLC, a Delaware limited liability company (the “Borrower”), and SILICON VALLEY BANK, a California corporation (the “Lender”). The purpose of this Amendment is to amend that certain Amended and Restated Credit Agreement, dated as of September 25, 2013, by and between the Borrower and the Lender. Capitalized terms used and not otherwise defined herein have the meanings given to them in the Credit Agreement and the rules of interpretation set forth in the Credit Agreement apply as if set forth herein.

WHEREAS, pursuant to the Credit Agreement, the Lender agreed to make a credit facility available to the Borrower, subject to the terms and conditions set forth therein;

WHEREAS, the Borrower has requested that the Lender amend the Credit Agreement to consolidate the interest payments due under the Credit Agreement and the Rate Contracts into a single payment due to the Lender on a specific date for each Fiscal Quarter; and

WHEREAS, on and subject to the conditions of this Amendment, the undersigned are willing to agree to the requested amendments to the Credit Agreement;

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the undersigned agree as follows:

Section 1. Amendments to Exhibit A to the Credit Agreement. Exhibit A to the Credit Agreement is hereby amended in the manner set forth in Exhibit I to this Amendment.

Section 2. Effectiveness. This Amendment shall be effective when it has been executed by the Lender and the Borrower and shall thereafter be effective as of the date first set forth above.

Section 3. Limited Purpose. Notwithstanding anything contained herein, the waivers, amendments and modifications made hereby: (a) are limited waivers, amendments and modifications and do not waive, alter or amend any term of any Financing Document other than as expressly set forth herein, (b) are effective only with respect to the transactions described herein and in the Financing Documents for the specific instance and the specific purposes to which the relevant provisions apply, and (c) shall not be effective for any other purpose or transaction.

Section 4. Effect on Credit Agreement. Except as expressly amended hereby or otherwise provided herein, all of the terms and conditions of the Credit Agreement and all other Financing Documents remain in full force and effect, and none of such terms and conditions are, or shall be construed as, otherwise amended or modified. All references to the Credit Agreement in the Credit Agreement and the other Financing Documents, and any documents, instruments and agreements related to them, shall hereafter refer to the Credit Agreement as amended hereby.

Section 5. Representations and Warranties. Each party represents and warrants to the other that:

(a) the execution and delivery of this Amendment and the performance by such party of its obligations hereunder have been authorized by all requisite action on its part; and

(b) this Amendment has been validly executed and delivered by such party, and assuming that this Amendment has been duly authorized, executed, and delivered by the other parties, constitutes a valid and binding obligation of such party, enforceable against such party in accordance with its terms.

Section 6. Miscellaneous.

(a) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA, WITHOUT REFERENCE TO CONFLICTS OF LAW (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

(b) This Amendment shall be deemed a Financing Document.

(c) This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.

(d) Delivery of an executed counterpart of a signature page of this Amendment by telecopy or portable document format (“PDF”) shall be effective as delivery of a manually executed counterpart of this Amendment.

[Remainder of page intentionally blank.]

2

IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to Amended and Restated Credit Agreement to be executed by their respective officers as of the day and year first above written.

2013B ESA PROJECT COMPANY, LLC,
as the Borrower
By:	/s/ Sendil Atreya
	Name:	Sendil Atreya
	Title:	Vice President

First Amendment to Amended and Restated Credit Agreement

SILICON VALLEY BANK,
as the Lender
By:	/s/ Dan Baldi
	Name:	Dan Baldi
	Title:	Managing Director

First Amendment to Amended and Restated Credit Agreement

Exhibit I to

First Amendment

to Amended and Restated Credit Agreement

Amendments to Exhibit A to Credit Agreement

*Added text is in blue with underlining. Deleted text is in red with strikethrough marks.

“Interest Payment Date” means January 2, 2014 and, thereafter, the first Business Day of each April, July, October and Januarythe last day of each applicable Interest Period.

“Interest Period” means, with respect to any Loan, (a) the period beginning on (and including) the date on which such Loan is made pursuant to Section 2.03 (Funding of Loans) or the date on which each successive interest period for each such Loan is determined pursuant to Section 3.03 (Interest Rates) and ending on (and excluding) the next Interest Payment Date and (b) thereafter, the period beginning on (and including) the first Business Day of each calendar quarter and ending on (and excluding) the next Interest Payment Dateday that numerically corresponds to such date three (3) months thereafter; provided, that the Interest Period with respect to the calendar quarter during which the Maturity Date occurs shall mean the period commencing on the first Business Day of such calendar quarter and ending on the Maturity Date.

*            *             *

EX-10

Exhibit 10.71

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Execution Version

SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT

This SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as of July 18, 2014 (this “Amendment”), is entered into by and between 2013B ESA PROJECT COMPANY, LLC, a Delaware limited liability company (the “Borrower”), and SILICON VALLEY BANK, a California corporation (the “Lender”). The purpose of this Amendment is to amend that certain Amended and Restated Credit Agreement, dated as of September 25, 2013, as amended by the First Amendment to Amended and Restated Credit Agreement, dated as of November 14, 2013, by and between the Borrower and the Lender (collectively, the “Credit Agreement”). Capitalized terms used and not otherwise defined herein have the meanings given to them in the Credit Agreement and the rules of interpretation set forth in the Credit Agreement apply as if set forth herein.

WHEREAS, pursuant to the Credit Agreement, the Lender agreed to make a credit facility available to the Borrower, subject to the terms and conditions set forth therein; and

WHEREAS, on and subject to the conditions of this Amendment, the undersigned are willing to agree to the requested amendments to the Credit Agreement;

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the undersigned agree as follows:

Section 1. Amendments to the Credit Agreement. The Credit Agreement is hereby amended in the manner set forth in Exhibit A to this Amendment.

Section 2. Amendments to Schedule 5.11 Part A to the Credit Agreement. Schedule 5.11 Part A to the Credit Agreement is hereby amended in the manner set forth in Exhibit B to this Amendment.

Section 3. Amendments to Exhibit A to the Credit Agreement. Exhibit A to the Credit Agreement is hereby amended in the manner set forth in Exhibit C to this Amendment.

Section 4. Amendments to Exhibit H to the Credit Agreement. Exhibit H to the Credit Agreement is hereby amended in the manner set forth in Exhibit D to this Amendment.

Section 5. Effectiveness. This Amendment shall be effective when it has been executed by the Lender and the Borrower and shall thereafter be effective as of the date first set forth above.

Section 6. Limited Purpose. Notwithstanding anything contained herein, the waivers, amendments and modifications made hereby: (a) are limited waivers, amendments and modifications and do not waive, alter or amend any term of any Financing Document other than as expressly set forth herein, (b) are effective only with respect to the transactions described herein and in the Financing Documents for the specific instance and the specific purposes to which the relevant provisions apply, and (c) shall not be effective for any other purpose or transaction.

Section 7. Effect on Credit Agreement. Except as expressly amended hereby or otherwise provided herein, all of the terms and conditions of the Credit Agreement and all other Financing Documents remain in full force and effect, and none of such terms and conditions are, or shall be construed as, otherwise amended or modified. All references to the Credit Agreement in the Credit Agreement and the other Financing Documents, and any documents, instruments and agreements related to them, shall hereafter refer to the Credit Agreement as amended hereby.

Section 8. Representations and Warranties. Each party represents and warrants to the other that:

(a)    the execution and delivery of this Amendment and the performance by such party of its obligations hereunder have been authorized by all requisite action on its part; and

(b)    this Amendment has been validly executed and delivered by such party, and assuming that this Amendment has been duly authorized, executed, and delivered by the other parties, constitutes a valid and binding obligation of such party, enforceable against such party in accordance with its terms.

Section 9. Miscellaneous.

(a)    THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA, WITHOUT REFERENCE TO CONFLICTS OF LAW (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

(b)    This Amendment shall be deemed a Financing Document.

(c)    This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.

(d)    Delivery of an executed counterpart of a signature page of this Amendment by telecopy or portable document format (“PDF”) shall be effective as delivery of a manually executed counterpart of this Amendment.

[Remainder of page intentionally blank.]

2

IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to Amended and Restated Credit Agreement to be executed by their respective officers as of the day and year first above written.

2013B ESA PROJECT COMPANY, LLC,
as the Borrower
By:	/s/ W.E. Brockenborough
Name:	W.E. Brockenborough
Title:	Vice President

[Signature page to Second Amendment to Amended and Restated Credit Agreement]

SILICON VALLEY BANK,
as the Lender
By:	/s/ Dan Baldi
Name:	Dan Baldi
Title:	Managing Director

[Signature page to Second Amendment to Amended and Restated Credit Agreement]

Exhibit A to

Second Amendment

to Amended and Restated Credit Agreement

Amendments to Amended and Restated Credit Agreement

*Added text is in blue with underlining. Deleted text is in red with strikethrough marks.

Section 3.08 Mandatory Prepayment.

(a) Special Events.

(i) Events Relating to the Systems. The Borrower shall be required to prepay the Loans:

(A)    upon receipt by the Borrower of Insurance Proceeds, Condemnation Proceeds or Extraordinary Proceeds with respect to any System, to the extent required pursuant to the Accounts Agreement;

(B)    upon a credit rating downgrade below Investment Grade of (X) a Qualified Customer (excluding the [***] Offtaker) that is then a party to an Offtake Agreement or (Y) the [***] Guarantor, in each case, to the extent required pursuant to Section 4.32(c) of the Accounts Agreement; and

(C) as required under Section 3.12(b)(iv) (System Severance – Severance Amount Payment).

*            *             *

Section 6.02 Conditions to Funding of any System. The Funding for Loans with respect to any System is subject to the satisfaction of each of the following conditions precedent:

(e)    Delivery of Certain Documents. The Lender shall have received each of the following fully executed documents, each of which shall be, except as noted below, originals or portable document format (“pdf”) or facsimiles (in each case, followed promptly by originals), duly executed and delivered by each party thereto:

(i) a Funding Notice, duly executed by the Borrower, as required by and in accordance with Section 2.02 (Notice of Fundings).

(ii) all Deferred Contracts with respect to the relevant System(s), which shall be in form and substance reasonably acceptable to the Lender, taking into consideration the assumptions in the Financial Models delivered by Borrower on the Closing Date or such later date in accordance with the terms of the Credit Agreement;

[***] Confidential Treatment Requested

(iii) (A) all Deferred Approvals provided to the Independent Engineer pursuant to the LTSA with respect to the System(s) for which the Loan is to be applied and (B) a copy of (x) the results of interconnection testing conducted and (y) the related permission to operate documentation, in each case, with respect to the relevant System(s) in accordance with the requirements of the relevant interconnecting utility;

(iv) all Required Consents with respect to the relevant System(s) in form and substance reasonably satisfactory to the Lender;

(v) [Intentionally Omitted];

(vi) such updates to the Security Documents (including Consents that are being assigned to the Lender and that relate to the Systems that are the subject of the applicable Funding), lien search reports, UCC financing statements and other recordings and filings referenced in Section 6.01(m) (Conditions to Closing - Lien Search; Perfection) as are requested by the Lender, including such documents as are reasonably necessary or advisable to ensure the continued perfection of a first-priority security interest in substantially all assets of the Borrower in which a first priority security interest can be perfected by possession or by filings under the UCC;

(vii) Rate Contracts, including in connection with the Effective Date a duly executed ISDA Schedule and related master agreement, evidencing the Borrower’s compliance with its obligations contained in Section 7.01(t) (Affirmative Covenants – Rate Contracts);

(viii) (A) the Credit Protection Insurance Policy in the form attached hereto as Exhibit D (which shall be delivered on or prior to the first Funding Date together with applicable letters from the Authorized Representative of the Credit Protection Insurer and a power of attorney by Borrower in favor of Lender), (B) written confirmation from either the Credit Protection Insurer or the Authorized Representative of Credit Protection Insurer of (x) payment of all premiums then due and payable in connection with the Credit Protection Insurance Policy, including with respect to the Systems that are the subject of the Funding, (y) satisfaction of all conditions precedent relating to the effectiveness of the Credit Protection Insurance Policy with respect to the Systems that are the subject of the Funding, and (C) receipt of a certification by the Independent Engineer that the Systems that are the subject of the Funding have achieved Commencement of Operations;

(ix) an Interconnection Notice, duly executed by the Borrower, as required by and in accordance with Section 2.4 of the Offtake Agreements;

(x) with respect to a Funding for a System to be installed at the Site located at [***] a written notice, duly executed by Pacific Bell Telephone Company waiving its right to opt out of the obligation to permit such System to be installed;

(x) on or prior to the Effective Date, the LLC Agreement of the Borrower and the Pledgor LLC Agreement; and

(xi)

(xi) on or prior to the Effective Date, this Agreement, the Interparty Agreement, the Termination Agreement, the

(xii) Assignment and Assumption Agreement, the PPA Amendments and the PPA Acknowledgement.

*            *             *

ARTICLE VII

Section 7.02 Negative Covenants. The Borrower agrees with the Lender that, until the Discharge Date, the Borrower will perform the obligations set forth in this Section 7.02.

(m)    Project Documents.

(i)    The Borrower will not direct, consent to or agree to any amendment, modification, supplement, waiver, termination, consent in respect of, suspension of work under, renewal or extension of, or assignment, delegation or transfer of any material right, obligation or benefit under, any (A) Major Project Document or the Credit Protection Insurance Policy, in each case, without the prior written consent of the Lender or (B) Project Document that is not a Major Project Document without the prior written consent of the Lender unless any of the foregoing could not reasonably be expected to result in a Material Adverse Effect; provided, that no less than ten (10) Business Days after each Funding Date, the Borrower shall furnish to the Lender copies of each amendment to Exhibit A to the Offtake Agreements pursuant to Section 1.1 of the Offtake Agreements; provided, further, that the Borrower shall not terminate electrical service and remove any System pursuant to Section 5.2 or Section 5.4 of the Offtake Agreements, as applicable, without the Lender’s prior written consent.

[***] Confidential Treatment Requested

(ii)    Except for collateral assignments under the Security Documents, the Borrower will not assign or sublease any of its material rights under any Project Document to which it is a party to any Person, or consent to the assignment of any material obligations under any such Project Document by any other party thereto or any other replacement of the counterparty to any Project Document, without the prior written approval of the Lender.

(iii)    The Borrower shall make (i) every warranty claim in accordance with Sections 5.2, 5.3 and 5.4 of the LTSA and (ii) any insurance claim as to which either (A) the Borrower reasonably expects that a payment would be made under the Credit Protection Insurance Policy or (B) the Lender has directed Borrower to make, in each case in accordance with Section VII of the Credit Protection Insurance Policy.

*            *             *

Section 8.01 Events of Default. Each of the following events or occurrences described below shall constitute an Event of Default:

(h) Project Document Defaults; Termination.

(i) The Borrower or any Project Party shall be in material breach of or otherwise in material default under any Major Project Document, and such breach or default has continued beyond any applicable grace period expressly provided for in such Major Project Document; provided, that if (1) such breach or default cannot be cured within such cure period, (2) such breach or default is susceptible of cure within forty-five (45) days after the initial expiration of such cure period, (3) the Borrower or Project Party is proceeding with diligence and in good faith to cure such breach or default, and (4) the existence of such breach or default has not had and could not, after considering the nature of the cure, be reasonably expected to give rise to termination of such Major Project Contract or to otherwise result in a Material Adverse Effect, then the cure period shall be extended to such date, not to exceed a total of forty-five (45) days after the initial expiration of such cure period, as shall be necessary for the Borrower or applicable Project Party diligently to cure such breach or default.

(ii) The Borrower or any Project Party shall be in material breach of or otherwise in material default under any Project Document that is not a Major Project Document, and such breach or default has continued beyond any applicable grace period expressly provided for in such Project Document (or, if no such cure period is provided, sixty (30) days); provided, that any such breach or default by the Borrower or any Project Party shall not constitute an Event of Default if:

(A) such breach or default has not resulted in and could not reasonably be expected to result in a Material Adverse Effect; or

(B) an agreement replacing, renewing or reinstating such Project Document, in form and substance, and with a counterparty, reasonably satisfactory to the Lender, is entered into (together with all applicable Ancillary Documents) within thirty (30) days after the expiration of any applicable grace period.

(iii) Any Project Document ceases to be in full force and effect prior to its scheduled expiration or is repudiated or terminated for convenience (or under similar provisions) by any party thereto, or its enforceability is challenged or disaffirmed by or on behalf of the Borrower; provided, that such occurrence shall not constitute an Event of Default if:

(A) in the case of any such Project Document that is a Major Project Document, an agreement replacing, renewing or reinstating such Major Project Document, in form and substance, and with a counterparty, reasonably satisfactory to the Lender, is entered into (together with all applicable Ancillary Documents) within thirty(30) days thereof;

(B) in the case of any such Project Document (including any Major Project Document), such repudiation, challenge or disavowal, or the termination of the relevant Project Document, has not resulted in and could not reasonably be expected to result in a Material Adverse Effect; or

(C) in the case of any such Project Document that is not a Major Project Document but the repudiation, challenge, disavowal, or the termination of which could reasonably be expected to result in a Material Adverse Effect, an agreement replacing, renewing or reinstating such Project Document, in form and substance, and with a counterparty, reasonably satisfactory to the Lender, is entered into (together with all applicable Ancillary Documents) within thirty (30) days thereof.

(iv) Any Loan Party directly or indirectly permits, consents to or acquiesces in the termination, suspension, revocation or cancellation of the Administrative Services Agreement or the LTSA for any reason or cause without the consent of the Lender.

(v) [***] Offtaker disconnects or shuts down and turns off any System subject to PPA5 (such system, a “[***] System”) pursuant to Section 6.2 thereof; provided, that:

(1) if such [***] System is reconnected or restarted within fifteen (15) days following such disconnection or shutdown, such occurrence shall not constitute an Event of Default; and

(2) if such [***] System is not reconnected or restarted within fifteen (15) days following such disconnection or shutdown, such occurrence shall not constitute an Event of Default so long as:

(A) within fifteen (15) days following such disconnection or shutdown the Borrower provides written notice to the Lender detailing the reason for such disconnection or shutdown and providing any related correspondence between the Borrower and the [***] Offtaker;

(B) the Lender determines, in its reasonable discretion, within fifteen (15) days following receipt of such notice from the Borrower, (1) that such disconnection or shutdown is reasonably justified due to potential risk of endangerment from the applicable [***] System or Borrower’s failure to maintain the applicable [***] System and (2) that the cause of such disconnection or shutdown is particular to only the [***] System and not likely to affect the other Systems in the Portfolio;

(C) within thirty (30) days following such disconnection or shutdown, the Borrower provides the Lender with a plan to restart or replace the [***] System (such plan, a “[***] Cure Plan”), which plan shall meet the following requirements in the Lender’s reasonable discretion: (1) an appropriate schedule to restart or replace the applicable [***] System within two hundred ten (210) days of such disconnection or shutdown and (2) written confirmation from an Authorized Officer of the [***] Offtaker, that such [***] Offtaker will accept delivery of electricity from the applicable [***] System once such [***] System is restarted or replaced;

(D) every thirty (30) days during the Borrower’s implementation of such [***] Cure Plan, the Borrower

[***] Confidential Treatment Requested

shall provide written notice to the Lender that includes each of the following items and is acceptable to the Lender in the Lender’s reasonable discretion: (1) an accurate update on the Borrower’s progress in implementing such [***] Cure Plan; (2) any proposed revisions to such [***] Cure Plan (which revisions shall be subject to the Lender’s approval, not to be unreasonably withheld); and (3) certification from an Authorized Officer of the Borrower that such Authorized Officer anticipates that the [***] System will be restarted or replaced within two hundred ten (210) days of its initial disconnection or shutdown and that [***] Offtaker will accept delivery of electricity from such [***] System once such [***] System is restarted or replaced; and

(E)    the applicable [***] System is restarted or replaced in accordance with this Section 8.01(h)(v) and delivery of electricity from the applicable [***] System is accepted by [***] Offtaker under PPA5 within two hundred ten (210) days after the initial disconnection or shutdown of the applicable [***] System.

[***] Confidential Treatment Requested

Exhibit B to

Second Amendment

to Amended and Restated Credit Agreement

Amendments to Schedule 5.11 Part A to Credit Agreement

*Added text is in blue with underlining. Deleted text is in red with strikethrough marks. Listed items are renumbered accordingly.

*            *             *

7. Energy System Use Agreement No. 20130403.076.C (“PPA4”), dated as of May 15, 2013, by and between AT&T Corp and 2012 ESA (as amended by the PPA Acknowledgement and as may be further amended, amended and restated, supplemented or otherwise modified from time to time,), which was assigned by 2012 ESA to Borrower pursuant to that certain Assignment and Assumption Agreement, dated as of July 5, 2013 (the “PPA B/C Assignment”), which PPA B/C Assignment has been terminated pursuant to the Termination Agreement and which PPA4 has been assigned by 2012 ESA to Borrower pursuant to the Assignment and Assumption Agreement #1;

8. Energy System Use Agreement, effective as of July 24, 2013, by and between [***] and ESU Company, as may be amended, amended and restated, supplemented or otherwise modified from time to time (“PPA5”), which PPA5 has been assigned by ESU Company to Borrower pursuant to the Assignment and Assumption Agreement #2.

9. Lender Agreement, dated as of July 18, 2014, by and among [***] Lender and Borrower relating to PPA5.

10. License Agreement, dated as of July 24, 2013, between [***] and Borrower relating to PPA5, which License Agreement has been assigned by ESU Company to Borrower pursuant to the Assignment and Assumption Agreement #2.

11. [***] Guaranty.

*            *             *

1511.Lender Agreement, dated September 25, 2013 and effective as of May 15, 2013, by and among AT&T Lender and Borrower relating to PPA4.

*                *             *

2117.Site Lease Agreement, dated September 25, 2013 and effective as of May 15, 2013, by and between AT&T and Borrower relating to PPA4;

[***] Confidential Treatment Requested

Exhibit C to

Second Amendment

to Amended and Restated Credit Agreement

Amendments to Exhibit A to Credit Agreement

*Added text is in blue with underlining. Deleted text is in red with strikethrough marks.

“Accounts Agreement” means that certain Accounts Agreement, dated as of the Closing DateJuly 19, 2013, as amended by the First Amendment to Accounts Agreement, dated as of December 30, 2013, by and among the Borrower, the Lender and the Accounts Bank, as may be further amended, amended and restated, supplemented, or otherwise modified from time to time.

“Administrative Services Agreement” means that certain Amended and Restated Administrative Services Agreement, dated as of September 25, 2013, as amended by the First Amendment to Amended and Restated Administrative Services Agreement, dated as of March 28, 2014, by and among Pledgor, Borrower and Parent, as may be further amended, amended and restated, supplemented, or otherwise modified from time to time.

“Assignment and Assumption Agreement #1” means that certain Assignment and Assumption Agreement, effective as of May 15, 2013, by and between the Borrower and the IIIa Borrower with respect to the Energy System Use Agreement (Number 20130403.076.C) and the Site Lease Agreement related thereto.

“Assignment and Assumption Agreement #2” means that certain Assignment and Assumption Agreement, dated as of May 22, 2014 and effective as of July 18, 2014, by and between ESU Company, as assignor, and the Borrower, as assignee, with respect to PPA5 and the License Agreement related thereto.

“Assignment and Assumption Agreement” means, collectively, (i) the Assignment and Assumption Agreement #1 and (ii) the Assignment and Assumption Agreement #2.

“Credit Agreement” means that certain Amended and Restated Credit Agreement, dated as of September 25, 2013, as amended by the First Amendment to Amended and Restated Credit Agreement, dated as of November 14, 2013, as further amended by the Second Amendment to Amended and Restated Credit Agreement, dated as of July 18, 2014, by and between the Borrower and the Lender, as may be further amended, amended and restated, supplemented, or otherwise modified from time to time.

“Date Certain” means December 31, 2014the first anniversary of the Closing Date.

“Debt Sizing Test” means a test that is satisfied when the aggregate amount of all Loans has been reduced so that, under updated Financial Models (that employ the methodology used in the Financial Models delivered by Borrower on the Closing Date, with no change in the assumptions

set forth in such Financial Models, except to reflect the removal of the applicable Systems or any change in the applicable Project Documents and Rate Contracts, and which are certified by a Financial Officer of the Borrower), the ratio of Contracted Cash Flow to Debt Service for each Fiscal Quarter (assuming a fully amortizing loan with a final maturity date [***] Quarterly Payment Dates after the Date Certain) will be no less than [***].

“Equity Funding Agreement” means that certain Equity Capital Contribution Agreement, dated as of August 2, 2013, as amended by the First Amendment to Equity Capital Contribution Agreement, dated as of September 25, 2013 and as further amended by the Second Amendment to Equity Capital Contribution Agreement, dated as of March 28, 2014, as further amended by the Third Amendment to Equity Capital Contribution Agreement, dated as of July 18, 2014, by the Tax Investor and Bloom Investor, as may be further amended, amended and restated, supplemented, or otherwise modified from time to time.

“ESU Company” means Energy Server Use Contracting Company, LLC, a Delaware limited liability company.

“[***] Cure Plan” has the meaning set forth in Section 8.01(h)(v)(C) (Default and Enforcement – Events of Default).

“[***] Guarantor” means [***] a Delaware corporation.

“[***] Guaranty” means that certain Guaranty, dated as of June 5, 2014, by the [***] Guarantor in favor of Borrower.

“[***] Offtaker” means [***] a Delaware corporation.

“[***] System” has the meaning set forth in Section 8.01(h)(v) (Default and Enforcement – Events of Default).

“LTSA” means that certain Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of September 25, 2013, as amended by the First Amendment to Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of March 28, 2014, as further amended by the Second Amendment to Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of July 18, 2014, between the Parent and the Borrower, as may be further amended, amended and restated, supplemented, or otherwise modified from time to time.

“Major Project Documents” means the Offtake Agreements and each interconnection agreement related to any Offtake Agreement, the IP Security Agreement, the IP License Agreement, the PPA Indemnity Agreement, the PPA Amendments, the PPA Acknowledgement, the Assignment and Assumption Agreement, the LTSA, the Administrative Services Agreement, the [***] Guaranty, each of the Leases and Easement Documents, any REC Agreement, the LLC Agreement of the Borrower, the Pledgor LLC Agreement, the Equity Funding Agreement, any Project Document replacing any such Major Project Document or entered into in connection therewith, and any other Project Document and/or Contract entered into with an Affiliate of the Borrower identified as a Major Project Document on Schedule 5.11 or otherwise designated as a Major Project Document by the Lender and the Borrower.

[***] Confidential Treatment Requested

“Pledgor LLC Agreement” means that certain Amended and Restated Operating Agreement of Pledgor, dated as of August 2, 2013, as amended by the First Amendment to Amended and Restated Operating Agreement, effective as of August 2, 2013, by and between Bloom Investor and the Tax Investor, as may be further amended, amended and restated, supplemented, or otherwise modified from time to time.

“PPA5” means that certain Energy System Use Agreement, effective as of July 24, 2013, by and between [***] Offtaker and ESU Company, as may be amended, amended and restated, supplemented or otherwise modified from time to time, which PPA5 has been assigned by ESU Company to Borrower pursuant to the Assignment and Assumption Agreement #2.

“PPA Acknowledgement” means, collectively, that certain (i) Acknowledgement and Consent Regarding Assignment and Amendment, effective as of May 15, 2013, by and among the IIIa Borrower, the Borrower, PE12GVVC (Bloom PPA) Ltd. and AT&T and consented to by the Parent and (ii) Acknowledgement and Consent Regarding Assignment and Amendment, dated as of May 22, 2014, by and among the Borrower, [***] and ESU Company, and consented to by the Parent.

“PPA Indemnity Agreement” means that certain Amended and Restated Indemnity Agreement, dated as of September 25, 2013, as amended by the First Amendment to Amended and Restated Indemnity Agreement, dated as of July 18, 2014, between the Borrower and the Parent, as may be further amended, amended and restated, supplemented, or otherwise modified from time to time.

“Qualified Customers” means AT&T the [***] Offtaker (only so long as the [***] Guaranty is in place) and any other Person that is approved by the Lender in its sole discretion.

*            *             *

[***] Confidential Treatment Requested

Exhibit D to

Second Amendment

to Amended and Restated Credit Agreement

Amendments to Exhibit H to Credit Agreement

[To be attached.]

EX-10

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the

Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Exhibit 10.72

EXECUTION VERSION

THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT

This THIRD AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, effective as of October 24, 2014 (this “Amendment”), is entered into by and between 2013B ESA PROJECT COMPANY, LLC, a Delaware limited liability company (the “Borrower”), and SILICON VALLEY BANK, a California corporation (the “Lender”). The purpose of this Amendment is to amend that certain Amended and Restated Credit Agreement, dated as of September 25, 2013, as amended by the First Amendment to Amended and Restated Credit Agreement, dated as of November 14, 2013, and as further amended by the Second Amendment to Amended and Restated Credit Agreement, dated as of July 18, 2014, in each case, by and between the Borrower and the Lender (collectively, the “Credit Agreement”). Capitalized terms used and not otherwise defined herein have the meanings given to them in the Credit Agreement and the rules of interpretation set forth in the Credit Agreement apply as if set forth herein.

WHEREAS, pursuant to the Credit Agreement, the Lender agreed to make a credit facility available to the Borrower, subject to the terms and conditions set forth therein; and

WHEREAS, on and subject to the conditions of this Amendment, the undersigned are willing to agree to the requested amendments to the Credit Agreement;

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the undersigned agree as follows:

Section 1. Amendments to the Credit Agreement. The Credit Agreement is hereby amended in the manner set forth in Exhibit A to this Amendment.

Section 2. Amendments to Schedule 5.11 Part A to the Credit Agreement. Schedule 5.11 Part A to the Credit Agreement is hereby amended in the manner set forth in Exhibit B to this Amendment.

Section 3. Amendments to Exhibit A to the Credit Agreement. Exhibit A to the Credit Agreement is hereby amended in the manner set forth in Exhibit C to this Amendment.

Section 4. Amendments to Exhibit H to the Credit Agreement. Exhibit H to the Credit Agreement is hereby amended in the manner set forth in Exhibit D to this Amendment.

Section 5. Effectiveness. This Amendment shall be effective when it has been executed by the Lender and the Borrower and shall thereafter be effective as of the date first set forth above.

Section 6. Limited Purpose. Notwithstanding anything contained herein, the waivers, amendments and modifications made hereby: (a) are limited waivers, amendments and modifications and do not waive, alter or amend any term of any Financing Document other than as expressly set forth herein, (b) are effective only with respect to the transactions described herein and in the Financing Documents for the specific instance and the specific purposes to which the relevant provisions apply, and (c) shall not be effective for any other purpose or transaction.

Section 7. Effect on Credit Agreement. Except as expressly amended hereby or otherwise provided herein, all of the terms and conditions of the Credit Agreement and all other Financing Documents remain in full force and effect, and none of such terms and conditions are, or shall be construed as, otherwise amended or modified. All references to the Credit Agreement in the Credit Agreement and the other Financing Documents, and any documents, instruments and agreements related to them, shall hereafter refer to the Credit Agreement as amended hereby.

Section 8. Representations and Warranties. Each party represents and warrants to the other that:

(a) the execution and delivery of this Amendment and the performance by such party of its obligations hereunder have been authorized by all requisite action on its part; and

(b) this Amendment has been validly executed and delivered by such party, and assuming that this Amendment has been duly authorized, executed, and delivered by the other parties, constitutes a valid and binding obligation of such party, enforceable against such party in accordance with its terms.

Section 9. Miscellaneous.

(a) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA, WITHOUT REFERENCE TO CONFLICTS OF LAW (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

(b) This Amendment shall be deemed a Financing Document.

(c) This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.

(d) Delivery of an executed counterpart of a signature page of this Amendment by telecopy or portable document format (“PDF”) shall be effective as delivery of a manually executed counterpart of this Amendment.

[Remainder of page intentionally blank.]

2

IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to Amended and Restated Credit Agreement to be executed by their respective officers effective as of the day and year first above written.

2013B ESA PROJECT COMPANY, LLC, as the Borrower
By:
	Name:  William E. Brockenborough
	Title:    Vice-President

Third Amendment to

Amended and Restated Credit Agreement

IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to Amended and Restated Credit Agreement to be executed by their respective officers effective as of the day and year first above written.

SILICON VALLEY BANK, as the Lender
By:
	Name:  Dan Baldi
	Title:    Managing Director

Third Amendment to

Amended and Restated Credit Agreement

Exhibit A to

Third Amendment

to Amended and Restated Credit Agreement

Amendments to Amended and Restated Credit Agreement

* Added text is in blue with underlining. Deleted text is in red with strikethrough marks.

Section 3.08 Mandatory Prepayment.

(a) Special Events.

(i) Events Relating to the Systems. The Borrower shall be required to prepay the Loans:

(A) upon receipt by the Borrower of Insurance Proceeds, Condemnation Proceeds or Extraordinary Proceeds with respect to any System, to the extent required pursuant to the Accounts Agreement;

(B) (1) upon a credit rating downgrade below Investment Grade of (X) a Qualified Customer (excluding the [***] Offtaker) that is then a party to an Offtake Agreement or (Y) the [***] Guarantor, or (2) upon a credit rating downgrade below “Investment Grade Credit Rating” (as defined in the [***] Guaranty) of [***] in each case, to the extent required pursuant to Section 4.2(c) of the Accounts Agreement; and

(C) as required under Section 3.12(b)(iv) (System Severance – Severance Amount Payment).

*                         *                        *

Section 6.02 Conditions to Funding of any System. The Funding of Loans with respect to any System is subject to the satisfaction of each of the following conditions precedent:

(t) Update to Financial Model. The Lender shall have received a duly executed certificate of a Financial Officer of the Borrower, dated as of the Effective Date and on which the Lender may conclusively rely, attaching (i) updated Financial Models that employ the methodology used in the Financial Models delivered by Borrower on the Closing Date, with no change in the assumptions set forth in such Financial Models, except to reflect an update to the effective interest rate paid by the Borrower on Loans pursuant to the Rate Contracts and a related update to the Prepaid Expenses, such that the ratio of Contracted Cash Flow to Debt Service for each Fiscal Quarter (assuming a fully amortizing loan with a final maturity date [***] Quarterly Payment Dates after the Date Certain) will be no less than [***] and (ii) a corresponding update to Schedule 1 of the Accounts Agreement.

[***] Confidential Treatment Requested

Exhibit B to

Third Amendment

to Amended and Restated Credit Agreement

Amendments to Schedule 5.11 Part A to Credit Agreement

* Added text is in blue with underlining. Deleted text is in red with strikethrough marks. Listed items are renumbered accordingly.

*                    *                     *

1. the LTSA;

2. the Administrative Services Agreement;

3. the Reservation Letters for each Site eligible to receive payments under the California Self-Generation Incentive Program;

4. Energy System Use Agreement No. 20130430.072.C, dated as of May 15, 2013, by and between [***] ([***]) and Borrower (as amended by Amendment No. 1 to Energy System Use Agreement No. 20130430.072.C, effective as of May 15, 2013, by and between [***] and Borrower, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time), which was partially assigned by the Borrower to 2012 ESA Project Company, LLC, a Delaware limited liability company (“2012 ESA”), pursuant to that certain Assignment and Assumption Agreement, dated as of July 5, 2013 (the “PPA E/G Assignment”), and which PPA E/G Assignment has been terminated pursuant to the Termination Agreement (“PPA1”);

5. Energy System Use Agreement No. 20130430.076.C, dated as of May 15, 2013, by and between [***] and Borrower, as may be amended, amended and restated, supplemented or otherwise modified from time to time (“PPA2”);

6. Energy System Use Agreement No. 20130430.078.C, dated as of May 15, 2013, by and between [***] and Borrower (as amended by Amendment No. 1 to Energy System Use Agreement No. 20130430.078.C, effective as of May 15, 2013, as further amended by Amendment No. 2 to Energy System Use Agreement No. 20130430.078.C, effective as of October 24, 2014, in each case, by and between [***] and Borrower, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time), which was partially assigned by the Borrower to 2012 ESA pursuant to the PPA E/G Assignment, and which PPA E/G Assignment has been terminated pursuant to the Termination Agreement (“PPA3”);

[***] Confidential Treatment Requested

7. Energy System Use Agreement No. 20130403.076.C (“PPA4”), dated as of May 15, 2013, by and between [***] and 2012 ESA (as amended by the PPA Acknowledgement and as may be further amended, amended and restated, supplemented or otherwise modified from time to time,), which was assigned by 2012 ESA to Borrower pursuant to that certain Assignment and Assumption Agreement, dated as of July 5, 2013 (the “PPA B/C Assignment”), which PPA B/C Assignment has been terminated pursuant to the Termination Agreement and which PPA4 has been assigned by 2012 ESA to Borrower pursuant to the Assignment and Assumption Agreement #1;

8. Energy System Use Agreement, effective as of July 24, 2013, by and between [***] Offtaker and ESU Company, as may be amended, amended and restated, supplemented or otherwise modified from time to time (“PPA5”), which PPA5 has been assigned by ESU Company to Borrower pursuant to the Assignment and Assumption Agreement #2.;

9. Energy System Use Agreement, effective as of October 24, 2014, by and between [***] and Borrower, as may be amended, amended and restated, supplemented or otherwise modified from time to time (“PPA6”);

910. Lender Agreement, dated as of July 18, 2014, by and among [***] Offtaker, Lender and Borrower relating to PPA5.;

1011. License Agreement, dated as of July 24, 2013, between [***] Offtaker and Borrower relating to PPA5, which License Agreement has been assigned by ESU Company to Borrower pursuant to the Assignment and Assumption Agreement #2.;

1112. [***] Guaranty.;

1213. [***]&T Guaranty;

1314. Lender Agreement, dated May 15, 2013, by and among [***] Lender and Borrower relating to PPA3;

1415. Lender Agreement, dated May 15, 2013, by and among [***] Lender and Borrower relating to PPA1;

1516. Lender Agreement, dated May 15, 2013, by and among [***] Lender and Borrower relating to PPA2;

1617. Lender Agreement, dated September 25, 2013 and effective as of May 15, 2013, by and among [***] Lender and Borrower relating to PPA4;

1718. Lender Agreement, effective as of October 24, 2014, by and among [***] Lender and Borrower relating to PPA6;

[***] Confidential Treatment Requested

Schedule 5.11 Part A — 2

1819. Site Lease Agreement, dated May 15, 2013, between [***] and Borrower relating to PPA1;

1920. Site Lease Agreement, dated May 15, 2013, between [***] and Borrower relating to PPA2;

2021. Site Lease Agreement, dated May 15, 2013, between [***] and Borrower relating to PPA3;

2122. Site Lease Agreement, dated May 15, 2013, between [***] and Borrower relating to PPA3;

2223. Site Lease Agreement, dated May 15, 2013, between [***] and Borrower relating to PPA3;

2324. Site Lease Agreement, dated September 25, 2013 and effective as of May 15, 2013, by and between [***] and Borrower relating to PPA4;

2425. Site Lease Agreement, dated October 24, 2014, between [***] a Delaware corporation, and Borrower relating to PPA6;

2526. the IP License;

2627. the IP Security Agreement;

2728. the Indemnity Agreement;

2829. the Assignment and Assumption Agreement;

2930. the PPA Amendments;

3031. the PPA Acknowledgement;

3132. the Termination Agreement;

3233. the LLC Agreement of the Borrower;

3334. the Pledgor LLC Agreement; and

3435. the Equity Funding Agreement.

[***] Confidential Treatment Requested

Exhibit C to

Third Amendment

to Amended and Restated Credit Agreement

Amendments to Exhibit A to Credit Agreement

* Added text is in blue with underlining. Deleted text is in red with strikethrough marks.

“Accounts Agreement” means that certain Accounts Agreement, dated as of July 19, 2013, as amended by the First Amendment to Accounts Agreement, dated as of December 30, 2013, and as further amended by the Second Amendment to Accounts Agreement, effective as of October 24, 2014, by and among the Borrower, the Lender and the Accounts Bank, as may be further amended, amended and restated, supplemented, or otherwise modified from time to time.

“[***] Guaranty” means that certain Guaranty, dated as of October 24, 2014, by [***] in favor of Borrower.

“Credit Agreement” means that certain Amended and Restated Credit Agreement, dated as of September 25, 2013, as amended by the First Amendment to Amended and Restated Credit Agreement, dated as of November 14, 2013, as further amended by the Second Amendment to Amended and Restated Credit Agreement, dated as of July 18, 2014, and as further amended by the Third Amendment to Amended and Restated Credit Agreement, effective as of October 24, 2014, by and between the Borrower and the Lender, as may be further amended, amended and restated, supplemented, or otherwise modified from time to time.

“Debt Sizing Test” means a test that is satisfied when the aggregate amount of all Loans has been reduced so that, under updated Financial Models (that employ the methodology used in the Financial Models delivered by Borrower on the Closing Date, with no change in the assumptions set forth in such Financial Models, except to reflect the removal of the applicable Systems or any change in the applicable Project Documents and Rate Contracts, and which are certified by a Financial Officer of the Borrower), the ratio of Contracted Cash Flow to Debt Service for each Fiscal Quarter (assuming a fully amortizing loan with a final maturity date [***] Quarterly Payment Dates after the Date Certain) will be no less than [***]

“Equity Funding Agreement” means that certain Equity Capital Contribution Agreement, dated as of August 2, 2013, as amended by the First Amendment to Equity Capital Contribution Agreement, dated as of September 25, 2013, and as further amended by the Second Amendment to Equity Capital Contribution Agreement, dated as of March 28, 2014, as further amended by the Third Amendment to Equity Capital Contribution Agreement, dated as of July 18, 2014, and as further amended by the Fourth Amendment to Equity Capital Contribution Agreement, effective as of October 24, 2014, by and between the Tax Investor and Bloom Investor, as may be further amended, amended and restated, supplemented, or otherwise modified from time to time.

[***] Confidential Treatment Requested

“Financial Models” means the pro forma financial statements and projections of revenue and expenses and cash flows with respect to the Borrower and the Portfolio for the period from the Closing Date through the date that is fifty-eight (58)sixty (60) Quarterly Payment Dates after the Date Certain, attached to the Credit Agreement as Exhibit G, as the same may be updated by the Borrower with the prior written approval of the Lender, including as of the Effective Date.

[***] means [***] [***] a Delaware corporation.

“LTSA” means that certain Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of September 25, 2013, as amended by the First Amendment to Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of March 28, 2014, as further amended by the Second Amendment to Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of July 18, 2014, as further amended by the Third Amendment to Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of October [    ], 2014, between the Parent and the Borrower, as may be further amended, amended and restated, supplemented, or otherwise modified from time to time.

“Major Project Documents” means the Offtake Agreements and each interconnection agreement related to any Offtake Agreement, the IP Security Agreement, the IP License Agreement, the PPA Indemnity Agreement, the PPA Amendments, the PPA Acknowledgement, the Assignment and Assumption Agreement, the LTSA, the Administrative Services Agreement, the [***] Guaranty, the [***] Guaranty, each of the Leases and Easement Documents, any REC Agreement, the LLC Agreement of the Borrower, the Pledgor LLC Agreement, the Equity Funding Agreement, any Project Document replacing any such Major Project Document or entered into in connection therewith, and any other Project Document and/or Contract entered into with an Affiliate of the Borrower identified as a Major Project Document on Schedule 5.11 or otherwise designated as a Major Project Document by the Lender and the Borrower.

“PPA6” means that certain Energy System Use Agreement, effective as of October 24, 2014, by and between [***] and the Borrower, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

“PPA Indemnity Agreement” means that certain Amended and Restated Indemnity Agreement, dated as of September 25, 2013, as amended by the First Amendment to Amended and Restated Indemnity Agreement, dated as of July 18, 2014, and as further amended by the Second Amendment to Amended and Restated Indemnity Agreement, effective as of October 24, 2014, between the Borrower and the Parent, as may be further amended, amended and restated, supplemented, or otherwise modified from time to time.

“Qualified Customers” means [***] the [***] Offtaker (only so long as the [***] Guaranty is in place), [***] (only so long as the [***] Guaranty is in place) and any other Person that is approved by the Lender in its sole discretion.

*                         *                        *

[***] Confidential Treatment Requested

Exhibit D to

Third Amendment

to Amended and Restated Credit Agreement

Amendments to Exhibit H to Credit Agreement

[To be attached.]

EX-10

Exhibit 10.73

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Execution Version

FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT

This FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as of May 5, 2015 (this “Amendment”), is entered into by and between 2013B ESA PROJECT COMPANY, LLC, a Delaware limited liability company (the “Borrower”), and SILICON VALLEY BANK, a California corporation (the “Lender”). The purpose of this Amendment is to amend that certain Amended and Restated Credit Agreement, dated as of September 25, 2013, as amended by the First Amendment to Amended and Restated Credit Agreement, dated as of November 14, 2013, as further amended by the Second Amendment to Amended and Restated Credit Agreement, dated as of July 18, 2014, and as further amended by the Third Amendment to Amended and Restated Credit Agreement, effective as of October 24, 2014, in each case, by and between the Borrower and the Lender (collectively, the “Credit Agreement”). Capitalized terms used and not otherwise defined herein have the meanings given to them in the Credit Agreement and the rules of interpretation set forth in the Credit Agreement apply as if set forth herein.

WHEREAS, pursuant to the Credit Agreement, the Lender agreed to make a credit facility available to the Borrower, subject to the terms and conditions set forth therein; and

WHEREAS, on and subject to the conditions of this Amendment, the undersigned are willing to agree to the requested amendments to the Credit Agreement;

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the undersigned agree as follows:

Section 1. Amendments to the Credit Agreement. The Credit Agreement is hereby amended in the manner set forth in Exhibit A to this Amendment.

Section 2. Amendments to Schedule 5.11 to the Credit Agreement. Schedule 5.11 to the Credit Agreement is hereby amended in the manner set forth in Exhibit B to this Amendment.

Section 3. Amendments to Exhibit A to the Credit Agreement. Exhibit A to the Credit Agreement is hereby amended in the manner set forth in Exhibit C to this Amendment.

Section 4. Amendments to Exhibit H to the Credit Agreement. Exhibit H to the Credit Agreement is hereby amended in the manner set forth in Exhibit D to this Amendment.

Section 5. Effectiveness. This Amendment shall be effective when all of the following conditions are satisfied:

(a)    Borrower has paid to Lender an additional availability fee of $[***] made in immediately available funds pursuant to the wire instruction listed on Schedule 3.09(a) of the Credit Agreement, or at such other office or account as may be specified by the Lender to the Borrower; and

(b)    this Amendment has been executed by the Lender and the Borrower and shall thereafter be effective as of the date first set forth above.

Section 6. Limited Purpose. Notwithstanding anything contained herein, the waivers, amendments and modifications made hereby: (a) are limited waivers, amendments and modifications and do not waive, alter or amend any term of any Financing Document other than as expressly set forth herein, (b) are effective only with respect to the transactions described herein and in the Financing Documents for the specific instance and the specific purposes to which the relevant provisions apply, and (c) shall not be effective for any other purpose or transaction.

Section 7. Effect on Credit Agreement. Except as expressly amended hereby or otherwise provided herein, all of the terms and conditions of the Credit Agreement and all other Financing Documents remain in full force and effect, and none of such terms and conditions are, or shall be construed as, otherwise amended or modified. All references to the Credit Agreement in the Credit Agreement and the other Financing Documents, and any documents, instruments and agreements related to them, shall hereafter refer to the Credit Agreement as amended hereby.

Section 8. Representations and Warranties. Each party represents and warrants to the other that:

(a)    the execution and delivery of this Amendment and the performance by such party of its obligations hereunder have been authorized by all requisite action on its part; and

(b)    this Amendment has been validly executed and delivered by such party, and assuming that this Amendment has been duly authorized, executed, and delivered by the other parties, constitutes a valid and binding obligation of such party, enforceable against such party in accordance with its terms.

Section 9. Miscellaneous.

(a)    THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA, WITHOUT REFERENCE TO CONFLICTS OF LAW (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

(b)    This Amendment shall be deemed a Financing Document.

(c)    This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.

2

(d)    Delivery of an executed counterpart of a signature page of this Amendment by telecopy or portable document format (“PDF”) shall be effective as delivery of a manually executed counterpart of this Amendment.

[Remainder of page intentionally blank.]

3

IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to Amended and Restated Credit Agreement to be executed by their respective officers effective as of the day and year first above written.

2013B ESA PROJECT COMPANY, LLC, as the Borrower
By:
Name:	William E. Brockenborough
Title:	Vice President and Secretary

Fourth Amendment to

Amended and Restated Credit Agreement

SILICON VALLEY BANK, as the Lender
By:
Name:	Dan Baldi
Title:	Managing Director

Fourth Amendment to

Amended and Restated Credit Agreement

Exhibit A to

Fourth Amendment

to Amended and Restated Credit Agreement

Amendments to Amended and Restated Credit Agreement

* Added text is in blue with underlining. Deleted text is in red with strikethrough marks.

Section 2.05 Termination or Reduction of Commitment.

(a)    Any unused Loan Commitment shall be automatically and permanently terminated on the Secondary Date Certain.

(b)    Upon any prepayment of the Loans pursuant to Section 3.08 (Mandatory Prepayment), the Loan Commitment shall be automatically and permanently reduced in an amount equal to such prepayment.

(c)    Any unused Loan Commitment shall be terminated upon the occurrence of an Event of Default if and to the extent required pursuant to Section 8.02 (Action Upon Bankruptcy) or Section 8.03 (Action Upon Other Event of Default) in accordance with the terms thereof.

Exhibit B to

Fourth Amendment

to Amended and Restated Credit Agreement

Amendments to Schedule 5.11 Part A to Credit Agreement

* Added text is in blue with underlining. Deleted text is in red with strikethrough marks. Listed items are renumbered accordingly.

*            *             *

1. the LTSA;

2. the Administrative Services Agreement;

3. the Reservation Letters for each Site eligible to receive payments under the California Self-Generation Incentive Program;

4. Energy System Use Agreement No. 20130430.072.C, dated as of May 15, 2013, by and between Pacific Bell Telephone Company (Pac Bell) and Borrower (as amended by Amendment No. 1 to Energy System Use Agreement No. 20130430.072.C, effective as of May 15, 2013, by and between Pac Bell and Borrower, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time), which was partially assigned by the Borrower to 2012 ESA Project Company, LLC, a Delaware limited liability company (“2012 ESA”), pursuant to that certain Assignment and Assumption Agreement, dated as of July 5, 2013 (the “PPA E/G Assignment”), and which PPA E/G Assignment has been terminated pursuant to the Termination Agreement (“PPA1”);

5. Energy System Use Agreement No. 20130430.076.C, dated as of May 15, 2013, by and between Pac Bell and Borrower, as may be amended, amended and restated, supplemented or otherwise modified from time to time (“PPA2”);

6. Energy System Use Agreement No. 20130430.078.C, dated as of May 15, 2013, by and between AT&T Corp. and Borrower (as amended by Amendment No. 1 to Energy System Use Agreement No. 20130430.078.C, effective as of May 15, 2013, as further amended by Amendment No. 2 to Energy System Use Agreement No. 20130430.078.C, effective as of October 24, 2014, in each case, by and between AT&T Corp. and Borrower, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time), which was partially assigned by the Borrower to 2012 ESA pursuant to the PPA E/G Assignment, and which PPA E/G Assignment has been terminated pursuant to the Termination Agreement (“PPA3”);

7. Energy System Use Agreement No. 20130403.076.C (“PPA4”), dated as of May 15, 2013, by and between AT&T and 2012 ESA (as amended by the PPA Acknowledgement and as may be further amended, amended and restated, supplemented or otherwise modified from time to time,), which was assigned by 2012 ESA to Borrower pursuant to that certain Assignment and Assumption Agreement, dated as of July 5, 2013 (the “PPA B/C Assignment”), which PPA B/C Assignment has been terminated pursuant to the Termination Agreement and which PPA4 has been assigned by 2012 ESA to Borrower pursuant to the Assignment and Assumption Agreement #1;

8. Energy System Use Agreement, effective as of July 24, 2013, by and between [***] Offtaker and ESU Company, as may be amended, amended and restated, supplemented or otherwise modified from time to time (“PPA5”), which PPA5 has been assigned by ESU Company to Borrower pursuant to the Assignment and Assumption Agreement #2;

9. Energy System Use Agreement, effective as of October 24, 2014, by and between [***] and Borrower, as may be amended, amended and restated, supplemented or otherwise modified from time to time (“PPA6”);

10. Lender Agreement, dated as of July 18, 2014, by and among [***] Offtaker, Lender and Borrower relating to PPA5;

11. License Agreement, dated as of July 24, 2013, between [***] Offtaker and Borrower relating to PPA5, which License Agreement has been assigned by ESU Company to Borrower pursuant to the Assignment and Assumption Agreement #2;

12. [***] Guaranty;

13. AT&T Guaranty;

14. Lender Agreement, dated May 15, 2013, by and among AT&T Corp. Lender and Borrower relating to PPA3;

15. Lender Agreement, dated May 15, 2013, by and among Pac Bell Lender and Borrower relating to PPA1;

16. Lender Agreement, dated May 15, 2013, by and among Pac Bell Lender and Borrower relating to PPA2;

17. Lender Agreement, dated September 25, 2013 and effective as of May 15, 2013, by and among AT&T Corp. Lender and Borrower relating to PPA4;

18. Lender Agreement, effective as of October 24, 2014, by and among [***] Lender and Borrower relating to PPA6;

19. Site Lease Agreement, dated May 15, 2013, between Pac Bell and Borrower relating to PPA1;

[***] Confidential Treatment Requested

Schedule 5.11 Part A — 2

20. Site Lease Agreement, dated May 15, 2013, between Pac Bell and Borrower relating to PPA2;

21. Site Lease Agreement, dated May 15, 2013, between AT&T Corp. and Borrower relating to PPA3;

22. Site Lease Agreement, dated May 15, 2013, between AT&T Capital Services, Inc. and Borrower relating to PPA3;

23. Site Lease Agreement, dated May 15, 2013, between [***] and Borrower relating to PPA3;

24. Site Lease Agreement, dated September 25, 2013 and effective as of May 15, 2013, by and between AT&T Corp. and Borrower relating to PPA4;

25. Site Lease Agreement, dated October 24, 2014, between [***] a Delaware corporation, and Borrower relating to PPA6;

26. the IP License;

27. the IP Security Agreement;

28. the Indemnity Agreement;

29. the Assignment and Assumption Agreement;

30. the PPA Amendments;

31. the PPA Acknowledgement;

32. the Termination Agreement;

33. the LLC Agreement of the Borrower;

34. the Pledgor LLC Agreement; and

35. the Equity Funding Agreement.;

36. the [***] PPA, which was assigned by 2015 ESA to Borrower pursuant to that certain [***] PPA Assignment;

37. the [***] PPA Assignment; and

38. Lender Agreement, dated May 5, 2015, by and among [***] Lender and Borrower relating to [***] PPA.

[***] Confidential Treatment Requested

Exhibit C to

Fourth Amendment

to Amended and Restated Credit Agreement

Amendments to Exhibit A to Credit Agreement

* Added text is in blue with underlining. Deleted text is in red with strikethrough marks.

“2015 ESA” means 2015 ESA Project Company, LLC, a Delaware limited liability company.

“Assignment and Assumption Agreement” means, collectively, (i) the Assignment and Assumption Agreement #1 and (ii) the Assignment and Assumption Agreement #2 and (iii) [***] PPA Assignment.

“Availability Period” means the period from and including the Closing Date to and including the Secondary Date Certain.

[***] means the [***]

“[***] PPA” means that certain Energy Services and License Agreement, dated as of December 17, 2014, by and between [***] and 2015 ESA, as amended by the Amendment No. 1 to Energy Services and License Agreement, by and between [***] and Borrower, effective as of December 17, 2014, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time, which was assigned by 2015 ESA to Borrower pursuant to that certain [***] PPA Assignment.

“[***] PPA Assignment” means Assignment and Assumption Agreement, effective as of December 17, 2014, by and between 2015 ESA, as assignor, and Borrower, as assignee with respect to [***] PPA.

“Credit Agreement” means that certain Amended and Restated Credit Agreement, dated as of September 25, 2013, as amended by the First Amendment to Amended and Restated Credit Agreement, dated as of November 14, 2013, as further amended by the Second Amendment to Amended and Restated Credit Agreement, dated as of July 18, 2014, and as further amended by the Third Amendment to Amended and Restated Credit Agreement, effective as of October 24, 2014, and as further amended by the Fourth Amendment to Amended and Restated Credit Agreement, dated as of May 4, 2014, by and between the Borrower and the Lender, as may be further amended, amended and restated, supplemented, or otherwise modified from time to time.

“Equity Funding Agreement” means that certain Equity Capital Contribution Agreement, dated as of August 2, 2013, as amended by the First Amendment to Equity Capital Contribution Agreement, dated as of September 25, 2013, as further amended by the Second Amendment to Equity Capital Contribution Agreement, dated as of March 28, 2014, as further amended by the Third Amendment to Equity Capital Contribution Agreement, dated as of July 18, 2014, and as further amended by the Fourth Amendment to Equity Capital Contribution Agreement, effective as of October 24, 2014, and as further amended by the Fifth Amendment to Equity Capital

[***] Confidential Treatment Requested

Contribution Agreement, dated as of May 5, 2015, by and between the Tax Investor and Bloom Investor, as may be further amended, amended and restated, supplemented, or otherwise modified from time to time.

“Interparty Agreement” means that certain Interparty Agreement, dated as of August 2, 2013, by and among the Borrower, the Tax Investor and the Lender, as amended by that certain First Amendment to Interparty Agreement, dated as of the September 25, 2013 Effective Date, by and among the Borrower, the Tax Investor and the Lender, and as further amended by that certain Second Amendment to Interparty Agreement, dated as of the May 5, 2015, by and among the Borrower, the Tax Investor and the Lender, as may be further amended, amended and restated, supplemented, or otherwise modified from time to time.

“LTSA” means that certain Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of September 25, 2013, as amended by the First Amendment to Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of March 28, 2014, as further amended by the Second Amendment to Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of July 18, 2014, and as further amended by the Third Amendment to Amended and Restated Master Energy Server Purchase and Services Agreement, dated effective as of October 24, 2014, and as further amended by the Fourth Amendment to Amended and Restated Master Energy Server Purchase and Services Agreement, dated as of May 5, 2015, between the Parent and the Borrower, as may be further amended, amended and restated, supplemented, or otherwise modified from time to time.

“PPA Indemnity Agreement” means that certain Amended and Restated Indemnity Agreement, dated as of September 25, 2013, as amended by the First Amendment to Amended and Restated Indemnity Agreement, dated as of July 18, 2014, and as further amended by the Second Amendment to Amended and Restated Indemnity Agreement, effective as of October 24, 2014, and as further amended by the Third Amendment to Amended and Restated Indemnity Agreement, dated as of May 5, 2015, between the Borrower and the Parent, as may be further amended, amended and restated, supplemented, or otherwise modified from time to time.

“Qualified Customers” means AT&T Corp.Pacific BellTelphone Company, the [***] Offtaker (only so long as the [***] Guaranty is in place), [***] (only so long as the AT&T Guaranty is in place), [***] and any other Person that is approved by the Lender in its sole discretion.

“Secondary Date Certain” means June 30, 2015.

*            *             *

[***] Confidential Treatment Requested

Exhibit D to

Fourth Amendment

to Amended and Restated Credit Agreement

Amendments to Exhibit H to Credit Agreement

[To be attached.]

EX-10

Exhibit 10.74

FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT

This FIFTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June 22, 2015 (this “Amendment”), is entered into by and between 2013B ESA PROJECT COMPANY, LLC, a Delaware limited liability company (the “Borrower”), and SILICON VALLEY BANK, a California corporation (the “Lender”). The purpose of this Amendment is to amend that certain Amended and Restated Credit Agreement, dated as of September 25, 2013, as amended by the First Amendment to Amended and Restated Credit Agreement, dated as of November 14, 2013, as further amended by the Second Amendment to Amended and Restated Credit Agreement, dated as of July 18, 2014, as further amended by the Third Amendment to Amended and Restated Credit Agreement, effective as of October 24, 2014, and as further amended by the Fourth Amendment to Amended and Restated Credit Agreement, effective as of May 5, 2015, in each case, by and between the Borrower and the Lender (collectively, the “Credit Agreement”). Capitalized terms used and not otherwise defined herein have the meanings given to them in the Credit Agreement and the rules of interpretation set forth in the Credit Agreement apply as if set forth herein.

WHEREAS, pursuant to the Credit Agreement, the Lender agreed to make a credit facility available to the Borrower, subject to the terms and conditions set forth therein; and

WHEREAS, on and subject to the conditions of this Amendment, the undersigned are willing to agree to the requested amendments to the Credit Agreement;

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the undersigned agree as follows:

Section 1. Amendments to Schedule 1.01 to the Credit Agreement. Schedule 1.01 to the Credit Agreement is hereby amended in the manner set forth in Exhibit A to this Amendment.

Section 2. Effectiveness. This Amendment shall be effective when it has been executed by the Lender and the Borrower and shall thereafter be effective as of the date first set forth above.

Section 3. Limited Purpose. Notwithstanding anything contained herein, the waivers, amendments and modifications made hereby: (a) are limited waivers, amendments and modifications and do not waive, alter or amend any term of any Financing Document other than as expressly set forth herein, (b) are effective only with respect to the transactions described herein and in the Financing Documents for the specific instance and the specific purposes to which the relevant provisions apply, and (c) shall not be effective for any other purpose or transaction.

Section 4. Effect on Credit Agreement. Except as expressly amended hereby or otherwise provided herein, all of the terms and conditions of the Credit Agreement and all other Financing Documents remain in full force and effect, and none of such terms and conditions are, or shall be construed as, otherwise amended or modified. All references to the Credit Agreement in the Credit Agreement and the other Financing Documents, and any documents, instruments and agreements related to them, shall hereafter refer to the Credit Agreement as amended hereby.

Section 5. Representations and Warranties. Each party represents and warrants to the other that:

(a) the execution and delivery of this Amendment and the performance by such party of its obligations hereunder have been authorized by all requisite action on its part; and

(b) this Amendment has been validly executed and delivered by such party, and assuming that this Amendment has been duly authorized, executed, and delivered by the other parties, constitutes a valid and binding obligation of such party, enforceable against such party in accordance with its terms.

Section 6. Miscellaneous.

(a) THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA, WITHOUT REFERENCE TO CONFLICTS OF LAW (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

(b) This Amendment shall be deemed a Financing Document.

(c) This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.

(d) Delivery of an executed counterpart of a signature page of this Amendment by telecopy or portable document format (“PDF”) shall be effective as delivery of a manually executed counterpart of this Amendment.

[Remainder of page intentionally blank.]

2

IN WITNESS WHEREOF, the parties hereto have caused this Fifth Amendment to Amended and Restated Credit Agreement to be executed by their respective officers effective as of the day and year first above written.

2013B ESA PROJECT COMPANY, LLC, as the Borrower
By:	/s/ William E. Brockenborough
	Name: William E. Brockenborough
	Title: Vice President

Fifth Amendment to

Amended and Restated Credit Agreement

SILICON VALLEY BANK, as the Lender
By:	/s/ Bret Turner
	Name: Bret Turner
	Title: Managing Director

Fifth Amendment to

Amended and Restated Credit Agreement

Exhibit A to

Fifth Amendment

to Amended and Restated Credit Agreement

Amendment to Amended and Restated Credit Agreement

Schedule 1.01

Quarter Ending	Total Principal Payments		Principal PMT as % of Principal Balance
10/1/2013	$	0		0.0000	%
1/1/2014	$	0		0.0000	%
4/1/2014	$	0		0.0000	%
7/1/2014	$	234,576		0.8180	%
10/1/2014	$	120,180		0.4191	%
1/1/2015	$	79,097		0.2758	%
4/1/2015	$	72,609		0.2532	%
7/1/2015	$	261,723		0.9127	%
10/1/2015	$	230,311		0.8032	%
1/1/2016	$	801,260		2.7942	%
4/1/2016	$	210,764		0.7350	%
7/1/2016	$	167,157		0.5829	%
10/1/2016	$	178,480		0.6224	%
1/1/2017	$	212,975		0.7427	%
4/1/2017	$	173,180		0.6039	%
7/1/2017	$	151,968		0.5300	%
10/1/2017	$	182,540		0.6366	%
1/1/2018	$	223,804		0.7805	%
4/1/2018	$	222,728		0.7767	%
7/1/2018	$	218,458		0.7618	%
10/1/2018	$	210,933		0.7356	%
1/1/2019	$	284,964		0.9937	%
4/1/2019	$	175,976		0.6137	%
7/1/2019	$	194,209		0.6773	%
10/1/2019	$	171,363		0.5976	%
1/1/2020	$	385,006		1.3426	%
4/1/2020	$	207,006		0.7219	%
7/1/2020	$	223,493		0.7794	%
10/1/2020	$	237,148		0.8270	%

EX-10

Exhibit 10.75

EXECUTION VERSION

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

ADMINISTRATIVE SERVICES AGREEMENT

by and between

BLOOM ENERGY CORPORATION,

2014 ESA HOLDCO, LLC

and

2014 ESA PROJECT COMPANY, LLC

Dated as of July 18, 2014

ADMINISTRATIVE SERVICES AGREEMENT

THIS ADMINISTRATIVE SERVICES AGREEMENT (the “Agreement”) is made as of July 18, 2014, by and among 2014 ESA HOLDCO, LLC, a Delaware limited liability company (the “Company”), 2014 ESA PROJECT COMPANY, LLC, a Delaware limited liability company (the “Project Company”), and BLOOM ENERGY CORPORATION, a Delaware corporation (the “Administrator”). The Company, the Project Company, and the Administrator are sometimes referred to herein individually as a “Party” and collectively as the “Parties”.

PRELIMINARY STATEMENTS

A.    The Company owns 100% of the issued and outstanding membership interests in the Project Company.

B.    Through its ownership of the Project Company, the Company will own an indirect 100% interest in the Portfolio (as defined below).

C.    Clean Technologies 2014, LLC, a Delaware limited liability company (“Clean Technologies”), and Exelon Generation Company, LLC, a Pennsylvania limited liability company, (the “Investor”), will enter into that certain Amended and Restated Limited Liability Company Agreement of 2014 ESA HoldCo, LLC (the “Company LLC Agreement”).

D.    The Members of the Company have agreed in the Company LLC Agreement to delegate day-to-day management of the Company to the Administrator, in conjunction with the services to be provided by Bloom Energy Corporation under the A&R PUMA.

E.    The Company, as sole member of the Project Company (“Sole Member”), has also agreed in the Project Company LLC Agreement to cause the Project Company to delegate day-to-day management of the Project Company to the Administrator.

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein, the Parties, intending to be legally bound, agree as follows:

ARTICLE I

DEFINITIONS AND USAGE

Section 1.01 Definitions. Unless the context requires otherwise or this Agreement expressly provides otherwise, capitalized terms used in this Agreement have the following meanings and capitalized terms not defined in this Agreement have the meanings given to such terms in the Company LLC Agreement:

“A&R PUMA” means the Amended and Restated Purchase, Use and Maintenance Agreement between the Project Company and the Seller, dated as of July 18, 2014, as such agreement may be amended, supplemented, or replaced from time to time.

“Administration Fee” is defined in Section 4.01(a).

“Administrator” is defined in the Preamble.

“Affiliate” is defined in the A&R PUMA.

“Agreement” is defined in the Preamble.

“Bloom System” or “Bloom Systems” is defined in the A&R PUMA.

“BOF” is defined in the A&R PUMA.

“Business Day” is defined in the A&R PUMA.

“Calendar Year” means the calendar year beginning January 1 and ending on December 31, and in the case of the initial Calendar Year, the period beginning on the initial Funding Date and ending on December 31, 2014.

“Certified Public Accountant” means, at any time, the Certified Public Accountant appointed by the Company pursuant to the Company LLC Agreement.

“Clean Technologies” is defined in the Preliminary Statements.

“Code” means the Internal Revenue Code of 1986, as amended.

“Commencement of Operations” is defined in the A&R PUMA.

“Company” is defined in the Preamble.

“Company LLC Agreement” is defined in the Preliminary Statements.

“Confidential Information” is defined in Section 11.08.

“Documentation” means all written invoices, receipts, billing statements, payment notices, wire receipt and payment notifications, bank statements and other similar written evidence of (i) amounts payable by the Company or the Project Company to any Person and (ii) amounts received or receivable by the Company or the Project Company from any Person.

“ECCA” means the Equity Capital Contribution Agreement with respect to the Company, dated as of July 18, 2014, by and between Clean Technologies and the Investor.

“Emergency Expenditure” is defined in Section 4.01(b).

“Environmental Laws” is defined in the ECCA.

“Event of Default” is defined in Section 8.01.

“Excluded Expenses” is defined in Section 4.01(b).

“Exelon” is defined in the Preliminary Statements.

“Facility” means the Bloom Systems and the BOF at a Site.

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“Facility Lender” is defined in the ECCA.

“Financing Documents” is defined in the ECCA.

“Funding Date” is defined in the ECCA.

“Interconnection Agreement” is defined in the A&R PUMA.

“Investment Documents” is defined in the ECCA.

“Investor” is defined in the Preliminary Statements.

“kW” means kilowatt.

“Legal Requirement” is defined in the A&R PUMA.

“Lender” means “Buyer’s Lender” as defined in the A&R PUMA.

“Losses” is defined in Section 9.01(a).

“Nonreimbursable Services” shall consist of the following services to be provided with respect to the Company and the Project Company, as applicable: (a) supervision and monitoring of the Service Providers and Seller, (b) bookkeeping and record keeping, (c) overall coordination of the day-to-day operation of the Portfolio and Project Company (including the overall coordination of the performance of the Services and performance by Project Company of all its obligations under the PPAs), (d) preparing a draft operating budget for the Project Company for consideration and approval by the Managing Member, (e) reporting to and communication with the Managing Member or the Sole Member, as applicable, regarding matters subject to the supervision of the Administrator under this Agreement, (f) preparation and submittal of (i) Documentation, and, in the case of an Emergency Expenditure, oral notification, necessary in order to remit funds of the Company or the Project Company for payment of the Company’s or Project Company’s expenses and (ii) other Documentation necessary to perform the obligations hereunder, (g) depositing funds into the accounts maintained on behalf of the Company and the Project Company pursuant to Section 2.01(u) hereof, (h) payment of the Company’s and Project Company’s expenses, (i) the making of distributions from Available Cash Flow in accordance with the provisions hereof and the Company LLC Agreement or the Project Company LLC Agreement, (j) preparation and submittal of capital contribution draw requests for either the Company or the Project Company, as contemplated by the Company LLC Agreement or the Project Company LLC Agreement, as applicable, (k) preparation and submittal of purchase orders and other work on behalf of the Project Company in connection with ordering Bloom Systems under the A&R PUMA and receiving and accepting, on behalf of the Project Company, title to and all incidents of ownership of those Bloom Systems, (l) interacting and communicating with Seller on behalf of the Project Company under the A&R PUMA, (m) interacting and communicating with Operator on behalf of the Project Company under the A&R PUMA, (n) causing the insurance and related obligations required under the Principal Facility Documents, to be obtained and maintained; (o) interacting and communicating, on behalf of the Project Company, with the Lender, (p) audit and tax-related services, and (q) performing all other administrative tasks, as required under the Financing Documents and under the Investment Documents.

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“Operator” means the operation and maintenance contractor for the Bloom Systems, which at the date of this Agreement is the “Seller” as defined in the A&R PUMA.

“Permits” means all Governmental Approvals that are necessary under applicable Legal Requirements or this Agreement to have been obtained at such time to test, operate, maintain, repair, lease, own or use the Portfolio as contemplated in this Agreement to sell electricity from the Portfolio or for a Party to enter into this Agreement or to consummate any transaction contemplated hereby, in each case in accordance with all applicable Legal Requirements.

“Party” and “Parties” have the meanings set forth in the Preamble.

“Person” is defined in the A&R PUMA.

“Policy” is defined in the A&R PUMA.

“Portfolio” is defined in the A&R PUMA.

“PPA” is defined in the A&R PUMA.

“PPA Customer” is defined in the A&R PUMA.

“Principal Facility Documents” is defined in the ECCA.

“Project Company” is defined in the Preamble.

“Project Company LLC Agreement” means the limited liability company agreement of the Project Company, dated as of July 18, 2014, as such agreement may be amended, supplemented, or replaced from time to time.

“Prudent Administrative Practices” means performing the Services with the degree of professional skill, care and diligence as that expected of a competent professional manager experienced in carrying out services of the same or similar size, scope and nature of the Services and to the extent required, those practices, methods, specifications and standards of safety and performance, as the same may change from time to time, as are commonly used by a significant portion of the grid-tied fuel cell electrical generation industry operating in the United States as good, safe and prudent practices in connection with the administration of electrical and other equipment, facilities and improvements of such electrical generating facility and the other services contemplated herein, including any applicable practices, methods, acts, guidelines, standards and criteria of the Federal Energy Regulatory Commission and all applicable Legal Requirements.

“Representative” is defined in the A&R PUMA.

“Seller” means Bloom Energy Corporation, in its capacity as seller under the A&R PUMA.

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“Service Provider” means each third party hired by the Company or the Project Company to perform fiscal, administrative or other services for the Company or the Project Company, including the Operator.

“Services” means the responsibilities of the Administrator under Article II.

“Site” is defined in the A&R PUMA.

“Sole Member” is defined in the Preliminary Statements.

“System Capacity” is defined in the A&R PUMA.

“Term” is defined in Section 7.01.

“Transmitting Utility” is defined in the A&R PUMA.

“Warranty Period” is defined in the A&R PUMA.

Section 1.02 Other Definitional Provisions.

(a)    As used in this Agreement and in any certificate or other documents made or delivered pursuant hereto or thereto, financial and accounting terms not defined in this Agreement or in any such certificate or other document, and financial and accounting terms partly defined in this Agreement or in any such certificate or other document to the extent not defined, will have the respective meanings given to them under GAAP. To the extent that the definitions of financial and accounting terms in this Agreement or in any such certificate or other document are inconsistent with the meanings of such terms under GAAP, the definitions contained in this Agreement or in any such certificate or other document will control.

(b)    The words “hereof”, “herein”, “hereunder”, and words of similar import when used in this Agreement will refer to this Agreement as a whole and not to any particular provision of this Agreement. Article and Section references contained in this Agreement are references to Articles and Sections in this Agreement unless otherwise specified. The term “including” will mean “including without limitation”.

(c)    The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms.

(d)    Any agreement, instrument or statute defined or referred to herein or in any instrument or certificate delivered in connection herewith means (unless otherwise indicated herein) such agreement, instrument or statute as from time to time amended, amended and restated, modified or supplemented and includes (in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein.

(e)    A reference in this Agreement to a law, license, or permit includes any amendment, modification or replacement to such law, license or permit.

(f)    Any references to a Person are also to its permitted successors and assigns.

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ARTICLE II

RESPONSIBILITIES

Section 2.01 Administrator’s Responsibilities. During the Term, the Administrator shall provide the following Services on behalf of the Company and the Project Company:

(a)    Supervise and monitor, in accordance with Prudent Administrative Practices, (i) the Service Providers with respect to their performance of services for the Project Company, including maintenance, diagnostic, warranty and remedial obligations thereof (including performance by the Operator of its obligations under the A&R PUMA), and (ii) the Seller with respect to its installation of the Facilities and the sale of Bloom Systems to the Project Company, including warranty and remedial obligations thereof;

(b)    Where necessary or desirable, at the Company’s or the Project Company’s sole expense, as applicable, (i) subject to Section 4.01(c), taking of such actions as are necessary to enforce each Service Provider’s or Seller’s compliance with its obligations to the Company or Project Company and (ii) subject to Section 4.01(c) and in accordance with the Member consent requirements set forth in the Company LLC Agreement, hiring, firing and/or replacing any Service Provider;

(c)    (i)    Supervise and monitor (A) the installation of the Facilities and the purchase of Bloom Systems by Project Company under the A&R PUMA and (B) the day-to-day operations, maintenance and repair activities with respect to the Facilities, including planned and unplanned maintenance and repairs to the Facilities, and coordinate all such activities with those of the Operator and the Seller (and, with respect to such activities that are not required to be performed by the Operator under the A&R PUMA, causing such activities to be performed), and (C) the performance by Project Company of its obligations under the PPAs, and (ii) represent the Company and the Project Company in local community relations (including assisting in the coordination of public statements regarding the Company and the Project Company);

(d)    (i)    Prepare and promptly pay, or cause to be paid, on behalf of the Project Company, any amounts required to be paid by the Project Company under any contract to which the Company is a party or otherwise and (ii) subject to the limitations contained in the Project Company LLC Agreement and the Company LLC Agreement and adopted or implemented by the Sole Member or the Members, as applicable, purchase or lease, at the sole expense (but subject to Section 4.01(c)) of the Project Company, any materials, supplies and equipment necessary for (A) the performance of the Services for the Project Company, (B) operation and maintenance services for the Project Company or (C) the sale of energy and environmental attributes from the Bloom Systems; provided that nothing herein shall imply any duty of the Administrator under any circumstances to expend its own funds in payment of the expenses of the Project Company;

(e) Prepare and promptly pay, or cause to be paid, on behalf of the Company, any amounts required to be paid by the Company under any contract to which the Company is a party or otherwise; provided that nothing herein shall imply any duty of the Administrator under any circumstances to expend its own funds in payment of the expenses of the Company;

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(f)    Maintain major maintenance and other reserves for the Company and the Project Company from time to time as directed by, and upon terms established by, the Managing Member or the Company or under the Financing Documents;

(g)    In accordance with and subject to the provisions of the Company LLC Agreement, maintain complete and accurate financial books and records of the operations of the Company and the Project Company on an accrual basis in accordance with prudent business practices and GAAP and make such books and records available for inspection and copying during normal business hours on its premises, upon reasonable prior notice, by any Person authorized under the Company LLC Agreement or by the Managing Member to inspect or copy such books and records, subject to appropriate confidentiality safeguards;

(h)    In accordance with and subject to the provisions of the Company LLC Agreement, maintain at the Company’s and Project Company’s principal office (and permit access thereof during normal business hours to any Person authorized under the Company LLC Agreement or by the Managing Member to have such access) (i) true and full information regarding the status of the financial condition of the Company and the Project Company, including any financial statements that are available, until the statute of limitations expires on any IRS audit of the Company or Project Company tax year to which such information and financial statements relate; (ii) minutes of the proceedings of the Members; (iii) promptly after becoming available, copies of the federal, state, and local income and other tax returns of the Company and the Project Company for each year; (iv) a current list of the name and last known business, residence or mailing address of each member of the Company and the Project Company; (v) a copy of the Company LLC Agreement, the Company’s certificate of formation, the Project Company LLC Agreement, the Project Company’s certificate of formation, and all amendments thereto, and copies of written consents of the members or managers of the Company and the Project Company; (vi) true and full information regarding the amount of cash and a description and statement of the agreed value of any other property and services contributed by each Member, and the date upon which each became a Member; (vii) copies of records that would enable a Member to determine the Member’s relative shares of the Company’s distributions from Available Cash Flow and the Member’s relative voting rights; and (viii) all records related to the production and sale of energy and environmental attributes from the Bloom Systems;

(i)    Perform on behalf of the Company and Project Company all reporting and other routine management responsibilities reasonably believed by the Administrator to be required under the contracts to which the Company or Project Company is a party (including the PPAs), including representing the Company and the Project Company in ordinary course business matters with third parties (including the PPA Customers) arisingthereunder;

(j)    Perform on behalf of the Company and the Project Company all routine administrative services reasonably required in connection with maintaining the Company’s and the Project Company’s existence and operations, such as the filing of limited liability company reports;

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(k)    Notify the Managing Member and the Members of any variance or anticipated variance in the aggregate expense amount for the Company in any Calendar Year by [***] or more from the amount set forth in the applicable Annual Budget, promptly after learning of such variance or anticipated variance;

(l) (i)    Provide such readily available information to the Members as they may reasonably request from time to time and (ii) subject to Site rules established by the Company or the Project Company, provide access as reasonably requested for the Members, and their personnel and accompanied agents or consultants, to the Facilities;

(m) (i)    Advise the Company and the Project Company to engage Service Providers as reasonably believed by the Administrator to be necessary or desirable, or (ii) if instructed by the Managing Member with respect to the Company or the Sole Member with respect to the Project Company, perform services for the Company or the Project Company which are not being performed by the Operator under the A&R PUMA;

(n) (i)    Procure and maintain all required Permits, prepare and submit all filings of any nature which are required to be made thereunder and represent the Company and the Project Company in matters with governmental authorities relating thereto, and (ii) prepare and submit, or cause to be prepared and submitted, all filings and notices of any nature which are required to be made by the Company or the Project Company under the terms of any Permit held by the Company the Project Company or any laws, regulations or ordinances applicable to the Company, Project Company or the Facilities;

(o)    Not take any action or omit to take any action as would cause the Company or the Project Company in any material respect to violate any federal, state or local laws and regulations, including Environmental Laws, and to the extent that the Administrator has knowledge of any such existing or prospective violation take, or direct Service Providers to take, commercially reasonable actions, at the sole expense (but subject to Section 4.01(c)) of the Company or the Project Company (unless such existing or prospective violation arises from breach of the Administrator’s duties hereunder), to redress or mitigate any such violation;

(p) (i)    Give prompt written notice to the Members and the Company of any litigation, material disputes with governmental authorities, or material force majeure events under the Principal Facility Documents and material losses suffered by the Project Company promptly after learning of the same, (ii) furnish to the Members and the Company, or direct a Service Provider to so furnish, copies of all material documents furnished to the Company, the Project Company or the Administrator by any governmental authority or furnished to any governmental authority by the Company or the Project Company;

(q)    Notify the Members within five (5) of obtaining actual knowledge of any (i) notice of default delivered by a party to a Principal Facility Document to the Project Company, the Administrator or the Managing Member or (ii) material default by a party to a Principal Facility Document (other than the Project Company, the Administrator or any Affiliate thereof) under such Principal Facility Document; provided that, with respect to a notice of default or any material default by any party under the Financing Documents, the Administrator shall notify the Members within one (1) Business Day of obtaining actual knowledge thereof;

[***] Confidential Treatment Requested

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(r)    In accordance with and subject to the provisions of the Company LLC Agreement, submit for approval of the Managing Member (or, if required under the terms of the Company LLC Agreement, for Consent of the Class A Members), a proposed annual operating budget for the Project Company, which, subject to the provisions of the Company LLC Agreement, would become the Annual Budget;

(s)    Perform and discharge all responsibilities and functions assigned to the Administrator under or pursuant to the Company LLC Agreement as in effect as of the date hereof (or as amended and accepted by the Administrator) in accordance with the terms set forth in the Company LLC Agreement;

(t)    Prepare, or cause to be prepared, each of the reports, updated schedules and notices required to be prepared pursuant to the Company LLC Agreement and the Financing Documents and deliver such reports, updated schedules and notices to the Company and any Member or such other Person to whom any such report, schedule or notice is to be provided under the terms of the Company LLC Agreement and Financing Documents within the time periods specified therein;

(u)    Maintain, in the name and for the exclusive benefit of the Company or the Project Company, accounts at one or more banks or other financial institutions for the deposit of all funds received by the Company or the Project Company during the Term, and invest such funds in accordance with the investment provisions of the Company LLC Agreement or the Project Company LLC Agreement and the Financing Documents, as applicable; provided, that nothing herein shall imply any guarantee or undertaking by the Administrator with respect to the collection of amounts due to the Company or the Project Company or return on such investments;

(v)    In accordance with and subject to the provisions of the Company LLC Agreement (i) prepare and file or cause to be prepared and filed by the Certified Public Accountant on behalf of the Company and the Project Company, on a timely basis, all federal, state and local tax returns and related information and filings required to be filed by the Company and the Project Company or deliver to the Members such tax returns pursuant to the Company LLC Agreement, including each Member’s IRS Form K-1, and

(ii)    pay out of the Company’s or the Project Company’s funds, as applicable, all taxes and other governmental charges shown to be due thereon before they become delinquent and make all federal, state and local tax elections in accordance with the provisions of the Company LLC Agreement or the Project Company LLC Agreement, as applicable;

(w)    Promptly inform the Company and the Members of any proposed action or decision that would require the Consent of the Class A Members or the Consent of the Members, as applicable, under the Company LLC Agreement, and not take or permit any such action or decision without the prior required consent, as applicable, in accordance with the Company LLC Agreement;

(x)    In accordance with and subject to the provisions of the Company LLC Agreement, if so instructed by the Tax Matters Member, (i) direct the defense of any claims made by the IRS to the extent that such claims relate to the adjustment of Company items at the

9

Company level, (ii) promptly deliver to each Member a copy of all notices, communications, reports and writings received from the IRS relating to or potentially resulting in an adjustment of Company items, (iii) promptly advise each Member of the substance of any conversations with the IRS in connection therewith and keep the Members advised of all developments with respect to any proposed adjustments that come to its attention; (iv) provide each Member with a draft copy of any correspondence or filing to be submitted by the Company in connection with any administrative or judicial proceedings relating to the determination of Company items at the Company level reasonably in advance of such submission; (v) incorporate all reasonable changes or comments to such correspondence or filing requested by any Member; (vi) provide each Member with a final copy of correspondence or filing; and (vii) provide each Member with notice reasonably in advance of any meetings or conferences with respect to any administrative or judicial proceedings relating to the determination of Company items at the Company level (including any meetings or conferences with counsel or advisors to the Company with respect to such proceedings);

(y)    Prepare (or cause to be prepared) the financial statements required to be prepared pursuant to the Company LLC Agreement or the Financing Documents, as applicable, within the time periods specified therein;

(z)    Make distributions from Available Cash Flow as provided under the relevant provisions of the Company LLC Agreement;

(aa)     Cause the Project Company to comply with its contractual obligations, provided that nothing herein shall imply any duty of the Administrator under any circumstance to expend its own funds in payment of the debt service or other obligations of the Project Company;

(bb)    At the Project Company’s sole expense, obtain and maintain, or cause the Project Company to obtain and maintain, insurance meeting the requirements of the Company LLC Agreement and the Principal Facility Documents;

(cc)    Make draws under any working capital facilities or credit facilities for the Company or the Project Company, as applicable, and cause such funds to be deposited into the Company’s or the Project Company’s, as applicable, accounts and in accordance with such working capital facilities’ or credit facilities’ documentation;

(dd)    Establish and administer any escrow arrangements to which the Company or the Project Company is a party, including those for the refund of canceled Bloom Systems as provided in the A&R PUMA, as well as any letters of credit, bonds or other similar support instruments posted by the Company or the Project Company;

(ee)    Notify the Members promptly of the receipt of any communication as to any deficiencies in the Company’s or Project Company’s accounting practices from the Certified Public Accountant, or of the resignation of the Certified Public Accountant;

(ff)    Maintain a register of membership interests of the Company and record therein any (i) transfers of membership interests made in accordance with the terms of the Company LLC Agreement and (ii) security interests of a secured party pursuant to any security interest permitted under the Company LLC Agreement;

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(gg)    Prepare equity contribution notices (and accompanying documentation) in accordance with the Company LLC Agreement, and deliver them to the Managing Member and each Member of the Company;

(hh)    Prepare and submit purchase orders and perform other work on behalf of the Project Company in connection with ordering Bloom Systems under the A&R PUMA, including interacting and communicating with Seller on behalf of the Project Company under the A&R PUMA;

(ii)    Perform all other administrative tasks required in relation to and for the Project Company under the Financing Documents and under the Investment Documents;

(jj)     Perform the Nonreimbursable Services; and

(kk)     Perform such other administrative tasks related to and consistent with the scope of the Services described herein and in the Company LLC Agreement and in the Project Company LLC Agreement, as the Managing Member in respect of the Company and the Sole Member in respect of the Project Company may reasonably request from time to time.

Section 2.02 Separateness. The Administrator shall maintain its existence separate and distinct from any other Person, including maintaining in full effect its existence, rights and franchises as a corporation under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or will be necessary to protect the validity and enforceability of this Agreement.

Section 2.03 Policy. Project Company hereby directs, and Administrator hereby agrees, that Administrator shall not (a) take any action in the name of Project Company with the intent to intentionally cause an exclusion under sub-clause (i) of clause (A)(i) of Section III (entitled “Exclusions”) of the Policy (without regard to the limitation of such exclusion set forth in sub-clauses (i), (ii) and

(iii)    of clause (A)(i) of Section III of the Policy), without a sound business rationale on behalf of Project Company independent of the Policy, and (b) knowingly take (or fail to take) any action that could reasonably be expected to cause any breach or termination of the Policy.

Section 2.04 Re-marketing Obligations.    In the event that the Project Company has distributed to the Company any Bloom System in respect of which a PPA Customer has made a payment of Termination Value pursuant to the relevant PPA and the Facility Lenders have released their lien on such Bloom System, Administrator will use all commercially reasonable efforts to resell or redeploy such Bloom System, including, but not limited to, taking the following actions for the benefit of the Company: (a) de-install, crate, transport and store such Bloom System until Administrator has been able to arrange for its resale or redeployment, (b) use all commercially reasonable efforts to resell or redeploy such Bloom System on a nondiscriminatory basis with respect to other similar equipment of Administrator, such efforts to include distributing to its sales organization information on the availability, location and price of such Bloom System, and agreeing to provide to a prospective purchaser of such unit or the output thereof, as applicable, at no cost to such purchaser a certificate of maintainability with respect to such unit, (c) at the Company’s expense, cause such Bloom System to be reinstalled at

11

the applicable purchaser’s Site at Administrator’s then prevailing installation rates, including procuring and installing all necessary balance of Facility equipment related thereto, (d) cause such Bloom System to be refurbished or reconfigured as necessary or appropriate, in Administrator’s reasonable judgment, at the Company’s expense, to facilitate such resale or redeployment, and/or (e) to negotiate with an appropriate operations and maintenance provider for all necessary operations and maintenance services necessary to operate such Bloom System following resale or redeployment at the Administrator’s then prevailing maintenance rates for similar equipment. All reasonable costs and expenses (including a reasonable allocation of personnel hours) incurred by the Administrator in connection with the actions described in this Section 2.04 shall be reimbursed by the Company.

ARTICLE III

STANDARD OF PERFORMANCE

Section 3.01 Standard of Performance. The Administrator shall perform the Services in accordance with applicable law and Prudent Administrative Practices; provided that the Administrator shall be deemed to have satisfied its duties in respect of any specific matter or circumstance requiring interpretation, application, or enforcement of Principal Facility Documents, by relying conclusively on the advice of qualified legal counsel and/or qualified industry consultants engaged to advise the Company or the Project Company with respect to such matter or circumstance; and provided, further, that it shall not be a breach of Prudent Administrative Practices and the Administrator shall not be responsible hereunder for the gross negligence or willful misconduct of, or breach of contract by, any Service Provider engaged by the Administrator pursuant to a contract that requires such Service Provider to perform its duties in accordance with Prudent Administrative Practices and if such Person is sufficiently qualified to perform such duties and the Administrator is diligent in its oversight of such Persons. Without limiting the foregoing, in its performance of the obligations the Administrator may enter into any settlement of claims, litigation or arbitration relating to the agreements described therein unless such settlement requires the Consent of the Class A Members or the Consent of the Members as provided in the Company LLC Agreement. It is understood and agreed by the Company, the Project Company and the Administrator that the Administrator is not guaranteeing or undertaking, in its capacity as Administrator, to procure any financial or other outcome with respect to the Company or the Portfolio, or providing any guarantees relating to the performance of the Portfolio.

Section 3.02 No Liability. The Administrator shall have no liability under this Agreement for (a) failure to take actions which it is not obligated to take pursuant to this Agreement and as to which it has requested the consent of the Managing Member (and/or the applicable Members where consent of any Members other than or in addition to the Managing Member is required under the Company LLC Agreement) for the Administrator to perform such actions if such consent is not timely given (including actions requiring a variance from the Annual Budget for which a request for variance by the Administrator has been made and not timely approved), or (b) actions taken at the direction of the Managing Member in accordance with the terms of the Company LLC Agreement (and/or the applicable Members where consent of any Members other than or in addition to the Managing Member is required under the Company LLC Agreement) that are consistent with the scope of Services hereunder, or (c) failure to take actions requiring the expenditure of Company or Project Company funds in accordance with the Annual Budget if such funds are not available (for reasons other than a failure of the Administrator to provide, or cause a third party to provide, the Nonreimbursable Services or Services, as applicable, in accordance with this Agreement).

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Section 3.03 PPA Obligations. The Administrator shall (i) undertake its obligations in accordance with this Agreement so as to enable Project Company to fulfill its corresponding obligations under the PPAs; and (ii) in performing its obligations under this Agreement, not cause Project Company to be in breach of its obligations under the PPAs in relation to the Bloom Systems or BOF or interfere with, hinder or disrupt Project Company’s performance of its obligations under the PPAs.

ARTICLE IV

REIMBURSEMENT AND PAYMENT

Section 4.01 Administration Fee; Reimbursable Expenses.

(a)    (i) The annual administration fee owed by the Company to the Administrator for the Services shall be an amount equal to $[***] per [***] kW of System Capacity with respect to a Bloom System as of the date such Bloom System has achieved Commencement of Operations, and (ii) the annual administration fee owed by the Project Company to the Administrator for the Services shall be an amount equal to [***] per [***] kW of System Capacity with respect to a Bloom System as of the date such Bloom System has achieved Commencement of Operations (such administration fees, together, the “Administration Fee”), due in equal monthly installments (pro-rated, if applicable, for the first month after the execution of this Agreement) and in each case increasing by [***] on the first and each subsequent anniversary of the date of this Agreement. The Parties acknowledge that the Administration Fee is a fair price, negotiated at arms-length, for the Services.

(b)    In connection with matters within the Annual Budget, and matters outside of the parameters of the Annual Budget but authorized pursuant to this Section 4.01(b), the Company will reimburse the Administrator from the Company’s funds for the following expenses (other than any such expenses that constitute Excluded Expenses): (i) all reasonable out-of-pocket expenses of Administrator’s personnel performing work in the capacity as Administrator, (ii) all Emergency Expenditures and (iii) reasonable expenses of unaffiliated third parties (other than any such Persons performing Nonreimbursable Services) which, for the convenience of the Company or the Project Company, perform services by contract with the Administrator rather than directly with the Company or the Project Company, as applicable, provided that the Members have consented to such arrangement. For purposes of this Section 4.01(b), (x) “Excluded Expenses” shall mean costs incurred by Administrator in employing its personnel (other than amounts payable to its personnel as described in clause (i) above), including costs associated with wages, benefits, workers’ compensation insurance and home office expenses and costs incurred to retain unaffiliated third parties to perform Nonreimbursable Services, and (y) an “Emergency Expenditure” shall mean an expense with respect to the Company, the Project Company or the Portfolio that is not included in the Annual Budget and which is incurred, in the reasonable judgment of the Administrator, to avoid or to mitigate an imminent risk of physical injury to any Person or damage to any property, or an imminent violation of law and with respect to which there is not a reasonable opportunity to convene a meeting of the Members in order to

[***] Confidential Treatment Requested

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obtain prior approval of the expense. The Administrator shall give prompt written notice to the Members of any Emergency Expenditure. Notwithstanding any of the foregoing, for the avoidance of doubt, to the extent an obligation of the Administrator is expressly to be performed at the sole expense of the Company or the Project Company, is not in violation of the express terms of this Agreement, and is not a Nonreimbursable Service, the Administrator shall be reimbursed by the Company or the Project Company, as applicable, for any amount (other than Excluded Expenses) expended from its own funds to perform such obligations.

(c)    If the Administrator engages any third party to perform any Nonreimbursable Services, it shall be responsible for paying any fees and expenses of such third party and shall not be able to seek reimbursement therefor; provided that the Administrator shall not be responsible for paying any fees and expenses of such third party from its own funds (and shall be able to seek reimbursement therefor) if directed by the Members, the Managing Member or the Sole Member, or if otherwise required under the Investment Documents or Principal Facility Documents, to engage any third party to perform any Nonreimbursable Services.

Section 4.02 Billing and Payment. Within fifteen (15) days following the Administrator’s submission of an invoice to the Managing Member reflecting (i) any expenses due and payable by the Company or the Project Company (and including invoices and other material identifying and substantiating, in reasonable detail, the nature of such expenses and the basis for reimbursement thereof), and (ii) the monthly portion of the Administration Fee due and payable by the Company or the Project Company, as applicable, (and including invoices and other material identifying and substantiating, in reasonable detail, the nature of such costs and the basis for reimbursements):

(a)    The Managing Member or, as applicable, the Sole Member, shall approve such payment to the Administrator of (i) the expenses, and (ii) the portion of the Administration Fee specified in such invoice, less any portion of such expenses and Administration Fee that is disputed in good faith by a Member, which payment shall be made within thirty (30) days of such approval; provided that any invoiced amount incurred in accordance with the Annual Budget shall be deemed approved and shall be paid unless the Managing Member or Member, as applicable, shall dispute in good faith such payment for reasons unrelated to the Annual Budget; and

(b)    The Parties shall attempt to resolve any such disputed portion in accordance with Article VI hereof and any amount owed hereunder which remains unpaid more than ten (10) days after the date such amount is due and payable under this Agreement shall accrue interest at the lesser of a monthly rate of one and five-tenths percent (1.5%) or the highest rate permissible by law, with such interest beginning to accrue from the first (1st) day after such amount became due and payable.

Section 4.03 Records. The Administrator shall retain copies of invoices submitted by it under Section 4.02, and of any third party invoices or similar Documentation contained or reflected therein, for a minimum period of three (3) years or such longer period as required by applicable law. Records maintained by the Administrator pursuant to this Section 4.03 shall be the property of the Company or the Project Company, as applicable, and shall not be destroyed, unless the Company or the Project Company, as applicable, shall have consented to such destruction in writing or declined in writing to accept possession of the records after the Administrator has advised the Company or the Project Company, as applicable, that the records will be destroyed.

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ARTICLE V

DELAYS

Section 5.01 Conditions.    If the Administrator becomes aware of any event or circumstance that could materially delay or prevent its performance of any of its obligations hereunder, the Administrator shall give prompt notice thereof to the Managing Member or the Sole Member, as applicable.

Section 5.02 Mitigation of Delay. The Administrator shall attempt in good faith to minimize any such delay in or prevention of performance of its obligations hereunder, provided, however, that the Administrator shall not be obligated to undertake or perform any actions which are prohibited by contract or any applicable law or that would expose the Administrator to any material risk of liability or to any expense for which the Administrator is entitled to reimbursement or indemnification hereunder and which is not reasonably expected to be promptly reimbursed or indemnified hereunder.

ARTICLE VI

DISPUTE RESOLUTION

Section 6.01 Procedure.

(a)    The Parties shall attempt, in good faith, to resolve or cure all disputes, controversies or claims relating to this Agreement by mutual agreement in accordance with this Article VI before initiating any legal action or attempting to enforce any rights or remedies hereunder (including termination), at law or in equity (regardless of whether this Article VI is referenced in the provision of this Agreement which is the basis for any such dispute).

(b)    If a Party believes that a dispute, controversy or claim under this Agreement has arisen, such Party shall within ten (10) days after such dispute, controversy or claim arises, give notice thereof to the other affected Party or Parties and the Managing Member, with respect to disputes involving the Company, or the Sole Member, with respect to disputes involving the Project Company, which notice shall describe in reasonable detail the basis and specifics of the dispute, controversy or claim. A meeting or conference call shall be held promptly, and in no case later than five (5) days following delivery of such notice, attended by representatives of the Parties with decision-making authority regarding the dispute, controversy or claim to attempt in good faith to negotiate a resolution.

(c)    If, within twenty-one (21) days following the meeting or conference call required pursuant to Section 6.01(b), the affected Parties are unable to resolve the dispute, any affected Party may pursue whatever rights it has available under this Agreement, at law or in equity in accordance with Section 11.03 herein and subject to the limitations of liability set forth herein.

(d)    In the event of any dispute arising out of or relating to this Agreement, each Party hereby consents to service of process made to the addressees set forth in Section 11.05 herein either by overnight delivery by a nationally recognized courier or by certified first class mail, return receipt requested, and hereby acknowledges that service by such means shall constitute valid and lawful service of process against the Party being served.

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(e)    Each Party hereby agrees that, in the event of any dispute arising out of or relating to this Agreement that involves or is related to a matter involving Seller or Operator, it will not oppose the joinder of Seller or Operator to such action or proceeding.

ARTICLE VII

COMMENCEMENT AND TERMINATION

Section 7.01 Term. This Agreement commenced on the date hereof and, except as otherwise provided in this Agreement, shall remain in full force and effect until the date that the Warranty Period under the A&R PUMA has expired for all of the Bloom Systems in the Portfolio (the “Term”). In connection with the expiration of the Term or any termination pursuant to Section 7.02, the Administrator shall cooperate with all reasonable requests of the Company or the Project Company, as applicable, in connection with the transition of Services performed by Administrator (including the transferring of the records in Administrator’s possession) to the entity selected by the Company or the Project Company, as applicable, to undertake the Services.

Section 7.02 Resignation of Administrator. The Administrator may resign at any time following the sale of Clean Technologies to a non-Affiliate of Administrator or a Transfer of all Class A Interests held by Clean Technologies or an Affiliate of Clean Technologies made in accordance with the Company LLC Agreement, by giving not less than thirty (30) days prior written notice of such resignation to the Company and the Project Company; provided that Administrator’s resignation shall become effective only upon the appointment of a successor pursuant to the terms of the Company LLC Agreement that assumes (or causes an Affiliate to assume) the duties of the Administrator hereunder or that has engaged a Person that is recognized nationally as having substantial experience managing and operating fuel cell power facilities at a cost that is not substantially greater than as under this Agreement.

Section 7.03 Early Termination. This Agreement may not be terminated prior to the end of the Term except:

(a)    by mutual agreement of the Parties; or

(b)    pursuant to Section 8.02 or 8.03.

Section 7.04 Accrued Fees. If this Agreement is terminated under Section 7.03(a) or by the Administrator under Section 7.03(b), the Administrator will continue to be entitled to all Administration Fees and other amounts payable to it under this Agreement in respect of the period until the date of termination.

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ARTICLE VIII

DEFAULT

Section 8.01 Events of Default. Subject to the provisions of Article VI (Dispute Resolution), each of the following events shall be an event of default (“Event of Default”) under this Agreement regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceeding which has or might have the effect of preventing such Party from complying with the terms of this Agreement:

(a)    Failure by a Party to make any payment required to be made hereunder, if such failure shall continue for twenty (20) days after written notice thereof has been given to the non-paying Party;

(b)    If there shall occur (i) any failure by the Administrator to comply in any material respect with any term, provision or covenant of this Agreement (other than a failure addressed by another paragraph of this Section 8.01, or (ii) a gross dereliction by the Administrator of, or gross negligence or fraud by the Administrator in relation to, its duties under this Agreement, and such failure or act described in clause (i) or (ii) continues for thirty (30) days after receipt by the Administrator of written notice of such breach; or

(c)    Failure by the Company or the Project Company to comply in any material respect with any term, provision or covenant of this Agreement (other than a failure addressed by another paragraph of this Section 8.01, and such failure continues for thirty (30) days after receipt by the Company or the Project Company of written notice of such breach.

Section 8.02 Bankruptcy. Subject to the rights or remedies it may have, any Party shall have the right to terminate this Agreement, effective immediately, if, at any time, any other Party (or, in the case of the Administrator, any Person that Controls the Administrator) shall file a voluntary petition in bankruptcy, or shall be adjudicated bankrupt or insolvent, or shall file any petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute or law relating to bankruptcy, insolvency, or other relief for debtors, whether federal or state, or shall seek, consent to, or acquiesce in the appointment of any trustee, receiver, conservator or liquidator of such Party or of all or any substantial part of its properties, or a court of competent jurisdiction shall enter an order, judgment or decree approving a petition filed against such Party seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute or law relating to bankruptcy, insolvency or other relief for debtors, whether federal or state, and such Party shall consent to or acquiesce in the entry of such order, judgment or decree, or the same shall remain unvacated and unstayed for an aggregate of sixty (60) days from the date or entry thereof, or any trustee, receiver, conservator or liquidator of such Party or of all or any substantial part of its properties shall be appointed without the consent of or acquiescence of such Party and such appointment shall remain unvacated and unstayed for an aggregate of sixty (60) days. The terms “acquiesce” and “acquiescence”, as used herein, include, but are not limited to, the failure to file a petition or motion to vacate or discharge any order, judgment or decree providing for such appointment within the time specified by law.

Section 8.03 Remedies. If an Event of Default occurs and is continuing hereunder, then this Agreement may be terminated immediately by the non-defaulting Party, without obligation to or recourse by the defaulting Party. If a termination pursuant to Section 8.02 or this

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Section 8.03 occurs, the terminating Party shall have all rights and remedies allowed at law or in equity, subject however, to the specific limitations of liability set forth in Article IX. For the avoidance of doubt, any termination of this Agreement by the Administrator for nonpayment or default by the Company or the Project Company, respectively, shall not result in termination of this Agreement by the Administrator as to the Project Company or the Company, respectively, as the case may be; and in such event, the Administrator shall continue performing hereunder for the nondefaulting counterparty.

ARTICLE IX

INDEMNIFICATION AND LIMITATION OF DAMAGES

Section 9.01 Indemnification.

(a)    To the extent not otherwise covered by insurance and to the extent not prohibited by law, the Company and the Project Company each shall indemnify and hold harmless the Administrator, its officers, directors, employees, and Affiliates, from and against all losses, claims, demands, damages, costs, expenses of any nature (including, but not limited to, reasonable attorneys’ fees and disbursements) or liabilities (or actions, suits or proceedings including any inquiry or investigation or claims in respect thereof), judgments, fines, settlements and other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative, arbitral or investigative (collectively, “Losses”) which are being incurred in its capacity as the Administrator and are resulting from or arising out of the Administrator’s performance of its obligations hereunder with respect to the Company or Project Company, respectively; provided, however, that the Administrator shall not have the right to be so indemnified for (i) costs or expenses that Administrator is expressly required to bear in accordance with the terms of this Agreement or (ii) Losses to the extent caused by or arising from the fraud, negligence, willful misconduct or willful violation of applicable law of the Administrator, Seller, Operator or any of their Affiliates or their respective subcontractors, or a breach of its or their obligations under this Agreement or other agreement with either the Project Company or the Company or for which any of such Persons are obligated to indemnify the Project Company, the Company or any Member (for the purposes of this Section 9.01(a), the Administrator shall not be deemed to be an “Affiliate” of the Company).

(b)    To the extent not otherwise covered by insurance and to the extent not prohibited by law, subject to the specific limitations of liability set forth in this Article IX, the Administrator shall indemnify and hold harmless the Company and the Project Company, its officers, directors, employees and Affiliates from and against all Losses resulting from or arising out of the Administrator’s performance of its obligations hereunder; provided, however, that the Company or the Project Company shall not have the right to be so indemnified for Losses to the extent caused by or arising from (i) the fraud, negligence, willful misconduct or willful violation of applicable law of the Company or the Project Company, or their respective Affiliates, officers, directors, and employees, if any, or (ii) a breach of the Company’s or the Project Company’s obligations under this Agreement (for the purposes of this Section 9.01(b), the Administrator shall not be deemed to be an “Affiliate” of the Company), except, in the case of each of the foregoing clauses (i) and (ii), where the fraud, negligence, willful misconduct, willful violation of applicable law or breach was caused by the acts or omissions of the Administrator.

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(c)    Exclusion of Consequential Damages. Neither the Administrator, in such capacity, nor the Company, nor the Project Company, nor any of their officers, members, employees or Affiliates shall be liable for punitive, consequential, special, indirect or exemplary damages of any nature including, but not limited to, damages for lost profits or revenues or the loss or use of such profits or revenues, loss by reason of plant shutdown or inability to operate at rated capacity, increased operating expenses of plant or equipment, increased costs of purchasing or providing equipment, materials, labor, services, costs of replacement power or capital, debt service fees or penalties, inventory or use charges, damages to reputation, damages for lost opportunities, or claims of any of the customers, members or affiliates of the Project Company or the Company, regardless of whether said claim is based upon contract, warranty, tort (including negligence and strict liability) or other theory of law; provided, however, that the foregoing shall not apply to the extent an indemnified party is obligated to pay any such amount to a third Person.

Section 9.02 Liability. The aggregate liability of the Administrator under this Agreement shall be limited to the aggregate amount of the Administration Fee actually paid to the Administrator; provided such limitation of liability shall not apply to (a) any liability under this Agreement that is the result of the fraud, gross negligence, willful misconduct or willful violation of applicable law of the Administrator and (b) events or circumstances in respect of which insurance proceeds have been received, it being the Parties’ specific intent that nothing contained herein is intended to, nor shall, relieve or limit any insurer’s obligation under any applicable insurance policy.

Section 9.03 Supremacy. The provisions expressed in this Article IX shall prevail over any conflicting or inconsistent provisions contained elsewhere in this Agreement and shall survive termination of this Agreement.

ARTICLE X

REPRESENTATIONS AND WARRANTIES

Section 10.01 Representations and Warranties. Each Party represents and warrants, as of the date hereof, as follows:

(a)    it is a limited liability company or a corporation, as applicable, duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;

(b)    it has taken all necessary action to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder;

(c)    this Agreement constitutes its legal, valid and binding obligation enforceable against it in accordance with its terms except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights and the enforcement of debtors’ obligations generally, and (ii) general principles of equity, regardless of whether enforcement is pursuant to a proceeding in equity or at law;

(d)    the execution, delivery and performance of this Agreement do not violate (i) its constituent documents, (ii) any contract to which it is a party or to which any of its properties are subject, or (iii) any law, rule, regulation, order, writ, judgment, injunction, decree or determination to which it is subjector by which its properties are bound;

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(e)    no consent, authorization, approval or other action by, and no notice to or filing with, any governmental authority or any other Person is required for the due execution, delivery or performance of this Agreement by such Party other than has been obtained or given as of the date hereof; and

(f)    there is no action, suit or proceeding at law or in equity or by or before any governmental authority, arbitral tribunal or other body now pending or threatened against it, which would reasonably be expected to have a material adverse effect on the transactions contemplated by this Agreement.

ARTICLE XI

MISCELLANEOUS

Section 11.01 Assignment.

(a)    The Administrator may not assign its rights and obligations under this Agreement to any third party unless the prior written consent of the Company and the Project Company has been obtained (and/or the Consent of the Class A Members has been obtained where the Consent of the Class A Members is required under the Company LLC Agreement); provided that, notwithstanding the foregoing, the Administrator may assign its rights and obligations under this Agreement to an Affiliate of the Administrator under common control with the Administrator without the prior written consent of the Company and the Project Company.

(b)    Neither the Company nor the Project Company may assign its rights and obligations under this Agreement to any third party without the prior written consent of the Administrator.

(c)    Notwithstanding the foregoing clauses (a) and (b), any Party may collaterally assign its rights under this Agreement to any party providing debt or equity financing to such Party without the consent of the other Parties.

Section 11.02 Authorization. Except as expressly authorized in writing by the Managing Member with respect to the Company, or the Sole Member with respect to the Project Company, or contemplated under the Services, the Administrator shall not have the right or the obligation to create any obligation or to make any representation on behalf of the Company or Project Company, as applicable.

Section 11.03 Governing Law, Jurisdiction, Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW OR OTHER PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION. THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN SANTA CLARA COUNTY, CALIFORNIA WITH RESPECT TO ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACHPARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING TO ANY SUCH DISPUTE AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO.

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Section 11.04 Independent Contractor. Nothing contained in this Agreement and no action taken by any Party to this Agreement shall be (a) deemed to constitute any Party or any of such Party’s employees, agents or representatives to be an employee, agent or representative of the other Parties; (b) deemed to create any company, partnership, joint venture, association or syndicate among or between the Parties; or (c) except as contemplated under the Services, deemed to confer on any Party any expressed or implied right, power or authority to enter into any agreement or commitment, express or implied, or to incur any obligation or liability on behalf of the other Parties, except as expressly authorized in writing.

Section 11.05 Notice. All notices, requests, consents, demands and other communications (collectively “notices”) required or permitted to be given under this Agreement shall be in writing signed by the Party giving such notice and shall be given to each other Party at its address or email address set forth in this Section 11.05 or at such other address or email address as such Party may hereafter specify by notice to the other Parties and shall be either delivered personally or sent by email or registered or certified mail, return receipt requested, postage prepaid, or by a nationally recognized overnight courier service. A notice shall be deemed to have been given (a) when successfully transmitted if given by email or (b) when delivered, if given by any other means. Notices shall be sent to the following addresses:

To the Administrator:

Bloom Energy Corporation

1299 Orleans Drive Sunnyvale, California 94089

Attn: [***]

Telephone: [***]

Fax: [***]

Email: [***]

To the Company:

2014 ESA HoldCo, LLC

c/o Bloom Energy Corporation

1252 Orleans Drive

Sunnyvale, California 94089-1137

Attn: [***]

Telephone: [***]

Fax: [***]

Email: [***]

[***] Confidential Treatment Requested

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To the Project Company:

2014 ESA Project Company, LLC

c/o Bloom Energy Corporation

1252 Orleans Drive

Sunnyvale, California 94089-1137

Attn: [***]

Telephone: [***]

Fax: [***]

Email: [***]

With a copy to:

Each note purchaser party to the Note Purchase Agreement, at the address specified for notices in Schedule A to the Note Purchase Agreement

With a copy to:

Exelon Generation Company, LLC

10 S. Dearborn St., 52nd Floor

Chicago, IL 60603

Attention: [***]

with a copy to:

Exelon Business Services Company, LLC

10 South Dearborn St., 49th Floor

Chicago, IL 60603

Attn: [***]

Section 11.06 Entire Agreement. This Agreement (including all appendices and exhibits thereto) constitutes the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersedes all prior written and oral agreements and understandings with respect to such subject matter.

Section 11.07 Amendment. Neither this Agreement nor any of the terms hereof may be terminated, amended, supplemented, waived or modified orally, but only by a document in writing signed by all Parties.

Section 11.08 Confidential Information. (a) Subject to the other terms of this Section 11.08, the Parties shall, and shall cause their Affiliates and their respective stockholders, members, subsidiaries and Representatives to, hold confidential all information they may have or obtain concerning Administrator, Company, and Project Company and their respective assets, business, operations or prospects or this Agreement (the “Confidential Information”), including, all materials furnished and information furnished by Administrator in performance of this Agreement, regardless of the form conveyed or whether financial or technical in nature, and including but not limited to, any trade secrets and propriety know how, all software, documentation, financial, marketing and nonpublic data with respect to the distribution and transmission facilities of the Transmitting Utility and other business information, all data related

[***] Confidential Treatment Requested

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to the internal design and performance of the Bloom Systems and any other material or information that is either marked as confidential or disclosed under circumstances that one would reasonably expect it to be confidential. Furthermore, the Company and Project Company agree that the Bloom Systems and services performed hereunder contain Administrator’s valuable trade secrets, and further, Company and Project Company agree to maintain the secrecy of and not disclose without the express written permission of Administrator any trade secrets which the Project Company or Company may have received from Administrator; provided, however, that Confidential Information shall not include information that (A) is or becomes generally available to the public other than as a result of an unauthorized disclosure by a Party or any of its Representatives or (B) is or becomes available to a Party or any of its Representatives on a nonconfidential basis from a source other than the other Party or its Representatives, provided that such source was not and is not bound by any contractual, legal or fiduciary obligation of confidentiality with respect to such information or (C) was or is independently developed or conceived by a Party or its Representatives without reference to the Confidential Information of any other Party.

(b)    Confidential Information may be disclosed (A) as required or requested to be disclosed by a Party or any of its Affiliates or their respective stockholders, members, subsidiaries or Representatives as a result of any applicable Legal Requirement or rule or regulation of any stock exchange, the Financial Industry Regulatory Authority, Inc. or other regulatory authority or self-regulatory authority having jurisdiction over such Party, (B) as required or requested by the IRS, the Department of Justice or the Office of the Inspector General in connection with a Bloom System, cash grant, or tax credits relating thereto, including in connection with a request for any private letter ruling, any determination letter or any audit or (C) as required under any Interconnection Agreement or PPA. If a Party becomes compelled by legal or administrative process to disclose any Confidential Information, such Party shall, to the extent permitted by Legal Requirements, provide the other Parties with prompt notice so that the other Parties may seek a protective order or other appropriate remedy or waive compliance with the non-disclosure provisions of this Section 11.08(b) with respect to the information required to be disclosed. If such protective order or other remedy is not obtained, or such other Parties waive compliance with the non-disclosure provisions of this Section 11.08(b) with respect to the information required to be disclosed, the first Party shall furnish only that portion of such information that it is advised, by opinion of counsel, is legally required to be furnished and shall exercise reasonable efforts, at the expense of the Party whose Confidential Information is being disclosed, to obtain reliable assurance that confidential treatment will be accorded such information, including, in the case of disclosures to the IRS described in clause (B) above, to obtain reliable assurance that, to the maximum extent permitted by applicable Legal Requirements, such information will not be made available for public inspection pursuant to Section 6110 of the Code.

(c)    Notwithstanding the foregoing, a Party may disclose Confidential Information received by it to its actual or potential financing parties or investors and its and their employees, consultants, legal counsel or agents who have a need to know such information or a right to receive such information pursuant to the terms of this Agreement; provided that such Party informs each such Person who has access to the Confidential Information of the confidential nature of such Confidential Information, the terms of this Agreement, and that such terms apply to them. The Parties shall use commercially reasonable efforts to ensure that each such Person complies with the terms of this Agreement and that any Confidential Information received by such Person is kept confidential.

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(d)    Nothing herein shall be construed as prohibiting a Party from using such Confidential Information in connection with (i) any claim against another Party, (ii) any exercise by a Party of any of its rights hereunder, (iii) a financing or proposed financing by Administrator or the Project Company or Company or their respective Affiliates, (iv) a disposition or proposed disposition by Administrator or any Affiliate of Administrator of all or a portion of such Person’s direct or indirect equity interest in Administrator or (v) a disposition or proposed disposition by any direct or indirect Affiliate of the Company or the Project Company of all or a portion of such Person’s equity interests in the Company or the Project Company, (vi) a disposition or proposed disposition by Project Company of any Bloom System; or (vii) any disclosure required to be made to a PPA Customer (or otherwise) under a PPA; provided that, in the case of items (iii), (iv), (v) and (vi), the potential financing party or purchaser has entered into a confidentiality agreement with respect to Confidential Information on customary terms used in confidentiality agreements in connection with corporate financings or acquisitions before any such information may be disclosed and a copy of such confidentiality agreement has been provided to the non-disclosing Party for informational purposes, which copy of such confidentiality agreement may contain redactions of confidential information relating to the potential financing or purchaser, except as otherwise required to be disclosed pursuant to the Company LLC Agreement.

Section 11.09 Third Party Beneficiaries. Except as otherwise expressly stated herein, this Agreement is intended to be solely for the benefit of the Parties hereto and their permitted assignees and is not intended to and shall not confer any rights or benefits to the general public or any other third party not a signatory thereto.

Section 11.10 Discharge of Obligations. With respect to any duties or obligations discharged hereunder by the Administrator, the Administrator may discharge such duties or obligations through the personnel of an Affiliate of the Administrator; provided that, notwithstanding the foregoing, the Administrator shall remain fully liable hereunder for such discharged duties and obligations.

Section 11.11 Severability. Any provision of this Agreement that shall be held to be invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without invalidating the remaining provisions hereof and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The Parties shall negotiate in good faith a replacement provision or provisions that are valid and enforceable and that as closely as possible correspond to the spirit and purpose of the invalid or unenforceable provisions and this Agreement as a whole.

Section 11.12 Binding Effect. The terms of this Agreement shall be binding upon, and inure to the benefit of, the Parties and their successors and permitted assigns.

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IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed, this Administrative Services Agreement on the date first set forth above.

2014 ESA HOLDCO, LLC, a Delaware limited liability company
By:	/s/ William E. Brockenborough
Name:	William E. Brockenborough
Title:	Vice President
2014 ESA PROJECT COMPANY, LLC, a Delaware limited liability company
By:	/s/ William E. Brockenborough
Name:	William E. Brockenborough
Title:	Vice President

[Signature Page to the Administrative Services Agreement]

IN WITNESS WHEREOF, the parties hereto have executed, or caused to be executed, this Administrative Services Agreement on the date first set forth above.

BLOOM ENERGY CORPORATION, a Delaware corporation
By:	/s/ William H. Kurtz
Name:	William H. Kurtz
Title:	Chief Financial Officer

[Signature Page to the Administrative Services Agreement]

EX-10

Exhibit 10.76

Execution Version

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

DEPOSITARY AGREEMENT

among

2014 ESA PROJECT COMPANY, LLC

a Delaware limited liability company,

as the Company

and

DEUTSCHE BANK TRUST COMPANY AMERICAS,

as Collateral Agent

and

DEUTSCHE BANK TRUST COMPANY AMERICAS,

as Depositary

Dated as of July 18, 2014

TABLE OF CONTENTS

			Page
ARTICLE 1. DEFINED TERMS				1
21.1	Defined Terms			1
21.2	Undefined Terms			5
21.3	Rules of Interpretation			5
ARTICLE 2. ESTABLISHMENT AND ADMINISTRATION OF ACCOUNTS				5
2.1	Establishment of Accounts with Depositary			5
2.2	Permitted Investments			6
	2.2.1	Directing the Making of Investments		6
	2.2.2	Application of Permitted Investments		7
	2.2.3	Earnings		7
	2.2.4	Liquidation of Investments for Distributions		7
	2.2.5	Value of Permitted Investments		8
	2.2.6	Security Interest		8
2.3	Books of Account; Statements; Etc.			8
2.4	Adequate Instruction; Sufficiency of Funds			8
2.5	Power of Attorney			9
2.6	Interest			9
2.7	Actions by Collateral Agent			9
ARTICLE 3. PROJECT ACCOUNTS				9
3.1	Account Withdrawals, Transfers and Payments			9
	3.1.1	General Procedures		9
	3.1.2	Account Withdrawal Documents		10
	3.1.3	Withdrawal and Transfers		10
3.2	Proceeds Escrow Account			10
	3.2.1	Deposits into the Proceeds Escrow Account		10
	3.2.2	Disbursements from the Proceeds Escrow Account		11
3.3	Revenue Account			12
	3.3.1	Deposits into Revenue Account		12
	3.3.2	Disbursements from the Revenue Account		12

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3.4	Operating Account		14
	3.4.1	Deposits into the Operating Account	14
	3.4.2	Disbursements from the Operating Account	14
3.5	IDC Reserve Account		14
	3.5.1	Deposit into the IDC Reserve Account	14
	3.5.2	Disbursements from the IDC Reserve Account	14
3.6	Debt Service Reserve Account		15
	3.6.1	Deposit into the Debt Service Reserve Account	15
	3.6.2	Withdrawals from the Debt Service Reserve Account	15
	3.6.3	Disbursement of Excess Amounts from the Debt Service Reserve Account	15
3.7	Loss Proceeds Account		15
	3.7.1	Deposit into the Loss Proceeds Account	15
	3.7.2	Withdrawals from the Loss Proceeds Account	15
	3.7.3	Surplus Proceeds	17
3.8	Distribution Suspense Account		17
	3.8.1	Deposits to the Distribution Suspense Account	17
	3.8.2	Transfers and Payments from the Distribution Suspense Account	17
3.9	Policy Proceeds Account		18
	3.9.1	Deposits to the Policy Proceeds Account	18
	3.9.1	Transfers from the Policy Proceeds Account	18
ARTICLE 4. SECURITY AND RELATED PROVISIONS; SECURITIES INTERMEDIARY			18
4.1	Securities Accounts; Deposit Accounts		18
4.2	Certain Rights and Powers in Respect of Accounts and Funds		19
	4.2.1	Rights to Accounts	19
	4.2.2	Certain Additional Powers of Collateral Agent and Depositary	19
	4.2.3	Control	21
4.3	Security Interest; Grant Pursuant to Security Agreement		21
	4.3.1	Acknowledgment	21
4.4	Perfection; Further Assurances		21
4.5	Other Liens; Adverse Claim		22

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4.6	Duties and Certain Rights of Depositary		23
	4.6.1	General	23
	4.6.2	Appointment	23
	4.6.3	Negative Pledge	23
	4.6.4	Instructions Upon an Event of Default	23
	4.6.5	Standard of Care	24
	4.6.6	Action Upon Notices; Exercise of Judgment	24
	4.6.7	Indemnification and Liability	25
	4.6.8	Court Orders	26
	4.6.9	Resignation and Termination	26
	4.6.10	Directions and Instructions to the Depositary	27
	4.6.11	Individual Capacity	27
	4.6.12	Duties	27
	4.6.13	Succession	27
4.7	Remedies		28
4.8	Costs, Expenses and Attorneys’ Fees		28
4.9	Additional Rights of Collateral Agent and Depositary		28
	4.9.1	Actions	29
	4.9.2	No Responsibility for Statements, Etc.	29
	4.9.3	Collateral	29
4.10	Non-Business Days		30
ARTICLE 5. TERMINATION OF AGREEMENT			30
ARTICLE 6. MISCELLANEOUS			30
6.1	Notices		30
6.2	Benefit of Agreement		32
6.3	Delay and Waiver		32
6.4	Amendments		32
6.5	Governing Law		32
6.6	Consent to Jurisdiction		32
6.7	WAIVER OF JURY TRIAL		33
6.8	Severability		33
6.9	Headings		33
6.10	Successors and Assigns		33
6.11	Entire Agreement		34
6.12	Survival of Agreements		34
6.13	Counterparts		34
6.14	Patriot Act		34

iii

EXHIBITS

Exhibit A	Form of Account Withdrawal Instruction
Exhibit B	Form of Account Withdrawal Request
Exhibit C	Note Purchase Agreement
Exhibit D	Funds Flow Memorandum

iv

This DEPOSITARY AGREEMENT, dated as of July 18, 2014 (this “Agreement”), is entered into by and among 2014 ESA Project Company, LLC, a Delaware limited liability company (the “Company”), DEUTSCHE BANK TRUST COMPANY AMERICAS, as collateral agent for the Secured Parties (in such capacity, “Collateral Agent”), and DEUTSCHE BANK TRUST COMPANY AMERICAS, as depositary agent, bank and securities intermediary (in such capacities, “Depositary”).

RECITALS

A. The Company intends to develop, construct, install, finance, own, operate and maintain a portfolio of fuel cell electricity generators with an aggregate capacity of 20.95 MW, to be located on sites in California, Connecticut, New York, and New Jersey (the “Project”).

B. In order to finance the development, construction, installation, testing, operation and use of the Project and the acquisition of certain other assets related thereto, the Company has entered into that certain Note Purchase Agreement, dated as of July 18, 2014, a copy of which is attached hereto as Exhibit C (as amended, amended and restated, supplemented or otherwise modified from time to time, the “Note Purchase Agreement”) with the Purchasers (as defined in the Note Purchase Agreement), pursuant to which, among other things, the Company has issued Notes to the Purchasers in an aggregate principal amount equal to $99,000,000.

C. In order to further secure and support the Company’s obligations to the Purchasers under the Note Purchase Agreement, the Company is entering into this Agreement, pursuant to which, among other things, the Company will grant to Collateral Agent, for the benefit of the Secured Parties, a perfected first priority security interest in the Accounts and in all financial assets held therein or credited thereto and all proceeds thereof.

D. Depositary has agreed to act as depositary agent, bank and securities intermediary pursuant to the terms of this Agreement.

AGREEMENT

NOW, THEREFORE, in consideration of the promises contained herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Company hereby agrees with Collateral Agent and Depositary, for the benefit of the Secured Parties, as follows:

ARTICLE 1.

DEFINED TERMS

1.1 Defined Terms. The following terms when used in this Agreement, including its preamble and recitals, shall have the following meanings:

“Account Withdrawal Documents” means, collectively, any Account Withdrawal Request and the Account Withdrawal Instruction related thereto, properly completed by the Company and delivered to Collateral Agent and each Holder in accordance with the applicable provisions of this Agreement.

“Account Withdrawal Instruction” means an instruction letter substantially in the form of Exhibit A hereto delivered by the Company to Collateral Agent for further delivery to Depositary.

“Account Withdrawal Request” means a certificate in the form of Exhibit B hereto signed by a duly authorized representative of the Company and delivered to Collateral Agent and each Holder.

“Accounts” has the meaning set forth in Section 2.1.

“Affiliate” of a specified Person means any other Person that directly, or indirectly through one or more intermediaries, controls, is controlled by or is under common control with such Person. For purposes of this definition, “control” means the possession, directly or indirectly (either alone or pursuant to an arrangement or understanding with one or more other Persons), of the power to direct or cause the direction of the management or policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” shall have meanings correlative thereto.

“Authorized Signatory” has the meaning given in Section 4.6.10.

“Business Day” means any day other than a Saturday, Sunday or other day on which banks are authorized or required to be closed in the State of New York or the State of California.

“Casualty Event” means the loss, damage or destruction of any part of the Improvements or any personal property related to the Project.

“Collateral” means all property which is subject or is intended to become subject to the security interests or liens granted by any of the Collateral Documents.

“Collateral Agent” has the meaning given in the preamble to this Agreement.

“Collateral Documents” means the collateral security documents entered into for the purpose of providing collateral security for the benefit of the Secured Parties to secure the obligations of the Company under the Note Purchase Agreement and the other NPA Documents.

“Company” has the meaning given in the preamble to this Agreement.

“Conditions to Release of Funds” has the meaning given in Section 3.7.2(b).

“Debt Service Deficiency” has the meaning given in Section 3.6.2.

“Debt Service Reserve Account” means the account designated by that name established by the Company with Depositary pursuant to Section 2.1.

“Depositary” has the meaning given in the preamble to this Agreement.

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“Distribution Suspense Account” means the account designated by that name established by the Company with Depositary pursuant to Section 2.1.

“Eminent Domain Proceeds” means all proceeds received in respect of any Event of Eminent Domain.

“FDIC” means Federal Deposit Insurance Corporation.

“IDC Reserve Account” means the account designated by that name established by the Company with Depositary pursuant to Section 2.1.

“Indemnified Persons” has the meaning given in Section 4.6.7(a).

“Insurance Proceeds” means all proceeds in respect of any property insurance policy required to be maintained by the Company under the NPA Documents.

“Item” has the meaning given to such term in Section 4.5(b) herein.

“Loss Event” means any Casualty Event or Event of Eminent Domain, as the context requires.

“Loss Proceeds” means, individually and collectively, Insurance Proceeds and Eminent Domain Proceeds.

“Loss Proceeds Account” means the account designated by that name established by the Company with Depositary pursuant to Section 2.1.

“Monthly Date” means the last Business Day of each month.

“Moody’s” means Moody’s Investors Service, Inc.

“Net Available Amount” means, with respect to any Loss Event, the aggregate amount of Loss Proceeds received by the Company or Collateral Agent in respect of such Loss Event, net of taxes and reasonable expenses incurred in connection with the collection thereof.

“Note Purchase Agreement” has the meaning given in the recitals to this Agreement.

“Operating Account” means the account designated by that name established by the Company with Depositary pursuant to Section 2.1.

“Permitted Investments” means: (i) marketable securities issued by the U.S. Government and supported by the full faith and credit of the U.S. Treasury, by statute; (ii) marketable debt securities, rated Aaa by Moody’s and/ or AAA by S&P, issued by U.S. Government-sponsored enterprises, U.S. Federal agencies, U.S. Federal financing banks, and international institutions whose capital stock has been subscribed for by the United States; (iii) certificates of deposit, time deposits, and bankers acceptances of any

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bank or trust company incorporated under the laws of the United States or any state, provided that, at the date of acquisition, such investment, and/or the commercial paper or other short term debt obligation of such bank or trust company has a short-term credit rating or ratings from Moody’s and/or S&P, each at least P-1 or A-1; (iv) commercial paper of any corporation incorporated under the laws of the United States or any state thereof which on the date of acquisition is rated by Moody’s and/or S&P, provided each such credit rating is least P-1 and/or A-1; (v) money market mutual funds that are registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, and operated in accordance with Rule 2a-7 and that at the time of such investment are rated Aaa by Moody’s and/or AAAm by S&P, including such funds for which Depositary or an Affiliate provides investment advice or other services; (vi) tax-exempt variable rate commercial paper, tax-exempt adjustable rate option tender bonds, and other tax-exempt bonds or notes issued by municipalities in the United States, having a short-term rating of “MIG-1” or “VMIG-1” or a long term rating of “AA” (Moody’s), or a short-term rating of “A-1” or a long term rating of “AA” (S&P); (vii) repurchase obligations with a term of not more than thirty days, 102 percent collateralized, for underlying securities of the types described in clauses (i) and (ii) above, entered into with any bank or trust company or its respective Affiliate meeting the requirements specified in clause (iii) above, and (viii) cash held by the Depositary in interest bearing accounts. Maturities on the above securities shall not exceed 365 days and all rating requirements and/or percentage restrictions are based on the time of purchase.

“Policy Proceeds Account” means the account designated by that name established by the Company with Depositary pursuant to Section 2.1.

“Proceeds Escrow Account” means the account designated by that name established by the Company with Depositary pursuant to Section 2.1.

“Project” has the meaning given in the recitals to this Agreement.

“Revenue Account” means the account designated by that name established by the Company with Depositary pursuant to Section 2.1.

“S&P” means Standard and Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.

“UCC” means the Uniform Commercial Code as the same may, from time to time, be in effect in the State of New York; provided, however, in the event that, by reason of mandatory provisions of law, any or all of the perfection or priority of the security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York the term “UCC” shall mean the Uniform Commercial Code as in effect in such other jurisdiction for purposes of the provisions hereof relating to such perfection or priority and for purposes of definitions related to such provisions.

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“Waterfall Level” means any of the waterfall levels set forth in Section 3.3.2, as the case may be.

1.2 Undefined Terms. Unless otherwise defined herein, capitalized terms used in this Agreement have the meanings provided in the Note Purchase Agreement.

1.3 Rules of Interpretation. Unless otherwise provided herein, the rules of interpretation set forth in Schedule B to the Note Purchase Agreement shall apply to this Agreement, and are incorporated herein by reference, mutatis mutandis.

ARTICLE 2.

ESTABLISHMENT AND ADMINISTRATION OF ACCOUNTS

2.1 Establishment of Accounts with Depositary.

(a) The Company hereby directs Depositary to establish on or prior to the date hereof and maintain until the termination of this Agreement in accordance with Article 5 or as otherwise expressly set forth herein, at its office located at 60 Wall Street MS NYC60-1630, New York, NY 10005 Attention: Escrow Team – ESA Project , the following segregated accounts (each to be referred to herein by the defined term provided, and collectively the “Accounts”), in the name of the Company (as the securities entitlement holder), but under the exclusive dominion and control of Collateral Agent pursuant to the terms of this Agreement:

Name of Account at Depositary	Account Number	Defined Term for Account
[***]	[***]	[***]
[***]	[***]	[***]
[***]	[***]	[***]
[***]	[***]	[***]
[***]	[***]	[***]
[***]	[***]	[***]
[***]	[***]	[***]
[***]	[***]	[***]

[***] Confidential Treatment Requested

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The complete wire instructions for each of the Accounts are as follows:

Deutsche Bank Trust Company Americas

ABA No.: [***]

Account #: [***]

Beneficiary Name: Trust and Securities Services

FFC AC : PORT [Please insert the applicable Account Number (ie, [***])]

Attention: Heather Agagnina

(b) Depositary shall send copies of all statements and confirmations for the Accounts simultaneously to the Company and Collateral Agent.

2.2 Permitted Investments;

2.2.1 Directing the Making of Investments. Any cash held in the Accounts maintained hereunder shall be invested and reinvested in Permitted Investments from time to time by Depositary at the expense and risk of the Company (a) as directed by the Company, so long as Collateral Agent has not notified Depositary that an “Event of Default” under the Note Purchase Agreement has occurred and is continuing or after Collateral Agent has notified Depositary that any such Event of Default no longer exists, and (b) as directed by Collateral Agent, if Collateral Agent has notified Depositary that an Event of Default has occurred and is continuing (and Depositary has had reasonable time, in any event not to exceed three Business Days, to act on such notice), until such time, if ever, as Collateral Agent notifies Depositary that any such Event of Default no longer exists; provided, however, that, if the Company fails to so direct Depositary, or if there exists an Event of Default and Collateral Agent fails to so direct Depositary, by 11:00 a.m. on the date on which the term of any Permitted Investment terminates, amounts in respect of such terminating Permitted Investment shall be reinvested in any money market mutual funds that are registered with the Securities and Exchange Commission under the Investment Company Act of 1940, as amended, and operated in accordance with Rule 2a-7 and that at the time of such investment are rated Aaa by Moody’s and/or AAAm by S&P, including such funds for which Depositary or any Affiliate of Depositary provides investment advice or other services. The other parties hereto acknowledge that shares in this mutual fund are not obligations of Deutsche Bank Trust Company Americas or any of its Affiliates, are not deposits and are not insured by the FDIC. Depositary or its Affiliate may be compensated by the mutual fund for services rendered in its capacity as investment advisor, or other service provider, such as provider of shareholder servicing and distribution services, and such compensation is both described in detail in the prospectus for the fund, and is in addition to the compensation, if any, paid to Deutsche Bank Trust Company Americas in its capacity as Depositary hereunder. Depositary’s obligation to invest such amounts is conditioned upon receipt by Depositary from the Company of a valid Form W-9 of the Internal Revenue Service of the United States in accordance with Section 2.2.3. The right to direct the manner of investment includes, but is not limited to, the right (i) to direct Depositary to sell any Permitted Investment or hold it until maturity and (ii) upon any sale at maturity of any Permitted Investment, to direct Depositary to reinvest the proceeds thereof, plus any interest received by Depositary thereon, in Permitted Investments or to hold such proceeds and interest for application pursuant to the terms of this Agreement. Depositary shall have no liability for any loss resulting from any such investment other than any such loss caused solely by Depositary’s willful misconduct or gross negligence.

[***] Confidential Treatment Requested

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Except as otherwise provided in this Section 2.2, any balances in the Accounts shall remain uninvested. The Depositary shall have no obligation to invest or reinvest any balances if deposited with the Depositary after 11:00 a.m. (E.S.T.) on such day of deposit. Instructions received after 11:00 a.m.(E.S.T.) will be treated as if received on the following business day (if applicable).

2.2.2 Application of Permitted Investments. Permitted Investments purchased in connection herewith and under the provisions of this Agreement by Depositary shall be deemed at all times to be a part of the Account from which funds were withdrawn in order to acquire the Permitted Investment and shall be deemed to constitute funds on deposit in and credited to such Account, and the income or interest earned and gains realized in excess of losses incurred by an Account due to the investment of funds deposited therein shall be credited and retained in the particular Account in respect of which the Permitted Investment was purchased, except as expressly provided by the terms hereof.

2.2.3 Earnings.

(a) For purposes of any income tax payable on account of any income or gain on an investment, such income or gain shall be credited to the Company for tax reporting purposes. Depositary shall provide to the Company a statement with respect to all interest earned on any Account as of the close of each calendar year for which income is earned on the Accounts. The Company shall provide Depositary with its taxpayer identification number, documented, to the extent necessary, by an appropriate executed Form W-9, upon execution of this Agreement. The Form W-9 shall, to the extent necessary, be renewed as required by the Internal Revenue Service of the United States and provided to Depositary.

(b) Any interest, gain or other earnings on, or proceeds of, investments credited to any Account that may be received by Depositary shall be deposited in such Account.

2.2.4 Liquidation of Investments for Distributions. Any direction of an Authorized Signatory of the Company, with respect to the investment or reinvestment of monies held in any Account, shall direct investment or reinvestment only in Permitted Investments that shall mature in such amounts and have maturity dates or be subject to redemption at the option of the holder thereof on or prior to maturity as needed for the purposes of transfers into and from such Accounts. Collateral Agent is hereby authorized in any event to direct Depositary to liquidate or direct the liquidation of any Permitted Investment (without regard to maturity date) whenever Collateral Agent deems it necessary in order to make or cause to be made any deposit, transfer or distribution. In furtherance, and not in limitation, but without duplication, of any other indemnity or limitation of liability with respect to Collateral Agent or Depositary contained herein, neither Collateral Agent nor any other Secured Party shall in any way be liable for any losses incurred by the Company, including losses due to early liquidation or market risk, which are a result of Collateral Agent’s exercise of its authority under this provision, other than any such loss arising from Collateral Agent’s willful misconduct or gross negligence. Neither Collateral Agent nor Depositary nor any other Secured Party shall in any event be liable or responsible for any loss, penalty or gain resulting from any investment made hereunder in accordance with the terms of this Agreement.

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2.2.5 Value of Permitted Investments. For purposes of this Agreement (including determination of the balance in, or the aggregate amount on deposit in and credited to, any Account), the value of any investment shall be the lesser of (a) the face amount thereof and (b) the fair market value thereof.

2.2.6 Security Interest. Whenever the Company directs Depositary to purchase a Permitted Investment not represented or evidenced by certificates or instruments capable of possession, the Company shall notify Collateral Agent of such purchase and, upon the request of Collateral Agent, Depositary shall deliver such information in Depositary’s possession to Collateral Agent as may be reasonably necessary to enable Collateral Agent to take all necessary action, including giving confirmations and notices to record Collateral Agent’s interest therein, all as required by the UCC to perfect a first priority security interest for the benefit of Collateral Agent. Without limiting the foregoing, whenever Depositary is instructed to purchase a Permitted Investment which is a certificate of deposit, Depositary shall simultaneously or promptly thereafter notify the issuer of the certificate of deposit as follows: Deutsche Bank Trust Company Americas, as Collateral Agent for the benefit of the Secured Parties, has a security interest and pledge in the certificate(s) of deposit being purchased this day by Deutsche Bank Trust Company Americas, as depositary agent and bailee on behalf of Collateral Agent and the other Secured Parties.

2.3 Books of Account; Statements; Etc. Depositary shall maintain books of account on a cash basis and record therein all deposits into and transfers to and from the Accounts and all investment transactions effected by Depositary pursuant to the terms hereof, and any such recordation shall constitute prima facie evidence of the information recorded. Not later than the 10^th Business Day of each month, commencing with the first month to occur after the date hereof, Depositary shall deliver to Company a statement setting forth the transactions in each Account during the preceding month, including deposits, withdrawals and transfers from and to any Account, and specifying any Permitted Investments and other amounts held in each Account at the close of business on the last Business Day of the preceding month. In addition, Depositary shall promptly respond during normal business hours to requests by Collateral Agent or the Company for information regarding deposits, investments and transfers into, in respect of and among the Accounts. Depositary shall provide access to its on line bank statements and transaction activities reports with respect to each Account subject to Company and Collateral Agent providing any reasonable information to Depositary which is needed to establish such person with access to such on line system.

2.4 Adequate Instruction; Sufficiency of Funds.

2.4.1 In the event that Depositary receives any monies in respect of the Company without adequate instruction as to the Account into which such monies are to be deposited, Depositary shall immediately deposit such monies into the Proceeds Escrow Account and, after notice from Collateral Agent that the Final Completion Date has occurred, into the Revenue Account, keeping such records as may be necessary to adequately distinguish such monies from other funds held in such Account, and shall immediately thereafter notify the

8

Company and Collateral Agent of the receipt of such monies. At any time that Depositary subsequently receives instructions from the Company and Collateral Agent jointly (unless an Event of Default exists, in which case instructions only from Collateral Agent shall be sufficient) specifying the Account into which any such monies should be deposited, Depositary shall transfer such monies, within one Business Day of receiving such notice, from the Proceeds Escrow Account or Revenue Account, as the case may be, into the Account(s) that the Company and/or Collateral Agent specified in such subsequent instructions.

2.4.2 To the extent that there are insufficient funds in the relevant Account to make a transfer or withdrawal directed by an Account Withdrawal Instruction, Depositary shall (i) immediately notify the Company and Collateral Agent of such deficiency and (ii) thereafter, to the extent practicable, unless it promptly receives contrary joint instructions from Collateral Agent and the Company, make such withdrawal or transfer to the extent of such funds.

2.5 Power of Attorney. With respect to the powers and rights granted to Collateral Agent in Article 3, the Company hereby constitutes and appoints Collateral Agent its true and lawful attorney-in-fact to make the direct payments specified therein, and this power of attorney shall be deemed to be a power coupled with an interest and shall be irrevocable. No further direction or authorization from the Company shall be necessary to warrant or permit Collateral Agent to make such direct payments in accordance with the foregoing sentence and Article 3; provided, that Collateral Agent shall have no obligation to make any such payment unless instructed to do so upon the written direction of the Required Holders.

2.6 Interest. Depositary shall credit to each Account all receipts of interest and other income received in respect of the funds held in such Account.

2.7 Actions by Collateral Agent. Collateral Agent shall only be obligated to act hereunder upon the written direction of the Required Holders.

ARTICLE 3.

PROJECT ACCOUNTS

3.1 Account Withdrawals, Transfers and Payments.

3.1.1 General Procedures.

(a) For every withdrawal, transfer or payment from any Account, the Company shall execute and deliver to Collateral Agent and each Holder an Account Withdrawal Request and a proposed Account Withdrawal Instruction related thereto at least seven Business Days prior to the proposed date of a withdrawal, transfer or payment from an Account. The Company shall submit, together with each set of Account Withdrawal Documents, receipts, invoices and any other appropriate documentation or materials reasonably requested by Collateral Agent or any Holder to enable it to confirm the withdrawals and transfers specified in the applicable Account Withdrawal Request and the other matters described therein.

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(b) Unless Collateral Agent and the Company have received from the Required Holders a written objection with respect to the Account Withdrawal Documents within three Business Days from the Company’s delivery thereof, Collateral Agent shall sign the applicable Account Withdrawal Instruction and deliver such Account Withdrawal Instruction to Depositary with a copy to the Company. If the Required Holders provide a written objection (within the applicable time period provided in the immediately preceding sentence) to only part of any individual withdrawal, transfer or payment requested in any Account Withdrawal Request, Collateral Agent shall sign the applicable Account Withdrawal Instruction, modified to reflect only the withdrawals, transfers and payments that have not been timely objected to, and deliver such Account Withdrawal Instruction to Depositary. The Company shall be permitted to submit a revised set of Account Withdrawal Documents to Collateral Agent and each Holder with respect to any withdrawals, transfers and payments that have been timely objected to.

(c) The Company agrees that Collateral Agent may direct Depositary to transfer any or all sums on deposit in or credited to any Account directly into the accounts identified by the Company in each Account Withdrawal Request without further authorization from the Company; provided that if the Company has notified Collateral Agent that it is contesting a claim for payment in accordance with the applicable Operative Documents, Collateral Agent shall not be entitled to directly pay any amount being contested, except any portion of such amount which is not being contested by the Company.

3.1.2 Account Withdrawal Documents. A set of Account Withdrawal Documents shall be deemed properly delivered by the Company to Collateral Agent and each Holder if such Account Withdrawal Documents have been properly completed and delivered to the Collateral Agent and the Required Holders in accordance with the applicable time requirements set forth herein and not objected by the Required Holders as provided in Section 3.1.1 (b) above. To the extent that any directions to Depositary or any requested actions by Depositary under this Article 3 require actions to be taken by the Company and the Company fails to perform such actions, or if any Account Withdrawal Documents submitted by the Company are incorrect or if an Event of Default has occurred and is continuing or would occur based on the Company’s failure to submit, or to submit accurate and necessary, Account Withdrawal Documents, Collateral Agent may, but is not obligated to, perform such actions by completing and executing an Account Withdrawal Instruction at the direction of the Required Holders and delivering such Account Withdrawal Instruction to Depositary.

3.1.3 Withdrawal and Transfers. Upon receipt before 11:00 A.M. on a Business Day by Depositary of an Account Withdrawal Instruction pursuant to which Collateral Agent directs the withdrawal of funds from any Account, Depositary shall make such withdrawals and shall apply such funds to the uses and in the amounts specified in such Account Withdrawal Instruction as soon as reasonably practicable, and in any event within the next Business Day after receipt of such Account Withdrawal Instruction.

3.2 Proceeds Escrow Account.

3.2.1 Deposits into the Proceeds Escrow Account. Commencing on the Closing Date and until the Final Completion Date, the Company shall immediately deposit or cause to be deposited into the Proceeds Escrow Account each of the following:

(a) all proceeds of the Notes issued under the Note Purchase Agreement;

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(b) the proceeds of all cash equity contributions made to the Company (as provided in Section 4.2.7(a) and (b) of the Note Purchase Agreement); and

(c) all delay in start-up or business interruption insurance proceeds received by the Company.

Notwithstanding the provisions of this Agreement, on or immediately following the Closing Date, the Depositary shall make all the payments from the Revenue Account outlined in the flow of funds memorandum delivered by the Company in advance of the Closing Date and attached as Exhibit D to this Agreement in accordance with the terms thereof including for (i) deposit of an amount equal to the Debt Service Reserve Requirement into the Debt Service Reserve Account, (ii) deposit of the amount set forth in Section 3.5.1 into the IDC Reserve Account and (iii) payment of all fees and costs related to the transactions under the Note Purchase Agreement and the other Credit Documents, and, after making all such payments from the Revenue Account, all amounts remaining shall remain on deposit in the Proceeds Escrow Account for application in accordance with this Section 3.2.1.

3.2.2 Disbursements from the Proceeds Escrow Account.

(a) The Company shall submit a set of Account Withdrawal Documents to Collateral Agent and each Holder as and when, but no more frequently than two times each month, the Company seeks to withdraw or transfer funds from the Proceeds Escrow Account. Such Account Withdrawal Documents shall be delivered concurrently with the delivery of a Drawdown Certificate by the Company to each Holder and the Independent Engineer pursuant to Section 4.2.1 of the Note Purchase Agreement. The applicable Account Withdrawal Request shall request Collateral Agent to direct Depositary to transfer or apply monies on deposit in the Proceeds Escrow Account to the account or accounts specified by the Company to pay, to the extent consistent with the then-current Project Budget (including any contingency and subject to any overage permitted by Section 9.13(c) of the Note Purchase Agreement) or otherwise approved or permitted hereunder, Project Costs due and owing.

(b) On the Final Completion Date:

(1) subject to the occurrence of the Final Completion Date, as confirmed to Collateral Agent in writing by the Company, any amounts remaining on deposit in the Proceeds Escrow Account on the Final Completion Date shall be transferred by Depositary to the account or accounts to be specified by the Company in its sole discretion; and

(2) after all the proceeds then on deposit or credited to the Proceeds Escrow Account shall have been withdrawn or transferred pursuant to the foregoing clause (1) above, Collateral Agent shall direct Depositary to close the Proceeds Escrow Account.

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3.3 Revenue Account.

3.3.1 Deposits into Revenue Account. The Company shall deposit into the Revenue Account all (i) Project Revenues (other than delay in start-up or business interruption insurance proceeds received prior to the Final Completion Date, which will be deposited into the Proceeds Escrow Account pursuant to Section 3.2.1(c)) and (ii) on the Closing Date, [***] the Company received from the Managing Member. For the avoidance of doubt, income derived from environmental attributes produced by the Project (including, without limitation, low emission renewable energy credits and any other renewable energy credits and any state or local environmental incentives (including the California Self Generation Incentive Program)) will be deposited by the Company into an account or accounts to be specified by the Company in its sole discretion.

3.3.2 Disbursements from the Revenue Account.

(a) To cause the withdrawal or transfer of amounts on deposit in the Revenue Account, the Company shall submit to Collateral Agent and each Holder a set of Account Withdrawal Documents at least four Business Days prior to the last Business Day of each calendar month. Unless Collateral Agent and the Company have received from the Required Holders a written objection with respect to the Account Withdrawal Documents within three Business Days from the Company’s delivery thereof, Collateral Agent shall sign the applicable Account Withdrawal Instructions and deliver such Account Withdrawal Instructions to Depositary at least one Business Day prior to the last Business Day of the month in which such Account Withdrawal Documents were submitted or the proposed disbursement date, as applicable.

(b) Prior to the Final Completion Date, amounts on deposit in the Revenue Account shall be applied to the following uses, in the following amounts, at the following times, and in the following order of priority, to the extent funds are available therefor:

(1) On each Monthly Date, to the Operating Account for the payment of all O&M Costs then due and payable or to be due and payable in the ensuing month, subject in all events to a maximum amount determined pursuant to Section 3.3.2(d).

(2) On each Monthly Date, to the Operating Account for the payment of all reimbursable amounts currently payable to Collateral Agent or Depositary in connection with the Credit Documents.

(3) On each Repayment Date, amounts sufficient to pay all accrued principal, interest and fees on the Notes (provided that, to the extent amounts on deposit in the Revenue Account are insufficient for such purpose, such amounts shall be withdrawn, first, from the IDC Reserve Account in accordance with Section 3.5.2(a) and, second, from the Policy Proceeds Account in accordance with Section 3.9.2).

[***] Confidential Treatment Requested

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(4) On each Repayment Date, at the Company’s election, to the optional prepayment of the Notes pursuant to Section 8.2 of the Note Purchase Agreement.

(c) On and after the Final Completion Date, amounts on deposit in the Revenue Account shall be applied to the following uses, in the following amounts, at the following times, and in the following order of priority, to the extent funds are available therefor:

(1) On each Monthly Date, to the Operating Account for the payment of all O&M Costs then due and payable or to be due and payable in the ensuing month, subject in all events to a maximum amount determined pursuant to Section 3.3.2(d).

(2) On each Monthly Date, to the payment of all reimbursable amounts currently payable to Collateral Agent or Depositary in connection with the Credit Documents.

(3) On each Repayment Date, to the payment of interest on the Notes, and on other amounts accruing interest under the NPA Documents (provided that, to the extent amounts on deposit in the Revenue Account are insufficient for such purpose, such amounts shall be withdrawn from the Policy Proceeds Account in accordance with Section 3.9.2).

(4) On each Repayment Date, to the scheduled repayment of the principal of the Notes (provided that, to the extent amounts on deposit in the Revenue Account are insufficient for such purpose, such amounts shall be withdrawn from the Policy Proceeds Account in accordance with Section 3.9.2).

(5) On each Repayment Date, to the Debt Service Reserve Account the amount (if any) necessary to fund the Debt Service Reserve Account so that the amount then on deposit in or credited to the Debt Service Reserve Account equals the Debt Service Reserve Requirement at such time.

(6) On each Repayment Date, to any mandatory prepayment of the Notes pursuant to Section 8.1.2 of the Note Purchase Agreement.

(7) On any Repayment Date, if the Tracking Account (as defined in the Policy) has a positive balance, to the Insurer as directed by the Company in the Account Withdrawal Request as a refund for claims paid under the Policy.

(8) On any Repayment Date, if the Distribution Conditions have been satisfied, to the account directed by the Company in the Account Withdrawal Request, free of the Liens of the Collateral Documents, and if the Distribution Conditions have not been satisfied, to the Distribution Suspense Account.

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(d) O&M Costs payable at Waterfall Level (1) of Sections 3.3.2(b) and 3.3.2(c) shall not in any event exceed the amounts prescribed by Section 9.13 (c) of the Note Purchase Agreement. The Company shall promptly pay all O&M Costs in excess of the foregoing limit from the Distribution Suspense Account.

3.4 Operating Account.

3.4.1 Deposits into the Operating Account. Amounts shall be transferred to the Operating Account as provided in Sections 3.3.2(b)(1) and (2) and 3.3.2(c)(1).

3.4.2 Disbursements from the Operating Account. The Company shall submit a set of Account Withdrawal Documents to Collateral Agent and each Holder as and when, but no more frequently than one time each month, the Company seeks to withdraw or transfer funds from the Operating Account. The applicable Account Withdrawal Request shall request Collateral Agent to direct Depositary to apply monies on deposit in the Operating Account to pay, to the extent consistent with the then-current Annual Operating Budget (including any contingency and subject to any overage permitted by Section 9.13(c) of the Note Purchase Agreement) or otherwise approved or permitted hereunder, O&M Costs due and owing and reimbursable amounts currently payable to Collateral Agent or Depositary in connection with the NPA Documents.

3.5 IDC Reserve Account.

3.5.1 Deposit into the IDC Reserve Account. On the Closing Date, the Company shall fund or cause to be funded the IDC Reserve Account in an amount equal to [***].

3.5.2 Disbursements from the IDC Reserve Account.

(a) Prior to the Final Completion Date, Collateral Agent shall direct Depositary, pursuant to an Account Withdrawal Instruction, to withdraw amounts from the IDC Reserve Account to pay principal, all accrued interest and fees on the Notes to the extent that amounts in the Revenue Account are insufficient therefor.

(b) On the Final Completion Date:

(1) subject to the occurrence of the Final Completion Date, as confirmed to Collateral Agent in writing by the Company, any amounts remaining on deposit in the IDC Reserve Account on the Final Completion Date shall be transferred by Depositary to the account or accounts to be specified by the Company in its sole discretion; and

(2) after all the proceeds then on deposit or credited to the IDC Reserve Account shall have been withdrawn or transferred pursuant to the foregoing clause (1), Collateral Agent shall direct Depositary to close the IDC Reserve Account.

[***] Confidential Treatment Requested

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3.6 Debt Service Reserve Account.

3.6.1 Deposit into the Debt Service Reserve Account. On the Closing Date, the Company shall fund or cause to be funded the Debt Service Reserve Account in an amount equal to the Debt Service Reserve Requirement. If on any Repayment Date, amounts in the Debt Service Reserve Account are below the Debt Service Reserve Requirement, there shall be deposited all amounts in excess of the amounts applied pursuant to Waterfall Levels (1)-(4) of Section 3.3.2(c) in the Debt Service Reserve Account until the balance in the Debt Service Reserve Account is equal to the Debt Service Reserve Requirement.

3.6.2 Withdrawals from the Debt Service Reserve Account. If at any time when amounts are required to be paid pursuant to Waterfall Level (3) and (4) of Section 3.3.2(c) and insufficient funds are contained in the Revenue Account and Distribution Suspense Account to pay such amounts (a “Debt Service Deficiency”), Collateral Agent shall direct Depositary, pursuant to an Account Withdrawal Instruction, to withdraw from the Debt Service Reserve Account funds deposited in or credited to such Account, in an amount sufficient to pay such amounts.

3.6.3 Disbursement of Excess Amounts from the Debt Service Reserve Account. At any time the funds on deposit in the Debt Service Reserve Account are greater than (i) the Debt Service Reserve Requirement at such time or (ii) the aggregate remaining principal and interest payments on the Notes, and no Event of Default has occurred and is continuing and no periodic payments are made or required to be made under the Policy, Collateral Agent shall direct Depositary to transfer to the Revenue Account any such excess cash as requested by the Company pursuant to an Account Withdrawal Request, to the extent of such excess.

3.7 Loss Proceeds Account.

3.7.1 Deposit into the Loss Proceeds Account. The Company shall deposit, and shall use commercially reasonable efforts to cause third parties that would otherwise make payments directly to the Company to deposit, into the Loss Proceeds Account the Net Available Amount of all Loss Proceeds upon receipt thereof. If Loss Proceeds are received by the Company, the Company shall hold such payments in trust for Depositary and shall promptly remit the Net Available Amount of such Loss Proceeds to Depositary for deposit into the Loss Proceeds Account, in the form received, with any necessary endorsements.

3.7.2 Withdrawals from the Loss Proceeds Account.

(a) If there shall occur any single Loss Event with respect to which the replacement value does not exceed [***], the Net Available Amount of any Loss Proceeds in respect of such Loss Event shall be applied by the Company to the prompt payment of the cost of the repair or restoration of such damage or destruction.

(b) (I) If the Company receives Loss Proceeds relating to a Loss Event in respect of a single Loss Event greater than [***] (as determined by the replacement value of the item of property subject to the Loss Event) and the following conditions have been satisfied or waived by the Required Holders in consultation with the Independent Engineer (the “Conditions to Release of Funds”):

(i) such damage or destruction does not constitute the destruction of all or substantially all of the man-made portion of the Project;

[***] Confidential Treatment Requested

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(ii) no Event of Default has occurred and is continuing (other than an Event of Default resulting solely from such damage or destruction) and after giving effect to any proposed repair and restoration, such damage or destruction or proposed repair and restoration will not result in a Default or Event of Default;

(iii) the Company and the Independent Engineer certify, and the Required Holders determine in their reasonable judgment, that repair or restoration of the Project is technically and economically feasible within a one-year period and that a sufficient amount of funds is or will be available to the Company to make such repairs and restorations;

(iv) the Required Holders in consultation with the Independent Engineer reasonably determine that after repair and restoration the Project should be as capable of generating Project Revenues as prior to the casualty and consistent with the Base Case Projections;

(v) (A) no material Permit is necessary to proceed with the repair and restoration and (B) no material amendment to this Agreement or any of the Operative Documents is necessary for the purpose of effecting the repairs or restorations and (C) no material amendment to this Agreement or any of the Operative Documents is necessary for the purpose of subjecting the repairs or restorations to the Liens of the Collateral Documents, or, if any such is necessary, the Company will be able to obtain such as and when required;

(vi) if requested by the Required Holders, the Holders shall receive an opinion of counsel acceptable to Collateral Agent, at the Company’s expense, opining that that such repairs or restoration will be subject to the Liens of the Collateral Documents;

(vii) no periodic payments are being made or required to be made under the Policy; and

(viii) Collateral Agent shall receive such additional mechanic’s lien waivers, certificates, opinions or other matters as Required Holders may reasonably request as necessary or appropriate in connection with such repairs or restoration or to preserve or protect the holders of the Notes’ interests hereunder and in the Collateral,

(II) then the Net Available Amount of such Loss Proceeds shall be applied by the Company to the prompt repair or restoration of the Project in accordance with the following procedures:

(i) the Company shall submit a detailed report to Collateral Agent describing the Company’s plan for effectuating repairs or restoration, and such report shall be subject to the review and approval of the Required Holders in consultation with the Independent Engineer (such approval not to be unreasonably withheld); and

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(ii) from time to time after the Required Holders shall have duly approved the making of such repairs or restoration, Collateral Agent’s release of Loss Proceeds for application toward such repairs or restoration shall be conditioned upon the Company’s request and the presentation to Collateral Agent of a certificate from the Company (A) describing in reasonable detail the nature of the repairs or restoration to be effected with such release, (B) stating the cost of such repairs or restoration and the specific amount requested to be paid over to or upon the order of the Company and that such amount is requested to pay the cost thereof, (C) stating that the aggregate amount requested by the Company in respect of such repairs or restoration (when added to any other Loss Proceeds received by the Company in respect of such damage of destruction) does not exceed the cost of such repairs or restoration and that a sufficient amount of funds is or will be available to the Company to repair or restore the Project, and (D) stating that no Event of Default has occurred and is continuing other than an Event of Default resulting solely from such damage or destruction.

(c) If the Company receives Loss Proceeds relating to a Loss Event in respect of a single Loss Event greater than [***] (as determined by the replacement value of the item of property subject to the Loss Event) and the Conditions to Release of Funds are not met, then the Net Available Amount of such Loss Proceeds shall be applied to the mandatory prepayment of the Notes pursuant to Section 8.1.2(i) of the Note Purchase Agreement; provided that such prepayment shall be limited only to the ratable amount of the Notes related to the Systems affected by such mandatory prepayment event (e.g.     % of the payments received).

3.7.3 Surplus Proceeds. If, after Loss Proceeds have been applied to the repair or restoration of the Project as provided in Section 3.7.2, there remain any excess Loss Proceeds, the Net Available Amount of such Loss Proceeds shall be transferred to the Revenue Account.

3.8 Distribution Suspense Account.

3.8.1 Deposits to the Distribution Suspense Account. Amounts shall be deposited in the Distribution Suspense Account from the Revenue Account as provided in Waterfall Level (8) of Section 3.3.2(c).

3.8.2 Transfers and Payments from the Distribution Suspense Account.

(a) Until the funds in the Distribution Suspense Account have been applied as provided in clause (b) below, Collateral Agent shall direct Depositary to withdraw amounts therefrom to pay all fees, charges, costs and other amounts specified in Waterfall Level (1) through Waterfall Level (4) of Section 3.3.2(c), as applicable, in such order, to the extent that amounts in the Revenue Account are insufficient therefor and prior to applying funds from the Debt Service Reserve Account. Funds so applied shall be deemed those last deposited in the Distribution Suspense Account.

[***] Confidential Treatment Requested

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(b) Any funds deposited into the Distribution Suspense Account and held in the Distribution Suspense Account until after the fourth Repayment Date following such deposit shall be applied to the prepayment of the Notes in accordance with Section 8.1.2(vi) of the Note Purchase Agreement.

(c) If the Distribution Conditions are satisfied on any Repayment Date after deposit of such funds, all amounts in the Distribution Suspense Account will be released and transferred in the following order of priority, to the extent funds are available therefor: (i) first, to the Insurer in an amount equal to any and all claims paid under the Policy that have not yet been reimbursed and (ii) second, to the account or accounts specified by the Company other than the Distribution Suspense Account for any purpose pursuant to an Account Withdrawal Request. All amounts released and transferred from the Distribution Suspense Account shall be deemed to be released and transferred in the same order as deposited in the Distribution Suspense Account.

3.9 Policy Proceeds Account

3.9.1 Deposits to the Policy Proceeds Account. The Company shall promptly deposit into the Policy Proceeds Account any amount received from the Insurer under the Policy to the extent not paid directly to the Holders pursuant to Section 8.1.2.(iv) of the Note Purchase Agreement.

3.9.1 Transfers from the Policy Proceeds Account. After any amounts are received in the Policy Proceeds Account, Collateral Agent shall direct Depositary, pursuant to an Account Withdrawal Instruction, to withdraw amounts from the Policy Proceeds Account into the Debt Service Reserve Account.

ARTICLE 4.

SECURITY AND RELATED PROVISIONS; SECURITIES INTERMEDIARY

4.1 Securities Accounts; Deposit Accounts. Depositary hereby agrees and confirms that Depositary has established the Accounts as set forth and defined in this Agreement. The parties hereto hereby agree that:

(a) each Account is and will be maintained as a “securities account” (as defined in Section 8-501(a) of the UCC), and, to the extent that credit balances not constituting financial assets are credited thereto, as a “deposit account” (as defined in Section 9-102(a)(29) of the UCC);

(b) Depositary is acting in the capacity of “securities intermediary” (as defined in Section 8-102(a)(14) of the UCC) with respect to the Accounts and financial assets deposited therein or credited thereto, and as a “bank” (as defined in Section 9-102(a)(8) of the UCC) with respect to the Accounts and credit balances not constituting financial assets credited thereto;

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(c) each item of property (whether cash, cash equivalents, instruments, investments, investment property or any other property, including Permitted Investments) credited to the Accounts shall be treated as a “financial asset” within the meaning of Section 8-102(a)(9) of the UCC;

(d) the Company is the “entitlement holder” (as defined in Section 8-102(a)(7) of the UCC) with respect to the “financial assets” (as defined in Section 8-102(a)(9) of the UCC) credited to the Accounts, and the Company is the “customer” (as defined in Article 9 of the UCC) with respect to any deposit account;

(e) the “securities intermediary’s jurisdiction” (as defined in Section 8-110(e) of the UCC) shall be the State of New York, and the “bank’s jurisdiction” for purposes of Section 9-304 of the UCC shall be the State of New York;

(f) all securities and other property constituting financial assets credited to the Accounts shall be registered in the name of Depositary or endorsed to Depositary or in blank, and in no case whatsoever will any financial asset credited to an Account be registered in the name of the Company or any Affiliate thereof, payable to the order of the Company or any Affiliate thereof or specially endorsed to the Company or any Affiliate thereof except to the extent that the foregoing have been specially endorsed by Company or such Affiliate to Depositary or in blank;

(g) if there is any conflict between this Agreement and any other agreement relating to the Accounts (if any), the provisions of this Agreement shall control; and

(h) Depositary shall not change the name of or account number for any Account without the prior written consent of Collateral Agent.

4.2 Certain Rights and Powers in Respect of Accounts and Funds.

4.2.1 Rights to Accounts. Until this Agreement is terminated pursuant to Article 5, the Company shall not have any rights or powers with respect to the remittance of amounts credited to, the disbursement of credited amounts out of, or the investment of credited amounts in, Accounts, except to have amounts credited thereto applied in accordance with this Agreement; provided, however, that the parties hereto acknowledge and agree that the foregoing provisions of this Section 4.2.1 shall not be deemed to divest the Company of its respective interest as an “entitlement holder” under the UCC, as provided in this Agreement.

4.2.2 Certain Additional Powers of Collateral Agent and Depositary. Collateral Agent and, where appropriate, Depositary shall have the right, but not the obligation, to: (a) refuse any item for credit to any Account except as required by the terms of this Agreement; and (b) refuse to honor any request for transfer on any Account which is not consistent with this Agreement. If the Company fails to perform any agreement contained herein, Collateral Agent may (but is not obligated to) itself perform, or cause the performance of, such agreement, and the expenses of Collateral Agent incurred in connection therewith shall be payable by the Company upon demand. The Company hereby irrevocably appoints Collateral Agent as the Company’s attorney-in-fact, with full authority in the place and stead of the Company and in the name of the Company otherwise from time to time, if an Event of Default shall have occurred and be continuing, to take any action and to execute any instrument necessary or advisable to accomplish the purposes of this Agreement, including:

(i) to ask, demand, collect, sue for, recover, compromise, receive and give acquittance and receipts for moneys due and to become due under or in respect of any of the Accounts or the proceeds of financial assets held therein or credited thereto;

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(ii) to receive, endorse, and collect any drafts or other instruments, documents and chattel paper, in connection with clause (i) above;

(iii) to file any claims or take any action or institute any proceedings necessary for the collection of any of the Accounts or the proceeds of financial assets held therein or credited thereto or otherwise to enforce the rights of Collateral Agent with respect to any of the Accounts or the proceeds of financial assets held therein or credited thereto, provided that, with respect to this clause (iii), such rights shall be exercised in accordance with Section 4.7; and

(iv) to perform the affirmative obligations of the Company hereunder.

The Company hereby acknowledges, consents and agrees that the power of attorney granted pursuant to this Section 4.2.2 is irrevocable and coupled with an interest. The powers conferred on Collateral Agent hereunder are solely to protect its interest, on behalf of the Secured Parties, in the Accounts and the proceeds of financial assets held therein or credited thereto and shall not impose any duty on Collateral Agent to exercise any such powers. Except for the reasonable care of any Account in its possession or under its control, as the case may be, the performance of its respective obligations hereunder, the performance of duties of a bank or a securities intermediary under the UCC, as applicable, and the accounting for moneys actually received by it in accordance with the terms hereof, neither Depositary nor Collateral Agent shall have any duty as to any Account or the proceeds of financial assets held therein or credited thereto, or as to the taking of any necessary steps to preserve rights against prior parties or any other rights pertaining to any such Account or proceeds. Each of Depositary and Collateral Agent is required to exercise reasonable care in the custody and preservation of any Account in its possession or under its control (as the case may be); provided, however, that (A) Depositary in any event shall be deemed to have exercised reasonable care in the custody and preservation of any Account if it takes such action for that purpose as Collateral Agent or, at times other than upon the occurrence and during the continuance of any Event of Default, the Company reasonably requests, but, notwithstanding the foregoing, the failure of Depositary to comply with any such request at any time shall not in itself be deemed a failure to exercise reasonable care, and (B) Collateral Agent in any event shall be deemed to have exercised reasonable care in the custody and preservation of any Account if it takes such action for that purpose as the Company reasonably requests at times other than upon the occurrence and during the continuance of any Event of Default, but, notwithstanding the foregoing, the failure of Collateral Agent to comply with any such request at any time shall not in itself be deemed a failure to exercise reasonable care. Nothing in this Section 4.2 shall be construed as limiting Collateral Agent’s maintenance of exclusive dominion and control over the Accounts.

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4.2.3 Control

(a) Notwithstanding any other provision of this Agreement or any other agreement, Depositary agrees that it shall comply with all entitlement orders relating to the Accounts originated by Collateral Agent, and with all instructions directing disposition of the funds in the Accounts originated by Collateral Agent, in each case without further consent by the Company or any other Person.

(b) Without limiting the agreement of Depositary contained in Section 4.2.3(a), Collateral Agent agrees with the Company that it will not originate any entitlement order or instruction unless authorized to do so under this Agreement other than pursuant to this Section 4.2.3.

4.3 Security Interest; Grant Pursuant to Security Agreement. To secure the timely payment in full in cash and performance in full of its obligations under the Note Purchase Agreement, pursuant to the Security Agreement, the Company has assigned, granted, hypothecated and pledged to, and granted a Lien on and a security interest in favor of, Collateral Agent, on behalf of and for the sole and exclusive benefit of the Secured Parties, all the estate, right, title, interest and security entitlements of the Company, whether now owned or hereafter acquired, in all Accounts and in all financial assets held therein or credited thereto and all proceeds thereof, including all rights of the Company to receive moneys due in respect of all Accounts, all claims with respect to any Account, all income or gain earned in respect of the financial assets held in or credited to any Account, and all proceeds receivable or received when any Account is collected, exchanged or otherwise disposed of, whether voluntarily or involuntarily.

4.3.1 Acknowledgment. Depositary hereby acknowledges the security interest in, and the pledge by the Company to Collateral Agent, for the benefit of the Secured Parties, of all of the Company’s security entitlements to the Accounts and all financial assets held therein or credited thereto and all proceeds thereof, and Depositary will so indicate on the records maintained by Depositary with respect to Accounts. Depositary agrees to hold all such security entitlements and financial assets in its custody for the purposes of, and on the terms set forth in, this Agreement.

4.4 Perfection; Further Assurances. The Company agrees that from time to time it shall promptly execute and deliver all instruments and documents, and take all actions, that may be reasonably necessary, or that Collateral Agent may reasonably request, in order to perfect and protect the assignment and security interest granted or intended to be granted hereby or to enable Collateral Agent to exercise and enforce its rights and remedies hereunder with respect to the Accounts, all financial assets held therein or credited thereto and all proceeds thereof. Without limiting the generality of the foregoing, the Company hereby authorizes the filing of such financing or continuation statements, or amendments thereto, and shall execute or deliver such other instruments, endorsements or notices, as may be reasonably necessary or desirable or as Collateral Agent may reasonably request, in order to perfect and preserve the assignments and security interests granted or purported to be granted hereby.

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4.5 Other Liens; Adverse Claim. The Company represents and warrants, as of the date hereof, that:

(i) it has not assigned any of its rights under any Accounts except as part of the Collateral;

(ii) it has not executed and is not aware of any effective financing statement, security agreement, control agreement or other instrument similar in effect covering all or any part of the Accounts, except those in favor of Collateral Agent; and

(iii) it has full power and authority to grant a security interest in and assign its right, title and interest in the Accounts and all financial assets held therein or credited thereto and all proceeds thereof hereunder. The Company represents, warrants and covenants that it has not granted, and shall not grant, to any Person (other than Collateral Agent) any interest in any of the Accounts and that it has kept, and shall keep, the Accounts free from all other Liens (other than Liens in favor of Collateral Agent and Permitted Liens).

(b) Depositary, to the best of its knowledge without any independent investigation, represents and warrants that it has no knowledge of any Lien on any of the Accounts other than the claims and interest of the parties as provided herein. To the extent that Depositary has or subsequently obtains by agreement, operation of law or otherwise a security interest in any Account or any security entitlement credited thereto, Depositary hereby subordinates to the security interest in the Accounts of Collateral Agent all property credited thereto, all security entitlements with respect to such property and any and all statutory, regulatory, contractual or other rights now or hereafter existing in its favor over or with respect to the Accounts, including (i) any and all contractual rights of pledge, set-off, lien or compensation, (ii) any and all statutory or regulatory rights of pledge, lien, set-off or compensation, (iii) any and all statutory, regulatory, contractual or other rights to put on hold, block transfers from or fail to honor instructions of Collateral Agent with respect to the Accounts, or (iv) any and all statutory or other rights to prohibit or otherwise limit the pledge, assignment, collateral assignment or granting of any type of security interest in the Accounts. Notwithstanding the foregoing, Depositary retains its rights against the Accounts in respect of the payment of Depositary’s customary fees for maintaining the Accounts, all other customary fees, charges and reversals and payment of all amounts due and owing to Depositary (including, without limitation, amounts payable to Depositary pursuant to Sections 4.6.7 and 4.8) hereunder. Such other customary fees, charges and reversals include, without limitation, reimbursement for the reversal of any provisional credits posted by Depositary to an Account for the face amount of any check, draft, money order, instrument, wire transfer or payment order of funds, automated clearing house entry, or other electronic transfer of funds or other item (each an “Item” and collectively “Items”) without regard to the timeliness of return or adjustment of any Item, any adjustments or corrections of any posting or encoding errors, all reasonable fees, charges and costs associated with the preparation, negotiation, and enforcement of this Agreement as well as all fees and charges assessed by Depositary as a result of it agreeing to enter into this Agreement and the ongoing administration of the Accounts.

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(c) The financial assets credited to the Accounts shall not be subject to deduction, set-off, banker’s lien, or any other right in favor of any Person other than Collateral Agent and Depositary.

4.6 Duties and Certain Rights of Depositary;

4.6.1 General. The duties of Depositary shall be determined solely by the express provisions of this Agreement and the provisions of the UCC relating to the duties of a securities intermediary or a bank, as applicable, and no implied duties (fiduciary or otherwise), covenants or obligations shall be read into this Agreement against Depositary.

4.6.2 Appointment. Collateral Agent hereby designates and appoints Deutsche Bank Trust Company Americas to act on its behalf as depositary agent and securities intermediary under this Agreement, and authorizes Depositary to execute, deliver and perform, on behalf of the Secured Parties, this Agreement and to take such actions on behalf of the Secured Parties under the provisions hereof and to exercise such powers and authority and perform such duties as are expressly delegated to Depositary by the terms of this Agreement, together with such other powers and authority as are reasonably incidental thereto. Depositary hereby agrees to act as depositary agent and securities intermediary with respect to the Accounts and pursuant to this Agreement. The other parties hereto hereby acknowledge that Depositary shall act as depositary agent, securities intermediary (as defined in Section 8-102(a)(14)(ii) of the UCC) and, if applicable, as a bank (as defined in Section 9-102(a)(8) of the UCC) with respect to the Accounts and pursuant to this Agreement.

4.6.3 Negative Pledge. Depositary hereby agrees that it shall not grant, subject to the terms of this Agreement, any security interests in the financial assets that it is obligated to maintain under this Agreement. Notwithstanding anything to the contrary, Depositary will not be required to comply with the preceding sentence if Depositary is required by a law, rule, regulation or request of a regulatory authority to grant any security interests in the financial assets that Depositary is obligated to maintain under this Agreement, provided that Depositary shall provide Collateral Agent and the Company with written notice as soon as Depositary becomes aware of any such law, rule, regulation or request of a regulatory authority that would require Depositary to grant any security interests in the financial assets that Depositary is required to maintain under this Agreement. Subject to Section 4.5(b), Depositary hereby waives, to the fullest extent permitted by law, any Lien it may now have or subsequently acquire in respect of any Collateral, any right to apply any Collateral in satisfaction of any claims other than the claims of the Secured Parties in respect of the Liens granted under the Collateral Documents, and any right to set off claims against Collateral other than claims of any Secured Party under the Collateral Documents.

4.6.4 Instructions Upon an Event of Default. Upon the occurrence and during the continuation of an Event of Default, and until such time as Depositary receives notice from Collateral Agent that such Event of Default no longer exists, without limiting Collateral Agent’s or any other Secured Party’s rights or remedies herein or under any of the Collateral Documents,

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(i) Collateral Agent shall have the right, but not the obligation, to deliver to Depositary an “entitlement order” (within the meaning of Section 8-102(a)(8) of the UCC) or other directions instructing Depositary to administer the Accounts and disburse funds therefrom, and, upon the exercise of such right, Depositary shall comply with any such entitlement order or other directions from Collateral Agent without the further consent of the Company or any other Person, (ii) Depositary shall not accept any instructions or certificates from the Company with respect to the withdrawal or transfer of amounts in the Accounts or otherwise unless directed to do so by Collateral Agent and (iii) Depositary shall execute and deliver (or cause to be executed and delivered) to Collateral Agent all proxies and other instruments as Collateral Agent may reasonably request for the purpose of enabling Collateral Agent (on behalf of the Secured Parties) to exercise any voting or other consensual rights pertaining to the Accounts and the funds and investments therein. The parties hereto agree that until Depositary’s obligations under this Agreement shall terminate in accordance with the terms hereof, Collateral Agent shall have control of each of the Company’s security entitlements with respect to the financial assets credited to the Accounts, the Accounts and all funds in any Accounts. Depositary hereby represents that it has not entered into, and agrees that, until the termination of this Agreement, it will not enter into any agreement with any other Person in respect of any of the Accounts pursuant to which it would agree to comply with entitlement orders, other orders or instructions made by such Person.

4.6.5 Standard of Care. Depositary shall exercise at least the level of care it exercises with respect to its own funds and, in all events, reasonable care, in administering and accounting for amounts actually received by Depositary in accordance with the terms hereof and credited to the Accounts and the Permitted Investments purchased with such amounts. In the event Depositary breaches the foregoing standard of care, Collateral Agent and the Company expressly agree that Depositary’s liability shall be limited to actual damages directly caused by such breach and in no event shall Depositary be liable for any incidental, indirect, special, punitive or consequential damages, regardless of whether or not Depositary knew of the likelihood or was made aware of the possibility of such damages.

4.6.6 Action Upon Notices; Exercise of Judgment. Depositary may conclusively and exclusively rely on Collateral Agent or the Company in determining whether a Default or Event of Default under the Note Purchase Agreement has occurred, it being acknowledged and agreed by the parties hereto that if Depositary receives any conflicting notices, entitlement orders, requests, waivers, consents, receipts or other papers or documents hereunder, the applicable notice from Collateral Agent shall control. Depositary shall not be deemed to have knowledge of a Default or Event of Default under the Note Purchase Agreement until it has received written notice thereof from the Company or Collateral Agent. Collateral Agent and Depositary shall each be permitted to conclusively rely and act or refrain from acting, as the case may be, upon any notice, entitlement order, request, waiver, consent, receipt or other paper or document (whether in its original or facsimile form, including portable document format (.pdf)) reasonably believed by it to be signed by Collateral Agent or Depositary, as applicable, the Company or any other authorized Person. Other than in respect of actions or inactions that are specifically required by the terms of this Agreement, the parties hereto acknowledge that any action or direction (or inaction, as the case may be) of Collateral Agent is only upon the proper notice or instruction of the Required Holders. In the event that the Company becomes subject to a voluntary or involuntary proceeding under any Debtor Relief Laws, if Depositary is otherwise

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served with a court order or other judicial process which Depositary in good faith believes affects any Account, or Depositary is of the opinion that acting upon the instructions of Collateral Agent would result in the violation of any applicable law, rule, regulation or request of a regulatory authority, Depositary may, upon notice to Collateral Agent, cease acting upon the instructions of Collateral Agent and suspend disbursements from the Accounts until such time as Depositary receives a court order or other assurances reasonably satisfactory to Depositary establishing that disbursements from the Accounts may continue.

4.6.7 Indemnification and Liability.

(a) In consideration of the appointment of Depositary, the Company agrees fully to indemnify and hold Depositary and its directors, officers, employees and agents (collectively, the “Indemnified Persons”) harmless from and against any and all claims, losses, liabilities, damages, costs or expenses (including reasonable legal fees and expenses) incurred by the Indemnified Person by reason of or resulting from this Agreement or any action (or inaction, as the case may be) taken in connection therewith (including Depositary having accepted such appointment or by reason of its carrying out of any of the terms of this Agreement), and agrees to reimburse the Indemnified Person for all of its expenses, including reasonable fees and expenses of counsel and court costs, incurred by reason of any position or action taken (or omitted) by the Indemnified Person pursuant to this Agreement or in connection with any action brought to interpret or enforce the provisions this Agreement or any part thereof, except to the extent that any such claim, loss, liability, damage, cost or expense results from the Indemnified Person’s own gross negligence or willful misconduct. The above indemnification provisions shall survive any termination of this Agreement including any termination under any bankruptcy or similar law or the earlier resignation or removal of Depositary.

(b) The parties hereto hereby agree that no Indemnified Person shall be liable to such parties for any actions taken by any Indemnified Person pursuant to and in compliance with the terms hereof except in respect of any liability or expenses incurred by the Indemnified Person arising from its gross negligence or willful misconduct. Each of the parties to this Agreement (for itself and any Person claiming through it) hereby releases, waives, discharges, exculpates and covenants not to sue any Indemnified Person for any action taken or omitted under this Agreement except to the extent caused by such Indemnified Person’s gross negligence or willful misconduct. Notwithstanding anything in this Agreement to the contrary, in no event shall Depositary be liable to the Company or to any Secured Party for special, indirect or consequential loss or damage of any kind whatsoever (including lost profits) arising out of this Agreement and the transactions contemplated hereby, even if Depositary has been advised of the likelihood of such loss or damage and regardless of the form of action.

(c) Except for actions expressly required hereunder for which indemnification is provided pursuant to Section 4.6.7(a), each Indemnified Person shall be fully justified in refusing to take or continuing to take any action hereunder unless a confirmation was given satisfactory to Depositary that the indemnities theretofore provided to Depositary remain in effect or that a new indemnity substantially similar to the indemnities provided under the Note Purchase Agreement has been provided. Any

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Indemnified Person may consult with legal counsel of its own selection in the event of any dispute or question as to the construction of this Agreement or the Indemnified Person’s duties hereunder, and the Indemnified Person shall incur no liability and shall be fully protected in acting in accordance with the advice, written opinion and instructions of such counsel.

4.6.8 Court Orders. Depositary is hereby authorized to obey and comply with all writs, orders, judgments or decrees issued by any court, regulatory authority or administrative agency affecting any money, documents or things held by Depositary. Depositary shall not be liable to any of the parties hereto, their successors, heirs or personal representatives by reason of Depositary’s compliance with such writs, orders, judgments or decrees, notwithstanding that such writ, order, judgment or decree may later be reversed, modified, set aside or vacated.

4.6.9 Resignation and Termination. (a) Depositary may at any time resign by giving notice to each other party to this Agreement, such resignation to be effective upon the appointment of a successor depositary agent as provided below. Depositary also reserves the right, unilaterally, to terminate this Agreement, such termination to be effective: (i) immediately if Depositary determines (in its sole discretion) that it is (x) obligated to terminate this Agreement or close an Account under statute, rule, regulation, request of a regulatory authority, or any court order or (y) in the event of suspected fraud, bad faith, illegal or suspicious activity in connection with the Accounts. If Depositary exercises its right to unilaterally terminate this Agreement pursuant to this Section 4.6.9, all funds on deposit in the Accounts or credited to the Accounts shall be immediately transferred by Depositary to Collateral Agent. Collateral Agent, at the direction of the Required Holders, may remove Depositary at any time by giving notice to each other party to this Agreement, such removal to be effective upon the appointment of a successor depositary agent as provided below.

(b) In the event of any resignation or removal of Depositary, a successor depositary agent, which shall be a bank or trust company organized under the laws of the United States America, the State of New York or the State of Delaware, having a corporate trust office in the State of New York or the State of Delaware and a capital and surplus of not less than $250,000,000, shall be appointed by the Company after consultation with Collateral Agent. If a successor depositary agent shall not have been appointed and accepted its appointment as depositary agent within 45 days after such notice of resignation of Depositary or such notice of removal of Depositary, Depositary, Collateral Agent or the Company may apply (at the sole cost and expense of the Company) to any court of competent jurisdiction to appoint a successor depositary agent to act until such time, if any, as a successor depositary agent shall have accepted its appointment as provided above. A successor depositary agent so appointed by such court shall immediately and without further act be superseded by any successor depositary agent otherwise appointed as provided above. Any such successor depositary agent shall be capable of acting as a “securities intermediary” (within the meaning of Section 8-102(14) of the UCC) and shall deliver to each party to this Agreement a written instrument accepting such appointment and thereupon such successor depositary agent shall succeed to all the rights and duties of Depositary under this Agreement and shall be entitled to receive the Accounts from the predecessor Depositary.

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(c) Upon the replacement of Depositary hereunder, all investments and other amounts held by it or credited to Accounts pursuant to this Agreement shall be transferred to such successor depositary agent. In the event of the resignation or termination of the Depositary, the Depositary shall be entitled to its fees and expenses in accordance with the terms hereof up to the time such resignation or termination becomes effective in accordance with this Section 4.6.9.

4.6.10 Directions and Instructions to the Depositary. Except for the obligations of Depositary expressly required to be performed by it hereunder, Depositary shall not be required to take or omit to take any action, or to give any consent, hereunder unless it shall have been directed to do so by Collateral Agent. All directions or instructions required or permitted to be given by any party to another party hereunder, including any Account Withdrawal Instruction, shall be given in writing and shall be effective only if given in writing. All such directions and instructions given by the Company and Collateral Agent to Depositary pursuant to this Agreement shall be executed by an authorized signatory (each, an “Authorized Signatory”) of the Company or Collateral Agent, as applicable. No person shall be deemed to be an Authorized Signatory of the Company or Collateral Agent unless such person is named on a certificate of incumbency delivered to Depositary on the date hereof or is otherwise named in a notice signed by an Authorized Signatory and delivered by the Company or Collateral Agent, as applicable, to Depositary at any time subsequent to the date hereof in all cases in form reasonably satisfactory to Depositary.

4.6.11 Individual Capacity. Deutsche Bank Trust Company Americas may engage or be interested in any financial or other transactions with any party to this Agreement and may act on, or as depositary, trustee or agent for, any committee or body of holders of obligations of such Persons as freely as if it were not Depositary hereunder.

4.6.12 Duties. Depositary shall act as a depositary agent and securities intermediary only and shall not be responsible or liable in any manner for soliciting any funds or for the sufficiency, correctness, genuineness or validity of any funds or securities deposited with or held by it, except in the case of its gross negligence, willful misconduct or bad faith. In the event of any dispute as to the construction or interpretation of any provision of this Agreement, Depositary shall be entitled to consult with and obtain advice from legal counsel of its own selection in its sole discretion.

4.6.13 Succession. Any entity into which Depositary may be merged or converted or with which it may be consolidated, or any entity resulting from any merger, conversion or consolidation to which Depositary shall be a party, or any entity succeeding to all or substantially all of the corporate trust business of Depositary shall be the successor of Depositary hereunder without the execution or filing of any paper with any party hereto or any further act on the part of any of the parties hereto except where an instrument of transfer or assignment is required by law to effect such succession, anything herein to the contrary notwithstanding.

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4.7 Remedies. If an Event of Default shall have occurred and be continuing:

(a) Collateral Agent may exercise in respect of the Accounts, in addition to other rights and remedies provided for herein or otherwise available to it, all the rights and remedies of a secured party under the UCC at that time, including the right to proceed to protect and enforce the rights vested in it by this Agreement, to sell, liquidate or otherwise dispose of any or all of the Accounts, and to cause the Accounts to be sold, liquidated or otherwise disposed of, in each case in such manner as Collateral Agent may elect; and

(b) the proceeds of any financial assets credited to or held in any Account and all cash proceeds received by Collateral Agent in respect of any sale of, collection from or other realization upon all or any part of the Accounts may, then or at any time thereafter, be applied (after payment of any amounts payable to the Depositary pursuant to the terms hereof) in whole or in part by Collateral Agent against all or any part of the Company’s obligations under the Note Purchase Agreement and the other NPA Documents.

Any surplus of such amounts or proceeds remaining after payment in full of all the Obligations under the Note Purchase Agreement and the other Credit Documents shall be applied as directed by the Company. No right, power or remedy herein conferred upon or reserved to Collateral Agent or the other Secured Parties is intended to be exclusive of any other right, power or remedy and every such right, power and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right, power and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder or otherwise shall not prevent the concurrent assertion or employment of any other appropriate right or remedy. Resort to any or all security now or hereafter held by Collateral Agent or the other Secured Parties may be taken concurrently or successively and in one or several consolidated or independent judicial actions or lawfully taken non-judicial proceedings, or both.

4.8 Costs, Expenses and Attorneys’ Fees. The Company shall pay to Depositary all reasonable costs and expenses (including reasonable attorneys’ fees and expenses) incurred by Depositary in connection with (a) any suit or proceeding related to or arising out of this Agreement or the transactions contemplated hereby, (b) the performance by Depositary of any of its agreements or obligations contained herein, (c) any exercise by Depositary of its rights or remedies hereunder or (d) the purchase by Depositary of Permitted Investments as contemplated by Section 2.2 (except in each case, arising out of and to the extent of any breach of Section 4.6.5 by or the gross negligence or willful misconduct of Depositary). The Company shall pay the reasonable costs and expenses of Depositary’s external legal counsel in connection with its review of this Agreement on behalf of Depositary or in connection with Depositary’s performance hereunder.

4.9 Additional Rights of Collateral Agent and Depositary. The following rights stated in this Section 4.9 are in furtherance, and not in limitation, but without duplication, of any other rights of Collateral Agent and Depositary set forth elsewhere in this Agreement.

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4.9.1 Actions. Each of Collateral Agent and Depositary may execute any of the trusts or powers, or perform any duties, under this Agreement either directly or through agents, sub-agents or attorneys or a custodian or nominee and neither Collateral Agent nor Depositary shall be responsible for any misconduct or negligence on the part of, or for the supervision of, any such agent, sub-agent, attorney, custodian or nominee appointed with reasonable care by it hereunder. Neither Collateral Agent nor Depositary shall be required to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or in the exercise of any of its rights or powers, if there is reasonable ground for believing that the repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured it; and neither Collateral Agent nor Depositary shall be obligated to take any action which in either party’s reasonable judgment would involve it in expense or liability unless it has been furnished with an indemnity reasonably satisfactory to it. Neither Collateral Agent nor Depositary shall be liable for any error of judgment or for any act done or step taken or omitted by it in good faith or for any mistake of fact or law or for anything which Collateral Agent or Depositary may do or refrain from doing in connection herewith, except in the case of its own gross negligence or willful misconduct. Depositary shall have duties only as expressly set forth herein and the duties under the UCC of a bank or a securities intermediary, as applicable. Neither Collateral Agent nor Depositary shall have any liability for losses with respect to Permitted Investments authorized by this Agreement. Nothing herein contained shall be deemed to obligate Depositary to deliver any cash, instruments, documents or any other property referred to herein, unless the same shall have first been received by Depositary pursuant to this Agreement. Depositary shall be under no liability to any party hereto by reason of any failure on the part of any other party hereto or any maker, guarantor, endorser or other signatory of any document or any other person to perform such person’s obligations under any such document. Depositary will incur no liability if, by reason of any provision of any present or future law or regulation thereunder, or by any force majeure event, including natural disaster, act of terrorism, war or other circumstances beyond its reasonable control, Depositary will be prevented or forbidden from doing or performing any act or thing which the terms of this Agreement provide will or may be done or performed.

4.9.2 No Responsibility for Statements, Etc. To the fullest extent permitted by law, neither Collateral Agent nor Depositary nor any of their respective officers, directors, employees, agents, attorneys-in-fact or affiliates shall be responsible in any manner to any of the other Secured Parties for any recitals, statements, representations or warranties made by the Company or any representative thereof or any other Person contained in any other document or in any certificate, report, statement or other document referred to or provided for in, or received by Depositary under or in connection with, any such document or for the value, validity, effectiveness, genuineness, enforceability or sufficiency of the Collateral, any document or for any failure of the Company to perform its obligations thereunder. Neither Collateral Agent nor Depositary shall be under any obligation to ascertain or to inquire as to the observance or performance of any of the agreements contained in, or conditions of, any other agreement or to inspect the properties, books or records of the Company. Depositary shall not be charged with knowledge of any provision of the Note Purchase Agreement.

4.9.3 Collateral. Except as expressly provided hereunder, nothing in this Agreement shall be interpreted as giving Collateral Agent or Depositary responsibility for or any duty concerning the validity, perfection, priority or enforceability of any Lien on any Collateral, or giving Collateral Agent or Depositary any obligation to take any action to procure or maintain such validity, perfection, priority or enforceability.

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4.10 Non-Business Days. If Depositary shall be required under this Agreement or pursuant to any directions given by the Company or Collateral Agent to make any withdrawal, disbursement, transfer or payment on a day other than a Business Day, Depositary shall make such withdrawal, disbursement, transfer or payment on the next succeeding Business Day.

ARTICLE 5.

TERMINATION OF AGREEMENT

The rights and powers granted herein to Collateral Agent have been granted in order, among other things, to perfect Collateral Agent’s security interests in the Accounts, are powers coupled with an interest, and will neither be affected by the bankruptcy of the Company or any other Person nor by the lapse of time. Except as otherwise provided herein, the obligations of Depositary hereunder shall continue in effect until the security interests of Collateral Agent in the Accounts have been terminated, and Collateral Agent has notified Depositary of such termination. Failure of Collateral Agent to so notify Depositary shall not affect the rights of the Company hereunder. When the Obligations under the NPA Documents, other than those Obligations which expressly survive the termination of the applicable agreements, of the Company to the Secured Parties have been indefeasibly satisfied in full, all right, title and interest of Collateral Agent in the Accounts shall revert to the Company. At such time, (i) Collateral Agent shall notify Depositary to, and upon such notification Depositary shall, pay any amounts (including Permitted Investments) then remaining in any of the Accounts, minus any amounts due and owing Depositary hereunder, to an account designated by the Company to Depositary, (ii) the Company shall notify all Persons who are expected to make payments to it to remit such payments to the order of the Company and not to the Accounts, and (iii) the Accounts shall be closed. If any funds are received by Collateral Agent or Depositary for deposit in any Account after such Account is closed in accordance with the preceding sentence or the relevant provisions of Article 3, Collateral Agent shall promptly remit or instruct Depositary to remit such funds to (or at the direction of) the Company, in the form received, with any necessary endorsements. No termination of any Secured Party’s interest hereunder shall affect the rights of any other Secured Party hereunder or under any other Credit Document.

ARTICLE 6.

MISCELLANEOUS

6.1 Notices. Each notice, instruction, entitlement order, request or other document delivered hereunder shall be in writing. Each Account Withdrawal Instruction shall be delivered by First Class mail (postage prepaid), in person, or by facsimile to Depositary at the office or to the facsimile number specified in this Section or hereafter provided in writing. For purposes of this Section 6.1, any Account Withdrawal Instruction delivered by email shall be effective only if such Account Withdrawal Instruction is contained in an email transmittal as an executed instrument, in portable document format (.pdf) or otherwise. Any communications between the parties hereto or notices provided herein to be given shall be given to the following addresses:

If to Depositary:	Deutsche Bank Trust Company Americas
	60 Wall Street
	MSNYC 60-1630
	New York, NY 10005
	Attn: [***]
	Facsimile: [***]

[***] Confidential Treatment Requested

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If to Collateral Agent:	Deutsche Bank Trust Company Americas
	60 Wall Street
	MSNYC 60-1630
	New York, NY 10005
	Attn: [***]
	Facsimile: [***]
If to the Company:	2014 ESA Project Company, LLC
	1252 Orleans Drive
	Sunnyvale, CA 94089
	Attn: [***]
	Telephone: [***]
	Facsimile: [***]
	E-mail: [***]
If to any Holder:	As provided in the Note Purchase Agreement

Any notice or other communication herein required or permitted to be given shall be in writing, and shall be deemed effective only if given in writing, and shall be considered as properly given (a) if delivered in person, (b) if sent by overnight courier service (including Federal Express, UPS, ETA, and other similar overnight delivery services), (c) if mailed by first class United States Mail, postage prepaid, registered or certified with return receipt requested, (d) if sent by facsimile, with the original sent by other means set forth in this Section 6.1, or (e) other electronic means (including email and Internet or intranet websites) pursuant to procedures approved by Collateral Agent; provided, that the foregoing clause (e) shall not apply to notices if the party to receive the notice has notified Collateral Agent that it is incapable of receiving notices by electronic communication or if no email address is given above or later provided as an approved method of receiving notice for any party. Notices delivered in person or overnight courier service, or mailed by registered or certified mail, shall be deemed to have been given when received; notices sent by facsimile shall be deemed to have been given upon the sender’s receipt of an acknowledgement from the intended recipient (such as by return facsimile, email or other written acknowledgement). With respect to electronic communications, (i) notices and other communications sent to an email address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return email or other written acknowledgement); provided, that if such notice or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient, and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its email address as described in the foregoing clause (i) of notification that such notice or communication is available and identifying the website address therefor.

[***] Confidential Treatment Requested

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For the purposes hereof, the address of each party hereto shall be the address specified in this Section, provided, that any party shall have the right to change its address for notice hereunder to any other location within the continental United States by giving of 30 days’ notice to the other parties in the manner set forth above.

6.2 Benefit of Agreement. Nothing in this Agreement, expressed or implied, shall give or be construed to give to any Person other than the parties hereto and the Secured Parties any legal or equitable right, remedy or claim under this Agreement, or under any covenants and provisions of this Agreement, each such covenant and provision being for the sole benefit of the parties hereto and the Secured Parties.

6.3 Delay and Waiver. No failure or delay by Collateral Agent or Depositary in exercising any right or power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power, preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of Collateral Agent hereunder are cumulative and are not exclusive of any rights or remedies that it would otherwise have. No waiver of any provision of this Agreement or consent to any departure by the Company therefrom shall in any event be effective unless the same shall be permitted by Section 6.4, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given.

6.4 Amendments. No provision of this Agreement may be waived, amended, supplemented or otherwise modified, except by a written instrument signed by each of the parties hereto.

6.5 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED UNDER, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO CONFLICTS OF LAW (OTHER THAN SECTION 5-1401 AND SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW), EXCEPT AS REQUIRED BY MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE LIEN AND SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR ACCOUNT ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK. REGARDLESS OF ANY PROVISION IN ANY OTHER AGREEMENT, FOR PURPOSES OF THE UCC, THE “SECURITIES INTERMEDIARY’S JURISDICTION” OF DEPOSITARY WITH RESPECT TO THE ACCOUNTS IS THE STATE OF NEW YORK.

6.6 Consent to Jurisdiction. Collateral Agent, Depositary and the Company agree that any legal action or proceeding by or against the Company or with respect to or arising out of this Agreement may be brought in or removed to the courts of the State of New York, in and for the County of New York, or of the United States of America for the Southern District of New York in the Borough of Manhattan, as each of them respectively may elect. By execution and delivery of this Agreement, Collateral Agent, Depositary and the Company accept, for themselves and in respect of their property, generally and unconditionally, the non-exclusive jurisdiction of the aforesaid courts. Collateral Agent, Depositary and the Company irrevocably consent to the service of process out of any of the aforementioned courts in any manner permitted by law. Nothing herein shall affect the right of Collateral Agent or Depositary to bring legal action or proceedings in any other competent jurisdiction. Collateral Agent, Depositary and the Company hereby waive any right to stay or dismiss any action or proceeding under or in connection with this Agreement brought before the foregoing courts on the basis of forum non-conveniens.

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6.7 WAIVER OF JURY TRIAL. THE COMPANY, DEPOSITARY AND COLLATERAL AGENT HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN), OR ACTIONS OF THE COMPANY, DEPOSITARY OR COLLATERAL AGENT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR EACH PARTY TO ENTER INTO THIS AGREEMENT.

The scope of this waiver is intended to be all-encompassing of any and all disputes that may be filed in any court and that relate to the subject matter of this transaction, including contract claims, tort claims, breach of duty claims and all other common law and statutory claims. Each party hereto acknowledges that (i) this waiver is a material inducement to enter into a business relationship, (ii) it has already relied on this waiver in entering into this Agreement, and (iii) it will continue to rely on this waiver in their related future dealings. Each party hereto further warrants and represents that it has reviewed this waiver with its legal counsel and that it knowingly and voluntarily waives its jury trial rights following consultation with legal counsel. In the event of litigation, this Agreement may be filed as a written consent to a trial by the court. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 6.7 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT.

6.8 Severability. Any provision of this Agreement that is invalid, illegal, prohibited or unenforceable in any respect in any jurisdiction, shall as to such jurisdiction be ineffective to the extent of such invalidity, illegality, prohibition or unenforceability without affecting, invalidating or impairing the validity, legality and enforceability of the remaining provisions hereof; and any such invalidity, illegality, prohibition or unenforceability in any jurisdiction shall not affect, invalidate or impair such provision in any other jurisdiction.

6.9 Headings. Article and Section headings have been inserted in this Agreement as a matter of convenience for reference only and it is agreed that such Article and Section headings are not a part of this Agreement and shall not be used in the interpretation of any provision of this Agreement.

6.10 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns, provided that (a) the Company may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of Collateral Agent, and (b) Depositary may only assign or otherwise transfer any of its rights or obligations hereunder in accordance with the terms of this Agreement (including Section 4.6).

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6.11 Entire Agreement. This Agreement and any agreement, document or instrument attached hereto or referred to herein among the parties hereto integrate all the terms and conditions mentioned herein or incidental hereto and supersede all oral negotiations and prior writings in respect of the subject matter hereof. In the event of any conflict between the terms, conditions and provisions of this Agreement and any such agreement, document or instrument, the terms, conditions and provisions of this Agreement shall prevail; provided, however, that Depositary shall not be charged with knowledge of any agreement to which it is not a party.

6.12 Survival of Agreements. All covenants, agreements, representations and warranties made by the Company herein and in the certificates or other instruments delivered in connection with or pursuant to this Agreement shall be considered to have been relied upon by the other parties hereto and shall survive the execution and delivery of this Agreement, and shall continue in full force and effect so long as this Agreement has not been terminated in accordance with the terms hereof. The provisions regarding the payment of expenses and indemnification obligations, including Section 4.6.7, shall survive and remain in full force and effect regardless of the consummation of the transactions contemplated hereby, the termination of this Agreement or any provision hereof or the resignation or removal of Depositary.

6.13 Counterparts. This Agreement and any amendments, waivers, consents or supplements hereto or in connection herewith may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute one and the same instrument. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document.

6.14 Patriot Act. The parties hereto acknowledge that in order to help the United States government fight the funding of terrorism and money laundering activities, pursuant to Federal regulations that became effective on October 1, 2003 (Section 326 of the USA PATRIOT Act) all financial institutions are required to obtain, verify, record and update information that identifies each person establishing a relationship or opening an account. The parties to this Agreement agree that they will provide to Collateral Agent/Depositary such information as it may request, from time to time, in order for Collateral Agent/Depositary to satisfy the requirements of the USA PATRIOT Act, including but not limited to the name, address, tax identification number and other information that will allow it to identify the individual or entity who is establishing the relationship or opening the account and may also ask for formation documents such as articles of incorporation or other identifying documents to be provided.

[SIGNATURE PAGES FOLLOW]

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IN WITNESS WHEREOF, the parties hereto, by their officers duly authorized, intending to be legally bound, have caused this Depositary Agreement to be duly executed and delivered as of the date first above written.

2014 ESA PROJECT COMPANY, LLC, a Delaware limited liability company as the Company
By:	/s/ William E. Brockenborough
Name:	William E. Brockenborough
Title:	Vice President

[Signature Page to the Depositary Agreement]

DEUTSCHE BANK TRUST COMPANY AMERICAS, as Collateral Agent
By: DEUTSCHE BANK NATIONAL TRUST COMPANY
By:	/s/ Wanda Camacho
Name:	Wanda Camacho
Title:	Vice President
By:	/s/ Linda Reale
Name:	Linda Reale
Title:	Vice President
DEUTSCHE BANK TRUST COMPANY AMERICAS, as the Depositary
By: DEUTSCHE BANK NATIONAL TRUST COMPANY
By:	/s/ Wanda Camacho
Name:	Wanda Camacho
Title:	Vice President
By:	/s/ Linda Reale
Name:	Linda Reale
Title:	Vice President

[Signature Page to the Depositary Agreement]

EXHIBIT A

to Depositary Agreement

FORM OF ACCOUNT WITHDRAWAL INSTRUCTION

Date: [            ], 201    

Deutsche Bank Trust Company Americas, as Depositary Agent

60 Wall Street

MSNYC 60-1630

New York, NY 10005

Attn: [***]

Facsimile: [***]

Re: 2014 ESA Project Company, LLC – Account Withdrawal Instruction

Ladies and Gentlemen:

This Account Withdrawal Instruction is delivered pursuant to the Depositary Agreement, dated as of July 18, 2014 (the “Depositary Agreement”), by and among 2014 ESA Project Company, LLC, a Delaware limited liability company (“Company”), DEUTSCHE BANK TRUST COMPANY AMERICAS, as depositary agent, bank and securities intermediary (in such capacity, “Depositary”), and DEUTSCHE BANK TRUST COMPANY AMERICAS, as Collateral Agent (in such capacity, “Collateral Agent”). Unless otherwise defined herein or unless the context otherwise requires, terms used in this Account Withdrawal Instruction have the meanings provided in the Depositary Agreement.

In this Account Withdrawal Instruction, Depositary is hereby directed to withdraw funds from the following Accounts and apply such funds as provided herein:

Account from which to
withdraw/transfer Withdrawal/Transfer Date Amount to be
withdrawn/transferred Account/Person to be
Transferred to,
including address or
wire transfer
information, as
applicable Purpose

[***] Confidential Treatment Requested

IN WITNESS WHEREOF, this Account Withdrawal Instruction is duly executed and delivered by a duly authorized representative of Collateral Agent as of the date first above written.

2014 ESA PROJECT COMPANY, LLC, a
Delaware limited liability company as the Company
By:
	Name:
	Title:
ACKNOWLEDGED BY:
DEUTSCHE BANK TRUST COMPANY
AMERICAS, as the Collateral Agent
By: DEUTSCHE BANK NATIONAL TRUST
COMPANY
By:
	Name:
	Title:
By:
	Name:
	Title:

2

EXHIBIT B

to Depositary Agreement

FORM OF ACCOUNT WITHDRAWAL REQUEST

Date:             ,             

DEUTSCHE BANK TRUST COMPANY AMERICAS,

    as Collateral Agent

60 Wall Street

MSNYC 60-1630

New York, NY 10005

Attn: [***]

Facsimile: [***]

[name and address information of each Holder to be inserted]

Re: 2014 ESA Project Company, LLC – Account Withdrawal Request

Ladies and Gentlemen:

I,             , am a Responsible Officer of 2014 ESA Project Company, LLC, a Delaware limited liability company (“Company”), and am delivering this Account Withdrawal Request pursuant to that certain Depositary Agreement, dated as of Deutsche Bank Trust Company Americas, 2014 (as amended, supplemented or otherwise modified from time to time, the “Depositary Agreement”), among Company, you, as Collateral Agent, and Deutsche Bank Trust Company Americas, as Depositary. Unless otherwise defined herein or unless the context otherwise requires, capitalized terms used in this Account Withdrawal Request have the meanings provided in the Depositary Agreement and section references are references to sections of the Depositary Agreement.

In this Account Withdrawal Request, Company requests Collateral Agent to direct Depositary to withdraw funds from the following Accounts and apply such funds as provided herein:

Account from which to
withdraw/transfer Withdrawal/Transfer Date Amount to be
withdrawn/transferred Account/Person to be
Transferred to,
including address or
wire transfer
information, as
applicable Purpose

[***] Confidential Treatment Requested

I have reviewed the provisions of the Depositary Agreement which are relevant to the furnishing of this Account Withdrawal Request and hereby certify, on behalf of Company, in my capacity as [            ] thereof, and not in my individual capacity, that:

(i) the withdrawals and transfers requested herein comply with the terms and conditions of the Depositary Agreement [and the [list items] to be delivered pursuant thereto in connection with this Account Withdrawal Request are attached hereto as [list exhibits and attach]];

(ii) to the extent that this Account Withdrawal Request evidences, attests or requires compliance with any covenants, representations, warranties or conditions precedent in the Depositary Agreement or in any other Credit Document, I have made such examination or investigation as was reasonably necessary to confirm that such covenants, representations, warranties or conditions have been complied with; and

(iii) no Default or Event of Default has occurred and is continuing.

[Signature page follows]

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IN WITNESS WHEREOF, I, the [            ] of Company, have caused this Account Withdrawal Request to be duly executed and delivered as of the date first above written.

2014 ESA PROJECT COMPANY, LLC,
a Delaware limited liability company
By:
	Name:
	Title:

3

[EXHIBITS, IF APPLICABLE]

4

EXHIBIT C

to Depositary Agreement

NOTE PURCHASE AGREEMENT

[See attached]

EXHIBIT D

to Depositary Agreement

FUNDS FLOW MEMORANDUM

[See attached]

2014 ESA Project Company, LLC

Funds Flow Memorandum to Depositary

On the Closing Date, certain wire transfers will be made from the Purchasers to the Revenue Account (i.e., the 2014 ESA Project Company, LLC – Revenue A/C, FFC AC: PORT [***] ; Account#: [***] ) in the aggregate amount of $99,000,000 (the “Funding Proceeds”) and are to be disbursed from such account in accordance with the wire instructions attached hereto as Exhibit A.

Also, on the Closing Date, an additional $750,000 will be wire transferred from Bloom Energy Corporation (on behalf of Clean Technologies 2014, LLC (“Managing Member”) and 2014 ESA HoldCo, LLC (“Pledgor), and in satisfaction of (i) Managing Member’s obligations under Section 2.2(a) of that certain Equity Capital Contribution Agreement by and between Managing Member and Exelon Generation Company, LLC, dated as of the Closing Date (the “ECCA”) and (ii) Pledgor’s obligations under Section 2.4(b) of the ECCA) to the Revenue Account, which $750,000 shall remain in the Revenue Account to be disbursed pursuant to the Depositary Agreement and not be transferred to the Proceeds Escrow Account.

(remainder of page intentionally left blank)

[***] Confidential Treatment Requested

IN WITNESS WHEREOF, the undersigned has executed this Funds Flow Memorandum to Depositary to be effective as of the ClosingDate.

2014 ESA PROJECT COMPANY,

LLC

By:

Name: William E. Brockenborough

Title: Vice President

[Signature Page to Funds Flow Memorandum]

EXHIBIT A

Immediately upon receipt of the Funding Proceeds in the account identified above, the Depositary (i.e., Deutsche Bank Trust Company Americas) shall cause the Funding Proceeds to be transferred as follows:

First, [***] to the Debt Service Reserve Account as follows:

Deutsche Bank Trust Company Americas

60 Wall Street, MS NYC60-1630

New York, NY 10005

ABA #: [***]

Account #: [***]

Beneficiary Name: [***]

FFC AC: PORT [***] Attention: Heather Agagnina-2014 ESA Project Company, LLC – Debt Service Reserve A/C

Second, [***] to the IDC Reserve Account as follows:

Deutsche Bank Trust Company Americas

60 Wall Street, MS NYC60-1630

New York, NY 10005 ABA #: [***] Account #: [***]

Beneficiary Name: [***] [***]

FFC AC: PORT [***]

Attention: [***]

Third, to pay the following fees and costs on behalf of the Project Company:

a.	Fitch Ratings, Inc.:	[***]
	JP Morgan Chase
	New York, NY
	ABA #: [***]
b.	Account #: [***]
c.	Invoice #: [***]
d.	JP Morgan (Financing fee):	[***]
	JPMorgan Chase Bank
	ABA #: [***] J.P. Morgan
	Securities LLC Account #:
	[***] Account Title: [***]
	Attn: [***] Invoice #: [***]

[***] Confidential Treatment Requested

c.	Deutsche Bank (Depositary): Deutsche Bank	[***]
	Trust Company Americas Beneficiary Name:
	Trust and Securities Services ABA [***]
	Account #: [***] FFC AC: PORT [***]
	Attn: [***]
d.	Latham & Watkins (Lenders’ Counsel):	[***]
	Citibank N.A.
	One Penn’s Way
	New Castle, DE 19720
	ABA #: [***]
	Account #: [***]
	Account Name: [***]
	Ref: [***]
e.	O’Melveny & Myers (Sponsor’s Counsel):	[***]
	Citibank, N.A., NY
	ABA #: [***]
	Account Name: [***]
	Account #: [***]
	Matter: [***]
f.	Leidos Engineering , LLC (Independent Engineer):	[***]
	Citibank, N.A., NY
	ABA #: [***]
	Account #: [***]
	Invoice [***]
g.	National Corporate Research (Title Search):	[***]
	Capital One Bank
	1001 Avenue of the Americas
	New York, NY 10018
	Telephone: [***]
	ABA #: [***]
	Account #: [***]
	Invoice #: [***]
	Beneficiary: [***]
	[***]
	[***]
h.	Moore-McNeil (Insurance Consultant):	[***]
	Bank of America - San Diego Commercial Banking #1450

[***] Confidential Treatment Requested

	San Diego, CA 92101
	ABA #: [***]
	Account Name: [***]
	Account #: [***]
	Invoice #: [***]
i.	Woodruff Sawyer and Company (Project Insurance):	[***]
	Union Bank of California 400 California Street San
	Francisco, CA 94104 ABA #: [***]
	Account Name: [***]
	Account #: [***]
	Ref: [***] Attention: [***]
j.	Thompson Hine LLP (Depositary Counsel):	[***]
	Key Bank
	Swift Code: [***]
	ABA #: [***]
	Account #: [***]
	Invoice #: [***]
	Ref: [***]

and, Fourth, [***] to the Proceeds Escrow Account as follows:

Deutsche Bank Trust Company Americas

60 Wall Street, MS NYC60-1630 New

York, NY 10005

ABA #: [***]

Account #: [***] Beneficiary Name:

[***]

FFC AC: [***]

Attention: [***]

[***] Confidential Treatment Requested

EX-10

Exhibit 10.77

Execution Version

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

ADMINISTRATIVE SERVICESAGREEMENT

by and between

BLOOM ENERGYCORPORATION,

and

2015 ESA HOLDCO, LLC

Dated as of June 25, 2015

ADMINISTRATIVE SERVICES AGREEMENT

THIS ADMINISTRATIVE SERVICES AGREEMENT (the “Agreement”) is made as of June 25, 2015 (the “Effective Date”), by and among 2015 ESA HOLDCO, LLC, a Delaware limited liability company (the “Company”) and BLOOM ENERGY CORPORATION, a Delaware corporation (the “Administrator”). The Company and the Administrator are sometimes referred to herein individually as a “Party” and collectively as the “Parties”

PRELIMINARY STATEMENTS

A. The Company owns 100% of the issued and outstanding membership interests in 2015 ESA Projectco, LLC (the “Project Company”).

B. Through its ownership of the Project Company, the Company will own an indirect 100% interest in the Portfolio (as defined below).

C. Clean Technologies 2015, LLC, a Delaware limited liability company (“Clean Technologies”), and 2015 ESA Investco, LLC, (the “Investor”), will enter into that certain Amended and Restated Limited Liability Company Agreement of 2015 ESA HoldCo, LLC (the “Company LLC Agreement”).

D. The Members of the Company have agreed in the Company LLC Agreement to delegate day-to-day management of the Company to the Administrator, in conjunction with the services to be provided by Bloom Energy Corporation under the PUMA.

E. The Company, as sole member of the Project Company, has also agreed in the Project Company LLC Agreement to cause the Project Company to delegate day-to-day management of the Project Company to the Administrator.

NOW, THEREFORE, in consideration of the mutual covenants and agreements herein, the Parties, intending to be legally bound, agree as follows:

ARTICLE I

DEFINITIONS AND USAGE

Section 1.01 Definitions. Unless the context requires otherwise or this Agreement expressly provides otherwise, capitalized terms used in this Agreement have the following meanings and capitalized terms not defined in this Agreement have the meanings given to such terms in the Company LLC Agreement:

“Administration Fee” is defined in Section 4.01(a).

“Administrator” is defined in the Preamble.

“Affiliate” is defined in the PUMA.

“Agreement” is defined in the Preamble.

“Applicable Law” means any treaty, constitution, law, statute, ordinance, rule, order, decree, regulation or other directive which is legally binding and has been enacted, issued or promulgated by any Governmental Authority.

“Bloom System” or “Bloom Systems” is defined in the PUMA.

“BOF” is defined in the PUMA.

“Business Day” is defined in the PUMA.

“Calendar Year” means the calendar year beginning January 1 and ending on December 31, and in the case of the initial Calendar Year, the period beginning on the Effective Date and ending on December 31, 2015.

“Certified Public Accountant” means, at any time, the Certified Public Accountant appointed by the Company pursuant to the Company LLC Agreement.

“Clean Technologies” is defined in the Preliminary Statements.

“Code” means the Internal Revenue Code of 1986, as amended.

“Commencement of Operations” is defined in the PUMA.

“Company” is defined in the Preamble.

“Company LLC Agreement” is defined in the Preliminary Statements.

“Confidential Information” is defined in Section 11.08.

“Credit Agreement” means that certain Credit Agreement, dated as of June 25, 2015, by and among the Project Company and each Lender party thereto.

“Documentation” means all written invoices, receipts, billing statements, payment notices, wire receipt and payment notifications, bank statements and other similar written evidence of (i) amounts payable by the Company to any Person and (ii) amounts received or receivable by the Company from any Person.

“ECCA” means the Equity Capital Contribution Agreement with respect to the Company, dated as of June 25, 2015, by and between Clean Technologies and the Investor.

“Effective Date” is defined in the Preamble.

“Emergency Expenditure” is defined in Section 4.01(b).

“Environmental Laws” means all Applicable Laws pertaining to Hazardous Substances, the environment, human health, safety and natural resources to the extent applicable with respect to the property or operation to which application of the term “Environmental Laws” relates.

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“Event of Default” is defined in Section 8.01.

“Excluded Expenses” is defined in Section 4.01(b).

“Exelon” is defined in the Preliminary Statements.

“Facility” is defined in the PUMA.

“Financing Documents” means the Credit Agreement, depositary agreement, security agreement, pledge agreement, interparty agreement, and any promissory note or interest rate hedge agreement, and any other material agreement entered into in connection therewith, including without limitation any “Financing Document” as defined in the Credit Agreement.

“Governmental Authority” means any national, provincial, regional, municipal or local authority, body, agency, ministry, court, judicial or administrative body, taxing authority, regulatory authority or other governmental organization having jurisdiction or effective control over any of the Parties or any Facility.

“Hazardous Substances” means any hazardous or toxic material, substance or waste, pollutant, contaminant or solid waste as defined under applicable Environmental Laws, including petroleum, petroleum products, asbestos, polychlorinated biphenyls and radioactive materials.

“Interconnection Agreement” is defined in the PUMA.

“Investment Documents” is defined in the ECCA.

“Investor” is defined in the Preliminary Statements.

“kW” means kilowatt.

“Legal Requirement” is defined in the PUMA.

“Lender” means the lender parties to the Credit Agreement and any trustee or agent acting on behalf of such lender parties.

“Losses” is defined in Section 9.01(a).

“Nonreimbursable Services” shall consist of the following services to be provided with respect to the Company: (a) supervision and monitoring of the Service Providers and Seller, (b) bookkeeping and record keeping, (c) preparing a draft operating budget for the Project Company for consideration and approval by the Managing Member, (d) reporting to and communication with the Managing Member regarding matters subject to the supervision of the Administrator under this Agreement, (e) preparation and submittal of (i) Documentation, and, in the case of an Emergency Expenditure, oral notification, necessary in order to remit funds of the Company for payment of the Company’s expenses and (ii) other Documentation necessary to perform the obligations hereunder, (f) depositing funds into the accounts maintained on behalf of the Company pursuant to Section 2.01(s) hereof, (g) payment of the Company’s expenses, (h) the

3

making of distributions from Available Cash Flow in accordance with the provisions hereof and the Company LLC Agreement, (i) preparation and submittal of capital contribution draw requests for the Company, as contemplated by the Company LLC Agreement, (j) audit and tax-related services, and (k) performing all other administrative tasks, as required under the Financing Documents and under the Investment Documents.

“Operator” means the operation and maintenance contractor for the Facilities, which at the date of this Agreement is the “Seller” as defined in the PUMA.

“Permits” means all Governmental Approvals that are necessary under applicable Legal Requirements or this Agreement to have been obtained at such time to test, operate, maintain, repair, lease, own or use the Portfolio as contemplated in this Agreement to sell electricity from the Portfolio or for a Party to enter into this Agreement or to consummate any transaction contemplated hereby, in each case in accordance with all applicable Legal Requirements.

“Party” and “Parties” have the meanings set forth in the Preamble.

“Person” is defined in the PUMA.

“Policy” is defined in the PUMA.

“Portfolio” is defined in the PUMA.

“PPA” is defined in the PUMA

“PPA Customer” is defined in the PUMA.

“Principal Facility Documents” is defined in the ECCA.

“Project Company” is defined in the Recitals.

“Project Company LLC Agreement” means the limited liability company agreement of the Project Company, dated as of June 25, 2015, as such agreement may be amended, supplemented, or replaced from time to time.

“Prudent Administrative Practices” means performing the Services with the degree of professional skill, care and diligence as that expected of a competent professional manager experienced in carrying out services of the same or similar size, scope and nature of the Services and to the extent required, those practices, methods, specifications and standards of safety and performance, as the same may change from time to time, as are commonly used by a significant portion of the grid-tied fuel cell electrical generation industry operating in the United States as good, safe and prudent practices in connection with the administration of electrical and other equipment, facilities and improvements of such electrical generating facility and the other services contemplated herein, including any applicable practices, methods, acts, guidelines, standards and criteria of the Federal Energy Regulatory Commission and all applicable Legal Requirements.

4

“PUMA” means the Amended and Restated Purchase, Use and Maintenance Agreement between the Project Company and the Seller, dated as of June 25, 2015, as such agreement may be amended, supplemented, or replaced from time to time.

“Representative” is defined in the PUMA.

“Seller” means Bloom Energy Corporation, in its capacity as seller under the PUMA.

“Service Provider” means each third party hired by the Company to perform fiscal, administrative or other services for the Company.

“Services” means the responsibilities of the Administrator under Article II. “Site” is defined in the PUMA.

“System Capacity” is defined in the PUMA.

“Term” is defined in Section 7.01.

“Transmitting Utility” is defined in the PUMA.

“Warranty Period” is defined in the PUMA.

Section 1.02 Other Definitional Provisions.

(a) As used in this Agreement and in any certificate or other documents made or delivered pursuant hereto or thereto, financial and accounting terms not defined in this Agreement or in any such certificate or other document, and financial and accounting terms partly defined in this Agreement or in any such certificate or other document to the extent not defined, will have the respective meanings given to them under GAAP. To the extent that the definitions of financial and accounting terms in this Agreement or in any such certificate or other document are inconsistent with the meanings of such terms under GAAP, the definitions contained in this Agreement or in any such certificate or other document will control.

(b) The words “hereof”, “herein”, “hereunder”, and words of similar import when used in this Agreement will refer to this Agreement as a whole and not to any particular provision of this Agreement. Article and Section references contained in this Agreement are references to Articles and Sections in this Agreement unless otherwise specified. The term “including” will mean “including without limitation”.

(c) The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms.

(d) Any agreement, instrument or statute defined or referred to herein or in any instrument or certificate delivered in connection herewith means (unless otherwise indicated herein) such agreement, instrument or statute as from time to time amended, amended and restated, modified or supplemented and includes (in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein.

5

(e) A reference in this Agreement to a law, license, or permit includes any amendment, modification or replacement to such law, license or permit.

(f) Any references to a Person are also to its permitted successors and assigns.

ARTICLE II

RESPONSIBILITIES

Section 2.01 Administrator’s Responsibilities. During the Term, the Administrator shall provide the following Services on behalf of the Company:

(a) Where necessary or desirable, at the Company’s sole expense, as applicable, (i) subject to Section 4.01(c), taking of such actions as are necessary to enforce each Service Provider’s or Seller’s compliance with its obligations to the Company and (ii) subject to Section 4.01(c) and in accordance with the Member consent requirements set forth in the Company LLC Agreement, hiring, firing and/or replacing any Service Provider;

(b) Represent the Company in local community relations (including assisting in the coordination of public statements regarding the Company);

(c) Prepare and promptly pay, or cause to be paid, on behalf of the Company, any amounts required to be paid by the Company under any contract to which the Company is a party or otherwise; provided that nothing herein shall imply any duty of the Administrator under any circumstances to expend its own funds in payment of the expenses of the Company;

(d) Maintain major maintenance and other reserves for the Company from time to time as directed by, and upon terms established by, the Managing Member or the Company or under the Financing Documents;

(e) In accordance with and subject to the provisions of the Company LLC Agreement, maintain complete and accurate financial books and records of the operations of the Company on an accrual basis in accordance with prudent business practices and GAAP and make such books and records available for inspection and copying during normal business hours on its premises, upon reasonable prior notice, by any Person authorized under the Company LLC Agreement or by the Managing Member to inspect or copy such books and records, subject to appropriate confidentiality safeguards;

(f) In accordance with and subject to the provisions of the Company LLC Agreement, maintain at the Company’s principal office (and permit access thereof during normal business houes to any Person authorized under the Company LLC Agreement or by the Managing Member to have such access) (i) true and full information regarding the status of the financial condition of the Company, including any financial statements that are available, until the statute of limitations expires on any IRS audit of the Company tax year to which such information and financial statements relate; (ii) minutes of the proceedings of the Members; (iii)

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promptly after becoming available, copies of the federal, state, and local income and other tax returns of the Company for each year; (iv) a current list of the name and last known business, residence or mailing address of each member of the Company; (v) a copy of the Company LLC Agreement, the Company’s certificate of formation, and all amendments thereto, and copies of written consents of the members or managers of the Company; (vi) true and full information regarding the amount of cash and a description and statement of the agreed value of any other property and services contributed by each Member, and the date upon which each became a Member; (vii) copies of records that would enable a Member to determine the Member’s relative shares of the Company’s distributions from Available Cash Flow and the Member’s relative voting rights; and (viii) all records related to the production and sale of energy and environmental attributes from the Facilities;

(g) Perform on behalf of the Company all reporting and other routine management responsibilities reasonably believed by the Administrator to be required under the contracts to which the Company is a party, including representing the Company in ordinary course business matters with third parties arising thereunder;

(h) Perform on behalf of the Company all routine administrative services reasonably required in connection with maintaining the Company’s existence and operations, such as the filing of limited liability company reports;

(i) Notify the Managing Member and the Members of any variance or anticipated variance in the aggregate expense amount for the Company in any Calendar Year by [***] or more from the amount set forth in the applicable Annual Budget, promptly after learning of such variance or anticipated variance;

(j) (i) Provide such readily available information to the Members as they may reasonably request from time to time and (ii) subject to Site rules established by the Company or the Project Company, provide access as reasonably requested for the Members, and their personnel and accompanied agents or consultants, to the Facilities;

(k) (i) Advise the Company to engage Service Providers as reasonably believed by the Administrator to be necessary or desirable, or (ii) if instructed by the Managing Member, perform services for the Company which are not being performed by the Operator under the PUMA;

(1) (i) Procure and maintain all required Permits, prepare and submit all filings of any nature which are required to be made thereunder and represent the Company in matters with governmental authorities relating thereto, and (ii) prepare and submit, or cause to be prepared and submitted, all filings and notices of any nature which are required to be made by the Company under the terms of any Permit held by the Company or any laws, regulations or ordinances applicable to the Company or the Facilities;

(m) Not take any action or omit to take any action as would cause the Company in any material respect to violate any federal, state or local laws and regulations, including Environmental Laws, and to the extent that the Administrator has knowledge of any such

[***] Confidential Treatment Requested

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existing or prospective violation take, or direct Service Providers to take, commercially reasonable actions, at the sole expense (but subject to Section 4.01(c)) of the Company (unless such existing or prospective violation arises from breach of the Administrator’s duties hereunder), to redress or mitigate any such violation;

(n) (i) Give prompt written notice to the Members and the Company of any litigation, material disputes with governmental authorities, or material force majeure events under the Principal Facility Documents and material losses suffered by the Company promptly after learning of the same, and (ii) furnish to the Members and the Company, or direct a Service Provider to so furnish, copies of all material documents furnished to the Company or the Administrator by any governmental authority or furnished to any governmental authority by the Company;

(o) Notify the Members within five (5) of obtaining actual knowledge of any (i) notice of default delivered by a party to a Principal Facility Document to the Administrator or the Managing Member or (ii) material default by a party to a Principal Facility Document (other than the Company, the Project Company, the Administrator or any Affiliate thereof) under such Principal Facility Document;

(p) In accordance with and subject to the provisions of the Company LLC Agreement, submit for approval of the Managing Member (or, if required under the terms of the Company LLC Agreement, for Consent of the Class A Members), a proposed annual operating budget for the Project Company, which, subject to the provisions of the Company LLC Agreement, would become the Annual Budget;

(q) Perform and discharge all responsibilities and functions assigned to the Administrator under or pursuant to the Company LLC Agreement as in effect as of the date hereof (or as amended and accepted by the Administrator) in accordance with the terms set forth in the Company LLC Agreement;

(r) Prepare, or cause to be prepared, each of the reports, updated schedules and notices required to be prepared pursuant to the Company LLC Agreement and deliver such reports, updated schedules and notices to the Company and any Member or such other Person to whom any such report, schedule or notice is to be provided under the terms of the Company LLC Agreement within the time periods specified therein;

(s) Maintain, in the name and for the exclusive benefit of the Company, accounts at one or more banks or other financial institutions for the deposit of all funds received by the Company during the Term, and invest such funds in accordance with the investment provisions of the Company LLC Agreement, as applicable; provided, that nothing herein shall imply any guarantee or undertaking by the Administrator with respect to the collection of amounts due to the Company or return on such investments;

(t) In accordance with and subject to the provisions of the Company LLC Agreement (i) prepare and file or cause to be prepared and filed by the Certified Public Accountant on behalf of the Company, on a timely basis, all federal, state and local tax returns and related information

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and filings required to be filed by the Company or deliver to the Members such tax returns pursuant to the Company LLC Agreement, including each Member’s IRS Form K-1, and (ii) pay out of the Company’s funds, as applicable, all taxes and other governmental charges shown to be due thereon before they become delinquent and make all federal, state and local tax elections in accordance with the provisions of the Company LLC Agreement, as applicable;

(u) Promptly inform the Company and the Members of any proposed action or decision that would require the Consent of the Class A Members or the Consent of the Members, as applicable, under the Company LLC Agreement, and not take or permit any such action or decision without the prior required consent, as applicable, in accordance with the Company LLC Agreement;

(v) In accordance with and subject to the provisions of the Company LLC Agreement, if so instructed by the Tax Matters Member, (i) direct the defense of any claims made by the IRS to the extent that such claims relate to the adjustment of Company items at the Company level, (ii) promptly deliver to each Member a copy of all notices, communications, reports and writings received from the IRS relating to or potentially resulting in an adjustment of Company items, (iii) promptly advise each Member of the substance of any conversations with the IRS in connection therewith and keep the Members advised of all developments with respect to any proposed adjustments that come to its attention; (iv) provide each Member with a draft copy of any correspondence or filing to be submitted by the Company in connection with any administrative or judicial proceedings relating to the determination of Company items at the Company level reasonably in advance of such submission; (v) incorporate all reasonable changes or comments to such correspondence or filing requested by any Member; (vi) provide each Member with a final copy of correspondence or filing; and (vii) provide each Member with notice reasonably in advance of any meetings or conferences with respect to any administrative or judicial proceedings relating to the determination of Company items at the Company level (including any meetings or conferences with counsel or advisors to the Company with respect to such proceedings);

(w) Prepare (or cause to be prepared) the financial statements required to be prepared pursuant to the Company LLC Agreement, within the time periods specified therein;

(x) Make distributions from Available Cash Flow as provided under the relevant provisions of the Company LLC Agreement;

(y) Make draws under any working capital facilities or credit facilities for the Company, and cause such funds to be deposited into the Company’s accounts and in accordance with such working capital facilities’ or credit facilities’ documentation;

(z) Establish and administer any escrow arrangements to which the Company is a party, as well as any letters of credit, bonds or other similar support instruments posted by the Company;

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(aa) Notify the Members promptly of the receipt of any communication as to any deficiencies in the Company’s accounting practices from the Certified Public Accountant, or of the resignation of the Certified Public Accountant;

(bb) Maintain a register of membership interests of the Company and record therein any (i) transfers of membership interests made in accordance with the terms of the Company LLC Agreement and (ii) security interests of a secured party pursuant to any security interest permitted under the Company LLC Agreement;

(cc) Prepare equity contribution notices (and accompanying documentation) in accordance with the Company LLC Agreement, and deliver them to the Managing Member and each Member of the Company;

(dd) Perform all other administrative tasks required in relation to and for the Company and the Project Company under the Investment Documents;

(ee) Perform the Nonreimbursable Services; and

(ff) Perform such other administrative tasks related to and consistent with the scope of the Services described herein and in the Company LLC Agreement as the Managing Member may reasonably request from time to time.

Section 2.02 Separateness. The Administrator shall maintain its existence separate and distinct from any other Person, including maintaining in full effect its existence, rights and franchises as a corporation under the laws of the State of Delaware and obtaining and preserving its qualification to do business in each jurisdiction in which such qualification is or will be necessary to protect the validity and enforceability of this Agreement.

Section 2.03 [reserved]

Section 2.04 Re-marketing and Re-deployment Obligations. In the event that the Project Company has distributed to the Company any Bloom System in respect of which a PPA Customer has made a payment of Termination Value pursuant to the relevant PPA and the Lenders have released their lien on such Bloom System, Administrator will use all commercially reasonable efforts to resell or redeploy such Bloom System, including, but not limited to, taking the following actions for the benefit of the Company: (a) de-install, crate, transport and store such Bloom System until Administrator has been able to arrange for its resale or redeployment, (b) use all commercially reasonable efforts to resell or redeploy such Bloom System on a nondiscriminatory basis with respect to other similar equipment of Administrator, such efforts to include distributing to its sales organization information on the availability, location and price of such Bloom System, and agreeing to provide to a prospective purchaser of such unit or the output thereof, as applicable, at no cost to such purchaser a certificate of maintainability with respect to such unit, (c) at the Company’s expense, cause such Bloom System to be reinstalled at the applicable purchaser’s Site at Administrator’s then prevailing installation rates, including procuring and installing all necessary balance of Facility equipment related thereto, provided that Administrator shall use good faith efforts to include the cost of installation in the cost imputed to

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the subsequent host, offtaker, or owner (d) cause such Bloom System to be refurbished or reconfigured as necessary or appropriate, in Administrator’s reasonable judgment, at the Company’s expense, to facilitate such resale or redeployment, provided that Administrator shall use good faith efforts to include the cost of refurbishment or reconfiguration in the cost imputed to the subsequent host, offtaker, or owner, and (e) enter into an operations and maintenance agreement (or, at Company’s request negotiate with an appropriate operations and maintenance provider) for all necessary operations and maintenance services necessary to operate such Bloom System following resale or redeployment at the Administrator’s then prevailing maintenance rates for similar equipment and including a scope of work, performance guaranties, and indemnification provisions appropriate in light of the terms of the applicable resale or redeployment agreement(s). In addition, to the extent that the Company owes any obligations to any PPA Customer with respect to a Bloom System in connection with such re-marketing and resale or redeployment, Administrator will perform, on behalf of the Company, all such obligations including, without limitation, preparing and promptly paying, or causing to be paid, on behalf of the Company out of the proceeds of such resale or redeployment, any amounts required to be paid by the Company under any contract related to such resale or redeployment. All reasonable costs and expenses (including a reasonable allocation of personnel hours) incurred by the Administrator in connection with the actions described in this Section 2.04 shall be reimbursed by the Company.

ARTICLE III

STANDARD OF PERFORMANCE

Section 3.01 Standard of Performance. The Administrator shall perform the Services in accordance with applicable law and Prudent Administrative Practices; provided that the Administrator shall be deemed to have satisfied its duties in respect of any specific matter or circumstance requiring interpretation, application, or enforcement of Principal Facility Documents, by relying conclusively on the advice of qualified legal counsel and/or qualified industry consultants engaged to advise the Company with respect to such matter or circumstance; and provided, further, that it shall not be a breach of Prudent Administrative Practices and the Administrator shall not be responsible hereunder for the gross negligence or willful misconduct of, or breach of contract by, any Service Provider engaged by the Administrator pursuant to a contract that requires such Service Provider to perform its duties in accordance with Prudent Administrative Practices and if such Person is sufficiently qualified to perform such duties and the Administrator is diligent in its oversight of such Persons. Without limiting the foregoing, in its performance of the obligations the Administrator may enter into any settlement of claims, litigation or arbitration relating to the agreements described therein unless such settlement requires the Consent of the Class A Members or the Consent of the Members as provided in the Company LLC Agreement. It is understood and agreed by the Company and the Administrator that the Administrator is not guaranteeing or undertaking, in its capacity as Administrator, to procure any financial or other outcome with respect to the Company or the Portfolio, or providing any guarantees relating to the performance of the Portfolio.

Section 3.02 No Liability. The Administrator shall have no liability under this Agreement for (a) failure to take actions which it is not obligated to take pursuant to this Agreement and as to which it has requested the consent of the Managing Member (and/or the

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applicable Members where consent of any Members other than or in addition to the Managing Member is required under the Company LLC Agreement) for the Administrator to perform such actions if such consent is not timely given (including actions requiring a variance from the Annual Budget for which a request for variance by the Administrator has been made and not timely approved), or (b) actions taken at the direction of the Managing Member in accordance with the terms of the Company LLC Agreement (and/or the applicable Members where consent of any Members other than or in addition to the Managing Member is required under the Company LLC Agreement) that are consistent with the scope of Services hereunder, or (c) failure to take actions requiring the expenditure of Company funds in accordance with the Annual Budget if such funds are not available (for reasons other than a failure of the Administrator to provide, or cause a third party to provide, the Nonreimbursable (Services or Services, as applicable, in accordance with this Agreement).

ARTICLE IV

REIMBURSEMENT AND PAYMENT

Section 4.01 Administration Fee; Reimbursable Expenses.

(a) (i) The annual administration fee owed by the Company to the Administrator for the Services shall be an amount equal to one dollar ($1.00) (the “Administration Fee”), due in annual installments. The Parties acknowledge that the Administration Fee is a fair price, negotiated at arms-length, for the Services.

(b) In connection with matters within the Annual Budget, and matters outside of the parameters of the Annual Budget but authorized pursuant to this Section 4.01(b), the Company will reimburse the Administrator from the Company’s funds for the following expenses (other than any such expenses that constitute Excluded Expenses): (i) all reasonable out-of-pocket expenses of Administrator’s personnel performing work in the capacity as Administrator, (ii) all Emergency Expenditures and (iii) reasonable expenses of unaffiliated third parties (other than any such Persons performing Nonreimbursable Services) which, for the convenience of the Company, perform services by contract with the Administrator rather than directly with the Company, provided that the Members have consented to such arrangement. For purposes of this Section 4.01(b), (x) “Excluded Expenses” shall mean costs incurred by Administrator in employing its personnel (other than amounts payable to its personnel as described in clause (i) above), including costs associated with wages, benefits, workers’ compensation insurance and home office expenses and costs incurred to retain unaffiliated third parties to perform Nonreimbursable Services, and (y) an “Emergency Expenditure” shall mean an expense with respect to the Company, the Project Company or the Portfolio that is not included in the Annual Budget and which is incurred, in the reasonable judgment of the Administrator, to avoid or to mitigate an imminent risk of physical injury to any Person or damage to any property, or an imminent violation of law and with respect to which there is not a reasonable opportunity to convene a meeting of the Members in order to obtain prior approval of the expense. The Administrator shall give prompt written notice to the Members of any Emergency Expenditure. Notwithstanding any of the foregoing, for the avoidance of doubt, to the extent an obligation of the Administrator is expressly to be performed at the sole expense of the Company, is not in violation of the express terms of this Agreement, and is not a Nonreimbursable Service, the Administrator shall be reimbursed by the Company for any amount (other than Excluded Expenses) expended from its own funds to perform such obligations.

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(c) If the Administrator engages any third party to perform any Nonreimbursable Services, it shall be responsible for paying any fees and expenses of such third party and shall not be able to seek reimbursement therefor; provided that the Administrator shall not be responsible for paying any fees and expenses of such third party from its own funds (and shall be able to seek reimbursement therefor) if directed by the Members or the Managing Member, or if otherwise required under the Investment Documents or Principal Facility Documents, to engage any third party to perform any Nonreimbursable Services.

Section 4.02 Billing and Payment. Within fifteen (15) days following the Administrator’s submission of an invoice to the Managing Member reflecting (i) any expenses due and payable by the Company (and including invoices and other material identifying and substantiating, in reasonable detail, the nature of such expenses and the basis for reimbursement thereof), and (ii) the annual Administration Fee due and payable by the Company (and including invoices and other material identifying and substantiating, in reasonable detail, the nature of such costs and the basis for reimbursements):

(a) The Managing Member shall approve such payment to the Administrator of (i) the expenses, and (ii) the portion of the Administration Fee specified in such invoice, less any portion of such expenses and Administration Fee that is disputed in good faith by a Member, which payment shall be made within thirty (30) days of such approval; provided that any invoiced amount incurred in accordance with the Annual Budget shall be deemed approved and shall be paid unless the Managing Member or Member, as applicable, shall dispute in good faith such payment for reasons unrelated to the Annual Budget; and

(b) The Parties shall attempt to resolve any such disputed portion in accordance with Article VI hereof and any amount owed hereunder which remains unpaid more than ten (10) days after the date such amount is due and payable under this Agreement shall accrue interest at the lesser of a monthly rate of one and five-tenths percent (1.5%) or the highest rate permissible by law, with such interest beginning to accrue from the first (1st) day after such amount became due and payable.

Section 4.03 Records. The Administrator shall retain copies of invoices submitted by it under Section 4.02, and of any third party invoices or similar Documentation contained or reflected therein, for a minimum period of three (3) years or such longer period as required by applicable law. Records maintained by the Administrator pursuant to this Section 4.03 shall be the property of the Company and shall not be destroyed, unless the Company shall have consented to such destruction in writing or declined in writing to accept possession of the records after the Administrator has advised the Company that the records will be destroyed.

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ARTICLE V

DELAYS

Section 5.01 Conditions. If the Administrator becomes aware of any event or circumstance that could materially delay or prevent its performance of any of its obligations hereunder, the Administrator shall give prompt notice thereof to the Managing Member.

Section 5.02 Mitigation of Delay. The Administrator shall attempt in good faith to minimize any such delay in or prevention of performance of its obligations hereunder, provided, however, that the Administrator shall not be obligated to undertake or perform any actions which are prohibited by contract or any Applicable Law or that would expose the Administrator to any material risk of liability or to any expense for which the Administrator is entitled to reimbursement or indemnification hereunder and which is not reasonably expected to be promptly reimbursed or indemnified hereunder.

ARTICLE VI

DISPUTE RESOLUTION

Section 6.01 Procedure.

(a) The Parties shall attempt, in good faith, to resolve or cure all disputes, controversies or claims relating to this Agreement by mutual agreement in accordance with this Article VI before initiating any legal action or attempting to enforce any rights or remedies hereunder (including termination), at law or in equity (regardless of whether this Article VI is referenced in the provision of this Agreement which is the basis for any such dispute).

(b) If a Party believes that a dispute, controversy or claim under this Agreement has arisen, such Party shall within ten (10) days after such dispute, controversy or claim arises, give notice thereof to the other affected Party and the Managing Member, which notice shall describe in reasonable detail the basis and specifics of the dispute, controversy or claim. A meeting or conference call shall be held promptly, and in no case later than five (5) days following delivery of such notice, attended by representatives of the Parties with decision-making authority regarding the dispute, controversy or claim to attempt in good faith to negotiate a resolution.

(c) If, within twenty-one (21) days following the meeting or conference call required pursuant to Section 6.01(b), the affected Parties are unable to resolve the dispute, any affected Party may pursue whatever rights it has available under this Agreement, at law or in equity in accordance with Section 11.03 herein and subject to the limitations of liability set forth herein.

(d) In the event of any dispute arising out of or relating to this Agreement, each Party hereby consents to service of process made to the addressees set forth in Section 11.05 herein either by overnight delivery by a nationally recognized courier or by certified first class mail, return receipt requested, and hereby acknowledges that service by such means shall constitute valid and lawful service of process against the Party being served.

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(e) Each Party hereby agrees that, in the event of any dispute arising out of or relating to this Agreement that involves or is related to a matter involving Seller or Operator, it will not oppose the joinder of Seller or Operator to such action or proceeding.

ARTICLE VII

COMMENCEMENT AND TERMINATION

Section 7.01 Term. This Agreement commenced on the date hereof and, except as otherwise provided in this Agreement, shall remain in full force and effect until the date that the Warranty Period under the PUMA has expired for all of the Facilities in the Portfolio (the “Term”). In connection with the expiration of the Term or any termination pursuant to Section 7.02, the Administrator shall cooperate with all reasonable requests of the Company in connection with the transition of Services performed by Administrator (including the transferring of the records in Administrator’s possession) to the entity selected by the Company to undertake the Services.

Section 7.02 Resignation of Administrator. The Administrator may resign at any time following the sale of Clean Technologies to a non-Affiliate of Administrator or a Transfer of all Class B Interests held by Clean Technologies or an Affiliate of Clean Technologies made in accordance with the Company LLC Agreement, by giving not less than thirty (30) days prior written notice of such resignation to the Company; provided that Administrator’s resignation shall become effective only upon the appointment of a successor pursuant to the terms of the Company LLC Agreement that assumes (or causes an Affiliate to assume) the duties of the Administrator hereunder or that has engaged a Person that is recognized nationally as having substantial experience managing and operating fuel cell power facilities at a cost that is not substantially greater than as under this Agreement.

Section 7.03 Early Termination. This Agreement may not be terminated prior to the end of the Term except:

(a) by mutual agreement of the Parties; or

(b) pursuant to Section 8.02 or 8.03.

Section 7.04 Accrued Fees. If this Agreement is terminated under Section 7.03(a) or by the Administrator under Section 7.03(b), the Administrator will continue to be entitled to all Administration Fees and other amounts payable to it under this Agreement in respect of the period until the date of termination.

ARTICLE VIII

DEFAULT

Section 8.01 Events of Default. Subject to the provisions of Article VI (Dispute Resolution), each of the following events shall be an event of default (“Event of Default”) under this Agreement regardless of the pendency of any bankruptcy, reorganization, receivership, insolvency or other proceeding which has or might have the effect of preventing such Party from complying with the terms of this Agreement:

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(a) Failure by a Party to make any payment required to be made hereunder, if such failure shall continue for twenty (20) days after written notice thereof has been given to the non-paying Party;

(b) If there shall occur (i) any failure by the Administrator to comply in any material respect with any term, provision or covenant of this Agreement (other than a failure addressed by another paragraph of this Section 8.01, or (ii) a gross dereliction by the Administrator of, or gross negligence or fraud by the Administrator in relation to, its duties under this Agreement, and such failure or act described in clause (i) or (ii) continues for thirty (30) days after receipt by the Administrator of written notice of such breach; or

(c) Failure by the Company to comply in any material respect with any term, provision or covenant of this Agreement (other than a failure addressed by another paragraph of this Section 8.01, and such failure continues for thirty (30) days after receipt by the Company of written notice of such breach.

Section 8.02 Bankruptcy. Subject to the rights or remedies it may have, any Party shall have the right to terminate this Agreement, effective immediately, if, at any time, any other Party (or, in the case of the Administrator, any Person that Controls the Administrator) shall file a voluntary petition in bankruptcy, or shall be adjudicated bankrupt or insolvent, or shall file any petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute or law relating to bankruptcy, insolvency, or other relief for debtors, whether federal or state, or shall seek, consent to, or acquiesce in the appointment of any trustee, receiver, conservator or liquidator of such Party or of all or any substantial part of its properties, or a court of competent jurisdiction shall enter an order, judgment or decree approving a petition filed against such Party seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any present or future statute or law relating to bankruptcy, insolvency or other relief for debtors, whether federal or state, and such Party shall consent to or acquiesce in the entry of such order, judgment or decree, or the same shall remain unvacated and unstayed for an aggregate of sixty (60) days from the date or entry thereof, or any trustee, receiver, conservator or liquidator of such Party or of all or any substantial part of its properties shall be appointed without the consent of or acquiescence of such Party and such appointment shall remain unvacated and unstayed for an aggregate of sixty (60) days. The terms “acquiesce” and “acquiescence”, as used herein, include, but are not limited to, the failure to file a petition or motion to vacate or discharge any order, judgment or decree providing for such appointment within the time specified by law.

Section 8.03 Remedies. If an Event of Default occurs and is continuing hereunder, then this Agreement may be terminated immediately by the non-defaulting Party, without obligation to or recourse by the defaulting Party. If a termination pursuant to Section 8.02 or this Section 8.03 occurs, the terminating Party shall have all rights and remedies allowed at law or in equity, subject however, to the specific limitations of liability set forth in Article IX.

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ARTICLE IX

INDEMNIFICATION AND LIMITATION OF DAMAGES

Section 9.01 Indemnification.

(a) To the extent not otherwise covered by insurance and to the extent not prohibited by law, the Company shall indemnify and hold harmless the Administrator, its officers, directors, employees, and Affiliates, from and against all losses, claims, demands, damages, costs, expenses of any nature (including, but not limited to, reasonable attorneys’ fees and disbursements) or liabilities (or actions, suits or proceedings including any inquiry or investigation or claims in respect thereof), judgments, fines, settlements and other amounts arising from any and all claims, demands, actions, suits or proceedings, whether civil, criminal, administrative, arbitral or investigative (collectively, “Losses”) which are being incurred in its capacity as the Administrator and are resulting from or arising out of the Administrator’s performance of, or failure to perform, its obligations hereunder; provided, however, that the Administrator shall not have the right to be so indemnified for (i) costs or expenses that Administrator is expressly required to bear in accordance with the terms of this Agreement or (ii) Losses to the extent caused by or arising from the fraud, negligence, willful misconduct or willful violation of applicable law of the Administrator, Seller, Operator or any of their Affiliates or their respective subcontractors, or a breach of its or their obligations under this Agreement or other agreement with either the Project Company or the Company or for which any of such Persons are obligated to indemnify the Project Company, the Company or any Member (for the purposes of this Section 9.01(a), the Administrator shall not be deemed to be an “Affiliate” of the Company).

(b) To the extent not otherwise covered by insurance and to the extent not prohibited by law, subject to the specific limitations of liability set forth in this Article IX, the Administrator shall indemnify and hold harmless the Company, its officers, directors, employees and Affiliates from and against all Losses resulting from or arising out of the Administrator’s performance of its obligations hereunder; provided, however, that the Company shall not have the right to be so indemnified for Losses to the extent caused by or arising from (i) the fraud, negligence, willful misconduct or willful violation of Applicable Law of the Company or the Project Company, or their respective Affiliates, officers, directors, and employees, if any, or (ii) a breach of the Company’s obligations under this Agreement (for the purposes of this Section 9.01(b), the Administrator shall not be deemed to be an “Affiliate” of the Company), except, in the case of each of the foregoing clauses (i) and (ii), where the fraud, negligence, willful misconduct, willful violation of applicable law or breach was caused by the acts or omissions of the Administrator.

(c) Exclusion of Consequential Damages. Neither the Administrator, in such capacity, nor the Company, nor any of their officers, members, employees or Affiliates shall be liable for punitive, consequential, special, indirect or exemplary damages of any nature including, but not limited to, damages for lost profits or revenues or the loss or use of such profits or revenues, loss by reason of plant shutdown or inability to operate at rated capacity, increased operating expenses of plant or equipment, increased costs of purchasing or providing equipment, materials, labor, services, costs of replacement power or capital, debt service fees or

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penalties, inventory or use charges, damages to reputation, damages for lost opportunities, or claims of any of the customers, members or affiliates of the Company, regardless of whether said claim is based upon contract, warranty, tort (including negligence and strict liability) or other theory of law; provided, however, that the foregoing shall not apply to the extent an indemnified party is obligated to pay any such amount to a third Person.

Section 9.02 Liability. The aggregate liability of the Administrator under this Agreement shall be limited to the aggregate amount of the Administration Fee actually paid to the Administrator; provided such limitation of liability shall not apply to (a) any liability under this Agreement that is the result of the fraud, gross negligence, willful misconduct or willful violation of applicable law of the Administrator, and (b) events or circumstances in respect of which insurance proceeds have been received, it being the Parties’ specific intent that nothing contained herein is intended to, nor shall, relieve or limit any insurer’s obligation under any applicable insurance policy.

Section 9.03 Supremacy. The provisions expressed in this Article IX shall prevail over any conflicting or inconsistent provisions contained elsewhere in this Agreement and shall survive termination of this Agreement.

ARTICLE X

REPRESENTATIONS AND WARRANTIES

Section 10.01 Representations and Warranties. Each Party represents and warrants, as of the date hereof, as follows:

(a) it is a limited liability company or a Corporation, as applicable, duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;

(b) it has taken all necessary action to authorize the execution and delivery of this Agreement and the performance of its obligations hereunder;

(c) this Agreement constitutes its legal, valid and binding obligation enforceable against it in accordance with its terms except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights and the enforcement of debtors’ obligations generally, and (ii) general principles of equity, regardless of whether enforcement is pursuant to a proceeding in equity or at law;

(d) the execution, delivery and performance of this Agreement do not violate (i) its constituent documents, (ii) any contract to which it is a party or to which any of its properties are subject, or (iii) any law, rule, regulation, order, writ, judgment, injunction, decree or determination to which it is subject or by which its properties are bound;

(e) no consent, authorization, approval or other action by, and no notice to or filing with, any governmental authority or any other Person is required for the due execution, delivery or performance of this Agreement by such Party other than has been obtained or given as of the date hereof; and

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(f) there is no action, suit or proceeding at law or in equity or by or before any governmental authority, arbitral tribunal or other body now pending or threatened against it, which would reasonably be expected to have a material adverse effect on the transactions contemplated by this Agreement.

ARTICLE XI

MISCELLANEOUS

Section 11.01 Assignment.

(a) The Administrator may not assign its rights and obligations under this Agreement to any third party unless the prior written consent of the Company has been obtained (and/or the Consent of the Class A Members has been obtained where the Consent of the Class A Members is required under the Company LLC Agreement); provided that, notwithstanding the foregoing, the Administrator may assign its rights and obligations under this Agreement to an Affiliate of the Administrator under common control with the Administrator without the prior written consent of the Company.

(b) The Company may not assign its rights and obligations under this Agreement to any third party without the prior written consent of the Administrator.

(c) Notwithstanding the foregoing clauses (a) and (b), any Party may collaterally assign its rights under this Agreement to any party providing debt or equity financing to such Party without the consent of the other Parties.

Section 11.02 Authorization. Except as expressly authorized in writing by the Managing Member, or contemplated under the Services, the Administrator shall not have the right or the obligation to create any obligation or to make any representation on behalf of the Company.

Section 11.03 Governing Law, Jurisdiction, Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA, WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW OR OTHER PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION. THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT IN SANTA CLARA COUNTY, CALIFORNIA WITH RESPECT TO ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING TO ANY SUCH DISPUTE AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO.

Section 11.04 Independent Contractor. Nothing contained in this Agreement and no action taken by any Party to this Agreement shall be (a) deemed to constitute any Party or any of such Party’s employees, agents or representatives to be an employee, agent or representative of the other Parties; (b) deemed to create any company, partnership, joint venture, association or syndicate among or between the Parties; or (c) except as contemplated under the Services,

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deemed to confer on any Party any expressed or implied right, power or authority to enter into any agreement or commitment, express or implied, or to incur any obligation or liability on behalf of the other Parties, except as expressly authorized in writing.

Section 11.05 Notice. All notices, requests, consents, demands and other communications (collectively “notices”) required or permitted to be given under this Agreement shall be in writing signed by the Party giving such notice and shall be given to each other Party at its address or email address set forth in this Section 11.05 or at such other address or email address as such Party may hereafter specify by notice to the other Parties and shall be either delivered personally or sent by email or registered or certified mail, return receipt requested, postage prepaid, or by a nationally recognized overnight courier service. A notice shall be deemed to have been given (a) when successfully transmitted if given by email or (b) when delivered, if given by any other means. Notices shall be sent to the following addresses:

To the Administrator:

Bloom Energy Corporation

1299 Orleans Drive

Sunnyvale, California 94089

Attn: [***]

TelePhone: [***]

Fax: [***]

Email: [***]

To the Company:

2015 ESA HoldCo, LLC

c/o Bloom Energy Corporation

1252 Orleans Drive

Sunnyvale, California 94089-1137

Attn: [***]

Telephone: [***]

Fax: [***]

Email: [***]

With a copy to:

Exelon Generation Company, LLC

100 Constellation Way

Suite 1000

Baltimore, MD 21202

Attention: [***]

[***] Confidential Treatment Requested

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With a copy to:

Constellation NewEnergy, Inc.

4 Houston Center

1331 Lamar Street

Houston, TX 77010

Attn: [***]

Section 11.06 Entire Agreement. This Agreement (including all appendices and exhibits thereto) constitutes the entire agreement and understanding of the Parties with respect to the subject matter hereof and supersedes all prior written and oral agreements and understandings with respect to such subject matter.

Section 11.07 Amendment. Neither this Agreement nor any of the terms hereof may be terminated, amended, supplemented, waived or modified orally, but only by a document in writing signed by all Parties.

Section 11.08 Confidential Information. (a) Subject to the other terms of this Section 11.08, the Parties shall, and shall cause their Affiliates and their respective stockholders, members, subsidiaries and Representatives to, hold confidential all information they may have or obtain concerning Administrator, Company, and Project Company and their respective assets, business, operations or prospects or this Agreement (the “Confidential Information”), including, all materials furnished and information furnished by Administrator in performance of this Agreement, regardless of the form conveyed or whether financial or technical in nature, and including but not limited to, any trade secrets and propriety know how, all software, documentation, financial, marketing and nonpublic data with respect to the distribution and transmission facilities of the Transmitting Utility and other business information, all data related to the internal design and performance of the Facilities and any other material or information that is either marked as confidential or disclosed under circumstances that one would reasonably expect it to be confidential. Furthermore, the Company agrees that the Facilities and services performed hereunder contain Administrator’s valuable trade secrets, and further, Company agrees to maintain the secrecy of and not disclose without the express written permission of Administrator any trade secrets which the Company may have received from Administrator; provided, however, that Confidential Information shall not include information that (A) is or becomes generally available to the public other than as a result of an unauthorized disclosure by a Party or any of its Representatives or (B) is or becomes available to a Party or any of its Representatives on a nonconfidential basis from a source other than the other Party or its Representatives, provided that such source was not and is not bound by any contractual, legal or fiduciary obligation of confidentiality with respect to such information or (C) was or is independently developed or conceived by a Party or its Representatives without reference to the Confidential Information of any other Party.

(b) Confidential Information may be disclosed (A) as required or requested to be disclosed by a Party or any of its Affiliates or their respective stockholders, members, subsidiaries or Representatives as a result of any applicable Legal Requirement or rule or regulation of any stock exchange, the Financial Industry Regulatory Authority, Inc. or other regulatory authority or self-regulatory authority having jurisdiction over such Party, (B) as required or requested by the IRS, the Department of Justice or the Office of the Inspector General in connection with a Facility, cash grant, or tax credits relating thereto, including in

[***] Confidential Treatment Requested

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connection with a request for any private letter ruling, any determination letter or any audit or (C) as required under any Interconnection Agreement or PPA. If a Party becomes compelled by legal or administrative process to disclose any Confidential Information, such Party shall, to the extent permitted by Legal Requirements, provide the other Parties with prompt notice so that the other Parties may seek a protective order or other appropriate remedy or waive compliance with the non-disclosure provisions of this Section 11.08(b) with respect to the information required to be disclosed. If such protective order or other remedy is not obtained, or such other Parties waive compliance with the non-disclosure provisions of this Section 11.08(b) with respect to the information required to be disclosed, the first Party shall furnish only that portion of such information that it is advised, by opinion of counsel, is legally required to be furnished and shall exercise reasonable efforts, at the expense of the Party whose Confidential Information is being disclosed, to obtain reliable assurance that confidential treatment will be accorded such information, including, in the case of disclosures to the IRS described in clause (B) above, to obtain reliable assurance that, to the maximum extent permitted by applicable Legal Requirements, such information will not be made available for public inspection pursuant to Section 6110 of the Code.

(c) Notwithstanding the foregoing, a Party may disclose Confidential Information received by it to its actual or potential financing parties or investors and its and their employees, consultants, legal counsel or agents who have a need to know such information or a right to receive such information pursuant to the terms of this Agreement; provided that such Party informs each such Person who has access to the Confidential Information of the confidential nature of such Confidential Information, the terms of this Agreement, and that such terms apply to them. The Parties shall use commercially reasonable efforts to ensure that each such Person complies with the terms of this Agreement and that any Confidential Information received by such Person is kept confidential.

(d) Nothing herein shall be construed as prohibiting a Party from using such Confidential Information in connection with (i) any claim against another Party, (ii) any exercise by a Party of any of its rights hereunder, (iii) a financing or proposed financing by Administrator or the Project Company or Company or their respective Affiliates, (iv) a disposition or proposed disposition by Administrator or any Affiliate of Administrator of all or a portion of such Person’s direct or indirect equity interest in Administrator or (v) a disposition or proposed disposition by any direct or indirect Affiliate of the Company or the Project Company of all or a portion of such Person’s equity interests in the Company or the Project Company or an upstream owner of the Company; (vi) a disposition or proposed disposition by Project Company of any Bloom System or Facility; or (vii) any disclosure required to be made to a PPA Customer (or otherwise) under a PPA; provided that, in the case of items (iii), (iv), (v) and (vi), the potential financing party or purchaser has entered into a confidentiality agreement with respect to Confidential Information on customary terms used in confidentiality agreements in connection with corporate financings or acquisitions before any such information may be disclosed and a copy of such confidentiality agreement has been provided to the non-disclosing Party for informational purposes, which copy of such confidentiality agreement may contain redactions of confidential information relating to the potential financing or purchaser, except as otherwise required to be disclosed pursuant to the Company LLC Agreement.

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Section 11.09 Third Party Beneficiaries. Except as otherwise expressly stated herein, this Agreement is intended to be solely for the benefit of the Parties hereto and their permitted assignees and is not intended to and shall not confer any rights or benefits to the general public or any other third party not a signatory thereto.

Section 11.10 Discharge of Obligations. With respect to any duties or obligations discharged hereunder by the Administrator, the Administrator may discharge such duties or obligations through the personnel of an Affiliate of the Administrator; provided that, notwithstanding the foregoing, the Administrator shall remain fully liable hereunder for such discharged duties and obligations.

Section 11.11 Severability. Any provision of this Agreement that shall be held to be invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without invalidating the remaining provisions hereof and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The Parties shall negotiate in good faith a replacement provision or provisions that are valid and enforceable and that as closely as possible correspond to the spirit and purpose of the invalid or unenforceable provisions and this Agreement as a whole.

Section 11.12 Binding Effect. The terms of this Agreement shall be binding upon, and inure to the benefit of, the Parties and their successors and permitted assigns.

[REMAINDER OF PAGE LEFT BLANK INTENTIONALLY]

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IN WITNESS WHEREOF, the Parties have executed, or caused to be executed, this Administrative Services Agreement on the date first set forth above.

BLOOM ENERGY CORPORATION, a

Delaware corporation

By:	/s/ Randy Furr
Name:	Randy Furr
Title:	Chief Financial Officer
2015 ESA HOLDCO, LLC, a Delaware limited liability company
By:	/s/ William Brockenborough
Name:	William Brockenborough
Title:	Vice President

[Signature Page to Administrative Services Agreement with 2015 ESA HoldCo, LLC]

EX-10

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

Exhibit 10.78

Execution Version

DEPOSITARY AGREEMENT

among

2015 ESA PROJECT COMPANY, LLC,

as Borrower

CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK,

as Administrative Agent

WILMINGTON TRUST, NATIONAL ASSOCIATION,

as Collateral Agent

and

WILMINGTON TRUST, NATIONAL ASSOCIATION,

as Depositary Bank

Dated as of June 25, 2015

TABLE OF CONTENTS

	Page
ARTICLE I DEFINITIONS; PRINCIPLES OF INTERPRETATION		1
SECTION 1.1. Definitions		1
SECTION 1.2. Principles of Interpretation		6
ARTICLE II APPOINTMENT OF DEPOSITARY BANK; PROCEDURES; GOVERNMENT AND ESTABLISHMENT OF ACCOUNTS		6
SECTION 2.1. Appointment of Depositary Bank		6
SECTION 2.2. Accounts		6
SECTION 2.3. Creation of Accounts		6
SECTION 2.4. Dominion and Control of Accounts, Funds, and Permitted Investments		8
SECTION 2.5. Certificates; Method and Timing of Payments and Transfers		10
SECTION 2.6. Security Interest Absolute		11
SECTION 2.7. Termination		11
ARTICLE III ASSIGNMENT, PLEDGE AND GRANT OF SECURITY INTERESTS		12
SECTION 3.1. Assignment by the Borrower		12
SECTION 3.2. Borrower Acknowledgment		13
SECTION 3.3. Procedures Governing Accounts		13
ARTICLE IV THE ACCOUNTS		16
SECTION 4.1. Construction Account		16
SECTION 4.2. Revenue Account		17
SECTION 4.3. Operating Account		21
SECTION 4.4. Debt Service Reserve Account		21
SECTION 4.5. Distribution Suspense Account		23
SECTION 4.6. Loss Proceeds Account		24
SECTION 4.7. Net Disposition Proceeds Account		27
SECTION 4.8. Policy Proceeds Account		27
SECTION 4.9. Prepayment Account		27
SECTION 4.10. Account Balance Statements		28
SECTION 4.11. Account Closure		28

ARTICLE V DEPOSITARY BANK	28
SECTION 5.1. Powers and Immunities of Depositary Bank	28
SECTION 5.2. Reliance by Depositary Bank	29
SECTION 5.3. Court Orders	29
SECTION 5.4. Resignation or Removal	30
ARTICLE VI EXPENSES; INDEMNIFICATION; FEES	31
SECTION 6.1. Indemnification of Collateral Agent and Depositary Bank	31
SECTION 6.2. Obligations Secured by Account Collateral	31
ARTICLE VII CERTAIN OBLIGATIONS AND DUTIES OF THE DEPOSITARY BANK, THE COLLATERAL AGENT AND THE BORROWER; POWER OF ATTORNEY	31
SECTION 7.1. Authorization to Execute Security Documents	31
SECTION 7.2. Duties and Rights of Collateral Agent and the Depositary Bank	32
SECTION 7.3. Obligation to Take Action	32
SECTION 7.4. Power of Attorney	33
ARTICLE VIII REMEDIES	34
SECTION 8.1. Event of Default	34
SECTION 8.2. Directions of the Administrative Agent	34
SECTION 8.3. Collateral Agent’s Discretionary Powers	35
SECTION 8.4. Entitlement to Exercise Remedies	35
SECTION 8.5. Right to Initiate Judicial Proceedings, Etc	35
SECTION 8.6. Appointment of a Receiver	36
SECTION 8.7. Remedies Not Exclusive	36
SECTION 8.8. Waiver of Certain Rights	36
SECTION 8.9. Limitation by Law	37
SECTION 8.10. Waivers	37
SECTION 8.11. Application of Proceeds from Account Collateral	37
ARTICLE IX MISCELLANEOUS	38
SECTION 9.1. Amendment	38
SECTION 9.2. Notices	38
SECTION 9.3. Successors and Assigns	39
SECTION 9.4. No Waiver; Remedies Cumulative	39

SECTION 9.5. Survival	40
SECTION 9.6. Headings Descriptive	40
SECTION 9.7. No Third Party Beneficiaries	40
SECTION 9.8. Severability	40
SECTION 9.9. Reinstatement	40
SECTION 9.10. Counterparts	40
SECTION 9.11. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL	41
SECTION 9.12. Financing Statements	42
SECTION 9.13. Authority of Collateral Agent	42
SECTION 9.14. Termination; Release	43
SECTION 9.15. Entire Agreement	43
SECTION 9.16. Force Majeure	43
SECTION 9.17. USA PATRIOT Act Section 326 Customer Identification Program	43

Exhibits
Exhibit A	Form of Distribution Suspense Account Withdrawal Certificate
Exhibit B	Form of Construction Account Withdrawal Certificate
Exhibit C	Form of Loss Proceeds Account Withdrawal Certificate
Exhibit D	Form of Operating Account Withdrawal Certificate
Exhibit E	Form of Revenue Account Withdrawal Certificate
Exhibit F	Form of Debt Service Reserve Account Withdrawal Certificate
Exhibit G	Form of Net Disposition Proceeds Account Withdrawal Certificate
Exhibit H	Form of Policy Proceeds Account Withdrawal Certificate
Exhibit I	Form of Prepayment Account Withdrawal Certificate
Schedules
Schedule 1	Required DSR Balance

DEPOSITARY AGREEMENT

This DEPOSITARY AGREEMENT, dated as of June 25, 2015 (this “Agreement”), is made by and among 2015 ESA PROJECT COMPANY, LLC, a Delaware limited liability company (the “Borrower”), CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as administrative agent for the Lenders (as defined in the Credit Agreement, as hereinafter defined) (the “Administrative Agent”), WILMINGTON TRUST, NATIONAL ASSOCIATION, in its capacity as collateral agent for the benefit of the Secured Parties (as hereinafter defined) (the “Collateral Agent”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, in its capacity as depositary bank (the “Depositary Bank”).

W I T N E S S E T H:

WHEREAS, the Borrower, the Collateral Agent, the Lenders (as defined in the Credit Agreement) and the Administrative Agent, have entered into that certain Credit Agreement, dated as of the date hereof (as amended, restated, modified or otherwise supplemented from time to time, the “Credit Agreement”), pursuant to which the Lenders will make loans to the Borrower for the purpose of financing the development, construction, installation, testing and operation of the Projects and the acquisition of certain other assets related thereto (the “Loans”);

WHEREAS, the execution and delivery of this Agreement is a condition precedent to each Lender’s obligation to make the Loans; and

WHEREAS, the Borrower desires to execute this Agreement to satisfy the condition described in the preceding recital.

NOW, THEREFORE, in consideration of the premises contained herein and other benefits to the Borrower, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS; PRINCIPLES OF INTERPRETATION

SECTION 1.1. Definitions. All capitalized terms used herein (including in the preamble and recitals hereto) and not otherwise defined herein shall have the meanings ascribed thereto in the Credit Agreement or, if not defined therein, in the Uniform Commercial Code. All references herein to provisions of the Uniform Commercial Code or the UCC shall include all successor provisions under any subsequent version or amendment to any Article of the UCC. The following terms shall have the following respective meanings:

“Accounts” shall mean the Construction Account, the Revenue Account, the Debt Service Reserve Account, the Operating Account, the Loss Proceeds Account, the Net Disposition Proceeds Account, the Distribution Suspense Account, the Policy Proceeds Account and the Prepayment Account; provided that any Account closed by the Depositary Bank pursuant to the express terms hereof shall no longer be deemed an “Account” under this Agreement.

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“Account Collateral” shall have the meaning set forth in Section 3.1(a) hereof.

“Administrative Agent” shall have the meaning set forth in the preamble hereof.

“Agreement” shall have the meaning set forth in the preamble hereof.

“Applicable Sponsor Share” shall mean, in respect of a distribution or other payment to be made to the Sponsors, 90% to ExGen and 10% to Bloom.

“Bloom Closing Date Equity Contribution” shall mean $27,931,673.

“Borrower” shall have the meaning set forth in the preamble hereof.

“Casualty Event” shall mean an event that causes all or a material portion of any Project to be damaged, destroyed or rendered unfit for normal use for any reason whatsoever, other than a Condemnation Event.

“Collateral Agent” shall have the meaning set forth in the preamble hereof.

“Condemnation Event” shall mean any compulsory transfer or taking or transfer under threat of compulsory transfer or taking of all or a material portion of any Project by any Governmental Authority or entity acting under power of eminent domain.

“Conditions to Release of Funds” shall have the meaning set forth in Section 4.6(c) hereof.

“Construction Account” shall have the meaning set forth in Section 2.3(a) hereof.

“Construction Account Withdrawal Certificate” shall mean a certificate in the form of Exhibit B hereto.

“Credit Agreement” shall have the meaning set forth in the recitals hereof.

“Debt Service Reserve Account” shall have the meaning set forth in Section 2.3(d) hereof.

“Debt Service Reserve Account Withdrawal Certificate” shall mean a certificate in the form of Exhibit F hereto.

“Defaulting Lender Shortfall Date” shall mean the date specified in a Defaulting Lender Shortfall Notice, provided that, such date shall be no sooner than the third Business Day following receipt by the Collateral Agent of such Defaulting Lender Shortfall Notice.

“Defaulting Lender Shortfall Notice” shall mean written notice provided to the Collateral Agent by the Borrower that the Borrower is required to Cash Collateralize the Issuing Bank’s Fronting Exposure with respect to a Defaulting Lender pursuant to Section 2.25(d) of the Credit Agreement.

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“Depositary Bank” shall have the meaning set forth in the preamble hereof.

“Disbursement Date” shall mean the date specified in a duly completed Construction Account Withdrawal Certificate; provided that, such date shall be no sooner that the third Business Day following receipt by the Administrative Agent of such Construction Account Withdrawal Certificate.

“Distribution Conditions” shall have the meaning set forth in Section 4.5(b) hereof.

“Distribution Date” shall have the meaning set forth in Section 4.5(b) hereof.

“Distribution Suspense Account” shall have the meaning set forth in Section 2.3(e) hereof.

“Distribution Suspense Account Withdrawal Certificate” shall mean a certificate in the form of Exhibit A hereto.

“Enforcement Notice” shall mean a written certification to the Collateral Agent from the Administrative Agent at the direction of the Required Lenders certifying that an Event of Default has occurred and is continuing at the time such certification is sent to the Collateral Agent and containing such other information as is contemplated under Section 8.2 hereof.

“Entitlement Orders” shall have the meaning set forth in Section 3.3(h) hereof.

“Event of Loss” shall mean either a Casualty Event or a Condemnation Event.

“Excess Cash Flow” shall mean, as of any date of determination, funds available at Clause Ninth of Section 4.2(e) as of such date after giving effect to the withdrawals, transfers and payments specified in Clauses First through Eighth of Section 4.2(e).

“Excluded Transaction Document Claims” shall mean any payment or claim to payment, as applicable, of any of the following: (i) the Refund Adder pursuant to Section 5.11 of the PUMA; (ii) any payment made by Bloom in respect of the Annual Capacity Warranty under Section 5.2 of the PUMA and (iii) any indemnity payments made by the Sponsor to the Borrower or any direct or indirect member thereof pursuant to the PUMA for any losses arising as a result of the loss or recapture of any investment tax credit under Section 48 of the Code.

“Hedge Termination Value” shall mean, in respect of any Required Interest Rate Protection Agreement, for any date on or after the date such Required Interest Rate Protection Agreement has been closed out (in whole or in part) and termination value determined in accordance therewith, such termination value.

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“Indemnified Group” shall have the meaning set forth in Section 6.1(a) hereof.

“Loans” shall have the meaning set forth in the recitals hereof.

“Local Account” shall mean the account maintained by the Borrower that is at all times subject to and described in more detail in the Local Account Control Agreement; provided, however, the aggregate amount on deposit in any such account(s) shall not exceed $[***].

“Loss Proceeds Account” shall have the meaning set forth in Section 2.3(f) hereof.

“Loss Proceeds Account Withdrawal Certificate” shall mean a certificate in the form of Exhibit C hereto.

“Monthly Date” shall mean the first Business Day of each calendar month. “Net Available Amount” shall mean, with respect to any Event of Loss, the aggregate amount of Loss Proceeds received by the Borrower or the Collateral Agent in respect of such Event of Loss, net of taxes and reasonable expenses incurred in connection with the collection thereof.

“Net Disposition Proceeds” shall mean the proceeds with which the Borrower must prepay the outstanding Loans pursuant to Sections 2.13(b) or 2.13(c), as applicable, of the Credit Agreement.

“Net Disposition Proceeds Account” shall have the meaning set forth in Section 2.3(g) hereof.

“Net Disposition Proceeds Account Withdrawal Certificate” shall mean a certificate in the form of Exhibit G hereto.

“Operating Account” shall have the meaning set forth in Section 2.3(c) hereof.

“Operating Account Withdrawal Certificate” shall mean a certificate in the form of Exhibit D hereto.

“Permitted Tax Distribution” shall mean, as of any Payment Date, the amount of Taxes then due or reasonably expected to become due prior to the next Payment Date in respect of income earned by the Borrower from the Projects, as set forth on the applicable Revenue Account Withdrawal Certificate.

“Policy Proceeds Account” shall have the meaning set forth in Section 2.3(h) hereof.

“Pre-Completion Project Revenues” shall mean any Project Revenues (including all delay in start-up or business interruption Insurance Proceeds) received by the Borrower prior to the date of Completion.

[***] Confidential Treatment Requested

4

“Prepayment Account” shall have the meaning set forth in Section 2.3(i) hereof.

“Policy Proceeds Account Withdrawal Certificate” shall mean a certificate in the form of Exhibit H hereto.

“Prepayment Account Withdrawal Certificate” shall mean a certificate in the form of Exhibit I hereto.

“Quarterly Date” shall mean the the last Business Day of each March, June, September and December.

“Required DSCR” has the meaning set forth in Section 4.5(c)(vi) hereof.

“Required DSR Balance” shall mean, as of any date, an amount set forth on Schedule 1 which corresponds to such date (which reflects the scheduled debt service projected to be due on the two succeeding Quarterly Dates) as may be adjusted from time to time.

“Revenue Account” shall have the meaning set forth in Section 2.3(b) hereof.

“Revenue Account Withdrawal Certificate” shall mean a certificate in the form of Exhibit E hereto.

“Sub-Account” shall mean any sub-account of an Account that may be established hereunder.

“Term Conversion Date Distribution Conditions” shall mean satisfaction of both (a) the Distribution Conditions and (b) before giving effect to such distributions, the ratio of (i) funded Construction Loans to (ii) equity contributions funded pursuant to the Equity Contribution Agreement, together with the Bloom Closing Date Equity Contribution, shall be no greater than 32:68.

“Trust Estate” shall mean all right, title and interest of the Collateral Agent in, to and under the Account Collateral.

“Uniform Commercial Code” or “UCC” shall mean the Uniform Commercial Code as in effect from time to time in the State of New York; provided that, if by reason of mandatory provisions of Law, the perfection or priority of the security interest granted hereunder in any Account Collateral is governed by the Uniform Commercial Code in effect in a jurisdiction other than the State of New York, the terms “Uniform Commercial Code” and “UCC” shall mean the Uniform Commercial Code as in effect in such other jurisdiction solely for the purposes of the provisions hereof relating to such perfection or priority.

“Withdrawal” shall mean the disbursement by the Collateral Agent and the withdrawal by the Borrower of amounts on deposit in the Accounts pursuant to this Agreement.

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SECTION 1.2. Principles of Interpretation. Except as otherwise expressly provided herein, the principles of interpretation set forth in Section 1.2 of the Credit Agreement shall apply mutatis mutandis to this Agreement.

ARTICLE II

APPOINTMENT OF DEPOSITARY BANK; PROCEDURES;

GOVERNMENT AND ESTABLISHMENT OF ACCOUNTS

SECTION 2.1. Appointment of Depositary Bank. The Collateral Agent, on behalf and at the request of each Lender, hereby appoints the Depositary Bank to act as depositary bank and “securities intermediary” as defined in Section 8-102(a)(14) of Article 8 of the UCC, with such powers as are expressly delegated to the Depositary Bank by the terms of this Agreement, and the Depositary Bank hereby accepts such appointment (and the Borrower hereby consents thereto) as Depositary Bank and as a “securities intermediary” within the meaning of such term as defined in Section 8-102(a)(14) of Article 8 of the UCC.

SECTION 2.2. Accounts. The Depositary Bank shall hold and maintain the Accounts and Sub-Accounts (and the revenues, cash, payments, securities, Loss Proceeds, investments and other amounts on deposit therein) during the term of this Agreement in segregated accounts for disbursement strictly in accordance with the terms hereof.

SECTION 2.3. Creation of Accounts. At the request of the Borrower, the Depositary Bank hereby creates the following accounts (collectively, the “Accounts”) and each such Account shall be a “securities account” (as such term is defined in Section 8-501(a) of the UCC), which shall be maintained at all times in accordance with Section 3.4 hereof until the termination of this Agreement or earlier closure of such Account by the Depositary Bank as expressly contemplated herein:

(a) Construction Account. There is hereby created and established a special, segregated and irrevocable account of the Borrower entitled the “[***]” for the benefit of WILMINGTON TRUST, NATIONAL ASSOCIATION, as Collateral Agent (the “Construction Account”) to be maintained with the Depositary Bank, having account number [***]. No payments shall be made out of such account except for the purposes and on the terms herein stated.

(b) Revenue Account. There is hereby created and established a special, segregated and irrevocable account of the Borrower entitled the “[***]” for the benefit of WILMINGTON TRUST, NATIONAL ASSOCIATION as Collateral Agent (the “Revenue Account”) to be maintained with the Depositary Bank, having account number [***]. No payments shall be made out of such account except for the purposes and on the terms herein stated.

(c) Operating Account. There is hereby created and established a special, segregated and irrevocable account of the Borrower entitled the “[***]” for the benefit of WILMINGTON TRUST, NATIONAL ASSOCIATION

[***] Confidential Treatment Requested

6

[***] as Collateral Agent (the “Operating Account”) to be maintained with the Depositary Bank, having account number [***]. No payments shall be made out of such account except for the purposes and on the terms herein stated.

(d) Debt Service Reserve Account. There is hereby created and established a special, segregated and irrevocable account of the Borrower entitled the “[***]” for the benefit of WILMINGTON TRUST, NATIONAL ASSOCIATION as Collateral Agent (the “Debt Service Reserve Account”) to be maintained with the Depositary Bank, having account number [***]. No payments shall be made out of such account except for the purposes and on the terms herein stated.

(e) Distribution Suspense Account. There is hereby created and established a special, segregated and irrevocable account of the Borrower entitled the “[***]” for the benefit of WILMINGTON TRUST, NATIONAL ASSOCIATION as Collateral Agent (the “Distribution Suspense Account”) to be maintained with the Depositary Bank, having account number [***]. No payments shall be made out of such account except for the purposes and on the terms herein stated.

(f) Loss Proceeds Account. There is hereby created and established a special, segregated and irrevocable account of the Borrower entitled the “[***]” for the benefit of WILMINGTON TRUST, NATIONAL ASSOCIATION as Collateral Agent (the “Loss Proceeds Account”) to be maintained with the Depositary Bank, having account number [***]. No payments shall be made out of such account except for the purposes and on the terms herein stated.

(g) Net Disposition Proceeds Account. There is hereby created and established a special, segregated and irrevocable account of the Borrower entitled the “[***]” for the benefit of WILMINGTON TRUST, NATIONAL ASSOCIATION as Collateral Agent (the “Net Disposition Proceeds Account”) to be maintained with the Depositary Bank, having account number [***]. No payments shall be made out of such account except for the purposes and on the terms herein stated.

(h) Policy Proceeds Account. There is hereby created and established a special, segregated and irrevocable account of the Borrower entitled the “[***]” for the benefit of WILMINGTON TRUST, NATIONAL ASSOCIATION as Collateral Agent (the “Policy Proceeds Account”) to be maintained with the Depositary Bank, having account number [***]. No payments shall be made out of such account except for the purposes and on the terms herein stated.

(i) Prepayment Account. There is hereby created and established a special, segregated and irrevocable account of the Borrower entitled the “[***]” for the benefit of WILMINGTON TRUST, NATIONAL ASSOCIATION as Collateral Agent (the “Prepayment Account”) to be maintained with the Depositary Bank, having account number [***]. No payments shall be made out of such account except for the purposes and on the terms herein stated.

[***] Confidential Treatment Requested

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Neither the Collateral Agent nor the Depositary Bank shall change the name or account number of or, except as expressly set forth herein, close any of the foregoing Accounts without the prior written consent of the Administrative Agent and the Borrower; provided that if such change to any Account is required due to internal operational requirements of the Depositary Bank or Collateral Agent, such consents shall be assumed if the Depositary Bank or Collateral Agent provides written notice of such change no less than ten (10) Business Days prior to such change. Certain additional Sub-Accounts within the Accounts may be established and created by the Depositary Bank, upon its receipt of written notice from the Administrative Agent from time to time in accordance with this Agreement (and the Administrative Agent shall give notice to the Borrower promptly after the creation thereof). Except for the Accounts and Sub-Accounts under this Agreement, the Borrower shall not open or maintain or cause to be opened or maintained with any bank or other financial institution any deposit, savings or other account during the term of this Agreement; provided, however that the Borrower may open and maintain the Local Account, subject to the limitations set forth herein and in other Financing Documents. The Borrower shall at all times maintain, or cause to be maintained, in trust for the benefit of the Collateral Agent on behalf of the Secured Parties, the Accounts with the Depositary Bank. In the event that, in accordance with this Agreement, the Depositary Bank is required to segregate certain monies in an Account from any other amounts on deposit in such Account pending transfer or withdrawal in accordance with this Agreement, the Depositary Bank shall either (i) hold such monies in such Account for use solely for such transfer or withdrawal, or (ii) if requested in a written notice to the Depositary Bank by the Collateral Agent (acting at the direction of the Administrative Agent), create a separate Sub-Account in such Account for such purpose (and the Collateral Agent shall give notice to the Borrower promptly after the creation thereof).

SECTION 2.4. Dominion and Control of Accounts, Funds, and Permitted Investments.

(a) Except as expressly provided herein, all Accounts (and the amounts, Permitted Investments and property on deposit or held therein) shall be under the sole dominion and control of the Collateral Agent, and the Borrower shall have no right of withdrawal in respect of any of the Accounts. The Borrower hereby irrevocably directs and authorizes the Collateral Agent to direct the Depositary Bank to deposit into and withdraw funds from the Accounts in accordance with the terms and conditions of this Agreement and in accordance with instructions from the Administrative Agent (acting at the direction of the Required Lenders).

(b) Pending disbursement of any funds held in any Account or Sub-Account by the Depositary Bank pursuant to this Agreement, such funds shall be invested and reinvested in Permitted Investments, and such Permitted Investments held therein liquidated, at the risk and expense of the Borrower, by the Depositary Bank in accordance with (i) written instructions given to the Depositary Bank by an Authorized Officer of the Borrower (which may be in the form of a standing instruction), so long as Collateral

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Agent has not notified the Depositary Bank that an Event of Default has occurred and is continuing or after Collateral Agent has delivered a written notice to the Depositary Bank that any such Event of Default no longer exists, and (ii) written instructions given to the Depositary Bank by Collateral Agent (at the direction of the Administrative Agent), if Collateral Agent has notified the Depositary Bank that an Event of Default has occurred and is continuing. Absent written instructions from the Borrower or if the Collateral Agent fails to direct the Depositary Bank upon the occurrence of an Event of Default, the amounts held in the Accounts and Sub-Accounts shall remain uninvested. The Depositary Bank shall have no obligation to invest or reinvest the funds if deposited with the Depositary Bank after 11:00 a.m. (New York City time) on such day of deposit. If a selection is not made and a written direction not given to the Depositary Bank, the funds shall remain uninvested with no liability for earnings thereon. It is agreed and understood that the entity serving as the Depositary Bank may earn fees associated with the investments outlined above in accordance with the terms of such investments. In no event shall the Administrative Agent, the Collateral Agent or the Depositary Bank be deemed an investment manager or adviser in respect of any selection of investments hereunder. It is understood and agreed that the Depositary Bank or its affiliates are permitted to receive additional compensation that could be deemed to be in the Depositary Bank’s economic self-interest for (i) serving as investment adviser, administrator, shareholder servicing agent, custodian or sub-custodian with respect to certain of the investments, (ii) using affiliates to effect transactions in certain investments and (iii) effecting transactions in investments. The Depositary Bank may make any and all such investments through its own trust department. None of the Collateral Agent, the Depositary Bank or the Administrative Agent shall be liable for any loss resulting from any Permitted Investment (or any investment or reinvestment therein or liquidation or redemption thereof) from any Account or the sale or redemption thereof except to the extent that such loss results solely from the gross negligence or willful misconduct of the Collateral Agent, the Depositary Bank or the Administrative Agent, as the case may be.

(c) If and when cash is required to be disbursed in accordance with Article IV of this Agreement, and cash is not otherwise available in the Account from which such disbursement is required, the Administrative Agent is authorized, absent instructions from the Borrower and without instructions from any other Person, to direct the Collateral Agent to direct the Depositary Bank in writing to cause Permitted Investments made with funds previously earmarked for such Account to be sold or otherwise liquidated into cash (without regard to maturity) in such manner as the Administrative Agent shall direct; provided that the Administrative Agent’s directions to the Depositary Bank shall specify that such investments are to be liquidated in chronological order of maturity date, from earliest to latest, as so needed using commercially reasonable efforts to minimize the costs and penalties associated with any such liquidation. In the event that any investments are liquidated, neither the Depositary Bank nor the Collateral Agent shall be liable for any loss or penalty relating thereto, except to the extent that such loss or penalty is caused by its gross negligence or willful misconduct. All funds held in any Account by the Depositary Bank, all such Permitted Investments made in respect thereof, and the interest of the Borrower therein shall constitute part of the Account Collateral subject to the security interests created by this Agreement and the other Security Documents and shall not constitute payment of any of the Obligations or any other

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obligations of the Borrower until applied as hereinafter provided. Income, if any, earned on any monies deposited in any Account or Sub-Account, and the proceeds of investments made with such monies, and dividends and income on such investments, if any, shall be credited to the same Account or Sub-Account from which the amounts earning dividends and income are deposited.

(d) All earnings on amounts in any Account or Sub-Account maintained hereunder shall be credited to Borrower for tax reporting purposes. Borrower shall provide the Depositary Bank with its taxpayer identification number, documented, to the extent necessary, by an appropriately executed Form W-9, upon execution of this Agreement. The Form W-9 shall, to the extent necessary, be renewed as required by the Internal Revenue Service of the United States and provided to the Depositary Bank. The Depositary Bank shall be entitled to rely on an opinion of legal counsel (which may be counsel to the Borrower) in connection with the reporting of any earnings with respect thereto. In no event is the Depositary Bank liable or responsible for payment of taxes on any income earned on the Accounts.

SECTION 2.5. Certificates; Method and Timing of Payments and Transfers.

(a) Any certificate or written instruction required to be delivered hereunder by the Borrower shall be executed by an Authorized Officer of the Borrower and delivered to the Depositary Bank, the Collateral Agent and the Administrative Agent prior to

11:00 a.m. (New York City time) at least three (3) Business Days prior to the date of any transfer or distribution contemplated by such certificate or written instruction. In no event shall a certificate be considered delivered hereunder if it is materially incomplete, is not substantially in the form of the corresponding Exhibit or does not otherwise meet the requirements set forth in this Agreement, including any set forth in any Exhibit.

(b) Each certificate submitted by the Borrower to the Administrative Agent pursuant to Section 4.1(b) and Section 4.2 hereof and that is properly completed in accordance with Section 2.5(a) shall be countersigned by the Administrative Agent, the Collateral Agent or the Independent Engineer, to the extent expressly contemplated therein or in the form required by this Agreement. No later than 2:00 p.m. (New York City time) one (1) Business Day prior to the date of the proposed withdrawal or transfer set forth in such certificate, the Administrative Agent shall submit such certificate to the Depositary Bank if such certificate conforms to the form required by this Agreement.

(c) Subject to the timely receipt of a properly completed certificate or written notice, if and as prescribed herein, and to the availability of cash in the applicable Account or Accounts, then no later than 2:00 p.m. (New York City time) on the date specified in such certificate or notice, the Depositary Bank shall make any payment or transfer hereunder required by means of wire transfer of immediately available funds, to the accounts of the payees set forth in such certificate or written instructions or schedule thereto.

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(d) None of the Administrative Agent, the Collateral Agent or the Depositary Bank shall be responsible in any manner for the truth and accuracy of any information contained in any certificate or written notice provided by the Borrower, including any certificate delivered pursuant to Article IV hereof, nor shall the Administrative Agent, the Collateral Agent or the Depositary Bank be required or obligated to examine any such certificate or written notice, except to determine if such document conforms to the form required by this Agreement. Without limiting the generality of the foregoing, in no event shall the Administrative Agent, the Collateral Agent or the Depositary Bank be required to review or examine any other documents in connection with any payment or transfer required hereunder, including without limitation the provisions of any budget.

It is understood that the Depositary Bank with respect to any funds transfer may rely solely upon any account numbers or similar identifying number(s) provided by the Borrower to identify (i) the payees, (ii) the applicable payee’s bank, or (iii) an intermediary bank. The Depositary Bank may apply any of the funds in the applicable Account for any payment order it executes using any such identifying number, even where the use of the applicable identifying number(s) provided by the Borrower may result in a Person other than the intended payee being paid, or the transfer of funds to a bank other than the intended payee’s bank or intermediary bank (as the case may be).

SECTION 2.6. Security Interest Absolute. All rights of the Collateral Agent, the Administrative Agent and the Depositary Bank and the security interests hereunder shall be absolute and unconditional irrespective of:

(a) any lack of validity or enforceability of any of the Credit Documents or any other agreement or instrument relating thereto;

(b) any change in the time, manner or place of payment of, or in any other term of, all or any of the Obligations, or any other amendment or waiver of or any consent to any departure from the Credit Documents or any other agreement or instrument relating thereto;

(c) any exchange, release or non-perfection of any other collateral, or any release or amendment or waiver of or consent to any departure from any guaranty, for all or any of the Obligations; or

(d) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Borrower or a third party pledgor.

SECTION 2.7. Termination. The rights and powers granted herein to the Collateral Agent have been granted in order to perfect its security interests in the Accounts, are powers coupled with an interest and will neither be affected by the bankruptcy of the Borrower nor by the lapse of time. The obligations of the Collateral Agent hereunder shall continue in effect until the Loan Termination Date.

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ARTICLE III

ASSIGNMENT, PLEDGE AND GRANT OF SECURITY INTERESTS

SECTION 3.1. Assignment by the Borrower.

(a) To secure the prompt and complete payment and performance when due (whether at stated maturity, upon acceleration or otherwise) of all Obligations, whether now existing or hereafter arising, the Borrower hereby pledges, charges, assigns, transfers and grants to the Collateral Agent for the benefit of the Secured Parties, and creates in favor of the Collateral Agent (for the benefit of the Secured Parties), a first priority Lien on, and perfected security interest in and to, all of the Borrower’s right, title and interest in, to and under the following, whether now owned by the Borrower or hereafter acquired and whether now existing or hereafter coming into existence, and wherever located (the following, collectively the “Account Collateral”):

(i) all Project Revenues;

(ii) all Loss Proceeds;

(iii) all equity contributions;

(iv) each Account and Sub-Account, all cash deposited in such Account or Sub-Account and all certificates and instruments, if any, from time to time credited to any Account or Sub-Account;

(v) all investments made from time to time with respect to any Account (including, without limitation, all Permitted Investments);

(vi) any instruments, documents or investment property (as each such term is defined in Section 9-102(a) of the UCC), all notes and certificates of deposit from time to time hereafter delivered to or otherwise possessed by the Collateral Agent in substitution for, or in addition to, any or all of the foregoing;

(vii) all interest, dividends, cash, instruments, and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the foregoing; and

(viii) to the extent not covered above, all proceeds and products of, and any collections, earnings, additions, accruals and substitutions with respect to, any and all of the foregoing.

(b) As long as no Default or Event of Default has occurred or is continuing, any voluntary equity contribution by an Equity Investor after the Closing Date shall be deposited and applied as directed by such Equity Investor or the Borrower in writing, including, without limitation, (i) deposited into the Construction Account for application to Project Costs, (ii) deposited into the Operating Account to pay Operation and Maintenance Expenses, (iii) deposited into the Revenue Account to be treated as Project Revenues, (iv) deposited into the Debt Service Reserve Account to satisfy Borrower’s obligation under Section 7.1(q) of the Credit Agreement, or (v) deposited into the Loss Proceeds Account to pay for works or the acquisition of property to restore the affected Project(s) after an Event of Loss and/or to satisfy the Conditions to Release of Funds.

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SECTION 3.2. Borrower Acknowledgment. Subject to the terms and conditions of this Agreement and the other Credit Documents (including, without limitation, all rights and remedies granted to the Collateral Agent), the Borrower hereby irrevocably relinquishes to the Collateral Agent for the benefit of the Secured Parties until the Loan Termination Date all right, title and interest which the Borrower has in the Account Collateral.

SECTION 3.3. Procedures Governing Accounts.

(a) The Depositary Bank hereby agrees to act as such strictly in accordance with the terms of this Agreement, including, without limitation, (i) accepting all amounts and Permitted Investments received or held by the Depositary Bank, (ii) depositing or crediting promptly all such amounts and Permitted Investments received into the Accounts, and (iii) holding and maintaining the Accounts (and the proceeds of Loans, Operating Cash available for Debt Service, Loss Proceeds, Cash, payments, securities, investments and other amounts to the extent such amounts are on deposit therein) during the term of this Agreement in segregated accounts for disbursement.

(b) Each Account is a “securities account” as such term is defined in Section 8-501(a) of the UCC. The Depositary Bank shall treat the amounts and Permitted Investments and any other property, and all rights related thereto, now or hereafter deposited in or credited to the Accounts as “financial assets” (as defined in Section 8-102(a)(9) of the UCC) to be held by the Depositary Bank, acting as a “securities intermediary” (as defined in Section 8-102(a)(14) of the UCC), and shall treat the Collateral Agent as entitled to exercise the rights as to any “financial asset” (as defined in Section 8-102(a)(9) of the UCC) credited to any Account. The Collateral Agent is the “entitlement holder” (as defined in Section 8-102(a)(7) of the UCC) of each such “financial asset” (as defined in Section 8-102(a)(9) of the UCC) and, except as provided herein, no such “financial asset” (as defined in Section 8-102(a)(9) of the UCC) will be registered in the name of, payable to the order of or specially indorsed, to the Borrower.

(c) All amounts and Permitted Investments and other property delivered to the Depositary Bank pursuant to this Agreement or the other Security Documents (i) shall be promptly credited to the Account or Sub-Account directed by the party delivering such Account Collateral or otherwise designated herein, (ii) shall constitute a part of the Account Collateral, and (iii) shall not constitute payment of any Obligations or any other obligation of the Borrower until applied as hereinafter provided.

(d) In the event that any of the Accounts is not considered a “securities account” (within the meaning of Section 8-501(a) of the UCC) under applicable Law, such Account shall be deemed to be a “deposit account” (as defined in Section 9-102(a)(29) of the UCC) to the extent a security interest can be granted and perfected under the UCC in such Account, as applicable, as a deposit account, which Collateral

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Agent shall maintain with Depositary Bank acting not as a securities intermediary but as a “bank” (within the meaning of Section 9-102(a)(8) of the UCC). The Collateral Agent, acting on behalf of the Secured Parties, shall be deemed to be the “customer” of the Depositary Bank (within the meaning of Section 9-104(a)(3) of the UCC) for purposes of any Account deemed to be a deposit account and as such shall be entitled to all of the rights that customers of banks have under applicable Law with respect to deposit accounts, including the right to withdraw funds from, or close, such Account (which rights shall be exercised in accordance with the terms of this Agreement and the other Financing Documents) and the Borrower hereby irrevocably consents to Collateral Agent being deemed the “customer” of the Depositary Bank hereunder. The Depositary Bank shall not have title to the funds on deposit in any Account deemed to be a “deposit account” (as defined in Section 9-102(a)(29) of the UCC) and shall credit such Account with all receipts of dividends and other income received on the property held in such Account in accordance with the terms of this Agreement. The Depositary Bank shall administer and manage any Account deemed to be a deposit account in compliance with all of the terms applicable to such Account pursuant to the terms of this Agreement, including complying with all instructions by Collateral Agent directing disposition of the funds in any Account in accordance with the terms of this Agreement, without further consent of the Borrower (except as provided in Section 2.4 hereof with respect to Permitted Investments).

(e) Regardless of any provision in any other agreement and for purposes of the UCC, with respect to the Depositary Bank, the State of New York shall be deemed to be the “securities intermediary’s jurisdiction” (as defined in Section 8-110(e) of the UCC) or, if applicable, the “bank’s jurisdiction” (as defined in Section 9-304(b) of the UCC) with respect to the Accounts.

(f) In the event that any of the Accounts is not considered a “securities account” or a “deposit account” under applicable Law or a security interest cannot be granted and perfected in such Account under the UCC, then such Account and all property deposited therein shall be deemed to be under the exclusive dominion and control of the Secured Parties which the Secured Parties shall maintain through the Collateral Agent and the Depositary Bank as their agents for such purpose, and the Collateral Agent and the Depositary Bank shall act and shall be deemed to be acting as the Secured Parties’ agents in respect of any such Accounts for the purpose of maintaining such exclusive dominion and control for the purpose of the creation and perfection of security interests in favor of the Secured Parties.

(g) At all times prior to the termination of this Agreement, the Collateral Agent shall have “control” (within the meaning of Sections 8-106 and 9-106 of the UCC) of the “securities accounts” and the “securities entitlements” (within the meaning of Sections 8-501(a) and 8-102(a)(17), respectively, of the UCC) carried in the Accounts and of the “financial assets” (within the meaning of Section 8-102(a)(9) of the UCC) deposited in or credited to the Accounts and shall also have “control” (within the meaning of Section 9-104 of the UCC) of the Accounts deemed to be “deposit accounts” (as defined in Section 9-102(a)(29) of the UCC) and any and all Permitted Investments deposited therein or credited thereto, and the Borrower hereby disclaims any entitlement to claim control of the Accounts or any such securities entitlements, financial assets or other Permitted Investments except for the rights specifically granted to the Borrower herein.

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(h) Notwithstanding anything to the contrary set forth herein or in any other Financing Document, the Depositary Bank hereby agrees that it will comply with “Entitlement Orders” (within the meaning of Section 8-102(a)(8) of the UCC, including, without limitation, any notification to the Depositary Bank directing transfer or redemption of any securities or other financial assets in any Account) issued by the Collateral Agent and relating to any Account without the requirement of further consent by the Borrower or any other Person (except as provided in Section 2.4 hereof with respect to Permitted Investments). The Borrower consents to the Depositary Bank agreeing to accept Entitlement Orders from the Collateral Agent. Notwithstanding any other provision of this Agreement, the Depositary Bank has no obligation to determine or investigate whether the Collateral Agent is authorized under the terms of this Agreement or any other agreement to issue any Entitlement Order before complying with such Entitlement Order.

(i) The Accounts and Sub-Accounts described in Section 2.3 hereof shall be established by the Borrower in the name of the Collateral Agent for the benefit of the Secured Parties. All amounts and Permitted Investments and any other property from time to time held in or credited to each Account or Sub-Account shall be (i) registered in the name of the Depositary Bank, or (ii) indorsed to the Depositary Bank or in blank or credited to another account maintained in the name of Depositary Bank. In no case will any amounts or Permitted Investments or other property deposited in or credited to any Account be registered in the name of the Borrower, payable to the order of the Borrower or specially indorsed to the Borrower, except as provided herein or to the extent the foregoing have further been specially indorsed to the Depositary Bank or in blank.

(j) In the event that the Depositary Bank has or subsequently obtains by agreement, operation of Law or otherwise a security interest in any Account or Sub-Account or any security entitlement (within the meaning of Section 8-102(a)(17) of the UCC) credited thereto, the Depositary Bank hereby agrees that such security interest shall be subordinate to the security interest of the Collateral Agent. The financial assets and other items deposited in any Account or Sub-Account will not be subject to deduction, set-off, banker’s lien, or any other right in favor of any Person other than the Collateral Agent (except that the Depositary Bank may set-off (i) all amounts due to it with respect to its fees and expenses for the maintenance and operation of any Account or Sub-Account (as itemized in a prior written notice delivered by the Depositary Bank to the Borrower), and (ii) the face amount of any checks which have been credited to any Account but are subsequently returned or unpaid because of uncollected or insufficient funds).

(k) There are no other agreements entered into between the Depositary Bank and the Borrower with respect to any of the Accounts. In the event of any conflict between this Agreement (or any portion hereof) and any other agreement now existing or hereafter entered into regarding the Accounts, the Depositary Bank and the Borrower agree that the terms of this Agreement shall prevail.

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(l) Except for the claims and interest of the Collateral Agent and of the Borrower in the Accounts, no officer of the Depositary Bank with direct responsibility for administering this Agreement has actual knowledge of any claim to, or interest in, the Accounts or any monies or any other property deposited therein or credited thereto. If an officer of the Depositary Bank with direct responsibility for administering this Agreement obtains actual knowledge that any Person has asserted any lien, encumbrance or adverse claim against the Accounts or in any amounts, Permitted Investments or any other property deposited therein or credited thereto, the Depositary Bank will promptly notify the Administrative Agent, the Collateral Agent and the Borrower thereof. The Depositary Bank agrees that all property delivered to the Depositary Bank pursuant to any of the Financing Documents will be promptly credited to the Accounts.

ARTICLE IV

THE ACCOUNTS

SECTION 4.1. Construction Account.

(a) Upon receipt by the Depositary Bank, the following amounts shall be deposited into the Construction Account:

(i) the proceeds of the Construction Loans disbursed on any Borrowing Date;

(ii) the proceeds of all cash equity contributions made to the Borrower pursuant to the Equity Contribution Agreement;

(iii) all Pre-Completion Project Revenues transferred from the Revenue Account pursuant to Section 4.2(c);

(iv) all Loss Proceeds received by the Borrower on or prior to the Term Conversion Date; and

(v) all other amounts permitted or required to be transferred to the Construction Account from any other Account as provided in this Agreement.

(b) Unless there shall have occurred and be continuing an Event of Default or an Event of Default will occur upon giving effect to the application described herein (except as provided in Section 8.1), on each Disbursement Date (but not more often than once per month), the Borrower may withdraw amounts in the Construction Account to pay for Project Costs actually due and payable on such date or which are not yet due and payable but which the Borrower reasonably anticipates will become so within thirty (30) days after such Disbursement Date (or within forty-five (45) days in the case of the PUMA, without duplication), in each case to the payees entitled to receive such amounts (or for deposit in the Local Account for payment to such payees as set forth in the applicable Construction Account Withdrawal Certificate) in accordance with the

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applicable Construction Account Withdrawal Certificate. Such Construction Account Withdrawal Certificate shall be delivered concurrently with the delivery of a Drawdown Certificate by the Borrower to the Administrative Agent and the Independent Engineer pursuant to Section 3.2(d)(i) of the Credit Agreement. All such Withdrawals shall be made pursuant to a Construction Account Withdrawal Certificate, duly completed and delivered by the Borrower to the Administrative Agent, the Collateral Agent and the Depositary Bank in accordance with Section 2.5 hereof.

(c) On the Term Conversion Date, the Depositary Bank shall transfer the funds on deposit in the Construction Account as follows:

First, transfer to a designated “completion” Sub-Account of the Construction Account, an amount equal to the sum of (1) any Project capital costs which the Borrower reasonably anticipates will become due and payable under the PUMA after the Term Conversion Date (as certified by the Independent Engineer) plus (2) costs related to completion of the Projects (as certified by the Independent Engineer).

Second, transfer (in accordance with Section 4.2(b) hereof) to the Debt Service Reserve Account funds sufficient to cause the balance in the Debt Service Reserve Account, when added to any letters of credit posted by the Borrower, to equal the then-applicable Required DSR Balance.

Third, transfer to the Prepayment Account an amount equal to the Conversion Payoff to be applied towards mandatory prepayment of the Loans pursuant to Section 2.13(g) of the Credit Agreement.

Fourth, (i) if the Term Conversion Date Distribution Conditions are satisfied, distribute remaining amounts on deposit in the Construction Account, except to the extent otherwise directed by both Sponsors, in writing, distribute the remaining amounts on deposit in the Construction Account to the Sponsors pro rata in accordance with their respective Applicable Sponsor Share and (ii) if the Term Conversion Date Distribution Conditions are not satisfied, transfer remaining amounts on deposit in the Construction Account to the Revenue Account for application in accordance with Section 4.2.

SECTION 4.2. Revenue Account.

(a) Except as otherwise provided in Section 4.2(b), the following amounts shall be deposited into the Revenue Account directly, or if received by the Borrower, as soon as practicable upon receipt, in either case in accordance with this Section 4.2(a):

(i) all Project Revenues; and

(ii) all other amounts required to be transferred to the Revenue Account from any other Account as contemplated under this Agreement.

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(b) Exclusions. The following amounts shall not be required to be deposited into the Revenue Account and shall instead be deposited or paid as follows:

(i) any proceeds described in Section 4.9(a)(iii) shall be deposited into the Prepayment Account pursuant to Section 4.9(a); and

(ii) any proceeds from Excluded Transaction Document Claims shall be paid to the Sponsors or their designees pursuant to the written direction of the Borrower.

If any of the amounts required to be deposited with the Depositary Bank in accordance with the terms of this Agreement are received by the Borrower (or any Affiliate of the Borrower), the Borrower shall (or shall cause any such Affiliate to) hold such payments in trust for the Collateral Agent and shall promptly remit such payments to the Depositary Bank for deposit in the Revenue Account (or such other Account designated herein), in the form received, with any necessary endorsements.

In the event the Depositary Bank receives amounts, Permitted Investments or other property without adequate instruction with respect to the proper Account in which such amounts, Permitted Investments or other property are to be deposited, the Depositary Bank shall deposit such amounts, Permitted Investments or other property into the Revenue Account and segregate such amounts, Permitted Investments or other property from all other amounts, Permitted Investments or other property on deposit in the Revenue Account and shall within three (3) Business Days notify the Borrower, the Administrative Agent and the Collateral Agent of the receipt of such amounts, Permitted Investments or property.

(c) Prior to the Completion Date, the Borrower may direct the Depositary Agent to transfer monies on deposit in the Revenue Account to the Construction Account upon delivery of an Officer’s Certificate to be received by the Depositary Agent (with a copy to the Administrative Agent) at least one (1) Business Day prior to the proposed transfer date.

(d) On the Term Conversion Date, in the event that the amounts available for funding the Debt Service Reserve Account is less than the Required DSR Balance (and the Borrower has not posted letters of credit in the amount of such shortfall) and following the application of funds on deposit in the Construction Account in accordance with Section 4.1(c), Clause Second, the Depositary Bank shall transfer, in accordance with a certificate from the Borrower, the funds on deposit in the Revenue Account to the Debt Service Reserve Account to the extent necessary to cause the balance therein, when added to the amounts available for funding to the Debt Service Reserve Account and any letters of credit posted by the Borrower, to equal the then-applicable Required DSR Balance (to the extent funds are available in the Revenue Account, in accordance with Section 4.1(c), Clause Second). Any amounts remaining in the Revenue Account thereafter shall be retained in the Revenue Account for application in accordance with the remaining clauses of Section 4.1(c).

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(e) Provided that (i) the Collateral Agent has not issued an Entitlement Order to the contrary to the Depositary Bank in accordance with this Agreement and (ii) no Event of Default has occurred and is continuing or will occur upon giving effect to the application described below (except as provided in Section 8.1), the Borrower hereby irrevocably authorizes and directs the Depositary Bank, and the Collateral Agent authorizes the Depositary Bank, to make withdrawals and transfers of amounts (via wire transfer or as otherwise requested), to the extent then available in the Revenue Account, (x) upon the delivery of a certificate duly completed to the Depositary Bank in accordance with Section 2.5 hereof (to the extent required herein), and (y) except otherwise as provided herein, in each case in the amounts (to the extent thereof), at the times, for the purposes and in the order of priority set forth below:

First, on each Monthly Date, the Depositary Bank shall, pursuant to a Revenue Account Withdrawal Certificate, transfer to the Operating Account from the Revenue Account, an amount equal to all Operation and Maintenance Expenses then due and payable, or reasonably anticipated to become due and payable prior to the next Monthly Date (in each case, in the amount set forth therein and certified by the Borrower to have been incurred or reasonably anticipated to be incurred, in each case, in accordance with the Credit Agreement), to the extent funds have not already been withdrawn from the Revenue Account or withdrawn from or deposited into the Operating Account. If the balance outstanding in the Revenue Account is insufficient (when combined with the balance available in the Operating Account on such Monthly Date) to make all payments referenced above which are then due and payable, then the Depositary Bank shall transfer such amounts as shall be necessary to fund such insufficiency from the Distribution Suspense Account.

Second, except to the extent paid as Project Costs, the Depositary Bank shall, on each Monthly Date, pay pro rata to itself for its own account, to the Administrative Agent for the account of the Administrative Agent, to the Collateral Agent for the account of the Collateral Agent and to the Administrative Agent for the account of the other Secured Parties, in each case from amounts on deposit in the Revenue Account, the amount of all fees and expenses required to be paid as of such Monthly Date pursuant to the Financing Documents, including pursuant to Sections 2.24, 9.1 and 9.2 of the Credit Agreement and Section 6.1 of this Agreement.

Third, except to the extent paid as Project Costs, the Depositary Bank shall, on each Quarterly Date, pay to the Administrative Agent for the account of the Secured Parties, ratably in proportion to the respective amounts described in this Clause Third payable to them, from amounts on deposit in the Revenue Account, the amount of all interest due on all Loans on such Quarterly Date and the amount of all net scheduled payments due in respect of any Required Hedging Agreement entered into with any Secured Hedge Counterparty.

Fourth, except to the extent paid as Project Costs, the Depositary Bank shall, on each Payment Date, pay to the Administrative Agent for the account of the Secured Parties, ratably in proportion to the respective amounts described in this Clause Fourth payable to them, from amounts on deposit in the Revenue Account, the amount of (i) principal due on the Term Loans (as determined in accordance with Section 2.1(d) of the Credit Agreement) and (ii) any Hedge Termination Value payable in respect of any Required Hedging Agreement entered into with any Secured Hedge Counterparty.

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Fifth, on (A) each Monthly Date and (B) on any Defaulting Lender Shortfall Date (upon receipt of a Defaulting Lender Shortfall Notice), but only to the extent that the amounts on deposit in the Debt Service Reserve Account is less than the Required DSR Balance (and the Borrower has not posted letters of credit in the amount of such shortfall), the Depositary Bank shall transfer to the Debt Service Reserve Account from amounts remaining on deposit in the Revenue Account (or on any Defaulting Lender Shortfall Date from any amounts on deposit in the Revenue Account or the Distribution Suspense Account), funds sufficient to cause the balance in the Debt Service Reserve Account, when added to the amounts on deposit in the Debt Service Reserve Account and any letters of credit posted by the Borrower, to equal the then-applicable Required DSR Balance.

Sixth, except to the extent paid as Project Costs, the Depositary Bank shall, on each Payment Date, pay to the Administrative Agent for the account of the Secured Parties, from amounts on deposit in the Revenue Account, first, any reimbursement obligations with respect to Letters of Credit and second, the amount of principal due on the LC Loans, if any.

Seventh, except to the extent paid as Project Costs, the Depositary Bank shall, on each Payment Date, pay to the Administrative Agent for the account of the Secured Parties, ratably in proportion to the respective amounts set forth in the Revenue Account Withdrawal Certificate, from amounts on deposit in the Revenue Account, any Cash Collateralization of the outstanding Letters of Credit as required under the Credit Agreement.

Eighth, on each Payment Date, and provided that no Default or Event of Default shall have occurred and be continuing, the Depositary Bank shall transfer to the Equity Investors from amounts remaining on deposit in the Revenue Account, funds in an amount equal to any then-applicable Permitted Tax Distribution.

Ninth, (i) on each Payment Date on and after the third (3rd) anniversary of the Term Conversion Date and before the fourth (4th) anniversary of the Term Conversion Date, and after giving effect to the withdrawals and transfers specified in Clauses First through Eighth above, transfer to the Prepayment Account an amount equal to fifty percent (50)% of Excess Cash Flow as of such Payment Date to be applied towards mandatory prepayment of the Loans pursuant to Section 2.13(h) of the Credit Agreement and (ii) on each Payment Date on and after the fourth (4th) anniversary of the Term Conversion Date and before the Loan Termination Date, and after giving effect to the withdrawals and transfers specified in Clauses First through Eighth above, transfer to the Prepayment Account an amount equal to seventy-five percent (75)% of Excess Cash Flow as of such Payment Date to be applied towards mandatory prepayment of the Loans pursuant to Section 2.13(h) of the Credit Agreement.

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Tenth, on each Payment Date, if the Tracking Account (as defined in the Policy) has a positive balance, the Depositary Bank shall transfer to the Insurer as directed by the Borrower pursuant to a Revenue Account Withdrawal Certificate, an amount equal to the lesser of (x) the amount on deposit in the Revenue Account and (y) the positive balance in the Tracking Account.

Eleventh, on each Payment Date, the Depositary Bank shall transfer to the Distribution Suspense Account the remainder, if any, of the amounts on deposit in the Revenue Account after making each of the applicable withdrawals and transfers specified above pursuant to a Revenue Account Withdrawal Certificate delivered by the Borrower to the Administrative Agent, the Collateral Agent and the Depositary Bank in accordance with Section 2.5 hereof.

(f) Prior to the Term Conversion Date, to the extent that amounts on deposit in the Revenue Account exceed Operation and Maintenance Expenses due and payable prior to the next Monthly Date, the Borrower may transfer such excess amounts to the Construction Account.

SECTION 4.3. Operating Account.

(a) The Depositary Bank shall deposit into the Operating Account all amounts required to be deposited into the Operating Account pursuant to Clause First of Section 4.2(e).

(b) The Operating Account shall be maintained as a revolving fund from which the Borrower shall have the right, subject to the limitations set forth in this Agreement, to withdraw funds at any time under this Section 4.3(b) for the payment of Operation and Maintenance Expenses, for the purposes set forth in Clause First of Section 4.2(e) hereof, in the amounts and to the payees set forth in the applicable Operating Account Withdrawal Certificate (or for deposit in the Local Account for application in accordance with the Operating Account Withdrawal Certificate) so long as no Event of Default has occurred and is continuing or will occur upon giving effect to the application set forth therein (except as provided in Section 8.1) , it being understood that the Depositary Bank shall have no obligation to determine if an Event of Default will occur as a result of the application as set forth herein.

SECTION 4.4. Debt Service Reserve Account.

(a) No later than the Term Conversion Date, the Borrower shall cause the Debt Service Reserve Account to be funded in an amount equal to the then-applicable Required DSR Balance, less amounts available for funding to the Debt Service Reserve Account under any letters of credit posted by the Borrower first, on the Term Conversion Date, only by transferring amounts on deposit in the Construction Account to the Debt Service Reserve Account in accordance with Section 4.1(c), Clause Second, second by transferring amounts on deposit in the Revenue Account to the Debt Service Reserve Account on the Term Conversion Date in accordance with Section 4.2(d) pursuant to a Revenue Account Withdrawal Certificate, delivered by the Borrower to the

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Administrative Agent, the Collateral Agent and the Depositary Bank in accordance with Section 2.5 hereof and third by transferring amounts on deposit in the Revenue Account to the Debt Service Reserve Account in accordance with Clause Fifth of Section 4.2(e) pursuant to a Revenue Account Withdrawal Certificate, delivered by the Borrower to the Administrative Agent, the Collateral Agent and the Depositary Bank in accordance with Section 2.5 hereof. On the Term Conversion Date, after the transfers contemplated above, to the extent the aggregate amount on deposit in the Debt Service Reserve Account on such date is less than the then applicable Required DSR Balance, the Borrower shall cause any such shortfall to be funded by the deposit of cash into the Debt Service Reserve Account. If, after the application of all amounts required pursuant to Clauses First through Fifth of Section 4.2(e) hereof as of any Monthly Date, Quarterly Date, or Payment Date, the aggregate amount on deposit (or available under letters of credit) in the Debt Service Reserve Account on such date is less than the then applicable Required DSR Balance, then the Depositary Bank shall transfer such amounts as shall be necessary to fund such insufficiency from the Distribution Suspense Account. Such amounts shall be held in reserve for application to all or a portion of the then-applicable Obligations pursuant to this Section 4.4.

(b) In addition, on or before the second (2nd) Business Day prior to each Payment Date or any other date upon which payments of Obligations are due, the Administrative Agent shall determine whether amounts then on deposit in the Revenue Account, after providing for payment of amounts under Clause First of Section 4.2(e) then requested to be withdrawn in the Revenue Account Withdrawal Certificate on such upcoming Payment Date, if any, are sufficient to pay amounts due and payable solely to the Secured Parties on such Payment Date under Clauses Second, Third and Fourth of Section 4.2(e) hereof and, if amounts on deposit in the Revenue Account are not sufficient to pay such amounts, shall transfer such amounts first from the Distribution Suspense Account, second from the Policy Proceeds Account and third from the Debt Service Reserve Account in such order, to the extent of such insufficiency (in each case to the extent funds are available in such Accounts).

(c) If an Event of Default shall have occurred and be continuing, all amounts on deposit in the Debt Service Reserve Account at such time shall be held in such Account or distributed solely to the Secured Parties in accordance with the instructions of the Collateral Agent (acting upon the written direction of the Administrative Agent acting at the direction of the Required Lenders), and the Depositary Bank shall disregard any conflicting or inconsistent instructions from the Borrower.

(d) On or before the fifth (5th) Business Day prior to each Payment Date after the Term Conversion Date, upon approval by the Administrative Agent of the schedule of the Required DSR Balance for the six (6) month period beginning on such Payment Date delivered by the Borrower to the Administrative Agent in accordance with Section 2.14(d) of the Credit Agreement, the Administrative Agent shall provide a copy thereof to the Depositary Bank and such copy shall constitute notice to the Depositary Bank of the Required DSR Balance and shall become Schedule 1 to this Agreement. On or before the fifth (5th ) Business Day prior to each Monthly Date after the Term Conversion Date during which any LC Loan remains outstanding, upon approval (in accordance with

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Section 2.14 of the Credit Agreement) by the Administrative Agent of the Required DSR Balance due and payable prior to the next Payment Date, the Administrative Agent shall provide a copy thereof to the Depositary Bank and such copy shall constitute notice to the Depositary Bank of the Required DSR Balance. If the amount on deposit in the Debt Service Reserve Account shall exceed the amount then required as a result of a downward revision in the amount required in accordance with this Section 4.4(d), the Borrower shall deliver an appropriately completed Debt Service Reserve Account Withdrawal Certificate to the Depositary Bank and the Administrative Agent and the Depositary Bank shall transfer such excess amount to the Revenue Account, or if the Debt Service Reserve Account is funded with letters of credit, the Borrower may reduce the amount thereof in an amount equal to such excess.

SECTION 4.5. Distribution Suspense Account.

(a) The Depositary Bank shall deposit, on each Payment Date, the funds into the Distribution Suspense Account as specified in Clause Eleventh of Section 4.2(e) hereof.

(b) The Depositary Bank shall transfer amounts from the Distribution Suspense Account to other Accounts if, and as required, under Sections 4.2(d) and 4.4(b) hereof. In addition, the first Business Day which is at least 30 days following any Payment Date (each such date, a “Distribution Date”), upon receipt of a Distribution Suspense Account Withdrawal Certificate duly completed and delivered in accordance with Section 2.5 hereof within thirty (30) days of such Payment Date certifying that, as of such Payment Date, the Borrower has satisfied all conditions set forth in Section 4.5(c) (the “Distribution Conditions”) such that funds are no longer required to be held in the Distribution Suspense Account but are available for distribution pursuant to the terms of the Credit Documents on the proposed date of Withdrawal, the Depositary Bank shall distribute amounts on deposit in the Distribution Suspense Account in the following order of priority, to the extent funds are available therefor: (i) first, to the extent of any positive balances in the Tracking Account (ii) second, to the account or accounts specified by the Borrower in the other Distribution Suspense Account Withdrawal Certificate.

(c) Notwithstanding anything to the contrary set forth in this Agreement or any other Credit Document, no amount in the Distribution Suspense Account shall be available for distribution to Borrower or any of its Affiliates unless the following conditions have been satisfied:

(i) no Default or Event of Default shall have occurred and be continuing;

(ii) the Debt Service Reserve Account has been funded to the Required DSR Balance (taking into consideration posted letters of credit);

(iii) no LC Loans are outstanding;

(iv) the Term Conversion Date shall have occurred;

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(v) there is no positive balance in the Tracking Account;

(vi) the Borrower has maintained a Debt Service Coverage Ratio, (A) as of the Payment Date immediately preceding such Distribution Date and (B) calculated on the basis of the twelve month period ending on such Payment Date, of no less than [***] (the “Required DSCR”); provided that, to the extent any such Payment Date is less than 12 months after the Term Conversion Date, the Debt Service Coverage Ratio as of such Payment Date shall be calculated solely on the basis of the period between the Term Conversion Date and such Payment Date; and

(vii) The Borrower shall have transferred the applicable percentage of Excess Cash Flow to the Prepayment Account if and to the extent required pursuant to Section 4.2(e), Clause Ninth and shall have made corresponding mandatory prepayments pursuant to Section 2.13(h) of the Credit Agreement.

(d) In the event Borrower fails to maintain the Required DSCR for four (4) or more consecutive Payment Dates, Borrower may, in its sole discretion, either (A) retain in the Distribution Suspense Account any amounts on deposit in the Distribution Suspense Account or (B) transfer any amounts in the Distribution Suspense Account to the Prepayment Account and apply such amounts to prepay the principal amount of the Term Loan pro rata across all remaining payments; provided that, in the event that Borrower fails to maintain the Required DSCR for eight (8) or more consecutive Payment Dates, any amounts that have been on deposit in the Distribution Suspense Account for at least twenty four (24) months as of any such Payment Date shall be transferred on such Payment Date to the Prepayment Account and applied to prepay the principal amount of the Term Loan pro rata across all remaining payments.

(e) Notwithstanding the foregoing, once the Required DSCR is satisfied as of any Payment Date, and so long as all other Distribution Conditions are met as of the related Distribution Date, all amounts in the Distribution Suspense Account as of such Date shall be available for distribution.

(f) Notwithstanding anything to the foregoing set forth in this Section 4.5 but subject to Section 2.12 of the Credit Agreement, on each Monthly Date the Borrower may apply any amounts in the Distribution Suspense Account to repay any outstanding LC Loans.

SECTION 4.6. Loss Proceeds Account.

(a) The Net Available Amount of all Loss Proceeds received by the Borrower shall be deposited into the Loss Proceeds Account or, in the case of the proceeds of any business interruption (or similar) insurance, in the Construction Account prior to the Term Conversion Date and the Revenue Account on or after the Term Conversion Date. If any such Loss Proceeds are received by the Borrower (or any Affiliate of Borrower), such Loss Proceeds shall be received in trust for the Collateral Agent, shall be segregated from other funds of the Borrower (or any Affiliate of Borrower), and shall be forthwith paid into the Loss Proceeds Account or, in the case of the proceeds of any business interruption (or similar) insurance, into the Construction Account prior to the Term Conversion Date and the Revenue Account on or after the Term Conversion Date, in the same form as received (with any necessary endorsement).

[***] Confidential Treatment Requested

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(b) If there shall occur any single Event of Loss with respect to which the replacement value of the item of property subject to the Event of Loss does not exceed [***] the Net Available Amount of any Loss Proceeds in respect of such Event of Loss shall be applied by the Borrower to the prompt payment of the cost of the repair or restoration of such damage or destruction.

(c) If the Borrower receives Loss Proceeds relating to an Event of Loss in respect of a single Event of Loss greater than $[***] (as determined by the replacement value of the item of property subject to the Event of Loss) and the following conditions have been satisfied in the reasonable determination of (and in consultation with the Independent Engineer), or waived by, the Required Lenders (the “Conditions to Release of Funds”):

(i) such damage or destruction does not constitute the destruction of all or substantially all of the Portfolio;

(ii) no Event of Default has occurred and is continuing (other than an Event of Default resulting solely from such damage or destruction) and after giving effect to any proposed repair and restoration, such damage or destruction or proposed repair and restoration will not result in a Default or Event of Default;

(iii) the Borrower and the Independent Engineer certify, and the Required Lenders determine in their reasonable judgment, that repair or restoration of the Projects is technically and economically feasible within a period of one hundred eighty (180) days and that a sufficient amount of funds is or will be available to the Borrower to make such repairs and restorations;

(iv) the Required Lenders in consultation with the Independent Engineer reasonably determine that after repair and restoration, the Projects should be as capable of generating Project Revenues as prior to the casualty and consistent with the Lender Base Case Projections;

(v) (A) no material Permit is necessary to proceed with the repair and restoration and (B) no material amendment to any of the Transaction Documents is necessary for the purpose of effecting the repairs or restorations and (C) no material amendment to this Agreement or any of the Transaction Documents is necessary for the purpose of subjecting the repairs or restorations to the Liens of the Security Documents; provided that, if any such Permits or amendments are required, the Borrower will be able to obtain such as and when required;

(vi) upon the request of the Required Lenders, a legal opinion delivered to the Required Lenders and the Collateral Agent and acceptable to the Required Lenders (acting reasonably) at the Borrower’s expense, opining that that such repairs or restoration are capable of being subject to the Liens of the Security Documents;

[***] Confidential Treatment Requested

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(vii) no periodic payments are being made or required to be made under the Policy; and

(viii) the Collateral Agent shall receive such additional mechanic’s lien waivers, certificates, opinions or other matters as the Required Lenders may reasonably request as necessary or appropriate in connection with such repairs or restoration or to preserve or protect the Lenders’ interests hereunder and in the Collateral,

then the Net Available Amount of such Loss Proceeds shall be applied by the Borrower to the prompt repair or restoration of the Projects in accordance with the following procedures:

(A) the Borrower shall submit a detailed report to Collateral Agent describing the Borrower’s plan for effectuating repairs or restoration, and such report shall be subject to the review and approval of the Required Lenders in consultation with the Independent Engineer (such approval not to be unreasonably withheld, conditioned or delayed); and

(B) from time to time after the Required Lenders shall have duly approved the making of such repairs or restoration, the Collateral Agent’s release of Loss Proceeds for application toward such repairs or restoration shall be conditioned upon the Borrower’s delivery to the Collateral Agent of a certificate in respect of such repairs or restorations stating: (w) in reasonable detail the nature of the works to be effected with such release, (x) estimates of the aggregate cost and the specific amounts requested to be paid over to or upon the order of the Borrower and that such amount is requested to pay the cost thereof, (y) that the aggregate amount requested by the Borrower (when added to any other Loss Proceeds received by the Borrower and any cash equity contributions by the Sponsors received by the Borrower) does not exceed the estimated cost and that a sufficient amount of funds is or will be available to the Borrower for such works, and (z) that no Event of Default has occurred and is continuing other than an Event of Default resulting solely from such damage or destruction.

(d) If the Borrower receives Loss Proceeds relating to an Event of Loss in respect of a single Event of Loss greater than $[***] (as determined by the replacement value of the item of property subject to the Event of Loss) and the Conditions to Release of Funds are not met, then the Net Available Amount of such Loss Proceeds shall be transferred to the Prepayment Account and shall be applied to the mandatory prepayment of the Loans pursuant to Section 2.13(a) of the Credit Agreement; provided that such prepayment shall be limited only to the ratable amount of the Loans related to the Systems affected by such mandatory prepayment event.

(e) If, after Loss Proceeds have been applied to the repair or restoration of the Project as provided in Sections 4.6(a) through (c), of the repayment of the Loans as provided in Section 4.6(d), there remain any excess Loss Proceeds, the Net Available Amount of such Loss Proceeds shall be transferred to the Revenue Account.

[***] Confidential Treatment Requested

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SECTION 4.7. Net Disposition Proceeds Account.

(a) All Net Disposition Proceeds shall be deposited in the Net Disposition Proceeds Account.

(b) The Depositary Bank shall transfer all amounts in the Net Disposition Proceeds Account to the Prepayment Account pursuant to a Net Disposition Proceeds Account Withdrawal Certificate duly completed and delivered in accordance with Section 2.5 hereof to be applied to the prepayment of the Loans in accordance with Section 2.13(c) of the Credit Agreement.

SECTION 4.8. Policy Proceeds Account.

(a) The Borrower shall promptly deposit into the Policy Proceeds Account any net proceeds received from the Insurer under the Policy to the extent not paid directly to the Lenders, pursuant to Section 2.13(d) of the Credit Agreement.

(b) The Depositary Bank shall apply all amounts in the Policy Proceeds Account in accordance with Section 4.4(b), pursuant to a Policy Proceeds Account Withdrawal Certificate.

SECTION 4.9. Prepayment Account.

(a) The Borrower shall deposit, or cause to be deposited in the Prepayment Account, (i) the Conversion Payoff, as required to be deposited therein pursuant to Section 4.1(c), Clause Third, (ii) Excess Cash Flow, as required to be deposited therein pursuant to Section 4.1(c), Clause Ninth, (iii) any proceeds from (A) Borrower’s voluntary disposition of any energy server or Project, (B) refund claims received by the Borrower pursuant to Sections 5.4(c) and 5.7(b) of the PUMA (other than amounts reserved for payment to the Offtakers in accordance with the provisions of the applicable ESA) and (C) any payment of Termination Value or Early Termination Fee, which the Borrower may receive upon the occurrence of a Customer Default or Host Default, as applicable, under each ESA (as defined therein), (iv) amounts in the Distribution Suspense Account, as required to be deposited therein pursuant to Section 4.5(d), (v) Loss Proceeds, as required to be deposited therein pursuant to Section 4.6(d) and (vi) Net Disposition Proceeds, as required to be deposited therein pursuant to Section 4.7(b).

(b) The Collateral Agent, pursuant to a Prepayment Account Withdrawal Certificate delivered by the Borrower, shall instruct the Depositary Bank to transfer funds on deposit in the Prepayment Account in the manner and to the extent set forth in Section 2.13 of the Credit Agreement. Notwithstanding anything herein to the contrary, the Depositary Bank shall be permitted to apply any amounts in any Account to the prepayment of the Loans as permitted by and in accordance with Section 2.13 of the Credit Agreement even if the Borrower has not submitted the applicable certificate or notification for such prepayment required under this Agreement; provided that, if the Borrower has not submitted such applicable certificate or notification, the Depositary Bank shall act at the direction of the Collateral Agent (acting at the direction of the Administrative Agent acting at the direction of the Required Lenders).

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SECTION 4.10. Account Balance Statements. The Depositary Bank shall, as available and after a written request by the Administrative Agent, the Collateral Agent or the Borrower, provide to the Administrative Agent, the Collateral Agent and the Borrower account balance statements in respect of each of the Accounts, any Sub-Accounts and amounts segregated in any of the Accounts. Such balance statements shall also include deposits and transfers to, withdrawals from, and the net investment income or gain received and collected for, each Account, Sub-Account and segregated amount. Such balance statements shall be prima facie evidence of the information set forth therein. In addition, at all times, the Depositary Bank shall provide the Borrower, the Collateral Agent and the Administrative Agent with on-line read-only access to the Accounts and Sub-Accounts to view such information.

SECTION 4.11. Account Closure. On or within three Business Days after the Loan Termination Date (written notice of which shall be provided to the Depositary Bank by the Collateral Agent), any amounts remaining on deposit in all Accounts shall be transferred to the Borrower, and all Accounts shall be closed.

ARTICLE V

DEPOSITARY BANK

SECTION 5.1. Powers and Immunities of Depositary Bank. The Depositary Bank shall not have any duties or responsibilities, except those expressly set forth in this Agreement. Without limiting the generality of the foregoing, the Depositary Bank shall take all actions as the Collateral Agent, at the Administrative Agent’s written direction, shall direct it to perform in accordance with the express provisions of this Agreement. The Depositary Bank shall not be required to ascertain or inquire as to the performance by the Borrower of any of its obligations under this Agreement or any other Credit Document or any other document or agreement contemplated hereby or thereby. Except as otherwise provided under this Agreement, the Depositary Bank shall take action under this Agreement only as it shall be directed in writing by the Collateral Agent in accordance with the express terms of this Agreement. Whenever in the administration of this Agreement the Depositary Bank shall deem it necessary or desirable that a factual matter be proved or established in connection with the Depositary Bank taking, suffering or omitting to take any action hereunder, such matter (unless other evidence in respect thereof is herein specifically prescribed) may be deemed to be conclusively proved or established by a certificate of an Authorized Officer of the Borrower, the Collateral Agent or the Administrative Agent, as appropriate. The Depositary Bank shall have the right at any time to seek instructions concerning the administration of this Agreement from the Collateral Agent, the Administrative Agent or any court of competent jurisdiction. The Depositary Bank shall have no obligation to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder. The Depositary Bank shall not be deemed to have knowledge or notice of the occurrence of any Default or Event of Default unless it shall have received written notice from the Administrative Agent, Collateral Agent, a Lender or the Borrower referring to this Agreement, describing such Default or Event of Default and stating that such notice is a “Notice of Default”. In no event shall the Depositary Bank be liable for indirect, consequential or special damages regardless of the form of action and regardless of

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whether the Depositary Bank was warned of the possibility thereof in advance. Notwithstanding anything to the contrary contained herein, the Depositary Bank shall have no responsibility for preparing, recording, filing, re-recording, or re-filing any financing statement, perfection statement, continuation statement or other instrument in any public office.

SECTION 5.2. Reliance by Depositary Bank. The Depositary Bank shall be entitled to conclusively rely upon and shall not be bound to make any investigation into the facts or matters stated in any certificate or any other notice or other document believed by it to be genuine and to have been signed or sent by or on behalf of the proper Person or Persons, and upon advice or statement of legal counsel, independent accountants and other experts selected by the Depositary Bank, and shall have no liability for its actions taken, suffered or omitted in good faith reliance thereon. Without limiting the foregoing, the Depositary Bank shall be required to make payments to the Collateral Agent and the Administrative Agent for the benefit of the Secured Parties only as set forth herein. The Depositary Bank shall in all cases be fully protected in acting, or in refraining from acting, under this Agreement in accordance with a request of the Collateral Agent or the Administrative Agent, and such request and any action taken or failure to act pursuant thereto shall be binding upon all the Secured Parties. The Depositary Bank shall be fully justified in failing or refusing to take any action under this Agreement (a) if such action would be contrary to applicable Law or the terms of this Agreement, (b) if such action is not specifically provided for in this Agreement, or (c) if the taking of any such action could expose it to potential liability (whether such action is or is intended to be an action of the Depositary Bank or the Lenders), it shall not first be indemnified to its satisfaction by the Borrower or the Lenders against any and all liability and expense which may be incurred by it by reason of taking or continuing to take any such action. Upon request by the Depositary Bank, each of the Collateral Agent and the Administrative Agent agrees to provide to the extent available, or to request from any Secured Party, (i) notice of the amount of outstanding Indebtedness owed by the Borrower to any Secured Party under the Financing Documents, and (ii) any other information that the Depositary Bank may reasonably request in connection with the performance of its responsibilities hereunder. The Depositary Bank shall have no responsibility to confirm the satisfaction of any conditions precedent to the making of any payments required hereunder (other than to confirm it has received any direction expressly required by the terms of this Agreement) nor shall the Depositary Bank have any responsibility to confirm whether the making of any payments hereunder will cause the occurrence of a Default or Event of Default under any Financing Document.

SECTION 5.3. Court Orders. The Depositary Bank is hereby authorized to obey and comply with all writs, orders, judgments, subpoenas, summons or decrees issued by any court or administrative agency affecting any money, documents or things held by the Depositary Bank pursuant to this Agreement. The Depositary Bank shall not be liable to any of the parties hereto or any other Secured Party, their successors, heirs or personal representatives by reason of the Depositary Bank’s compliance with such writs, orders, judgments or decrees, notwithstanding that such writ, order, judgment or decree is later reversed, modified, set aside or vacated.

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SECTION 5.4. Resignation or Removal. Subject to the appointment and acceptance of a successor Depositary Bank as provided below, the Depositary Bank may resign at any time by giving thirty (30) days’ written notice thereof to the Administrative Agent and the Borrower. The Depositary Bank may be removed at any time with cause by the Collateral Agent acting at the direction of the Administrative Agent. As long as no Event of Default has occurred and is continuing, the Borrower shall have the right to remove the Depositary Bank upon thirty (30) days’ notice to the Secured Parties with or without cause, in accordance with this Section 5.4 and effective upon the appointment of a successor Depositary Bank under this Section 5.4, which is reasonably acceptable to the Collateral Agent acting at the direction of the Administrative Agent. In the event the Depositary Bank shall decline to take any action without first receiving adequate indemnity from the Borrower or the Lenders, as the case may be, and, having received such indemnity, shall continue to decline to take such action, the Collateral Agent acting at the direction of the Administrative Agent shall be deemed to have sufficient cause to remove the Depositary Bank. Upon any such resignation or removal, the Collateral Agent acting at the direction of the Administrative Agent shall have the right to appoint a successor Depositary Bank, which Depositary Bank shall be reasonably acceptable to the Borrower (provided that such requirement to be reasonably acceptable to the Borrower shall not apply during the pendency of any Default or Event of Default). Resignation or removal of the Depositary Bank shall become effective upon a successor depositary bank having accepted its appointment. If no successor Depositary Bank shall have been appointed by the Collateral Agent and shall have accepted such appointment within thirty (30) days after the retiring Depositary Bank’s giving of notice of resignation or the removal of the retiring Depositary Bank, then (a) the retiring Depositary Bank may petition a court of competent jurisdiction for the appointment of a successor Depositary Bank, or (b) the retiring Depositary Bank may appoint a successor Depositary Bank, which shall be a bank or trust company reasonably acceptable to the Collateral Agent acting at the direction of the Administrative Agent and the Borrower (provided that such requirement to be reasonably acceptable to the Borrower shall not apply during the pendency of any Default or Event of Default). Upon the acceptance of any appointment as Depositary Bank hereunder by the successor Depositary Bank, (i) such successor Depositary Bank shall thereupon succeed to and become vested with all the rights, powers, privileges and duties of the retiring Depositary Bank, and the retiring Depositary Bank shall be discharged from any further duties and obligations hereunder, and (ii) the retiring Depositary Bank shall promptly transfer all Accounts within its possession or control to the possession or control of the successor Depositary Bank and shall execute and deliver such notices, instructions and assignments as may be necessary or desirable to transfer the rights of the Depositary Bank with respect to the Accounts to the successor Depositary Bank. After the retiring Depositary Bank’s resignation or removal hereunder as Depositary Bank, the provisions of this Article V and of Article VI hereof shall continue in effect for its benefit in respect of any actions taken or omitted to be taken by it while it was acting as the Depositary Bank. If the Depositary Bank consolidates with, merges or converts into, or transfers all or substantially all of its corporate trust assets to, another Person, the resulting, surviving or transferee Person, without further act, shall be the successor Depositary Bank.

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ARTICLE VI

EXPENSES; INDEMNIFICATION; FEES

SECTION 6.1. Indemnification of Collateral Agent and Depositary Bank.

(a) The Borrower agrees to indemnify, reimburse and hold the Collateral Agent and the Depositary Bank, and the Collateral Agent’s and Depositary Bank’s respective Affiliates, successors, assigns, officers, directors, employees, representatives and agents (each being an “Indemnified Group”) harmless from any and all liabilities, obligations, damages, injuries, penalties, claims, demands, actions, suits, judgments and any and all reasonable and documented costs and expenses (including reasonable attorneys’ fees and expenses, including such fees and expenses incurred in connection with any bankruptcy proceeding) (such expenses, in this Section 6.1, the “expenses”) of whatsoever kind and nature imposed on, asserted against or incurred by any Person in such Indemnified Group in any way relating to or arising out of this Agreement or documents executed in connection herewith, or any other Credit Document or the documents executed in connection therewith or connected with the administration of the transactions contemplated hereby and thereby, or the enforcement of any of the terms hereof or thereof, or the preservation of any rights hereunder or thereunder, excluding in each case with respect to any Person in any Indemnified Group, those arising from the gross negligence or willful misconduct of any Person in such Indemnified Group. The Borrower agrees that upon written notice by any Person in any Indemnified Group of the assertion of such a liability, obligation, damage, injury, penalty, claim, demand, action, judgment or suit, the Borrower shall assume full responsibility for the defense thereof if requested to do so by the Collateral Agent or the Depositary Bank, as the case may be.

(b) The Borrower’s obligations in this Section 6.1 shall survive the termination of this Agreement, the payment of the Obligations and the resignation or removal of the Collateral Agent or the Depositary Bank.

SECTION 6.2. Obligations Secured by Account Collateral. Any amounts paid by any Person in any Indemnified Group as to which such Person has the right to reimbursement, and any amounts paid by the Collateral Agent in preservation of any of its rights or interest in the Account Collateral, together with interest on such amounts from the date paid by such Person until reimbursement in full at a rate per annum equal at all times to the Default Rate, shall constitute Obligations secured by the Account Collateral.

ARTICLE VII

CERTAIN OBLIGATIONS AND DUTIES OF THE

DEPOSITARY BANK, THE COLLATERAL AGENT AND THE BORROWER;

POWER OF ATTORNEY

SECTION 7.1. Authorization to Execute Security Documents. The Collateral Agent is hereby authorized by the Administrative Agent (on behalf of each Lender) to, and hereby agrees to, execute and deliver each of the Security Documents requiring execution and delivery by it and to accept delivery from the Borrower of those Security Documents which do not require the Collateral Agent’s execution.

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SECTION 7.2. Duties and Rights of Collateral Agent and the Depositary Bank. The powers conferred on Collateral Agent hereunder are solely to protect its interest (on behalf of the Secured Parties) in the Accounts and the proceeds of financial assets held therein or credited thereto and shall not impose any duty on Collateral Agent to exercise any such powers. Except for the reasonable care of any Account, financial asset or Permitted Investment in its possession or under its control (as the case may be), the performance of its respective obligations hereunder and the other Financing Documents, and the accounting for moneys actually received by it hereunder, Collateral Agent shall have no duty as to any Account or the proceeds of financial assets held therein or credited thereto, or as to the taking of any necessary steps to preserve rights against prior parties or any other rights pertaining to any such Account or proceeds. Each of the Depositary Bank and Collateral Agent is required to exercise reasonable care in the custody and preservation of any Account, financial asset or Permitted Investment in its possession or under its control (as the case may be); provided, however, that (i) the Depositary Bank in any event shall be deemed to have exercised reasonable care in the custody and preservation of any Account if it takes such action for that purpose as Collateral Agent or, at times other than upon the occurrence and during the continuance of any Event of Default, Borrower reasonably requests in writing (and in accordance with the terms of this Agreement), in all events, reasonable care, in administering and accounting for amounts credited to the Accounts and the Permitted Investments purchased with such amounts, but, notwithstanding the foregoing, the failure of the Depositary Bank to comply with any such request at any time shall not in itself be deemed a failure to exercise reasonable care, and (ii) Collateral Agent in any event shall be deemed to have exercised reasonable care in the custody and preservation of any Account if it takes such action for that purpose as Borrower reasonably requests in writing (and in accordance with the terms of this Agreement) at times other than upon the occurrence and during the continuance of any Event of Default, but, notwithstanding the foregoing, the failure of Collateral Agent to comply with any such request at any time shall not in itself be deemed a failure to exercise reasonable care. Nothing in this Section 7.2 shall be construed as limiting Collateral Agent’s maintenance of “control” (within the meaning of Sections 9-104(a)(2) and (3) or Sections 8-106(d)(1) and (2), as applicable, of the UCC) over the Accounts.

SECTION 7.3. Obligation to Take Action. Except as otherwise provided in Article VIII hereof, and subject to the other provisions of this Agreement, the Collateral Agent shall take any action with respect to the Account Collateral (including, without limitation, delivering any draw certificates, reduction certificates, notices or demands for payment) requested in writing by the Administrative Agent; provided, however, that the Collateral Agent shall not be obligated to take any such action which is in conflict with any provisions of Law, this Agreement or the other Credit Documents or with respect to which the Collateral Agent has not received adequate security or indemnity as provided in Section 6.1 hereof or which may subject the Collateral Agent to (a) criminal liability or (b) civil liability or civil litigation for which it has not received adequate indemnity under Section 6.1 hereof in any jurisdiction.

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SECTION 7.4. Power of Attorney. To the fullest extent permitted by Law, the Borrower hereby irrevocably constitutes and appoints the Collateral Agent and any officer or agent of the Collateral Agent, with full power of substitution, as its true and lawful attorney-in-fact with full power and authority in the name of the Borrower or in its own name upon the occurrence and during the continuance of any Event of Default, in each case, that has not been rescinded or waived by the Required Lenders (with notice of such rescission or waiver to the Collateral Agent) for the purpose of carrying out the terms of this Agreement from time to time to take any and all appropriate action and to execute any and all documents and instruments which may be necessary or desirable to accomplish the purposes of this Agreement. The Collateral Agent shall take such actions and execute such documents and instruments pursuant to the written instruction of the Administrative Agent (acting at the direction of the Required Lenders). Without limiting the generality of the foregoing, to the fullest extent permitted by Law in the furtherance of the exercise of such remedies, the Borrower irrevocably grants the Collateral Agent the power and right on behalf of the Borrower upon the occurrence and during the continuance of any Event of Default, and (to the extent permitted by Law and in accordance with the Financing Documents) without notice to or assent by the Borrower, to do the following subject to Article VIII:

(a) to ask for, demand, sue for, collect, receive and give acquittance for any and all moneys due or to become due with respect to the Account Collateral;

(b) to receive, take, indorse, assign and deliver any and all checks, notes, drafts, acceptances, documents and other negotiable and non-negotiable instruments, documents and chattel paper taken or received by the Collateral Agent in connection with this Agreement and with the other Security Documents;

(c) to commence, file, prosecute, defend, settle, compromise or adjust any claim, suit, action or proceeding with respect to the Account Collateral;

(d) to sell, transfer, assign or otherwise deal in or with the Account Collateral or any part of the Account Collateral pursuant to the terms and conditions under this Agreement and under the other Security Documents; and

(e) to do, at its option and at the expense and for the account of the Borrower, at any time or from time to time, all acts and things which are necessary to protect or preserve the Account Collateral or the Trust Estate and to realize upon the Account Collateral.

To the extent reasonably requested by the Collateral Agent, the Borrower shall execute and deliver a separate written instrument confirming the powers herein granted, which instrument shall be enforceable under the applicable Law for the jurisdiction in question. The Borrower hereby acknowledges, consents and agrees that the power of attorney granted pursuant to this Section 7.4 is irrevocable and coupled with an interest.

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The Borrower hereby ratifies all that said attorney-in-fact shall lawfully do or cause to be done in accordance with the terms and provisions hereof. The Borrower hereby acknowledges and agrees that in acting pursuant to this power of attorney the Collateral Agent shall be acting in its own interest and in the interest of the Secured Parties and the Borrower acknowledges and agrees that the Collateral Agent and the Secured Parties shall have no fiduciary duties to the Borrower and the Borrower hereby waives any claims to the rights of a beneficiary or a fiduciary relationship hereunder. The Collateral Agent shall have no obligation to undertake any of the foregoing actions, and, if it takes any such action it shall have no liability to the Borrower to continue the same or for the sufficiency or adequacy thereof.

ARTICLE VIII

REMEDIES

SECTION 8.1. Event of Default.

(a) At any time, if an Event of Default has occurred and is continuing and has not been rescinded or waived by the Required Lenders (as provided in Section 9.10 of the Credit Agreement and with a copy to the Collateral Agent), then all amounts on deposit in each Account, except as otherwise provided herein, at such time shall be held in such Account or distributed solely in accordance with the instructions of the Collateral Agent (acting at the direction of the Administrative Agent acting at the direction of the Required Lenders), and the Depositary Bank shall disregard any conflicting or inconsistent instructions by the Borrower.

(b) The Required Lenders, acting through the Administrative Agent, shall be entitled to withdraw an Enforcement Notice by delivering written notice of such withdrawal to the Collateral Agent (with a concurrent copy to the Depositary Bank and the Borrower).

(c) Upon the occurrence and during the continuance of an Event of Default, Collateral Agent is hereby authorized to direct the Depositary Bank to liquidate or direct the liquidation of any Permitted Investment (without regard to maturity) in order to make or cause to be made any application required by this Agreement. In furtherance, and not in limitation, but without duplication, of any other indemnity or limitation of liability with respect to Collateral Agent or the Depositary Bank contained herein or in any other Financing Document, neither Collateral Agent, the Depositary Bank nor any other Secured Party shall in any way be liable for any losses suffered by Borrower, including losses due to early liquidation or market risk, which are a result of Collateral Agent’s exercise of its authority under this provision (other than any such losses arising from such Secured Party’s gross negligence or willful misconduct).

SECTION 8.2. Directions of the Administrative Agent. Subject to Section 7.3 hereof, if the Collateral Agent has received an Enforcement Notice which has not been withdrawn in accordance with the provisions of Section 8.1(b) hereof, the Administrative Agent, acting at the direction of the Required Lenders, shall have the right (by direction contained in the Enforcement Notice or by a separate instrument in writing executed and delivered to the Collateral Agent, as the Administrative Agent may elect):

(a) to direct the Collateral Agent to exercise, or to refrain from exercising, any right, remedy, trust or power available to or conferred on the Collateral Agent under this Agreement and the other Credit Documents; and

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(b) in connection with a direction under Section 8.1(a) hereof, to direct the time, method and place:

(i) of conducting any proceeding for any right or remedy available to the Collateral Agent;

(ii) of exercising any trust or power conferred on the Collateral Agent;

(iii) for the appointment of a receiver; or

(iv) for the taking of any other action authorized by this Article VIII;

provided that the Collateral Agent shall have received adequate security or indemnity as provided in Section 6.1 hereof.

The Collateral Agent shall be entitled to rely upon any such instruction so given to it without further inquiry and shall not be liable for any action or omission undertaken by it in accordance with such instruction (absent the Collateral Agent’s gross negligence or willful misconduct).

SECTION 8.3. Collateral Agent’s Discretionary Powers. Nothing in this Article VIII shall impair the right of the Collateral Agent in its discretion to take or omit to take any action deemed proper by the Collateral Agent and which action or omission is consistent with any express written direction of the Administrative Agent or with the express provisions of this Agreement, provided, however, the Collateral Agent shall not be under any obligation, as a result of this Section 8.3, to take any action which is discretionary with the Collateral Agent under the provisions of this Agreement or under any other Credit Document, unless so directed by the Administrative Agent. The Collateral Agent shall have the right at any time to seek instructions from the Administrative Agent concerning the administration of this Agreement, and to request, and receive, direction from the Administrative Agent pursuant to Section 8.2 hereof.

SECTION 8.4. Entitlement to Exercise Remedies. If, and only if, the Collateral Agent has received an Enforcement Notice and such Enforcement Notice has not been withdrawn in accordance with the provisions of this Agreement, the Collateral Agent shall issue entitlement orders and exercise the rights and remedies provided in this Article VIII and the remedies provided in the Security Documents pursuant to and in accordance with applicable Law and the Financing Documents and, specifically, this Article VIII.

SECTION 8.5. Right to Initiate Judicial Proceedings, Etc. Without limiting the provisions of Section 8.4 hereof, if, and only if, the Collateral Agent has received an Enforcement Notice and such Enforcement Notice has not been withdrawn in accordance with the provisions of this Agreement:

(a) the Collateral Agent shall have the right and power (but not the obligation) to institute and maintain such suits and proceedings as may be appropriate to protect and enforce the rights vested in it by this Agreement and each Security Document; and

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(b) the Collateral Agent may (but shall not be obligated to), either after entry or without entry, proceed by suit or suits at law or in equity to enforce such rights and to foreclose upon the Account Collateral and to sell all or, from time to time, any of the Trust Estate under the judgment or decree of a court of competent jurisdiction.

SECTION 8.6. Appointment of a Receiver. If a receiver of the Trust Estate is appointed in judicial proceedings, the Collateral Agent may apply to appoint a receiver. Notwithstanding the appointment of a receiver, the Collateral Agent shall be entitled to retain possession and control of all cash held by, or deposited with, it or its agents or co-trustees pursuant to any provision of this Agreement or any other Security Document.

SECTION 8.7. Remedies Not Exclusive.

(a) No remedy conferred upon or reserved to the Collateral Agent in this Agreement or in the other Security Documents is intended to be exclusive of any other remedy or remedies, but every such remedy shall be cumulative and shall be in addition to every other remedy conferred in this Agreement or in the other Security Documents or now or hereafter existing at law or in equity or by statute.

(b) No delay or omission of the Collateral Agent to exercise any right, remedy or power accruing upon any Event of Default shall impair any such right, remedy or power or shall be construed to be a waiver of or acquiescence in any Event of Default. Every right, power and remedy given by this Agreement or any other Security Document to the Collateral Agent may be exercised from time to time and as often as may be deemed expedient by the Collateral Agent.

(c) If the Collateral Agent proceeds to enforce any right, remedy or power under this Agreement or any other Security Document and such proceeding is discontinued or abandoned for any reason or is determined adversely to the Collateral Agent, then, and in every such case, the Borrower, the Collateral Agent and the Secured Parties shall, subject to any effect of, or determination in, such proceeding, severally and respectively, be restored to their former positions and rights under this Agreement and under such other Security Document with respect to the Trust Estate and in all other respects. Thereafter, all rights, remedies and powers of the Collateral Agent shall continue as though no such proceeding had been taken.

(d) All suits or proceedings to assert claims upon or under this Agreement and the other Financing Documents to which the Collateral Agent is a party shall be brought by the Collateral Agent in its name as Collateral Agent and any recovery of judgment shall be held as part of the Trust Estate.

SECTION 8.8. Waiver of Certain Rights. The Borrower, to the fullest extent it may lawfully do so, on behalf of itself and all who may claim through or under it, including, without limitation, any and all subsequent creditors, vendees, assignees and

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lienors, expressly waives and releases any, every and all rights to demand any marshaling of the Trust Estate upon any sale, whether made under any power of sale granted under the Security Documents, or pursuant to judicial proceedings or upon any foreclosure or any enforcement of this Agreement or the other Security Documents and consents and agrees that the Trust Estate may at any such sale be offered and sold as an entirety or in parts.

SECTION 8.9. Limitation by Law. The provisions of this Article VIII are intended to be subject to all mandatory provisions of Laws which may be controlling upon the parties and to be limited to the extent necessary so that they will not render this Agreement invalid or unenforceable in whole or in part.

SECTION 8.10. Waivers. The Borrower hereby waives presentment, demand, protest, notice of acceleration and any prior notice of any kind to the fullest extent permitted by applicable Law in connection with this Agreement, any Account Collateral, or any instrument issued pursuant hereto, except for those notices expressly required to be given in accordance with the terms of this Agreement or any other Credit Document.

SECTION 8.11. Application of Proceeds from Account Collateral. The Collateral Agent shall apply amounts received upon the foreclosure or other realization of the Account Collateral to the following obligations of the Borrower in the following order of priority:

(a) First, ratably to the payment in full of the costs of collection, enforcement or foreclosure due and payable to the Secured Parties pursuant to the Credit Documents and the Required Hedging Agreements.

(b) Second, to payment of that portion of the Obligations constituting fees, costs, expenses (and interest owing thereon (if any)) and any other amounts (including fees, costs and expenses of counsel) payable to the Administrative Agent, Collateral Agent, or Depositary Bank in their respective capacities as such;

(c) Third, to payment of that portion of the Obligations constituting fees, costs, expenses (and interest owing thereon (if any)) and any other amounts (including fees, costs and expenses of counsel and amounts payable under Sections 2.19(b) and 2.24 of the Credit Agreement) payable to the Secured Parties ratably in proportion to the amounts described in this Clause Third payable to them, as certified by the Administrative Agent upon certification of such amounts to the Administrative Agent by each Secured Party;

(d) Fourth, to payment of the portion of the Obligations constituting accrued and unpaid interest (including default interest) with respect to the Loans and upon certification of such amounts to the Administrative Agent by each Secured Hedge Counterparty, net scheduled payments due in respect of any Required Hedging Agreement entered into with any Secured Hedge Counterparty ratably in proportion to the respective amounts described in this Clause Fourth payable to them, as certified by the Administrative Agent but only to the extent that such Required Hedging Agreement has not been terminated;

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(e) Fifth, to the principal amount of the Loans payable to the Lenders (in inverse order of maturity) and upon certification of such amounts to the Administrative Agent by each Secured Hedge Counterparty, any Hedge Termination Value payable in respect of any Required Hedging Agreement entered into with any Secured Hedge Counterparty ratably in proportion to the respective amounts described in this Clause Fifth held by them, as certified by the Administrative Agent;

(f) Sixth, to Insurer to extent of any positive balances in the Tracking Account, as defined in the Policy; and

(g) Seventh, the balance, if any, after all of the Obligations have been paid in full, to the Borrower or as otherwise required by applicable Law.

ARTICLE IX

MISCELLANEOUS

SECTION 9.1. Amendment. None of the terms and conditions of this Agreement may be amended, supplemented, modified or waived, nor may any consent under or with respect to such terms and conditions be granted, unless (a) each of the parties hereto agrees thereto in writing, and (b) such amendment supplement, modification, waiver or consent is executed in accordance with the provisions of Section 9.10 of the Credit Agreement.

SECTION 9.2. Notices. Except as otherwise expressly provided herein, all notices, requests and demands to or upon the respective parties hereto to be effective shall be in writing (including by telecopy or other electronic transmission) and shall be deemed to have been duly given or made when delivered by hand, or upon actual receipt if deposited in the United States mail, postage prepaid, or, in the case of telecopy notice or other electronic transmission, when confirmation of successful transmission is received, or, in the case of a nationally recognized overnight courier service, charges prepaid, one (1) Business Day after delivery to such courier service, addressed, in the case of each party hereto, at its address set forth below, or to such other address as may be designated by any party in a written notice to the other party hereto, provided that notices to the Borrower of changes in the Collateral Agent’s address shall not be effective until received by the Borrower. All such notices and communications shall be directed as follows:

If to the Borrower:

2015 ESA Project Company, LLC

1252 Orleans Drive

Sunnyvale, CA 94089

Attn: [***]

Telephone: [***]

Facsimile: [***]

E-mail: [***]

[***] Confidential Treatment Requested

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If to the Collateral Agent:

Wilmington Trust, National Association

1100 North Market Street

Wilmington, Delaware 19890

Attn: [***]

Telephone: [***]

Facsimile: [***]

If to the Depositary Bank:

Wilmington Trust, National Association

1100 North Market Street

Wilmington, Delaware 19890

Attn: [***]

Telephone: [***]

Facsimile: [***]

If to the Administrative Agent:

Crédit Agricole Corporate and Investment Bank

1301 Avenue of the Americas

New York, NY 10019

Attn: [***]

Telephone: [***]

Facsimile: [***]

SECTION 9.3. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Borrower, the Depositary Bank, the Administrative Agent, the Collateral Agent, the Secured Parties, all future holders of the Obligations and their respective successors and assigns, except that the Borrower may not assign or transfer any of its rights or obligations under this Agreement without the prior written consent of the Collateral Agent (acting at the direction of the Administrative Agent acting at the direction of the Required Lenders).

SECTION 9.4. No Waiver; Remedies Cumulative. No failure or delay on the part of the Collateral Agent or any other Secured Party in exercising any right, power or privilege hereunder and no course of dealing between the Borrower and the Collateral Agent or any other Secured Party shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder or thereunder. The rights and remedies herein expressly provided are cumulative and not exclusive of any rights or remedies which the Collateral Agent or any other Secured Party

[***] Confidential Treatment Requested

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would otherwise have. No notice to or demand on the Borrower in any case shall entitle the Borrower to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the Collateral Agent or any other Secured Party to any other or further action in any circumstances without notice or demand.

SECTION 9.5. Survival. All agreements, statements, representations and warranties made by the Borrower herein or in any certificate or other instrument delivered by the Borrower or on its behalf under this Agreement shall be considered to have been relied upon by the Secured Parties and shall survive the execution and delivery of this Agreement and the other Credit Documents regardless of any investigation made by the Secured Parties or on their behalf until the Loan Termination Date.

SECTION 9.6. Headings Descriptive. The headings of the several Sections and subsections of this Agreement are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Agreement.

SECTION 9.7. No Third Party Beneficiaries. The agreements of the parties hereto are solely for the benefit of the Borrower, the Collateral Agent, the Administrative Agent, the Depositary Bank and the Secured Parties and their respective successors and assigns and no Person (other than the parties hereto and such Secured Parties) shall have any rights hereunder; provided, however, that the Insurer and each Secured Party is a third party beneficiary to this Agreement.

SECTION 9.8. Severability. In case any provision in or obligation under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, (i) the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby, and (ii) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions.

SECTION 9.9. Reinstatement. This Agreement and the obligations of the Borrower hereunder shall continue to be effective or be automatically reinstated, as the case may be, if and to the extent that for any reason any amount received by the Secured Parties in respect of the Obligations is rescinded or otherwise restored, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, all as if such payment had not been made, and the Borrower agrees that it will indemnify the Collateral Agent and its successors and assigns, on demand for all reasonable costs and expenses (including reasonable fees of counsel) incurred by the Collateral Agent and its successors and assigns in connection with any such rescission or restoration.

SECTION 9.10. Counterparts. This Agreement may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which when so executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or pdf shall be effective as delivery of a manually executed counterpart of this Agreement.

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SECTION 9.11. GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.

(a) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK AND WITHOUT REFERENCE TO CONFLICTS OF LAWS (OTHER THAN SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

(b) ANY LEGAL ACTION OR PROCEEDING AGAINST ANY PARTY HERETO WITH RESPECT TO THIS AGREEMENT AND ANY ACTION FOR ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES OF AMERICA FOR THE SOUTHERN DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE BORROWER HEREBY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY, IRREVOCABLY AND UNCONDITIONALLY, THE NON-EXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND APPELLATE COURTS FROM ANY APPEAL THEREOF. THE BORROWER HEREBY IRREVOCABLY DESIGNATES, APPOINTS AND EMPOWERS CT CORPORATION SYSTEM AS ITS DESIGNEE, APPOINTEE AND AGENT TO RECEIVE FOR AND ON ITS BEHALF, AND IN RESPECT OF ITS PROPERTY, SERVICE OF ANY AND ALL LEGAL PROCESS, SUMMONS, NOTICES AND DOCUMENTS WHICH MAY BE SERVED IN ANY ACTION OR PROCEEDING. IF FOR ANY REASON SUCH DESIGNEE, APPOINTEE AND AGENT SHALL CEASE TO BE AVAILABLE TO ACT AS SUCH, THE BORROWER AGREES TO DESIGNATE A NEW DESIGNEE, APPOINTEE AND AGENT IN NEW YORK CITY ON THE TERMS AND FOR THE PURPOSES OF THIS PROVISION SATISFACTORY TO THE COLLATERAL AGENT AND THE ADMINISTRATIVE AGENT. THE BORROWER IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO THE BORROWER AT ITS ADDRESS REFERRED TO IN SECTION 9.2 HEREOF. THE BORROWER HEREBY IRREVOCABLY WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY OF THE AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT BROUGHT IN THE COURTS REFERRED TO ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES, TO THE EXTENT PERMITTED BY APPLICABLE LAW, NOT TO PLEAD OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED IN ANY OTHER JURISDICTION.

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(c) EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT OF TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY MATTER ARISING HEREUNDER. EACH OF THE BORROWER AND THE SECURED PARTIES (i) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER FINANCING DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.11(c).

SECTION 9.12. Financing Statements. The Borrower, at its sole cost and expense, shall cause to be duly filed and recorded, and re-filed and re-recorded, such Financing Statements (or similar statements or instruments of registration under the Law of any jurisdiction), as the Collateral Agent (at the direction of the Administrative Agent acting at the direction of the Required Lenders) may from time to time reasonably request and as are necessary under applicable Law to establish and maintain the security interests contemplated hereunder as valid, enforceable, first priority security interests as provided herein and the other rights and security contemplated herein, all in accordance with the UCC as enacted in any and all relevant jurisdictions or any other applicable Law. The Borrower shall pay any applicable filing fees and related expenses. The Borrower authorizes the Collateral Agent to file any such Financing Statements (or similar statements or instruments of registration under the law of any jurisdiction) without the signature of the Borrower; provided that the Collateral Agent shall give notice to the Borrower after such a filing. Notwithstanding anything to the contrary contained herein, the Collateral Agent shall have no responsibility for preparing, recording, filing, re-recording, or re-filing any financing statement, perfection statement, continuation statement or other instrument in any public office or for otherwise ensuring the perfection or maintenance of any security interest granted pursuant to any Financing Document.

SECTION 9.13. Authority of Collateral Agent. The Borrower acknowledges that the rights and responsibilities of the Collateral Agent under this Agreement with respect to any action taken by the Collateral Agent or the exercise or non-exercise by the Collateral Agent of any option, right, request, judgment or other right or remedy provided for herein or resulting or arising out of this Agreement shall, as between the Collateral Agent and the Secured Parties, be governed by the Credit Agreement and by such other agreements with respect thereto as may exist from time to time among them (including, without limitation, the other Financing Documents), but, as between the Collateral Agent and the Borrower, the Collateral Agent shall be conclusively presumed to be acting as agent for the Secured Parties with full and valid authority so to act or refrain from acting, and the Borrower shall not be under any obligation, or have any entitlement, to make any inquiry respecting such authority. The Collateral Agent shall have all of the rights and benefits afforded it under the Credit Agreement in the administration of this Agreement, as if such rights and benefits were specifically set forth herein, including, but not limited to, the rights and benefits set forth in Article VIII of the Credit Agreement.

42

SECTION 9.14. Termination; Release. This Agreement shall terminate upon the Loan Termination Date, and the Collateral Agent and the Depositary Bank, at the request and expense of the Borrower, shall promptly execute and deliver to the Borrower the proper instruments acknowledging the termination of this Agreement, and shall duly assign, transfer and deliver to Borrower (without recourse and without representation or warranty of any kind) such of the Account Collateral as may be in the possession of the Collateral Agent or the Depositary Bank and has not theretofore been disposed of or otherwise applied or released.

SECTION 9.15. Entire Agreement. This Agreement and any agreement, document or instrument attached hereto or referred to herein integrate all the terms and conditions mentioned herein or incidental hereto and supersede all oral negotiations and prior writings in respect to the subject matter hereof. In the event of any conflict between the terms, conditions and provisions of this Agreement and any such agreement, document or instrument, the terms, conditions and provisions of this Agreement shall prevail.

SECTION 9.16. Force Majeure. None of the Administrative Agent, Collateral Agent or Depositary Bank shall incur any liability for not performing any act or fulfilling any duty, obligation or responsibility under this Agreement by reason of any occurrence beyond its reasonable control and which is not the result of its own willful misconduct or gross negligence (including but not limited to any act or provision of any present or future law or regulation or governmental authority, any act of God or war, civil unrest, local or national disturbance or disaster, any act of terrorism, or the unavailability of the Federal Reserve Bank wire or facsimile or other wire or communication facility).

SECTION 9.17. USA PATRIOT Act Section 326 Customer Identification Program. To help the government fight the funding of terrorism and money laundering activities, pursuant to Federal regulations that became effective on October 1, 2003, Section 326 of the USA PATRIOT Act requires all financial institutions to obtain, verify, and record information that identifies each person establishing a relationship or opening an account with Wilmington Trust, National Association. What this means: Wilmington Trust, National Association will ask for the name, address, tax identification number and other information that will allow it to identify the individual or entity who is establishing the relationship or opening the account and may also ask for formation documents such as articles of incorporation or other identifying documents to be provided.

[SIGNATURE PAGES FOLLOW]

43

IN WITNESS WHEREOF, the parties hereto have caused their duly authorized officers to execute and deliver this Agreement as of the date first above written.

2015 ESA PROJECT COMPANY, LLC, as Borrower
By:	/s/ William E. Brockenborough
	Name: William E. Brockenborough
	Title: Vice President

[Signature Page to Depositary Agreement]

CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as Administrative Agent
By:	/s/ Theodore M. Vandermel
	Name: THEODORE M. VANDERMEL
	Title: Managing Director
By:	/s/ Edward Chu
	Name: EDWARD CHU
	Title: VICE PRESIDENT

[Signature Page to Depositary Agreement]

WILMINGTON TRUST, NATIONAL ASSOCIATION, not in its individual capacity, but as Collateral Agent
By	/s/ Steve Barone
	Name: Steve Barone
	Title: Assistant Vice President

[Signature Page to Depositary Agreement]

WILMINGTON TRUST, NATIONAL ASSOCIATION, not in its individual capacity, but as Depositary Bank
By	/s/ Steve Barone
	Name: Steve Barone
	Title: Assistant Vice President

[Signature Page to Depositary Agreement]

EXHIBIT A

FORM OF DISTRIBUTION SUSPENSE ACCOUNT WITHDRAWAL CERTIFICATE

Date:                    

Wilmington Trust, National Association, as Depositary Agent

1100 North Market Street

Wilmington, Delaware 19890

Attn: [***]

Tel.: [***]

Fax: [***]

Email: [***]

Reference is made to Section 4.5 of the Depositary Agreement (the “Depositary Agreement”), dated as of June 25, 2015, by and among 2015 ESA PROJECT COMPANY, LLC, a Delaware limited liability company (the “Borrower”), CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as administrative agent for the Lenders (together with its successors, designees and assigns in such capacity, the “Administrative Agent”), WILMINGTON TRUST, NATIONAL ASSOCIATION, in its capacity as collateral agent for the benefit of the Secured Parties (together with its successors, designees and assigns in such capacity, the “Collateral Agent”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, in its capacity as depositary bank (together with its successors, designees and assigns in such capacity, the “Depositary Bank”). Capitalized terms used herein but not otherwise defined herein have the meanings set forth in the Depositary Agreement.

[The Borrower hereby directs the Depositary Bank to withdraw and transfer from the Distribution Suspense Account, No. 112632-004, on             , 20     (the “Distribution Suspense Account Withdrawal Date”), in accordance with Section 4.5(b) of the Depositary Agreement, the amounts and to the payees (all such amounts together, the “Restricted Payment”), in each case as set forth on Schedule 1 attached hereto.]

[or]

[Note: This formulation applies only (i) at Borrower’s election, when Borrower fails to maintain the Required DSCR for four (4) or more consecutive Payment Dates, or (ii) when Borrower fails to maintain the Required DSCR for eight (8) or more consecutive Payment Dates: The Borrower hereby directs the Depositary Bank to withdraw and transfer from the Distribution Suspense Account, No. 112632-004, on             , 20     (the “Distribution Suspense Account Withdrawal Date”), in accordance with Section 4.5(d) of the Depositary Agreement,                  Dollars ($                ) to the Prepayment Account.]

[***] Confidential Treatment Requested

1

In support of such direction, the undersigned, on behalf of the Borrower, hereby represents and certifies, as of the date hereof and as of the Distribution Suspense Account Withdrawal Date, as follows:

1. The undersigned is an Authorized Officer of the Borrower;

2. This Distribution Suspense Account Withdrawal Certificate is being delivered to the Depositary Bank with a copy to the Administrative Agent and the Collateral Agent prior to 11:00 a.m. (New York City time) at least three (3) Business Days prior to the Distribution Suspense Account Withdrawal Date;

3. All conditions set forth in the Depositary Agreement for the withdrawal requested hereby have been satisfied;

4. The Debt Service Reserve Account has been funded to the Required DSR Balance (taking into consideration posted letters of credit);

5. No LC Loans are outstanding;

6. The Term Conversion Date shall have occurred;

7. There is no positive balance in the Tracking Account;

8. The historic Debt Service Coverage Ratio for the twelve month period ending on the Payment Date immediately preceding the Distribution Suspense Account Withdrawal Date (calculated on the basis of the twelve month period ending on such Payment Date) is equal to or greater than [***] and a detailed calculation of such ratio is set forth on Schedule 2 hereto.¹

9. The Borrower has transferred the applicable percentage of Excess Cash Flow to the Prepayment Account to the extent required pursuant to Section 4.2(e), Clause Ninth and has made or taken all action to provide for all timely corresponding mandatory prepayments pursuant to Section 2.13(h) of the Credit Agreement;

10. [The Distribution Suspense Account Withdrawal Date is a Distribution Date; and]

11. [Note: Applicable only to withdrawals to repay LC Loans on a Monthly Date: The Distribution Suspense Account Withdrawal Date is a Monthly Date;

12. As set forth on Schedule 1 hereto, the Restricted Payment is being transferred in its entirety to the Administrative Agent for application to the repayment of LC Loans; and]

¹  [To the extent any such Payment Date is less than 12 months after the Term Conversion Date, the Debt Service Coverage Ratio as of such Payment Date shall be calculated solely on the basis of the period between the Term Conversion Date and such Payment Date.]

[***] Confidential Treatment Requested

2

13. No Event of Default has occurred and is continuing, and no Default or Event of Default could reasonably be expected to occur after giving effect to the application of funds contemplated hereby.

[Signature follows on next page.]

cc: Administrative Agent

Collateral Agent

3

IN WITNESS WHEREOF, the undersigned has caused this Distribution Suspense Account Withdrawal Certificate to be executed and delivered as of the day and year first above written.

2015 ESA PROJECT COMPANY, LLC,

as Borrower

By:

Name:

Title:

4

Schedule 1 to

Distribution Suspense Account Withdrawal Certificate

WITHDRAWALS FROM DISTRIBUTION SUSPENSE ACCOUNT

[details to be attached]

Withdrawals from Distribution Suspense Account for the making of Restricted Payments:

Payee	Amount	Wire Instructions
	$

5

Schedule 2 to

Distribution Suspense Account Withdrawal Certificate

CALCULATION OF DEBT SERVICE COVERAGE RATIO

6

EXHIBIT B

FORM OF CONSTRUCTION ACCOUNT WITHDRAWAL CERTIFICATE

Date:                    

Wilmington Trust, National Association, as Depositary Agent

1100 North Market Street

Wilmington, Delaware 19890

Attn: [***]

Tel.: [***]

Fax: [***]

Email: [***]

Reference is made to Section 4.1 of the Depositary Agreement (the “Depositary Agreement”), dated as of June 25, 2015, by and among 2015 ESA PROJECT COMPANY, LLC, a Delaware limited liability company (the “Borrower”), CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as administrative agent for the Lenders (together with its successors, designees and assigns in such capacity, the “Administrative Agent”), WILMINGTON TRUST, NATIONAL ASSOCIATION, in its capacity as collateral agent for the benefit of the Secured Parties (together with its successors, designees and assigns in such capacity, the “Collateral Agent”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, in its capacity as depositary bank (together with its successors, designees and assigns in such capacity, the “Depositary Bank”). Capitalized terms used herein but not otherwise defined herein have the meanings set forth in the Depositary Agreement.

[Note: This formulation applies only to transfers made on a Disbursement Date that is not the Term Conversion Date, and the applicable payees will be paid from the Construction Account: The Borrower hereby directs the Depositary Bank to withdraw and transfer from the Construction Account, No. 112632-000, on                     , 20     (the “Construction Account Withdrawal Date”), in accordance with Section 4.1(b) of the Depositary Agreement, the amounts and to the payees, in each case as set forth on Schedule 1 attached hereto.]

[or]

[Note: This formulation applies only to transfers made on a Disbursement Date that is not the Term Conversion Date, and the applicable payees will be paid from the Local Account: The Borrower hereby directs the Depositary Bank to withdraw and transfer from the Construction Account, No. 112632-000, on                     , 20     (the “Construction Account Withdrawal Date”), in accordance with Section 4.1(b) of the Depositary Agreement,                      Dollars ($                    ) to the Local Account.]

[or]

[Note: This formulation applies only to transfers made on the Term Conversion Date: The Borrower hereby directs the Depositary Bank to withdraw and transfer from the Construction

[***] Confidential Treatment Requested

7

Account, No. 112632-000, on                     , 20     (the “Construction Account Withdrawal Date”) in accordance with Section 4.1(c) of the Depositary Agreement, the following amount:]

(i) in accordance with Clause First of Section 4.1(c) of the Depositary Agreement,                      Dollars ($                    ) to a designated “completion” Sub-Account of the Construction Account;

(ii) in accordance with Clause Second of Section 4.1(c) of the Depositary Agreement,                      Dollars ($                    ) to the Debt Service Reserve Account;

(iii) in accordance with Clause Third of Section 4.1(c) of the Depositary Agreement,                      Dollars ($                    ) to the Prepayment Account; and

(iv) in accordance with Clause Fourth of Section 4.1(c) of the Depositary Agreement, the amounts and to the payees, in each case as set forth on Schedule 1 attached hereto.

(v) [Note: Amounts should only be transferred to the Revenue Account if the Term Conversion Date Distribution Conditions are not satisfied, otherwise any amounts remaining on deposit will be distributed to the Sponsors pro rata in accordance with their respective Applicable Sponsor Share pursuant to clause (iv) above.] in accordance with Clause Fourth of Section 4.1(c) of the Depositary Agreement,                      Dollars ($                    ) to the Revenue Account.

In support of such direction, the undersigned, on behalf of the Borrower, hereby represents and certifies, as of the date hereof and as of the Construction Account Withdrawal Date, as follows: [Note: Each Construction Account Withdrawal Certificate should only list the priorities that are relevant on such Construction Account Withdrawal Date.]

1. [Note: To be included only for withdrawals on any Disbursement Date which is not the Term Conversion Date: The funds to be withdrawn from the Construction Account pursuant to this Construction Account Withdrawal Certificate will be funded directly as instructed to pay for Project Costs actually due and payable on the Construction Account Withdrawal Date or which are not yet due and payable but which the Borrower reasonably anticipates will become so within thirty (30) days after the Construction Account Withdrawal Date (or within forty-five (45) days in the case of the PUMA, without duplication) to the payees entitled to receive such amounts (or for deposit in the Local Account for payment to such payees), as set forth herein;]

2. [In the case of transfers to a designated “completion” Sub-Account of the Construction Account pursuant to Clause First of Section 4.1(c) of the Depositary Agreement, the Construction Account Withdrawal Date is the Term Conversion Date and such amount is equal to the sum of (1) any Project capital costs which the Borrower reasonably anticipates will become due and payable under the PUMA after the Term Conversion Date (as certified by the Independent Engineer) plus (2) costs related to completion of the Projects (as certified by the Independent Engineer);

[***] Confidential Treatment Requested

8

3. In the case of transfers to the Debt Service Reserve Account pursuant to Clause Second of Section 4.1(c) of the Depositary Agreement, the Construction Account Withdrawal Date is the Term Conversion Date, such transfer is in accordance with Section 4.2(b) of the Depositary Agreement and such amount is sufficient to cause the balance in the Debt Service Reserve Account, when added to any letters of credit posted by the Borrower, to equal the then-applicable Required DSR Balance;

4. In the case of transfers to the Prepayment Account pursuant to Clause Third of Section 4.1(c) of the Depositary Agreement, the Construction Account Withdrawal Date is the Term Conversion Date and such amount is equal to the Conversion Payoff to be applied towards mandatory prepayment of the Loans pursuant to Section 2.13(g) of the Credit Agreement;

5. [Note: Amounts should only be transferred to the Sponsors if the Term Conversion Date Distribution Conditions are satisfied] In the case of transfers to the Revenue Account pursuant to Clause Fourth of Section 4.1(c) of the Depositary Agreement, the Construction Account Withdrawal Date is the Term Conversion Date, the Term Conversion Date Distribution Conditions are satisfied and, except to the extent otherwise directed by both Sponsors, in writing, such amounts will be distributed to the Sponsors pro rata in accordance with their respective Applicable Sponsor Share];

6. [Note: Amounts should only be transferred to the Revenue Account if the Term Conversion Date Distribution Conditions are not satisfied] In the case of transfers to the Revenue Account pursuant to Clause Fourth of Section 4.1(c) of the Depositary Agreement, the Construction Account Withdrawal Date is the Term Conversion Date, the Term Conversion Date Distribution Conditions are not satisfied and such amounts will be applied in accordance with Section 4.2 of the Depositary Agreement];

7. The undersigned is an Authorized Officer of the Borrower;

8. This Construction Account Withdrawal Certificate is being delivered to the Depositary Bank with a copy to the Administrative Agent and the Collateral Agent prior to 11:00 a.m. (New York City time) at least three (3) Business Days prior to the Construction Account Withdrawal Date, and such delivery is concurrent with the delivery of a Drawdown Certificate (as defined in the Credit Agreement) by the Borrower to the Administrative Agent and the Independent Engineer pursuant to Section 3.2(d)(i) of the Credit Agreement;

9. The Construction Account Withdrawal Date is a Disbursement Date, and, after giving effect to this Construction Account Withdrawal Certificate, Borrower shall not have withdrawn amounts in the Construction Account more often than twice per month;]

10. All conditions set forth in the Depositary Agreement for the withdrawal requested hereby have been satisfied; and

11. No Event of Default has occurred and is continuing, and no Default or Event of Default could reasonably be expected to occur after giving effect to the application of funds contemplated hereby.

9

[Signature follows on next page.]

cc: Administrative Agent

Collateral Agent

10

IN WITNESS WHEREOF, the undersigned has caused this Construction Account Withdrawal Certificate to be executed and delivered as of the day and year first above written.

2015 ESA PROJECT COMPANY, LLC,

as Borrower

By:

Name:

Title:

11

Schedule 1 to

Construction Account Withdrawal Certificate

WITHDRAWALS FROM CONSTRUCTION ACCOUNT

[details to be included]

Withdrawals from Construction Account for direct payment of Project Costs:

Payee	Amount	Wire Instructions
	$

12

EXHIBIT C

FORM OF LOSS PROCEEDS ACCOUNT WITHDRAWAL CERTIFICATE

Date:                    

Wilmington Trust, National Association, as Depositary Agent

1100 North Market Street

Wilmington, Delaware 19890

Attn: [***]

Tel.: [***]

Fax: [***]

Email: [***]

Reference is made to Section 4.6 of the Depositary Agreement (the “Depositary Agreement”), dated as of June 25, 2015, by and among 2015 ESA PROJECT COMPANY, LLC, a Delaware limited liability company (the “Borrower”), CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as administrative agent for the Lenders (together with its successors, designees and assigns in such capacity, the “Administrative Agent”), WILMINGTON TRUST, NATIONAL ASSOCIATION, in its capacity as collateral agent for the benefit of the Secured Parties (together with its successors, designees and assigns in such capacity, the “Collateral Agent”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, in its capacity as depositary bank (together with its successors, designees and assigns in such capacity, the “Depositary Bank”). Capitalized terms used herein but not otherwise defined herein have the meanings set forth in the Depositary Agreement.

The Borrower hereby directs the Depositary Bank to withdraw and transfer from the Loss Proceeds Account, No. 112632-005, on                     , 20     (the “Loss Proceeds Account Withdrawal Date”) [in accordance with Section [4.6(b)][4.6(c)] of the Depositary Agreement, the amounts and to the payees, in each case as set forth on Schedule 1 attached hereto.] [in accordance with Section 4.6(d) of the Depositary Agreement,                      Dollars ($                    ) to the Prepayment Account.] [in accordance with Section 4.6(e) of the Depositary Agreement,                      Dollars ($                    ) to the Revenue Account.]

In support of such direction, the undersigned, on behalf of the Borrower, hereby represents and certifies, as of the date hereof and as of the Loss Proceeds Account Withdrawal Date, as follows:

1. The undersigned is an Authorized Officer of the Borrower;

2. This Loss Proceeds Withdrawal Certificate is being delivered to the Depositary Bank with a copy to the Administrative Agent and the Collateral Agent prior to 11:00 a.m. (New York City time) at least three (3) Business Days prior to the Loss Proceeds Account Withdrawal Date;

3. All conditions set forth in the Depositary Agreement for the withdrawal requested hereby have been satisfied;

[***] Confidential Treatment Requested

13

4. [Note: To be included only for withdrawals pursuant to Section 4.6(b) of the Depositary Agreement: There has occurred a single Event of Loss with respect to which the replacement value of the item of property subject to the Event of Loss does not exceed $[***] and the Borrower will apply the Net Available Amount of any Loss Proceeds in respect of such Event of Loss to the prompt payment of the cost of the repair or restoration of such damage or destruction; and]

5. [Note: To be included only for withdrawals pursuant to Section 4.6(c) of the Depositary Agreement: The Borrower has received Loss Proceeds relating to an Event of Loss in respect of a single Event of Loss greater than [***] (as determined by the replacement value of the item of property subject to the Event of Loss), and (i) the Conditions to Release of Funds have been satisfied in the reasonable determination of (and in consultation with the Independent Engineer), or waived by, the Required Lenders, (ii) the Borrower will apply Net Available Amount of such Loss Proceeds shall be applied by the Borrower to the prompt repair or restoration of the Projects in accordance with the procedures set forth in Section 4.6(c) of the Depositary Agreement and (iii) attached as Schedule 2 is a detailed report to Collateral Agent describing the Borrower’s plan for effectuating repairs or restoration (such report subject to the review and approval of the Required Lenders in consultation with the Independent Engineer (such approval not to be unreasonably withheld, conditioned or delayed)); and]

6. [Note: To be included only for withdrawals pursuant to Section 4.6(d) of the Depositary Agreement: The Borrower has received Loss Proceeds relating to an Event of Loss in respect of a single Event of Loss greater than $[***] (as determined by the replacement value of the item of property subject to the Event of Loss), and (i) the Conditions to Release of Funds have not been met, and the funds to be withdrawn from the Loss Proceeds Account pursuant to this Loss Proceeds Account Withdrawal Certificate will be transferred to the Prepayment Account and applied to the mandatory prepayment of the Loans pursuant to Section 2.13(a) of the Loan Agreement (provided that such prepayment shall be limited only to the ratable amount of the Loans related to the Systems affected by such mandatory prepayment event); and]

7. [Note: To be included only for withdrawals pursuant to Section 4.6(e) of the Depositary Agreement: Any Loss Proceeds have been applied to the repair or restoration of the Project as provided in Sections 4.6(a) though (c) of the Depositary Agreement, of the repayment of the Loans as provided in Section 4.6(d) of the Depositary Agreement, and there remain, before giving effect to the transfer requested hereby, excess Loss Proceeds and such amount is equal to the Net Available Amount of such Loss Proceeds; and]

8. No Event of Default has occurred and is continuing, and no Default or Event of Default could reasonably be expected to occur after giving effect to the application of funds contemplated hereby (other than a Default or Event of Default that has occurred solely as a result of the Event of Loss).

[Signature follows on next page.]

[***] Confidential Treatment Requested

14

cc: Administrative Agent

Collateral Agent

15

IN WITNESS WHEREOF, the undersigned has caused this Loss Proceeds Account Withdrawal Certificate to be executed and delivered as of the day and year first above written.

2015 ESA PROJECT COMPANY, LLC,

as Borrower

By:

Name:

Title:

16

Schedule 1 to

Loss Proceeds Account Withdrawal Certificate

WITHDRAWALS FROM LOSS PROCEEDS ACCOUNT

[details to be included]

Withdrawals from Loss Proceeds Account for direct payment of costs of the repair and restoration of such Event of Loss:

Payee	Amount	Wire Instructions
	$

17

Schedule 2 to

Loss Proceeds Account Withdrawal Certificate

DESCRIPTION OF RESTORATION WORK

[details to be included]

18

EXHIBIT D

FORM OF OPERATING ACCOUNT WITHDRAWAL CERTIFICATE

Date:                    

Wilmington Trust, National Association, as Depositary Agent

1100 North Market Street

Wilmington, Delaware 19890

Attn: [***]

Tel.: [***]

Fax: [***]

Email: [***]

Reference is made to Section 4.3 of the Depositary Agreement (the “Depositary Agreement”), dated as of June 25, 2015, by and among 2015 ESA PROJECT COMPANY, LLC, a Delaware limited liability company (the “Borrower”), CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as administrative agent for the Lenders (together with its successors, designees and assigns in such capacity, the “Administrative Agent”), WILMINGTON TRUST, NATIONAL ASSOCIATION, in its capacity as collateral agent for the benefit of the Secured Parties (together with its successors, designees and assigns in such capacity, the “Collateral Agent”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, in its capacity as depositary bank (together with its successors, designees and assigns in such capacity, the “Depositary Bank”). Capitalized terms used herein but not otherwise defined herein have the meanings set forth in the Depositary Agreement.

[The Borrower hereby directs the Depositary Bank to withdraw and transfer from the Operating Account, No. 112632-002, on                 , 20     (the “Operating Account Withdrawal Date”), the amounts and to the payees, in each case as set forth on Schedule 1 attached hereto.]

[and/or]

[Note: This formulation applies only to transfers from the Operating Account to the Local Account to pay the applicable payees: The Borrower hereby directs the Depositary Bank to withdraw and transfer from the Operating Account, No. 112632-002, on                 , 20     [(the “Operating Account Withdrawal Date”)]² to the Local Account No. [●], [             Dollars ($            )]³ [the amounts as set forth on Schedule 1 attached hereto]⁴.]

In support of such direction, the undersigned, on behalf of the Borrower, hereby represents and certifies, as of the date hereof and as of the Operating Account Withdrawal Date, as follows:

²  To be included if only the Local Account option is being used.

³  To be included if only the Local Account option is being used.

⁴  To be included if both options are being used.

[***] Confidential Treatment Requested

19

1. The undersigned is an Authorized Officer of the Borrower;

2. This Operating Account Withdrawal Certificate is being delivered to the Depositary Bank with a copy to the Administrative Agent and the Collateral Agent prior to 11:00 a.m. (New York City time) at least three (3) Business Days prior to the Operating Account Withdrawal Date;

3. All conditions set forth in the Depositary Agreement for the withdrawal requested hereby have been satisfied;

4. The funds to be withdrawn from the Operating Account pursuant to this Operating Account Withdrawal Certificate will be applied directly to the payment of Operation and Maintenance Expenses currently due and payable or reasonably anticipated to become due and payable prior to the next Monthly Date and which have been incurred or will be incurred, in each case, in accordance with the Credit Agreement;

5. No Event of Default has occurred and is continuing, and no Default or Event of Default could reasonably be expected to occur after giving effect to the application of funds contemplated hereby.

[Signature follows on next page.]

cc: Administrative Agent

Collateral Agent

[***] Confidential Treatment Requested

20

IN WITNESS WHEREOF, the undersigned has caused this Operating Account Withdrawal Certificate to be executed and delivered as of the day and year first above written.

2015 ESA PROJECT COMPANY, LLC,

as Borrower

By:

Name:

Title:

21

Schedule 1 to

Operating Account Withdrawal Certificate

WITHDRAWALS FROM OPERATING ACCOUNT

[details to be included]

Withdrawals from Operating Account for direct payment of Operation and Maintenance Expenses:

Payee	Amount	Wire Instructions
	$

22

EXHIBIT E

FORM OF REVENUE ACCOUNT WITHDRAWAL CERTIFICATE

Date:                

Wilmington Trust, National Association, as Depositary Agent

1100 North Market Street

Wilmington, Delaware 19890

Attn: [***]

Tel.: [***]

Fax: [***]

Email: [***]

Reference is made to Section 4.2 of the Depositary Agreement (the “Depositary Agreement”), dated as of June 25, 2015, by and among 2015 ESA PROJECT COMPANY, LLC, a Delaware limited liability company (the “Borrower”), CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as administrative agent for the Lenders (together with its successors, designees and assigns in such capacity, the “Administrative Agent”), WILMINGTON TRUST, NATIONAL ASSOCIATION, in its capacity as collateral agent for the benefit of the Secured Parties (together with its successors, designees and assigns in such capacity, the “Collateral Agent”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, in its capacity as depositary bank (together with its successors, designees and assigns in such capacity, the “Depositary Bank”). Capitalized terms used herein but not otherwise defined herein have the meanings set forth in the Depositary Agreement.

[Note: This formulation applies only to transfers made prior to the Term Conversion Date: The Borrower hereby directs the Depositary Bank to withdraw and transfer from the Revenue Account, No. 112632-001, on                 , 20     (the “Revenue Account Withdrawal Date”), in accordance with Section 4.2(f) of the Depositary Agreement,                  Dollars ($                )⁵ to the Construction Account.]

[or]

[Note: This formulation applies only to transfers made on the Term Conversion Date: The Borrower hereby directs the Depositary Bank to withdraw and transfer from the Revenue Account, No. 112632-001, on                 , 20     (the “Revenue Account Withdrawal Date”), in

⁵  To the extent that amounts on deposit in the Revenue Account exceed Operation and Maintenance Expenses due and payable prior to the next Monthly Date, the Borrower may transfer such excess amounts to the Construction Account.

[***] Confidential Treatment Requested

23

accordance with Section 4.2(d) of the Depositary Agreement,                  Dollars ($                )⁶ to the Debt Service Reserve Account.

[or]

[Note: This formulation applies to all transfers subsequent to the Term Conversion Date and each Revenue Account Withdrawal Certificate should only list the priorities that are relevant on such Revenue Account Withdrawal Date: The Borrower hereby directs the Depositary Bank to withdraw and transfer from the Revenue Account, No. 112632-001, on                 , 20     (the “Revenue Account Withdrawal Date”), the following amounts:

(i) in accordance with Clause First of Section 4.2(e) of the Depositary Agreement,                  Dollars ($                ) to the Operating Account;

(ii) in accordance with Clause Second of Section 4.2(e) of the Depositary Agreement,                  Dollars ($                ) to the [Depositary Bank for the account of the Depositary Bank] [Administrative Agent for the account of the Administrative Agent] [Collateral Agent for the account of the Collateral Agent] [Administrative Agent for the account of the applicable Secured Parties], pro rata for payment of all fees and expenses required to be paid pursuant to the Financing Documents, including pursuant to Sections 2.24, 9.1 and 9.2 of the Credit Agreement and Section 6.1 of the Depositary Agreement;

(iii) in accordance with Clause Third of Section 4.2(e) of the Depositary Agreement,                  Dollars ($                ) to the Administrative Agent for the account of the Secured Parties, ratably in proportion to such amount, for payment of all interest due on all Loans and the amount of all net scheduled payments due in respect of any Required Hedging Agreement entered into with any Secured Hedge Counterparty;

(iv) in accordance with Clause Fourth of Section 4.2(e) of the Depositary Agreement,                  Dollars ($                ) to the Administrative Agent for the account of the Secured Parties, ratably in proportion to such amount, for payment of principal due on (i) the Term Loans (as determined in accordance with Section 2.1(d) of the Credit Agreement) and (ii) any Hedge Termination Value payable in respect of any Required Hedging Agreement entered into with any Secured Hedge Counterparty;

(v) in accordance with Clause Fifth of Section 4.2(e) of the Depositary Agreement,                  Dollars ($                ) to the Debt Service Reserve Account;

(vi) in accordance with Clause Sixth of Section 4.2(e) of the Depositary Agreement,                  Dollars ($                ) to the Administrative Agent for the account of the Secured Parties, ratably in proportion to such amount, first, any

⁶  Such amount, when transferred, shall be sufficient to cause the balance in the Debt Service Reserve Account, when added to any letters of credit posted by the Borrower, to equal the Required DSR Balance as of the Revenue Account Withdrawal Date.

24

reimbursement obligations with respect to Letters of Credit and second, the amount of principal due on the LC Loans, if any;

(vii) in accordance with Clause Seventh of Section 4.2(e) of the Depositary Agreement,                  Dollars ($                ) to the Administrative Agent for the account of the Secured Parties, for payment of Cash Collateralization of the outstanding Letters of Credit as required under the Credit Agreement;

(viii) in accordance with Clause Eighth of Section 4.2(e) of the Depositary Agreement,                 Dollars ($                ) to the Equity Investors;

(ix) in accordance with Clause Ninth of Section 4.2(e) of the Depositary Agreement,                  Dollars ($                ) to the Prepayment Account, to be applied towards mandatory prepayment of the Loans pursuant to Section 2.13(h) of the Credit Agreement;

(x) in accordance with Clause Tenth of Section 4.2(e) of the Depositary Agreement,                  Dollars ($                ) to the Insurer; and

(xi) in accordance with Clause Eleventh of Section 4.2(e) of the Depositary Agreement,                  Dollars ($                ) to the Distribution Suspense Account.]

In support of such direction the undersigned, on behalf of the Borrower, hereby represents and certifies, as of the date hereof and as of the Revenue Account Withdrawal Date, as follows: [Note: Each Revenue Account Withdrawal Certificate should only list the priorities that are relevant on such Revenue Account Withdrawal Date.]

1. [In the case of transfers to the Operating Account pursuant to Clause First of Section 4.2(e) of the Depositary Agreement, the Revenue Account Withdrawal Date is a Monthly Date and such amount is equal to all Operation and Maintenance Expenses due and payable, or reasonably anticipated to become due and payable prior to the next Monthly Date (in each case, in the amount set forth herein and certified by the Borrower to have been incurred or reasonably anticipated to be incurred, in each case, in accordance with the Credit Agreement), to the extent funds have not already been withdrawn from the Revenue Account or withdrawn from or deposited into the Operating Account for such purpose;

2. In the case of transfers pursuant to Clause Second of Section 4.2(e) of the Depositary Agreement, the Revenue Account Withdrawal Date is a Monthly Date and the amount of such transfer is the amount necessary to pay pro rata to the Depositary Bank for the account of the Depositary Bank, to the Administrative Agent for the account of the Administrative Agent, to the Collateral Agent for the account of the Collateral Agent and to the Administrative Agent for the account of the other Secured Parties, all fees and expenses required to be paid as of such Monthly Date pursuant to the Financing Documents, including pursuant to Sections 2.24, 9.1 and 9.2 of the Credit Agreement and Section 6.1 of Depositary Agreement;

25

3. In the case of transfers pursuant to Clause Third of Section 4.2(e) of the Depositary Agreement, the Revenue Account Withdrawal Date is a Quarterly Date and the amount of such transfer is the amount necessary to pay to the Administrative Agent for the account of the Secured Parties, ratably in proportion to such amount, the amount of all interest due on all Loans on such Quarterly Date and the amount of all net scheduled payments due in respect of any Required Hedging Agreement entered into with any Secured Hedge Counterparty;

4. In the case of transfers pursuant to Clause Fourth of Section 4.2(e) of the Depositary Agreement, the Revenue Account Withdrawal Date is a Payment Date and the amount of such transfer is the amount necessary to pay to the Administrative Agent for the account of the Secured Parties, ratably in proportion to such amount, the amount of (i) principal due on the Term Loans (as determined in accordance with Section 2.1(d) of the Credit Agreement) and (ii) any Hedge Termination Value payable in respect of any Required Hedging Agreement entered into with any Secured Hedge Counterparty;

5. In the case of transfers to the Debt Service Reserve Account pursuant to Clause Fifth of Section 4.2(e) of the Depositary Agreement, the Revenue Account Withdrawal Date is (A) a Monthly Date, or (B) a Defaulting Lender Shortfall Date (and a Defaulting Lender Shortfall Notice has been received), the amounts on deposit in the Debt Service Reserve Account is less than the Required DSR Balance (and the Borrower has not posted a letter of credit in the amount of such shortfall), and the amount of such transfer from the Reserve Account (or on any Defaulting Lender Shortfall Date from any amounts on deposit in the Revenue Account or the Distribution Suspense Account) is sufficient to cause the balance in the Debt Service Reserve Account, when added to the amounts on deposit in the Debt Service Reserve Account and any letters of credit posted by the Borrower, to equal the Required DSR Balance as of the Revenue Account Withdrawal Date;

6. In the case of transfers pursuant to Clause Sixth of Section 4.2(e) of the Depositary Agreement, the Revenue Account Withdrawal Date is a Payment Date and the amount of such transfer is the amount necessary to pay to the Administrative Agent for the account of the Secured Parties, first, any reimbursement obligations with respect to Letters of Credit and second, the amount of principal due on the LC Loans, if any;

7. In the case of transfers pursuant to Clause Seventh of Section 4.2(e) of the Depositary Agreement, the Revenue Account Withdrawal Date is a Payment Date and the amount of such transfer is the amount necessary to pay to the Administrative Agent for the account of the Secured Parties, ratably in proportion to the respective amounts set forth herein, any Cash Collateralization of the outstanding Letters of Credit as required under the Credit Agreement;

8. In the case of transfers to the Equity Investor pursuant to Clause Eighth of Section 4.2(e) of the Depositary Agreement, the Revenue Account Withdrawal Date is a Payment Date, no Default or Event of Default has occurred or is continuing and the amount of such transfer is equal to any applicable Permitted Tax Distribution;

26

9. In the case of transfers pursuant to Clause Ninth of Section 4.2(e) of the Depositary Agreement, the Revenue Account Withdrawal Date is a Payment Date [***] and after giving effect to the withdrawals and transfers specified in Clauses First through Eighth above, the amount of such transfer is the amount necessary to pay to the Administrative Agent for the account of the Secured Parties [fifty percent (50%)][seventy-five percent (75%)] of Excess Cash Flow as of such Payment Date to be applied towards mandatory prepayment of the Loans pursuant to Section 2.13(h) of the Credit Agreement;

10. In the case of transfers to the Insurer pursuant to Clause Tenth of Section 4.2(e) of the Depositary Agreement, the Revenue Account Withdrawal Date is a Payment Date, the Tracking Account (as defined in the Policy) has a positive balance and the amount of such transfer is equal to the lesser of (x) the amount on deposit in the Revenue Account and (y) the positive balance in the Tracking Account;

11. In the case of transfers to the Distribution Suspense Account pursuant to Clause Eleventh of Section 4.2(e) of the Depositary Agreement, the Revenue Account Withdrawal Date is a Payment Date and the amount of such transfer is equal to the remainder, if any, after making each of the applicable withdrawals and transfers specified above;]

12. The undersigned is an Authorized Officer of the Borrower;

13. This Revenue Account Withdrawal Certificate is being delivered to the Depositary Bank with a copy to the Administrative Agent and the Collateral Agent prior to 11:00 a.m. (New York City time) at least (3) Business Days prior to the Revenue Account Withdrawal Date;

14. All conditions set forth in the Depositary Agreement for the withdrawals requested hereby have been satisfied;

15. The Collateral Agent has not issued an Entitlement Order contrary to this Revenue Account Withdrawal Certificate to the Depositary Bank in accordance with the Depositary Agreement; and

16. No Event of Default has occurred and is continuing, and no Default or Event of Default could reasonably be expected to occur after giving effect to any application of funds contemplated hereby.

[Signature follows on next page.]

cc: Administrative Agent

Collateral Agent

[***] Confidential Treatment Requested

27

IN WITNESS WHEREOF, the undersigned has caused this Revenue Account Withdrawal Certificate to be executed and delivered as of the day and year first above written.

2015 ESA PROJECT COMPANY, LLC,

as Borrower

By:

Name:

Title:

28

EXHIBIT F

FORM OF DEBT SERVICE RESERVE ACCOUNT WITHDRAWAL CERTIFICATE

Date: [                    ]

Wilmington Trust, National Association, as Depositary Agent

1100 North Market Street

Wilmington, Delaware 19890

Attn: [***]

Tel.: [***]

Fax: [***]

Email: [***]

Reference is made to Section 4.4 of the Depositary Agreement (the “Depositary Agreement”), dated as of June 25, 2015, by and among 2015 ESA PROJECT COMPANY, LLC, a Delaware limited liability company (the “Borrower”), CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as administrative agent for the Lenders (together with its successors, designees and assigns in such capacity, the “Administrative Agent”), WILMINGTON TRUST, NATIONAL ASSOCIATION, in its capacity as collateral agent for the benefit of the Secured Parties (together with its successors, designees and assigns in such capacity, the “Collateral Agent”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, in its capacity as depositary bank (together with its successors, designees and assigns in such capacity, the “Depositary Bank”). Capitalized terms used herein but not otherwise defined herein have the meanings set forth in the Depositary Agreement.

The Borrower hereby directs the Depositary Bank to withdraw and transfer from the Debt Service Reserve Account, No. 112632-003, on          , 20     (the “Debt Service Reserve Account Withdrawal Date”),             Dollars ($            ) to the Revenue Account as a result of a downward revision in the amount required to be on deposit in the Debt Service Reserve Account in accordance with Section 4.4(d) of the Depositary Agreement.

In support of such direction, the undersigned, on behalf of the Borrower, hereby represents and certifies, as of the date hereof and as of the Debt Service Reserve Account Withdrawal Date, as follows:

1. The undersigned is an Authorized Officer of the Borrower;

2. This Debt Service Reserve Account Withdrawal Certificate is being delivered to the Depositary Bank with a copy to the Administrative Agent and the Collateral Agent prior to 11:00 a.m. (New York city time) at least three (3) Business Days prior to the Debt Service Reserve Account Withdrawal Date;

3. All conditions set forth in the Depositary Agreement for the withdrawal requested hereby have been satisfied;

[***] Confidential Treatment Requested

29

5. The amount currently on deposit in the Debt Service Reserve Account exceeds the Required DSR Balance. The funds to be withdrawn from the Debt Service Reserve Account pursuant to this Debt Service Reserve Account Withdrawal Certificate equal the excess funds on deposit in the Debt Service Reserve Account and shall be transferred to the Revenue Account; and

6. No Event of Default has occurred and is continuing, and no Default or Event of Default could reasonably be expected to occur after giving effect to the application of funds contemplated hereby.

[Signature follows on next page.]

cc: Administrative Agent

Collateral Agent

30

IN WITNESS WHEREOF, the undersigned has caused this Debt Service Reserve Account Withdrawal Certificate to be executed and delivered as of the day and year first above written.

2015 ESA PROJECT COMPANY, LLC,

as Borrower

By:

Name:

Title:

31

EXHIBIT G

FORM OF NET DISPOSITION PROCEEDS ACCOUNT WITHDRAWAL CERTIFICATE

Date:                     

Wilmington Trust, National Association, as Depositary Agent

1100 North Market Street

Wilmington, Delaware 19890

Attn: [***]

Tel.: [***]

Fax: [***]

Email: [***]

Reference is made to Section 4.7 of the Depositary Agreement (the “Depositary Agreement”), dated as of June 25, 2015, by and among 2015 ESA PROJECT COMPANY, LLC, a Delaware limited liability company (the “Borrower”), CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as administrative agent for the Lenders (together with its successors, designees and assigns in such capacity, the “Administrative Agent”), WILMINGTON TRUST, NATIONAL ASSOCIATION, in its capacity as collateral agent for the benefit of the Secured Parties (together with its successors, designees and assigns in such capacity, the “Collateral Agent”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, in its capacity as depositary bank (together with its successors, designees and assigns in such capacity, the “Depositary Bank”). Capitalized terms used herein but not otherwise defined herein have the meanings set forth in the Depositary Agreement.

The Borrower hereby directs the Depositary Bank to withdraw and transfer from the Net Disposition Proceeds Account, No. 112632-006, on             , 20     (the “Net Disposition Proceeds Account Withdrawal Date”), in accordance with Section 4.7(b) of the Depositary Agreement,             Dollars ($            ) to the Prepayment Account to be applied to the prepayment of the outstanding Loans in accordance with Section 2.13(c) of the Credit Agreement.

In support of such direction, the undersigned, on behalf of the Borrower, hereby represents and certifies, as of the date hereof and as of the Net Disposition Proceeds Account Withdrawal Date, as follows:

1. The undersigned is an Authorized Officer of the Borrower;

2. This Net Disposition Proceeds Account Withdrawal Certificate is being delivered to the Depositary Bank with a copy to the Administrative Agent and the Collateral Agent prior to 11:00 a.m. (New York City time) at least three (3) Business Days prior to the Net Disposition Proceeds Account Withdrawal Date;

[***] Confidential Treatment Requested

32

3. All conditions set forth in the Depositary Agreement for the withdrawal requested hereby have been satisfied;

4. The funds to be withdrawn from the Net Disposition Proceeds Account pursuant to this Net Disposition Proceeds Account Withdrawal Certificate are all the proceeds in excess of two million dollars ($2,000,000.00)) from the receipt of proceeds from any single sale or disposition of assets other than pursuant to Section 2.13(b) of the Credit Agreement or in excess of five million dollars ($5,000,000.00) in the aggregate for all such dispositions or receipts by the Borrower during the term of the Loans (excluding the sale of energy, capacity or ancillary services in the ordinary course of business or other sales permitted pursuant to Section 6.5 of the Credit Agreement); and

5. No Event of Default has occurred and is continuing, and no Default or Event of Default could reasonably be expected to occur after giving effect to the application of funds contemplated hereby.

33

IN WITNESS WHEREOF, the undersigned has caused this Net Disposition Proceeds Account Withdrawal Certificate to be executed and delivered as of the day and year first above written.

2015 ESA PROJECT COMPANY, LLC,

as Borrower

By:

Name:

Title:

34

EXHIBIT H

FORM OF POLICY PROCEEDS ACCOUNT WITHDRAWAL CERTIFICATE

Date:                     

Wilmington Trust, National Association, as Depositary Agent

1100 North Market Street

Wilmington, Delaware 19890

Attn: [***]

Tel.: [***]

Fax: [***]

Email: [***]

Reference is made to Section 4.8 of the Depositary Agreement (the “Depositary Agreement”), dated as of June 25, 2015, by and among 2015 ESA PROJECT COMPANY, LLC, a Delaware limited liability company (the “Borrower”), CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as administrative agent for the Lenders (together with its successors, designees and assigns in such capacity, the “Administrative Agent”), WILMINGTON TRUST, NATIONAL ASSOCIATION, in its capacity as collateral agent for the benefit of the Secured Parties (together with its successors, designees and assigns in such capacity, the “Collateral Agent”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, in its capacity as depositary bank (together with its successors, designees and assigns in such capacity, the “Depositary Bank”). Capitalized terms used herein but not otherwise defined herein have the meanings set forth in the Depositary Agreement.

The Borrower hereby directs the Depositary Bank to withdraw and transfer from the Policy Proceeds Account, No. 112632-007, on         , 20     (the “Policy Proceeds Account Withdrawal Date”), in accordance with Section 4.8(b) of the Depositary Agreement,             Dollars ($             )⁷ to the Revenue Account.

In support of such direction, the undersigned, on behalf of the Borrower, hereby represents and certifies, as of the date hereof and as of the Policy Proceeds Account Withdrawal Date, as follows:

1. The undersigned is an Authorized Officer of the Borrower;

2. This Policy Proceeds Account Withdrawal Certificate is being delivered to the Depositary Bank with a copy to the Administrative Agent and the Collateral Agent prior to 11:00 a.m. (New York City time) at least three (3) Business Days prior to the Policy Proceeds Account Withdrawal Date;

⁷  Amount determined pursuant to Section 4.4(b).

[***] Confidential Treatment Requested

35

3. All conditions set forth in the Depositary Agreement for the withdrawal requested hereby have been satisfied; and

4. No Event of Default has occurred and is continuing, and no Default or Event of Default could reasonably be expected to occur after giving effect to the application of funds contemplated hereby.

[Signature follows on next page.]

cc: Administrative Agent

Collateral Agent

36

IN WITNESS WHEREOF, the undersigned has caused this Policy Proceeds Account Withdrawal Certificate to be executed and delivered as of the day and year first above written.

2015 ESA PROJECT COMPANY, LLC,

as Borrower

By:

Name:

Title:

37

EXHIBIT I

FORM OF PREPAYMENT ACCOUNT WITHDRAWAL CERTIFICATE

Date:                     

Wilmington Trust, National Association, as Depositary Agent

1100 North Market Street

Wilmington, Delaware 19890

Attn: [***]

Tel.: [***]

Fax: [***]

Email: [***]

Reference is made to Section 4.9 of the Depositary Agreement (the “Depositary Agreement”), dated as of June 25, 2015, by and among 2015 ESA PROJECT COMPANY, LLC, a Delaware limited liability company (the “Borrower”), CRÉDIT AGRICOLE CORPORATE AND INVESTMENT BANK, as administrative agent for the Lenders (together with its successors, designees and assigns in such capacity, the “Administrative Agent”), WILMINGTON TRUST, NATIONAL ASSOCIATION, in its capacity as collateral agent for the benefit of the Secured Parties (together with its successors, designees and assigns in such capacity, the “Collateral Agent”), and WILMINGTON TRUST, NATIONAL ASSOCIATION, in its capacity as depositary bank (together with its successors, designees and assigns in such capacity, the “Depositary Bank”). Capitalized terms used herein but not otherwise defined herein have the meanings set forth in the Depositary Agreement.

The Borrower hereby directs the Depositary Bank to withdraw and transfer from the Prepayment Account, No. 112632-008, on         , 20     (the “Prepayment Account Withdrawal Date”), in accordance with Section 4.9(b) of the Depositary Agreement,              Dollars ($            ) to the Administrative Agent to be applied to the prepayment of the outstanding Loans in accordance with Section 2.13 of the Credit Agreement.

In support of such direction, the undersigned, on behalf of the Borrower, hereby represents and certifies, as of the date hereof and as of the Prepayment Account Withdrawal Date, as follows:

1. The undersigned is an Authorized Officer of the Borrower;

2. This Prepayment Account Withdrawal Certificate is being delivered to the Depositary Bank with a copy to the Administrative Agent and the Collateral Agent prior to 11:00 a.m. (New York City time) at least three (3) Business Days prior to the Prepayment Account Withdrawal Date;

3. All conditions set forth in the Depositary Agreement for the withdrawal requested hereby have been satisfied;

[***] Confidential Treatment Requested

38

4. [To be used for transfers pursuant to Section 2.13(b) of the Credit Agreement: The funds to be withdrawn from the Prepayment Account pursuant to this Prepayment Account Withdrawal Certificate consist of proceeds [include all that apply]:

• [of the Borrower’s voluntary disposition of any energy server or Project]

• [of refund claims received by the Borrower pursuant to Sections 5.4(c) and 5.7(b) of the PUMA, other than with respect to amounts reserved for payment to the Offtakers, in amounts equal to the amounts required to be paid to an Offtaker pursuant to the applicable ESA]

• [received by the Borrower as Termination Value or Early Termination Fee, as applicable, of the Systems upon the occurrence of a Customer Default or Host Default, as applicable, under each ESA (as defined therein)];

Over the term of the Loan such proceeds have affected [    ] MW of energy servers or Projects disposed or otherwise removed, and the Borrower has separately provided the Projections required pursuant to Section 2.13(b).]

5. [To be used for transfers pursuant to Section 2.13(c) of the Credit Agreement: The funds to be withdrawn from the Prepayment Account pursuant to this Prepayment Account Withdrawal Certificate are all the proceeds in excess of two million ($2,000,000.00) from the receipt of proceeds from any single sale or disposition of assets other than pursuant to Section 2.13(b) of the Credit Agreement or in excess of five million dollars ($5,000,000.00) in the aggregate for all such dispositions or receipts by the Borrower during the term of the Loans (excluding the sale of energy, capacity or ancillary services in the ordinary course of business or other sales permitted pursuant to Section 6.5 of the Credit Agreement);]

6. [To be used for transfers pursuant to Section 2.13(d) of the Credit Agreement: The funds to be withdrawn from the Prepayment Account pursuant to this Prepayment Account Withdrawal Certificate are all the net proceeds received by the Borrower under the Policy pursuant to the “One-Time Payment Option” (as defined in the Policy);]

7. [To be used for transfers pursuant to Section 2.13(e) of the Credit Agreement: The funds to be withdrawn from the Prepayment Account pursuant to this Prepayment Account Withdrawal Certificate consist of funds from the Suspense Account and are to be applied pursuant to Section 4.5 of the Depositary Agreement;]

8. [To be used for transfers pursuant to Section 2.13(g) of the Credit Agreement: As of the Term Conversion Date, COO has not occurred for Sites having an aggregate capacity of at least the Minimum Capacity, and after application of the funds to be withdrawn from the Prepayment Account pursuant to this Prepayment Account Withdrawal Certificate, the Term Loan will fully amortize over a 14.5 year amortization period based on contracted cash flows under each ESA for the Projects for which COO has occurred and the associated production-based environmental incentives (to the extent such incentives are for the benefit of the Borrower), yielding projected minimum annual Debt

39

Service Coverage Ratios of (i) [***] through the Final Maturity Date based on a portfolio capacity factor of [***]%, as evidenced by Updated Lender Base Case Projections as confirmed by the Independent Engineer and (ii) [through the Final Maturity Date based on a portfolio capacity factor of [***]%, as evidenced by Updated Downside Sizing Case Projections as confirmed by the Independent Engineer;]

9. [To be used for transfers pursuant to Section 2.13(h) of the Credit Agreement: The funds to be withdrawn from the Prepayment Account pursuant to this Prepayment Account Withdrawal Certificate consist of Excess Cash Flow;] and

10. No Event of Default has occurred and is continuing, and no Default or Event of Default could reasonably be expected to occur after giving effect to the application of funds contemplated hereby.

[Signature follows on next page.]

cc: Administrative Agent

Collateral Agent

[***] Confidential Treatment Requested

40

IN WITNESS WHEREOF, the undersigned has caused this Prepayment Account Withdrawal Certificate to be executed and delivered as of the day and year first above written.

2015 ESA PROJECT COMPANY, LLC,

as Borrower

By:

Name:

Title:

41

SCHEDULE 1

REQUIRED DSR BALANCE

Date	Scheduled Debt Service
12/31/2016	[***]
3/31/2017	[***]
6/30/2017	[***]
9/30/2017	[***]
12/31/2017	[***]
3/31/2018	[***]
6/30/2018	[***]
9/30/2018	[***]
12/31/2018	[***]
3/31/2019	[***]
6/30/2019	[***]
9/30/2019	[***]
12/31/2019	[***]
3/31/2020	[***]
6/30/2020	[***]
9/30/2020	[***]
12/31/2020	[***]
3/31/2021	[***]
6/30/2021	[***]
9/30/2021	[***]
12/31/2021	[***]

[***] Confidential Treatment Requested

EX-10

Exhibit 10.81

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the securities and exchange commission pursuant to rule 406 of the securities act of 1933, as amended.

AMENDMENT NO. 1 TO

AMENDED AND RESTATED PURCHASE, USE AND MAINTENANCE AGREEMENT

This AMENDMENT NO. 1 TO PURCHASE, USE AND MAINTENANCE AGREEMENT (this “Amendment”), is entered into effective as of August 10, 2016 (“Effective Date”) by and between BLOOM ENERGY CORPORATION, a Delaware corporation (“Seller”) and 2015 ESA PROJECT COMPANY, LLC (“Buyer”, and together with Seller, the “Parties”). Capitalized terms used and not otherwise defined herein have the meanings given to them in the PUMA (as defined below). All Section, annex and exhibit references, unless otherwise indicated, shall be references to Sections of the PUMA and the rules of interpretation set forth in the PUMA apply as if set forth herein.

RECITALS

WHEREAS, reference is hereby made to that certain Amended and Restated Purchase, Use and Maintenance Agreement, dated as of June 25, 2015, by and between Buyer and Seller (the “PUMA”); and

WHEREAS, Buyer has entered into new PPAs with certain new PPA Customers, and Buyer and Seller wish to amend the PUMA to provide for the purchase, sale, operation, maintenance and use of Facilities in connection with such new PPA, as further set forth herein.

NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, and for other consideration, the receipt and adequacy of which is hereby acknowledged, the Parties hereto hereby agree as follows:

AGREEMENT

Section 1. Amendments to the PUMA.

(a) The list of Annexes in the Table of Contents is hereby amended to add the following, in alphabetical order:

Annex E Additional Rules and Regulations

(b) Section 3.9 of the PUMA is hereby amended and restated in its entirety to read as follows (with deletions shown in strike-through text and additions shown in bold/underlined text):

3.9 Performance Standards. For the purpose of this Agreement, Seller shall perform under this Agreement in accordance and consistent with each of the following (unless the context requires otherwise): (A) plans and specifications

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subject to Permits under applicable law and applicable to each Facility; (B) the manufacturer’s recommendations with respect to all equipment and all maintenance and operating manuals or service agreements, whenever furnished or entered into, including any subsequent amendments or replacements thereof, issued by the manufacturer, provided they are consistent with generally accepted

2

practices in the fuel cell industry; (C) the requirements of all applicable insurance policies; (D) preserving all rights to any incentive payments, warranties, indemnities or other rights or remedies, and enforcing or assisting with the enforcement of the applicable warranties, making or assisting in making all claims with respect to all insurance policies; (E) all Legal Requirements and Permits/Governmental Approvals; (F) any applicable provisions of the Site Leases, including any landlord rules and regulations; (G) Prudent Electrical Practices; and (H) the relevant provisions of each Interconnection Agreement, and each PPA, and (I) the Additional Rules and Regulations set forth on Annex E hereof (collectively, the “Performance Standards”); provided, however, that meeting the Performance Standards shall not relieve Seller of its other obligations under this Agreement.

(c) Annex D to the PUMA is hereby amended and restated in its entirety to read as set forth on Attachment 1 attached hereto.

(d) A new Annex E to the PUMA is hereby added to follow immediately after Annex D, to read in its entirety as set forth on Attachment 2 attached hereto.

Section 2. No Other Changes or Waivers. Except as expressly provided or contemplated by this Amendment, all of the terms, conditions and provisions of the PUMA remain unaltered and in full force and effect. Except as specifically provided herein, the execution, delivery and performance of this Amendment shall not be deemed as a waiver of any other matters or any future matters. The PUMA and this Amendment shall be read and construed as one instrument.

Section 3. Headings. The section and paragraph headings contained in this Amendment are for reference purposes only and shall not affect in any way the meaning and interpretation of this Amendment.

Section 4. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK EXCLUDING CHOICE-OF- LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD PERMIT THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.

Section 5. Severability. Any provision of this Amendment that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by law) not invalidate or render unenforceable such provision in any other jurisdiction.

Section 6. Counterparts. This Amendment and any amendments, waivers, consents or supplements hereto or in connection herewith may be executed in one or more duplicate counterparts and by different parties hereto in separate counterparts, each of which when so

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executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document. Signatures of the parties hereto transmitted by facsimile or portable document format (PDF) shall be deemed to be their original signatures for all purposes.

[The remainder of this page intentionally left blank]

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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed by their respective officers thereunto duly authorized as of the Effective Date.

BLOOM ENERGY CORPORATION
By:	/s/ Randy Furr
Name:	Randy Furr
Title:	Chief Executive Officer
2015 ESA PROJECT COMPANY, LLC
By:	/s/ William E. Brockenborough
Name:	William E. Brockenborough
Title:	Vice President

SIGNATURE PAGE TO AMENDMENT NO 1 TO PUMA

ATTACHMENT 1

ANNEX D

List of PPAs

1. That certain Energy System Use Agreement, dated as of December 31, 2013, by and between Home Depot U.S.A., Inc. and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

2. That certain Energy System Use Agreement No. 20131206.035.C, dated as of March 31, 2014, by and between AT&T Corp. and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

3. That certain Energy System Use Agreement No. 20131206.036.C, dated as of March 31, 2014, by and between AT&T Corp. and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

4. That certain Energy System Use Agreement No. 20131206.037.C, dated as of March 31, 2014, by and between Pacific Bell Telephone Company and the Buyer, as amended by Amendment No. 1 to Energy System Use Agreement No. 20131206.037.C, effective as of May 15, 2014, by and between Pacific Bell Telephone Company and the Buyer, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time.

5. That certain Energy System Use Agreement No. 20131206.039.C, dated as of February 21, 2014, by and between Pacific Bell Telephone Company and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

6. That certain Energy System Use Agreement No. 20140225.013.C, dated as of March 21, 2014, by and between AT&T Corp. and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

7. That certain Energy Services and License Agreement, dated as of March 14, 2016, by and between [***] and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

8. That certain Energy Services Agreement, dated as of December 31, 2015, by and between [***] and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

9. That certain Energy Services Agreement, dated as of December 31, 2015, by and between [***] and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

*** Confidential Treatment Requested

ATTACHMENT 1

10. That certain Energy Services Agreement, dated as of December 31, 2015, by and between [***] and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

11. That certain Energy Services Agreement, dated as of February 12, 2016, by and between [***], and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

12. That certain Master Fuel Cell Energy Services Agreement, dated as of June [    ], 2016, by and between [***], [***] and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

*** Confidential Treatment Requested

ATTACHMENT 1

ATTACHMENT 2

ANNEX E

Additional Rules and Regulations

Seller shall comply with the following clauses from the Federal Acquisition Regulation (FAR) at 48 CFR Part 52 and the Office of Federal Contract Compliance Regulations (OFCCP) at 41 CFR Part 60: (a) Equal Opportunity (March 2007) at FAR 52.222-26; (b) Utilization of Small Business Concerns (July 2013) at FAR 52.219-8; (c) Affirmative Action for Workers with Disabilities (Oct. 2010) at FAR 52.222-36 and 41 CFR 60-741.5(a), which provides in part: “This contractor and subcontractor shall abide by the requirements of 41 CFR 60-741.5(a). This regulation prohibits discrimination against qualified individuals on the basis of disability and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities.”, and (d) Equal Opportunity for Veterans (Sept. 2010) at FAR 52.222-35 and 41 CFR 60-300.5(a), which provides in part: “This contractor and subcontractor shall abide by the requirements of 41 CFR 60-300.5(a). This regulation prohibits discrimination against qualified protected veterans, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans.”

ATTACHMENT 2

EX-10

Exhibit 10.82

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

ACCOUNTS AGREEMENT

dated as of July 19, 2013

by and among

2013B ESA PROJECT COMPANY, LLC,

as the Borrower,

SILICON VALLEY BANK,

as the Lender and as Agent for the Secured Swap Providers,

and

THE BANK OF NEW YORK MELLON,

as the Accounts Bank

TABLE OF CONTENTS

		Page
ARTICLE 1 DEFINITIONS AND RULES OF CONSTRUCTIO			1
1.1	Defined Terms		1
1.2	Rules of Construction		4
ARTICLE 2 APPOINTMENT; GRANT OF SECURITY INTEREST			4
2.1	Appointment		4
2.2	Project Accounts		5
2.3	Representations, Warranties and Covenants of the Accounts Bank		6
2.4	Project Accounts as Deposit Account		8
2.5	Grant of First-Priority Security Interest		8
2.6	Control and Perfection of Account Collateral		9
2.7	Subordination		9
2.8	Agreement to Hold In Trust		10
2.9	Deposits into and Withdrawals from Project Accounts		10
2.10	No Security Interests		12
2.11	Acknowledgments		12
2.12	Further Assurances		13
ARTICLE 3 BORROWER REMAINS LIABLE			13
ARTICLE 4 THE PROJECT ACCOUNTS			14
4.1	Establishment of Project Accounts		14
4.2	Revenue Account		14
4.3	Operating Account		17
4.4	Debt Service Reserve Account		17
4.5	Restricted Payments Account		18
4.6	Insurance, Condemnation and Extraordinary Proceeds Account		19
4.7	Funds as Collateral		22
4.8	Investment		22
4.9	Inadequately Identified Amounts		24
4.10	Other Bank and Securities Accounts		24
4.11	Optional Prepayment of Loan from Reserve Accounts		24
4.12	Accounts Information		24
ARTICLE 5 DEFAULT AND ENFORCEMENT			25
5.1	Notices of Suspension of Project Accounts		25
5.2	Lender Appointed Attorney-in-Fact		26
5.3	Enforcement		27
5.4	Lender’s Discretionary Powers		28
5.5	Application of Payments and Proceeds		28

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ARTICLE 6 TERMINATION		30
ARTICLE 7 THE ACCOUNTS BANK		30
7.1	Duties of the Accounts Bank	30
7.2	Exculpatory Provisions	31
7.3	Reliance by the Accounts Bank	32
7.4	Written Instructions; Notices	33
7.5	Resignation or Removal of the Accounts Bank	33
7.6	No Amendment to Duties of the Accounts Bank Without Consent	34
7.7	Force Majeure	34
7.8	Indemnity; Fees and Expenses	34
ARTICLE 8 MISCELLANEOUS PROVISIONS		35
8.1	Amendments; Waivers	35
8.2	Successors and Assigns	35
8.3	Notices	36
8.4	Counterparts	36
8.5	Choice of Law	36
8.6	Waiver of Trial by Jury	36
8.7	Severability	37
8.8	Captions	37
8.9	Severability	37
Exhibits:
Exhibit A	Project Accounts
Exhibit B	Form of Funds Withdrawal/Transfer Certificate
Exhibit C	Form of Restricted Payments Certificate
Exhibit D	Form of Insurance, Condemnation and Extraordinary Proceeds Request Certificate
Schedule:
Schedule 1	Minimum Prepaid Expenses Amount

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ACCOUNTS AGREEMENT

This ACCOUNTS AGREEMENT (this “Agreement”), dated as of July 19, 2013, is by and among 2013B ESA PROJECT COMPANY, LLC, a limited liability company organized and existing under the laws of the State of Delaware, as borrower (the “Borrower”), SILICON VALLEY BANK, a California corporation, as lender and as agent for the Secured Swap Providers (the “Lender”), and THE BANK OF NEW YORK MELLON, a New York banking corporation, as accounts bank (the “Accounts Bank”).

RECITALS

A. WHEREAS, pursuant to, and subject to the terms and conditions set forth in, the Credit Agreement, dated as of the date hereof (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and between the Borrower and the Lender, the Lender has agreed to make available to the Borrower up to $33,000,000 in order to finance a portion of the Borrower’s acquisition of a portfolio of baseload fuel cell electricity generators; and

B. WHEREAS, it is a condition precedent to the Closing Date under the Credit Agreement, and a necessary inducement to the Lender to make the Loans to the Borrower under the Financing Documents, that the Borrower and the Accounts Bank enter into this Agreement;

NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereby agree as follows:

ARTICLE 1

DEFINITIONS AND RULES OF CONSTRUCTION

1.1 Defined Terms.

Capitalized terms used but not otherwise defined in this Agreement, including in its preamble and recitals, have the meanings given to such terms in the Credit Agreement (or, if not defined therein, the UCC), and the following terms have the meanings set forth below:

“Accounts Bank” as the meaning set forth in the Preamble.

“Accounts Bank Action” has the meaning specified in Section 7.4(b) of this Agreement.

“Accounts Bank Fee Agreement” means the Accounts Bank Fee Agreement, dated as of July 19, 2013, between the Accounts Bank and the Borrower.

“Account Collateral” has the meaning specified in Section 2.5 of this Agreement.

“Agreement” has the meaning set forth in the Preamble.

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“Authorized Officer” means (i) with respect to any Person that is a corporation, the chief executive officer, the chief operating officer, the president, any vice president, the treasurer or the chief financial officer of such Person, (ii) with respect to any Person that is a partnership, an Authorized Officer of a general partner of such Person, (iii) with respect to any Person that is a limited liability company, any member or manager, the president, any vice president, the treasurer or the chief financial officer of such Person, or an Authorized Officer of the member or manager of such Person, or (iv) with respect to any other Person, such other representative of such Person that is approved by the Lender in writing who, in each such case, has been named as an Authorized Officer on a certificate of incumbency of such Person delivered to the Lender or the Accounts Bank on or after the date of this Agreement.

“Cash Equivalents” means:

(i) readily marketable direct obligations of the government of the United States or any agency or instrumentality thereof, or obligations unconditionally guaranteed by the full faith and credit of the government of the United States, in each case maturing within one (1) year from the date of acquisition thereof;

(ii) securities issued by any state of the United States or any political subdivision of any such state or any public instrumentality thereof having maturities of not more than one (1) year from the date of acquisition thereof and, at the time of acquisition, having a rating of AA- or higher from S&P or Aa3 or higher from Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized rating service);

(iii) investments in commercial paper maturing within one hundred eighty (180) days from the date of acquisition thereof and having, at such date of acquisition, a rating of at least A-1 or P-1 from either S&P or Moody’s (or, if at any time neither S&P nor Moody’s shall be rating such obligations, an equivalent rating from another nationally recognized rating service);

(iv) investments in certificates of deposit, banker’s acceptances, bank deposit accounts, and time deposits maturing within two hundred and seventy (270) days from the date of acquisition thereof issued or guaranteed by or placed with, and money market deposit accounts issued or offered by, the Accounts Bank or any domestic office of any commercial bank organized under the laws of the United States, any State thereof, any country that is a member of the Organization for Economic Co-Operation and Development or any political subdivision thereof, that has a combined capital and surplus and undivided profits of not less than five hundred million Dollars ($500,000,000);

(v) fully collateralized repurchase agreements with a term of not more than thirty (30) days for securities described in clause (i) above and entered into with a financial institution satisfying the criteria of clause (iv) of this definition; and

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(vi) investments in “money market funds” within the meaning of the Investment Company Act of 1940, as amended, substantially all of whose assets are invested in investments of the type described in clauses (i) through (v) of this definition.

“Debt Service Reserve Account” means the “Debt Service Reserve Account” described in Exhibit A, or any replacement account thereof established pursuant to the terms hereof.

“Financial Officer” means, with respect to any Person, the controller, treasurer or chief financial officer of such Person and with respect to any person that is a limited liability company without its own officers, the chief financial officer of the sole or managing member of such Person.

“Funds Withdrawal/Transfer Certificate” means a Funds Withdrawal/Transfer Certificate in substantially the form of Exhibit B.

“Insurance, Condemnation and Extraordinary Proceeds Account” means the “Insurance, Condemnation and Extraordinary Proceeds Account” described in Exhibit A, or any replacement account thereof established pursuant to the terms hereof.

“Insurance, Condemnation and Extraordinary Proceeds Request Certificate” means an Insurance, Condemnation and Extraordinary Proceeds Request Certificate in substantially the form of Exhibit D.

“Minimum Prepaid Expenses Amount” means the “Minimum Prepaid Expenses Amount” described in Schedule 1, which will be updated by the Borrower and the Lender and notified to the Accounts Bank on or before the first Funding Date.

“Monies” means all cash, payments, Cash Equivalents and other amounts (including instruments evidencing such amounts) on deposit in or credited to any Project Account.

“Notice of Suspension” has the meaning specified in Section 5.1(a) of this Agreement.

“Operating Account” means the “Operating Account” described in Exhibit A, or any replacement account thereof established pursuant to the terms hereof.

“Pledgor” means 2013B ESA Holdco, LLC, a limited liability company organized and existing under the laws of the State of Delaware.

“Project Accounts” means the accounts described in Exhibit A, or any replacement or additional accounts established in accordance with the terms hereof.

“Quarterly Payment Date” means each of January 1, April 1, July 1 and October 1.

“Restoration or Replacement Plan” means a plan and time schedule, reasonably satisfactory to the Lender and the Independent Engineer, for the application of Insurance Proceeds and Condemnation Proceeds arising from any Casualty Event or Event of Taking and

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any other funds available to the Borrower with which to restore or replace the Systems, or any portion thereof, affected by such Casualty Event or Event of Taking.

“Restricted Payments Account” means the “Restricted Payments Account” described in Exhibit A, or any replacement account thereof established pursuant to the terms hereof.

“Restricted Payments Certificate” means a Restricted Payments Certificate in substantially the form of Exhibit C.

“Revenue Account” means the “Revenue Account” described in Exhibit A, or any replacement account thereof established pursuant to the terms hereof.

“Subordinated Affiliate Payments” means any amounts payable by the Borrower to the Parent pursuant to (i) Sections 4.01(b), (c) and (d) of the Administrative Services Agreement and (ii) Section 4.3(a)(ii) of the LTSA to the extent that such amounts exceed the amounts budgeted for power module replacement in the Operating Budget and paid pursuant to Section 4.2(c)(i) of this Agreement.

“Tax Distribution Amount” means the Preferred Distribution (as defined in the Pledgor LLC Agreement, as in effect on the first Funding Date).

“Tracking Account” means a ledger account maintained by the Lender that tracks amounts paid from time to time to the Lender by the Credit Protection Insurer pursuant to the Credit Protection Insurance Policy, as reduced by amounts reimbursed from time to time to the Credit Protection Insurer pursuant to Section 4.5 of this Agreement.

1.2 Rules of Construction.

The principles of interpretation set forth in Section 1.02 of the Credit Agreement apply equally to this Agreement as if set forth herein.

ARTICLE 2

APPOINTMENT; GRANT OF SECURITY INTEREST

2.1 Appointment.

(a) The Lender hereby appoints and authorizes the Accounts Bank to act as its depository and as its “securities intermediary” or “bank” (within the meaning of Section 9- 102(a)(8) of the UCC) with respect to the Project Accounts, with such powers as are expressly delegated to the Accounts Bank by the terms of this Agreement, together with such other powers as are reasonably incidental thereto. The Accounts Bank hereby accepts each such appointment and agrees to act as the depository for the Lender and as the “securities intermediary” or “bank” with respect to the Project Accounts, for the benefit of the Lender in accordance with the terms of this Agreement. The Accounts Bank further agrees to accept and hold, as “securities intermediary” or as a “bank”, in its custody and in accordance with the terms of this Agreement, for the Lender, the Project Accounts and the Account Collateral.

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(b) The Lender also hereby appoints and authorizes the Accounts Bank to act on its behalf (including in its role as agent for the Secured Swap Providers) for the purpose of the creation and perfection of a first-priority security interest in favor of the Lender in the Project Accounts to the extent that they are deemed under applicable Law not to constitute securities accounts or deposit accounts and in any Account Collateral that is deemed under applicable Law not to constitute a “financial asset” (within the meaning of Section 8-102(9) of the UCC). The Accounts Bank hereby accepts this appointment and agrees to act as the Accounts Bank for the Lender for such purpose and to hold and maintain exclusive dominion and control over the Project Accounts and any such Account Collateral on behalf of the Lender.

(c) Notwithstanding any provision to the contrary contained elsewhere in this Agreement or any other Financing Document, the Accounts Bank shall not have any duties or responsibilities, except those expressly set forth herein, and no implied covenants, functions, responsibilities, duties, obligations or liabilities shall be read into any Financing Document or otherwise exist against the Accounts Bank. Without limiting the generality of the foregoing sentence, the use of the term “agent” in any Financing Document with reference to the Accounts Bank is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead, such term is used merely as a matter of market custom, and is intended to create or reflect only an administrative relationship between independent contracting parties.

2.2 Project Accounts.

(a) The Borrower agrees that the interests of the Borrower in or to the Project Accounts and the Account Collateral are limited to the rights expressly granted to the Borrower in this Agreement and do not include any other legal or equitable rights, title or interest. The Account Collateral will not constitute repayment of the Obligations until so applied as payments in accordance with the terms of this Agreement and the other Financing Documents.

(b) The Accounts Bank shall not have title to the funds on deposit in or credited to the Project Accounts, and shall credit the Project Accounts with all receipts ofinterest, dividends and other income received on the property held in the Project Accounts. TheAccounts Bank shall administer and manage the Project Accounts in accordance with its duties with respect to the Project Accounts set forth in this Agreement, and shall be subject to and comply with all of the obligations that the Accounts Bank owes to the Borrower and the Lender with respect to the Project Accounts, including all subordination obligations set forth in Section 2.7 with respect to the Accounts Bank’s right of set-off or recoupment or right to obtain a Lien, pursuant to the terms of this Agreement. The Accounts Bank hereby agrees to comply with any and all written instructions originated by the Lender in accordance with the provisions hereof directing the disbursement, deposit and/or transfer of any funds and all other property held in the Project Accounts without any further consent of the Borrower or any other Person, and to comply with any and all written instructions originated by the Borrower directing the disbursement, deposit and/or transfer of any funds and all other property held in the Project Accounts subject to, and in accordance with, the terms of this Agreement.

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2.3 Representations, Warranties and Covenants of the Accounts Bank. The Accounts Bank hereby represents, warrants, covenants and agrees with the Lender and the Borrower as follows:

(a) it is a “securities intermediary” (within the meaning of Article 8 of the UCC) on the date hereof and shall act as such in maintaining the Project Accounts and all of the Account Collateral (including all securities and other financial assets or security entitlements deposited in or credited to the Project Accounts) from time to time transferred, deposited in or credited to or maintained in the Project Accounts;

(b) it is the bank with which each Project Account is maintained and the “securities intermediary” with respect to the financial assets held in the Project Accounts. In this regard, (i) if the Accounts Bank has knowledge that an issuer of any financial asset is required to make a payment or distribution in respect of such financial asset, the Accounts Bank shall have fulfilled its duty under applicable Law to take action to obtain such payment or distribution if (A) it credits such payment or distribution to the Project Accounts in accordance with this Agreement if such payment or distribution is made or (B) it notifies the Borrower and the Lender that such payment or distribution has not been made, and (ii) if the Accounts Bank is required by applicable Law or this Agreement to credit to any Project Account any financial asset purported to be transferred or credited to the Accounts Bank pursuant to applicable Law, the Accounts Bank shall have fulfilled its duty to so credit any Project Account if it credits as a security entitlement to the applicable party whatever rights the Accounts Bank purportedly has in the financial asset transferred or credited to the Accounts Bank and the Accounts Bank shall have no duty to ensure that applicable Law has been complied with in respect of the transfer of the financial asset or to create a security interest in or Lien on any financial asset purported to be transferred or credited to the Accounts Bank and subsequently credited to any Project Account;

(c) it shall promptly perform all duties imposed upon a “securities intermediary” and a “bank” under the UCC and this Agreement;

(d) the Lender, and no other Person, is the Accounts Bank’s customer with respect to the Project Accounts, and the Borrower has consented to the Lender being deemed the customer hereunder;

(e) the Account Bank’s jurisdiction, for purposes of this Agreement and Article 8 and Section 9-304(b)(1) of the UCC, is and shall continue to be the State of New York;

(f) it has established and maintains the Project Accounts as set forth in Section 4.1;

(g) each Project Account is and will be maintained as a securities account or, as set forth in Section 2.4, a deposit account;

(h) all financial assets acquired by or delivered to the Accounts Bank shall be held by the Accounts Bank and credited by book entry to the relevant Project Account or otherwise accepted by the Accounts Bank for credit to the relevant Project Account. Any

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financial asset so credited or accepted for credit to the relevant Project Account shall be registered in the name of, payable to, or to the order of, or endorsed to the Accounts Bank or in blank and in no case will any financial asset credited to any Project Account or held by the Accounts Bank for credit to any Project Account be registered in the name of, payable to, to the order of, or endorsed to, the Borrower, except to the extent that such financial asset has been subsequently endorsed by the Borrower to the Accounts Bank or in blank;

(i) each item of property (including any cash, security, general intangible, document, instrument or obligation, share, participation, interest or other property whatsoever) deposited in or credited to any Project Account shall be treated as a financial asset under and for the purposes of Article 8 of the UCC, including Section 8-102(a)(9)(iii) thereof. Notwithstanding any provision herein to the contrary, any property contained in the Project Accounts that is not deemed to be a financial asset under applicable Law, to the extent permitted by applicable Law, will be deemed to be deposited in a deposit account and subject to Section 2.4;

(j) the Lender is the entitlement holder in any security entitlements with respect to any financial assets deposited in or credited to the Project Accounts, and the Lender may issue entitlement orders with respect thereto;

(k) if at any time it receives an entitlement order or any other order from the Lender in accordance with the provisions hereof directing the transfer, redemption or liquidation of any financial asset carried in the Project Accounts or any instruction originated by the Lender directing the disbursement, deposit and/or transfer of any funds or other property held in the Project Accounts, the Accounts Bank shall comply with such entitlement order, instruction or other order without further consent by the Borrower or any other Person. The Borrower hereby agrees that the Lender shall have control of the security entitlements carried in the Project Accounts and of the financial assets carried in the Project Accounts, and the Borrower hereby disclaims any entitlement to claim control of such security entitlements or financial assets. The foregoing clause shall not be construed to excuse the Lender from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are found in a final non-appealable judgment by a court of competent jurisdiction to have been caused solely by the Lender having acted in contravention of the provisions hereof or resulting from the Lender’s gross negligence or willful misconduct as finally determined in a non-appealable order by a court of competent jurisdiction;

(l) all property delivered to the Accounts Bank pursuant to this Agreement or the other Financing Documents will be promptly deposited in or credited to a Project Account by an appropriate entry in its records in accordance with this Agreement;

(m) the Accounts Bank shall not change the name or account number of any Project Account unless it obtains the prior written consent of the Lender and provides at least ten (10) days’ prior written notice to the Borrower;

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(n) except for the claims and interest of the Lender and the Borrower in the Project Accounts, it does not know of and has not received written notice of any right or claim (including any adverse claim) to or interest in the Project Accounts or any Account Collateral (including, without limitation, funds and financial assets) deposited in or credited to the Project Accounts by any Person. If any Person (other than the Lender) asserts any Lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against any Project Account or in any financial asset or other property deposited therein or credited thereto, the Accounts Bank will promptly notify the Lender and the Borrower in writing thereof; and

(o) the Accounts Bank has not entered into and will not enter into any agreement with respect to the Project Accounts or any financial assets or other property deposited in or credited to any Project Account other than this Agreement, as may be amended from time to time. The Accounts Bank has not entered into and will not enter into any agreement with the Borrower or any other Person purporting to limit or condition the obligation of the Accounts Bank to comply with entitlement orders or any other order originated by the Lender in accordance with this Agreement.

2.4 Project Accounts as Deposit Account.

(a) The parties hereto agree that, notwithstanding the provisions of this Agreement, to the extent that the Project Accounts are not considered to be “securities accounts” (within the meaning of Section 8-501(a) of the UCC), the Project Accounts shall be deemed to be deposit accounts (as defined in Section 9-102(a)(29) of the UCC), which the Borrower shall maintain with the Accounts Bank, acting not as “securities intermediary” but as a “bank” (within the meaning of Section 9-102(a)(8) of the UCC).

(b) The Lender shall be deemed the sole customer of the Accounts Bank for purposes of the Project Accounts and, as such, shall be entitled to all of the rights that customers of banks have under applicable Law with respect to deposit accounts, including the right to withdraw funds from, or close, the Project Accounts, and the Borrower hereby consents to the Lender being deemed the customer hereunder. The foregoing clause shall not be construed to excuse the Lender from liability to the Borrower to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are found in a final non-appealable judgment by a court of competent jurisdiction to have been caused solely by the Lender having acted in contravention of the provisions hereof or resulting from the Lender’s gross negligence or willful misconduct as finally determined in a non-appealable order by a court of competent jurisdiction.

2.5 Grant of First-Priority Security Interest. As security for the prompt and complete payment when due (whether at stated maturity, by acceleration or otherwise) of any and all of the Obligations and the due performance and compliance by the Borrower with all of the terms, conditions, and agreements to be performed and complied with by it under and pursuant to the terms of the Credit Agreement and the other Financing Documents, the Borrower hereby acknowledges and confirms the pledge, collateral assignment, hypothecation, and granting of a

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first-priority security interest to the Lender (including as agent for the Secured Swap Providers), pursuant to the Security Agreement, in all of its right, title and interest in and to the following, in each case, as to each type of property described below, whether now owned or hereafter acquired by the Borrower, wherever located, and whether now or hereafter existing or arising (collectively, the “Account Collateral”):

(a) each of the Project Accounts, including all funds, Cash Equivalents, securities, financial assets or other property held in, required to be held in or credited to any of the Project Accounts or otherwise in possession or control of the Accounts Bank pursuant to this Agreement, and all interest, dividends and other income derived therefrom;

(b) all statements, certificates, instruments and investment property representing or evidencing any property described in clause (a) above held in, required to be held in or credited to any of the Project Accounts or otherwise in possession or control of the Accounts Bank pursuant to this Agreement; and

(c) to the extent not included in the foregoing, all proceeds, products and accessions of and to any and all of the foregoing, including whatever is received upon any collection, exchange, sale or other disposition of any of the foregoing and any property into which any of the foregoing is converted, whether cash or non-cash proceeds, and any and all other amounts paid or payable under or in connection with any of the foregoing and all security entitlements of the Borrower in any and all of the foregoing.

2.6 Control and Perfection of Account Collateral.

(a) The Borrower specifically acknowledges and agrees that (i) each Project Account pledged hereunder shall be maintained so that the Lender has control of such Project Account in the manner specified in Section 9-104 of the UCC, (ii) all Cash Equivalents pledged hereunder shall be maintained so that the Lender has control of such Cash Equivalents in the manner specified in Section 9-106 of the UCC, and (iii) all financial assets held in the Project Accounts and pledged hereunder shall be maintained so that the Lender has control of such financial assets in the manner specified in Section 8-106 of the UCC.

(b) The Borrower shall give, deliver, file, record, authorize or obtain all such UCC financing statements as may be necessary to perfect and maintain the security interest granted under this Agreement.

(c) Until the Discharge Date, the Borrower shall not have any rights against or to Monies held in the Project Accounts, except the right to receive or make requisitions of funds deposited in or credited to the Project Accounts as permitted by this Agreement.

2.7 Subordination.

(a) The Accounts Bank hereby acknowledges the first-priority security interest granted hereby to the Lender. In order to secure repayment of Borrower’s or Lender’s, as applicable, obligations to Accounts Bank hereunder, Borrower and Lender hereby pledge and

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grant to Accounts Bank a continuing lien and security interest in, and right of set-off against, all of Borrower’s and Lender’s right, title and interest in and to the Account Collateral (including proceeds thereof) held in the Project Accounts. In this regard Accounts Bank shall be entitled to all the rights and remedies of a pledgee and secured creditor under applicable laws, rules or regulations as then in effect. The Accounts Bank hereby agrees that such right of recoupment or set-off and/or any such Lien shall (except to the extent provided in clause (c) of this Section 2.7) be subordinate to the security interest of the Lender. The Accounts Bank agrees that it shall not (except to the extent provided in clause (c) of this Section 2.7) assert or enforce any such right of recoupment or set-off and/or any Lien until the Discharge Date.

(b) Until the Discharge Date, the financial assets and other items deposited in or credited to the Project Accounts and all other Account Collateral will not (except to the extent provided in clauses (a) and (c) of this Section 2.7) be subject to deduction, set-off, banker’s lien or any other right in favor of any Person other than the Lender.

(c) The Project Accounts, Account Collateral or any financial asset or other property deposited therein or credited thereto shall be subject to deduction, set-off, banker’s lien and recoupment to the extent of (i) returned items and chargebacks either for uncollected checks or other items of payment and transfers previously credited to one or more Project Accounts, (ii) any advances that Accounts Bank may from time to time make to, or for the benefit of, the Borrower or the Lender for purposes of clearing or settling purchases or sales of securities by Borrower or Lender, as applicable, or there shall be for whatever reason an overdraft in the Project Accounts, and (iii) any customary fees, expenses and other amounts not described in clauses (i) or (ii) above owed to Accounts Bank and incurred in connection with the performance of its duties hereunder and the maintenance and operation of the Project Accounts and any amounts actually due and owing to the Accounts Bank in accordance with the Accounts Bank Fee Agreement, for which Securities Intermediary shall have a prior claim to, and right of set-off against, the Account Collateral, and each of the Lender and the Borrower hereby expressly authorize the Accounts Bank to debit the relevant Project Account(s) for such amounts.

2.8 Agreement to Hold In Trust. All payments received directly by the Borrower that are required to be deposited into the Project Accounts in accordance with the terms of this Agreement, the Credit Agreement, or any other Financing Document (including any amount received by the Borrower pursuant to, or in connection with, any Project Document or any sale of assets) shall be held by the Borrower in trust for the Lender, shall be segregated from other funds of the Borrower and shall, forthwith upon receipt by the Borrower, be turned over to the Lender or its designee in the same form as received by the Borrower (duly endorsed by the Borrower to the Lender or the Accounts Bank, if requested by the Lender) for deposit and disbursement in accordance with this Agreement.

2.9 Deposits into and Withdrawals from Project Accounts.

(a) Amounts shall be deposited into and withdrawn from the Project Accounts in strict accordance with Article 3.

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(b) The Accounts Bank will only be required to transfer funds hereunder if it has received written notice of such proposed transfer, together with all certificates, notices, directions and other documents required under this Agreement to be delivered to the Accounts Bank relating thereto, not later than 3:00 p.m. New York City time at least two (2) Business Days prior to such proposed transfer, in each case, with a copy thereof to the Lender, and, if such notice or any such related document is received by the Accounts Bank after such time, such transfer will be undertaken two (2) Business Days succeeding the date of receipt by the Accounts Bank of all such documentation.

(c) If any transfer, withdrawal, deposit, investment or payment of any funds by the Accounts Bank or any other action to be taken by the Accounts Bank under this Agreement is to be made or taken on a day other than a Business Day, such transfer, withdrawal, deposit, investment, payment or other action will be made or taken on the next succeeding Business Day.

(d) Any instruction, direction, notice, certificate, request or requisition given to the Accounts Bank by the Borrower with respect to the transfer, withdrawal, deposit, investment or payment of any funds under this Agreement or with respect to any other obligations to be performed by the Accounts Bank under this Agreement (i) must be in writing and signed by an Authorized Officer of the Borrower, (ii) in referencing any of the Project Accounts, must refer to the specific Project Account name and number, (iii) shall constitute a representation by the Borrower that all conditions set forth in this Agreement for such withdrawal have been satisfied, whether or not those conditions are explicitly stated to be so satisfied except to the extent such conditions have been waived by the Lender in accordance with the terms of the Credit Agreement, and (iv) shall be copied to the Lender.

(e) Any instruction, direction, notice, certificate, request or requisition given to the Accounts Bank by the Lender with respect to the transfer, withdrawal, deposit, investment or payment of any funds under this Agreement or with respect to any other obligations to be performed by the Accounts Bank under this Agreement (i) must be in writing and signed by an Authorized Officer of the Lender, (ii) in referencing any of the Project Accounts, must refer to the specific Project Account name and number and (iii) shall be copied to the Borrower.

(f) Notwithstanding anything contained in this Agreement or any other Financing Document to the contrary, the Accounts Bank may rely and shall be protected in acting or refraining from acting upon any instruction, direction, notice, certificate, request or requisition of the Borrower or the Lender.

(g) None of the Project Accounts shall go into overdraft, and the Accounts Bank shall make reasonable efforts not to comply with any request or direction to the extent that it would cause any of the Project Accounts to do so; provided, however, the failure to do so shall not result in any personal liability to the Accounts Bank.

(h) The Accounts Bank shall not be charged with knowledge of any Notice of Suspension or Event of Default unless the Accounts Bank has received such Notice of Suspension or other written notice of such Event of Default from the Lender or the Borrower.

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(i) The Accounts Bank shall not be charged with the knowledge that any transfer or withdrawal from any Project Account would result in the occurrence of an Event of Default, unless it has received written notice thereof from the Lender or the Borrower.

(j) Notwithstanding anything contained in this Agreement or any other Financing Document to the contrary, the Accounts Bank shall have no obligation to (i) make any payment, transfer or withdrawal from any Project Account until it has received written direction to make such payment, transfer or withdrawal from the Lender or the Borrower (if this Agreement explicitly provides that any such direction may be made by the Borrower), or (ii) determine whether any payment, transfer or withdrawal from any Project Account made in accordance with any written direction from the Lender or the Borrower (if this Agreement explicitly provides that any such direction may be made by the Borrower) complies with the terms of this Agreement. The Accounts Bank shall have no liability for, nor any responsibility or obligation to confirm, the use or application by the Borrower or the Lender or any other recipient of amounts withdrawn or transferred from any Project Account.

(k) Notwithstanding any other provision of this Agreement or any other Financing Document (but without limiting Sections 2.9(h), (i) and (j)), without the express prior written consent of the Lender, no amount may be withdrawn from any Project Account if an Event of Default would occur as a result of such withdrawal.

(l) On the date of each withdrawal by the Accounts Bank from a Project Account directed by the Borrower, the Borrower shall be deemed to represent and warrant that no Notice of Suspension is in effect and that no Event of Default would occur as a result of such withdrawal, unless the Lender has previously consented in writing to such withdrawal, notwithstanding that a Notice of Suspension is in effect or that an Event of Default would occur as a result of such withdrawal.

2.10 No Security Interests. The Borrower shall not at any time until the Discharge Date create or permit to subsist any Lien (other than (a) first-priority Liens in favor of the Lender arising under this Agreement or the other Security Documents, and (b) other Permitted Liens) on all or any part of any of the Project Accounts or the Account Collateral, or assign, transfer or otherwise dispose of all or any part of its right or title to any of the Project Accounts or the Account Collateral other than in accordance with, or as permitted by, the terms of this Agreement and the other Financing Documents.

2.11 Acknowledgments. Each party to this Agreement acknowledges that neither the Accounts Bank nor the Lender shall incur any obligation or liability in circumstances where there are insufficient funds deposited in or credited to any Project Account to make a payment in full that would otherwise have been made pursuant to the terms of this Agreement, except to the extent of any direct damages (as opposed to consequential damages, claims in respect of which are hereby waived by the Borrower to the extent permitted by applicable law) suffered by the Borrower that are found in a final non-appealable judgment by a court of competent jurisdiction to have been caused (a) with respect to the Lender, solely by the Lender having acted in contravention of the provisions hereof, or (b) with respect to the Accounts Bank or the Lender, resulting from the Accounts Bank or the Lender’s gross negligence or willful misconduct as

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finally determined in a non-appealable order by a court of competent jurisdiction, as applicable; and, for the avoidance of doubt, neither the Accounts Bank nor the Lender shall have any liability for the acts or omissions of the other party.

2.12 Further Assurances.

(a) The Borrower shall, at any time and from time to time at the first demand of the Accounts Bank or the Lender, and at the sole cost and expense of the Borrower, promptly and duly execute and deliver, or otherwise authenticate, all further instruments and documents, and take all further action, that may be necessary or required under applicable law or that the Accounts Bank or the Lender may reasonably request, in order to perfect and protect any pledge or security interest granted or purported to be granted hereunder or to enable each of the Accounts Bank and the Lender to exercise and enforce its rights and remedies hereunder with respect to any Account Collateral.

(b) Without limiting the generality of the foregoing, the Borrower will promptly, with respect to the Account Collateral:

(i) execute or authenticate and file such UCC financing or continuation statements, or amendments thereto, and such other instruments or notices, as may be necessary, or as the Accounts Bank or the Lender may reasonably request, in order to perfect and preserve the security interest granted or purported to be granted hereunder;

(ii) take all action necessary to ensure that the Lender has control of the Account Collateral as provided in Sections 8-106, 9-104, 9-106 and any other applicable section of the UCC;

(iii) take all action necessary to ensure that the Lender has a first-priority perfected security interest in all Account Collateral described in Section 2.5 under the laws of the jurisdiction in which the Borrower is located (within the meaning of Section 9-307 of the UCC); and

(iv) deliver to the Lender evidence that all other action that the Accounts Bank or the Lender may deem reasonably necessary in order to perfect and protect the security interest created by the Borrower under this Agreement has been taken.

(c) The Borrower hereby authorizes the Lender to file one or more UCC financing or continuation statements, and amendments thereto, relating to all or any part of the Account Collateral, without the signature of the Borrower where permitted by applicable Law.

ARTICLE 3

BORROWER REMAINS LIABLE

Anything herein to the contrary notwithstanding, (a) the Borrower shall remain liable under its contracts and agreements (including the Financing Documents and the Project Documents) to the extent set forth therein to perform all of its duties and obligations thereunder to the same extent as if this Agreement had not been executed, (b) the exercise by the Accounts

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Bank or the Lender of any of the rights hereunder shall not release the Borrower from any of its duties or obligations under its contracts and agreements, and (c) neither the Accounts Bank nor the Lender shall have any obligation or liability under the contracts and agreements of the Borrower by reason of this Agreement, nor shall the Accounts Bank or the Lender be obligated to perform any of the obligations or duties of the Borrower thereunder or to take any action to collect or enforce any claim for payment assigned hereunder. Notwithstanding the foregoing, if the Borrower fails to perform any agreement of the Borrower contained herein, the Lender may (but shall not be obligated to) itself perform, or cause performance of, such agreement, and the expenses of the Lender incurred in connection therewith shall be payable by the Borrower pursuant to Section 9.06 of the Credit Agreement.

ARTICLE 4

THE PROJECT ACCOUNTS

4.1 Establishment of Project Accounts.

(a) On or prior to the Closing Date, the Accounts Bank shall establish and maintain, in the name of the Lender and on the books and records of the Accounts Bank at the offices of the Accounts Bank, the accounts listed in Exhibit A.

(b) The Lender may direct the Accounts Bank to establish and maintain additional Project Accounts and sub-accounts within the Project Accounts from time to time consistent with the terms of the Credit Agreement and the other Financing Documents; provided, that for so long as no Event of Default has occurred and is continuing, no additional Project Accounts and subaccounts may be established without the Borrower’s prior written consent.

4.2 Revenue Account.

(a) Deposits to Revenue Account. The Borrower (or, with respect to amounts transferred from another Project Account, the Lender) shall cause the following amounts to be deposited in, or credited to, the Revenue Account directly or, if received by the Borrower, as soon as practicable (but no more than two (2) Business Days) after receipt:

(i) all Cash Flow;

(ii) any other income received by or on behalf of the Borrower that is not required to be deposited in or credited to another Project Account or applied directly to the Obligations pursuant to the Financing Documents; and

(iii) all other amounts required to be transferred to the Revenue Account from any other Project Account pursuant to this Agreement.

If any of the foregoing amounts required to be deposited with the Accounts Bank in accordance with the terms of this Agreement are received by the Borrower, the Borrower shall hold such payments in trust for the Lender and as promptly as practicable (but no more than two (2) Business Days after receipt) remit such payments to the Accounts Bank for deposit in or credit to the Revenue Account, in the form received, with any necessary endorsements.

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(b) Withdrawals from Revenue Account. The Borrower may request the transfer or withdrawal of funds in the Revenue Account to pay the amounts on the dates and at the priorities set forth in Section 4.2(c) by delivery to the Lender of a Funds Withdrawal/Transfer Certificate at least three (3) Business Days in advance of each Quarterly Payment Date. Within three (3) Business Days following its receipt of such Funds Withdrawal/Transfer Certificate, (i) to the extent that the Lender concurs that all transfers set forth therein are in compliance with the Financing Documents, unless a Notice of Suspension is in effect or an Event of Default has occurred and is continuing or would occur after giving effect to any withdrawal or application of funds contemplated therein, the Lender shall countersign such Funds Withdrawal/Transfer Certificate and deliver such Funds Withdrawal/Transfer Certificate to the Accounts Bank, or (ii) to the extent that the Lender reasonably determines that any proposed transfers set forth in such Funds Withdrawal/Transfer Certificate are not in compliance with the Financing Documents, the Lender shall notify the Borrower of the failure to satisfy such conditions and any matters that must be remedied prior to resubmission of such Funds Withdrawal/Transfer Certificate. Notwithstanding the foregoing, any transfers pursuant to priorities second, third, fourth, fifth or ninth of Section 4.2(c) shall not require a Funds Withdrawal/Transfer Certificate and may be requested by the Lender at any time such payments are due to the Lender pursuant to the Credit Agreement. Upon receipt of a Funds Withdrawal/Transfer Certificate that is duly executed by the Borrower and countersigned by the Lender (or in the case of transfers pursuant to the preceding sentence, written notification from the Lender), the Accounts Bank shall cause funds held in the Revenue Account to be applied pursuant to the instructions set forth in such Funds Withdrawal/Transfer Certificate or other written notification.

(c) Revenue Account Priorities. All funds held in the Revenue Account shall be withdrawn or transferred to pay the following amounts on the dates and at the priorities indicated below:

(i) First, on each Quarterly Payment Date when required, to the Operating Account, the amount certified by the Borrower in such Funds Withdrawal/Transfer Certificate as being equal to the excess, if any, of (i) the Operation and Maintenance Expenses due or reasonably expected to become due within the next quarter in an amount not to exceed 105% of the budgeted Operation and Maintenance Expenses (other than Subordinated Affiliate Payments) for such quarter over (ii) the amount then on deposit in the Operating Account;

(ii) Second, on any date when due and payable, to the Lender, the amount certified by the Borrower in such Funds Withdrawal/Transfer Certificate, or otherwise determined by the Lender, as being the amount necessary to pay fees and expenses under the Financing Documents, including without limitation pursuant to Section 3.10 (Fees), Article IV (LIBO Rate and Tax Provisions) and Section 9.06 (Costs and Expenses) of the Credit Agreement;

(iii) Third, on any date when due and payable, to the Lender, the amount certified by the Borrower in such Funds Withdrawal/Transfer Certificate, or otherwise determined by the Lender, as being the amount necessary to pay interest on the Loans under the Financing Documents;

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(iv) Fourth, on each Quarterly Payment Date, to the Lender, the amount certified by the Borrower in such Funds Withdrawal/Transfer Certificate, or otherwise determined by the Lender, as being the amount necessary to pay any amount of principal of the Loans and any other unpaid Obligations then due under the Financing Documents;

(v) Fifth, on any date when a mandatory prepayment is required pursuant to the Credit Agreement (other than pursuant to Section 3.08(a)(i)(B) of the Credit Agreement), to the Lender, the amount certified by the Borrower in such Funds Withdrawal/Transfer Certificate, or otherwise determined by the Lender, as being the amount of such mandatory prepayment;

(vi) Sixth, on each Quarterly Payment Date, to the Debt Service Reserve Account, the amount certified by the Borrower in such Funds Withdrawal/Transfer Certificate as being the excess of (x) the Debt Service Reserve Required Amount over (y) the amount then on deposit in the Debt Service Reserve Account;

(vii) Seventh, on each Quarterly Payment Date, if no Event of Default has occurred and is continuing, to the Pledgor (or the Pledgor’s account) the amount certified by the Borrower in such Funds Withdrawal/Transfer Certificate as being the amount of the Tax Distribution Amount;

(viii) Eighth, on each Quarterly Payment Date on or after the Date Certain, if no Event of Default has occurred and is continuing, to the applicable payees identified in the Funds Withdrawal/Transfer Certificate, the amount certified by the Borrower in such Funds Withdrawal/Transfer Certificate as being (x) any Operation and Maintenance Expenses due or reasonably expected to become due within the next quarter that were not paid to the Operating Account pursuant to priority first, and (y) any Subordinated Affiliate Payments then due or previously due and not yet paid; provided, that after such Operation and Maintenance Expenses and Subordinated Affiliate Payments have been made to the applicable payees pursuant to this priority eighth and identified in the Funds Withdrawal/Transfer Certificate, the remaining amount in the Revenue Account shall not be less than the Minimum Prepaid Expenses Amount;

(ix) Ninth, on each Quarterly Payment Date after a Qualified Customer has been downgraded by Moody’s or S&P to a credit rating lower than Investment Grade, to the Lender, the amount certified by the Borrower in such Funds Withdrawal/Transfer Certificate, or otherwise determined by the Lender, as being the amount necessary to cause the Prospective Debt Service Coverage Ratio (calculated quarterly over a period from the date of determination through the fifty-eighth (58^th) Quarterly Payment Date after the Date Certain) to equal [***], solely with respect to Loans attributable to the Systems that are subject to an Offtake Agreement with such downgraded Qualified Customer; and

(x) Tenth, on each Quarterly Payment Date that is at least ninety (90) days after the Date Certain, if no Event of Default has occurred and is continuing, to the Restricted Payments Account, any remaining amounts in the Revenue Account in excess of the Minimum Prepaid Expenses Amount.

[***] Confidential Treatment Requested

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(d) Instructions to Project Document Counterparties. The Borrower hereby acknowledges that it has irrevocably instructed each counterparty to each Project Document pursuant to which payments may be made to or received by the Borrower to make all such payments directly to the Lender for deposit in, or to be credited to, the Revenue Account and agrees that it will so instruct counterparties to any Project Document executed after the date hereof.

4.3 Operating Account.

(a) Deposits to Operating Account. Funds shall be deposited into the Operating Account pursuant to priority first and eighth of Section 4.2(c) of this Agreement and otherwise in accordance with the terms hereof.

(b) Withdrawals from Operating Account. Unless a Notice of Suspension is in effect or an Event of Default has occurred and is continuing or would occur after giving effect to any application of funds contemplated hereby, and so long as adequate funds are then available in the Operating Account, the Borrower may from time to time (but not more frequently than once per week), by delivery of a Funds Withdrawal/Transfer Certificate to the Accounts Bank (with a copy to the Lender), withdraw or transfer funds from the Operating Account as may be necessary to pay directly any amounts owed by the Borrower for Operation and Maintenance Expenses then due and payable; provided, that such Funds Withdrawal/Transfer Certificate is delivered to the Accounts Bank (with a copy to the Lender) at least two (2) Business Days prior to such proposed withdrawal or transfer date. The Borrower hereby covenants and agrees to apply such amounts exclusively to the payment of Operation and Maintenance Expenses (x) in amounts, to the Persons and otherwise in accordance with the information submitted in the Funds Withdrawal/Transfer Certificate that resulted in the funding of the Operating Account pursuant to Section 4.2 and (y) otherwise in accordance with Section 7.01(j)(iii) of the Credit Agreement.

4.4 Debt Service Reserve Account.

(a) Deposits to Debt Service Reserve Account. Funds shall be deposited into the Debt Service Reserve Account pursuant to priority sixth of Section 4.2(c), Section 6.02(g) of the Credit Agreement and otherwise in accordance with the terms hereof and the terms of the other Financing Documents.

(b) Withdrawals from Debt Service Reserve Account. If the amounts on deposit in the Revenue Account are at any time insufficient for the purposes of paying Debt Service then due and payable, the Lender or the Borrower may direct the Accounts Bank to withdraw Monies from the Debt Service Reserve Account on the date on which payment of such Debt Service is due and payable (to the extent that sufficient funds are then available) and transfer such Monies to the Lender in an amount necessary to cause such Debt Service to be paid in full. Within two (2) Business Days of receipt of such written notification from the Lender, the Accounts Bank shall cause funds held in the Debt Service Reserve Account to be applied pursuant to the instructions set forth in such written notification.

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(c) Excess in Debt Service Reserve Account. If at any time amounts on deposit in or credited to the Debt Service Reserve Account exceed the amount required to be deposited therein or credited thereto pursuant to this Agreement, the Credit Agreement and the other Financing Documents after giving effect to the transfers made pursuant to this Section 4.4, the Borrower may, by delivery of written notice to the Lender (which shall include a certification from the Borrower that, both before and after giving effect to such transfer, the amount on deposit in the Debt Service Reserve Account would be equal to or greater than the Debt Service Reserve Required Amount), request the transfer of such excess amount from the Debt Service Reserve Account to the Revenue Account. As promptly as practicable following receipt by the Lender of such request, so long as no Notice of Suspension has been delivered that has not been withdrawn and no Event of Default has occurred and is continuing or would occur after giving effect to any application of funds contemplated therein, the Lender shall direct the Accounts Bank, in writing, to make the transfers described in such request (which transfers shall be made within two (2) Business Days of such request). Upon receipt of such written notification from the Lender, the Accounts Bank shall cause funds held in the Debt Service Reserve Account to be applied pursuant to the instructions set forth in such written notification.

4.5 Restricted Payments Account.

(a) Deposits to Restricted Payments Account. Funds shall be transferred to the Restricted Payments Account pursuant to priority tenth of Section 4.2(c) and otherwise in accordance with the terms hereof and the terms of the other Financing Documents.

(b) Withdrawals from Restricted Payments Account by the Borrower. Upon the satisfaction of all of the conditions for Restricted Payments set forth in Section 7.02(r) of the Credit Agreement, the Borrower may, by delivery to the Lender of a Restricted Payments Certificate, request the transfer of all or any portion of the Monies on deposit in or credited to the Restricted Payments Account to the Pledgor. As promptly as practicable following receipt by the Lender of such Restricted Payments Certificate, so long as no Notice of Suspension has been delivered that has not been withdrawn and no Event of Default has occurred and is continuing or would occur after giving effect to any application of funds contemplated therein, the Lender shall direct the Accounts Bank to make the transfers described in such Restricted Payments Certificate. Upon receipt of such written notification from the Lender, the Accounts Bank shall cause funds held in the Restricted Payments Account to be applied pursuant to the instructions set forth in such written notification; provided, that if at the time of any such withdrawal the nominal balance of the Tracking Account is a positive amount, then the Lender shall instruct the Accounts Bank first to pay to or for the benefit of the Credit Protection Insurer the amount that corresponds to the positive balance of the Tracking Account (and the Lender shall record the amount of such payment as a debit in the Tracking Account) and thereafter to pay to the Pledgor any remaining amount available to be released from the Restricted Payments Account.

(c) Withdrawals from Restricted Payments Account by the Lender. If any Monies have remained on deposit in or credited to the Restricted Payments Account for more than four (4) consecutive Quarterly Periods without satisfaction of the conditions for the making of Restricted Payments set forth in Section 7.02(r) of the Credit Agreement, the Lender may, by delivery of written notification to the Accounts Bank, request the transfer all or a portion of such

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Monies to the Lender, to be applied by the Lender as a prepayment of the Loans pursuant to, and to the extent provided in, Section 3.08(b) of the Credit Agreement. Upon receipt of such written notification from the Lender, the Accounts Bank shall cause funds held in the Restricted Payments Account to be applied pursuant to the instructions set forth in such written notification.

4.6 Insurance, Condemnation and Extraordinary Proceeds Account.

(a) Deposits into the Insurance, Condemnation and Extraordinary Proceeds Account. Until the Discharge Date, the Borrower shall cause all Insurance Proceeds, all Condemnation Proceeds and all Extraordinary Proceeds to be deposited in or credited to the Insurance, Condemnation and Extraordinary Proceeds Account.

(b) Withdrawals from the Insurance, Condemnation and Extraordinary Proceeds Account. The Borrower shall not make, direct, or request the Accounts Bank to make, any withdrawals from the Insurance, Condemnation and Extraordinary Proceeds Account except as permitted by this Section 4.6 and provided that no Notice of Suspension has been delivered that has not been withdrawn and no Event of Default has occurred and is continuing or would occur as a result of such transfer or withdrawal.

(i) Insurance Proceeds or Condemnation Proceeds of $[***] or Less. The Borrower may apply any Insurance Proceeds (other than amounts received from theCredit Protection Insurer pursuant to the Credit Protection Insurance Policy) and Condemnation Proceeds deposited into the Insurance, Condemnation and Extraordinary Proceeds Account in amounts less than or equal to [***] Dollars ($[***]) arising from any one claim or anyseries of claims relating to the same occurrence directly for the replacement or repair of damagedassets to which such Insurance Proceeds and Condemnation Proceeds relate. To effect such transfers, the Borrower may from time to time (but not more frequently than once per week) deliver to the Accounts Bank (with a copy to the Lender), at least five (5) Business Days in advance of any such proposed transfers or withdrawals from the Insurance, Condemnation and Extraordinary Proceeds Account, an Insurance, Condemnation and Extraordinary Proceeds Request Certificate, which shall include a certification that such written notification is being delivered, and the withdrawals specified therein are being directed, in accordance with this Agreement and the other Financing Documents, and that the directed withdrawals or transfers will be used exclusively for repair or replacement of damaged assets to which such Insurance Proceeds and Condemnation Proceeds relate.

(ii) Insurance Proceeds or Condemnation Proceeds in Excess of $[***]. The Borrower may apply any Insurance Proceeds (other than amounts received from the Credit Protection Insurer pursuant to the Credit Protection Insurance Policy) and Condemnation Proceeds deposited into the Insurance, Condemnation and Extraordinary Proceeds Account in amounts greater than [***] Dollars ($[***]) arising from any one claim or any series of claims relating to the same occurrence directly for repair or replacement of damaged assets to which such Insurance Proceeds or Condemnation Proceeds relate only if, within sixty (60) days after the occurrence of the Casualty Event or Event of Taking (or such later date as may be acceptable to the Lender) giving rise to such proceeds, the Borrower delivers a Restoration or Replacement Plan to the Lender and the Independent Engineer with respect to

[***] Confidential Treatment Requested

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such Casualty Event or Event of Taking that is based upon or accompanied by, as applicable, each of the following:

(A) a description of the nature and extent of such Casualty Event or Event of Taking;

(B) a bona fide assessment of the estimated cost and time needed to restore or replace the Systems to substantially the same value and general performance capability as prior to such event;

(C) reasonably satisfactory evidence that such Insurance Proceeds and Condemnation Proceeds, together with other funds to be provided by or on behalf of the Borrower, are sufficient to make the necessary restorations or replacements;

(D) a certificate of an Authorized Officer of the Borrower that (1) all work contemplated to be done under the Restoration or Replacement Plan is reasonably expected to be done within the time periods, if any, required under any Project Document; (2) all Governmental Approvals necessary to perform the work have been obtained (or are reasonably expected to be obtained without undue delay); and (3) the System(s) once repaired/restored will continue to perform at or better than the annual levels set forth in then-current Operating Budget (or other levels approved by the Lender);

(E) the Casualty Event or Event of Taking (including the non-operation of the Systems during any period of repair or restoration) has not resulted or would not reasonably be expected to result in a default giving rise to a termination of, or a materially adverse modification of, one or more of the Governmental Approvals necessary for the continued operation of the System that suffered such Casualty Event or Event of Taking or of one or more Project Documents (or, in the case of a default giving rise to a termination of a Project Document, either (x) an agreement replacing such Project Document, in form and substance, and with a counterparty, reasonably satisfactory to the Lender is entered into within thirty (30) days thereof, or (y) such termination could not reasonably be expected to result in a Material Adverse Effect);

(F) after taking into consideration the availability of such Insurance Proceeds or Condemnation Proceeds, Business Interruption Insurance Proceeds and any additional funded equity contributions for the purpose of covering such costs, there will be adequate amounts available to pay all ongoing expenses including Debt Service during the period of repair or restoration;

(G) contractors and vendors of recognized skill, reputation and creditworthiness have executed reconstruction contracts, purchase orders or similar arrangements for the repair, rebuilding or restoration; and

(H) a confirmation by the Independent Engineer of its agreement with the matters set forth in Section 4.6(b)(ii)(A)-(G) and its approval of such Restoration or Replacement Plan.

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Following the Lender’s approval of such Restoration or Replacement plan and confirmation that the conditions referred to in Section 4.6(b) have been satisfied, the Borrower may from time to time (but not more frequently than once per week) deliver to the Accounts Bank (with a copy to the Lender), at least five (5) Business Days in advance of any such proposed transfers or withdrawals from the Insurance, Condemnation and Extraordinary Proceeds Account, an Insurance, Condemnation and Extraordinary Proceeds Request Certificate, which shall include a certification that such written notification is being delivered, and the withdrawals specified therein are being directed, in accordance with this Agreement and the other Financing Documents, and that the directed withdrawals or transfers will be used exclusively for repair or replacement of damaged assets to which such Insurance Proceeds and Condemnation Proceeds relate in accordance with an approved Restoration or Replacement Plan.

(iii) Mandatory Prepayment. If (A) the Borrower does not deliver such Restoration or Replacement Plan and the accompanying deliveries referred to in Section 4.6(b)(ii) within such sixty (60) day period, or (B) after the completion of any repair or restoration of assets with Insurance Proceeds and Condemnation Proceeds, there are excess Insurance Proceeds and Condemnation Proceeds on deposit in or standing to the credit of the Insurance, Condemnation and Extraordinary Proceeds Account, the Lender may, by delivery of written notification to the Accounts Bank, request the transfer of an amount equal to such Insurance Proceeds and Condemnation Proceeds to the Lender, to be applied by the Lender as a prepayment of the Loans pursuant to Section 3.08(a)(i) of the Credit Agreement. Upon receipt of such written notification from the Lender, the Accounts Bank shall cause funds held in the Insurance, Condemnation and Extraordinary Proceeds Account to be applied pursuant to the instructions set forth in such written notification.

(iv) Credit Protection Insurance Policy Proceeds. Promptly upon receiving any amounts from the Credit Protection Insurer pursuant to the Credit Protection Insurance Policy, the Lender shall, or the Borrower shall pay over to the Lender to, apply all such amounts as prepayments of the Loans pursuant to Section 3.08 of the Credit Agreement.

(c) Withdrawals of Asset Disposal Proceeds. If at any time any Extraordinary Proceeds resulting from an asset disposal permitted under Section 7.02(f) (Negative Covenants – Asset Dispositions) of the Credit Agreement are deposited into the Insurance, Condemnation and Extraordinary Proceeds Account, then on any Quarterly Payment Date:

(i) Amounts of $[***] or Less. If such proceeds are in an aggregate amount of [***] Dollars ($[***]) or less (taken together with any other proceeds of asset disposals deposited in the Insurance, Condemnation and Extraordinary Proceeds Account during then-current Fiscal Year), the Borrower may submit an Insurance, Condemnation and Extraordinary Proceeds Request Certificate tothe Accounts Bank (with a copy to the Lender), certified by a Financial Officer of the Borrower, directing the transfer of such funds to the Revenue Account. Until receipt of a Notice of Suspension by the Accounts Bank, the Accounts Bank may follow the instructions of the Borrower under this Section 4.6(c)(i) without any consent of or instructions from the Lender or any other Person.

[***] Confidential Treatment Requested

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(ii) Amounts in Excess of $[***]. If such proceeds are in an amount greater than [***] Dollars ($[***]) (taken together with any otherproceeds of asset disposals deposited in the Insurance, Condemnation and Extraordinary Proceeds Account during then-current Fiscal Year), such amounts shall be transferred, upon the written instruction of the Borrower or the Lender, to the Lender as a prepayment of the Loans in accordance with Section 3.08(a)(i) (Mandatory Prepayment – Special Events) of the Credit Agreement. Until receipt of a Notice of Suspension by the Accounts Bank, the Accounts Bank may follow the instructions of the Borrower underthis Section 4.6(c)(ii) without any consent of or instructions from the Lender or any otherPerson.

(d) Withdrawal of Project Document Termination Payments. If at any time any Extraordinary Proceeds consisting of Project Document Termination Payments are deposited into the Insurance, Condemnation and Extraordinary Proceeds Account, then, on any Quarterly Payment Date, an amount shall be transferred, upon the written instruction of the Borrower or the Lender, to the Lender for application as a prepayment of the Loans in accordance with Section 3.08(a)(i) (Mandatory Prepayment – Special Events) of the Credit Agreement, in the amount necessary for the principal amount of the Loans remaining after such prepayment to be an amount projected to meet the Debt Sizing Test through the Maturity Date under the Financial Models, assuming for purposes of such calculation a reduction in the Portfolio capacity to the actual Portfolio nameplate capacity and that each of the remaining Systems (if any) operates during future periods at the same capacity factor as such remaining Systems operated during the twelve (12) month period preceding the date of calculation but otherwise changing no assumptions in the Financial Models, with any portion of the Project Document Termination Payment remaining after such application to be deposited in the Revenue Account. Until receipt of a Notice of Suspension by the Accounts Bank, the Accounts Bank may follow the instructions of the Borrower under this Section 4.6(d) without any consent of or instructions from the Lender or any other Person.

4.7 Funds as Collateral. All cash, Cash Equivalents, instruments, securities and other investment property on deposit in or credited to the Project Accounts shall be subject to the Lien of the Lender pursuant to the Security Documents, and shall be held by the Lender as collateral for the Obligations.

4.8 Investment.

(a) Each amount deposited in or credited to a Project Account from time to time shall, from the time it is so deposited or credited until the time it is withdrawn from that Project Account (whether for the purpose of making an investment in Cash Equivalents or otherwise applied in accordance with the terms of this Agreement), earn interest at such rates as may be agreed from time to time by the Borrower, the Lender and the Accounts Bank.

(b) Prior to the receipt by the Accounts Bank of a Notice of Suspension, any amounts held by the Accounts Bank in the Project Accounts shall be invested by the Accounts Bank from time to time, at the risk and expense of the Borrower, solely in such Cash Equivalents as an Authorized Officer of the Borrower shall direct in writing (which may be in the form of a

[***] Confidential Treatment Requested

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standing instruction). In the absence of such instruction from the Borrower, the Accounts Bank shall have no obligation to invest any funds in the Project Accounts. The Borrower shall select Cash Equivalents having such maturities as shall cause the Project Accounts to have a cash balance as of any day sufficient to cover the transfers to be made from the Project Accounts on such day in accordance with this Agreement, the Credit Agreement, the other Financing Documents, the Project Documents and any Additional Project Documents. Upon delivery by the Lender to the Accounts Bank of a Notice of Suspension and until written revocation of such Notice of Suspension is delivered to the Accounts Bank by the Lender, any amounts held by the Accounts Bank in the Project Accounts shall be invested by the Accounts Bank from time to time solely in such Cash Equivalents as the Lender, in its sole discretion, may direct; provided, that the Accounts Bank’s obligation to invest such amounts is conditioned upon receipt by the Accounts Bank of a valid United States Department of the Treasury Internal Revenue Service tax Form W-9 in accordance with Section 4.8(e). Neither the Accounts Bank nor the Lender shall be held liable for the selection of Cash Equivalents, for determining whether an investment constitutes a Cash Equivalent or by reason of any insufficiency in the any Project Account resulting from any loss on any investment included therein. In addition, neither the Accounts Bank nor the Lender shall have any liability in respect of losses incurred as a result of the liquidation of any investment prior to its stated maturity or the failure of the Borrower to provide timely written investment direction.

(c) In the event that the cash balance in any of the Project Accounts is as of any day insufficient to cover the transfers to be made from such Project Account on such day (and if advised in writing by the Lender or the Borrower of such circumstances), the Lender may (but shall not be obligated to) direct the Accounts Bank, without instructions from the Borrower, to sell or liquidate the Cash Equivalents standing to the credit of such Project Account (without regard to maturity date) in such manner as the Lender may direct in order to obtain cash at least sufficient to make such transfers and to pay any expenses and charges incurred in connection with effecting any such sale or liquidation, which expenses and charges the Accounts Bank shall be authorized to pay with cash on deposit in such Project Account. Neither the Accounts Bank nor the Lender shall be liable to any Person for any loss suffered because of any such sale or liquidation.

(d) All interest and other investment income earned from investments in Cash Equivalents made from amounts in any Project Account shall remain in such Project Account until transferred from such Project Account in accordance with the terms of this Agreement.

(e) It is acknowledged by the parties hereto that all investment income earned on amounts on deposit in or credited to the Project Accounts for all Tax purposes shall be attributed to and be income of the Borrower. The Borrower shall be responsible for determining any requirements for paying Taxes or reporting or withholding any payments for Tax purposes hereunder. The Borrower shall prepare and file all Tax information required with respect to the Project Accounts. The Borrower agrees to indemnify and hold the Lender and the Accounts Bank harmless against all liability for Tax withholding and/or reporting for any investment income earned on the Project Accounts and payments in respect thereof. Such indemnities shall survive the termination or discharge of this Agreement or resignation or removal of the Accounts Bank. Neither the Lender nor the Accounts Bank shall have any obligation with respect to the

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making of or the reporting of any payments for Tax purposes. From time to time, and as reasonably requested by the Accounts Bank, the Borrower shall provide to the Accounts Bank a United States Department of the Treasury Internal Revenue Service tax Form W-9 or other appropriate form required with respect to the withholding or exemption from withholding of income tax on any investment income earned on the Project Accounts. The Accounts Bank shall be entitled to request from the Borrower, and rely on, an opinion of legal counsel (which may be counsel to the Borrower) in connection with the reporting of any earnings with respect hereto.

4.9 Inadequately Identified Amounts. In the event that the Lender receives notice from the Accounts Bank with respect to any amount which is inadequately or incorrectly identified as to the Project Account into which such amount is to be credited, the Lender shall notify the Borrower of such event and shall consult with the Borrower as to the Project Account into which such amount should be credited. The Lender shall direct the Accounts Bank to credit such amount to the Revenue Account until such time as the Lender and the Borrower agree on which other Project Account should be credited in accordance with the Financing Documents, in which case the Lender shall direct the Accounts Bank to credit such amount to the such other Project Account.

4.10 Other Bank and Securities Accounts. Upon (a) the establishment of any bank or securities account (in addition to the Project Accounts set forth hereunder) in which the Borrower has any right, title or interest and which is established in any way in connection with the Systems, and (b) any changes in the account number or other identifying attributes of any Project Account or such other bank or securities account, and at any other time and from time to time when reasonably requested by the Lender, the Borrower shall execute and deliver to the Lender, as security for the Obligations, such amendments or supplements to this Agreement and any other documents as are necessary or reasonably appropriate that are so requested by the Lender to create and perfect: (i) in the case of all Project Accounts, a first-priority Lien (subject only to Permitted Liens) in favor of the Lender; and (ii) in the case of any other bank or securities account, a first-priority Lien (subject only to Permitted Liens) in favor of the Lender, over the Borrower’s right, title and interest in and to such Project Account or such other bank or securities account, from time to time as security for the Obligations.

4.11 Optional Prepayment of Loan from Reserve Accounts. If on any date, the aggregate amount of all Monies on deposit in the Debt Service Reserve Account and the Restricted Payments Account exceeds the outstanding principal amount of the Loans and all other Obligations of the Borrower owing under the Financing Documents, then the Borrower may make a voluntary prepayment of the Loans and such Obligations from such Monies in such Project Accounts in accordance with Section 3.07 of the Credit Agreement.

4.12 Accounts Information.

(a) The Accounts Bank will:

(i) within fifteen (15) Business Days after the end of the month in which the first deposit is made into any Project Account and within fifteen (15) Business Days after the end of each month thereafter, provide the Borrower and the Lender a report with respect

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to the Project Accounts, setting forth in reasonable detail all deposits to and disbursements from each of the Project Accounts during such month, including the date on which made, and the balances of and any investments in each of the Project Accounts at the end of such month;

(ii) within ten (10) Business Days after receipt of any written request by the Borrower or the Lender, provide to the Borrower or the Lender, as the case may be, such other information as the Borrower or the Lender, as the case may be, may reasonably specify regarding all Cash Equivalents and any other investments made by the Accounts Bank pursuant hereto and regarding amounts available in the Project Accounts; and

(iii) without in any way limiting the foregoing, provide the Borrower and the Lender with such additional information regarding the Project Accounts as the Borrower or the Lender may reasonably request from time to time.

(b) The Accounts Bank will maintain all of the Project Accounts and all books and records with respect thereto as may be necessary to record properly all transactions carried out by it under this Agreement.

(c) If, to the knowledge of the Accounts Bank, any Cash Equivalent ceases to be a Cash Equivalent, the Accounts Bank will, as soon as reasonably practicable after becoming aware of such cessation, notify the Lender and the Borrower in writing of such cessation and, upon the written direction of the Borrower (or, if the Borrower fails to provide direction within three (3) Business Days of the date of the Accounts Bank’s notice, upon the written direction of the Lender), will cause the relevant investment to be replaced by a Cash Equivalent or by cash; provided, that this Section 4.12(c) will not oblige the Accounts Bank to liquidate any investment earlier than its normal maturity date unless (i) directed to do so under Section 4.8 or (ii) the maturity date of the relevant investment exceeds the maturity date that would enable it tocontinue to qualify as a Cash Equivalent; and provided, further, the Accounts Bank shall have noliability in the event it fails to send such notice to the Borrower or the Lender.

ARTICLE 5

DEFAULT AND ENFORCEMENT

5.1 Notices of Suspension of Project Accounts.

(a) The Lender may suspend the right of the Borrower to withdraw or otherwise deal with any funds deposited in or credited to the Project Accounts at any time during the occurrence and continuance of an Event of Default by delivering a written notice to the Accounts Bank (with a copy to the Borrower) (a “Notice of Suspension”).

(b) Notwithstanding any other provision of the Credit Agreement or any other Financing Document to the contrary, after the issuance by the Lender of a Notice of Suspension in accordance with Section 5.1(a) and until such time as the Lender advises the Accounts Bank and the Borrower in writing that it has withdrawn such Notice of Suspension (which it shall do promptly if such Event of Default is no longer continuing or has been waived), no amount may be withdrawn by the Borrower from any Project Account, including for investment in Cash Equivalents, without the express prior written consent of the Lender.

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5.2 Lender Appointed Attorney-in-Fact. The Borrower hereby irrevocably constitutes and appoints the Lender and any officer or agent thereof, with full power of substitution, as its true and lawful attorney-in-fact (which appointment as attorney-in-fact shall be coupled with an interest), with full authority, if a Notice of Suspension has been delivered by the Lender and until such Notice of Suspension has been withdrawn, to take any action and to execute any and all documents and instruments in the place and stead of the Borrower and in the name of the Borrower or otherwise, that the Lender may deem necessary or advisable to accomplish the purposes of this Agreement in a commercially reasonable manner to the extent required by the UCC, without notice to the Borrower, including:

(a) if an Event of Default has occurred and is continuing, to exercise the rights and remedies set forth in this Agreement and the other Financing Documents;

(b) to take any action that the Lender may, in its discretion and at the Borrower’s expense, deem necessary or appropriate (i) to perfect, maintain and enforce any security interest or other Lien created in favor of the Lender, (ii) to create, perfect, maintain and enforce any security interest or other Lien granted or purported to be granted hereby or (iii) to otherwise accomplish the purposes of this Agreement;

(c) to receive, endorse and collect all funds or other property in which the Borrower has an interest and that would constitute Collateral under the terms of this Agreement or the other Financing Documents, in each case representing any proceeds, dividends, interest payments or other distributions constituting Collateral or any part thereof and to give full discharge for the same and to file any claim or to take any other action or proceeding in any court of law or equity or otherwise deemed necessary or appropriate by the Lender for the purpose of collecting any and all of such proceeds, dividends, payments or other distributions;

(d) to pay or discharge taxes and liens levied or placed on the Collateral; provided, that the Lender shall use commercially reasonable efforts to notify the Borrower of such taxes prior to payment thereof to the relevant Governmental Authority;

(e) (i) to direct any party liable for any payment under or with respect to any of the Collateral to make payment of any and all moneys due or to become due thereunder or with respect thereto directly to the Lender or as the Lender may direct, (ii) to ask or make, demand for, collect, receive payment of and receipt for, any and all moneys, claims and other amounts due or to become due at any time in respect of or arising out of any of the Collateral, (iii) to commence and prosecute any suits, actions or proceedings at law or in equity in any court of competent jurisdiction to collect the Collateral or any part thereof and to enforce any other right in respect of any of the Collateral, (iv) to defend any suit, action or proceeding brought against the Borrower with respect to any of the Collateral and (v) to settle, compromise or adjust any suit, action or proceeding described in Sections 5.2(e)(iii) and (iv) and, in connection therewith, to give such discharges or releases as the Lender may deem appropriate;

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(f) to execute, in connection with any sale, lease, license or other disposition permitted to be made by the Lender hereunder, any endorsements, assignments, transfer statements or other instruments of conveyance or transfer with respect to the Collateral, and to file or register the same if required by applicable Law; and

(g) to communicate in its own name with any party to any agreement or instrument included in the Collateral, at any reasonable time, with regard to any matter relating to such agreement or instrument.

5.3 Enforcement.

(a) Notwithstanding any other provision of the Credit Agreement or any other Financing Document to the contrary, the Lender or its designee may at any time during the occurrence and continuance of an Event of Default, and following delivery of a Notice of Suspension that has not been withdrawn (provided, that any failure to deliver such notice shall not affect the validity of any actions taken under this Section 5.3) take enforcement action with respect to the Project Accounts and the Collateral as provided in Article VI of the Security Agreement. Without limitation and in addition to any and all rights with respect to the Project Accounts and the Collateral under the Credit Agreement or any other Financing Document, the Lender may take enforcement action by:

(i) personally, or by attorneys, taking possession of the Project Accounts and the Collateral or any part thereof, from the Accounts Bank, the Borrower or any other Person that then has possession of any part thereof with or without notice or process of law;

(ii) instructing any obligor, guarantor or counterparty to any agreement, instrument or other obligation in respect of or relating to the Borrower or the Project Accounts and the Collateral to make any payment required by the terms of such agreement, instrument or obligation directly to the Lender;

(iii) taking possession of the Project Accounts and the Collateral or any part thereof by directing the Accounts Bank or the Borrower, as the case may be, to deliver the same to the Lender at any place or places designated by the Lender;

(iv) foreclosing on the Collateral as herein provided or in any manner permitted by applicable Law (including through any permitted non-judicial foreclosure) either concurrently or in such order as the Lender may determine without affecting the rights or remedies to which the Lender may be entitled under this Agreement, the Credit Agreement, or any other Financing Document. The Borrower hereby waives, to the extent permitted by applicable Law, notice and judicial hearing in connection with the Lender’s taking possession or commencing any collection, recovery, receipt, appropriation, repossession, retention, set-off, sale, leasing, licensing, conveyance, assignment, transfer, liquidation, or other disposition of or realization upon any or all of the Collateral, including any and all prior notice and hearing for any prejudgment remedy or remedies and any right to any such notice which the Borrower would otherwise have under applicable Law;

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(v) withdrawing any and all cash and liquidating any and all funds in any of the Project Accounts and applying such funds in accordance with Section 5.5 of this Agreement; or

(vi) selling, assigning or otherwise liquidating the Project Accounts or the Collateral, or any part thereof, at a public or private sale, for cash, upon credit or for future delivery, and at such prices as the Lender may deem satisfactory, and taking possession of the proceeds of any such sale or liquidation.

(b) Notwithstanding anything to the contrary in this Agreement, the Credit Agreement or any other Financing Document, the Borrower acknowledges that if an Event of Default has occurred and is continuing, and following delivery of a Notice of Suspension to the Accounts Bank that has not been withdrawn (provided, that any failure to deliver such notice shall not affect the validity of any actions taken under this Section 5.3(b)), the Lender is entitled to apply amounts deposited in or credited to any Project Account as contemplated in Section 5.5 of this Agreement.

(c) The Lender may, during the continuance of an Event of Default, and at any time following the delivery of a Notice of Suspension to the Accounts Bank and until such notice has been withdrawn (provided, that any failure to deliver such notice shall not affect the validity of any actions taken under this Section 5.3(b)), exercise its rights under this Section 5.3 as frequently, and as many times, as it considers appropriate.

5.4 Lender’s Discretionary Powers. Nothing in this Article V shall impair the right of the Lender in its discretion to take or omit to take any action deemed proper by the Lender and which action or omission is consistent with the provisions of this Agreement and the other Financing Documents.

5.5 Application of Payments and Proceeds.

(a) Notwithstanding any provision of this Agreement or any other Financing Document to the contrary, all payments received or collected by the Lender (including proceeds from the realization of Collateral) upon the occurrence and during the continuance of an Event of Default or after any or all of the Obligations have been accelerated (so long as such acceleration has not been rescinded), upon the occurrence of a termination event (as defined under a Secured Rate Contract) with the Borrower as the affected party, upon an Event of Default (as defined under a Secured Rate Contract) with respect to which the Borrower is the defaulting party under a Secured Rate Contract, or upon the designation of an early termination date with respect to any Secured Rate Contract with the Borrower as the defaulting or affected party, shall be applied as follows:

(i) first, to payment of fees, costs, expenses and any other amounts payable or reimbursable by the Borrower to the Accounts Bank, in each case, in accordance with Section 7.8 of this Agreement;

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(ii) second, to payment of costs and expenses payable or reimbursable by the Borrower to the Lender under the Financing Documents;

(iii) third, to (A) the payment of all accrued and unpaid interest on the Obligations and fees owed to the Lender, and (B) the payment of any ordinary-course settlement payments (including “Unpaid Amounts” as defined in any Secured Rate Contract) then due and payable to any Secured Swap Provider under its Secured Rate Contracts, after such ordinary-course settlement payments have been reduced by the amount of any cash collateral that has been made available to such Secured Swap Provider to secure the obligations under such Secured Rate Contract;

(iv) fourth, to (A) the payment of principal of the Loans; (B) the payment of all termination payments (but excluding Unpaid Amounts paid under clause “second” above) under the Secured Rate Contracts then due and payable to any Secured Swap Provider, after such termination payments have been reduced by the amount of any cash collateral that has been made available to such Secured Swap Provider to secure the obligations under such Secured Rate Contract; and (C) the cash collateralization of any other unmatured Secured Swap Obligations in an amount necessary to secure the obligations of the Borrower to any Secured Swap Provider under its Secured Rate Contracts;

(v) fifth, to payment of any other amounts owing constituting Obligations; and

(vi) sixth, any remainder shall be for the account of and paid to whomever may be lawfully entitled thereto.

In carrying out the foregoing, (x) amounts received shall be applied in the numerical order provided until exhausted prior to the application to the next succeeding category and (y) the Lender, each Secured Swap Provider and each other Person entitled to payment shall receive an amount equal to its pro rata share of amounts available to be applied pursuant to clauses third, fourth and fifth above.

(b) The Borrower shall have no right to specify the order or the accounts to which the Lender shall allocate or apply any payments required to be made by the Borrower to the Lender or otherwise received by the Lender under this Agreement when any such allocation or application is not specified elsewhere in this Agreement.

(c) When the Accounts Bank and the Lender incur expenses or render services in connection with an Event of Default, the expenses (including the reasonable charges and expenses of its counsel) and the compensation for the services are intended to constitute expenses of administration under any applicable bankruptcy Law.

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ARTICLE 6

TERMINATION

On the Discharge Date, all rights to the Collateral that have not been sold or otherwise applied pursuant to the terms hereof or any other Financing Document shall automatically revert to the Borrower, its successors or assigns, or otherwise as a court of competent jurisdiction may direct. Upon any such termination, the Lender will, at the Borrower’s expense, execute and deliver to the Borrower such documents as the Borrower shall reasonably request to evidence such termination.

ARTICLE 7

THE ACCOUNTS BANK

7.1 Duties of the Accounts Bank.

(a) The Accounts Bank, acting as securities intermediary, will have the obligations of a “securities intermediary” under Article 8 of the UCC, and acting as a bank with respect to the Project Accounts, will have the obligations of a “bank” under Article 9 of the UCC. The Accounts Bank will also have those duties and responsibilities expressly set forth in this Agreement, and no additional duties, responsibilities, obligations or liabilities shall be inferred from the provisions of this Agreement or imposed on the Accounts Bank. The Accounts Bank will act at the written direction of the Lender and, as expressly provided in this Agreement, the Borrower, but will not be required to take any action that is contrary to this Agreement or applicable Law or that, in its reasonable judgment, would involve it in expense or liability, unless it has been furnished with adequate indemnity and/or security against such expense or liability. The Accounts Bank will have no responsibility to ensure the performance by any other party of its duties and obligations hereunder. The Accounts Bank will use the same care with respect to the safekeeping and handling of property held in the Project Accounts as the Accounts Bank uses in respect of property held for its own sole benefit. The provisions of this Article 7 are solely for the benefit of the Accounts Bank and the Lender.

(b) In performing its functions and duties under this Agreement, the Accounts Bank will act solely as the depository of the Lender, and as securities intermediary or as a bank, as the case may be, with respect to the Project Accounts for the benefit of the Lender. The Accounts Bank does not assume and will not be deemed to have assumed any obligation toward or relationship of agency or trust with or for the Borrower or any Person other than the Lender. Neither the Lender nor the Borrower will have any rights against the Accounts Bank hereunder, other than for the Accounts Bank’s gross negligence or willful misconduct as finally determined in a non-appealable order by a court of competent jurisdiction. Except as otherwise expressly provided in this Agreement, the Borrower will not have any right to direct the Accounts Bank to distribute or allocate any funds, instruments, securities, financial assets or other assets in the Project Accounts or to withdraw or transfer any funds, instruments, securities, financial assets or other assets from the Project Accounts. Except as otherwise expressly provided in this Agreement, the Lender will have the sole right to issue directions and instructions to the Accounts Bank, acting as securities intermediary or bank, as the case may be, in accordance with this Agreement, and to issue entitlement orders with respect to the Project Accounts. It is

30

expressly understood and agreed that any investment made with funds held in the Project Accounts may be made only in accordance with the express provisions of Section 4.8 and, when an investment is so made, it is expressly understood and agreed that such investment was made with the permission of the Lender in the exercise of its exclusive possession of, and dominion and control over, the Project Accounts, which it maintains through the Accounts Bank.

7.2 Exculpatory Provisions.

(a) Neither the Accounts Bank nor any of its directors, officers, employees or agents will have any duties or obligations except those expressly set forth herein or required by applicable law. Without limiting the generality of the foregoing, the Accounts Bank shall not:

(i) be subject to any fiduciary or other implied duties, regardless of whether an Event of Default has occurred and is continuing;

(ii) have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby that the Accounts Bank is required to exercise as directed in writing by the Lender; provided, that the Accounts Bank shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Accounts Bank to liability or that is contrary to this Agreement or applicable Law; and provided, further, that no such direction given to the Accounts Bank that in the sole judgment of the Accounts Bank imposes, or purports to impose, or might reasonably be expected to impose upon the Accounts Bank any obligation or liability not set forth herein or arising hereunder shall be binding upon the Accounts Bank unless the Accounts Bank, in its sole discretion, accepts such direction;

(iii) except as expressly set forth herein, have any duty to disclose, nor shall the Accounts Bank be liable for any failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Accounts Bank or any of its Affiliates in any capacity; or

(iv) be required to institute any legal proceedings arising out of or in connection with, or otherwise take steps to enforce, this Agreement other than on the instructions of the Lender together with such security or indemnity from the Lender as the Accounts Bank may require in its sole discretion.

(b) Neither the Accounts Bank nor any of its directors, officers, employees or agents shall be liable for any action taken or not taken by it (i) with the prior written consent or at the request of the Lender, (ii) as may be reasonably necessary, or as the Accounts Bank may believe in good faith to be necessary, under the circumstances as provided in Section 2.1 or (iii) in the absence of its own gross negligence or willful misconduct as finally determined in a non-appealable order by a court of competent jurisdiction.

(c) Neither the Accounts Bank nor any of its directors, officers, employees or agents shall be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement, the Credit Agreement,

31

or any other Financing Document, (ii) the contents of any certificate, report, opinion or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein (including the use of proceeds) or the occurrence or continuance of any Event of Default, (iv) the validity, enforceability, effectiveness, genuineness or admissibility in evidence of this Agreement, the Credit Agreement, any other Financing Document, or any other agreement, instrument or document, or the perfection or priority of any Lien or security interest created or purported to be created by any Security Document (or title to or rights in any collateral under any Security Document), or (v) the satisfaction of any condition set forth in Article VI of the Credit Agreement or elsewhere herein or therein, other than to confirm receipt of items expressly required to be delivered to the Accounts Bank under this Agreement.

(d) The Accounts Bank may, unless and until it has received directions from the Lender, take such action or refrain from taking such action in respect of an Event of Default of which the Accounts Bank has been advised in writing by the Lender as it shall reasonably deem advisable in the best interests of the Lender (but shall not be obligated to do so).

(e) The Accounts Bank shall not be under any duty to give the funds deposited with it hereunder any greater degree of care than it gives the property of its other customers and shall not be required to invest any funds held hereunder except as directed in accordance with this Agreement. The Accounts Bank’s duties under this Agreement are ministerial in nature. Except as provided herein, the Accounts Bank shall not incur any liability for any action taken or omitted in reliance upon any Funds Withdrawal/Transfer Certificates, Insurance Condemnation and Extraordinary Proceeds Request Certificates or other certificate, instrument, order, request, direction or instruction that the Accounts Bank shall in good faith believe to be genuine and in accordance with this Agreement. The Accounts Bank shall not be responsible for determining and verifying the authority of any person acting or purporting to act on behalf of any party to this Agreement. The Accounts Bank shall have no duty to risk or advance its own funds in the performance of any of its duties hereunder or in the exercise of any of its rights or powers, if it shall have reasonable and documented grounds to believe that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured to it. All requests, directions, certificates and notices to be furnished to the Accounts Bank hereunder shall be in writing. The Accounts Bank shall not be responsible for the provisions or requirements of the Credit Agreement, Financing Documents (other than this Agreement) or any other document to which the Accounts Bank is not a party in its capacity as such. In no event shall the Accounts Bank be liable for special, punitive, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost profits), even if the Accounts Bank has been advised of the likelihood of such loss or damage and regardless of the form of action. Notwithstanding anything to the contrary contained herein, the Accounts Bank shall not be responsible for the calculation of any amounts hereunder and shall be entitled to conclusively rely on the accuracy of any and all amounts stated in each Funds Withdrawal/Transfer Certificate and Insurance Condemnation and Extraordinary Proceeds Request Certificate delivered hereunder.

7.3 Reliance by the Accounts Bank. The Accounts Bank shall be entitled to rely upon, and shall not (nor shall any of its directors, officers, employees or agents) incur any

32

liability for relying upon, any notice, request, certificate (including, but not limited to, Funds Withdrawal/Transfer Certificates and Insurance, Condemnation and Extraordinary Proceeds Request Certificates, consent, statement, instrument, document or other writing (including any electronic message, internet or intranet website posting or other distribution) reasonably believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person and the Accounts Bank shall not be liable for anything it may do or refrain from doing in connection with its duties or obligations hereunder except as a result of its own gross negligence or willful misconduct as finally determined in a non-appealable order by a court of competent jurisdiction. The Accounts Bank also may rely upon any statement made to it orally or by telephone and reasonably believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. The Accounts Bank may consult with legal counsel (who may be counsel for the Borrower) and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel. The Accounts Bank may at any time and from time to time solicit written instructions in the form of directions from the Lender or an order of a court of competent jurisdiction, as to any action that it may be requested or required to take, or that it may propose to take, in the performance of any of its obligations under this Agreement.

7.4 Written Instructions; Notices.

(a) Notwithstanding anything in this Agreement, the Credit Agreement or any other Financing Document to the contrary, the Accounts Bank shall have no obligation to (i) make any payment, transfer or withdrawal from any Project Account until it has received written direction to make such payment, transfer or withdrawal from the Lender or, to the extent expressly provided in this Agreement or otherwise with the Lender’s written confirmation, the Borrower or (ii) determine whether any payment, transfer or withdrawal from any Project Account made in accordance with any written direction from the Lender or the Borrower complies with the terms of this Agreement, the Credit Agreement or any other Financing Document. The Accounts Bank shall have no liability for, nor any responsibility or obligation to confirm, the use or application by the Borrower, the Lender or any other recipient of amounts withdrawn or transferred from any Project Account.

(b) Except as otherwise provided in this Agreement, the Accounts Bank shall take action under this Agreement only as it shall be directed in writing by the Lender. In each case that the Accounts Bank may or is required to take any action (an “Accounts Bank Action”), including without limitation to make any determination or judgment, to give consents, to exercise rights, powers or remedies or otherwise to act hereunder, the Accounts Bank may seek direction from the Lender and shall be entitled to refrain from such the Accounts Bank Action unless and until it has received such direction and security or indemnity satisfactory to the Accounts Bank and shall not incur any liability to any Person by reason of so refraining.

7.5 Resignation or Removal of the Accounts Bank.

(a) The Accounts Bank may resign from the performance of all its functions and duties hereunder at any time by giving thirty (30) days’ prior notice to the Borrower and the Lender. The Accounts Bank may be removed (i) at any time by the Lender, or (ii) in the event ofa material breach by the Accounts Bank of its duties hereunder, by the Borrower in consultation with the Lender. Such resignation or removal shall take effect upon the appointment of a successor Accounts Bank, in accordance with this Section 7.5.

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(b) Upon the notice of resignation by the Accounts Bank or upon the removal of the Accounts Bank pursuant to Section 7.5(a), the Lender shall appoint a successor Accounts Bank hereunder, which shall be a commercial bank having a combined capital and surplus of at least Two Hundred Million Dollars ($200,000,000). If no successor Accounts Bank has been appointed and has accepted its appointment within thirty (30) days, the resigning or removed Accounts Bank may, at the expense of the Borrower, petition a court of competent jurisdiction for the appointment of a successor Accounts Bank.

(c) Such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or removed) Accounts Bank, and the retiring (or removed) Accounts Bank shall be discharged from all of its duties and obligations hereunder. After the retirement or removal of the Accounts Bank hereunder, the provisions of this Article 7 shall continue in effect for the benefit of the retiring (or removed) Accounts Bank in respect of any actions taken or omitted to be taken by it while the retiring or removed Accounts Bank was acting as the Accounts Bank.

(d) The retiring or removed Accounts Bank will promptly, upon payment of all the outstanding fees and expenses of the Accounts Bank, transfer all of the Project Accounts and the Account Collateral to the possession or control of the successor Accounts Bank and will, at the sole cost and expense of the Borrower, execute and deliver such notices, instructions and assignments (in form and substance reasonably satisfactory to the Accounts Bank) as may be reasonably necessary or desirable to transfer the rights of the Accounts Bank, together with all records and reports, with respect to the Project Accounts and the Account Collateral to the successor Accounts Bank.

7.6 No Amendment to Duties of the Accounts Bank Without Consent. The Accounts Bank shall not be bound by any waiver, amendment, supplement or modification of this Agreement that affects its rights or duties hereunder or thereunder unless the Accounts Bank has given its prior written consent, in its capacity as the Accounts Bank, thereto.

7.7 Force Majeure. In no event shall the Accounts Bank be responsible or liable for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Accounts Bank shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.

7.8 Indemnity; Fees and Expenses.

(a) The Borrower and Lender, jointly and severally, agree to indemnify and hold harmless the Accounts Bank, its officers, employees, agents and their respective Affiliates

34

from and against any and all claims, liabilities, obligations, losses, damages, penalties, judgments, costs, expenses and disbursements of any kind or nature whatsoever (including costs and expenses of its counsel) that may be imposed on, incurred by, or asserted against the Accounts Bank, its officers, employees, agents or their respective Affiliates by any Person in any way relating to or arising out of (i) this Agreement and the transactions hereunder (including, without limitation, enforcement of this Agreement) or (ii) any action taken or omitted by the Accounts Bank in accordance with this Agreement; provided that the Borrower and Lender will not be liable to the Accounts Bank, its officers, employees, agents or their respective Affiliates for any portion of such claims, liabilities, obligations, losses, damages, penalties, judgments, costs, expenses or disbursements resulting from the Accounts Bank’s, its officers’, employees’, agents’ or their respective Affiliates’ gross negligence or willful misconduct as finally determined in a non-appealable order by a court of competent jurisdiction.

(b) The Borrower agrees to pay to the Accounts Bank its reasonable expenses (including reasonable counsel fees and expenses) and the fees separately agreed to by the Borrower and the Accounts Bank in the Accounts Bank Fee Agreement.

(c) The obligations of the Borrower and Lender to the Accounts Bank under this Section 7.8 or contained in any separate agreement referred to in this Article shall survive the termination of this Agreement and the resignation or removal of the Accounts Bank.

ARTICLE 8

MISCELLANEOUS PROVISIONS

8.1 Amendments; Waivers.

(a) Neither this Agreement nor any of the terms of this Agreement may be changed, waived, discharged or terminated unless such change, waiver, discharge or termination is in writing and signed by the parties to this Agreement.

(b) The waiver (whether express or implied) by the Lender of any breach of the terms or conditions of this Agreement shall not prejudice any remedy of the Lender in respect of any continuing or other breach of the terms and conditions hereof, and shall not be construed as a bar to any right or remedy which the Lender would otherwise have on any future occasion under this Agreement.

(c) No failure to exercise nor any delay in exercising, on the part of the Lender of any right, power or privilege under this Agreement shall operate as a waiver thereof; further, no single or partial exercise of any right, power or privilege under this Agreement shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege. All remedies hereunder and under the other Security Documents are cumulative and are not exclusive of any other remedies that may be available to the Lender, whether at law, in equity or otherwise.

8.2 Successors and Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the respective successors or permitted assigns of the parties hereto.

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The Borrower may not make an assignment or other transfer of this Agreement or any interest herein, unless it has obtained the prior written consent of the Accounts Bank (not to be unreasonably withheld) and the Lender.

8.3 Notices. All notices and other communications provided to any party hereto shall be in writing or by electronic mail or facsimile and addressed, delivered or transmitted to such party at its “Address for Notices” specified below its name on the signature pages hereof or at such other address or facsimile number as may be designated by such party in a written notice to the other parties. All notices or other communications required or permitted to be given under this Agreement shall be in writing and shall be considered as properly given (a) if delivered in Person, (b) if sent by overnight delivery service for inland delivery or international courier for international delivery, (c) in the event overnight delivery service or international courier service is not readily available, if mailed by first class mail (or airmail for international delivery), postage prepaid, registered or certified with return receipt requested, (d) if sent by facsimile or telecopy with transmission verified or (e) if transmitted by electronic mail (with such transmission verified). Notice so given shall be effective upon delivery to the addressee, except that communication or notice so transmitted by facsimile or telecopy or other direct written electronic means shall be deemed to have been validly and effectively given on the day (if a Business Day and, if not, on the next following Business Day) on which it is validly transmitted if transmitted (with such transmission verified) before 2:00 p.m., recipient’s time, and if transmitted after that time, on the next following Business Day.

8.4 Counterparts. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Agreement by signing any such counterpart.

8.5 Choice of Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA, WITHOUT REFERENCE TO CONFLICTS OF LAWS (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). Jurisdiction shall lie in the State of California. All disputes, controversies, claims, actions and similar proceedings arising with respect to the Project Accounts, this Agreement or any related agreement or transaction shall be brought in the United States District Court for the Northern District of California.

8.6 Waiver of Trial by Jury. EACH OF THE PARTIES HERETO ACKNOWLEDGES THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH OF THEM, AFTER CONSULTING OR HAVING HAD THE OPPORTUNITY TO CONSULT, WITH COUNSEL OF THEIR CHOICE, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT ANY OF THEM MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION BASED UPON OR ARISING OUT OF THIS AGREEMENT OR ANY RELATED INSTRUMENT OR FINANCING DOCUMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY COURSE OF CONDUCT, DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTION OF ANY OF THEM. THESE PROVISIONS SHALL NOT BE DEEMED TO HAVE BEEN MODIFIED IN ANY RESPECT OR RELINQUISHED BY ANY OF THE PARTIES HERETO, EXCEPT BY A WRITTEN INSTRUMENT EXECUTED BY EACH OF THEM.

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8.7 Severability. In case any one or more of the provisions contained in this Agreement should be invalid, illegal or unenforceable in any respect (whether under applicable Law or otherwise), the parties hereto agree to the fullest extent they may effectively do so that the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and the parties hereto shall enter into good faith negotiations to replace the invalid, illegal or unenforceable provision.

8.8 Captions. The headings of the several articles and sections and subsections of this Agreement are inserted for convenience only and shall not in any way affect the meaning or construction of any provision of this Agreement.

8.9 Severability. In case any one or more of the provisions contained in this Agreement should be invalid, illegal or unenforceable in any respect (whether under applicable Law or otherwise), the parties hereto agree to the fullest extent they may effectively do so that the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and the parties hereto shall enter into good faith negotiations to replace the invalid, illegal or unenforceable provision.

[signature page follows]

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IN WITNESS WHEREOF, the parties hereto have caused this Accounts Agreement to be duly executed and delivered by their respective duly authorized officers as of the date first written above.

2013B ESA PROJECT COMPANY, LLC,
as the Borrower
By:	/s/ Sendel Atreya
	Name: Sendel Atreya
	Title: Vice President
Address for Notices:
	2013B ESA Project Company, LLC c/o Bloom Energy Corporation 1299 Orleans Drive
	Sunnyvale, California 94089-1137 Attn: Bill Brockenborough Telephone:
	Fax:
	Email:

SILICON VALLEY BANK,
as the Lender and as Agent for the Secured Swap Providers
By:	/s/ Dan Baldi
	Name: Dan Baldi
	Title: Managing Director
Address for Notices:
	555 Mission Street, 9th Floor San Francisco, California 94105 Attn: Dan Baldi
	Fax: N/A
	Email:

THE BANK OF NEW YORK MELLON,
as the Accounts Bank
By:	/s/ Latoya S. Elvin
	Name: Latoya S. Elvin
	Title: Vice President
Address for Notices:
	101 Barclay Street, 7 West New York, New York 10286
	Attn: Corporate Trust Administrator
	Fax:
	Email:

EXHIBIT A

Project Accounts

Name of Account	Account No.
[***]		[***]
[***]		[***]
[***]		[***]
[***]		[***]
[***]		[***]

WIRE TRANSFER INSTRUCTIONS

THE BANK OF NEW YORK MELLON

ABA Routing No: [***]

Credit Acct: [***]

Account Name: [***]

Reference: For further credit to Account No. [***]

[***] Confidential Treatment Requested

EXHIBIT B

FORM OF FUNDS WITHDRAWAL/TRANSFER CERTIFICATE

[Accounts Bank]

[Address]

This Funds Withdrawal/Transfer Certificate is delivered by 2013B ESA Project Company, LLC (the “Borrower”) pursuant to the Accounts Agreement, dated as of July 19, 2013 (the “Accounts Agreement”), by and among the Borrower, Silicon Valley Bank (the “Lender”) and                      (the “Accounts Bank”). Capitalized terms used but not defined herein have the meanings specified in the Accounts Agreement.

***********************************************************

[I. Withdrawals from Revenue Account

Consistent with the terms of, and as contemplated by, Section 4.2(c) of the Accounts Agreement, the Borrower hereby requests that the Accounts Bank make the following withdrawals from the Revenue Account on [            , 20     ]¹ for the following purposes and in the following order of priority:

First, a transfer of $[            ] (which represents an amount equal to the excess, if any, of (i) the Operation and Maintenance Expenses due or reasonably expected to become due within the next quarter in an amount not to exceed 105% of the budgeted Operation and Maintenance Expenses (other than Subordinated Affiliate Payments) for such quarter over (ii) the amount ondeposit in the Operating Account) to the Operating Account;

Second, a transfer of $[            ] (which represents an amount equal to the amount necessary to pay fees and expenses under the Financing Documents) to the Lender;

Third, a transfer of $[            ] (which represents an amount equal to the amount necessary to pay interest on the Loans under the Financing Documents) to the Lender;

Fourth, a transfer of $[            ] (which represents an amount equal to the amount necessary to pay any amount of principal of the Loans and any other unpaid Obligations due under the Financing Documents) to the Lender;

Fifth, a transfer of $[            ] (which represents the amount required to prepay the Loans pursuant to the Credit Agreement (other than Section 3.08(a)(i)(B) of the Credit Agreement) to the Lender;

¹  Insert date at least two (2) Business Days after the date the Accounts Bank receives this

Sixth, a transfer of $[            ] (which represents an amount equal to the excess of (i) the Debt Service Reserve Required Amount over (ii) the amount on deposit in the Debt Service Reserve Account) to the Debt Service Reserve Account;

Seventh, a transfer of $[            ] (which represents an amount equal to applicable [Tax Distribution Amount]) to [            ]²;

Eighth, a transfer of $[            ]³ (which represents an amount equal to Operation and Maintenance Expenses and Subordinated Affiliated Payments due or previously due and not yet paid) to [            ]⁴;

Ninth, a transfer of $[            ] (which represents the amount required to prepay the Loans pursuant to Section 3.08(a)(i)(B) of the Credit Agreement) to the Lender; and

Tenth, a transfer of $[            ], (which represents any remaining amounts in the Revenue Account in excess of the Minimum Prepaid Expenses Amount) to the Restricted Payments Account.

[III. Withdrawals from Operating Account

Consistent with the terms of, and as contemplated by, Section 4.3(b) of the Accounts Agreement, the Borrower hereby requests that the Accounts Bank transfer on [                    , 20    ]⁵, $[                    ], which represents the amount necessary to pay Operation and Maintenance Expenses that are due and payable, from the Operating Account to [                    ]⁶.]

***********************************************************

The Borrower represents and warrants to the Lender and the Accounts Bank that the applicable conditions under Article IV of the Accounts Agreement for the foregoing payments and transfers have been met. The Borrower further represents and warrants to the Accounts Bank and the Lender that:

(a) the amounts being transferred above for the purpose of paying Operation and Maintenance Expenses are for Operation and Maintenance Expenses that are due and payable

²  Insert names and wire instructions for each designated recipient(s) of Tax Distribution Amounts.

³  The remaining amount in the Revenue Account after such Subordinated Affiliate Payment has been made cannot be less than the Minimum Prepaid Expenses Amount.

⁴  Insert names and wire instructions for each designated recipient.

⁵  Insert date at least two (2) Business Days after the date the Accounts Bank receives this proposed transfer certificate.

⁶  Insert names and wire instructions for each designated Operating Costs recipient or the

and are reflected in the Operating Budget or are otherwise permitted under the Financing Documents; and

(b) as of the date of this Funds Withdrawal/Transfer Certificate, no Notice of Suspension has been delivered that has not been withdrawn and no Event of Default has occurred and is continuing or would occur as a result of the transfers or withdrawals requested hereby.

Dated:                         , 20    

2013B ESA PROJECT COMPANY, LLC,

as the Borrower

By:

Name:

Title:

Approved by:⁷

SILICON VALLEY BANK

By:

Name:

Title:

⁷  Approval needed in the case of transfers from the Revenue Account.

EXHIBIT C

FORM OF RESTRICTED PAYMENTS CERTIFICATE

[Accounts Bank]

[Address]

This Restricted Payments Certificate is delivered by 2013B ESA Project Company, LLC (the “Borrower”) pursuant to the Accounts Agreement, dated as of July 19, 2013 (the “Accounts Agreement”), by and among the Borrower, Silicon Valley Bank (the “Lender”) and                    (the “Accounts Bank”). Capitalized terms used but not defined herein have the meanings specified in the Accounts Agreement.

***********************************************************

Reference is made to Section 4.5(b) of the Accounts Agreement.

The Borrower hereby requests that the Lender direct the Accounts Bank to withdraw and pay from the Restricted Payments Account the amounts, and to the payees, in each case as set forth on Schedule 1 attached hereto.

In support of such direction, the undersigned, on behalf of the Borrower, hereby represents and certifies, as of the date hereof and as of the date of such proposed transfers, as follows:

(a) All conditions set forth in the Accounts Agreement and the Credit Agreement (including Section 7.02(r) of the Credit Agreement) for the withdrawal(s) requested hereby have been satisfied.

(b) No Notice of Suspension has been delivered that has not been withdrawn and no Event of Default has occurred and is continuing, or would occur as a result of the Restricted Payment(s) to be made with the proceeds of the withdrawals requested hereby.

2013B ESA PROJECT COMPANY, LLC,

as the Borrower

By:

Name:

Title:

EXHIBIT D

FORM OF INSURANCE, CONDEMNATION AND EXTRAORDINARY PROCEEDS

REQUEST CERTIFICATE

[Accounts Bank]

[Address]

This Insurance, Condemnation and Extraordinary Proceeds Request Certificate is delivered by 2013B ESA Project Company, LLC (the “Borrower”) pursuant to the Accounts Agreement, dated as of July 19, 2013 (the “Accounts Agreement”), by and among the Borrower, Silicon Valley Bank (the “Lender”) and                      (the “Accounts Bank”). Capitalized terms used but not defined herein have the meanings specified in the Accounts Agreement.

***********************************************************

Reference is made to Section  4.6[(b)][(i)][(ii)][(iv)][(c)][(i)][(d)][(i)] of the Accounts Agreement.

The Borrower hereby directs the Accounts Bank to withdraw and pay from the Insurance, Condemnation and Extraordinary Proceeds Account, on [                    ], 20[        ] (the “Insurance and Condemnation Proceeds Withdrawal Date”), the amounts and to [the payees][the RevenueAccount], in each case as set forth on Schedule 1 attached hereto.

In support of such direction, the undersigned, on behalf of the Borrower, hereby represents and certifies, as of the date hereof and as of the Insurance and Condemnation Proceeds Withdrawal Date, as follows:

(a) all conditions set forth in the Accounts Agreement and the Credit Agreement for the withdrawals requested hereby have been satisfied;

(b) [the funds to be withdrawn from the Insurance, Condemnation and Extraordinary Proceeds Account pursuant to this Insurance, Condemnation and Extraordinary Proceeds Request Certificate will be applied directly for the replacement or repair of damaged assets relating to the Systems, in accordance with [Section 4.6(b)(i) of the Accounts Agreement (in the case of amounts less than or equal to [***] Dollars ($[***]) arising from any oneclaim or any series of claims relating to the same occurrence)][Section 4.6(b)(ii) of the Accounts Agreement (in the case of amounts greater than [***] Dollars ($[***]) arising fromany one claim or any series of claims relating to the same occurrence) and the Restoration or Replacement Plan attached hereto, which has been approved by the Lender and by the Independent Engineer in accordance with Section 4.6(b)(ii) of the Accounts Agreement;];

(c) [in the case of a withdrawal pursuant to Section 4.6(b)(ii) of the Accounts Agreement, the Borrower hereby certifies that (1) all work contemplated to be done under the Restoration or Replacement Plan is reasonably expected to be done within the time periods, if

[***] Confidential Treatment Requested

any required under any Project Document; (2) all Governmental Approvals necessary to perform the work have been obtained (or are reasonably expected to be obtained without undue delay); and (3) the Systems once repaired/restored will continue to perform at the annual levels set forth in the current Operating Budget;] and

(d) no Notice of Suspension has been delivered that has not been withdrawn and no Event of Default has occurred and is continuing or would occur as a result of the transfers or withdrawals requested hereby.

2013B ESA PROJECT COMPANY, LLC,

as the Borrower

By:

Name:

Title:

Schedule 1

to Accounts Agreement

MINIMUM PREPAID EXPENSES AMOUNT

Quarterly Payment Date	Minimum Prepaid Expenses Amount
[Quarterly Payment Date]		TBD
[Quarterly Payment Date]		TBD
[Quarterly Payment Date]		TBD
[Quarterly Payment Date]		TBD
[Quarterly Payment Date]		TBD
[Quarterly Payment Date]		TBD
[Quarterly Payment Date]		TBD
[Quarterly Payment Date]		TBD
[Quarterly Payment Date]		TBD
[Quarterly Payment Date]		TBD
[Quarterly Payment Date]		TBD
[Quarterly Payment Date]		TBD
[Quarterly Payment Date]		TBD
[Quarterly Payment Date]		TBD
[Quarterly Payment Date]		TBD
and thereafter	$	0

EX-10

Exhibit 10.84

EXECUTION VERSION

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the securities and exchange commission pursuant to rule 406 of the securities act of 1933, as amended.

SECOND AMENDMENT TO ACCOUNTS AGREEMENT

This SECOND AMENDMENT TO ACCOUNTS AGREEMENT, effective as of October 24, 2014 (this “Amendment”), is entered into by and among 2013B ESA PROJECT COMPANY, LLC, a Delaware limited liability company (the “Borrower”), SILICON VALLEY BANK, a California corporation, as lender and as agent for the Secured Swap Providers (the “Lender”), and THE BANK OF NEW YORK MELLON, a New York banking corporation, as Accounts Bank (the “Accounts Bank”). The purpose of this Amendment is to amend that certain Accounts Agreement, dated as of July 19, 2013, as amended by the First Amendment to the Accounts Agreement, dated as of December 30, 2013 (as so amended, the “Accounts Agreement”), by and among the Borrower, the Lender and the Accounts Bank. Capitalized terms used and not otherwise defined herein have the meanings given to them in the Accounts Agreement and the rules of interpretation set forth in the Accounts Agreement apply as if set forth herein.

WHEREAS, pursuant to the Amended and Restated Credit Agreement, dated as of September 25, 2013, as amended by the First Amendment to Amended and Restated Credit Agreement, dated as of November 14, 2013, as further amended by the Second Amendment to Amended and Restated Credit Agreement, dated as of July 18, 2014, and as further amended by the Third Amendment to the Amended and Restated Credit Agreement, effective as of October 24, 2014, in each case, by and between the Borrower and the Lender (as may be further amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and between the Borrower and the Lender, the Lender agreed to make a credit facility available to the Borrower, subject to the terms and conditions set forth therein; and

WHEREAS, on and subject to the conditions of this Amendment, the undersigned are willing to agree to the requested amendments to the Accounts Agreement;

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the undersigned agree as follows:

Section 1.    Amendments to the Accounts Agreement.

(a)    Section 4.2(c)(ix) of the Accounts Agreement is hereby deleted in its entirety and replaced with the following text:

“(ix) Ninth, on each Quarterly Payment Date after (i) a credit rating downgrade below Investment Grade of (x) a Qualified Customer (excluding the [***] Offtaker) that is then a party to an Offtake Agreement or (y) the [***] Guarantor, or (ii) a credit rating downgrade below “Investment Grade Credit Rating” (as defined in the AT&T Guaranty) of AT&T Corp., to the Lender, the

[***] Confidential Treatment Requested

1

amount certified by the Borrower in such Funds Withdrawal/Transfer Certificate, or otherwise determined by the Lender, as being the amount necessary to cause the Prospective Debt Service Coverage Ratio (calculated quarterly over a period from the date of determination through the sixtieth (60th) Quarterly Payment Date after the Date Certain) to equal [***], solely with respect to Loans attributable to the Systems that are subject to an Offtake Agreement with such downgraded Qualified Customer, an Offtake Agreement guaranteed by such downgraded [***] Guarantor, or an Offtake Agreement guaranteed by such downgraded AT&T Corp., as applicable; and”

Section 2.    Effectiveness. This Amendment shall be effective when it has been executed by the Borrower, the Lender and the Accounts Bank and shall thereafter be effective as of the date first set forth above.

Section 3. Limited Purpose. Notwithstanding anything contained herein, the amendments and modifications made hereby: (a) are limited amendments and modifications and do not waive, alter or amend any term of any Financing Document other than as expressly set forth herein, (b) are effective only with respect to the transactions described herein and in the Financing Documents for the specific instance and the specific purposes to which the relevant provisions apply, and (c) shall not be effective for any other purpose or transaction.

Section 4.    Effect on Accounts Agreement. Except as expressly amended hereby or otherwise provided herein, all of the terms and conditions of the Accounts Agreement and all other Financing Documents remain in full force and effect, and none of such terms and conditions are, or shall be construed as, otherwise amended or modified. All references to the Accounts Agreement in the Accounts Agreement and the other Financing Documents, and any documents, instruments and agreements related to them, shall hereafter refer to the Accounts Agreement as amended hereby.

Section 5.    Representations and Warranties. Each party represents and warrants to the other that:

(a)    the execution and delivery of this Amendment and the performance by such party of its obligations hereunder have been authorized by all requisite action on its part; and

(b)    this Amendment has been validly executed and delivered by such party, and assuming that this Amendment has been duly authorized, executed, and delivered by the other parties, constitutes a valid and binding obligation of such party, enforceable against such party in accordance with its terms.

Section 6.    Miscellaneous.

(a)    THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, UNITED STATES OF AMERICA, WITHOUT REFERENCE TO CONFLICTS OF LAW (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

[***] Confidential Treatment Requested

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(b)    This Amendment shall be deemed a Financing Document.

(c)    This Amendment may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.

(d)    Delivery of an executed counterpart of a signature page of this Amendment by telecopy or portable document format (“PDF”) shall be effective as delivery of a manually executed counterpart of this Amendment.

(e)    Pursuant to Sections 7.1 and 7.4 of the Accounts Agreement, the undersigned Lender hereby authorizes and directs the Accounts Bank to execute this Amendment and perform its obligations hereunder.

(f)    The parties hereto agree that the Accounts Bank shall be afforded all of the rights, privileges, protections, indemnities and immunities afforded to the Accounts Bank under the Accounts Agreement in connection with its execution of this Amendment and the performance of its duties hereunder.

[Remainder of page intentionally left blank]

3

IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to Accounts Agreement to be executed by their respective officers effective as of the day and year first above written.

2013B ESA PROJECT COMPANY, LLC as the Borrower
By	/s/ William E. Brockenborough
Name:	William E. Brockenborough
Title:	Vice President

Second Amendment to Accounts Agreement

IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to Accounts Agreement to be executed by their respective officers effective as of the day and year first above written.

SILICON VALLEY BANK, as the Lender
By	/s/ Dan Baldi
Name:	Dan Baldi
Title:	Managing Director

Second Amendment to Accounts Agreement

IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to Accounts Agreement to be executed by their respective officers effective as of the day and year first above written.

THE BANK OF NEW YORK MELLON,
as the Account s Bank
By	/s/ Latoya S. Elvin
Name:	Latoya S. Elvin
Title:	Vice President

Second Amendment to Accounts Agreement

EX-10

Exhibit 10.85

Execution

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the securities and exchange commission pursuant to rule 406 of the securities act of 1933, as amended.

FIRST AMENDED AND RESTATED

PURCHASE, USE AND MAINTENANCE AGREEMENT

between

BLOOM ENERGY CORPORATION

as Seller

and

2016 ESA PROJECT COMPANY, LLC

as Buyer

dated as of October 24, 2016 and

Amended and Restated as of June 26, 2017

TABLE OF CONTENTS

		Page
ARTICLE I DEFINITIONS			2
Section 1.1	Definitions		2
Section 1.2	Other Definitional Provisions		18
ARTICLE II PURCHASE AND SALE			18
Section 2.1	Appointment of Seller as Buyer’s EPC Provider		18
Section 2.2	Purchase Orders		19
Section 2.3	Invoicing of Purchase Price		19
Section 2.4	Payment of Purchase Price		21
Section 2.5	Purchase and Sale of Facilities		22
Section 2.6	PPA Termination and Re-Purchase of Facilities		23
Section 2.7	Purchase Price Adjustment for Changes in ITC Eligibility		23
Section 2.8	Purchase Price Adjustment for Portfolio Price Changes		23
ARTICLE III DELIVERY AND INSTALLATION OF BLOOM SYSTEMS AND BALANCE OF FACILITIES			25
Section 3.1	Access to Site		25
Section 3.2	Delivery of Bloom Systems		25
Section 3.3	Delivery of Balance of Facility; Installation of Bloom Systems		26
Section 3.4	Commissioning; Commencement of Operations		27
Section 3.5	Insurance		29
Section 3.6	Disposal; Right of First Refusal		29
Section 3.7	Third Party Warranties		29
Section 3.8	Access; Cooperation		30
Section 3.9	Performance Standards		30
ARTICLE IV FACILITY SERVICES			31
Section 4.1	In General		31
Section 4.2	Operation and Maintenance Services		31
Section 4.3	Service Fees		34
Section 4.4	Remote Monitoring; BloomConnect		35
Section 4.5	Permits		35
Section 4.6	Service Providers		35
Section 4.7	Rights to Deliverables		36
Section 4.8	Coordination of Relationship		36
Section 4.9	Relocation or Removals of Equinix Power Modules		37
Section 4.10	Remarketing and Redeployment Assistance		37
ARTICLE V WARRANTIES			38
Section 5.1	Facility Services Warranty		38
Section 5.2	Performance Guaranty		38
Section 5.3	Efficiency Warranty		38
Section 5.4	Performance Warranty		39

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Section 5.5	Portfolio Warranty	39
Section 5.6	Exclusions	40
Section 5.7	Portfolio Warranty Claims	40
Section 5.8	Indemnification Regarding Performance Under PPAs	42
Section 5.9	Disclaimers	43
Section 5.10	Title	43
Article VI RECORDS AND AUDITS		43
Section 6.1	Record-Keeping Documentation; Audit Rights	43
Section 6.2	Reports; Invoicing Information; Other Information	45
Article VII DATA ACCESS		45
Section 7.1	Access to Data and Meters	45
Article VIII REPRESENTATIONS AND WARRANTIES OF SELLER		46
Section 8.1	Representations and Warranties of Seller	46
Article IX REPRESENTATIONS AND WARRANTIES OF BUYER		50
Section 9.1	Representations and Warranties of Buyer	50
Article X CONFIDENTIALITY		51
Section 10.1	Confidential Information	51
Section 10.2	Restricted Access	52
Section 10.3	Permitted Disclosures	53
Article XI LICENSE AND OWNERSHIP; SOFTWARE		55
Section 11.1	IP License to Use	55
Section 11.2	Grant of Third Party Software License	55
Section 11.3	Effect on Licenses	56
Section 11.4	No Software Warranty	56
Section 11.5	IP Related Covenants	56
Section 11.6	Representations and Warranties	57
Article XII EVENTS OF DEFAULT AND TERMINATION		57
Section 12.1	Seller Default	57
Section 12.2	Buyer Default	58
Section 12.3	Buyer’s Remedies Upon Occurrence of a Seller Default	59
Section 12.4	Seller’s Remedies Upon Occurrence of a Buyer Default	59
Section 12.5	Preservation of Rights	59
Section 12.6	Force Majeure	60
Section 12.7	Termination of Facilities Subject to PPAs	60
Article XIII INDEMNIFICATION		61
Section 13.1	IP Indemnity.	61
Section 13.2	Indemnification of Seller by Buyer.	62
Section 13.3	Indemnification of Buyer by Seller	63
Section 13.4	Indemnity Claims Procedure	63
Section 13.5	Limitation of Liability	64

ii

Section 13.6	Liquidated Damages; Estoppel	65
Section 13.7	Survival	65
Article XIV MISCELLANEOUS PROVISIONS		65
Section 14.1	Amendment and Modification	65
Section 14.2	Waiver of Compliance; Consents	65
Section 14.3	Notices	65
Section 14.4	Assignment; Subcontractors	66
Section 14.5	Dispute Resolution; Service of Process	68
Section 14.6	Governing Law, Jurisdiction, Venue	68
Section 14.7	Counterparts	68
Section 14.8	Interpretation	68
Section 14.9	Entire Agreement	68
Section 14.10	Construction of Agreement	69
Section 14.11	Severability	69
Section 14.12	Further Assurances	69
Section 14.13	Independent Contractors	69
Section 14.14	Limitation on Export	69
Section 14.15	Time of Essence	69
Section 14.16	No Rights in Third Parties	70
Section 14.17	Amendment and Restatement of Original PUMA	70

iii

ANNEXES
Annex A	Minimum Power Product Example Calculation
Annex B	Insurance
Annex C	Capacity Warranty Claim Example Calculation and Amounts Payable
Annex D	List of PPAs
EXHIBITS
Exhibit A	Specifications for Bloom Systems and Battery Solution
Exhibit B	Form of Bill of Sale
Exhibit C	Seller Deliverables
Exhibit D	Form of Payment Notice
Exhibit E	Form of Purchase Order
Exhibit F	Form of Seller’s Deposit Milestone Certificate
Exhibit G	Form of Tranche Notice
Exhibit H	Form of Seller’s Certificate of Installation
Exhibit I	[Reserved]
Exhibit J	Seller Corporate Safety Plan
Exhibit K	Subcontractor Quality Plan
Exhibit L	[Reserved]
Exhibit M	Parties’ Managers and Service Fees
SCHEDULES
Schedule 3.3	Design and Installations Procedures
Schedule 3.4	Commissioning Procedures
Schedule 4.2	Operations and Maintenance Procedures
Schedule 4.6	Approved Major Service Providers

iv

FIRST AMENDED AND RESTATED

PURCHASE, USE AND MAINTENANCE AGREEMENT

This FIRST AMENDED AND RESTATED PURCHASE, USE AND MAINTENANCE AGREEMENT (this “Agreement”), dated as of October 24, 2016, and amended and restated as of June 26, 2017 (the “Agreement Date”), is entered into by and between BLOOM ENERGY CORPORATION, a Delaware corporation (“Seller”), and 2016 ESA PROJECT COMPANY, LLC, a Delaware limited liability company (“Buyer”). Seller and Buyer are referred to in this Agreement individually, as a “Party” and, collectively, as the “Parties”.

RECITALS

WHEREAS, Seller is in the business of designing, constructing and installing on-site solid oxide fuel cell power generating systems;

WHEREAS, Buyer is a company formed at the direction of Seller for the purpose of purchasing and owning Bloom Systems for the generation of electricity and sale of electricity generated by the Bloom Systems;

WHEREAS, Buyer and its immediate parent company, 2016 ESA HoldCo, LLC, a Delaware limited liability company, are being acquired by Southern PowerSecure Holdings, Inc. contemporaneously herewith pursuant to membership interest purchase agreement among Seller, Clean Technologies 2016, LLC, a Seller Affiliate, and Southern PowerSecure Holdings, Inc., a Buyer Affiliate (the “MIPA”);

WHEREAS, Buyer desires to purchase, and Seller desires to sell, Bloom Systems to be installed in certain Facilities in connection with PPAs entered into by Buyer when and as the conditions to such installation are met as provided in this Agreement;

WHEREAS, to induce Buyer to purchase the Bloom Systems, Seller also has agreed to provide certain operations and maintenance services to or on behalf of Buyer subject to the terms and conditions of this Agreement;

WHEREAS, Buyer and Seller previously entered into that certain Purchase, Use and Maintenance Agreement, dated as of October 24, 2016, as amended by (a) that certain Amendment No. 1 to Purchase, Use and Maintenance Agreement, dated as of February 15, 2017, and (b) that certain Amendment No. 2 to Purchase, Use and Maintenance Agreement, dated as of April 28, 2017 (collectively, the “Original PUMA”); and

WHEREAS, Buyer and Seller now wish to amend and restate the Original PUMA in its entirety with this Agreement as of the Agreement Date, as further set forth in Section 14.17.

NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements hereinafter set forth, and intending to be legally bound hereby, the Parties agree as follows:

AGREEMENT

ARTICLE I

DEFINITIONS

Section 1.1 Definitions. As used in this Agreement, capitalized terms not otherwise defined shall have the meanings set forth below:

“Actual kWh” means the actual energy output in kWh produced by a Facility and measured by the Facility Meter, and, subject to adjustment for meter defects pursuant to a PPA, where appropriate in the context of this Agreement, aggregated together with the actual energy output of other Facilities.

“Affiliate” of any Person means a Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person specified, provided that notwithstanding anything in this Agreement to the contrary, Seller is not an Affiliate of Buyer. For purposes of this Agreement, the direct or indirect ownership of over fifty percent (50%) of the outstanding voting securities of an entity, or the right to receive over fifty percent (50%) of the profits or earnings of an entity shall be deemed to constitute control. Such other relationships as in fact results in actual control over the management, business and affairs of an entity, shall also be deemed to constitute control.

“Agreement” is defined in the preamble.

“Agreement Date” is defined in the preamble.

“AOM” means an auxiliary output module, to be included in certain of the Facilities.

“Appraisal Procedure” means within fifteen (15) days of a Party invoking the procedure described in this definition Buyer and Seller shall engage a Qualified Appraiser, mutually acceptable to them, to conclusively determine within fifteen (15) days after appointment the Fair Market Value of a Facility.

“Approved LDC” means, with respect to each Site, the local natural gas distribution company serving the PPA Customer at such Site. For the avoidance of doubt, natural gas supplied by any Approved LDC shall be deemed to satisfy Seller’s requirements regarding the quality and composition of natural gas supplied to the Bloom Systems sold to Buyer hereunder.

“AT&T PPA” has the meaning set forth in Annex D.

“Bankruptcy” or “Bankrupt” as to any Person means the filing of a petition for relief as to any such Person as debtor or bankrupt under the Bankruptcy Code or like provision of law (except if such petition is contested by such Person and has been dismissed within sixty (60) days); insolvency of such Person as finally determined by a court proceeding; filing by such Person of a petition or application to accomplish the same or for the appointment of a receiver or a trustee for such Person or a substantial part of its Assets; commencement of any proceedings relating to such Person under any other reorganization, arrangement, insolvency, adjustment of debt or liquidation law of any jurisdiction, whether now in existence or hereinafter in effect, either by such Person or

2

by another, provided, that if such proceeding is commenced by another, such Person indicates its approval of such proceeding, consents thereto or acquiesces therein, or such proceeding is contested by such Person and has not been finally dismissed within sixty (60) days.

“Bankruptcy Laws” is defined in Section 11.3.

“Base Case Model” means the economic model titled “PPA VI Financial Model 10-23-16 BASE CASE MODEL FINAL,” posted to the Electronic Data Room on October 23, 2016.

“Battery Solution” means [***], manufactured and supplied by the Battery Solution Manufacturer as described in the specifications set forth on Exhibit A, to be included in certain of the Facilities.

“Battery Solution Manufacturer” means [***] or such replacement manufacturer as the Parties may mutually agree in writing.

“Bill of Sale” means a bill of sale in substantially the form attached hereto as Exhibit B.

“Bloom Component Defect” means any defect in parts and components supplied by Seller or any of its Affiliates to the Battery Solution Manufacturer that are used to manufacture any Battery Solution that (i) was not caused by the Battery Solution Manufacturer’s misuse, including but not limited to, improper testing, assembly, and mishandling of such parts and components and (ii) results in a failure of such parts and components to perform in accordance with any performance warranty(ies) provided by Seller to the Battery Solution Manufacturer.

“Bloom Systems” means all on-site solid oxide fuel cell power generating systems capable of being powered by natural gas designed, constructed and installed by Seller, which will be installed in the Facilities, and “Bloom System” means each such system.

“BOF” means, for each Site, the Electrical Interconnection Facilities, the natural gas supply facilities, the water supply facilities, the data communications facilities, the foundations for the Bloom Systems and any other facilities and equipment ancillary to the Bloom Systems and installed in connection with the Facility at each Site and all other things ancillary to the Facility and required on or in the vicinity of the Site which are necessary to achieve Commencement of Operations at each such Site or which are otherwise required by the applicable PPA or Site License for such Site.

“BOF Work” is defined in Section 3.3(a).

“Business Day” means a day other than a Saturday, Sunday or other day on which banks in New York, New York, or San Francisco, California, are authorized or required to close.

“Buyer” is defined in the preamble.

“Buyer Default” is defined in Section 12.2.

“Buyer Indemnitee” is defined in Section 13.3(a).

[***] Confidential Treatment Requested    

3

“Buyer Manager” is defined in Section 4.8(b).

“Calendar Quarter” means each period of three months ending on March 31, June 30, September 30 and December 31.

“Capacity Warranty” means the Performance Warranty or the Performance Guaranty, as applicable.

“Claiming Party” is defined in Section 12.6.

“Code” means the Internal Revenue Code of 1986, as amended.

“Commencement of Operations” means, with respect to any Facility, the completion and the performance of all of the following activities:

(a) all Bloom Systems and related materials comprising such Facility required to complete all BOF Work have been Delivered;

(b) such Facility has been installed at the location specified in the applicable Site License and Placed in Service;

(c) (i) such Facility (A) has been attached to the load at the applicable Site, (B) is producing power at one hundred percent (100%) of the aggregate System Capacity of all Bloom Systems included in such Facility, and (C) is operating at or above the Minimum Efficiency Level, and (ii) Seller has provided Buyer with evidence reasonably satisfactory to Buyer of each of the foregoing;

(d) Seller has (i) performed and successfully completed all necessary acts under the applicable Interconnection Agreement (including performance testing), and (ii) obtained permission from the applicable Person granting Buyer permission to interconnect such Facility with the distribution or transmission facilities of the Transmitting Utility;

(e) Seller shall have delivered Seller’s Certificate of Installation to Buyer; and

(f) Seller shall have delivered to Buyer each of the Seller Deliverables indicated on Exhibit C as items for delivery prior to or at Commencement of Operations.

“Commencement of Operations Date Deadline” means June 30, 2018.

“Components” means any tangible materials and spare or replacement parts reasonably required for the construction, installation, commissioning, operation, maintenance and repair of a Facility.

“Confidential Information” is defined in Section 10.1.

“DDP (Incoterms 2010)” means Delivered Duty Paid (DDP) as such term is used in the International Rules for the Interpretation of Trade Terms (identified as “INCOTERMS^® 2010”) as prepared by the International Chamber of Commerce.

4

“Delivery” means for each Bloom System, the physical delivery of such Bloom System to its Site. Following such Delivery, the Bloom System shall have been “Delivered.”

“Delivery Date” means for each Bloom System, the date of Delivery.

“Deposit Milestone Requirements” means, for a Tranche, that:

(a) Buyer has received approval of Site plans and single-line drawings from one or more PPA Customers for Facilities with aggregate System Capacity equal to or greater than the aggregate System Capacity of Facilities included in such Tranche (and all other Tranches for which Seller previously delivered a Seller’s Deposit Milestone Certificate to Buyer);

(b) Seller has received all materials required for the commencement of fabrication of Bloom Systems with aggregate System Capacity equal to or greater than the aggregate System Capacity of Facilities included in such Tranche, and all materials required as of such time to allow for completion of such fabrication in order to achieve Commencement of Operations of such Facilities (and all Facilities included in all other Tranches for which Seller previously delivered a Seller’s Deposit Milestone Certificate to Buyer) within ninety (90) days; and

(c) Seller shall have delivered Seller’s Deposit Milestone Certificate to Buyer, certifying the satisfaction of requirements (a) and (b) hereof.

“Documentation” means Bloom System documentation for a Facility, including testing, engineering, specifications, and operations and maintenance manuals, Training Materials, drawings, reports, standards, schematics, directions, samples and patterns, including any such Documentation required to be delivered prior to Commencement of Operations under Section 3.4(a)(iv).

“Efficiency” means the quotient of E/F, where (i) E = the electricity produced by the applicable Facility, measured in BTUs (British Thermal Units) at an assumed conversion rate of 3,412 BTUs per kWh, and (ii) F = the fuel consumed by such Facility, measured in BTUs on a lower heating value basis as determined by the mass flow controller included in the applicable Facility.

“Efficiency Warranty” is defined in Section 5.3.

“Efficiency Warranty Period” means each calendar month following the Commencement of Operations of a Facility (or, in the case of the calendar month in which Commencement of Operations occurred, the portion of such calendar month commencing on the date such Facility achieved Commencement of Operations), but shall exclude any period when such Facility (i) was subject to a Force Majeure Event, (ii) was not delivering Energy because of a failure to perform by the applicable PPA Customer, except to the extent caused or contributed to by Seller or its employees, agents, subcontractors or representatives, (iii) was required by a Legal Requirement (which for this purpose shall include any utility requirement) to be disconnected from the distribution or transmission facilities of the Transmitting Utility or otherwise required not to deliver Energy as the result of a Legal Requirement or action by or a directive from the applicable Transmitting Utility with respect to such Facility (e.g., due to a grid event), or (iv) was impacted

5

by a failure of the Battery Solution to perform in accordance with any performance warranty(ies) provided by the manufacturer thereof (excluding any such failure of the Battery Solution that is attributable to a Bloom Component Defect), except, in each case, to the extent caused or contributed to by Seller or its employees, agents, subcontractors and representatives.

“Electrical Interconnection Facilities” means the equipment and facilities required to safely and reliably interconnect a Facility to the transmission system of the Transmitting Utility, including the collection system between each Bloom System, transformers and all switching, metering, communications, control and safety equipment, including the facilities described in any applicable Interconnection Agreement.

“Electronic Data Room” means the electronic dataroom known as “Project Bloom PPA” established by the Seller and made available to the Investor.

“Energy” means three-phase, 60-cycle alternating current electric energy constituting the Actual kWh.

“Environmental Law” means any Legal Requirement which pertains to health, safety, any Hazardous Material, or the environment (including but not limited to ground or air or water or noise pollution or contamination, and underground or above ground tanks) and shall include without limitation, the Solid Waste Disposal Act, 42 U.S.C. § 6901 et seq.; the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601 et seq., as amended by the Superfund Amendments and Reauthorization Act of 1986; the Hazardous Materials Transportation Act, 49 U.S.C. § 1801 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.; the Clean Air Act, 42 U.S.C. § 7401 et seq.; the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.; the Safe Drinking Water Act, 42 U.S.C. § 300f et seq.; and any other state or federal environmental statutes, and all rules, regulations, orders and decrees now or hereafter promulgated under any of the foregoing, as any of the foregoing now exist or may be changed or amended or come into effect in the future.

“Environmental Requirements” means any Environmental Law, agreement or restriction (including but not limited to any condition or requirement imposed by any insurance or surety company), as the same now exists or may be changed or amended or come into effect in the future, which pertains to health, safety, any Hazardous Material, or the environment.

“EPC Services” is defined in Section 2.1.

“Equinix” means the PPA Customer pursuant to the Equinix PPA.

“Equinix PPA” has the meaning set forth in Annex D.

“Extended Warranty Period” means, with respect to each Facility, the period commencing on the first (1st) anniversary of the date such Facility achieves Commencement of Operations and ending on the twentieth (20th) anniversary of the date of Commencement of Operations of such Facility unless (a)(i) the applicable PPA has been renewed or extended beyond such twentieth (20th) anniversary and (ii) Buyer and Seller have agreed on an appropriate amendment to this Agreement to provide for an extension of the term of the Extended Warranty Period for the applicable Facility(ies), in which case the Extended Warranty Period shall end on the date on which such PPA expires or terminates.

6

“Facility” means, collectively, the Bloom Systems and the BOF at a particular Site. For the avoidance of doubt, “Facility” includes, where applicable, any AOM(s), Battery Solution, Low Pressure Gas Booster(s) and/or UPM(s) installed in connection with the Bloom Systems at a particular Site.

“Facility Meter” means the revenue quality electricity generation meter to be located at the metering point (the proposed location of which is to be identified in the applicable Interconnection Agreement) and approved by the Transmitting Utility, which shall register all Energy produced by a Facility and delivered to the Interconnection Point.

“Facility Services” is defined in Section 4.1.

“Facility Purchase Conditions” means for a relevant Facility that the Facility has not been Placed in Service (including specifically because the events described in clauses (2), (3) and (4) of the definition of Placed in Service have not occurred), but that (a) the events described in clause (1) of the definition of Placed in Service have occurred, and (b) all of Seller’s obligations under Section 3.3(a)(ii) have been performed.

“Facility Services Warranty” is defined in Section 5.1.

“Fair Market Value” means, with respect to any Facility, the price at which such asset would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell, and both having reasonable knowledge of the relevant facts, and specifically with respect to the Facility or any portion thereof, as determined consistently with Section 4.05 of Revenue Procedure 2007-65.

“[***] PPA” has the meaning set forth in Annex D.

“FERC” means the Federal Energy Regulatory Commission and any successor.

“Final Determination” means the earliest to occur of (1) the date on which a decision, judgment, decree or other order has been issued by any court of competent jurisdiction, which decision, judgment, decree, or other order has become final (i.e., all allowable appeals requested by the parties to the action have been exhausted or the time for instituting an appeal has expired or lapsed), (2) the date on which the Internal Revenue Service has reached a final administrative determination which, whether by law or agreement, is not subject to appeal, or (3) the date on which the time for instituting a claim, appeal, contest, or challenge to any notice or action by the Internal Revenue Service has expired or lapsed. Notwithstanding anything to the contrary herein, no party shall be required to pursue any appeal or action if the party has determined in good faith that such an appeal or action would not have a reasonable possibility of success, in which case any decision, decree, order, or administrative determination that is the subject of such opinion shall be deemed to be a Final Determination.

“Force Majeure Event” means any event or circumstance that (a) prevents a Party from performing its obligations under this Agreement; (b) was not reasonably foreseeable by such Party;

[***] Confidential Treatment Requested    

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(c) was not within the reasonable control of, or the result of the negligence of such Party or a breach of this Agreement by such Party; and (d) such Party is unable to reasonably mitigate, avoid or cause to be avoided with the exercise of due diligence. “Force Majeure Event” may include, provided that the conditions in (a) through (d) in the foregoing sentence are met, inability of Buyer to obtain or maintain market-based rate authority from FERC to operate any Facility (except to the extent such inability results from a Buyer-initiated change in Buyer’s business from that contemplated as of the Original PUMA Agreement Date and/or the assets or operations of any entity considered by FERC to be affiliated with Buyer), a failure or interruption of performance due to an act of God, civil or military authority, war, civil disturbances, terrorist activities, fire, explosions, the external power delivery system (a/k/a the grid) being out of the required specifications or totally failing (a/k/a brownout or blackout), or electric grid curtailment. Notwithstanding the foregoing, Force Majeure Event does not include the lack of economic resources of a Party, Seller’s failure to design and construct the Facilities so as to meet the respective warranties hereunder, or the supply of natural gas from any source other than an Approved LDC or any act or omission by Seller, Seller Affiliate, the Service Provider or a Seller or Seller Affiliate agent, representative or subcontractor at any tier that results in a termination of the Equinix PPA based on a breach of Section 7.1(h)(i) of the Equinix PPA. If an event or circumstance gives rise to a Force Majeure Event as defined herein under this Agreement, but such event or circumstance does not also constitute a ‘Force Majeure Event’ as defined under the applicable PPA or Site License (depending on which Facilities are affected), then for the purposes of any rights and obligations of the parties under this Agreement that relate to corresponding rights or obligations under such PPA or Site License such event or circumstance will not constitute a Force Majeure Event under this Agreement.

“Fundamental Representation” means the representations provided in Section 8.1(b), Section 8.1(h), Section 8.1(k) and Section 8.1(o).

“GAAP” means United States generally accepted accounting principles consistently applied.

“Governmental Approvals” means (a) any authorizations, consents, approvals, licenses, rulings, permits, tariffs, rates, certifications, variances, orders, judgments, decrees by or with a relevant Governmental Authority and (b) any required notice to, any declaration of, or with, or any registration or filing by, or with, any relevant Governmental Authority.

“Governmental Authority” means any foreign, federal, state, local or other governmental, regulatory or administrative agency, court, commission, department, board, or other governmental subdivision, legislature, rulemaking board, court, tribunal, arbitrating body or other governmental authority.

“Hazardous Material” means and includes those elements or compounds which are contained or regulated as a hazardous substance, toxic pollutant, pesticide, air pollutant, or as defined in any Environmental Law, order or decree of any Governmental Authority for the protection of human health, water, safety or the environment or is otherwise included in the definition of “Hazardous Materials,” “Hazardous Substance” or a similar term in a PPA or a Site License.

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“Home Depot PPA” has the meaning set forth in Annex D.

“Indemnifiable Loss” means any claim, demand, suit, loss, liability, damage (including any losses arising as a result of the loss or recapture of any ITC), obligation, payment, fine, cost or expense (including the cost and expense of any investigation, action, suit, proceeding, assessment, judgment, settlement or compromise relating thereto and reasonable attorneys’ fees and reasonable disbursements in connection therewith).

“Indemnified Party” is defined in Section 13.4.

“Indemnifying Party” is defined in Section 13.4.

“Intellectual Property” shall mean any or all of the following and all rights therein, whether arising under the laws of the United States or any other jurisdiction (i) all patents and patent applications (and all reissues, divisions, re-examinations, renewals, extensions, provisionals, continuations and continuations-in-part thereof), patent disclosures and inventions (whether patentable or not); (ii) all trade secrets, know-how and confidential and proprietary information; (iii) all copyrights and copyrightable works (including computer programs) and registrations and applications therefor and any renewals, modifications and extensions thereof; (iv) all moral and economic rights of authors and inventors, however denominated, throughout the world; (v) unregistered and registered design rights and any registrations and applications for registration thereof; (vi) trademarks, service marks, trade names, service names, brand names, trade dress, logos, slogans, corporate names, trade styles, domain names and other source or business identifiers, whether registered or not, together with all applications therefor and all extensions and renewals thereof and all goodwill associated therewith; (vii) semiconductor chip “mask” works, and registrations and applications for registration thereof, (viii) database rights; (ix) all other forms of intellectual property, including waivable or assignable rights of publicity or moral rights; and (x) any similar, corresponding or equivalent rights to any of the foregoing anywhere in the world.

“Interconnection Agreement” means an agreement between the PPA Customer (or Buyer (as required)) and the applicable Transmitting Utility regarding interconnection of a Facility to the transmission or distribution system of such Transmitting Utility.

“Interconnection Point” means, with respect to each Facility, the point at which title and risk of loss with respect to the electricity produced by such Facility passes to the applicable PPA Customer.

“Investor” means Southern PowerSecure Holdings, Inc.

“Invoice Due Date” means the date specified on a Payment Notice duly delivered by Seller to Buyer for the Milestones achieved by certain Tranches and/or Facilities in a given calendar month.

“IP License” is defined in Section 11.1.

“IRS” means the Internal Revenue Service.

“ITC” means an investment tax credit pursuant to Code Sections 38(b)(1), 46 and 48(a).

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“Knowledge” means (a) as to any Person other than a natural person, the actual knowledge (including any knowledge which would reasonably have been obtained after due inquiry) of such Person and its managers, directors officers and employees who have responsibility for the transactions contemplated by this Agreement, and (b) in respect of any Person who is a natural Person, the actual knowledge (including any knowledge which would reasonably have been obtained after due inquiry) of such Person.

“kW” means kilowatt.

“kWh” means kilowatt-hour.

“Legal Requirement” means any law, statute, act, decree, ordinance, rule, directive (to the extent having the force of law), tariff, order, treaty, code or regulation or any interpretation of any of the foregoing, as enacted, issued or promulgated by any Governmental Authority, NERC, any Person that NERC has delegated its authority to under the Federal Power Act or any Person that operates an interstate electric transmission system, including all amendments, modifications, extensions, replacements or re-enactments thereof, in each case applicable to or binding upon such Person or any of its properties or to which such Person or any of its property is subject.

“Liens” means any lien, security interest, mortgage, hypothecation, encumbrance or other restriction on title or property interest.

“Low-Pressure Gas Booster” means a component designed to increase the pressure of natural gas supplied to a Facility by the applicable local natural gas distribution company serving an applicable PPA Customer at the applicable Site to the level required for the ordinary operation of such Facility.

“LREC Contract” means that certain Standard Contract for the Purchase and Sale of Connecticut Class I Renewable Credits from Low or Zero Emission Projects, dated as of July 28, 2016, by and between the Buyer and the Connecticut Light and Power Company dba Eversource Energy.

“Maintenance Specification Log” is defined in Section 6.1(a)(ii).

“Major Service Provider” is defined in Section 4.6.

“Managers” means Operations Manager and Buyer Manager.

“Manufacturer’s Warranty Period” means, for each Facility, the period beginning on the date the applicable Facility achieves the requirements of subsections (a), (c) and (d) of the definition of “Commencement of Operations” and ending on the first (1^st) anniversary of the date of Commencement of Operations of such Facility.

“Material Adverse Effect” means, for any Person or Facility, as applicable, any change, effect or occurrence that, individually or in the aggregate, is or could reasonably be expected to be materially adverse to (a) the business, earnings, assets, results of operations, property or condition (financial or otherwise) of such Person or Facility, as applicable, (b) the validity or enforceability

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of any Transaction Document, any applicable PPA, any applicable Site License or the transactions contemplated by this Agreement, or (c) any Person’s (including any PPA Customer’s) ability to

perform its obligations under any Transaction Document, any applicable PPA, any applicable Site License (including any material adverse effect on any customer that has, or could reasonably be expected to have, a material adverse impact on such customer’s ability to fully perform under any applicable PPA).

“Maximum Aggregate Portfolio Purchase Price” means Four Hundred Fifty Million Dollars ($450,000,000).

“Maximum Liability” means, with respect to each Party, One Million Dollars ($1,000,000).

“Milestone(s)” means each of (i) the Deposit Milestone Requirements, (ii) Shipment, and (iii) Commencement of Operations.

“Minimum Efficiency Level” means an Efficiency quotient of 45%.

“Minimum kWh” means the product of (x) the number of hours in the applicable period minus the number of hours for each Facility, as of the last day of the applicable period following Commencement of Operations with respect to the applicable Facility when the operation of such Facility (i) was subject to a Force Majeure Event, (ii) was not delivering Energy, or was delivering Energy at a reduced level, because of a failure to perform by the applicable PPA Customer, except to the extent caused or contributed to by Seller or its employees, agents, subcontractors or representatives, (iii) was required by a Legal Requirement (which for this purpose shall include any utility requirement) to be disconnected from the distribution or transmission facilities of the Transmitting Utility or otherwise required not to deliver Energy as the result of a Legal Requirement or action by or a directive from the applicable Transmitting Utility with respect to the applicable Facility (e.g., due to a grid event), or (iv) was impacted by a failure of the Battery Solution to perform in accordance with any performance warranty(ies) (excluding any such failure of the Battery Solution that is attributable to a Bloom Component Defect), except, in each case, to the extent caused or contributed to by Seller or its employees, agents, subcontractors and representatives, and (y) the Minimum Power Product for the applicable period.

“Minimum Power Product” means (1) when this term is used for the Performance Warranty, the aggregate System Capacity of the Bloom Systems in the Portfolio in kW for the applicable Calendar Quarter multiplied by eighty-six percent (86%), and (2) when this term is used for the Performance Guaranty, the aggregate System Capacity of the Bloom Systems in the Portfolio in kW for the applicable calendar year multiplied by 95%. An example of a calculation of the Minimum Power Product is set forth in Annex A.

“MIPA” is defined in the recitals.

“Monthly Report” is defined in Section 6.1(a)(iv).

“MW” means megawatt.

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“Nameplate Capacity” means the maximum electrical output of a generator as rated by the manufacturer determined at the normal operating conditions designated by the manufacturer.

“NERC” means the North American Electric Reliability Corporation or any successor.

“Operations Manager” is defined in Section 4.8(a).

“Original PUMA” is defined in the recitals.

“Original PUMA Agreement Date” means October 24, 2016.

“Party” and “Parties” have the meanings set forth in the preamble.

“Payment Certificate” means Seller’s Deposit Milestone Certificate or Seller’s Certificate of Installation, as applicable.

“Payment Notice” means a notice delivered from Seller to Buyer pursuant to Section 2.4(c) in the form attached hereto as Exhibit D.

“Performance Guaranty” is defined in Section 5.2.

“Performance Guaranty Payment Cap” means the product of (x) Seven Hundred Twenty- Seven Dollars and Seventy-One Cents ($727.71) multiplied by (y) the System Capacity of all Bloom Systems in kW Purchased under this Agreement prior to the applicable date.

“Performance Guaranty Payment Rate” means $[***] per kWh.

“Performance Standards” is defined in Section 3.9.

“Performance Warranty” is defined in Section 5.4(a).

“Permits” means all Governmental Approvals that are necessary under applicable Legal Requirements or this Agreement to have been obtained at such time in light of the stage of development of the Portfolio to site, construct, test, operate, maintain, repair, lease, own or use each Facility as contemplated in this Agreement to sell electricity from the Portfolio or for a Party to enter into this Agreement or to consummate any transaction contemplated hereby, in each case in accordance with all applicable Legal Requirements.

“Permitted Liens” means any (a) Liens that are released or otherwise terminated at or prior to the Delivery Date of the encumbered assets; (b) obligations or duties to any Governmental Authority arising in the ordinary course of business (including under licenses and Permits held by Buyer and under all Legal Requirements); (c) obligations or duties under easements, leases or other property rights; and (d) any other Liens agreed to in writing by Seller and Buyer.

“Person” means any individual, partnership, limited liability company, joint venture, corporation, trust, unincorporated organization, or governmental entity or any department or agency thereof.

[***] Confidential Treatment Requested 12

“Placed in Service” means, with respect to any Facility, the completion and performance of all of the following activities: (1) obtaining the necessary licenses and Permits for the operation of such Facility and the sale of power generated by the Facility in accordance with clause (4) of

this definition, (2) satisfactory completion of critical tests necessary for the proper operation of such Facility in accordance with clause (4) of this definition, (3) synchronization of such Facility onto the electric distribution and transmission system of the applicable Transmitting Utility, and (4) the commencement of regular, continuous, daily operation of such Facility.

“Placed in Service Date” means, with respect to a Facility, the date upon which such Facility is Placed in Service.

“Portfolio” means, on an aggregate basis, all Bloom Systems owned by Buyer that are purchased pursuant to this Agreement and that have been incorporated into Facilities which have been Placed in Service and which have not thereafter been removed from the Portfolio and/or repurchased by Seller pursuant to the terms of this Agreement.

“Portfolio Warranty” is defined in Section 5.5(a).

“PPA” means each power purchase, energy server use, or similar agreement entered into between Buyer and a PPA Customer listed on Annex D hereto, as the same may be updated from time to time by the mutual agreement of the Parties.

“PPA Customer” means each non-Buyer counter-party to a PPA.

“PPA Documentation” means all written invoices, receipts, billing statements, payment notices, wire receipt and payment notifications, bank statements and other similar written evidence of (i) amounts payable by Buyer to any Person and (ii) amounts received or receivable by Buyer from any Person.

“PPA Warranties” is defined in Section 5.8(a).

“PPA Warranty Reimbursement Payment” is defined in Section 5.8(a).

“Project Model” means the economic model to be delivered from Seller to Buyer from time to time pursuant to Section 2.8.

“Prudent Electrical Practices” means those practices, methods, equipment, specifications and standards of safety and performance, as the same may change from time to time, as are commonly used by a significant portion of the grid-tied fuel cell electrical generation industry operating in the United States and/or approved or recommended by the NERC as good, safe and prudent engineering practices in connection with the design, construction, operation, maintenance, repair and use of electrical and other equipment, facilities and improvements of electrical generating facilities, including any applicable practices, methods, acts, guidelines, standards and criteria of FERC and all applicable Legal Requirements.

“Purchase” is defined in Section 2.5.

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“Purchase Date” is defined in Section 2.5.

“Purchase Order” means Buyer’s purchase order for a Facility or Facilities to be purchased by Buyer in substantially the form of Exhibit E.

“Purchase Price” means a price for the design, installation and purchase of each Facility or Tranche, based on the aggregate System Capacity of the Bloom Systems comprising such Facility or Tranche, determined pursuant to Section 2.8. The Purchase Price for the period between the Original PUMA Agreement Date and the first adjustment thereto pursuant to Section 2.8 shall be calculated at:

1) $[***]/kW as installed, if such Facility will be eligible for the ITC as of the Placed in Service Date of such Facility (“ITC Eligible Purchase Price”); or

2) $[***]/kW as installed, if such Facility will not be eligible for the ITC as of the Placed in Service Date of such Facility (“No ITC Purchase Price”).

In each case plus any Taxes for the account of Buyer under Section 2.3(c) in respect of such Facility; provided, however, that Taxes shall not be included in the calculation of the Purchase Price for invoices issued pursuant to Section 2.3(a)(i) or

Section 2.3(a)(iii).

“Purchase Price Adder(s)” means an addition to the Purchase Price for certain Facilities based on the additional equipment included in such Facilities, calculated as follows:

1) For Facilities including AOM(s), $[***] for each AOM;

2) For Facilities including a Battery Solution pursuant to the Home Depot PPA, $[***]/kWh based on the rated capacity of such Battery Solution;

3) For Facilities including a Battery Solution pursuant to any PPA other than the Home Depot PPA, a price to be negotiated in good faith between the Parties based on the rated capacity of such Battery Solution;

4) For Facilities including a Low-Pressure Gas Booster, $[***]/kW of the aggregate System Capacity of the Bloom Systems comprising such Facility; and

5) For Facilities including UPM(s), $[***] for each UPM.

“Qualified Appraiser” means a nationally recognized third-party appraiser reasonably acceptable to Buyer and Seller which shall (i) be qualified to appraise power systems similar to the Bloom Systems, and experienced in such businesses in the general geographic region of the relevant Facility, and (ii) not be associated with either Buyer or Seller or any Affiliate thereof. If the Parties cannot agree on a third-party appraiser within fifteen (15) days of a Party invoking the Appraisal Procedure, then Marshall & Stevens Incorporated shall act as the Qualified Appraiser.

“Refund Value” means, with respect to any Facility (including Underperforming Facilities), the greater of (a) the Fair Market Value of such Facility (as determined under the Appraisal Procedure if Buyer and Seller cannot agree as to that Fair Market Value within ten (10)

[***] Confidential Treatment Requested 14

days)), and (b) 100% of the Purchase Price for such Facility until the first anniversary of Commencement of Operations of the applicable Facility, declining by 5.263% (i.e. 1/19th) on each anniversary of such date thereafter (for example, on the fifth anniversary of Commencement of Operations, the Refund Value will be 78.95% of the Purchase Price), in each case as calculated as of the date that Seller becomes obligated to refund such amount to Buyer. For clarity, the Refund Value includes one hundred percent (100%) of the Taxes, if any, which were paid by or on behalf of Buyer pursuant to Section 2.3(c) for such Facility or one hundred percent (100%) of any Taxes, if any, which are required to be paid by or on behalf of Seller in connection with the return of such Facility.

“Representatives” of a Party means such Party’s authorized representatives, including its professional and financial advisors.

“SCADA” means the supervisory control and data acquisition systems.

“Seller” is defined in the preamble.

“Seller Default” is defined in Section 12.1.

“Seller Deliverables” means, with respect to each Facility, the items listed in Exhibit C.

“Seller Indemnitee” is defined in Section 13.2.

“Seller’s Certificate of Installation” means a certificate, in the form attached hereto as Exhibit H, issued by Seller to Buyer pursuant to paragraph (e) of the definition of Commencement of Operations.

“Seller’s Deposit Milestone Certificate” means a certificate, in the form attached hereto as Exhibit F, issued by Seller to Buyer pursuant to paragraph (c) of the definition of Deposit Milestone Requirements.

“Seller’s Intellectual Property” is defined in Section 11.1.

“Service Fees” is defined in Section 4.3(a).

“Service Provider” means an operation and maintenance contractor appointed by Seller and approved by Buyer pursuant to Section 4.6.

“Service Technicians” is defined in Section 4.2(d).

“Shipment” means for each Bloom System, shipment of such Bloom System from Seller’s manufacturing facility to the Site.

“Shipment Date” means for each Bloom System, the date of Shipment.

“Site” means the parcel of land licensed from a PPA Customer to Buyer under a Site License and all easements appurtenant, easements in gross, license agreements and other rights running in favor of Buyer which provide access to the applicable Facility.

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“Site License” means each agreement between Buyer and a PPA Customer regarding the license or similar contractual arrangement providing Buyer with the right of access to a Site for the purposes of performing Buyer’s obligations pursuant to the applicable PPA.

“Site Preparation Services” means preparing each Site for installation of a Facility, obtaining the required Permits to construct, operate and maintain the Facility, and providing for natural gas interconnection facilities, the Electrical Interconnection Facilities and any other ancillary facilities and equipment between the Bloom Systems and the applicable Transmitting Utility and otherwise performing the tasks required to prepare each Site for the Facility at the Site to attain Commencement of Operations.

“Software” shall mean all computer software that is necessary for Buyer to own and operate the Facilities in compliance with the terms of this Agreement, the PPAs, and the Site Licenses.

“Software License” is defined in Section 11.2(a).

“Southern Company” means The Southern Company (NYSE: SO).

“Specifications” means the specifications for the Battery Solution and the Bloom Systems, as applicable, as set forth in Exhibit A.

“System Capacity” means, with respect to a Bloom System, the “System Capacity” set forth on the applicable specification sheet provided by the manufacturer of such Bloom System. The aggregate System Capacity of the Bloom Systems comprising each Facility shall be reflected in the Bill of Sale delivered by Seller to Buyer with respect to such Facility.

“Tax” (and, with correlative meaning, “Taxes” and “Taxable”) means:

(i) any taxes, customs, duties, charges, fees, levies, penalties or other assessments imposed by any federal, state, local or foreign taxing authority, including, but not limited to, income, gross receipts, windfall profit, severance, property, production, sales, use, license, excise, franchise, net worth, employment, occupation, payroll, withholding, social security, alternative or add-on minimum, ad valorem, transfer, stamp, or environmental tax, or any other tax, custom, duty, fee, levy or other like assessment or charge of any kind whatsoever, together with any interest, penalty, addition to tax, or additional amount attributable thereto; and

(ii) any liability for the payment of amounts with respect to payment of a type described in clause (i), including as a result of being a member of an affiliated, consolidated, combined or unitary group, as a result of succeeding to such liability as a result of merger, conversion or asset transfer or as a result of any obligation under any tax sharing arrangement or tax indemnity agreement.

“Term” means the period which (a) shall commence on the Original PUMA Agreement Date and (b) shall, unless terminated earlier under ARTICLE XII of this Agreement or unless extended by mutual agreement of the Parties, terminate on the date that is the last day of the Warranty Period for the last Facility subject to the Warranty Period.

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“Third Party Claim” means any claim, action, or proceeding made or brought by any Person who is not (a) a Party to this Agreement, or (b) an Affiliate of a Party to this Agreement.

“Third Party Warranty” is defined in Section 3.7.

“Training Materials” is defined in Section 4.7.

“Tranche” means an amount of Facilities, measured on the basis of the aggregate System Capacity of the Bloom Systems comprising such Facilities (in kW), for which Seller is invoicing Buyer pursuant to Section 2.3(a)(i).

“Tranche Notice” is defined in Section 2.2.

“Transaction Documents” means this Agreement and the Payment Certificates.

“Transmitting Utility” means, with respect to a Facility, the local electric utility company in whose territory the Facility is located.

“Underperforming Facility” means any Facility that fails to deliver, in any Calendar Quarter during which the Portfolio fails to satisfy the Performance Warranty, a number of kWh greater than or equal to the product of (x) such Facility’s aggregate System Capacity multiplied by eighty-six percent (86%), and (y) the number of hours in such quarter minus the number of hours as of the last day of such quarter when such Facility (i) was subject to a Force Majeure Event, (ii) was not delivering Energy because of a failure to perform by the applicable PPA Customer, except to the extent caused or contributed to by Seller or its employees, agents, subcontractors or representatives, (iii) was required by a Legal Requirement (which for this purpose shall include any utility requirement) to be disconnected from the distribution or transmission facilities of the Transmitting Utility or otherwise required not to deliver Energy as the result of a Legal Requirement or action by or a directive from the applicable Transmitting Utility with respect to the applicable Facility (e.g., due to a grid event), or (iv) was impacted by a failure of the Battery Solution to perform in accordance with any performance warranty(ies) (excluding any such failure of the Battery Solution that is attributable to a Bloom Component Defect) provided by the manufacturer thereof, except to the extent caused or contributed to by Seller or its employees, agents, subcontractors and representatives.

“UPM” means an uninterruptible power module, to be included in certain of the Facilities.

“Warranty Period” means, for each Facility, the Manufacturer’s Warranty Period, as extended or renewed by Buyer pursuant to Section 4.1(b), in which case the Warranty Period shall mean the specified end date of the Warranty Period as so extended or renewed, unless the applicable PPA expires or terminates prior to such date, in which case the Warranty Period shall end on the date on which such PPA expires or terminates. For the avoidance of doubt, the Warranty Period shall in all events end, with respect to each Facility, at the expiration of the Extended Warranty Period.

“Warranty Specifications” means the Performance Warranty, the Performance Guaranty and the Efficiency Warranty.

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Section 1.2 Other Definitional Provisions.

(a) As used in this Agreement and in any certificate or other documents made or delivered pursuant hereto or thereto, financial and accounting terms not defined in this Agreement or in any such certificate or other document, and financial and accounting terms partly defined in this Agreement or in any such certificate or other document to the extent not defined, will have the respective meanings given to them under GAAP. To the extent that the definitions of financial and accounting terms in this Agreement or in any such certificate or other document are inconsistent with the meanings of such terms under GAAP, the definitions contained in this Agreement or in any such certificate or other document will control.

(b) The words “hereof”, “herein”, “hereunder”, and words of similar import when used in this Agreement will refer to this Agreement as a whole and not to any particular provision of this Agreement. Section references contained in this Agreement are references to Sections in this Agreement unless otherwise specified. The term “including” will mean “including without limitation”.

(c) The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as well as to the feminine and neuter genders of such terms.

(d) Any agreement or instrument defined or referred to herein or in any instrument or certificate delivered in connection herewith means (unless otherwise indicated herein) such agreement or instrument as from time to time amended, amended and restated, modified or supplemented and includes (in the case of agreements or instruments) references to all attachments thereto and instruments incorporated therein.

(e) Any references to a Person are also to its permitted successors and assigns.

(f) References to any statute, code or statutory provision are to be construed as a reference to the same as it exists as of the Original PUMA Agreement Date, Purchase Date or date a Party performed or was required to perform an obligation hereunder (as applicable), and include references to all bylaws, instruments, orders and regulations for the time being made thereunder or deriving validity therefrom unless the context otherwise requires; provided, however, that, subject to Section 2.8, the determination of whether a Facility is ITC eligible shall be as of the Placed in Service Date.

ARTICLE II

PURCHASE AND SALE

Section 2.1 Appointment of Seller as Buyer’s EPC Provider. Subject to Section 14.13, Buyer hereby appoints Seller to act as Buyer’s provider of all design, engineering, procurement and construction services necessary in connection with the installation, connection, testing, start- up, delivery and commissioning operation of the Facilities to be installed pursuant to each PPA and related Site License, and Seller hereby accepts such appointment and agrees to provide all such services, labor, materials, supplies, equipment, and tests for design, engineering, and construction services provided by Seller, to or on Buyer’s behalf and on the terms and conditions set forth in this Agreement, each PPA and related Site License (collectively, “EPC Services”). For

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clarity, Seller’s entire consideration for performing all such required services with respect to a Facility through Commencement of Operations for such Facility shall be the Purchase Price for such Facility, and Seller shall bear the financial risk regarding any cost overruns, claims from subcontractors or other liabilities. Following Commencement of Operations with respect to a Facility, Seller shall be entitled to Services Fees in respect of Facility Services rendered with respect to such Facility as described in Section 4.3.

Section 2.2 Purchase Orders. In connection with the Original PUMA Agreement Date and thereafter not later than ten (10) Business Days prior the first date of each Calendar Quarter, Seller will provide to Buyer a tranche notice substantially in the form hereto attached as Exhibit G (each, a “Tranche Notice”), which shall contain the aggregate System Capacity of the Facilities which are to be installed in connection with the applicable PPAs set forth in Annex D hereof that Seller expects will be included in a Tranche and that Seller reasonably expects will satisfy the applicable Deposit Milestones in such Calendar Quarter. So long as no Seller Default has occurred and is continuing hereunder, Buyer will, within five (5) Business Days of such notice, submit to Seller a Purchase Order for such Facilities. So long as no Buyer Default has occurred and is continuing hereunder, Seller shall promptly accept each such Purchase Order by countersigning and returning it to Buyer; provided that the failure of Seller to countersign or return to Buyer a Purchase Order shall not invalidate such Purchase Order and Seller shall be obligated to deliver the Bloom Systems comprising such Facility under such Purchase Order as contemplated by this Agreement. Notwithstanding anything to the contrary set forth in this Agreement, the Parties acknowledge and agree that, unless mutually agreed in writing by the Parties, in no event shall the aggregate Purchase Price (inclusive of any Purchase Price Adder(s)) for the Portfolio exceed the Maximum Aggregate Portfolio Purchase Price. Accordingly, in furtherance and not in limitation of the foregoing, Seller shall not issue a Tranche Notice for, and Buyer shall have no obligation to issue a Purchase Order or otherwise pay any portion of the Purchase Price in connection with, any Facility or Facilities which, upon Commencement of Operations with respect to such Facility or Facilities, would result (or be reasonably likely to result) in the aggregate Purchase Price (inclusive of any Purchase Price Adder(s)) for the Portfolio exceeding the Maximum Aggregate Portfolio Purchase Price, unless mutually agreed in writing by the Parties.

Section 2.3 Invoicing of Purchase Price.

(a) Seller shall invoice Buyer hereunder as follows:

(i) on the date that Seller has satisfied the Deposit Milestone Requirements for a Tranche, [***] per kW ($[***]/kW), calculated on the basis of the System Capacity of the Bloom Systems comprising the Facilities included in such Tranche (and, for clarity, Seller shall not invoice any amount in respect of any Purchase Price Adder(s) applicable to such Facilities;

(ii) on the Shipment Date for the last Bloom System(s) in each Facility,

(1) In the event that such Facility was previously included in a

Tranche for which Buyer has made payment, [***] per kW ($[***]/kW) for such Facility calculated based on the System Capacity of the Bloom Systems comprising such Facility plus 100% of the Purchase Price Adder(s) applicable to such Facility, if any; and

[***] Confidential Treatment Requested 19

(2) In the event that such Facility was not previously included in a Tranche for which Buyer has made payment, [***] per kW ($[***]/kW) for such Facility calculated based on the System Capacity of the Bloom Systems comprising such Facility plus one hundred percent (100%) of the Purchase Price Adder(s) applicable to such Facility, if any; and

(iii) upon Commencement of Operations for each Facility, the remainder of the Purchase Price, if any, not previously paid (calculated, and adjusted from time to time, in accordance with this Agreement), for such Facility, plus one hundred percent (100%) of the Taxes to be paid by Buyer pursuant to Section 2.3(c) for such Facility.

(b) Each invoice issued pursuant to Section 2.3(a)(ii) and Section 2.3(a)(iii) shall include the following information for each applicable Facility:

(i) Buyer’s Purchase Order number;

(ii) the Tranche (indicated by the invoice date) in which such Facility is deemed to be included;

(iii) the Site on which such Facility is installed or will be installed;

(iv) the serial number and System Capacity of each Bloom System comprising such Facility, and purchase order number;

(v) whether or not any AOM(s), Battery Solution, Low-Pressure Gas Booster(s) and/or UPM(s) are to be installed in connection with such Facility;

(vi) the Purchase Price, including details of (x) all amounts previously paid towards or credited against the Purchase Price, and (y) all amounts remaining due and payable on the Purchase Price;

(vii) the Shipment Date or expected Shipment Date, as applicable;

(viii) the Purchase Date or expected Purchase Date, as applicable; and

(ix) such other information as Buyer may reasonably request.

(c) Buyer shall pay all state and local sales, use or other transfer Taxes required to be paid by Buyer and attributable to the transfer of the Facility to Buyer, except that Seller shall be responsible for and pay any Taxes arising as a result of any components of such

Facility or any Facility being acquired from a source outside of the United States.

[***] Confidential Treatment Requested 20

Section 2.4 Payment of Purchase Price.

(a) Buyer shall pay all outstanding Purchase Price invoices on a monthly basis in accordance with the terms of this Section 2.4.

(b) Not less than ten (10) Business Days prior to the Invoice Due Date for all invoices to be paid by Buyer for the applicable calendar month, Seller shall deliver to Buyer:

(i) A draft Payment Notice, setting forth the anticipated aggregate Purchase Price for all Tranches and/or Facilities to be paid in such month; and

(ii) Supporting documentation (i.e., Seller’s Deposit Milestone Certificates, bills of lading and Seller’s Certificates of Installation) evidencing the achievement of all applicable Milestones achieved by the applicable Tranches and/or Facilities prior to the date of such draft Payment Notice.

(c) Not less than three (3) Business Days prior to the applicable Invoice Due Date for all invoices to be paid by Buyer for such calendar month, Seller shall deliver to Buyer:

(i) an executed Payment Notice, setting forth the actual aggregate Purchase Price for all Tranches and/or Facilities to be paid by Buyer in such month, which amount shall in no event exceed the amount notified by Seller to Buyer in the applicable draft Payment Notice except to the extent of any adjustment to such amount resulting from Section 2.8;

(ii) Supporting documentation (i.e., Seller’s Deposit Milestone Certificates, bills of lading and Seller’s Certificates of Installation) evidencing the achievement of all applicable Milestones achieved as of such date for all Milestones achieved by the applicable Tranches and/or Facilities between the date on which the draft Payment Notice was delivered and the date on which the executed Payment Notice was delivered.

(d) Buyer shall, on the applicable Invoice Due Date indicated in the executed Payment Notice delivered by Seller pursuant to Section 2.4(c), make Purchase Price payments for each Tranche and/or Facility included in such Payment Notice for which Seller has delivered all applicable documentation evidencing the satisfaction of the applicable Milestone(s).

(e) If Buyer defaults in any payment when due for any Facility (other than with respect to amounts being disputed in good faith), Seller may, on not less than five (5) Business Days prior notice to Buyer, at its option and without prejudice to its other remedies, (i) suspend performance of its obligations hereunder for such Facility, or defer delivery of such Facility to Buyer and (ii) require that (until all such outstanding payment defaults have been cured) the payment of the portion of the Purchase Price for future Facilities required under Section 2.3(a)(ii) and Section 2.3(a)(iii) above be made immediately prior to the Shipment of the applicable Bloom Systems, but Seller shall not be able to otherwise suspend performance of its obligations hereunder for other Facilities for which no such default exists.

(f) Seller shall promptly pay all subcontractors working on the Facilities delivered and installed under this Agreement (including, for clarification, subcontractors working off-Site), and shall, at the time of each payment made to any such subcontractor, obtain a partial or final lien waiver, as applicable, in a form approved by Buyer, and promptly provide Buyer with a copy of each such lien waiver. Seller shall discharge any Liens by such subcontractors within

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thirty (30) days of receiving notice thereof. Seller shall release all Liens in favor of Seller on each Facility upon final payment of the Purchase Price for such Facility. Upon the failure of Seller to discharge a Lien required to be discharged under this Section 2.3, or else promptly to provide a bond in an amount and from a surety acceptable to Buyer to protect against such Lien, in each case, within thirty (30) days after Seller is aware of the existence thereof, Buyer may, but shall not be obligated to, pay, discharge or obtain a bond or security for such Lien and, upon such payment, discharge or posting of security therefor, shall be entitled immediately to recover from Seller the amount thereof, together with all reasonable and necessary expenses actually incurred by Buyer in connection with such payment or discharge, or to set off all such amounts against any amounts owed by Buyer to Seller hereunder. After receipt of the portions of the Purchase Price for each Facility as provided in Section 2.3(a)(i) and Section 2.3(a)(ii), Seller will issue a statement of the balance of the Purchase Price for such Facility, being the amount which, once paid to Seller, will cause Seller to release its lien on the Facility. Seller hereby agrees that third parties may rely on each such statement.

(g) Notwithstanding the foregoing in this Section 2.3 or any other provision of this Agreement to the contrary, if Buyer (a) admits in writing its inability to pay its debts generally as they become due; (b) files a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other Legal Requirements of the United States of America or any State, district or territory thereof; (c) makes an assignment for the benefit of creditors; (d) consents to the appointment of a receiver of the whole or any substantial part of its assets; (e) has a petition in bankruptcy filed against it, and such petition is not dismissed within ninety (90) days after the filing thereof; or if (f) a court of competent jurisdiction enters an order, judgment, or decree appointing a receiver of the whole or any substantial part of Buyer’s assets, and such order, judgment or decree is not vacated or set aside or stayed within ninety (90) days from the date of entry thereof; or (g) under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the whole or any substantial part of Buyer’s assets and such custody or control is not terminated or stayed within ninety (90) days from the date of assumption of such custody or control, then Seller shall have no obligation to deliver any Facility hereunder, or if Shipment for the Bloom Systems comprising a Facility has already occurred, Seller shall have the right to require immediate payment of any amount due under Section 2.3(a)(ii) and the right to require that the final payment of the Purchase Price for such Facility be made promptly (but no earlier than Commencement of Operations of such Facility).

(h) With respect to any payment due from one party to the other pursuant to this Agreement, unless being contested in good faith, interest shall accrue daily at the lesser of a monthly rate of [***] or the highest rate permissible by law on the unpaid balance.

Section 2.5 Purchase and Sale of Facilities. Upon the “Purchase Date” for a Facility, which date shall be the date on which Delivery of all Bloom Systems comprising such Facility occurs and the Facility Purchase Conditions for the Facility are and remain true and correct, (i) Seller shall have sold, assigned, conveyed, transferred and delivered to Buyer, and Buyer shall have purchased, assumed and acquired from Seller, all of Seller’s right, title and interest in and to such Facility, (ii) except as set forth in Section 3.3(b), the sale of such Facility shall occur, and (iii) Seller shall provide Buyer with (a) a Bill of Sale evidencing the same, and (b) lien waivers from each subcontractor performing BOF Work at the applicable Site, stating that such subcontractor has been paid all amounts owed to it as of the date of the lien waiver (the foregoing being “Purchase”).

[***] Confidential Treatment Requested 22

Section 2.6 PPA Termination and Re-Purchase of Facilities.

(a) If a PPA is terminated with respect to one or more Facilities prior to the date such Facilities have achieved Commencement of Operations, then (i) Seller shall repurchase the Facilities from Buyer on an AS IS basis by refunding to Buyer all payments of the Purchase Price paid as of such date, (ii) title to such Facilities, if held by Buyer, shall pass back to Seller upon payment of such refund amount and Buyer’s delivery of a Bill of Sale to Seller evidencing such transfer of title, and (iii) the applicable Bloom Systems shall no longer constitute a portion of the Portfolio. If a Facility is repurchased by Seller pursuant to this Section 2.4(a) and any portion of such Facility is located at the Site, Seller shall at its sole cost and expense remove the applicable Bloom Systems and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable PPA or Site License) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections and properly sealing any Site penetrations, in the manner required by all Legal Requirements and the applicable PPA or Site License.

(b) Subject to Section 12.7(c), in the event that (i) a PPA Customer terminates a PPA with respect to a Facility prior to its expiration and (ii) the applicable PPA Customer pays Buyer the termination value due under the applicable PPA, then Buyer shall reimburse Seller for any costs or expenses incurred in connection with the removal of such Facility.

Section 2.7 Purchase Price Adjustment for Changes in ITC Eligibility.

(a) In the event that (i) any Facility(ies) is purchased by Buyer for the No-ITC Purchase Price, and (ii) following the date of Buyer’s payment of the final portion of such No-ITC Purchase Price to Seller, such Facility(ies) become retroactively-eligible for the ITC, Seller shall, in addition to the updates to the Base Case Model contemplated by Section 2.8(a), reflect such Facility’s ITC eligibility in the next Project Model delivered to Buyer pursuant to Section 2.8(a).

(b) In the event that (i) any Facility(ies) is purchased by Buyer for the ITC Eligible Purchase Price, and (ii) following the date of Buyer’s payment of the final portion of such ITC Eligible Purchase Price to Seller, such Facility is the subject of a Final Determination that the Facility is not eligible for the ITC as a result of any failure of Seller to perform or cause to be performed any material obligation required to be performed by Seller under this Agreement or the failure of any representation and warranty set forth herein to be true and correct as and when made, Seller shall, in addition to the updates to the Base Case Model contemplated by Section 2.8(a), reflect such Facility’s ITC ineligibility in the next Project Model delivered to Buyer pursuant to Section 2.8(a).

Section 2.8 Purchase Price Adjustment for Portfolio Price Changes.

(a) Not less than ten (10) Business Days prior to the end of each Calendar Quarter, Seller shall deliver to Buyer a revised Project Model, reflecting the Base Case Model updated solely to reflect (i) with respect to each Facility that has achieved Commencement of Operations, (A) the dates on which Buyer paid each portion of the Purchase Price for such Facility

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and the amount of such payments, and (B) the date on which such Facility achieved Commencement of Operations, (ii) with respect to each Facility that Seller reasonably expects to achieve Commencement of Operations following the delivery of such revised Project Model, (A) the dates on which Buyer has paid, or is expected to pay, each portion of the Purchase Price for such Facility and the amount of such payments, and (B) the date on which Seller reasonably expects such Facility to achieve Commencement of Operations, (iii) the inclusion or deletion, as applicable, of any Facilities that have been added or deleted from the PPAs during such Calendar Quarter, and (iv) any updates required by Section 2.7.

(b) Notwithstanding anything to the contrary set forth in Section 2.8(a),

(i) For all Facilities that achieve Commencement of Operations beginning on the Agreement Date and until the aggregate System Capacity of the Bloom Systems in the Portfolio equals 50 MW, in the event that the calculation performed pursuant to Section 2.8(a) would result in the Purchase Price for a Facility in excess of [***] dollars per kW ($[***]/kW) for such Facility calculated based on the System Capacity of the Bloom Systems comprising such Facility, the Purchase Price for such Facility shall instead be [***] dollars per kW ($[***]/kW); and

(ii) From and after such time as the aggregate System Capacity of the Bloom Systems in the Portfolio equals or exceeds 50 MW in the event that the calculation performed pursuant to Section 2.8(a) would, if applied to all Facilities that are reasonably expected to achieve Commencement of Operations after such time (each, a “Post 50MW Facility”), result (or be reasonably likely to result) in the aggregate Purchase Price (inclusive of any Purchase Price Adder(s)) for the Portfolio exceeding the Maximum Aggregate Portfolio Purchase Price, the Purchase Price for each such Post 50MW Facility shall instead be that amount that would result in the aggregate Purchase Price (inclusive of any Purchase Price Adder(s)) for the Portfolio equaling the Maximum Aggregate Portfolio Purchase Price.

(iii) For the avoidance of doubt and notwithstanding anything to the contrary set forth in this Section 2.8, in no event shall any adjustment to the Purchase Price result (or be reasonably likely to result) in the aggregate Purchase Price (inclusive of any Purchase Price Adder(s)) for the Portfolio exceeding the Maximum Aggregate Portfolio Purchase Price, unless mutually agreed in writing by the Parties.

(c) The Parties will mutually agree on an adjusted Purchase Price for the Facilities within five (5) Business Days of Buyer’s receipt of the revised Project Model under Section 2.8(a), which, subject to any modifications under Section 2.8(b), shall be used as (i) the final Purchase Price for all Tranches and Facilities invoiced and paid in the current Calendar Quarter, and (ii) the Purchase Price for purposes of all invoices delivered in the following Calendar Quarter (until the date of the next adjustment made pursuant to this Section 2.8). Within five (5) Business Days of the Parties’ agreement on such adjusted Purchase Price, Buyer shall amend and reissue each invoice previously delivered by Seller to Buyer for the current Calendar Quarter to reflect the Purchase Price determined pursuant to this Section 2.8(c). For the avoidance of doubt, no adjustments shall be made hereunder with respect to any payments from Buyer to Seller made in any Calendar Quarter prior to the current Calendar Quarter. Without in any way limiting the provisions of Section 9.1(g), Seller makes no representation, warranty or guaranty regarding Buyer’s expected rate of return as a result of the purchase of the Facilities hereunder.

[***] Confidential Treatment Requested 24

(d) Following the reissuance of invoices as described in Section 2.8(c), if Buyer has made any over- or under-payments in respect of such invoices, Seller shall apply such over- payments as a credit against, or addition to, the amount owed by Buyer with respect to the invoices to be paid on the final Invoice Due Date of the current Calendar Quarter; provided, however, that if such adjustment results in Buyer owing no payments to Seller with respect to such invoices but fails to fully compensate Buyer for prior over-payments, Seller shall remit the remaining balance of any over-payments to Buyer within thirty (30) days following the applicable Invoice Due Date.

ARTICLE III

DELIVERY AND INSTALLATION OF BLOOM SYSTEMS AND BALANCE OF

FACILITIES

Section 3.1 Access to Site. Seller shall be responsible for ascertainment of the suitability of the Sites, the environment around the Sites, the Sites’ soil condition and other ground conditions for construction of the Facilities. As between Seller and Buyer, Seller shall be solely responsible for all Site Preparation Services at Seller’s cost. Buyer shall provide Seller with access to the Sites in a manner consistent with the applicable PPAs and Site Licenses to permit Seller to deliver and install each Bloom System and the BOF to the applicable Sites and to connect the applicable Facility to the distribution and transmission facilities of the Transmitting Utility, as applicable. If a PPA Customer requires a change in the location of a Site from that specified in a Purchase Order or applicable Site License, whether temporary or permanent, (a) Buyer shall submit a written notice to Seller setting forth the details of such location change, (b) Seller shall administer and perform the Site Preparation Services as required for that changed location to the extent required and in accordance with the relevant PPA and Site License, and (c) to the extent that such PPA Customer pays to Buyer an amount under the applicable PPA or Site License in connection with such required change in the installation location of a Site, Buyer shall pay the same to Seller promptly upon receipt from such PPA Customer, except that Buyer shall retain the portion of such amount equaling any applicable amount to compensate Buyer for lost output, environmental attributes, and environmental incentives during the period the Facility is consequently not producing electricity.

Section 3.2 Delivery of Bloom Systems.

(a) Delivery of each Bloom System shall be DDP (Incoterms 2010) to its Site, in accordance with the Uniform Commercial Code then in effect. Title to each Bloom System shall pass to Buyer upon Buyer’s Purchase of such Bloom System, and such title shall be good and marketable and free of all Liens, except for Permitted Liens. From and after Buyer’s Purchase of each Bloom System all risk of loss or damage to such Bloom System shall be borne by Buyer. Seller shall manage its supply chain and place orders with suppliers with respect to Components and other materials, supplies, and equipment so as to support the Facilities sold to Buyer hereunder.

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Section 3.3 Delivery of Balance of Facility; Installation of Bloom Systems.

(a) Seller shall be responsible for engineering, procuring, constructing, installing and commissioning the BOF, and Seller shall cause each Facility to achieve Commencement of Operations without any compensation or reimbursement by Buyer, other than the Purchase Price under this Agreement and payments pursuant to Section 3.1(c), if any, in accordance with the following (collectively, the “BOF Work”):

(i) Seller shall be solely responsible for the means, methods, techniques, sequences, and procedures employed for execution and completion of the BOF Work, and shall perform and complete all BOF Work in accordance and consistent with the Performance Standards;

(ii) Seller shall cause to be performed any and all studies, reports and applications (in the name of Buyer) that are necessary for interconnection to the distribution and transmission facilities of the Transmitting Utility;

(iii) Seller shall perform the BOF Work and act at all times as an independent contractor. Seller shall at all times maintain such supervision, direction and control over its employees, agents, subcontractors and representatives as is consistent with and necessary to preserve its independent contractor status. Subject to Section 4.6, Seller is permitted to enter into contracts or otherwise hire one or more subcontractors to perform any of Seller’s work under this Agreement on its behalf. Each subcontractor must be a reputable, qualified firm with an established record of successful performance in its trade, and shall obtain and maintain such insurance coverages having such terms as set forth in Annex B. Seller shall not be relieved from its obligation to provide any services hereunder if a subcontractor agrees to provide any or all of such services. No subcontractor is intended to be or will be deemed a third-party beneficiary of this Agreement. Nothing contained herein shall create any contractual relationship between any subcontractor and Buyer or obligate Buyer to pay or cause the payment of any amounts to any subcontractor, including any payment due to any third party. Seller shall not permit any subcontractor to assert any Lien against any Facility or Bloom System, or attach any Lien other than a Permitted Lien. None of Seller’s employees, subcontractors or any such subcontractor’s employees will be or will be considered to be employees of Buyer. Seller shall be fully responsible to Buyer for the acts and omissions of each such employee or subcontractor. To the extent that any PPA Customer has the right to request removal of any Seller or subcontractor personnel under a PPA or Site License, Seller shall cooperate with Buyer in complying with the terms and conditions of such PPA or Site License including by, upon written notification by Buyer that the performance, conduct or behavior of any Person employed by Seller or one of its subcontractors is unacceptable to the applicable PPA Customer, promptly stopping such Person from performing any obligations hereunder and/or removing such Person from the applicable Site. Additionally, Buyer may bring to Seller’s attention any concerns regarding the performance, conduct or behavior ofany Person employed by Seller or one of its subcontractors, which concerns Seller shall consider in good faith and thereafter take such action as Seller deems appropriate under the circumstances. Seller will be fully responsible for the payment of all wages, salaries, benefits and other compensation to its employees and for payment of any Taxes due because of the BOF Work;

(iv) Seller shall, and shall cause each of its subcontractors to, install the Bloom Systems and the BOF at each Site using items that are new, and undamaged at the time of such use or installation;

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(v) Seller shall install, test, and cause the Commencement of Operations with respect to each Facility within ninety (90) days of the date of Seller’s Deposit Milestone Certificate as provided in Section 3.4;

(vi) Seller shall pay all amounts owed to its subcontractors and vendors in connection with the performance of the BOF Work on a timely basis and shall hold Buyer harmless against any claims asserted by such subcontractors and vendors;

(vii) Seller shall obtain and maintain, or cause to be obtained and maintained (where required, in the name of Buyer or each PPA Customer, as the case may be), all Permits necessary to design, install, commission, construct, occupy, and operate each Facility at each Site;

(viii) Seller shall cause BOF Work to be completed in a good and workmanlike manner, free from defective materials, and in accordance with the Performance Standards, free and clear of all Liens other than Permitted Liens; and

(ix) If Seller, at any time during the Warranty Term, becomes aware of any potential material manufacturing or design defect in any Facility, including any Component thereof, it will notify Buyer of the defect within a reasonable time, not to exceed five (5) Business Days after Seller first becomes aware of such defect.

(b) Title and risk of loss to each component of such BOF Work for the Site which is not performed and provided on assets owned by a relevant PPA Customer or relevant Transmitting Utility shall pass to Buyer upon the later of the Delivery Date of the first Bloom System at the Site and the date such component is installed as part of the Facility at the Site. For the avoidance of doubt, the passage of title and risk of loss with respect to each Facility shall have passed to Buyer prior to such Facility being Placed in Service. From and after the Commencement of Operations of the Facility of which particular BOF Work is a part, all risk of loss or damage to such BOF Work which is owned by Buyer shall be borne by Buyer.

(c) Without in any way limiting Seller’s obligations pursuant to this Section 3.3, Seller shall perform all design, permitting and installation work in accordance with the provisions of Schedule 3.3 attached hereto.

Section 3.4 Commissioning; Commencement of Operations.

(a) Upon the occurrence of the Delivery for a Bloom System, Seller shall promptly perform the following, at Seller’s sole cost:

(i) Seller shall provide installation, inspection, commissioning and start-up for each Bloom System and the BOF at the applicable Site in accordance with the installation manuals provided for such Bloom System and the applicable Site License, and in conformance with Prudent Electrical Practices. Without limitation of the foregoing, each Facility will be connected by Seller to the natural gas source, water source and SCADA at the applicable Site and to the applicable Facility’s Electrical Interconnection Facilities;

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(ii) Prior to Commencement of Operations of each Facility, Seller shall, perform an acceptance test not less stringent than the testing applied to its fuel cell power generating systems for any other major customer of Seller of each Bloom System incorporated into such Facility and the applicable BOF in the presence of Buyer (if Buyer elects to attend), and such Bloom Systems and applicable BOF shall have passed such test. Seller will, upon request by Buyer, inform Buyer of the date on which it expects to conduct the acceptance test of any Facility(ies) and cooperate with Buyer to provide Buyer with the opportunity to observe such testing to the extent practicable, provided, that in no event shall Seller be required to delay the performance of any acceptance test in order to allow Buyer to witness such test if all other pre- testing requirements have been satisfied;

(iii) Seller shall cause Commencement of Operations for such Facility to occur within ninety (90) days of the date of Seller’s Deposit Milestone Certificate. Seller shall promptly certify in writing to Buyer when each Facility achieves Commencement of Operations;

(iv) Seller will provide to Buyer, prior to the Commencement of Operations, a single line diagram of the Facility installation, electronic system manuals, copies of all relevant design documents, and printed system manuals, in each case relating to such Facility (each in paper copy and native electronic format). Seller shall deliver to Buyer any other documentation necessary to establish placement in service for purposes of section 48 of the Code;

(v) Until Commencement of Operations of the Facility, Seller shall be responsible for providing physical security of such Facility;

(vi) If requested by Buyer, Seller shall provide operator training and associated training materials to personnel and representatives of Buyer sufficient to instruct Buyer on operation of such Facility in conformance with Prudent Electrical Practices; and

(vii) Following Commencement of Operations of a Facility, Seller shall promptly remove all waste materials and rubbish from and around the Site as well as all of its tools, construction equipment, machinery, and surplus materials as reasonably necessary to restore each Site to a condition reasonably satisfactory to such PPA Customer or as otherwise required by the applicable Site License.

(b) Seller’s services under Section 3.1 through Section 3.4 shall be fully comprehensive of all services, labor, and equipment necessary to complete installation of a fully commissioned and operating Facility in accordance with this Agreement, the applicable PPA, the applicable Interconnection Agreement, and the applicable Site License.

(c) Seller shall be responsible, at its sole cost and expense, for maintaining and complying with all Permits required to perform its services under this Agreement and Buyer agrees to cooperate with and assist Seller in obtaining such Permits.

(d) To the extent any Facility has not achieved Commencement of Operations within the earlier of (i) one hundred eighty (180) days of the payment of the portion of Purchase Price set forth in Section 2.3(a)(ii) for such Facility and (ii) the Commencement of Operations Date Deadline, then Buyer shall have the ongoing right for the period from the end of that date until the earlier of (x) the date that such Facility has achieved Commencement of Operations and

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(y) ninety (90) days after such date, to elect that Seller repurchase and remove such Facility from the applicable Site, in which case (A) Seller shall repurchase the Facility from Buyer on an AS IS basis by refunding to Buyer all payments of the Purchase Price paid as of such date, (B) title to such Facilities shall pass back to Seller upon payment of such refund amount and Buyer’s delivery of a Bill of Sale to Seller evidencing such transfer of title, and (C) the applicable Facility shall no longer constitute a portion of the Portfolio. If a Facility is repurchased by Seller pursuant to this Section 3.4(d), Seller shall at its sole cost and expense remove the applicable Bloom Systems and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable PPA or Site License) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections and properly sealing all Site penetrations, in the manner required by all Legal Requirements and the applicable PPA or Site License.

(e) Without in any way limiting Seller’s obligations pursuant to this Section 3.4, Seller shall perform all commissioning work in accordance with the provisions of Schedule 3.4 attached hereto.

(f) Within ninety (90) days of a Facility achieving Commencement of Operations, Seller shall deliver to Buyer each of the Seller Deliverables indicated on Exhibit C as items to be delivered following Commencement of Operations.

Section 3.5 Insurance. Seller shall maintain the insurance described in Annex B with respect to each Facility until the end of the Warranty Period with respect to such Facility.

Section 3.6 Disposal; Right of First Refusal.

(a) Except as set forth in Section 14.4, in the event that Buyer decides to scrap, abandon or otherwise dispose of any Bloom System, Buyer shall notify Seller and Seller shall have the right but not the obligation to obtain title to the Bloom System and remove the Bloom System at Seller’s cost; provided, however, that Seller will not be responsible for remediation of the Site in which the Bloom System was located.

(b) Except as set forth in Section 2.4 or Section 14.4, in the event that Buyer or its Affiliates desire to sell or otherwise transfer title to any Bloom System to a transferee other than a PPA Customer or an Affiliate of Buyer, Buyer shall notify Seller and Seller shall have the right of first refusal to purchase or acquire the Bloom System on the same terms and conditions of such sale. In the event that Seller exercises such right of first refusal, Seller shall, promptly following payment of the purchase price of such Bloom System, remove the Bloom System at Seller’s cost, including the remediation of the Site in which the Bloom System was located in accordance with the terms of the applicable PPA and/or Site License.

Section 3.7 Third Party Warranties. If any express or implied warranties, indemnities, guaranties, remedies, covenants and other rights which any subcontractor or supplier has made to Supplier with respect to any good, service, or other deliverable furnished under this Agreement in respect of a Facility (each a “Third Party Warranty”) would provide an additional rights to Buyer beyond the warranties under ARTICLE V, then (a) such Third Party Warranty providing additional rights will be for the benefit of and passed through to Buyer to the fullest extent possible,

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(b) Supplier transfers and assigns to Buyer all of Supplier’s right, title and interest under such Third Party Warranty to exercise such additional rights, and (c) Supplier hereby appoints Buyer as attorney-in-fact coupled with an interest to exercise and enforce all such additional rights in the name of either Buyer or Supplier. Nothing in this Section 3.7 will limit Supplier’s obligations to Buyer under ARTICLE V. Buyer agrees that it will not look to Seller for any claims covered by Third Party Warranties in respect of the Battery Solution; provided, however, that this shall not relieve Seller of any liability or obligation of Seller arising in connection with any failure of the Battery Solution that is attributable to a Bloom Component Defect.

Section 3.8 Access; Cooperation. Seller shall provide to Buyer such other information that is in the possession of Seller or its Affiliates or is reasonably available to Seller regarding the permitting, engineering, construction, or operations of Seller, its subcontractors or the Facilities, and other data concerning Seller, its subcontractors or the Facilities that Buyer may, from time to time, reasonably request in writing, subject to Seller’s obligations of confidentiality to third parties with respect to such information. Seller shall not take any action or omit to take any action as would cause Buyer in any material respect to violate any Legal Requirements, and to the extent that Seller has knowledge of any such existing or prospective violation take, or cause to be taken, commercially reasonable actions, to redress or mitigate any such violation, which action shall be at Seller’s sole expense if Seller is obligated to perform such action as part of the EPC Services or Facility Services, and otherwise shall be at Buyer’s sole expense. Seller shall give to Buyer prompt written notice of any material disputes with Governmental Authorities. Seller shall furnish, or cause to be furnished, to Buyer copies of all material documents furnished to Seller by any Governmental Authority in respect of Buyer or any Facility.

Section 3.9 Performance Standards. For the purpose of this Agreement, Seller shall perform under this Agreement in accordance and consistent with each of the following (unless the context requires otherwise): (A) plans and specifications subject to Permits under Legal Requirements and applicable to each Facility; (B) the manufacturer’s recommendations with respect to all equipment and all maintenance and operating manuals or service agreements, whenever furnished or entered into, including any subsequent amendments or replacements thereof, issued by the manufacturer, provided they are consistent with generally accepted practices in the fuel cell industry; (C) the requirements of all applicable insurance policies; (D) preserving all rights to any incentive payments, warranties, indemnities or other rights or remedies, and enforcing or assisting with the enforcement of the applicable warranties, making or assisting in making all claims with respect to all insurance policies; (E) all Legal Requirements and Permits/Governmental Approvals; (F) any applicable provisions of the Site Licenses, including any landlord rules and regulations; (G) Prudent Electrical Practices; (H) the relevant provisions of each Interconnection Agreement; (I) each PPA; (J) the Seller Corporate Safety Plan provided in Exhibit J (as updated by Seller from time to time, with a copy provided promptly to Buyer); (K) the Seller Subcontractor Quality Plan provided in Exhibit K (as updated by Seller from time to time, with a copy provided promptly to Buyer); (L) all Environmental Requirements, and (M) the LREC Contract (collectively, the “Performance Standards”); provided, however, that meeting the Performance Standards shall not relieve Seller of its other obligations under this Agreement.

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ARTICLE IV

FACILITY SERVICES

Section 4.1 In General.

(a) During the Warranty Period, in consideration of the Service Fees, Seller shall service each Facility constituting a portion of the Portfolio so that the Portfolio meets the Warranty Specifications and so that the BOF will not cause the Portfolio to fail to perform in accordance with the Warranty Specifications, as more fully set forth in ARTICLE V. Without limiting the foregoing, Seller agrees to perform on behalf of Buyer all operations and maintenance obligations in respect of each Facility under the applicable PPA and Site License in a manner fully consistent with the terms and conditions of such documents. The services set forth in this Section 4.1, as more fully described in this ARTICLE IV, are collectively referred to herein as the “Facility Services.” For clarity, Seller shall have no authority or responsibility with respect to the payment or receipt of monies to or from PPA Customers or with respect to serving or receiving formal notices to or from PPA Customers; provided, however, that Seller may informally communicate with PPA Customers regarding routine, day-to-day Facility Services matters. For so long as Seller is performing Facility Services in respect of a Facility, the Parties intend that Seller shall be responsible for all operational activities in respect of such Facility, including the performance of all obligations to PPA Customers that are required to be performed physically at the Site. If a Party has any uncertainty regarding which Party is responsible for particular obligations to PPA Customers, the Party’s Manager shall discuss such matter with the other Party’s Manager to implement the allocation of responsibility intended by this Agreement and the Parties thereafter shall, if necessary, amend this Agreement to clarify the Parties’ agreement regarding such allocation of responsibility.

(b) Until the expiration of the Extended Warranty Term, upon the expiration of the Warranty Period with respect to any Facility(ies) Buyer may, at its option, elect to renew the Warranty Period with respect to such Facility(ies) for a period of one (1) additional year. The Warranty Period for each Facility shall be automatically renewed for a period of one (1) additional year at the termination of the existing Warranty Period if Buyer has not informed Seller in writing of its election to terminate the Warranty Period at the end of such existing Warranty Period at least thirty (30) days prior to the final date of such existing Warranty Period. Notwithstanding anything to the contrary set forth in the foregoing, in the event that the “Term” of the Equinix PPA with respect to any Facility(ies) is extended pursuant to Section 4.7(c) thereof, then, upon the expiration of the fifteenth (15th) year of the Warranty Period, Buyer may elect to extend the Warranty Period for such Facility(ies) for a period equal to such extended “Term” instead of electing a one-year renewal.

Section 4.2 Operation and Maintenance Services. Without limiting, and in furtherance of, Section 4.1, Seller is hereby granted the right and authority (and, to the extent necessary to carry out its functions hereunder, a limited power of attorney) and agrees, for the benefit of Buyer, to operate safely and reliably each Facility and to maintain during the Warranty Period in accordance with the terms of this Agreement each such Facility in good condition and repair in accordance with the Warranty Specifications, Performance Standards and Prudent Electrical Practices. During the Warranty Period, the specific responsibilities of Seller under this Agreement shall include the following:

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(a) Facility Operations. Seller shall ensure that all Facility components are operated and maintained safely and in a manner designed to meet the Warranty Specifications and Performance Standards and as otherwise required under this Agreement.

(b) Facility Maintenance. Seller shall perform, or cause to be performed, all scheduled and unscheduled maintenance required on the Facilities in order to meet the Warranty Specifications and Performance Standards. In that regard, Seller’s responsibilities hereunder shall include, without limitation, promptly correcting any Bloom System or BOF malfunctions, either by (i) recalibrating or resetting the malfunctioning Bloom System or BOF, or (ii) subject to Section 5.7(b), repairing or replacing Bloom System or BOF components which are defective, damaged, worn or otherwise in need of repair or replacement. Seller agrees to respond in a timely manner to any Facility outage or other casualty that materially reduces power output or materially impairs the capability of the Battery Solution to load shift, peak shave or run (with the Bloom System) in islanded mode, by (A) promptly diagnosing the source of such issue and, (B) if on-Site Facility Services are required, using its best efforts to (1) dispatch field service personnel to the Site within six (6) hours of Seller’s Knowledge that such on-Site Facility Services are required, and (2) cause its field service personnel to arrive at the applicable Site in order to commence repair services at the applicable Facility no later than the next Business Day. Without in any way limiting the foregoing, Seller shall in any event comply with any and all response time(s) and/or corrective activity(ies) required by the applicable PPA(s).

(c) Repair and Replacement of Power Modules. Buyer agrees that Seller may replace the power modules included in each Facility with power modules of a different model provided that such replacement model has been subjected to inspections and tests performed by Seller which indicate that such replacement power module model is reasonably expected to perform at least as well as the model it replaces; provided, however, that, upon Buyer’s request, Seller agrees to promptly provide Buyer with copies of such inspection and test results. Notwithstanding the foregoing, Seller represents to Buyer that it reasonably expects that any repair or replacement of power modules to be made within five (5) years of the date the applicable Facility was Placed in Service will have an aggregate value of replaced parts that is less than eighty percent (80%) of the Facility’s total value (the cost of the new parts plus the value of the remaining Facility originally Placed in Service).

(d) Personnel. Seller shall ensure that all operations and maintenance functions contemplated by this Section are performed by technically competent and qualified personnel (the “Service Technicians”). Seller shall ensure that all Service Technicians: (i) participate in a maintenance training program and receive confirmation of having achieved the requisite level of proficiency for the tasks they are assigned to perform, and (ii) attend periodic “refresher” training programs to the extent Seller deems necessary, in its reasonable judgment.

(e) Spare Parts. Seller shall establish and maintain an adequate inventory of spare Components in one or more locations to facilitate scheduled and unscheduled maintenance required on the Facilities.

(f) Programs and Procedures. Prior to the date of the Commencement of Operations of the first Facility, Seller shall have adopted and implemented programs and procedures, consistent with Prudent Electrical Practices, intended to ensure safe and reliable

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operation of the Facilities. Seller may update such programs and procedures from time-to-time during the Term as it may determine appropriate, in its reasonable judgment and in accordance with Prudent Electrical Practices. Buyer may, not more than once per calendar year and at Buyer’s sole cost and expense, review such programs and procedures from time to time to confirm compliance with Prudent Electrical Practices. Buyer may from time to time provide comments on any such Seller programs and procedures and Seller agrees to consider any such comments in good faith; provided that Buyer’s review and comment on any such program or procedure will not relieve Seller of any of its obligations under this Agreement.

(g) PPA Customer Complaints. Seller will promptly provide notice to Buyer if Seller has received any written communication from any PPA Customer suggesting that such PPA Customer is dissatisfied with the operational performance of any Facility or with the manner in which EPC Services or Facility Services have been provided by Buyer, Seller or any other Service Provider in respect of any Facility. If any PPA Customer misdirects any written notice to Seller that should have been delivered to Buyer under the applicable PPA or Site License, Seller shall promptly deliver such written notice to Buyer.

(h) PPA Customer Invoicing and Reports. Until such time as Buyer is able to receive such data directly from the Facilities, Seller will promptly, and in any case within three (3) Business Days following request by Buyer, provide any operational data and other PPA Documentation necessary for Buyer to invoice any PPA Customer for the output of any Facility or any other amounts payable by the PPA Customer to Buyer under the applicable PPA. Seller will provide reasonable assistance to Buyer in the performance of all ordinary course reporting and other routine management responsibilities related to the operation of any Facility (including preparing or causing to be prepared reports, updated schedules and notices required to be prepared and delivered to a PPA Customer pursuant to a PPA).

(i) Operations and Maintenance Procedures. Without in any way limiting Seller’s obligations pursuant to this Section 4.2, Seller shall perform all operations and maintenance work in accordance with the provisions of Schedule 4.2 attached hereto.

(j) LREC Contract Administration. Seller will, (i) prepare and submit any and all filings, notices, communications or other documents that are required under the LREC Contract documents on behalf of Buyer, (ii) prepare and promptly pay on behalf of Buyer (and at no cost to Buyer), any amounts required to be paid by Buyer under the LREC Contract, and (iii) otherwise perform all routine administrative activities required of Buyer under the LREC Contract. Buyer agrees to cooperate with Seller as requested from time-to-time in connection with Seller’s obligations pursuant to this Section 4.2(j) (at Seller’s sole cost and expense) including promptly executing any documents required under the LREC Contract that must, by their nature, be executed by Buyer; provided, however, that Seller will be responsible for any liability resulting from such cooperation by Buyer.

(k) Equinix PPA Compliance. Seller will immediately provide notice to Buyer in the event that Seller knows or has reason to believe that a Compliance Law Violation (as defined in the Equinix PPA) or a breach of any of the representations, warranties or covenants in Section 7.1(h)(i) of the Equinix PPA has occurred or will occur in connection with any act or omission by Seller, Seller Affiliate, the Service Provider or a Seller or Seller Affiliate agent, representative or subcontractor at any tier.

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Section 4.3 Service Fees.

(a) Buyer shall compensate Seller for the Facility Services, on a calendar month basis, by paying Seller the “Service Fees” equal, for each Facility, to (i) (A) the rate (in $/kW) specified in Exhibit M hereto for such Facility for the applicable calendar month since the applicable Facility achieved Commencement of Operations, multiplied by (B) the aggregate System Capacity (in kW) of the Bloom Systems comprising the applicable Facility, for the applicable calendar month, plus (ii) any additional Services Fees for such Facility set forth on Exhibit M hereto based on the presence of a Low-Pressure Gas Booster in such Facility. If Facility Services are provided by Buyer for a particular Facility for only a portion of any calendar month, the Service Fees due with respect to such partial calendar month shall be pro-rated based on the number of days such Facility Services were provided in respect of such Facility during the calendar month.

(b) Commencing on the date each Facility achieves Commencement of Operations, with respect to each calendar month of such Facility’s Warranty Period, the Service Fees shall be invoiced on a separate invoice (and not pursuant to a Payment Notice) not later than five (5) Business Days prior to the first day of such calendar month, and, subject to Section 3.4(d) and Section 5.4, shall be payable no later than the thirty (30) calendar days following such proper delivery of such invoice; provided, that the pro rata Services Fees for the calendar month in which a Facility achieves Commencement of Operations shall be invoiced and paid with the Services Fees for the subsequent calendar month. Interest shall accrue, unless being contested in good faith, daily on the Service Fees not paid when due, at the lesser of the monthly rate of (i) one and five- tenths percent (1.5%) and (ii) the highest rate permissible by law on such unpaid balance. Seller shall be under no obligation to provide or perform services hereunder for any Facility whose Service Fee, other than a Service Fee disputed in good faith, has not been paid in full (or offset pursuant to Section 3.4(d), Section 5.7 or Section 5.8) within thirty (30) days of invoice until such date upon which the Service Fee has been paid.

(c) If Buyer disputes any amount shown in an invoice issued by Seller in accordance with Section 4.3(a): (i) Buyer must pay the undisputed portion of the invoice amount within the time prescribed by Section 4.3(a), and (ii) liability for the disputed portion of that invoice will be determined in accordance with the dispute resolution procedure set out in Section 14.5.

(d) Any disputed portion of an invoiced amount which was not paid under Section 4.3(c) and is determined as being due to Seller in accordance with the dispute resolution procedure set out in Section 14.5 must be paid by Buyer within ten (10) days of the determination of the dispute in accordance with the procedure set out in Section 14.5 plus, if it is determined in accordance with the dispute resolution procedures that the disputed portion was not disputed in good faith, interest calculated in accordance with Section 4.3(b).

(e) Each Party shall have the sole and absolute right to set off any undisputed amounts to which it is entitled to under this Agreement, including under Section 3.4(d), Section 5.7

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or Section 5.8, against any amounts owed by such Party to the other Party under this Agreement. The deduction of any such amounts shall operate for all purposes as a complete discharge (to the extent of such deduction) of the obligation of such Party to pay the amount from which such deduction was withheld and made. Neither the exercise of, nor the failure to exercise, such right of setoff will constitute an election of remedies or limit the applicable Party in any manner in the enforcement of any other remedies that may be available to it.

(f) Buyer will, promptly following receipt thereof, remit to Seller any and all payments received pursuant to the LREC Contract.

Section 4.4 Remote Monitoring; BloomConnect.

(a) For purposes of monitoring the operational performance and determining when repair services are necessary, Seller shall monitor and evaluate the information gathered through remote monitoring of each Facility as well as the maintenance and inspection Site visits. For so long as Seller is responsible for the Facility Services in respect of any Facility, Seller shall provide Buyer with “view only” access to any information gathered through remote monitoring of such Facility. Such access shall be provided in real-time or as close to real-time as practicable, but shall in no event be less current than twenty-four (24) hours.

(b) Notwithstanding anything to the contrary set forth in Section 4.4(a), Seller shall provide Buyer with access to the Battery Solution data as may be mutually agreed by the Parties following the Original PUMA Agreement Date.

(c) To the extent a PPA Customer has a right to access BloomConnect or any successor software related to the management of its purchase of energy under an applicable PPA, Seller shall provide access to such PPA Customer for the same.

Section 4.5 Permits.

(a) Seller shall be responsible, at its sole cost and expense, for maintaining and complying with all Permits required to perform the Facility Services under this Agreement, and shall promptly notify Buyer of any material challenges to the status of a Permit for a Facility, or any other material issues or anticipated material issues relating to obtaining or maintaining a Permit for a Facility.

(b) Buyer agrees to cooperate with and assist Seller in obtaining all Permits.

(c) Seller agrees to assist with the preparation and submission of all filings and notices of any nature which are required to be made by Buyer under the terms of any Permit held by Buyer or any Legal Requirements applicable to the Facilities or to Buyer on account of the Facilities.

Section 4.6 Service Providers. Seller may appoint one or more unrelated third party(ies), who is appropriately qualified, licensed, and financially responsible, to perform EPC Services and/or Facility Services throughout the Term (each, a “Service Provider”). Seller shall submit such appointment of any Major Service Provider to Buyer for its prior written approval, which approval shall not be unreasonably withheld or delayed. No such appointment nor the

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approval thereof by Buyer, however, shall relieve Seller of any liability, obligation, or responsibility resulting from a breach of this Agreement. “Major Service Provider” means any Service Provider that Seller proposes to engage to perform any EPC Services and/or any Facility Services for which the aggregate compensation to such Service Provider in any calendar year is expected to be greater than [***] of the Services Fees paid to Seller in the applicable calendar year. The Parties agree that each of the Major Service Providers set forth on Schedule 4.6 hereof are approved for all purposes by Buyer as of the Original PUMA Agreement Date.

Section 4.7 Rights to Deliverables. Buyer agrees that Seller shall, except as expressly set forth herein, retain all rights, title and interest, including Intellectual Property rights, in any Training Materials provided to Buyer in connection with the services performed hereunder. “Training Materials” means any and all materials, documentation, notebooks, forms, diagrams, manuals and other written materials and tangible objects, describing how to operate and maintain the Facilities, including any corrections, improvements and enhancements which are delivered by Seller to Buyer, but excluding any Documentation or other data and reports delivered to Buyer in respect of any Facilities.

Section 4.8 Coordination of Relationship.

(a) Seller’s Operations Manager. Seller shall at all times retain an operations manager (the “Operations Manager”) who shall be dedicated to the overall supervision and management of performance of Seller’s Facility Services obligations under this Agreement. Seller’s initial Operations Manager is set forth on Exhibit M attached hereto. Seller may, from time to time, designate another individual as a proposed replacement for the Operations Manager by notice to Buyer’s approval, which may not be unreasonably withheld or delayed in all instances. Where feasible, Buyer shall have the opportunity to meet the replacement Operations Manager in Warranty Term, Seller shall not assign the Operations Manager duties that are inconsistent or that conflict with the obligations of the Operations Manager in respect of his or her Facility Services duties.

(b) Buyer Manager. Buyer will appoint an individual to serve as its primary contact person with regard to this Agreement (the “Buyer Manager”). Buyer’s initial Buyer Manager is set forth on Exhibit M attached hereto. Buyer may, from time to time, designate another individual as a proposed replacement for the Buyer Manager by notice to Seller.

(c) Manager Meetings. The Buyer Manager and the Operations Manager will serve as each Party’s main contact to, and for, the other Party with regard to day-to- day matters affecting the Parties’ relationship in relation to EPC Services and Facility Services. The Buyer Manager and the Operations Manager (or their designees) will meet, by phone or in person, as

(d) often as they feel necessary to monitor and manage such day-to-day activities. Such managers shall operate by consensus to the extent practicable but shall have no authority to amend or waive compliance with the terms and conditions of this Agreement, or to

[***] Confidential Treatment Requested 36

approve actions of the Parties that are inconsistent with this Agreement. Any such waivers or amendments shall be implemented only as described in Section 14.1 or Section 14.2, as the case may be.

Section 4.9 Relocation or Removals of Equinix Power Modules. In the event that Equinix requests a reduction in the System Capacity of any Facility(ies) installed pursuant to the Equinix PPA pursuant to Section 4.7 thereof, then:

(a) In the event that one or more power modules are to be relocated pursuant to Section 4.7(b) of the Equinix PPA, Seller shall promptly perform all actions necessary for the removal of such power modules from the original Site(s) and the transportation to, and reinstallation and resumption of operations of, such power modules at the Approved Relocation Site(s) (as defined in the Equinix PPA). Seller shall bear all costs associated with such relocation unless Equinix is required to bear such costs pursuant to the terms of the Equinix PPA, in which case (i) Seller and Buyer shall cooperate in good faith to prepare appropriate documentation of such costs, (ii) Buyer shall use all commercially reasonable efforts to obtain payment from Equinix as permitted under the Equinix PPA, and (iii) Buyer will promptly remit to Seller all payments obtained from Equinix in respect of such costs associated with the relocation of the applicable power modules; and

(b) In the event that one or more power modules are to be removed pursuant to Section 4.7(c) of the Equinix PPA, Seller will promptly remove such power modules from the applicable Facility(ies), and the Parties will cooperate in good faith to identify one or more Facilities in the Portfolio at which to redeploy such power modules, either as additional power modules installed in then-empty power module cabinets or to replace operating power modules nearing the end of their useful life. In identifying such Facilities, the Parties will consider (among other things) (i) the availability of empty power module cabinets, (ii) wiring or other equipment limitations, and (iii) any restrictions or limitations imposed by Legal Requirements, the PPAs, and the applicable Interconnection Agreements. Until a power module is redeployed pursuant to the terms of this Section 4.9(b), Seller shall be responsible for the handling, shipping and storage of such power module, and shall bear all risk of loss with respect thereto during such period. Seller shall bear all costs associated with the redeployment of power modules pursuant to the terms of this Section 4.9 (b).

Section 4.10 Remarketing and Redeployment Assistance. The Parties acknowledge and agree that in certain circumstances, Buyer (or certain of Buyer’s Affiliates), may be obligated to attempt to remarket and redeploy certain Facilities in connection with the termination of one or more PPAs containing such requirements with respect to such Facilities. In such event, Seller agrees to use its best efforts to assist Buyer in its efforts to resell or redeploy each such Facility, including, but not limited to, taking the following actions for Buyer’s benefit upon request: (a) on a nondiscriminatory basis with respect to other similar equipment of Seller, distributing to its sales organization information on the availability, location and price of such Facility, and agreeing to provide to a prospective purchaser of such unit or the output thereof, as applicable, at no cost to such purchaser a certificate of maintainability with respect to such unit, (b) cause such Facility to be reinstalled at the applicable purchaser’s site at Seller’s then prevailing installation rates, including procuring and installing any necessary BOF equipment related thereto, (c) cause such Facility to be refurbished or reconfigured as necessary or appropriate to facilitate such resale or

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redeployment, and (d) enter into an operations and maintenance agreement for all necessary operations and maintenance services necessary to operate such Facility following resale or redeployment at Seller’s then prevailing maintenance rates for similar equipment and including a scope of work, performance guaranties, and indemnification provisions similar in all material respects to the Customer PPA pursuant to which the applicable Facility was originally installed. All of Seller’s reasonable costs and expenses (including a reasonable allocation of personnel hours) incurred in connection with the actions described in this Section 4.10 shall be reimbursed by Buyer; and Seller will reasonably cooperate with Buyer to provide Buyer with any documentation that is required pursuant to the applicable Customer PPAs to support such costs and expenses.

ARTICLE V

WARRANTIES

Section 5.1 Facility Services Warranty. Without limiting Seller’s obligations under ARTICLE IV, during the Warranty Period, Seller shall perform, or cause to be performed, all such Facility Services in respect of the Bloom Systems and the BOF necessary for the Portfolio to perform to the Warranty Specifications (the “Facility Services Warranty”).

Section 5.2 Performance Guaranty.

(a) During the Warranty Period, Seller shall determine within ten (10) Business Days after the end of each calendar year, whether the Portfolio has delivered to the applicable Interconnection Points the Minimum kWh for purposes of the Performance Guaranty during such calendar year (“Performance Guaranty”).

(b) If such calculation indicates that the Actual kWh delivered by the Portfolio was greater than the Minimum kWh during such calendar year, then the difference (in kWh) between Actual kWh less Minimum kWh shall be recorded as a positive balance in the Performance Guaranty Bank.

(c) If such calculation indicates that the Actual kWh delivered by the Portfolio was less than the Minimum kWh during such calendar year, then the difference (in kWh) between Minimum kWh less Actual kWh shall be recorded as a negative balance in the Performance Guaranty Bank.

(d) Seller shall report the balance of the Performance Guaranty Bank to Buyer within thirty (30) days of the end of each calendar year. If Seller fails to perform any Performance Guaranty calculation within the periods required by this Section 5.2, Buyer may perform its own calculations and may make a claim under Section 5.7. An example of a Performance Guaranty calculation is attached as Annex C.

Section 5.3 Efficiency Warranty. During the Warranty Period, Seller shall determine for each full calendar month within five (5) Business Days after the end of such month whether each Facility that has achieved Commencement of Operations has performed at the Minimum Efficiency Level (the “Efficiency Warranty”). If the Minimum Efficiency Level has not been met during such month, then Seller shall so notify Buyer in writing of the basis of its determination and Buyer may make a claim under Section 5.7. If Seller fails to perform any Efficiency Warranty calculation within the periods required by this Section 5.3, Buyer may perform its own calculations and may make a claim under Section 5.7.

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Section 5.4 Section 5.4 Performance Warranty.

(a) During the Warranty Period, Seller shall determine within ten (10) Business Days after the end of each Calendar Quarter, whether the Portfolio has delivered to the applicable Interconnection Points the Minimum kWh for purposes of the Performance Warranty during such Calendar Quarter (“Performance Warranty”).

(b) If such calculation indicates that the Actual kWh delivered by the Portfolio was greater than the Minimum kWh during such Calendar Quarter, then the difference (in kWh) between Actual kWh less Minimum kWh shall be recorded as a positive balance in the Performance Warranty Bank.

(c) If such calculation indicates that the Actual kWh delivered by the Portfolio was less than the Minimum kWh during such Calendar Quarter, then the difference (in kWh) between Minimum kWh less Actual kWh shall be recorded as a negative balance in the Performance Warranty Bank.

(d) Seller shall report the balance of the Performance Warranty Bank to Buyer within thirty (30) days of the end of each Calendar Quarter. At any time the Performance Warranty Bank has a negative balance, Buyer may make a claim under Section 5.7. If Seller fails to perform any Performance Warranty calculation within the periods required by this Section 5.4, Buyer may perform its own calculations and may make a claim under Section 5.7. An example of a Performance Warranty calculation is attached as Annex C.

Section 5.5 Portfolio Warranty.

(a) Subject to Section 13.5(a), Seller warrants to Buyer that (i) each Bloom System upon Commencement of Operations will conform to the Bloom System Specifications, (ii) each Facility will be free from defects in design, materials and workmanship until the second anniversary of the Commencement of Operations for such Facility, and (ii) the Portfolio and each Facility will comply with the Warranty Specifications applicable to the Portfolio or such Facility, as the case may be, during the Warranty Period (collectively, the “Portfolio Warranty”).

(b) Seller agrees to correct, at Seller’s sole expense, all Bloom Systems or BOF provided, or BOF Work performed, by it or its subcontractors under this Agreement which proves to be defective in design, materials, or workmanship during the Manufacturer’s Warranty Period for each Facility.

(c) The Portfolio Warranty is not transferable to any third person, including any Person who buys a Facility from Buyer, without Seller’s prior written consent (which shall not unreasonably be withheld).

(d) Any period of time in which the Warranty Specifications are not met shall not extend the Warranty Period.

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Section 5.6 Exclusions. The Portfolio Warranty shall not cover any obligations on the part of Seller to the extent caused by or arising from (a) the Bloom Systems or BOF being affected by vandalism or other third-party’s actions or omissions occurring after Commencement of Operations (other than to the extent that Seller, Seller Affiliate, the Service Provider or a Seller subcontractor fails to properly protect the Bloom Systems and was required to do so under the Transaction Documents); (b) any failure relating to a PPA Customer’s failure to supply natural gas as required under the applicable PPA; (c) Buyer’s (as opposed to Seller, Seller Affiliate, the Service Provider or a subcontractor thereof) or a PPA Customer’s removal of any safety devices, (d) any conditions caused by unforeseeable movement in the environment in which the Bloom Systems are installed (provided that normal soil settlement, shifting, subsidence or cracking will not constitute ‘unforeseeable movement’), (e) accidents, abuse, improper third party testing (unless caused by Seller, Seller Affiliate, the Service Provider or a subcontractor thereof) or Force Majeure Events, (f) installation, operation, repair or modification of the Bloom Systems or BOF by anyone other than Seller or Seller’s authorized agents, or (g) a failure of any Battery Solution to perform in accordance with any performance warranty(ies) provided by the manufacturer thereof (excluding any such failure of the Battery Solution that is attributable to a Bloom Component Defect). UNDER THE PORTFOLIO WARRANTY AND MAKES NO REPRESENTATION AS TO BLOOM SYSTEMS OR BOF WHICH HAVE BEEN OPENED OR MODIFIED BY ANYONE OTHER THAN SELLER, SELLER’S AFFILIATE, THE SERVICE PROVIDER OR SUBCONTRACTOR, OR ANY OF SUCH PERSON’S REPRESENTATIVES, IN EACH CASE TO THE EXTENT OF ANY DAMAGE OR OTHER NEGATIVE CONSEQUENCE OF SUCH OPENING OR MODIFICATION.

Section 5.7 Portfolio Warranty Claims.

(a) Subject to the provisions of Section 13.5(a), if Buyer desires to make a Portfolio Warranty claim during the Warranty Period, Buyer must notify Seller of the defect or other basis for the claim in writing.

(b) If, after the annual adjustment to the Performance Guaranty Bank, such Performance Guaranty Bank has a negative balance, then Buyer may make a claim under the Performance Guaranty. Upon verification of such claim Seller shall make a payment to Buyer within ten (10) days of receipt of such claim equal to (x) the absolute value of the balance of the Performance Guaranty Bank, multiplied by (y) the Performance Guaranty Payment Rate. Upon payment of such amount, the Performance Guaranty Bank shall be reset to zero. Notwithstanding anything to the contrary set forth in this Agreement, Seller’s cumulative aggregate liability for all claims related to the Performance Guaranty shall not exceed the Performance Guaranty Payment Cap.

(c) In the case of a claim relating to the Efficiency Warranty, upon receipt of such claim and verification by Seller that such Efficiency Warranty is applicable, Seller or its designated subcontractor will promptly, and in all cases within ninety (90) days, repair or replace, at Seller’s sole option and discretion, any Bloom System(s) or any portion of the BOF whose repair or replacement is required in order for the applicable Facility to perform consistent with the Efficiency Warranty. If Seller is obligated to repair or replace any Facility pursuant to this Section 5.7(c) and such repair or replacement is not feasible (as determined at Seller’s sole option

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and discretion) and Seller notifies Buyer to such effect, Seller will refund to Buyer the Refund Value of such Facility (calculated as of the date of such refund), in which case Seller shall be deemed to have taken title to such Facility, and such Facility shall be deemed to no longer constitute a portion of the Portfolio. Seller shall make such determination as to the feasibility of repair or replacement as promptly as practicable, but in any event within ninety (90) days after Seller’s receipt of notice of the claim unless the specific nature of the problem requires a longer period in which to make such determination (in which case Seller must make a determination within a reasonable time) provided such longer period for a determination does not cause any breach of a PPA. In the event that Seller has not completed the repair or replacement of any Facility within ninety (90) days of the date on which Seller received notice of a claim (or within one hundred twenty (120) days if the specific nature of the problem required a period longer than ninety (90) days in which to determine the feasibility of repair or replacement), or repurchased the Facility in the time period in this Section 5.7(c) then Buyer has the right to require Seller (in which case Seller agrees) to procure return of the Facility in question to Seller (at Seller’s cost) and Seller will refund to Buyer the Refund Value of such Facility, in which case Seller shall be deemed to have taken title to such Facility upon payment of the Refund Value, and such Facility shall be deemed to no longer constitute a portion of the Portfolio and shall be removed as described in the previous sentence. The rights and obligations of the Parties under this Section 5.7(c) are in addition to and separate from any other rights of Buyer under this ARTICLE V.

(d) In the event of a claim relating to the Performance Warranty, upon receipt of such notice and verification by Seller that such Performance Warranty is applicable, Seller or its designated subcontractor will promptly, and in all cases prior to the final day of the immediately following Calendar Quarter, repair or replace, at Seller’s sole option and discretion, a sufficient number of Underperforming Facilities in order for the Portfolio to perform consistent with the Performance Warranty at the end of such Calendar Quarter. If Seller is obligated to repair or replace any Facilities pursuant to this Section 5.7(d) and such repair or replacement is not feasible (as determined at Seller’s sole option and discretion) and Seller notifies Buyer to such effect, Seller will refund to Buyer the Refund Value of such number of Underperforming Facilities (calculated as of the date of such refund) as will cause the remaining Portfolio to comply with the Performance Warranty calculated through the final day of the applicable Calendar Quarter, in which case Seller shall be deemed to have taken title to such Underperforming Facilities, and such Underperforming Facilities shall be deemed to no longer constitute a portion of the Portfolio. Seller shall make such determination as to the feasibility of repair or replacement as promptly as practicable, but in any event within ninety (90) days after Seller’s receipt of notice of the claim unless the specific nature of the problem requires a longer period in which to make such determination (in which case Seller must make a determination within a reasonable time) provided such longer period for a determination does not cause any breach of a PPA. In the event that Seller has not completed the repair or replacement of such sufficient number of Underperforming Facilities within ninety (90) days of the date on which Seller received notice of a claim, or repurchased such sufficient number of Underperforming Facilities in the time period in this Section 5.7(d), then Buyer has the right to require Seller (in which case Seller agrees) to procure return of such number of Underperforming Facilities (calculated as of the date of such refund) as will cause the remaining Portfolio to comply with the Performance Warranty calculated through the final day of the applicable Calendar Quarter) and Seller will refund to Buyer the Refund Value of such Underperforming Facilities, in which case Seller shall be deemed to have taken title to such Underperforming Facilities upon payment of the Refund Value, and such Facilities shall be deemed to no longer constitute a portion

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of the Portfolio and shall be removed as described in the previous sentence. In the event that Seller is obligated to repurchase any Underperforming Facilities pursuant to this Section 5.7(d) in connection with a Performance Warranty claim, the first Underperforming Facility repurchased shall be the Facility with the lowest output as a factor of its System Capacity in the prior Calendar Quarter, followed by the next lowest, and so on until Seller’s repurchase obligations are satisfied.

(e) Buyer is hereby notified that refurbished parts may be used in repair or replacement activities, provided that (i) any such refurbished parts will have passed the same inspections and tests performed by Seller on its new parts of the same type before such refurbished parts are used in any repair or replacement, and (ii) Seller shall within thirty (30) days of a written request therefor by Buyer, provide a report for any or all Bloom Systems purchased hereunder that lists all components that have been replaced in any individual Bloom System. If it is determined that a Facility will be removed pursuant to Section 5.7(c) or Section 5.7(d), Seller shall at its sole cost and expense remove the Facility and all ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable PPA or Site License) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections and properly sealing any Site penetrations in the manner required by all Legal Requirements and the applicable PPA or Site License.

Section 5.8 Indemnification Regarding Performance Under PPAs.

(a) Without in anyway limiting and in addition to Buyer’s remedies pursuant to Section 5.2 to Section 5.7, inclusive, in the event that Buyer incurs any liability to a PPA Customer with respect to any performance guarantee, any power performance shortfall, any efficiency warranty or any cost excess, including payments made or to be made by Buyer to a PPA Customer to reimburse such PPA Customer for any deficiency in the benefits received by such PPA Customer under the applicable state incentive programs for any PPA (collectively the “PPA Warranties”), Seller shall indemnify and hold Buyer harmless for any such liability, costs and expenses incurred by Buyer pursuant to such PPA Warranties (“PPA Warranty Reimbursement Payment”) except to the extent such liability results from a failure (not attributable to a Bloom Component Defect) of the Battery Solution to perform in accordance with any performance warranty(ies) provided by the manufacturer thereof. Without in anyway limiting and in addition to the foregoing, in the event that the failure of any Bloom System(s) to comply with any PPA Warranty causes the termination of a PPA (in whole or in part), then (i) Buyer may return the applicable Bloom System(s) to Seller and Seller will refund to Buyer the Refund Value of such Bloom Systems, in which case Seller shall be deemed to have taken title to such Bloom Systems, and such Bloom System shall be deemed to no longer constitute a portion of the Portfolio, and(ii) Seller shall indemnify and hold Buyer harmless for any amount Buyer is liable to a PPA Customer in connection with such termination. If it is determined that a Bloom System will be removed pursuant to this Section 5.8(a), Seller shall at its sole cost and expense remove the Bloom System and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable PPA or Site License) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections and properly sealing any Site penetrations in the manner required by all Legal Requirements and the applicable PPA or Site License. For the avoidance of doubt, claims, credits, reimbursements and any other payments made under this Section 5.8(a) are not subject to the cap set forth in Section 5.7(b) with respect to claims relating to the Performance Guaranty and shall not count against such cap.

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(b) PPA Warranty Reimbursement Payments owed pursuant to Section 5.8(a) shall be calculated by Seller on the first Business Day following the end of each Calendar Quarter and paid no later than the fifth Business Day of the Calendar Quarter immediately following the Calendar Quarter with respect to which such PPA Warranty Reimbursement Payment arose.

(c) Notwithstanding anything to the contrary set forth herein, Seller shall have no liability to Buyer under this Section 5.8 to the extent that Seller’s liability under any PPA Warranty is increased due to such PPA Warranty having been modified, amended, or otherwise changed in any way from the terms of such PPA Warranty as set forth in the applicable PPA as of the Original PUMA Agreement Date (or, for PPAs added after the Original PUMA Agreement Date, as set forth in the applicable PPA as of such date) unless Seller has consented in writing to such modification, amendment, or change.

Section 5.9 Disclaimers. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN ARTICLE VIII, THIS ARTICLE V AND THE OTHER TRANSACTION DOCUMENTS, THE FACILITIES ARE TRANSFERRED “AS IS, WHERE IS”, AND SELLER EXPRESSLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, AS TO LIABILITIES, OPERATIONS OF THE FACILITIES, VALUE OR QUALITY OF THE FACILITIES OR THE PROSPECTS (FINANCIAL AND OTHERWISE), RISKS AND OTHER INCIDENTS OF THE FACILITIES. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH IN ARTICLE VIII, THIS ARTICLE V AND THE OTHER TRANSACTION DOCUMENTS, SELLER SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, USAGE, SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE FACILITIES, OR ANY PART THEREOF. NO PERSON IS AUTHORIZED TO MAKE ANY OTHER WARRANTY OR REPRESENTATION CONCERNING THE PERFORMANCE OF THE FACILITIES.

Section 5.10 Title. Title to all replacement items, parts, materials and equipment supplied under or pursuant to this Agreement to Buyer shall transfer to Buyer upon installation or inclusion in a Facility. Upon replacement of an item or part as part of the Facility Services provided hereunder, Seller shall be obligated to remove such item or part and shall have the right to dispose of such replaced property in any manner that it chooses in its sole discretion.

ARTICLE VI

RECORDS AND AUDITS

Section 6.1 Record-Keeping Documentation; Audit Rights.

(a) Seller shall ensure that records concerning Seller’s EPC Services and Facility Services activities hereunder are properly created and maintained at all times in accordance with all Legal Requirements, including FERC requirements regarding record retention for Holding Companies in 18 C.F.R. Part 368 and any successorregulations to the extent applicable to Seller. Such records shall include, but not be limited to, the following:

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(i) records and documentation in respect of each Facility’s satisfaction of each Milestone, including records and documentation regarding the shipment of Bloom Systems and BOF, the completion of BOF Work, the achievement of Commencement of Operations, and the fact and date(s) such Facility has achieved each of the four separate criteria set forth the definition of “Placed in Service”;

(ii) a separate “Maintenance Specification Log” for each Facility in a paper or electronic format (with entries made for each inspection, including any discrepancies found during such inspection), a copy of which shall be submitted, in paper or electronic format, to Buyer along with the corresponding Quarterly Reports;

(iii) a Site service report completed in respect of each inspection, repair, replacement, service or other activity or observation made by or on behalf of Seller in connection with its responsibilities hereunder, detailing the nature of the problems with a Facility detected, if any, and the specifics of the problem resolution and submitted to Buyer within ten (10) Business Days of the date when such problem is resolved or within ten (10) Business Days of a routine inspection or service that did not identify any issues;

(iv) a monthly report submitted to Buyer within fifteen (15) days after the end of each month (“Monthly Report”) detailing and documenting, on a monthly basis, the (A) Efficiency and total output (in kWh) of each Facility comprising the Portfolio, and (B) total output (in kWh) of the Portfolio, in each case for the preceding month;

(v) records and documentation in respect of each Facility or the Portfolio, as applicable, regarding the compliance of such Facility or the Portfolio, as applicable, with the Warranty Specifications and any applicable PPA Warranties during the Warranty Period;

(vi) any other records, reports, or other documentation related to the production and sale of energy from the Facilities or that Buyer is required to maintain in respect of any Facility under any applicable PPA; and

(vii) any other records, reports, or other documentation reasonably requested by Buyer, including as necessary to support any ITC eligibility determination with respect to a Facility. Seller agrees to use commercially reasonable efforts to promptly provide such documentation to Buyer, and shall provide a reasonable explanation for any inability to provide such documentation.

(b) All such records required to be created and maintained pursuant to Section 6.1(a) shall (i) be kept available at Seller’s office and made available for Buyer’s inspection upon request at all reasonable times, and (ii) be retained for the relevant retention period provided in 18 C.F.R. § 368.3 or any successor regulation as amended from time, to the extent applicable to Seller, or any longer period required under any PPA. Any documentation prepared by Seller during the Term for the purposes of this Agreement shall be directly prepared for Buyer’s benefit and immediately become Buyer’s property. Any such documentation shall be stored by Seller on behalf of Buyer until its final delivery to Buyer. Seller may retain a copy of all records related to each Facility for future analysis.

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(c) Buyer shall have the right no more than once during any calendar year and going back no more than two (2) calendar years preceding the calendar year in which an audit takes place, upon reasonable prior written notice, including using an independent public accounting firm reasonably acceptable to Seller, to examine such records during regular business hours in the location(s) where such records are maintained by Seller for the purposes of verifying Buyer’s compliance with its obligations hereunder, including the accuracy of Monthly Reports and Seller’s calculations in respect of Warranty Specifications and applicable PPA Warranties; provided, however, that such records may be audited only once under this Section 6.1(c). Buyer shall pay the cost of the audit unless the results of the audit reveal that the Minimum kWh or Actual kWh reported by Buyer in respect of the Portfolio or any Facility during any calendar year that is audited exceeds by five percent (5%) or more the true Minimum kWh or Actual kWh, as the case may be, in which case Seller shall pay the audit costs.

Section 6.2 Reports; Invoicing Information; Other Information. Without in any way limiting Seller’s other reporting, notification, and other similar obligations under this Agreement, during the Warranty Period, Seller shall furnish to Buyer the following reports, notices, and other information regarding the Bloom Systems (which may be effected by e-mail communication to the Buyer Manager or other appropriate Buyer representative):

(a) Promptly upon Seller’s knowledge of any event or circumstance which could materially delay or prevent its performance of any of Seller’s obligations under any PPA, notice of such event or circumstance in reasonable detail;

(b) Promptly upon Seller’s knowledge of the occurrence of any damage to any Facility or Site, notice of such damage in reasonable detail;

(c) Promptly (and in any case within three (3) Business Days) following Seller’s final determination of the applicability thereof, notice that the operation of a Facility has experienced any of the circumstances described in clauses (i) through (iv) of the definition of “Minimum kWh” herein;

(d) Promptly upon Seller’s knowledge, notice that any Facility was or is not in compliance with any PPA Warranty during any period; and

(e) Any information Buyer may reasonably request in connection with any claim filed by Buyer under any insurance maintained with respect to the Facilities, and any information such insurance providers may reasonably request in connection with such claim.

ARTICLE VII

DATA ACCESS

Section 7.1 Access to Data and Meters. Throughout the Term, and thereafter to the extent relevant to calculations necessary for periods prior to the end of the Term and subject to any confidentiality obligation owed to any third party, any limitations under Legal Requirements as determined by Buyer in its reasonable discretion, and/or any restrictions on the disclosure of information which may be subject to intellectual property rights restricting disclosure, at the sole cost of Seller:

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(a) Buyer shall grant Seller access to all data relating to the electricity production of each Facility, it being understood that it is Seller’s responsibility to determine the performance of the Facility, and any other calculations as required under this Agreement, and that it is Buyer’s responsibility to handle all accounting and invoicing activities;

(b) Buyer shall allow Seller access to all data from all Facility Meters; and

(c) Seller shall be entitled to use the foregoing data for its internal business purposes and make such data available to third parties for analysis, in all cases unless and to the extent such uses of or disclosures by Seller are restricted under the applicable PPA or Legal Requirements, including those related to privacy.

ARTICLE VIII

REPRESENTATIONS AND WARRANTIES OF SELLER

Section 8.1 Representations and Warranties of Seller. Seller represents and warrants to Buyer as of the Original PUMA Agreement Date and as of each Purchase Date as follows:

(a) Incorporation; Qualification. Seller is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware and has all requisite corporate power and authority to own, lease, and operate its business as currently conducted. Seller is duly qualified to do business as a foreign corporation and is in good standing under the laws of each jurisdiction that its business, as currently being conducted, shall require it to be so qualified, except where the failure to be so qualified would not have a material adverse effect on the Bloom Systems being sold under this Agreement.

(b) Authority. Seller has full corporate power and authority to execute and deliver the Transaction Documents to which it is a party and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Seller of the Transaction Documents to which it is a party and the consummation by Seller of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action required on the part of Seller and the Transaction Documents to which Seller is a party have been duly and validly executed and delivered by Seller. Each of the Transaction Documents to which Seller is a party constitutes the legal, valid and binding agreement of Seller, enforceable against Seller in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).

(c) Consents and Approvals; No Violation. Neither the execution, delivery and performance of the Transaction Documents to which Seller is a party nor the consummation by Seller of the transactions contemplated hereby and thereby will (i) conflict with or result in any breach of any provision of the certificate of incorporation or bylaws of Seller, (ii) with or without the giving of notice or lapse of time or both, conflict with, result in any violation or breach of, constitute a default under, result in any right to accelerate, result in the creation of any Lien on Seller’s assets, or create any right of termination under the conditions or provisions of any note, bond, mortgage, indenture, material agreement or other instrument or obligation to which Seller is

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a party or by which it, or any material part of its assets may be bound, in each case that would individually or in the aggregate result in a material adverse effect on Seller or its ability to perform its obligations hereunder or (iii) constitute violations of any law, regulation, order, judgment or decree applicable to Seller, which violations, individually or in the aggregate, would result in a material adverse effect on Seller or its ability to perform its obligations hereunder.

(d) Legal Proceedings. There are no pending or, to Seller’s Knowledge, threatened claims, disputes, governmental investigations, suits, actions (including non- judicial real or personal property foreclosure actions), arbitrations, legal, administrative or other proceedings of any nature, domestic or foreign, criminal or civil, at law or in equity, by or against Seller that challenge the enforceability of the Transaction Documents to which Seller is a party or the ability of Seller to consummate the transactions contemplated hereby or thereby, in each case, that could reasonably be expected to result in a material adverse effect on Seller or its ability to perform its obligations hereunder.

(e) U.S. Person. Seller is not a “foreign person” within the meaning of Section 1445(b)(2) of the Code and has provided a Certificate of Non-Foreign Status in the form and substance required by Section 1445 of the Code and the regulations thereunder.

(f) Purchase Price of Facility. The Purchase Price paid for each Facility is an amount that is equal to the Fair Market Value of each Facility, as determined on an arms-length basis.

(g) Title; Liens. As of each date title is required to pass to Buyer hereunder with respect to any assets comprising a Facility, Seller has and will convey good and marketable title to such assets to be sold to Buyer on such date and all such assets are free and clear of all Liens other than Permitted Liens. Neither Seller nor any of its subcontractors have placed any Liens on the Sites or the Facilities other than Permitted Liens. To the extent that Seller has actual knowledge that any of its subcontractors has placed any Lien on a Facility or Site, then Seller shall cause such Liens to be discharged, or shall provide a bond in an amount and from a surety acceptable to Buyer to protect against such Lien, in each case, within thirty (30) days after Seller is aware of the existence thereof. Seller shall indemnify Buyer against any such lien claim, provided that if the applicable Site License requires additional or more stringent action, Seller shall also indemnify Buyer for the costs and expenses of such actions.

(h) Intellectual Property. To Seller’s Knowledge, no Bloom System and no other product or service marketed or sold (or proposed to be marketed or sold) by Seller hereunder violates or will violate any license or infringes or will infringe any intellectual property rights of any other Person; provided, however, that, except with respect to parts and components supplied by Seller or any of its Affiliates to the Battery Solution Manufacturer that are used to manufacture any Battery Solution, Seller makes no representations or warranties under this Section 8.1(h) regarding the Battery Solution. Seller has received no written communications alleging that such Seller has violated, or by conducting its business, would violate any of the patents, trademarks, service marks, tradenames, copyrights, trade secrets, mask works or other proprietary rights or processes of any other Person.

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(i) Consents and Approvals. Seller has received all material third party consents which are required as of such date for the consummation and performance of the transactions contemplated hereunder.

(j) Real Property. The real property referred to in each PPA and each Site License is all the real property that is necessary for the construction, installation, operation and maintenance of the Facilities other than those real property interests that can be reasonably expected to be available on commercially reasonable terms as and to the extent required. Each Site has been licensed to Project Company pursuant to the terms of the applicable Site License. For clarity, no Site has been leased to Project Company.

(k) Tax Representations.

(i) Each Facility is a fuel cell power plant that has a Nameplate Capacity of at least 0.5 kilowatts of electricity using an electrochemical process and has an electricity-only generation efficiency greater than 30 percent. Each Facility will function independently of each other Facility in the Portfolio to generate electricity for transmission and sale to a PPA Customer and is an integrated system comprised of a fuel cell stack assembly and associated balance of plant components that has all the necessary components to convert a fuel into electricity using electrochemical means.

(ii) As of Purchase Date for each Facility, no federal, state, or local Tax credit (including the ITC) has been claimed with respect to any property that is part of such Facility.

(iii) No application has been submitted for a grant provided under Section 1603 of the American Recovery and Reinvestment Tax Act of 2009, as amended by the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010, with respect to any property that is part of any Facility.

(iv) No private letter ruling has been obtained for the transactions contemplated hereunder from the IRS.

(v) As of the Purchase Date of each Facility, such Facility was not originally Placed in Service and, specifically, clauses (3) and (4) of the definition of the term “Placed in Service” have not been met with respect to such Facility.

(vi) No Facility is comprised of any property that (A) is “used predominately outside of the United States” within the meaning of Code Section 168(g), (B) is imported property of the kind described in Code Section 168(g)(6), (C) is “tax-exempt use property” within the meaning of Code Section 168(h), or (D) is property described in Code Section 50(b).

(vii) Other than de minimis property, material or parts, each Facility consists of property, materials or parts not used by any Person prior to having been first placed in a state of readiness and availability for their specific design function as part of the Facility.

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(viii) No portion of the basis of the Facility is attributable to “qualified rehabilitation expenditures” within the meaning of Section 47(c)(2)(A) of the Code.

(ix) No grants (for purposes of this paragraph, “grants” shall not include any credits, benefits, emissions reductions, offsets or allowances, howsoever entitled, attributable to the generation from the Facilities, and its respective avoided emission of pollutants) have been provided by the United States, a state, a political subdivision of a state, or any other Governmental Authority for use in constructing or financing any Facility or with respect to which Seller is the beneficiary. No proceeds of any issue of state or local government obligations have been used to provide financing for any Facility the interest on which is exempt from tax under Code Section 103. No subsidized energy financing (within the meaning of Code Section 45(b)(3)) has been provided, directly or indirectly, under a federal, state, or local program provided in connection with any Facility.

(x) Seller is not related to any PPA Customer within the meaning of Code Section 267 or Code Section 707.

(l) Bankruptcy. No event of Bankruptcy has occurred with respect to Seller.

(m) Bloom System Performance. Assuming that Seller maintains each of the Facilities consistent with the Preventative Maintenance Schedule, Seller is not aware of any circumstances which could reasonably be expected to prevent the Portfolio from complying with the Warranty Specifications and the PPA Warranties for the Warranty Period.

(n) Material Adverse Effect.

(i) As of the Original PUMA Agreement Date, no Material Adverse Effect has occurred with respect to Seller or, to the Knowledge of Seller, any PPA Customer.

(ii) As of each Purchase Date, no Material Adverse Effect has occurred between the Original PUMA Agreement Date and the applicable Purchase Date (A) with respect to Seller or, (B) to the Knowledge of Seller, with respect to the applicable PPA Customer(s) relating to any of the Facilities purchased and sold on such date.

(o) Governmental Approvals. Seller, as applicable on behalf of Buyer, has obtained all Governmental Approvals required as of Delivery Date to construct any Facility in compliance with Applicable Law. Seller will assist Buyer in applying for a grant of market-based rate authority from FERC sufficient to operate each Facility with an effective date prior to any Facility being Placed in Service. As of each of the dates each Facility is Placed in Service and achieves Commencement of Operations, Seller, as applicable on behalf of Buyer, has obtained all Governmental Approvals required for such operation of such Facility and each of the Governmental Approvals obtained as of such date is validly issued, final and in full force and effect and is not subject to any current legal proceeding or to any unsatisfied condition. On each of such dates, Seller, as applicable on behalf of Buyer, is in compliance in all material respects with all applicable Governmental Approvals and has not received any notice from a Governmental Authority of an actual or potential violation of any such Governmental Approval.

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(p) Compliance. Seller has performed in all respects all obligations, and complied in all material respects with the agreements and covenants, required to be performed by or complied with by Seller hereunder; provided that, for clarity, Seller has complied, and will comply, in all respects with the obligations set forth in Section 7.1(h)(i) of the Equinix PPA in its capacity as “Bloom” thereunder and as if Seller were a “Party” thereto.

(q) No Breaches. As of the Original PUMA Agreement Date, each PPA is a legal, valid, binding and enforceable obligation of Buyer and, to Seller’s Knowledge, of each other party thereto, and each PPA is in full force and effect. To Seller’s Knowledge, neither Buyer nor any other Person party thereto is in material breach or violation of any PPA, and no event has occurred, is pending or is threatened, which, after the giving of notice, with lapse of time, or otherwise, would constitute any such breach or default by Buyer or any other party thereto.

(r) Insurance. Seller has obtained the insurance described in Annex B with respect to each Facility in the Portfolio and with respect to each other Facility not yet in the Portfolio for which Buyer has paid any portion of the applicable Purchase Price, all such policies remain in full force and effect, and all insurance premiums that are due and payable have been paid in full with no premium overdue.

(s) Data Privacy. Seller has used all data that Seller has collected regarding a PPA Customer’s electricity consumption at such Site consistent with and subject to Applicable Law with respect to privacy.

ARTICLE IX

REPRESENTATIONS AND WARRANTIES OF BUYER

Section 9.1 Representations and Warranties of Buyer. Buyer represents and warrants to Seller as of the Original PUMA Agreement Date and as of each Purchase Date, as follows.

(a) Organization. Buyer is a limited liability company duly formed, validly existing and in good standing under the laws of the State of Delaware and has all requisite limited liability company power and authority to own, lease, and operate its business as currently conducted.

(b) Authority. Buyer has full limited liability company power and authority to execute and deliver the Transaction Documents to which it is a party and to consummate the transactions contemplated hereby and thereby. The execution and delivery by Buyer of the Transaction Documents to which it is a party and the consummation by Buyer of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action required on the part of Buyer and the Transaction Documents to which Buyer is a party have been duly and validly executed and delivered by Buyer. Each of the Transaction Documents to which Buyer is a party constitutes the legal, valid and binding agreement of Buyer, enforceable against Buyer in accordance with its terms, except as enforcement may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ rights generally and by general principles of equity (regardless of whether considered in a proceeding in equity or at law).

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(c) Consents and Approvals; No Violation. Neither the execution, delivery and performance of the Transaction Documents to which Buyer is a party nor the consummation by Buyer of the transactions contemplated hereby and thereby will (i) conflict with or result in any breach of any provision of the articles of formation of Buyer nor Buyer’s limited liability company agreement, (ii) with or without the giving of notice or lapse of time or both, conflict with, result in any violation or breach of, constitute a default under, result in any right to accelerate, result in the creation of any Lien on Buyer’s assets, or create any right of termination under the conditions or provisions of any note, bond, mortgage, indenture, material agreement or other instrument or obligation to which Buyer is a party or by which it, or any material part of its assets may be bound, in each case that would individually or in the aggregate result in a material adverse effect on Buyer or its ability to perform its obligations hereunder or (iii) constitute violations of any law, regulation, order, judgment or decree applicable to Buyer, which violations, individually or in the aggregate, would result in a material adverse effect on Buyer or its ability to perform its obligations hereunder.

(d) Legal Proceedings. There are no pending or, to Buyer’s Knowledge, threatened claims, disputes, governmental investigations, suits, actions (including non- judicial real or personal property foreclosure actions), arbitrations, legal, administrative or other proceedings of any nature, domestic or foreign, criminal or civil, at law or in equity, by or against Buyer that challenge the enforceability of the Transaction Documents to which Buyer is a party or the ability of Buyer to consummate the transactions contemplated hereby or thereby, in each case, that could reasonably be expected to result in a material adverse effect on Buyer or its ability to perform its obligations hereunder.

(e) Consents and Approvals. Buyer has received all material third party consents which are required as of such date for the consummation and performance of the transactions contemplated hereunder.

(f) Bankruptcy. No event of Bankruptcy has occurred with respect to Buyer.

(g) No Other Representations. Buyer is not relying on any representations or warranties whatsoever, express, implied, at common law, statutory or otherwise, except for the representations or warranties expressly set out in the Transaction Documents and the MIPA.

ARTICLE X

CONFIDENTIALITY

Section 10.1 Confidential Information. Subject to the other terms of this ARTICLE X each Party shall, and shall cause its Affiliates and its respective stockholders, members, subsidiaries and Representatives to, hold confidential the terms of this Agreement and all information it has obtained or obtains from the other Party in connection with this Agreement concerning Seller and Buyer and their respective assets, business, operations or prospects (the “Confidential Information”), including all materials and information furnished by Seller in performance of this Agreement, regardless of form conveyed or whether financial or technical in nature, including any trade secrets and proprietary know how and Software whether such information bears a marking indicating that they are proprietary or confidential or not; provided, however, that Confidential Information shall not include (a) the fact that the Parties have entered into this Agreement, (b) the nature of the transactions contemplated by this Agreement or (c) the

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Buyer’s capital expenditures or financing plans related to the transactions contemplated by this Agreement, or (d) information that (x) is or becomes generally available to the public other than as a result of any fault, act or omission by a Party or any of its Representatives, (y) is or becomes available to a Party or any of its Representatives on a non-confidential basis from a source other than the other Party or its Representatives, provided that such source was not and is not bound by any contractual, legal or fiduciary obligation of confidentiality with respect to such information or

(z) was or is independently developed or conceived by a Party or its Representatives without use of or reliance upon the Confidential Information of the other Party, as evidenced by sufficient written record.

Section 10.2 Restricted Access.

(a) Buyer agrees that the Bloom Systems themselves contain Seller’s valuable trade secrets. Buyer agrees (i) to restrict the use of such information to matters relating to the Facilities, and such other purposes, if any, expressly provided herein, and (ii) to restrict access to such information as provided in Section 10.3(b).

(b) Seller’s Confidential Information will not be reproduced without Seller’s prior written consent, and following termination of this Agreement all copies of such written information will be returned to Seller upon written request (not to be made while materials are still of use to the operation of a Facility and no Buyer Default has occurred and is continuing) or shall be certified by Buyer as having been destroyed, unless otherwise agreed by the Parties. Buyer’s Confidential Information will not be reproduced by Seller without Buyer’s prior written consent, and following termination of this Agreement all copies of such written information will be returned to Buyer upon written request or shall be certified by Seller as having been destroyed. Notwithstanding the foregoing, each Party and its Representatives may each retain archival copies of any Confidential Information to the extent required by law, regulation or professional standards or copies of Confidential Information created pursuant to the automatic backing-up of electronic files where the delivery or destruction of such files would cause undue hardship to the receiving Party, so long as any such archival or electronic file back-up copies are accessible only to legal or information technology personnel, provided that such Confidential Information will continue to be subject to the terms of this Agreement.

(c) Subject to ARTICLE XI and Section 10.2(a) and (b) hereof, the Facilities are offered for sale and are sold by Seller subject to the condition that such sale does not convey any license, expressly or by implication, to manufacture, reverse engineer, duplicate or otherwise copy or reproduce any part of the Facilities, documentation or Software without Seller’s express advance written permission. Subject to ARTICLE XI hereof, Buyer agrees not to remove the covering of any Bloom System, not to access the interior or to reverse engineer, or cause or knowingly allow any third party to open, access the interior or reverse engineer any Facility or Software provided by Seller. Subject to ARTICLE XI hereof, and anything contemplated pursuant to this Agreement, only Seller or its authorized representatives may open or access the interior of a Facility. Notwithstanding the foregoing or anything else herein to the contrary, and without limitation of the rights set forth in ARTICLE XI hereof, if any Facility is no longer covered by this Agreement or another agreement between Buyer and Seller (or any Affiliate of Seller) regarding the operation and maintenance of such Facility as a result of the termination of this Agreement with respect to such Facility (A) in connection with a Seller Default or (B) in connection with the

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expiration of the Extended Warranty Period, Buyer shall be entitled to maintain, or cause a third party to maintain, such Facility, including replacing Components as needed or desired; provided that:

(i) No less than thirty (30) calendar days prior to the event of such termination pursuant to subsection (B) above, to the extent Buyer requires any maintenance services for such Facility following such termination, Buyer shall notify Seller of such requirements in writing. If Seller desires to perform such maintenance services, conditions (including, without limitation, the scope of services offered, the price(s) quoted for such services, and the terms of any performance warranties to be provided in connection with such services) pursuant to which it is willing to provide such maintenance services for such Facility, which shall be no less favorable to Buyer than Seller’s standard rates, terms and warranties as of such date. If Buyer declines to engage Seller to perform such services, or the Parties are unable to execute appropriate documentation to reflect such services, Buyer may (subject to clause (ii), below) seek to engage a third party to perform such services, provided, that prior to engaging any such third party to maintain a Facility, Buyer shall provide written notice to Seller of the material terms and conditions on which such third party has offered to provide such service (including, without limitation, (X) the scope of services offered, (Y) the price(s) quoted for such services, and (Z) the terms of any performance warranties to be provided in connection with such services). Seller shall have ten Business Days to notify Buyer if Seller will agree to perform the applicable services for a price not to exceed the quoted amount and otherwise on terms no less favorable to Buyer than those included in the notice required hereunder. If Seller agrees to provide such services, the Parties will negotiate in good faith regarding appropriate documentation to reflect such services. If Seller declines to provide such services, Buyer may engage the applicable third party on terms no more favorable to such third party than those provided in the notice to Seller.

(ii) Without in any way limiting the provisions of the foregoing clause (i), Buyer shall in all events use commercially reasonable efforts to engage a third party to provide such maintenance that is not a competitor of Seller or its Affiliates and is not in litigation or other material dispute with Seller.

Section 10.3 Permitted Disclosures.

(a) Legally Compelled Disclosure. Confidential Information may be disclosed (i) as required or requested to be disclosed by a Party or any of its Affiliates or their respective stockholders, members, subsidiaries or Representatives as a result of any applicable Legal Requirement or rule or regulation of any stock exchange, the Financial Industry Regulatory Authority, Inc. or other regulatory authority or self- regulatory authority having jurisdiction over such Party, (ii) as required or requested by the IRS, the Department of Justice or the Office of the Inspector General in connection with a Facility, cash grant, or tax credits relating thereto, including in connection with a request for any private letter ruling, any determination letter or any audit or (iii) as required under any Interconnection Agreement. If a Party becomes compelled by legal or administrative process to disclose any Confidential Information, such Party shall, to the extent permitted by Legal Requirements, provide the other Party with prompt notice so that the other Party may seek a protective order or other appropriate remedy or waive compliance with the non- disclosure provisions of this Section 10.3 with respect to the information required to be disclosed.

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If such protective order or other remedy is not obtained, or such other Party waives compliance with the non-disclosure provisions of this Section 10.3 with respect to the information required to be disclosed, the first Party shall furnish only that portion of such information that it is advised by counsel is legally required to be furnished and shall exercise reasonable efforts, at the expense of the Party whose Confidential Information is being disclosed, to obtain reliable assurance that confidential treatment will be accorded such information, including, in the case of disclosures to the IRS described in clause (ii) above, to obtain reliable assurance that, to the maximum extent permitted by applicable Legal Requirements, such information will not be made available for public inspection pursuant to Section 6110 of the Code.

(b) Disclosure to Representatives. Notwithstanding the foregoing, and subject always to the restrictions in Section 10.2, a Party may disclose Confidential Information received by it to its and its Affiliates’ actual or potential investors or financing parties and its and their employees, consultants, legal counsel or agents who have a need to know such information; provided that such Party informs each such Person who has access to the Confidential Information of the confidential nature of such Confidential Information, the terms of this Agreement, and that such terms apply to them. The Parties shall use commercially reasonable efforts to ensure that each such Person complies with the terms of this Agreement and that any Confidential Information received by such Person is kept confidential.

(c) Securities Filings. A Party may file this Agreement as an exhibit to any relevant filing with the Securities Exchange Commission (or equivalent foreign agency) in accordance with Legal Requirements only after complying with the procedure set forth in this Section 10.3(c). In such event, the Party seeking such disclosure shall prepare a draft confidential treatment request and proposed redacted version of this Agreement to request confidential treatment for this Agreement, and the other Party agrees to promptly (and in any event, no less than fourteen (14) days after receipt of such confidential treatment request and proposed redactions) give its input in a reasonable manner in order to allow the Party seeking disclosure to file its request within the time lines prescribed by Legal Requirements. The Party seeking such disclosure shall exercise commercially reasonable efforts to obtain confidential treatment of the Agreement from the Securities Exchange Commission (or equivalent foreign agency) as represented by the redacted version reviewed by the other Party. Each Party shall bear its own costs in connection with such efforts.

(d) Other Permitted Disclosures. Nothing herein shall be construed as prohibiting a Party hereunder from using such Confidential Information in connection with (i) any claim against the other Party, (ii) any exercise by a Party hereunder of any of its rights hereunder, a financing or proposed financing by Seller or Buyer or their respective Affiliates, (iv) a disposition or proposed disposition by any direct or indirect Affiliate of Buyer of all or a portion of such Person’s equity interests in Buyer, (v) a disposition or proposed disposition by Buyer of any Bloom System or Facility, or (vi) any disclosure required to be made to a PPA Customer (or otherwise) under a PPA or a Site License, provided that, in the case of items (iii), (iv) and (v), the potential financing party or purchaser has entered into a confidentiality agreement with respect to Confidential Information on customary terms used in confidentiality agreements in connection with corporate financings or acquisitions before any such information may be disclosed and a copy of such confidentiality agreement has been provided to the non-disclosing party for informational purposes, which copy of such confidentiality agreement may contain redactions of confidential

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information relating to the potential financing or purchaser. No disclosures of Confidential Information shall be made by Buyer in exercise of its rights under this Section 10.3(d) until Seller has first had the opportunity to exercise its right to take or purchase the Bloom System in question, if applicable.

ARTICLE XI

LICENSE AND OWNERSHIP; SOFTWARE

Section 11.1 IP License to Use. Subject to Section 11.2, Seller grants to Buyer a limited (as described herein), non-exclusive, royalty-free, irrevocable (except as described in ARTICLE XII hereof), non-transferable (except as described herein) license to use the Intellectual Property, including Seller’s proprietary Software, contained in the Documentation, the Components and the Facilities purchased hereunder (collectively, “Seller’s Intellectual Property”) in conjunction with the purchase, use, operation, maintenance, repair and, subject to Section 3.6(b), sale of the Bloom Systems and in conjunction with each Facility in accordance with the terms hereof and each PPA and Interconnection Agreement (the “IP License”); provided, that (a) such license may be transferred or sub-licensed upon a transfer of a Bloom System to any Person who acquires such Bloom System, subject to Buyer’s compliance with Section 3.6(b), (b) such license may be transferred or sub-licensed by Buyer to any third party Buyer is entitled to engage to maintain any Facility pursuant to Section 10.2(c), (c) such license may be transferred by Buyer to any successor or assign of Buyer permitted pursuant to Section 14.4, and (d) in the event of a voluntary or involuntary Bankruptcy of Buyer, Seller hereby expressly consents to the assumption and assignment of the IP License by Buyer as necessary to allow Buyer’s continued use of each Bloom System and/or Facility in accordance with the terms hereof and, as applicable, each PPA and Interconnection Agreement. Seller shall retain all right, title and ownership of any and all Intellectual Property licensed by Seller hereunder. No right, title or interest in any such Intellectual Property is granted, transferred or otherwise conveyed to Buyer under this Agreement except as otherwise expressly set forth herein. Buyer shall not, except as otherwise provided herein, modify, network, rent, lease, loan, sell, distribute or create derivative works based upon Seller’s Intellectual Property in whole or part, or cause or knowingly allow any third party to do so.

Section 11.2 Grant of Third Party Software License.

(a) Seller grants to Buyer a limited (as described herein), non-exclusive, royalty-free, irrevocable (except as described in ARTICLE XII hereof), non- transferable (except as described herein) license to use the third party Software (the “Software License”); provided, that (i) such license may be transferred or sub-licensed upon a transfer of a Bloom System to any Person who acquires such Bloom System, (ii) such license may be transferred or sub-licensed by Buyer to any third party Buyer is entitled to engage to maintain any Facility pursuant to Section 10.2(c), and (iii) such license may be transferred by Buyer to any successor or assign of Buyer permitted pursuant to Section 14.4. No right, title or interest in any Software provided to Buyer (including all copyrights, patents, trade secrets or other intellectual or intangible property rights of any kind contained therein) is granted, transferred, or otherwise conveyed to Buyer under this Agreement except as expressly set forth herein. Buyer agrees not to reverse engineer or decompile the Software or otherwise use the Software for any purpose other than in connection with the use of the Facilities. Further, Buyer shall not modify, network, rent, lease, loan, sell, distribute or create derivative works based upon the Software in whole or part, or cause or knowingly allow any third party to do so.

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(b) All data collected on the Facilities by Seller using the Software and data collected on the Facilities using Seller’s internal proprietary Software are the sole property of Seller to be used by Seller in accordance with Legal Requirements, and Seller hereby grants to Buyer a limited, non-exclusive, irrevocable (except as set forth in ARTICLE XII hereof), royalty- free license to use the data collected on the Facilities using such Software or Seller’s internal proprietary software only for purposes of using such Facilities and administering the Transaction Documents or as required pursuant to the terms of any PPA, Site License or Interconnection Agreement, provided the provisions of ARTICLE X on confidentiality are maintained.

Section 11.3 Effect on Licenses. All rights and licenses granted under or pursuant to this Agreement by Seller are, and shall otherwise be deemed to be, for purposes of Section 365(n) of the U.S. Bankruptcy Code and of any similar provisions of applicable laws under any other jurisdiction (collectively, the “Bankruptcy Laws”), licenses of rights to “intellectual property” as defined under the Bankruptcy Laws. If a case is commenced by or against Seller under the Bankruptcy Laws (excluding a reorganization proceeding under Chapter 11 of the U.S. Bankruptcy Code if Seller is continuing to perform all of its obligations under this Agreement), Seller (in any capacity, including debtor-in-possession) and its successors and assigns (including a trustee under the Bankruptcy Laws) shall, as Buyer may elect in a written request, immediately upon such request:

(a) perform all of the obligations provided in this Agreement to be performed by Seller including, where applicable, providing to Buyer portions of such intellectual property (including embodiments thereof) held by Seller and such successors and assigns or otherwise available to them and to which Buyer is entitled to have access under this Agreement; and

(b) not interfere with the rights of Buyer under this Agreement, or the Transaction Documents, to such intellectual property (including such embodiments), including any right to obtain such intellectual property (or such embodiments) from another entity, to the extent provided in the Bankruptcy Laws.

Section 11.4 No Software Warranty. Buyer acknowledges and agrees that the use of the Software is at Buyer’s sole risk. The Software and related documentation are provided “AS IS” and without any warranty of any kind and Seller EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

Section 11.5 IP Related Covenants. If Seller grants, bargains, sells, conveys, mortgages, assigns, pledges, warrants or transfers any Intellectual Property or Software that is required (a) for Seller or its Affiliates to perform their respective obligations under the Transaction Documents or (b) for the continued maintenance and operation of the Facilities without a material decrease in performance of the Facilities, Seller shall cause such act or transaction to be subject to the grant of the IP License and Software License under this Agreement.

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Section 11.6 Representations and Warranties. Seller represents and warrants to Buyer as of the Original PUMA Agreement Date and as of each Purchase Date as follows with respect to all Intellectual Property that is required (i) for Seller or its Affiliates to perform their respective obligations under the Transaction Documents, and (ii) for the continued operation of the Facilities in accordance with the Transaction Documents, the PPAs and the Interconnection Agreements without a material decrease in performance of the Facilities:

(a) Seller owns or has the right to use and to authorize Buyer to use all such Intellectual Property and Software; and

(b) Seller and its Affiliates are not infringing on any Intellectual Property of any third party with respect to the actions described in subsection (i) and (ii) of Section 11.6 and the Facilities do not infringe on any Intellectual Property of any third party.

Notwithstanding the foregoing, Seller makes no representations or warranties regarding any Intellectual Property rights relating to the Battery Solution other than in respect of the parts or components supplied by Seller or any of its Affiliates to the Battery Solution Manufacturer that are used to manufacture the Battery Solution.

ARTICLE XII

EVENTS OF DEFAULT AND TERMINATION

Section 12.1 Seller Default. The occurrence at any time of any of the following events shall constitute a “Seller Default”:

(a) Failure to Pay. The failure of Seller to pay any undisputed amounts owing to Buyer on or before the day following the date on which such amounts are due and payable under the terms of this Agreement and Seller’s failure to cure each such failure within ten (10) Business Days after Seller receives written notice from Buyer of each such failure;

(b) Failure to Perform Other Obligations. Unless due to a Force Majeure Event, the failure of Seller to perform or cause to be performed any other material obligation required to be performed by Seller under this Agreement, or the failure of any representation and warranty set forth herein to be true and correct as and when made; provided, however, that if such failure by its nature can be cured, then Seller shall have a period of thirty (30) days after receipt of written notice of such failure to cure the same and a Seller Default shall not be deemed to exist during such period; provided, further, that if Seller commences to cure such failure during such period and is diligently and in good faith attempting to effect such cure, said period shall be extended for sixty (60) additional days; notwithstanding the foregoing, the cure period set forth above will in no event exceed (and will be deemed modified as necessary to match) the cure period applicable to any particular failure or breach pursuant to a PPA.

(c) Termination Related to Equinix PPA. The termination of (i) this Agreement with respect to any Facilities under the Equinix PPA pursuant to Section 12.7(b) or (ii) the Equinix PPA, in each case relating to, resulting from or arising out of or in connection with any act or omission by Seller, Seller Affiliate, the Service Provider or a Seller or Seller Affiliate agent, representative or subcontractor at any tier that results in a breach of Section 7.1(h)(i) of the Equinix PPA.

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(d) Failure to Remedy Injunction. The failure of Seller to remedy any injunction that prohibits Buyer’s use of any Facility as contemplated by Section 13.1 within sixty (60) days of Seller’s receipt of written notice of Buyer being enjoined therefrom; or

(e) Bankruptcy. If Seller (i) admits in writing its inability to pay its debts generally as they become due; (ii) files a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other Legal Requirements of the United States of America or any State, district or territory thereof; (iii) makes an assignment for the benefit of creditors; (iv) consents to the appointment of a receiver of the whole or any substantial part of its assets; (v) has a petition in bankruptcy filed against it, and such petition is not dismissed within sixty (60) days after the filing thereof; or if (vi) a court of competent jurisdiction enters an order, judgment, or decree appointing a receiver of the whole or any substantial part of Seller’s assets, and such order, judgment or decree is not vacated or set aside or stayed within sixty (60) days from the date of entry thereof; or (vii) under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the whole or any substantial part of Seller’s assets and such custody or control is not terminated or stayed within sixty (60) days from the date of assumption of such custody or control.

Section 12.2 Buyer Default. The occurrence at any time of the following events with respect to Buyer shall constitute a “Buyer Default”:

(a) Failure to Pay. The failure of Buyer to pay any undisputed amounts owing to Seller on or before the day following the date on which such amounts are due and payable under the terms of this Agreement and Buyer’s failure to cure each such failure within ten (10) Business Days after Buyer receives written notice of each such failure; or

(b) Failure to Perform Other Obligations. Unless due to a Force Majeure Event, the failure of Buyer to perform or cause to be performed any material obligation required to be performed by Buyer under this Agreement or the failure of any representation and warranty set forth herein to be true and correct as and when made; provided, however, that if such failure by its nature can be cured, then Buyer shall have a period of thirty (30) days after receipt of written notice of such failure to cure the same and a Buyer Default shall not be deemed to exist during such period; provided, further, that if Buyer commences to cure such failure during such period and is diligently and in good faith attempting to effect such cure, said period shall be extended for sixty (60) additional days.

(c) Bankruptcy. If Buyer (i) admits in writing its inability to pay its debts generally as they become due; (ii) files a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other Legal Requirements of the United States of America or any State, district or territory thereof; (iii) makes an assignment for the benefit of creditors; (iv) consents to the appointment of a receiver of the whole or any substantial part of its assets; (v) has a petition in bankruptcy filed against it, and such petition is not dismissed within sixty (60) days after the filing thereof; or if (vi) a court of competent jurisdiction enters an order, judgment, or decree appointing a receiver of the whole or any substantial part of Buyer’s assets, and such order, judgment or decree is not vacated or set aside or stayed within sixty (60) days from the date of entry thereof; or (vii) under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the whole or any substantial part of Buyer’s assets and such custody or control is not terminated or stayed within sixty (60) days from the date of assumption of such custody or control.

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Section 12.3 Buyer’s Remedies Upon Occurrence of a Seller Default. If a Seller Default has occurred under Section 12.1(e), Buyer may terminate this Agreement by written notice, and assert all rights and remedies available to Buyer under Legal Requirements subject to the limitations of liability set forth in Section 13.5. If a Seller Default has occurred under Section 12.1(c), Buyer may, (a) at its option, (1) terminate this Agreement by written notice, and assert all rights and remedies available to Buyer under Legal Requirements subject to the limitations of liability set forth in Section 13.5, or (2) terminate this Agreement with respect to any or all of the Facilities installed pursuant to the Equinix PPA and assert all rights and remedies available to Buyer under Legal Requirements subject to the limitations of liability set forth in Section 13.5, and (b) require Seller, at Buyer’s option, to repurchase pursuant to Section 12.7(c) the relevant Facilities in respect of which this Agreement is being terminated. If a Seller Default has occurred under Section 12.1(a), Section 12.1(b) or Section 12.1(d), Buyer may terminate this Agreement only with respect to those Facilities for which such Seller Default has occurred by written notice, and (i) assert all rights and remedies available to Buyer under Legal Requirements subject to the limitations of liability set forth in Section 13.5, or (ii) require Seller and, if so required, Seller shall repurchase the relevant Facility in respect of which this Agreement is being terminated from Buyer on an AS IS basis by paying the Refund Value of any such Facility, calculated as of the date of such refund, in which case Seller shall take title to such Facility upon paying the Refund Value, and such Facility shall no longer constitute a portion of the Portfolio; provided, however, that if a Seller Default has occurred under Section 12.1(a) or Section 12.1(b) and remains uncured with respect to ten (10) or more Facilities, then Buyer may terminate this Agreement by written notice with respect to all Facilities. If a Facility will be removed pursuant to this Section 12.3, Seller shall at its sole cost and expense remove the Facility and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable PPA or Site License) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections and properly sealing any Site penetrations in the manner required by all Legal Requirements and the applicable PPA or Site License.

Section 12.4 Seller’s Remedies Upon Occurrence of a Buyer Default. If a Buyer Default has occurred under Section 12.2(c), Seller may terminate this Agreement by written notice, and assert all rights and remedies available to Seller under Legal Requirements subject to the limitations of liability set forth in Section 13.5. If a Buyer Default has occurred Seller may terminate this Agreement only with respect to those Facilities for which a Buyer Default has occurred and remains uncured; provided that if such Buyer Default is a Buyer Default under Section 12.2(a) and has occurred and remains uncured with respect to ten (10) or more Facilities, then Seller may terminate this Agreement with respect to all Facilities not yet paid in full by Buyer by written notice, and assert all rights and remedies available to Seller under Legal Requirements with respect to those Facilities for which a Buyer Default has occurred, subject to the limitations of liability set forth in Section 13.5, including without limitation retaining any prior payments with respect to such Facilities and selling such Facilities to another buyer.

Section 12.5 Preservation of Rights. Termination of this Agreement shall not affect any rights or obligations as between the Parties which may have accrued prior to such termination or

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which expressly or by implication are intended to survive termination whether resulting from the event giving rise to termination or otherwise, including, without limitation, ARTICLE X, ARTICLE XI, and ARTICLE XIII.

Section 12.6 Force Majeure. If either Party is rendered wholly or partially unable to perform any of its obligations under this Agreement by reason of a Force Majeure Event, that Party (the “Claiming Party”) will be excused from whatever performance is affected by the Force Majeure Event to the extent so affected; provided, however, that (a) the Claiming Party, within a reasonable time after the occurrence of such Force Majeure Event gives the other Party notice describing the particulars of the occurrence; (b) the suspension of performance shall be of no greater scope and of no longer duration than is reasonably required by the Force Majeure Event; (c) no liability of either Party for an event that arose before the occurrence of the Force Majeure Event shall be excused as a result of the Force Majeure Event; (d) the Claiming Party shall exercise commercially reasonable efforts to correct or cure the event or condition excusing performance and resume performance of all its obligations; and (e) when the Claiming Party is able to resume performance of its obligations under this Agreement, the Claiming Party shall promptly give the other Party notice to that effect and shall promptly resume performance.

Section 12.7 Termination of Facilities Subject to PPAs.

(a) In the event that a PPA is terminated with respect to a Facility, this Agreement shall be deemed terminated with respect to that Facility and Buyer shall owe Seller no further Services Fees in respect of such Facility for any period from and after the date of termination. For clarity, nothing in this Section 12.7(a) shall limit in any manner any other remedies that may be available to Buyer under this Agreement.

(b) In the event of a Compliance Law Violation (as defined in the Equinix PPA), the Parties will cooperate in good faith to cure such Compliance Law Violation in accordance with the terms of Section 7.1(h)(i) of the Equinix PPA including, without limitation, by ensuring that any individual(s), Seller Affiliate, Service Provider and/or Seller or Seller Affiliate agent, representative or subcontractor at any tier directly involved in the Compliance Law Violation are no longer in any way performing under the Equinix PPA. In the event that, notwithstanding such efforts, such Compliance Law Violation either (i) can only be cured by the termination of Seller’s performance in connection with the Equinix PPA, or (ii) results in the termination of the Equinix PPA, then, in either case, Buyer may terminate this Agreement with respect to any or all Facilities installed pursuant to the Equinix PPA and Buyer shall owe Seller no further Service Fees in respect of such Facility(ies) for any period from and after the date of termination. For clarity, nothing in this Section 12.7(b) shall limit in any manner any other remedies that may be available to Buyer under this Agreement.

(c) In the event that the termination of this Agreement with respect to any Facilities under Section 12.7(a) or Section 12.7(b) results from the default of Seller under this Agreement, including, for clarity, in connection with a breach of Section 7.1(h)(i) of the Equinix PPA, Seller shall, at Buyer’s option, repurchase the relevant Facilities in respect of which this Agreement is being terminated from Buyer on an AS IS basis by paying the Refund Value of any such Facilities, calculated as of the date of such refund, in which case Seller shall take title to such Facilities upon paying the Refund Value, and the applicable Bloom Systems shall no longer

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constitute a portion of the Portfolio. If a Facility will be removed pursuant to this Section 12.7(c), Seller shall at its sole cost and expense remove (or cause the removal of) the Facility and any other ancillary equipment (including the concrete pad and any other improvements to the applicable Site to the extent required under the applicable PPA or Site License) from the applicable Site, restoring the Site to its condition before the installation, including closing all utility connections and properly sealing any Site penetrations in the manner required by all Legal Requirements and the applicable PPA or Site License.

ARTICLE XIII

INDEMNIFICATION

Section 13.1 IP Indemnity.

(a) Except as expressly limited below, Seller agrees to indemnify, defend and hold Buyer, its members, and their Affiliates and their respective managers, officers, directors, employees and agents harmless from and against any and all Third Party Claims and Indemnifiable Losses (including in connection with obtaining any Intellectual Property necessary for continuation of completion, operation and maintenance of Bloom Systems purchased by Buyer from Seller), arising from or in connection with any alleged infringement, conflict, violation or misuse of any patents, copyrights, trade secrets or other third party Intellectual Property rights by Bloom Systems purchased by Buyer from Seller (or the use, operation or maintenance thereof) or the exercise of the IP License or the Software License granted pursuant to Section 11.1 and Section 11.2 hereunder. Buyer shall give Seller prompt notice of any such claims. Seller shall be entitled to participate in, and, unless in the opinion of counsel for Seller a conflict of interest between the Parties may exist with respect to such claim, assume control of the defense of such claim with counsel reasonably acceptable to Buyer. Buyer authorizes Seller to settle or defend such claims in its sole discretion on Buyer’s behalf, without imposing any monetary or other obligation or liability on Buyer and subject to Buyer’s participation rights set forth in this Section13.1. Buyer shall assist Seller upon reasonable request by Seller and, at Seller’s reasonable expense, in defending any such claim. If Seller does not assume the defense of such claim, or if a conflict precludes Seller from assuming the defense, then Seller shall reimburse Buyer on a monthly basis for Buyer’s reasonable defense expenses of such claim through separate counsel of Buyer’s choice reasonably acceptable to Seller. Even if Seller assumes the defense of such claim, Buyer may, at its sole option, participate in the defense, at Buyer’s expense, without relieving Seller of any of its obligations hereunder. Should Buyer be enjoined from selling or using any Bloom System as a result of such claim, Seller will, at its sole option and discretion, either(i) procure or otherwise obtain for Buyer the right to use or sell the Bloom System; (ii) modify the Bloom System so that it becomes non-infringing but still substantially meets the original functional specifications of the Bloom System (in which event, for the avoidance of doubt, all warranties hereunder shall continue to apply unmodified); (iii) upon return of the Bloom System to Seller, as directed by Seller, provide to Buyer a non-infringing Bloom System meeting the functional specifications of the Bloom System, or (iv) when and if none of the first three options is reasonably available to Seller, authorize the return of the Bloom System to Seller and, upon receipt thereof, return to Buyer all monies paid by Buyer to Seller for the cost of the Bloom Systems and BOF, net of any monies paid by Seller to Buyer for any performance guaranties or other warranty claims; provided that Seller shall not elect the option in the preceding clause (i) without Buyer’s written consent if such election could reasonably be expected to materially decrease Buyer’s revenues or materially increase Buyer’s operating expenses.

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(a) THIS INDEMNITY SHALL NOT COVER ANY CLAIM:

(i) for Intellectual Property infringement, conflict, violation or misuse arising from or in connection with any combination made by Buyer of any Bloom System with any other product or products or modifications made by or on behalf of Buyer to any part of the Bloom System, unless (A) such combination or modification is in accordance with Seller’s specifications for the Bloom System, (B) such combination or modification is made by or on behalf of or at the written request of Seller where Seller has requested the specific combination or modification giving rise to the claim by Buyer, or (C) such other product or products would not infringe the Intellectual Property rights of a third party but for the combination with any part of the Bloom System;

(ii) for infringement of any Intellectual Property rights arising in whole or in part from any aspect of the Bloom System which was designed by or requested by Buyer on a custom basis. For the avoidance of doubt, the integration of the Battery Solution into any Facility shall not constitute an alteration designed by or requested by Buyer on a custom basis; or

(iii) for infringement of any Intellectual Property rights arising in whole or in part from any aspect of the Battery Solution (unless such infringement arises in whole or in part from any aspect of the parts or components supplied by Seller or any of its Affiliates to the Battery Solution Manufacturer that are used to manufacture the Battery Solution).

Section 13.2 Indemnification of Seller by Buyer. Buyer shall indemnify, defend and hold harmless Seller, its officers, directors, employees, shareholders, Affiliates and agents (each, a “Seller Indemnitee”) from and against any and all Indemnifiable Losses asserted against or suffered by any Seller Indemnitee arising out of a claim by a third party (other than a claim for Seller Indemnitee’s breach of any contract to which a Seller Indemnitee is a party) and in any way relating to, resulting from or arising out of or in connection with any Third Party Claims against a Seller Indemnitee to the extent arising out of or in connection with (a) the negligent or intentional acts or omissions of Buyer or its subcontractors, agents or employees or others under Buyer’s control (excluding Seller and any Seller Affiliate) or breach by Buyer of its representations, warranties or obligations under any Transaction Document, or (b) operation of Bloom Systems by any party other than Seller or an Affiliate or subcontractor of Seller after such Bloom Systems have been purchased by Buyer pursuant to this Agreement (but subject to Seller’s warranties, covenants and indemnities under this Agreement and any other Transaction Document to which Seller is a party); provided that Buyer shall have no obligation to indemnify Seller to the extent caused by or arising out of (i) any negligence, fraud or willful misconduct of any Seller Indemnitee or the breach by Seller or any Seller Indemnitee of its covenants, representations and warranties under this Agreement or in any Payment Certificate, or (ii) any operation of Bloom Systems by a party outside of Buyer’s control or direction or by a party taking such action despite Buyer’s reasonable efforts to prevent the same.

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Section 13.3 Indemnification of Buyer by Seller.

(a) Seller shall indemnify, defend and hold harmless Buyer, its members, managers, officers, directors, employees, Affiliates and agents (each, a “Buyer Indemnitee”) from and against any and all Indemnifiable Losses asserted against or suffered by any Buyer Indemnitee arising out of (1) a claim by a third party (other than a claim for Buyer Indemnitee’s breach of contract (other than any breach by a Buyer Indemnitee of any PPA or Site License based on any breach by Seller of its obligations under this Agreement to perform obligations under such PPA or Site License on behalf of Buyer)) and in any way relating to, resulting from or arising out of or in connection with any Third Party Claims against a Buyer Indemnitee to the extent arising out of or in connection with the negligent or intentional acts or omissions of Seller or its subcontractors, agents or employees or others under Seller’s control (other than matters addressed separately in Section 13.1, which shall be governed by the terms thereof), (2) a breach by Seller of its representations, warranties or obligations under any Transaction Document or in any Payment Certificate, including any breach of a PPA or Site License relating to, resulting from or arising out of or in connection with any act or omission by Seller, Seller Affiliate, the Service Provider or a Seller or Seller Affiliate agent, representative or subcontractor at any tier in respect of EPC Services or Facility Services that Seller is obligated to perform on behalf of Buyer in fulfillment of such obligations under the PPA or Site License including, for clarity, a breach of Section 7.1(h)(i) of the Equinix PPA relating to, resulting from or arising out of or in connection with any act or omission by Seller, Seller Affiliate, the Service Provider or a Seller or Seller Affiliate agent, representative or subcontractor at any tier, or (3) any injury, death, or damage to property caused by a defect in a Facility; provided that, Seller shall have no obligation to indemnify Buyer to the extent caused by or arising out of any negligence, fraud or willful misconduct of a Buyer Indemnitee, the breach by Buyer or any Buyer Indemnitee of its covenants, representations and warranties under this Agreement or the inability of Buyer to ultimately utilize any tax benefits.

(b) Except as otherwise set forth in this Agreement, in the event that Buyer incurs any liability, cost, loss or expense to a PPA Customer (including relating to a breach of a PPA or Site License) in relation to the repurchase by or return to Seller of any Bloom System under this Agreement, Seller shall indemnify and hold Buyer harmless for any such liability, cost, loss or expense incurred by Buyer.

(c) Seller acknowledges and agrees that each PPA Customer is an intended third party beneficiary of Seller’s indemnification obligations in favor of the Buyer Indemnitees and that Buyer may, at its sole option, elect to assign to a PPA Customer the right to seek indemnification directly from Seller in the event that Buyer owes to such PPA Customer any indemnification obligations arising out of any actions or inactions of Seller under this Agreement that give rise to an indemnification obligation of Seller in favor of any Buyer Indemnitee.

Section 13.4 Indemnity Claims Procedure. Except as otherwise provided in Section 13.1, if any indemnifiable claim is brought against a Party (the “Indemnified Party”), then the other Party (the “Indemnifying Party”) shall be entitled to participate in, and, unless in the reasonable opinion of counsel for the Indemnifying Party a conflict of interest between the Parties may exist with respect to such claim, assume the defense of such claim, with counsel reasonably acceptable to the Indemnifying Party. If the Indemnifying Party does not assume the defense of the Indemnified Party, or if a conflict precludes the Indemnifying Party from assuming the defense, then the Indemnifying Party shall reimburse the Indemnified Party on a monthly basis for the Indemnified Party’s reasonable defense expenses through separate counsel of the Indemnified

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Party’s choice. Even if the Indemnifying Party assumes the defense of the Indemnified Party with acceptable counsel, the Indemnifying Party, at its sole option, may participate in the defense, at its own expense, with counsel of its own choice without relieving the Indemnifying Party of any of its obligations hereunder.

Section 13.5 Limitation of Liability.

(a) Notwithstanding anything to the contrary in this Agreement, in no event shall a Party be liable to the other Party for an amount in excess of the Maximum Liability unless and to the extent such liability is the result of (A) fraud, willful default, willful misconduct, or gross negligence of a Party or that Party’s employees, agents, subcontractors (except that for the purposes of this provision, Seller and its employees, agents and subcontractors will not be deemed to be employees, agents or subcontractors of Buyer), (B) a Third Party Claim, (C) a claim of Seller against Buyer for Buyer’s failure to pay the Service Fees or Purchase Price for any Facility (which amounts shall not be included in calculating Buyer’s Maximum Liability), (D) a claim with respect to injury to or death of any individual, (E) Seller’s abandonment to the extent constituting a repudiation of this Agreement in respect of all or any part of the Facilities, (F) events or circumstances in respect of which insurance proceeds are available or that would have been available but for a failure by Seller to maintain, or comply with the terms of, insurance that it is required to obtain and maintain under this Agreement, and any amounts so received will not be included when calculating Seller’s Maximum Liability, (G) a claim of Buyer against Seller for Seller’s breach of a Fundamental Representation, (H) any purchase price adjustment pursuant to Section 2.7 or Section 2.8, (I) any Indemnifiable Losses asserted against or suffered by Buyer in connection with the LREC Contract, or (J) any Indemnifiable Losses asserted against or suffered by Buyer in connection with a breach of Section 7.1(h)(i) of the Equinix PPA relating to, resulting from or arising out of or in connection with any act or omission by Seller, Seller Affiliate, the Service Provider or a Seller or Seller Affiliate agent, representative or subcontractor at any tier. Subject always to the Maximum Liability limitations set forth in the preceding sentence, except for damages or amounts specifically provided for in this Agreement or in connection with the indemnification for damages awarded to a third party under a Third Party Claim, damages hereunder are limited to direct damages, and in no event shall a Party be liable to the other Party, and the Parties hereby waive claims, for indirect, punitive, special or consequential damages or loss of profits; provided, however, that the loss of profits language set forth in this Section 13.5(a) shall not be interpreted to exclude from Indemnifiable Losses any losses arising as a result of (i) the loss or recapture of any ITC, or (ii) in connection with a breach of Section 7.1(h)(i) of the Equinix PPA relating to, resulting from or arising out of or in connection with any act or omission by Seller, Seller Affiliate, the Service Provider or a Seller or Seller Affiliate agent, representative or subcontractor at any tier. Notwithstanding anything to the contrary set forth herein, in no event shall the limitation of liability set forth above as it pertains to Seller limit Seller’s obligations to Buyer for any payments owed by Seller to Buyer regarding (i) the Refund Value of any Facility(ies), (ii) Performance Guaranty payments, (iii) liability for any PPA Warranties that Seller has incurred pursuant to Section 5.8, (iv) Indemnifiable Losses arising from the loss or recapture of any ITC, and/or any Indemnifiable Losses asserted against or suffered by Buyer in connection with the LREC Contract or in connection with a breach of Section 7.1(h)(i) of the Equinix PPA relating to, resulting from or arising out of or in connection with any act or omission by Seller, Seller Affiliate, the Service Provider or a Seller or Seller Affiliate agent, representative or subcontractor at any tier. Any amounts paid or payable by Seller to Buyer as described in clauses

(i) through (v) of the preceding sentence will not be included when calculating Seller’s Maximum Liability.

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(b) Each Party hereby waives any claim under this ARTICLE XIII irrespective of the legal theory under which it is brought to the extent such claim is covered by the insurance of the claiming Party.

Section 13.6 Liquidated Damages; Estoppel. The Parties acknowledge and agree that it would be impracticable or impossible to determine with precision the amount of damages that would or may be incurred by Buyer as a result of the Portfolio’s failure to satisfy any Capacity Warranty. It is therefore understood and agreed by the Parties that: (a) Buyer may be damaged by Seller’s failure to satisfy either Capacity Warranty; (b) it would be impractical or impossible to fix the actual damages to Buyer resulting therefrom; and (c) any cash payments in respect of a claim under the Performance Guaranty and any Refund Values payable to Buyer under Section 5.7 for failure to meet such obligations are in the nature of liquidated damages, and not a penalty, and are fair and reasonable estimate of compensation for the losses that Buyer may reasonably be anticipated to incur by such failure. Seller hereby (i) waives any argument that its failure to comply with its obligations set forth in Section 5.7 would not cause Buyer irreparable harm, (ii) agrees that it shall be estopped from arguing the invalidity, or otherwise questioning the reasonableness, of the liquidated damages provided for herein, and (iii) agrees that it will consent to the entry of judgment ordering payment of such liquidated damages in any court of competent jurisdiction. Seller and Buyer each agree that Buyer shall be under no obligation to submit any dispute regarding the payment of any Refund Value when due to the dispute resolution mechanism set forth in Section 14.5, but may rather immediately pursue whatever rights it has available under this Agreement, at law or in equity in accordance with Section 14.6 herein.

Section 13.7 Survival. The Parties’ respective rights and obligations under this ARTICLE XIII shall survive any total or partial termination of this Agreement.

ARTICLE XIV

MISCELLANEOUS PROVISIONS

Section 14.1 Amendment and Modification. This Agreement may be amended, modified or supplemented only by written agreement of Buyer and Seller.

Section 14.2 Waiver of Compliance; Consents. Except as otherwise provided in this Agreement, any failure of any of the Parties to comply with any obligation, covenant, agreement or condition herein may be waived by the Party entitled to the benefits thereof only by a written instrument signed by the Party granting such waiver, but any such waiver of such obligation, covenant, agreement or condition shall not operate as a waiver of, or estoppel with respect to, any subsequent failure to comply therewith.

Section 14.3 Notices. All notices, provisions of Documentation, reports, certifications, or other documentation, and other communications hereunder shall be in writing and shall be deemed given when received if delivered personally or by facsimile transmission with completed transmission acknowledgment or by electronic mail, or when delivered if mailed by overnight delivery via a nationally recognized courier or registered or certified first class mail (return receipt

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requested), postage prepaid, to the recipient Party at its below address (or at such other address or facsimile number for a Party as shall be specified by like notice; provided, however, that notices of a change of address shall be effective only upon receipt thereof and that any notice provided by electronic mail will be followed promptly by another form of notice consistent with this Section 14.3 and will be effective when such follow-up notice is deemed effective):

To Seller:	Bloom Energy Corporation 1299 Orleans Drive Sunnyvale, CA 94089-1137 Attention: [***] Telephone: [***] Fax: [***] Email: [***]
To Buyer:	2016 ESA Project Company, LLC c/o Southern PowerSecure Holdings, Inc. c/o PowerSecure International, Inc. 1609 Heritage Commerce Ct. Wake Forest NC 27587 Attention: President and Chief Executive Officer Email: [***]
	and to:
	Southern Company Services, Inc. 30 Ivan Allen Jr. Blvd., NW Bin SC 1203 Atlanta, GA 30308 Attention: General Counsel Email: [***]
	with a copy to:
	Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, L.L.P. 150 Fayetteville Street, Suite 2300 Raleigh, NC 27601 Attention: [***] Telephone: [***] Email: [***]

Section 14.4 Assignment; Subcontractors.

(a) This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns (including by operation of law), but neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any Party without the prior written consent of the other Party (to be granted in the other Party’s sole discretion), provided that (i) Buyer may assign its indemnification rights to PPA Customers as set forth in Section 13.3 upon notice to Seller,

[***] Confidential Treatment Requested 66

(ii) Buyer may assign all of its right, title and interest in and to this Agreement to an Affiliate wholly owned (directly or indirectly) by The Southern Company without the prior consent of Seller (provided that such assignee Affiliate shall assign this Agreement back to the Buyer at any future date that such assignee is no longer an Affiliate of the Buyer), (iii) Buyer may make such an assignment without Seller’s consent to a successor to substantially all of Buyer’s business, whether in a merger, sale of stock, sale of assets or other transaction (other than a transaction with an entity that is a competitor of Seller or its Affiliates, unless consented to under the provisions of paragraph (b)), and (iv) Seller shall be entitled to subcontract any of its obligations under this Agreement without consent (except as set forth in Section 4.6) or to assign its obligations under this Agreement to an Affiliate under common ownership with Seller, provided further that (i) such assignment or subcontracting shall not excuse Seller from the obligation to competently perform any subcontracted or assigned obligations or any of its other obligations under the Agreement and (ii) nothing in this Agreement shall be deemed to require the consent of any party with respect to any change in control, merger or sale of all or substantially all of the assets of The Southern Company or Seller. Any purported assignment or delegation in violation of this Section shall be null and void.

(b) In the event of an assignment by Buyer or other transaction described in paragraph (a)(iii), Buyer shall notify Seller of the identity of the proposed assignee or successor in writing, and Seller shall have the right to consent to such assignment or transaction in the event that Seller reasonably believes such proposed assignee to be a competitor of Seller. Seller shall notify Buyer of its determination within ten (10) Business Days of receipt of notice from Buyer hereunder. If Seller notifies Buyer that it has determined that the proposed assignee is a competitor of Seller and that Seller is electing to withhold consent, then Buyer shall be prohibited from consummating the proposed transaction unless it has been finally determined that such proposed assignee is not a competitor of Seller.

(c) Any disputes regarding Seller’s determination of a proposed assignee as a competitor to Seller shall be resolved as follows:

(i) Buyer will promptly provide written notification of the dispute to Seller within five (5) Business Days after notice by Seller that it has determined the proposed assignee to be a competitor and that it is withholding its consent. Thereafter, a meeting shall be held promptly between the Parties, attended by Seller’s Chief Financial Officer and Buyer’s Chief Financial Officer, to attempt in good faith to negotiate a resolution of the dispute, provided, that either Party may elect to escalate the dispute to the Parties’ respective Chief Executive Officer at any time.

(ii) If the Parties are not successful in resolving a dispute within ten (10) Business Days of the meeting called for above, the dispute shall be submitted, within ten (10) Business Days thereafter, to a mediator with energy industry experience. The Parties shall cooperate with and provide such documents, information and other assistance as is requested by the mediator to assist in efforts to resolve the dispute. The costs of the mediator shall be borne equally by the Parties.

(iii) If efforts to mediate are not successful within thirty (30) days of submitting the dispute to the mediator, both Parties will retain all legal remedies available to them.

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Section 14.5 Dispute Resolution; Service of Process.

(a) Except as provided in Section 13.6 and Section 14.4, in the event a dispute, controversy or claim arises hereunder, including any claim whether in contract, tort (including negligence), strict product liability or otherwise, the aggrieved Party will promptly provide written notification of the dispute to the other Party within ten (10) days after such dispute arises. Thereafter, a meeting shall be held promptly between the Parties, attended by representatives of the Parties with decision-making authority regarding the dispute, to attempt in good faith to negotiate a resolution of the dispute. If the Parties are not successful in resolving a dispute within twenty-one (21) days of such meeting, then, subject to the limitations on remedies set forth in Section 12.3 and Section 12.4 and ARTICLE XIII, either Party may pursue whatever rights it has available under this Agreement, at law or in equity in accordance with Section 14.6 herein.

(b) In the event of any dispute arising out of or relating to this Agreement, each Party hereby consents to service of process made to the addressees set forth in Section 14.3 herein either by overnight delivery by a nationally recognized courier or by certified first class mail, return receipt requested, and hereby acknowledges that service by such means shall constitute valid and lawful service of process against the Party being served.

Section 14.6 Governing Law, Jurisdiction, Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW OR OTHER PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING TO ANY SUCH DISPUTE AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO.

Section 14.7 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signatures delivered by facsimile (or portable document format) will be considered original signatures, and each Party shall thereafter promptly deliver original signatures to the other Party.

Section 14.8 Interpretation. The article, section and schedule headings contained in this Agreement are solely for the purpose of reference, are not part of the agreement of the Parties and shall not in any way affect the meaning or interpretation of this Agreement.

Section 14.9 Entire Agreement. The Transaction Documents and the exhibits, schedules, documents, certificates and instruments referred to therein, embody the entire agreement and understanding of the Parties in respect of the transactions contemplated by this Agreement. Each Party acknowledges that, in agreeing to enter into this Agreement, it has not relied on any

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representation, warranty, collateral contract or other assurance (except those repeated in this Agreement and any other agreement entered into on the date of this Agreement between the Parties) made by or on behalf of any other Party at any time before the signature of this Agreement. Each Party waives all rights and remedies which, but for this clause (a), might otherwise be available to it in respect of any such representation, warranty, collateral contract or other assurance.

Section 14.10 Construction of Agreement. The terms and provisions of this Agreement represent the results of negotiations between Buyer and Seller, each of which has been represented by counsel of its own choosing, and neither of which has acted under duress or compulsion, whether legal, economic or otherwise. Accordingly, the terms and provisions of this Agreement shall be interpreted and construed in accordance with their usual and customary meanings, and Buyer and Seller hereby waive the application in connection with the interpretation and construction of this Agreement of any rule of law to the effect that ambiguous or conflicting terms or provisions contained in this Agreement shall be interpreted or construed against the Party whose attorney prepared the executed draft or any earlier draft of this Agreement.

Section 14.11 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party.

Section 14.12 Further Assurances. Each Party agrees to execute and deliver such additional documents and instruments and to perform such additional acts as may be necessary or appropriate to effectuate, carry out and perform all of the terms, provisions, and conditions of this Agreement and the transactions contemplated by this Agreement.

Section 14.13 Independent Contractors. The Parties acknowledge that, save as expressly set out in this Agreement to the contrary, each Party is entering into this Agreement as an independent contractor and nothing in this Agreement shall be interpreted or applied so as to make the relationship of any of the Parties that of partners, joint ventures or anything other than independent contractors. For clarity, notwithstanding anything to the contrary herein, including Seller’s obligation to perform on behalf of Buyer certain of Buyer’s obligations under PPAs and Site Licenses, neither Seller nor any of its employees, agents, subcontractors or representatives shall be considered an employee, agent, subcontractor or representative of, nor under the control of, Buyer under this Agreement.

Section 14.14 Limitation on Export. Buyer agrees that it will not export, re-export, resell, ship or divert directly or indirectly any Facility or any part thereof in any form or technical data or Software furnished hereunder to any country prohibited by the United States Government or any other Governmental Authority, or for which an export license or other Governmental Approval is required, without first obtaining such license or approval.

Section 14.15 Time of Essence. Time is of the essence with respect to all matters contained in this Agreement.

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Section 14.16 No Rights in Third Parties. Except as otherwise specified herein, (a) nothing in this Agreement nor any action taken hereunder shall be construed to create any duty, liability or standard of care to any Person that is not a Party, (b) no Person that is not a Party shall have any rights or interest, direct or indirect, in this Agreement or the services to be provided hereunder and (c) this Agreement is intended solely for the benefit of the Parties, and the Parties expressly disclaim any intent to create any rights in any third party as a third-party beneficiary to this Agreement or the services to be provided hereunder.

Section 14.17 Amendment and Restatement of Original PUMA. By their execution and delivery of this Agreement, the Parties hereby amend and restate in its entirety the Original PUMA. From and after the date hereof, (a) the Parties’ mutual understanding of each of the matters set forth herein shall be governed by the terms of this Agreement, and (b) any reference to the Original PUMA in any other agreement(s) shall be understood to refer to this Agreement.

[Remainder of page intentionally left blank]

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IN WITNESS WHEREOF, Buyer and Seller have caused this First Amended and Restated Purchase, Use and Maintenance Agreement to be signed by their respective duly authorized officers as of the Agreement Date.

BUYER:	SELLER:
2016 ESA PROJECT COMPANY, LLC	BLOOM ENERGY CORPORATION
a Delaware limited liability company	a Delaware corporation

By:	/s/ Eric Dupont	By:	/s/ Randy Furr
Name: Eric Dupont		Name: Randy Furr
Title: Chief Financial Officer		Title: Chief Commercial Officer

[Signature Page to First Amended and Restated Purchase, Use and Maintenance Agreement]

Annex A

Minimum Power Product Example Calculation

Sample Performance Warranty Example Calculation

Assumptions
Number of Facilities in Portfolio	46
System Capacity (per Facility)	200		kW
Performance Warranty	86	%
Minimum Power Product Analysis
Minimum Power Product	7,912		kW
Sample Performance Guaranty Example Calculation
Assumptions
Number of Facilities in Portfolio	46
System Capacity	200		kW
Performance Warranty	95	%
Minimum Power Product Analysis
Minimum Power Product	8,740		kW

ANNEX A-1

Annex B

Insurance

Insurance. At all times during the Term, without cost to Buyer, Seller shall maintain in force and effect the following insurance, which insurance shall not be subject to cancellation, termination or other material adverse changes unless the insurer delivers to Buyer written notice of the cancellation, termination or change at least thirty (30) days in advance of the effective date of the cancellation, termination or material adverse change or if notice from the insurer to Buyer of material adverse change is not available on commercially reasonable terms then Seller shall provide Buyer with such notice as soon as reasonably possible after becoming aware of such change:

(a) Worker’s Compensation Insurance as required by the laws of the state in which Buyer’s facilities are located;

(b) Employer’s liability insurance with limits at policy inception not less than One Million Dollars ($1,000,000.00);

(c) Commercial General Liability Insurance, including bodily injury and property damage liability (arising from premises, operations, contractual liability endorsements, products liability, or completed operations) with limits not less than Two Million Dollars ($2,000,000.00) at policy inception;

(d) If there is exposure, automobile liability insurance in accordance with prudent industry practice with a limit of not less than One Million Dollars ($1,000,000.00), combined single limit per occurrence;

(e) Umbrella liability insurance acting in excess of underlying employer’s liability, commercial general liability and automobile liability policies with limits not less than Fifteen Million Dollars ($15,000,000.00), except that any subcontractors shall be required to maintain such insurance with limits of not less than Three Million Dollars ($3,000,000.00);

(f) Professional errors and omission insurance with a limit of not less than One Million Dollars ($1,000,000.00) per occurrence;

(g) Environmental/pollution liability insurance with a limit of not less than One Million Dollars ($1,000,000.00) per claim;

(h) All Risk property insurance on the Facilities, including Builder’s Risk/Installation Coverage, with replacement costs and a delay in startup component; and

(i) Marine Cargo - Transit coverage (including air, land and ocean cargo, as applicable) on an “all-risk” basis and a “warehouse to warehouse” basis with a per occurrence limit equal to not less than 110% of the value including transit and insurance of such shipment involving the Facility at all times for which the Seller bears or has accepted risk of loss or has responsibility for providing insurance. Coverage shall include loading, unloading and temporary storage (as applicable). Coverage shall be maintained in accordance with prudent industry practice in all regards with per occurrence deductibles of not more than $50,000 for physical damage and other terms and conditions acceptable to the Buyer.

ANNEX B-1

Seller shall cause Buyer to be included as additional insured to all insurance policies required in accordance with the provisions of this Agreement except for worker’s compensation. The required insurance must be written as a primary policy not contributing to or in excess of any policies carried by Seller, and each must contain a waiver of subrogation, in form and substance reasonably satisfactory to Buyer, in favor of Buyer.

The insurances contemplated in this clause are primary. The Parties acknowledge that, if a claim is made under any of the insurances contemplated in this Agreement, it is their intention that the insurer cannot require the Party first to exhaust indemnities referred to in this Agreement before the insurer’s obligation to perform is mature, subject to the insurer’s later pursuing subrogation, in which event any recovery will be credited by such insurer pro tanto in favor of the policyholder. The general liability and umbrella liability insurances required by this agreement shall provide blanket contractual coverage to the full policy limit. Where applicable, each of these insurances will:

(a) be effected with an insurer reasonably acceptable to Buyer;

(b) contain a waiver of subrogation in favor of Buyer;

(c) contain deductibles in accordance with prudent industry practice and approved by Buyer acting reasonably; and

(d) include a provision that such insurance is primary insurance with respect to the interests of Buyer and Seller and that any other insurance maintained by Buyer is excess and not contributory insurance with the insurances required under this Agreement.

Seller shall provide Buyer with evidence of compliance with these insurance requirements when requested by Buyer from time to time on a reasonable basis.

ANNEX B-2

Annex C

Capacity Warranty Claim Example Calculation and Amounts Payable

Quarterly Performance Warranty Claim Example Calculation

Assumptions
Number of Systems	46
System Capacity	200		kW
Hours/Day	24		Hours
Measurement Period	90		Days
Force Majeure Outage in Period(1)	5		Hours
PPA Customer Outage in Period(1)	0		Hours
Legal/Grid Outage in Period(1)	0		Hours
Battery Solution Outage in Period(1)	0		Hours
Starting Performance Warranty Bank Balance	3,985,900		kWh
Quarterly Performance Warranty Analysis
Minimum kWh(2)	17,050,360		kWh
Actual kWh	15,500,160		kWh
Underperformance (kWh)	1,550,200		KWh
Performance Warranty Bank Adjustment
Starting Balance	3,985,900		kWh
Debit	(1,550,200	)	kWh
Ending Balance	2,435,700		kWh
Quarterly Performance Warranty Claim?	NO

(1)	As defined by “Minimum kWh.”
(2)	Minimum kWh = ((Measurement Period Days * 24 Hours/Day) - Force Majeure Hours - PPA Customer Outage Hours - Legal/Grid Outage Hours Battery Solution Outage Hours) * Minimum Power Product(3)
(3)	As calculated per Annex A.

ANNEX C-1

Annual Performance Guaranty Claim Example Calculation

Assumptions

Number of Systems		46
System Capacity		200		kW
Hours/Day		24		Hours
Measurement Period		354		Days
Force Majeure Outage in Period(1)		5		Hours
PPA Customer Outage in Period(1)		0		Hours
Legal/Grid Outage in Period(1)		0		Hours
Battery Solution Outage in Period(1)		0		Hours
Performance Guaranty Payment Rate	$	[	***]	/kWh
Starting Performance Guaranty Bank Balance		2,508,000		kWh

Annual Performance Guaranty Analysis

Minimum kWh(2)	76,518,700	kWh
Actual kWh	72,532,800	kWh
Underperformance (kWh)	3,985,900	kWh

Performance Guaranty Bank Adjustment

Starting Balance	2,508,000		kWh
Debit	(3,985,900	)	kWh
Ending Balance	(1,477,900	)	kWh
Performance Guaranty Payment(4)	$ [***]

Notes:

⁽¹⁾  As defined by “Minimum kWh.”

⁽²⁾  Minimum kWh = ((Measurement Period Days * 24 Hours/Day) Force Majeure Hours PPA Customer Outage Hours Legal/Grid Outage Hours - Battery Solution Outage Hours) * Minimum Power Product⁽³⁾

⁽³⁾  As calculated per Annex A.

[***] Confidential Treatment Requested

ANNEX C-2

Performance Guaranty Payment = (absolute value of Performance Guaranty Bank ending balance) * (Performance Guaranty Payment Rate). Following such payment, the Performance Guaranty Bank balance is increased to zero.

ANNEX C-3

Annex D

List of PPAs

Updated as of: June 26, 2017

1. That certain Energy Server Use and License Agreement, dated as of September 17, 2015, by and between Home Depot U.S.A., Inc. and Buyer (the “Home Depot PPA”).

2. That certain Master Fuel Cell Energy Services Agreement, Contract Number 17012, dated as of June 30, 2016, by and among [***], [***], and Buyer.

3. That certain Master Fuel Cell Energy Services Agreement, Contract Number 17013, dated as of June 30, 2016, by and among [***], [***], and Buyer.

4. That certain Energy Server Use Agreement, dated as of September 27, 2016, by and between [***] and Buyer (the “[***] PPA”).

5. That certain Energy Server Use and License Agreement, dated as of September 30, 2016, by and between [***] and Buyer.

6. That certain Energy Server Use and License Agreement, dated as of February 15, 2017, by and between Home Depot U.S.A., Inc. and Buyer.

7. That certain Energy Server Use and License Agreement, dated as of March 14, 2017, by and between [***] and Buyer.

8. That certain Energy System Use Agreement, dated as of March 24, 2017, by and between AT&T Corp. and Buyer (the “AT&T PPA”).

9. That certain Energy Server Use and License Agreement, dated as of May 31, 2017, by and between Equinix, Inc. and Buyer (the “Equinix PPA”).

[***] Confidential Treatment Requested

ANNEX D-1

Exhibit A

Specifications

For the Battery Solution:

Energy storage [***]: [***]W-hours of beginning of life capacity. A typical Home Depot installation might use [***] for [***]kW- hours of beginning of life capacity in order to achieve contract targets of [***] kW-hours.

Power discharge [***]: [***]kW per [***]; [***]kW per [***]. A typical Home Depot installation will have a [***]kW discharge capability.

Power charge [***]: [***]kW per [***]; [***]kW per [***]. A typical Home Depot installation will have a [***]kW charge capability.

Cabinet dimensions: The team will work to find the most space efficient solution. A cabinet which holds [***]kW-hours of storage and associated power electronics and air handling would have approximate dimension of: 36” in depth; 42” in width and 96” in height.

Cabinet environmental rating: Outdoor rated; [***]° C to [***]° C.

For the Bloom Systems

System Capacity: Configuration-dependent. Each Facility will be composed of an appropriate number of Bloom Systems in order to achieve the desired System Capacity.

Electrical Connection: 480 V, 3-phase, 60 Hz

Fuels: Natural Gas, Directed Biogas

Input Fuel Pressure: 10-18 psig (15 psig nominal)

Water: None during normal operation

NOx: < 0.01 lbs/MWh

Sox: Negligible

CO: < 0.05 lbs/MWh

VOCs: < 0.02 lbs/MWh

Weight: 14.3 tons

Dimensions (variable layouts): 14’9” x 8’9” x 7’ or 29’6” x 4’5” x 7’5”

Temperature Range: -20° to 45° C

Humidity: 0% to 100%

Location: Outdoor

Noise: < 70 dBA @ 6 feet

[***] Confidential Treatment Requested

Exhibit A-1

Exhibit B

Form of Bill of Sale

BILL OF SALE

This BILL OF SALE, dated as of [  ] [  ], 201_ is made by BLOOM ENERGY CORPORATION, a Delaware corporation (“Seller”), to 2016 ESA PROJECT COMPANY, LLC, a Delaware limited liability company (“Buyer”), and is delivered pursuant to the Purchase, Use and Maintenance Agreement, dated as of October 24, 2016, and amended and restated as of June 26, 2017 (as amended, amended and restated, supplemented or otherwise modified from time to time, the “PUMA”), between Seller and Buyer, in connection with the transfer of the assets described on Exhibit A attached hereto (the “Purchased System”).

Seller hereby assigns, conveys, sells, delivers, sets over and transfers to Buyer, for the consideration, and on the terms and conditions, set forth in the PUMA, all of Seller’s rights, title and interest in, under and to the Purchased System, and Buyer hereby accepts such assignment .

This Bill of Sale shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns.

This Bill of Sale shall be governed by, and construed in accordance with, the laws of the State of California.

[Signature Page Follows]

[Note to Draft: To be revised as appropriate when used in connection with return of Facilities to Bloom]

Exhibt B-1

IN WITNESS WHEREOF, the parties hereto have caused this Bill of Sale to be signed by their respective duly authorized officers as of the date first written above.

SELLER:

BLOOM ENERGY CORPORATION

By:

Name:

Title:

BUYER:

2016 ESA PROJECT COMPANY, LLC

By:

Name:

Title:

Exhibit B-2

Attachment A to Bill of Sale

Purchased System

Exhibit B-3

Exhibit C

Seller Deliverables

Seller shall develop a comprehensive design package consisting of drawings generated in AutoCAD. Design package to accompany appropriate information necessary to support the design and equipment specifications. The drawing package shall consist of the following, as applicable to the scope of work.

Seller shall submit the items listed below prior to or at the Commencement of Operations:

1. “Issued for Construction Drawing Set” (each of the below delivered, as appropriate and necessary given site design):

a. Cover sheet

b. Work site plan (work site and general arrangement drawings)

c. Grading and drainage plan

d. Soil erosion and sediment control

e. Foundation plans and details

f. Structural plans, details and elevation

g. [***]

h. Single-line electrical diagrams

i. Electrical schematic diagrams

j. [***]

k. Network Architecture Drawings

l. Power and control wiring

m. Grounding plans

n. Lightning and surge protection drawings

o. Wiring Diagrams

p. Bloom Equipment Specifications

q. Electrical schematic diagrams

r. [***]

s. I/O list

2. Example screenshot to be delivered by Seller, with details on sample shown below:

[***]

Seller shall submit the items listed below on or before ninety (90) days following the Commencement of Operations:

1. Third party vendor drawings ([***] battery specifications and drawings to be provided by [***] if applicable)

2. Safety Documentation for Bloom Personnel and Subcontractors

3. Final OSHA/Cal-OSHA 300Log (not required to be organized by Site)

[***] Confidential Treatment Requested

Exhibit C-1

4. Final Incident Reports (to include First Aid logs, Final Root Cause Analysis Reports, and Final Near Miss Reports)

5. Quality Documentation for Construction activities (if applicable)

6. As-built drawings

7. Permitting documentation

Seller will prepare in individually organized volumes of the Seller Deliverables and deliver to Buyer for Buyer’s approval two sets of such required manuals. Seller will prepare and deliver to Buyer two (2) electronic copies on CDs or USB flash drive, at least one of such copy will be in native format (if available to Seller) to allow Buyer subsequently to modify or update the same. Seller shall transfer Seller Deliverables to Buyer and they shall become the sole property of Buyer.

Exhibit C-2

Exhibit D

Form of Payment Notice

To: 2016 ESA PROJECT COMPANY, LLC (Buyer)

This Payment Notice, dated         , 201    , is given pursuant to Section 2.4(c) of the Purchase, Use and Maintenance Agreement between the BLOOM ENERGY CORPORATION (Seller) and Buyer dated October 24, 2016, and amended and restated as of June 26, 2017 (as amended, amended and restated, supplemented or otherwise modified from time to time, the PUMA). Terms defined in the PUMA have the same meaning where used in this Payment Notice.

Seller hereby notifies Buyer that, in connection with the Invoice Due Date occurring on         , 201    , Buyer shall be obligated to make Purchase Price payments to Bloom in the aggregate amount of $        .

The Purchase Price to be paid by Buyer on the above-mentioned Invoice Due Date is comprised of the following amounts:

1) $         of Purchase Price payments for a Tranche composed of Facilities with aggregate System Capacity     kW, which amount equals [***] percent ([***]%) of the aggregate Purchase Price for the Facilities included in such Tranche.

2) $         of Purchase Price payments in connection with the Shipment of the final Bloom System to be installed in Facilities with aggregate System Capacity of      kW, which amount represents [***] percent ([***]%) of the Purchase Price for those Facilities that have Shipped and were included in a Tranche for which Buyer has previously made a Purchase Price payment, plus 100% of the Purchase Price Adder(s) applicable to such Facilities, if any.

3) $         of Purchase Price payments in connection with the Shipment of the final Bloom System to be installed in Facilities with aggregate System Capacity of      kW, which amount represents [***] ([***]%) of the Purchase Price for those Facilities that have Shipped and were not included in a Tranche for which Buyer has previously made a Purchase Price payment, plus 100% of the Purchase Price Adder(s) applicable to such Facilities, if any.

4) $         of Purchase Price payments in connection with the Commencement of Operations of Facilities with aggregate System Capacity of      kW, which amount represents, [***] ([***]%) of the Purchase Price for such Facilities, plus one hundred percent (100%) of the Taxes to be paid by Buyer pursuant to Section 2.3(c) for such Facilities.

[***] Confidential Treatment Requested

Exhibit D-1

Included with this Payment Notice is supporting documentation (i.e., Seller’s Deposit Milestone Certificates, bills of lading and Seller’s Certificates of Installation) evidencing the achievement of all applicable Milestones achieved by the Tranche and/or Facilities referenced above.

Seller hereby certifies that each of the representations and warranties of Seller in the PUMA is true and correct in all respects as of the date of this Payment Notice.

This Payment Notice may be relied upon by Buyer.

Signed for and on behalf of BLOOM ENERGY CORPORATION

By:

Name:

Title:

Exhibit D-2

Exhibit E

Form of Purchase Order

Exhibit E-1

Exhibit F

Form of Seller’s Deposit Milestone Certificate

To: 2016 ESA PROJECT COMPANY, LLC (Buyer)

This Deposit Milestone Certificate, dated         , 201    , is given pursuant to paragraph (c) of the definition of Deposit Milestone Requirements in the Purchase, Use and Maintenance Agreement between the BLOOM ENERGY CORPORATION (Seller) and Buyer dated October 24, 2016, and amended and restated as of June 26, 2017 (as amended, amended and restated, supplemented or otherwise modified from time to time, the PUMA).

Terms defined in the PUMA have the same meaning where used in this Certificate.

This certificate is provided in respect of a Tranche with aggregate System capacity of      kW (the “Subject Tranche”).

Seller hereby certifies that in respect of the Subject Tranche:

(1) Seller, on Buyer’s behalf, has received approval of site plans and single-line drawings from one or more PPA Customers for Facilities with aggregate System Capacity equal to or greater than the aggregate System Capacity of such Subject Tranche (and all previously-invoiced Tranches);

(2) Seller has received all materials required for the commencement of fabrication of Bloom Systems with aggregate System Capacity equal to or greater than the aggregate System Capacity such Subject Tranche, and all materials required as of such time to allow for completion of such fabrication in order to achieve Commencement of Operations of such Facilities (and all previously-invoiced Tranches) within ninety (90) days hereof; and

(3) Each of the representations and warranties of Seller in the PUMA is true and correct in all respects as of the date of this Seller’s Deposit Milestone Certificate.

Exhibit F-1

This Deposit Milestone Certificate may be relied upon by Buyer.

Signed for and on behalf of BLOOM ENERGY CORPORATION

By:

Name:

Title:

Exhibit F-2

Exhibit G

Form of Tranche Notice

To: 2016 ESA PROJECT COMPANY, LLC (Buyer)

This Tranche Notice, dated         , 201    , is given pursuant to Section 2.2 of the Purchase, Use and Maintenance Agreement between the BLOOM ENERGY CORPORATION (Seller) and Buyer dated October 24, 2016, and amended and restated as of June 26, 2017 (as amended, amended and restated, supplemented or otherwise modified from time to time, the PUMA). Terms defined in the PUMA have the same meaning where used in this Tranche Notice.

Seller hereby notifies Buyer that Seller expects that Facilities with aggregate System Capacity of     kW will be included in a Tranche that Seller reasonably expects will satisfy the applicable Deposit Milestones in such the [1st / 2nd / 3rd / 4th ] Calendar Quarter of 201    .

Seller hereby certifies that, as of the date of this Tranche Notice, no Seller Default has occurred and is continuing under the PUMA.

This Tranche Notice may be relied upon by Buyer.

Signed for and on behalf of BLOOM ENERGY CORPORATION

By:

Name:

Title:

Exhibit G-1

Exhibit H

Form of Seller’s Certificate of Installation

To: 2016 ESA PROJECT COMPANY, LLC (Buyer)

This Certificate is given pursuant to paragraph (e) of the definition of Commencement of Operations in the Purchase, Use and Maintenance Agreement between the BLOOM ENERGY CORPORATION (Seller) and Buyer dated October 24, 2016, and amended and restated as of June 26, 2017 (as amended, amended and restated, supplemented or otherwise modified from time to time, the PUMA).

Terms defined in the PUMA have the same meaning where used in this Certificate. This certificate is provided in respect of the Facility(ies) set forth on Exhibit A hereto.

Seller hereby certifies that in respect of each Facility:

1. Each Bloom System comprising the Facility has been installed, commissioned and tested in accordance with the Performance Standards and all other requirements of the PUMA;

2. Seller has performed and successfully completed all necessary acts under the applicable Interconnection Agreement (including performance testing) and has obtained permission from the applicable Person granting Buyer permission to interconnect such Facility with the distribution or transmission facilities of the Transmitting Utility;

3. All BOF and BOF Work necessary for the operation of the Facility has been installed, commissioned and tested in accordance with the Performance Standards and all other requirements of the PUMA; and

4. Each of the representations and warranties of Seller in the PUMA is true and correct in all respects as of the date of this Seller’s Certificate of Installation.

Exhibit H-1

This Certificate may be relied upon by Buyer.

Signed for and on behalf of BLOOM ENERGY CORPORATION

By:

Name:

Title:

Exhibit H-2

ATTACHMENT A

COMPLETED FACILITIES

Table 1

Facility List

Serial No. Location of Facility Unit Model System Capacity
(kW-AC)

Exhibit H-3

Exhibit I

[Reserved]

Exhibit I-1

Exhibit J

Seller Corporate Safety Plan

Seller will maintain and adhere to a Seller Corporate Safety Plan at all times during the term of this Agreement. Such plan will be maintained, in writing, at Seller corporate headquarters and will include, without limitation programs with respect to:

• Contractor Environmental Health & Safety Program

• Contractor Environmental Health & Safety Program

• Injury and Illness Prevention Program

• Heat Illness Prevention Program

• Emergency Action and Fire Prevention Plan

• Hazard Communication Program

• Corporate Electrical Standard – Specific Electrical Safe Work Practices

• Electrical Safety Awareness

• Lockout/Tagout

• Fall Protection Program (Working at Heights)

• Ladder Safety Program

• Powered Industrial Trucks (PIT)

• Hoist Safety Program

• Personal Protective Equipment (PPE)

• Respiratory Protection Program

• Hearing Conservation Program

• Hand and/or Powered Tools Safety Program

• Hot Work Process

• First Aid / CPR Program

Exhibit J-1

Exhibit K

Subcontractor Quality Plan

Seller will adhere to the following standards and processes as applicable when engaging subcontractors for performance under this Agreement.

• General contractors will be subject to the terms and conditions set forth in The American Institute of Architects Document A107 – 2007 as amended in certain cases

• General contractors are required to complete a Bloom Energy Contractor Qualification Training Program

• General contractor superintendents and foremen must be certified and qualified by Seller to be on site

• Standard safety protocols will be observed at all times:

• Site superintendents are OSHA30 certified

• Seller superintendents ensure general contractors follow all local and state OSHA and owner requirements

• Confirmation of “Injury and Illness Prevention Program”

• Seller included in the ISN program – 3rd party safety evaluation

• A project superintendent assigned by Seller will review subcontractor work according to a standard site verification check list

• Contractors will submit Contractor Quality Guarantees for each site providing written verification of points of assurance including torques per site, Megger testing and line flushing

• Prestart verification conducted for all sites to review and confirm the quality of subcontractor work

• Prior to commencement of operations, Seller conducts an “OK to Start” meeting during which subcontractor quality of work is reviewed and confirmed as resolved

• All incidents are logged in a database and reviewed on an ongoing basis by Seller quality management as well as at the OK to Start meeting

• Quarterly business reviews conducted with general contractors to formally review incident data and mitigate process and workmanship issues.

Exhibit K-1

Exhibit L

[Reserved]

Exhibit L-1

Exhibit M

Parties’ Managers and Service Fees

Seller’s Initial Operations Manager: [***]

Buyer’s Initial Buyer Manager: [***]

Service Fees:

Calendar Months since Commencement of Operations for the applicable Facility	Rate ($/kW)
1 through 12	$	[	***]
12 through 24	$	[	***]
25 through 36	$	[	***]
37 through 48	$	[	***]
49 through 60	$	[	***]
61 through 72	$	[	***]
73 through 84	$	[	***]
85 through 96	$	[	***]
97 through 108	$	[	***]
109 through 120	$	[	***]
121 through 132	$	[	***]
133 through 144	$	[	***]
145 through 156	$	[	***]
157 through 168	$	[	***]
169 through 180	$	[	***]
181 through 192	$	[	***]
193 through 204	$	[	***]
205 through 216	$	[	***]
217 through 228	$	[	***]
229 through 240	$	[	***]

In addition, Services Fees for such Facility shall be increased by an amount equal to $[***]/kWh per month for months 1 through 180 and $[***]/kWh per month for months 181 through 240 of rated capacity of the Battery Solution if such Facility includes a Battery Solution.

[***] Confidential Treatment Requested

Schedule 3.3

In addition, from and after the [***] ([***]) calendar month after Commencement of Operations for a Facility, Services Fees for such Facility shall be increased by an amount equal to:

- $[***] per AOM per calendar month;

- $[***]/kW of System Capacity per calendar month if such Facility includes a Low- Pressure Gas Booster;

- $[***] per UPM per calendar month if such Facility includes UPM(s) but no AOM(s);

- $[***] per UPM per calendar month if such Facility includes UPM(s) and AOM(s).

[***] Confidential Treatment Requested

Exhibit L-2

SCHEDULE 3.3

DESIGN AND INSTALLATIONS PROCEDURES

Seller will perform the following activities in connection with the design and installation of each Facility, to the extent necessary to cause such Facility to achieve Commencement of Operations:

• Initial site visits and studies to assess site suitability, including but not limited to due diligence research with local Authorities Having Jurisdiction (AHJs) and utilities, site load validation, and utility locates. When necessary, title reports may be pulled, gas composition may be tested, and geotechnical studies may also be done.

• Produce a complete set of construction drawings, either internally or in conjunction with an external design firm, in accordance with: local, state, and national codes; local electric and gas utility requirements; and site-specific or host customer requirements.

• Procure all necessary permits and/or approvals as required by the local AHJs, including but not limited to Planning, Building, and Fire Departments.

• Secure technical approval to interconnect with the local electric utility, and coordinate the electric interconnection agreement between the host customer and the local utility.

• Engage the local gas utility to design the gas interconnection approach, and coordinate the gas contract for gas delivery to the Bloom system between the host customer and the local utility.

• Secure a general contractor to build the site as designed, obtain final building department sign-off, and pass any other required inspections. Provide Bloom Energy-trained site supervision at key milestones during the construction process to ensure smooth inspections and a positive host customer experience.

• Perform system commissioning once construction is complete and inspections are passed, ensuring the systems operate as intended and reach full power. Remedy any issues preventing full power prior to turning operation over to Bloom’s Service team.

• Act as the interface with the host customer, securing all necessary design approvals and site access permissions, as well as coordinating construction schedules. Ensure primary personnel responsible for interfacing with Bloom’s system are educated in safety procedures. Deliver customer manuals and emergency procedures to the customer upon project completion, as well as any other close-out documentation required by the contract

Exhibit L-3

SCHEDULE 3.4

COMMISSIONING PROCEDURES

Seller will perform the following activities in connection with the commissioning of each Facility, to the extent necessary to cause such Facility to achieve Commencement of Operations:

• [***]

• [***]

• [***]

• [***]

• [***]

• [***]

• [***]

• [***]

• [***]

• [***]

• [***]

• [***]

• [***]

• [***]

• [***]

• [***]

• [***]

• [***]

• [***]

• [***]

• [***]

• [***]

• [***]:

• [***]

• [***]

• [***]

[***] Confidential Treatment Requested

Schedule 3.4

SCHEDULE 4.2

OPERATION AND MAINTENANCE PROCEDURES

Seller will perform the following operation and maintenance activities for each Facility, to the extent necessary to cause such Facility to perform in accordance with the Warranty Specifications:

• Annual maintenance activities:

• Check Surge Protection Device and replace as necessary

• Replace main blower filter element

• Replace AC unit filter element if applicable

• Replace auxiliary blower filter element

• Remove any debris and vacuum inside of each cabinet

• Remove any debris from the exterior of cabinets

• Check all FCM hotbox enclosures for any leaking or cracks

• Replace door filters

• NG conditioning canister replacement

• Site obligations:

• An e-mail announcement of a service appointment will be sent to address(es) specified by the client informing of a service visit in advance of a service visit

• Field Service personnel will sign in at a security office as required by client

• Field Service personnel will safely and securely maintain and repair the systems as needed in accordance with our established and released procedures

• Bloom HR and EH&S will work with clients to fulfill requirements for certification of drug testing, training, and other Environmental Health & Safety (EH&S) procedures

• Site visit protocols:

• Works with customers and Product Development to resolve issues

• Provides detailed documentation for each maintenance element performed

• Inspection of installed equipment to ensure peak performance

• Inspection of all components to ensure proper operation within product and environmental specifications

• Clearly and professionally interact with customer regarding status of site visits, performance of their systems and general fuel cell education

• Spare Parts

• Bloom Energy Product Support maintains a list of all spare parts including field replaceable units (FRUs) and consumables for each of its commercial products

Schedule 4.2-1

• Spare parts are stocked in localized third party logistics depots in each service zone

• The most common and most critical parts are stocked in each local depot and replenished on a weekly schedule

• Parts not stocked in localized depots are dispatched from our Milpitas, CA warehouse via FedEx or other carriers and couriers

• Failure Response Protocol:

• Emergency Response Protocol:

• Contact lists of BE personnel to be contacted during normal business hours and during off hours (24-7-365 emergency escalation path) are provided for each region where Energy Servers are located in order to remedy situations posing a risk to persons or property

• Remote shutdown from Bloom RMCC if required

• Emergency power off button provided onsite

• Remote monitoring:

• 24/7/365 performance monitoring and control of fleet

• 1st level troubleshooting

• Cross-functional interface with engineering, software, controls, quality

• Optimize performance

• Support new customer site start-ups

• Customer performance analysis daily

• Standards Compliance:

• Complies with Rule 21 interconnection

• ANSI/CSA FC 1: Stationary Fuel Cell Power Systems Safety

• IEEE 1547 Standard for Interconnecting Distributed Resources with Electric Power Systems

• NFPA 853 The Standard for Installation of Stationary Fuel Cell Power Systems

• NFPA 70 The National Electrical Code

• NFPA 54 The National Fuel Gas Code

• Subcontracted Services. The following may in some cases be performed by subcontractors:

Schedule 4.2-2

• Water DI system replenishment

• STS and transfer switch maintenance and repair

• Some annual maintenance and upgrade work

• Filter delivery, replacement, removal

• High Voltage transformer and switchgear maintenance

• Circuit breaker and similar maintenance

• Battery replacement

• Some fuel cell module performance upgrades

• NG conditioning canister replacement

• Management Staff:

• Customer Installations Group (CIG) Turnkey design, engineering, procurement, permitting and installation

• Services Commissioning, operations and monitoring of servers

• Customer Experience Interface with customer

• PPA Operations Certain administrative duties

• All Energy Servers are instrumented to securely record over 1000 data points per server and stored in a Data Historian that resides in a Secure Co-located Data Center and Backed Up for data recovery

• CIG and Service employees are subject to drug tests, background checks and other screening protocols based on customer site requirements

• Bloom Energy maintains a Code of Safe Practices and ensures that copies are provided to all applicable field service technicians and includes:

• Injury and illness prevention program

• Required Personal Protection Equipment (PPE)

• Corporate EH&S Standard

• Proper use of Powered Industrial Trucks

• Contracted Crane Operations

• Ladder safety program

• Electrical Safety and Lock-Out Tag-Out (LOTO)

• Fall protection

• First Aid/CPR program

• Contractor EH&S program

• Bloom Energy Safety Commitment

Schedule 4.2-3

SCHEDULE 4.6

APPROVED MAJOR SERVICE PROVIDERS

Core States Group / CoreStates, Inc.

3401 Centre Lake Drive Suite 330

Ontario, CA 91761

909.467.8907

www.core-eng.com

Newco Construction of America, Inc.

17830 Front Street

Mount Dora, FL 32757

352-735-3877

www.newcoconstruction.com

PacifiCore Construction

1342 Bell Ave Suite 3A

Tustin, CA 91780

657-859-40505

www.pacificoreconstruction.com

Rubicon Professional Services

107 Tindall Road Suite #11

Middletown, NJ 07748

732-832-2975

www.RubiconPS.com

Schedule 4.6

EX-10

Exhibit 10.86

CONFIDENTIAL

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the securities and exchange commission pursuant to rule 406 of the securities act of 1933, as amended.

AMENDMENT NO. 1 TO

FIRST AMENDED AND RESTATED PURCHASE, USE AND MAINTENANCE AGREEMENT

This AMENDMENT NO. 1 TO FIRST AMENDED AND RESTATED PURCHASE, USE AND MAINTENANCE AGREEMENT (this “Amendment”), is entered into effective as of September 11, 2017 (“Effective Date”) by and between BLOOM ENERGY CORPORATION, a Delaware corporation (“Seller”), and 2016 ESA PROJECT COMPANY, LLC, a Delaware limited liability company (“Buyer,” and together with Seller, the “Parties”). Capitalized terms used and not otherwise defined herein have the meanings given to them in the PUMA (as defined below). All Section, annex and exhibit references, unless otherwise indicated, shall be references to Sections, annexes and exhibits of the PUMA and the rules of interpretation set forth in the PUMA apply as if set forth herein.

RECITALS

WHEREAS, reference is hereby made to that certain Purchase, Use and Maintenance Agreement, dated as of October 24, 2016, by and between Buyer and Seller, as amended by (a) that certain Amendment No. 1 dated as of February 15, 2017, and (b) that certain Amendment No. 2 dated as of April 28, 2017 (the “Original PUMA”);

WHEREAS, reference is hereby made to that certain First Amended and Restated Purchase, Use and Maintenance Agreement, dated as of June 26, 2017, which amended and restated in its entirety the Original PUMA (the “A&R PUMA”); and

WHEREAS, Buyer and Seller wish to amend the A&R PUMA to update the list of PPAs subject to the A&R PUMA and to make certain other changes to the A&R PUMA, as further set forth herein.

NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, and for other consideration, the receipt and adequacy of which is hereby acknowledged, the Parties hereto hereby agree as follows:

AGREEMENT

Section 1. Amendments to the A&R PUMA.

(a)    Annex D to the A&R PUMA is hereby amended and restated in its entirety to read as set forth on Attachment 1 attached hereto.

Section 2. No Other Changes or Waivers. Except as expressly provided or contemplated by this Amendment, all of the terms, conditions and provisions of the A&R PUMA remain unaltered and in full force and effect. Except as specifically provided herein, the execution, delivery and performance of this Amendment shall not be deemed as a waiver of any other matters or any future matters. The A&R PUMA and this Amendment shall be read and construed as one instrument.

CONFIDENTIAL

Section 3.    Headings. The Section headings contained in this Amendment are solely for the purpose of reference, are not part of the agreement of the Parties and shall not in any way affect the meaning or interpretation of this Amendment.

Section 4.    Governing Law; Jurisdiction; Venue. THIS AMENDMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ANY CONFLICTS OF LAW OR OTHER PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW). THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE NON-EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AMENDMENT. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING RELATING TO ANY SUCH DISPUTE AND FOR ANY COUNTERCLAIM WITH RESPECT THERETO.

Section 5.    Severability. If any term or other provision of this Amendment is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Amendment shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any Party.

Section 6.    Counterparts. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Signatures delivered by facsimile (or portable document format) will be considered original signatures, and each Party shall thereafter promptly deliver original signatures to the other Party.

[The remainder of this page intentionally left blank]

2

CONFIDENTIAL

IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed by their respective officers thereunto duly authorized as of the Effective Date.

BLOOM ENERGY CORPORATION
By:	/s/ Randy Furr
Name:	Randy Furr
Title:	Chief Executive Officer

2016 ESA PROJECT COMPANY, LLC
By:	/s/ Eric Dupont
Name:	Eric Dupont
Title:	Vice President, CFO, Treasurer & Secretary

SIGNATURE PAGE TO AMENDMENT NO. 1 TO A&R PUMA

CONFIDENTIAL

ATTACHMENT 1

List of PPAs

Updated as of: September     , 2017

1. That certain Energy Server Use and License Agreement, dated as of September 17, 2015, by and between Home Depot U.S.A., Inc. and Buyer (the “Home Depot PPA”).

2. That certain Master Fuel Cell Energy Services Agreement, Contract Number 17012, dated as of June 30, 2016, by and among, [***], and Buyer.

3. That certain Master Fuel Cell Energy, Services Agreement, Contract Number 17013, dated as of June 30, 2016, by and among [***], [***], and Buyer.

4. That certain Energy Server Use Agreement, dated as of September 27, 2016, by and between [***]. and Buyer (the “[***] PPA”).

5. That certain Energy Server Use and License Agreement, dated as of September 30, 2016, by and between [***] and Buyer.

6. That certain Energy Server Use and License Agreement, dated as of February 15, 2017, by and between Home Depot U.S.A., Inc. and Buyer.

7. That certain Energy Server Use and License Agreement, dated as of March 14, 2017, by and between [***] and Buyer.

8. That certain Energy System Use Agreement, dated as of March 24, 2017, by and between AT&T Corp. and Buyer (the “AT&T PPA”).

9. That certain Energy Server Use and License Agreement, dated as of May 31, 2017, by and between Equinix, Inc. and Buyer (the “Equinix PPA”).

10. That certain Energy Server Use and License Agreement, dated as of August 30, 2017, by and between [***] and 2017 ESA Project Company, LLC, as assigned to Buyer pursuant to that certain Assignment and Assumption Agreement, dated as of September 11, 2017, by and between 2017 ESA Project Company, LLC and Buyer.

[***] Confidential Treatment Requested

ATTACHMENT 1

EX-10

Exhibit 10.87

AMENDMENT NO. 1

DEPOSITARY AGREEMENT

This AMENDMENT NO. 1 TO DEPOSITARY AGREEMENT (this “Amendment”), is entered into effective as of March 21, 2017 by and among Diamond State Generation Partners, LLC, a Delaware limited liability company (the “Company”), Deutsche Bank Trust Company Americas, as Depositary (“Depositary”), and Deutsche Bank Trust Company America, as Collateral Agent (“Collateral Agent”). Capitalized terms used and not otherwise defined herein have the meanings given to them in the Depositary Agreement (as defined below). All Section references, unless otherwise indicated, shall be references to Sections of the Depositary Agreement and the rules of interpretation set forth in the Depositary Agreement apply as if set forth herein.

RECITALS

WHEREAS, reference is hereby made to that certain Depositary Agreement, dated as of March 20, 2013, by and among the Company, Depositary, and Collateral Agent (the “Depositary Agreement”); and

WHEREAS, the Company wishes to hereby amend the Depositary Agreement, in accordance with Section 6.4 of the Depositary Agreement, by amending Section 3.3.2(c)(8) of the Depositary Agreement;

NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, and for other consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto hereby agree as follows:

AGREEMENT

Section 1. Amendment to the Depositary. Section 3.3.2(c)(8) is hereby amended and restated in its entirety to read as follows:

(8) If, as of any Repayment Date, the Distribution Conditions have been satisfied, to the account directed by the Company in the Account Withdrawal Request, free of the Liens of the Collateral Documents, and if the Distribution Conditions have not been satisfied, to the Distribution Suspense Account, in each case such transfer to occur within one (1) Business Day of the applicable Repayment Date.

Section 2. Effective Date. This Amendment has been duly executed by the Company. This Amendment shall be effective upon the receipt by, or on behalf of, the Company of duly executed counterparts of this Amendment signed by the Depositary and the Collateral Agent (the “Effective Date”).

Section 3. No Other Changes or Waivers. Except as expressly provided or contemplated by this Amendment, all of the terms, conditions and provisions of the Depositary Agreement remain unaltered and in full force and effect. Except as specifically provided herein, the execution, delivery and performance of this Amendment shall not be deemed as a waiver of any other matters or any future matters. The Depositary Agreement and this Amendment shall be read and construed as one instrument.

1

Section 4. Headings. Article and Section headings have been inserted in this Amendment as a matter of convenience for reference only and it is agreed that such Article and Section headings are not a part of this Amendment and shall not be used in the interpretation of any provision of this Amendment.

Section 5. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED UNDER, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO CONFLICTS OF LAW (OTHER THAN SECTION 5-1401 AND SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW), EXCEPT AS REQUIRED BY MANDATORY PROVISIONS OF LAW AND EXCEPT TO THE EXTENT THAT THE VALIDITY OR PERFECTION OF THE LIEN AND SECURITY INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR ACCOUNT ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK. REGARDLESS OF ANY PROVISION IN ANY OTHER AGREEMENT, FOR PURPOSES OF THE UCC, THE “SECURITIES INTERMEDIARY’S JURISDICTION” OF DEPOSITARY WITH RESPECT TO THE ACCOUNTS IS THE STATE OF NEW YORK.

Section 6. Severability. Any provision of this Amendment that is invalid, illegal, prohibited or unenforceable in any respect in any jurisdiction, shall as to such jurisdiction be ineffective to the extent of such invalidity, illegality, prohibition or unenforceability without affecting, invalidating or impairing the validity, legality and enforceability of the remaining provisions hereof; and any such invalidity, illegality, prohibition or unenforceability in any jurisdiction shall not affect, invalidate or impair such provision in any other jurisdiction.

Section 7. Counterparts. This Amendment and any amendments, waivers, consents or supplements hereto or in connection herewith may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute one and the same instrument. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document.

[The remainder of this page intentionally left blank]

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If you are in agreement with the foregoing, please sign the form of agreement on a counterpart of this Amendment and return it to the Company, whereupon this Amendment shall become a binding agreement between you and the Company.

Very truly yours,
DIAMOND STATE GENERATION PARTNERS, LLC
By	/s/  Bill Brockenborough
Name: Bill Brockenborough
Title:   President

Signature Page to Amendment No. 1 to Depository Agreement

This Amendment is hereby accepted and agreed to as of the date hereof.

DEUTSCHE BANK TRUST COMPANY AMERICAS,
as the Depositary
By: Deutsche National Trust Company
By:	/s/ Doris Yang
Name: Doris Yang
Title:   Assistant Vice President
By:	/s/ David McGuire
Name: David McGuire
Title:   Assistant Vice President
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as the Collateral Agent
By: Deutsche Bank National Trust Company
By:	/s/ Doris Yang
Name: Doris Yang
Title:   Assistant Vice President
By:	/s/ David McGuire
Name: David McGuire
Title:   Assistant Vice President

Signature Page to Amendment No. 1 to Depository Agreement

EX-10

Exhibit 10.88

Execution Version

AMENDMENT NO. 1

CREDIT AGREEMENT

This AMENDMENT NO. 1 TO CREDIT AGREEMENT (this “Amendment”), is entered into effective as of October 14, 2016 by and among 2015 ESA Project Company, LLC, a Delaware limited liability Borrower (the “Borrower”), and Crédit Agricole Corporate and Investment Bank, as Administrative Agent on behalf of the Required Lenders. Capitalized terms used and not otherwise defined herein have the meanings given to them in the Credit Agreement (as defined below). All Section references, unless otherwise indicated, shall be references to Sections of the Credit Agreement and the rules of interpretation set forth in the Credit Agreement apply as if set forth herein.

RECITALS

WHEREAS, reference is hereby made to that certain Credit Agreement, dated as of June 25, 2015, by and among the Borrower, the Lenders party thereto, Credit Agricole Corporate and Investment Bank (as Administrative Agent), and Wilmington Trust, National Association (as Collateral Agent and Depository Bank) (the “Credit Agreement”);

WHEREAS, the Borrower wishes to hereby amend the Credit Agreement, in accordance with Section 9.10 of the Credit Agreement, by amending Sections 5.3 and 5.6 of the Credit Agreement; and

WHEREAS, the Borrower requests that, with respect to the requirements of Section 5.3(a)(ii) of the Credit Agreement for fiscal year 2015, the Administrative Agent on behalf of the Required Lenders consent to the delivery of annual audited financial statements of Pledgor (both consolidated with the Borrower and presenting Borrower on a stand-alone basis including applicable eliminations) in place of annual audited financial statements of Borrower, as (the “2015 Financial Statement Waiver”);

NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, and for other consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto hereby agree as follows:

AGREEMENT

Section 1. Amendments to the Credit Agreement.

i. Section 5.3 is hereby amended and restated in its entirety to read as follows:

Section 5.3 Financial Statements and Reporting Requirements.

(a) Deliver to the Administrative Agent (unless waived by the Administrative Agent at the direction of the Required Lender with respect to the timing of delivery of the statements and reports in electronic format suitable for distribution on the Platform (as defined in Section 9.3(e) hereof):

1

(i) (A) Within forty-five (45) days after the end of each of the first three quarterly accounting periods of each fiscal year (commencing with the quarter ending September 30, 2015), unaudited financial statements (comprised of a balance sheet and income statement, and without notes) of each of Borrower and each Sponsor (provided that the obligations to provide such financial statements of a Sponsor shall terminate upon termination of such Sponsor’s funding obligations under the Equity Contribution Agreement) and (B) within forty-five (45) days after the end of each fiscal year (commencing with the year ending December 31, 2016), unaudited financial statements (comprised of a balance sheet and income statement, and without notes) of Borrower; and

(ii) Within one hundred twenty (120) days after the end of each fiscal year of the Pledgor (commencing with the fiscal year ending December 31, 2015), annual audited financial statements of each of Pledgor (both consolidated with the Borrower and presenting Borrower on a stand-alone basis including applicable eliminations), each Sponsor (provided that the obligations to provide such financial statements of a Sponsor shall terminate upon termination of such Sponsor’s funding obligations under the Equity Contribution Agreement), and Bloom for such fiscal year, accompanied with an audit opinion thereon by an auditor with a nationally-recognized accounting firm, which opinion shall state that said financial statements present fairly, in all material respects, the financial position of the relevant Person at the end of, and for, such fiscal year in accordance with GAAP.

(b) Upon delivery of each financial statement of Pledgor pursuant to Section 5.3 (a), deliver a certificate of an Authorized Officer of the Borrower that (i) no Default or Event of Default has occurred and is continuing, (ii) the financial statements of Borrower fairly present in all material respects the financial condition and (to the extent applicable) results of operations of Borrower, in accordance with GAAP, consistently applied, as at the end of, and for, such period (subject to normal year-end audit adjustments), (iii) beginning with the first financial statements due to be delivered on or after the first Quarterly Date after Completion, a calculation of the Debt Service Coverage Ratio for the preceding twelve (12) months; provided that, to the extent any such Quarterly Date is less than twelve (12) months after Completion, the Debt Service Coverage Ratio as of such Quarterly Date shall be calculated solely on the basis of the period between Completion and such Quarterly Date, and (iv) which includes a statement of whether the Borrower is in compliance with the requirements of Section 5.16.

ii. The first sentence of Section 5.6 is hereby amended and restated in its entirety to read as follows:

Maintain adequate books, accounts and records with respect to the Borrower and the Projects and ensure that all financial statements of the Credit Parties required hereunder are prepared in accordance with GAAP and in compliance with the regulations of any governmental regulatory body having jurisdiction thereof.

2

Section 2. Effective Date. This Amendment has been duly executed by the Borrower. This Amendment shall be effective upon the receipt of the Administrative Agent of the following (the “Effective Date”):

(a) duly executed counterparts of this Amendment signed by the Borrower and the Administrative Agent on behalf of the Required Lenders and

(b) duly executed consents for the Administrative Agent to execute this Amendment from Lenders representing Required Lenders.

Section 3. Waiver. The Administrative Agent on behalf of the Required Lenders hereby consents to the 2015 Financial Statement Waiver.

Section 4. No Other Changes or Waivers. Except as expressly provided or contemplated by this Amendment, all of the terms, conditions and provisions of the Credit Agreement remain unaltered and in full force and effect. Except as specifically provided herein, the execution, delivery and performance of this Amendment shall not be deemed as a waiver of any other matters or any future matters. The Credit Agreement and this Amendment shall be read and construed as one instrument. This Amendment constitutes a Credit Document for all purposes.

Section 5. Representations and Warranties. The Borrower hereby represents and warrants that, as of the Effective (both immediately before and immediately after giving effect to the occurrence of the Effective Date and the transaction to occur thereon):

i. It has all requisite power and authority to enter into this Amendment and to carry out the transactions contemplated by, and perform its obligations under, the Credit Agreement as amended by this Amendment.

ii. The execution and delivery of this Amendment and the performance of the Credit Agreement as amended by this Amendment have been duly authorized by all necessary action on the part of the Borrower.

iii. The execution and delivery by the Borrower of this Amendment and the performance by it of the Credit Agreement as amended by this Amendment do not and will not violate any Legal Requirement or any Obligation and will not result in, or require, the creation or imposition of any Lien on any of its properties or revenues pursuant to any Legal Requirement or any such Obligation (other than the Liens created by the Collateral Documents on the Closing Date and from time to time thereafter).

iv. This Amendment has been duly executed and delivered by the Borrower and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting creditors’ rights generally and except as enforceability may be limited by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

3

v. No consent or authorization of, filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person which has not been received, filed, given or done is required in connection with the transactions contemplated herein or the execution, delivery, performance, validity or enforceability of this Amendment.

vi. No event has occurred and is continuing or will result from the consummation of the transactions contemplated by this Amendment that would constitute a Default or an Event of Default.

vii. The representations and warranties set forth in Article 4 of the Credit Agreement are true and correct in all material respects (except for any such representation or warranty that relates solely to a specific date, in which case, such representation or warranty was true and correct in all material respects as of such date); provided that, to the extent any such representation and warranty itself is qualified by “materiality”, “Material Adverse Effect” or similar qualifier, it is true and correct in all respects.

Section 6. Headings. The Section titles contained in this Amendment are and shall be without substantive meaning or content of any kind whatsoever and are not a part of the agreement between the parties hereto.

Section 7. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD PERMIT THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.

Section 8. Severability. Any provision of this Amendment that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by law) not invalidate or render unenforceable such provision in any other jurisdiction.

Section 9. Counterparts. This Amendment and any amendments, waivers, consents or supplements hereto or in connection herewith may be executed in one or more duplicate counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document. Signatures of the parties hereto transmitted by facsimile or portable document format (PDF) shall be deemed to be their original signatures for all purposes.

[The remainder of this page intentionally left blank]

4

If you are in agreement with the foregoing, please sign the form of agreement on a counterpart of this Amendment and return it to the Borrower, whereupon this Amendment shall become a binding agreement on the Lenders, the Administrative Agent, the Collateral Agent and the Borrower.

Very truly yours, 2015 ESA PROJECT COMPANY, LLC
By	/s/ William E Brockenborough
Name: William E Brockenborough
Title: Vice President

This Amendment is hereby accepted and agreed to as of the date hereof by:

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK

as Administrative Agent on behalf of the Required Lenders

By

Name:

Title:

By

Name:

Title:

Signature Page to Amendment No. 1 to Credit Agreement

If you are in agreement with the foregoing, please sign the form of agreement on a counterpart of this Amendment and return it to the Borrower, whereupon this Amendment shall become a binding agreement on the Lenders, the Administrative Agent, the Collateral Agent and the Borrower.

Very truly yours,

2015 ESA PROJECT COMPANY, LLC

By

Name:

Title:

This Amendment is hereby accepted and agreed to as of the date hereof by:

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK

as Administrative Agent on behalf of the Required Lenders

By	/s/ Theodore M. Vandermel
Name: Theodore M. Vandermel
Title: Managing Director
By	/s/ Robert G. Colvin
Name: Robert G. Colvin
Title: Managing Director

Signature Page to Amendment No. 1 to Credit Agreement

EX-10

Exhibit 10.89

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the securities and exchange commission pursuant to rule 406 of the securities act of 1933, as amended.

AMENDMENT NO. 2

CREDIT AGREEMENT

This AMENDMENT NO. 2 TO CREDIT AGREEMENT (this “Amendment”), is entered into as of April 10, 2017 by and among 2015 ESA Project Company, LLC, a Delaware limited liability Borrower (the “Borrower”), and Crédit Agricole Corporate and Investment Bank, as Administrative Agent, and each Lender party to the Credit Agreement. Capitalized terms used and not otherwise defined herein have the meanings given to them in the Credit Agreement (as defined below). All Section references, unless otherwise indicated, shall be references to Sections of the Credit Agreement and the rules of interpretation set forth in the Credit Agreement apply as if set forth herein.

RECITALS

WHEREAS, reference is hereby made to that certain Credit Agreement, dated as of June 25, 2015, by and among the Borrower, the Lenders party thereto, Credit Agricole Corporate and Investment Bank (as Administrative Agent), and Wilmington Trust, National Association (as Collateral Agent and Depository Bank) (as amended, the “Credit Agreement”); and

WHEREAS, the Borrower wishes to hereby amend the Credit Agreement, in accordance with Section 9.10 of the Credit Agreement, as further set forth herein;

NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, and for other consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto hereby agree as follows:

AGREEMENT

Section 1. Amendments to the Credit Agreement.

(a) The definition of the term “LC Commitments” set forth on Appendix A is hereby amended and restated in its entirety to read as follows:

“LC Commitments” shall mean up to $[***].

(b) Schedule 2.1 hereby amended and restated in its entirety with the revised ‘CONSTRUCTION LOAN COMMITMENTS’ table set forth on Exhibit A to this Amendment.

(c) Annex I hereby amended and restated in its entirety with the revised ‘LENDERS AND LOAN COMMITMENTS’ table set forth on Exhibit B to this Amendment.

(d) Annex II hereby amended and restated in its entirety with the revised ‘ISSUING BANKS AND LC COMMITMENTS’ table set forth on Exhibit C to this Amendment.

Section 2. Effective Date. Subject to (a) receipt of duly executed counterparts of this Amendment signed by the parties hereto and (b) the representations and warranties contained in Section 5 being true and correct as set forth therein, this Amendment shall be effective as of February 28, 2017 (the “Effective Date”).

[***] Confidential Treatment Requested

Section 3. [Reserved]

Section 4. No Other Changes or Waivers. Except as expressly provided or contemplated by this Amendment, all of the terms, conditions and provisions of the Credit Agreement remain unaltered and in full force and effect. Except as specifically provided herein, the execution, delivery and performance of this Amendment shall not be deemed as a waiver of any other matters or any future matters. The Credit Agreement and this Amendment shall be read and construed as one instrument. This Amendment constitutes a Credit Document for all purposes.

Section 5. Representations and Warranties. The Borrower hereby represents and warrants that, as of the Effective Date (both immediately before and immediately after giving effect to the occurrence of the Effective Date and the transaction to occur thereon) and as of the date hereof (both immediately before and immediately after giving effect to this Amendment and the transactions contemplated herein):

(a) It has all requisite power and authority to enter into this Amendment and to carry out the transactions contemplated by, and perform its obligations under, the Credit Agreement as amended by this Amendment.

(b) The execution and delivery of this Amendment and the performance of the Credit Agreement as amended by this Amendment have been duly authorized by all necessary action on the part of the Borrower.

(c) The execution and delivery by the Borrower of this Amendment and the performance by it of the Credit Agreement as amended by this Amendment do not and will not violate any Legal Requirement or any Obligation and will not result in, or require, the creation or imposition of any Lien on any of its properties or revenues pursuant to any Legal Requirement or any such Obligation (other than the Liens created by the Collateral Documents on the Closing Date and from time to time thereafter).

(d) This Amendment has been duly executed and delivered by the Borrower and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting creditors’ rights generally and except as enforceability may be limited by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

(e) No consent or authorization of, filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person which has not been received, filed, given or done is required in connection with the transactions contemplated herein or the execution, delivery, performance, validity or enforceability of this Amendment.

(f) No event has occurred and is continuing or will result from the consummation of the transactions contemplated by this Amendment that would constitute a Default or an Event of Default.

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(g) The representations and warranties set forth in Article 4 of the Credit Agreement are true and correct in all material respects (except for any such representation or warranty that relates solely to a specific date, in which case, such representation or warranty was true and correct in all material respects as of such date); provided that, to the extent any such representation and warranty itself is qualified by “materiality”, “Material Adverse Effect” or similar qualifier, it is true and correct in all respects.

Section 6. Headings. The Section titles contained in this Amendment are and shall be without substantive meaning or content of any kind whatsoever and are not a part of the agreement between the parties hereto.

Section 7. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD PERMIT THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.

Section 8. Severability. Any provision of this Amendment that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by law) not invalidate or render unenforceable such provision in any other jurisdiction.

Section 9. Counterparts. This Amendment and any amendments, waivers, consents or supplements hereto or in connection herewith may be executed in one or more duplicate counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document. Signatures of the parties hereto transmitted by facsimile or portable document format (PDF) shall be deemed to be their original signatures for all purposes.

[The remainder of this page intentionally left blank]

3

If you are in agreement with the foregoing, please sign the form of agreement on a counterpart of this Amendment and return it to the Borrower, whereupon this Amendment shall become a binding agreement on the Lenders, the Administrative Agent, the Collateral Agent and the Borrower.

Very truly yours,
2015 ESA PROJECT COMPANY, LLC
By:	/s/ Illegible
Name: ok/client
Title: Vice President

This Amendment is hereby accepted and agreed to as of the date hereof by:
CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK as Administrative Agent and Lender
By:	/s/ Theodore M. Vandermel
Name: Theodore M. Vandermel
Title: Managing Director
By:	/s/ Debora Kross
Name: Debora Kross
Title: Managing Director

[Signature Page to Amendment No. 2 to Credit Agreement.]

KEYBANK NATIONAL ASSOCIATION,
By:	/s/ Renee M. Bonnell
	Name: Renee M. Bonnell
	Title:   Vice President

[Signature Page to Amendment No. 2 to Credit Agreement.]

MANUFACTURERS TRUST COMPANY
By:	/s/ Marty Carlino
	Name: Marty Carlino
	Title:   VP Commercial Lending

[Signature Page to Amendment No. 2 to Credit Agreement.]

MIZUHO BANK, LTD.,
By:	/s/ Christopher Stolarski
	Name: Christopher Stolarski
	Title:   Managing Director

[Signature Page to Amendment No. 2 to Credit Agreement.]

SILICON VALLEY BANK,
By:	/s/ Sayoji Goli
	Name: Sayoji Goli
	Title: Vice President

[Signature Page to Amendment No. 2 to Credit Agreement.]

EXHIBIT A

CONSTRUCTION LOAN COMMITMENTS*

Lender	Contraction Loan Commitment			Percentage (%)
Credit Agricole Corporate and Investment Bank		$[***	]		[***	]%
KeyBank National Association		$[***	]		[***	]%
Mizuho Bank, Ltd.		$[***	]		[***	]%
Silicon Valley Bank		$[***	]		[***	]%
Manufacturers and Traders Trust Company		$[***	]		[***	]%
TOTAL		$[***	]		[***	]%

* Construction Loans have converted to Term Loans.

[***] Confidential Treatment Requested

EXHIBIT B

LENDERS AND LOAN COMMITMENTS

Lender	Amounts ($)			Percentage (%)
Credit Agricole Corporate and Investment Bank	$	[***	]		[***	]%
KeyBank National Association	$	[***	]		[***	]%
Mizuho Bank, Ltd.	$	[***	]		[***	]%
Silicon Valley Bank	$	[***	]		[***	]%
Manufacturers and Traders Trust Company	$	[***	]		[***	]%
TOTAL	$	[***	]		[***	]%

[***] Confidential Treatment Requested

EXHIBIT C

ISSUING BANKS AND LC COMMITMENTS

Lender	Amounts ($)		Percentage (%)
Credit Agricole Corporate and Investment Bank	$	[***]		[***	]%
KeyBank National Association	$	[***]		[***	]%
Mizuho Bank, Ltd.	$	[***]		[***	]%
Silicon Valley Bank	$	[***]		[***	]%
Manufacturers and Traders Trust Company	$	[***]		[***	]%
TOTAL	$	[***]		[***	]%

[***] Confidential Treatment Requested

EX-10

Exhibit 10.90

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the securities and exchange commission pursuant to rule 406 of the securities act of 1933, as amended.

AMENDMENT NO. 1 TO

AMENDED AND RESTATED PURCHASE, USE AND MAINTENANCE AGREEMENT

This AMENDMENT NO. 1 TO PURCHASE, USE AND MAINTENANCE AGREEMENT (this “Amendment”), is entered into effective as of March 14, 2016 (“Effective Date”) by and between BLOOM ENERGY CORPORATION, a Delaware corporation ( “Seller”) and 2014 ESA PROJECT COMPANY, LLC (“Buyer”, and together with Seller, the “Parties”). Capitalized terms used and not otherwise defined herein have the meanings given to them in the PUMA (as defined below). All Section, annex and exhibit references, unless otherwise indicated, shall be references to Sections of the PUMA and the rules of interpretation set forth in the PUMA apply as if set forth herein.

RECITALS

WHEREAS, reference is hereby made to that certain Amended and Restated Purchase, Use and Maintenance Agreement, dated as of July 18, 2014, by and between Buyer and Seller (the “PUMA”); and

WHEREAS, Buyer intends to enter into a PPA with [***] (the “[***] PPA”), and Buyer and Seller wish to amend the PUMA to provide for the purchase, sale, operation, maintenance and use of Facilities in connection with such [***] PPA, as further set forth herein.

NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, and for other consideration, the receipt and adequacy of which is hereby acknowledged, the Parties hereto hereby agree as follows:

AGREEMENT

Section 1. Amendment to the PUMA. Annex D to the PUMA is hereby amended and restated in its entirety to read as set forth on Attachment 1 attached hereto.

Section 2. No Other Changes or Waivers. Except as expressly provided or contemplated by this Amendment, all of the terms, conditions and provisions of the PUMA remain unaltered and in full force and effect. Except as specifically provided herein, the execution, delivery and performance of this Amendment shall not be deemed as a waiver of any other matters or any future matters. The PUMA and this Amendment shall be read and construed as one instrument.

Section 3. Headings. The section and paragraph headings contained in this Amendment are for reference purposes only and shall not affect in any way the meaning and interpretation of this Amendment.

[***] Confidential Treatment Requested

Section 4. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD PERMIT THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.

Section 5. Severability. Any provision of this Amendment that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by law) not invalidate or render unenforceable such provision in any other jurisdiction.

Section 6. Counterparts. This Amendment and any amendments, waivers, consents or supplements hereto or in connection herewith may be executed in one or more duplicate counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document. Signatures of the parties hereto transmitted by facsimile or portable document format (PDF) shall be deemed to be their original signatures for all purposes.

[The remainder of this page intentionally left blank]

2

BLOOM ENERGY CORPORATION
By:	/s/ Randy Furr
Name:	Randy Furr
Title:	Chief Executive Officer
2014 ESA PROJECT COMPANY, LLC
By:	/s/ William E. Brockenborough
Name:	William E. Brockenborough
Title:	Vice President

ATTACHMENT 1

ANNEX D

List of PPAs

1. That certain Energy System Use Agreement, dated as of December 31, 2013, by and between Home Depot U.S.A., Inc. and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

2. That certain Energy System Use Agreement No. 20131206.035.C, dated as of March 31, 2014, by and between AT&T Corp. and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

3. That certain Energy System Use Agreement No. 20131206.036.C, dated as of March 31, 2014, by and between AT&T Corp. and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

4. That certain Energy System Use Agreement No. 20131206.037.C, dated as of March 31, 2014, by and between Pacific Bell Telephone Company and the Buyer, as amended by Amendment No. 1 to Energy System Use Agreement No. 20131206.037.C, effective as of May 15, 2014, by and between Pacific Bell Telephone Company and the Buyer, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time.

5. That certain Energy System Use Agreement No. 20131206.039.C, dated as of February 21, 2014, by and between Pacific Bell Telephone Company and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

6. That certain Energy System Use Agreement No. 20140225.013.C, dated as of March 21, 2014, by and between AT&T Corp. and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

7. That certain Energy Services and License Agreement, dated as of March 14, 2016, by and between [***] and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

[***] Confidential Treatment Requested

EX-10

Exhibit 10.91

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.

AMENDMENT NO. 2 TO

AMENDED AND RESTATED PURCHASE, USE AND MAINTENANCE AGREEMENT

This AMENDMENT NO. 2 TO PURCHASE, USE AND MAINTENANCE AGREEMENT (this “Amendment”), is entered into effective as of December 16, 2016 (“Effective Date”) by and between BLOOM ENERGY CORPORATION, a Delaware corporation (“Seller”) and 2015 ESA PROJECT COMPANY, LLC, a Delaware limited liability company (“Buyer”, and together with Seller, the “Parties”). Capitalized terms used and not otherwise defined herein have the meanings given to them in the PUMA (as defined below). All Section, annex and exhibit references, unless otherwise indicated, shall be references to Sections of the PUMA and the rules of interpretation set forth in the PUMA apply as if set forth herein.

RECITALS

WHEREAS, reference is hereby made to that certain Amended and Restated Purchase, Use and Maintenance Agreement, dated as of June 25, 2015, by and between Buyer and Seller, as amended by that certain Amendment No. 1 to Purchase, Use and Maintenance Agreement, dated as of August 10, 2016 (the “PUMA”); and

WHEREAS, Buyer has entered into new PPAs with certain new PPA Customers, and Buyer and Seller wish to amend the PUMA to provide for the purchase, sale, operation, maintenance and use of Facilities in connection with such new PPA, as further set forth herein.

NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, and for other consideration, the receipt and adequacy of which is hereby acknowledged, the Parties hereto hereby agree as follows:

AGREEMENT

Section 1. Amendment to the PUMA. Annex D to the PUMA is hereby amended and restated in its entirety to read as set forth on Attachment 1 attached hereto.

Section 2. Confirmation of Rights and Obligations under PUMA. For the avoidance of doubt, the rights and obligations of each Party with respect to each PPA set forth on Annex D of the PUMA, as amended and restated hereby, shall adhere for all applicable time periods, both before and after the effectiveness of this Amendment and, in the case of the [***] ESA, both before and after the effectiveness of the [***] Assignment Agreement (each as defined on Annex D, as amended and restated hereby).

Section 3. No Other Changes or Waivers. Except as expressly provided or contemplated by this Amendment, all of the terms, conditions and provisions of the PUMA remain unaltered and in full force and effect. Except as specifically provided herein, the execution, delivery and performance of this Amendment shall not be deemed as a waiver of any other matters or any future matters. The PUMA and this Amendment shall be read and construed as one instrument.

[***] Confidential Treatment Requested

Section 4. Headings. The section and paragraph headings contained in this Amendment are for reference purposes only and shall not affect in any way the meaning and interpretation of this Amendment.

Section 5. Governing Law. THIS AMENDMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAW OF THE STATE OF NEW YORK EXCLUDING CHOICE-OF-LAW PRINCIPLES OF THE LAW OF SUCH STATE THAT WOULD PERMIT THE APPLICATION OF THE LAWS OF A JURISDICTION OTHER THAN SUCH STATE.

Section 6. Severability. Any provision of this Amendment that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by law) not invalidate or render unenforceable such provision in any other jurisdiction.

Section 7. Counterparts. This Amendment and any amendments, waivers, consents or supplements hereto or in connection herewith may be executed in one or more duplicate counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument; signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document. Signatures of the parties hereto transmitted by facsimile or portable document format (PDF) shall be deemed to be their original signatures for all purposes.

[The remainder of this page intentionally left blank]

2

IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed by their respective officers thereunto duly authorized as of the Effective Date.

BLOOM ENERGY CORPORATION
By:	/s/ Randy Furr
Name:	Randy Furr
Title:	Chief Executive Officer
2015 ESA PROJECT COMPANY, LLC
By:	/s/ William E. Brockenborough
Name:	William E. Brockenborough
Title:	Vice President

SIGNATURE PAGE TO AMENDMENT NO. 2 TO PUMA

ATTACHMENT 1

ANNEX D

List of PPAs

1. That certain Energy System Use Agreement, dated as of December 31, 2013, by and between Home Depot U.S.A., Inc. and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

2. That certain Energy System Use Agreement No. 20131206.035.C, dated as of March 31, 2014, by and between AT&T Corp. and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

3. That certain Energy System Use Agreement No. 20131206.036.C, dated as of March 31, 2014, by and between AT&T Corp. and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

4. That certain Energy System Use Agreement No. 20131206.037.C, dated as of March 31, 2014, by and between Pacific Bell Telephone Company and the Buyer, as amended by Amendment No. 1 to Energy System Use Agreement No. 20131206.037.C, effective as of May 15, 2014, by and between Pacific Bell Telephone Company and the Buyer, and as may be further amended, amended and restated, supplemented or otherwise modified from time to time.

5. That certain Energy System Use Agreement No. 20131206.039.C, dated as of February 21, 2014, by and between Pacific Bell Telephone Company and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

6. That certain Energy System Use Agreement No. 20140225.013.C, dated as of March 21, 2014, by and between AT&T Corp. and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

7. That certain Energy Services and License Agreement, dated as of March 14, 2016, by and between [***] and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

8. That certain Energy Services Agreement, dated as of December 31, 2015, by and between [***] and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

9. That certain Energy Services Agreement, dated as of December 31, 2015, by and between [***] and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

[***] Confidential Treatment Requested

ATTACHMENT 1

10. That certain Energy Services Agreement, dated as of December 31, 2015, by and between [***] and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

11. That certain Energy Services Agreement, dated as of February 12, 2016, by and between [***] and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

12. That certain Master Fuel Cell Energy Services Agreement, dated as of June 30, 2016, by and between [***], [***] and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

13. That certain Energy Server Use and License Agreement, dated as of December 16, 2016, by and between [***] and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

14. That certain Energy Services Agreement, entered into on or about the Effective Date of Amendment No. 2 to Amended and Restated Purchase, Use and Maintenance Agreement, by and between [***] and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

15. That certain Energy System Use Agreement, entered into on or about the Effective Date of Amendment No. 2 to Amended and Restated Purchase, Use and Maintenance Agreement, by and between Home Depot U.S.A., Inc. and the Buyer, as may be amended, amended and restated, supplemented or otherwise modified from time to time.

16. That certain Energy Server Use and License Agreement, dated as of March 31, 2016, by and between [***] and 2016 ESA Project Company, LLC (the “[***] PPA”), as assigned to the Buyer pursuant to that certain Assignment and Assumption Agreement, dated as of December 16, 2016, by and between 2016 ESA Project Company, LLC and the Buyer (the “[***] Assignment Agreement”), in each case as may be amended, amended and restated, supplemented or otherwise modified from time to time.

[***] Confidential Treatment Requested

ATTACHMENT 2

EX-10

Exhibit 10.92

Execution Version

[***] Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the securities and exchange commission pursuant to rule 406 of the securities act of 1933, as amended.

FIRST AMENDMENT TO SECOND

AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF

DIAMOND STATE GENERATION HOLDINGS, LLC

THIS FIRST AMENDMENT TO SECOND AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT OF DIAMOND STATE GENERATION HOLDINGS, LLC (this “Amendment”), is executed as of September 25, 2013, by and between Clean Technologies II, LLC, a Delaware limited liability company (“Clean Technologies”), and Mehetia Inc., a Delaware corporation (the “Investor”, and together with Clean Technologies, the “Members”). Capitalized terms used herein and not otherwise defined have the meanings provided in the Second Amended and Restated Limited Liability Company Agreement of Diamond State Generation Holdings, LLC, dated as of March 20, 2013 (the “Agreement”), by and between Clean Technologies and the Investor.

RECITALS

A.    WHEREAS, the Members entered into the Agreement as of March 20, 2013.

B.    WHEREAS, the Members desire to amend the Agreement as more fully set forth in this Amendment.

NOW, THEREFORE, in consideration of the covenants set forth in this Amendment, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Agreement is hereby amended as follows:

AGREEMENT

1. Amendments.

a. Section 6.1(a) of the Agreement is deleted in its entirety and replaced with the following text:

“(a) First, the proceeds of any Grant (or, if any Alternative Tax Program is elected pursuant to Section 7.5(b)(i), any Alternative Tax Program other than the ITC) received by the Project Company in connection with the Systems included in the Portfolio (as opposed to future capital expenditures) will be distributed, promptly upon receipt, in full to the Company by the Project Company and then distributed 99% to the Class B Members, distributed among them in proportion to their Pro Rata Shares, and 1% to the Class A Members, distributed among them in proportion to their Pro Rata Shares; provided, that any Grant proceeds received by the Project

1

Company in connection with the Systems included in the Portfolio (as opposed to future capital expenditures) in excess of an aggregate amount for all such Grant proceeds of $[***] will be distributed, promptly upon receipt, in full to the Company and then distributed by the Company 100% to the Class A Members, distributed among them in proportion to their Pro Rata Shares;”

b. Section 6.11 of the Agreement is deleted in its entirety and replaced with the following text:

“Section 6.11 Permitted Distributions. On or promptly following the execution date of the Note Purchase Agreement, the Project Company will distribute an amount equal to the Permitted Distribution from the proceeds received by the Project Company from the sale of the notes thereunder to the Company. On or promptly following the Final Completion Date, the Project Company will distribute an amount equal to the amounts remaining on deposit in the Construction Escrow Account, upon the occurrence of the Final Completion Date (such amount, the “Aggregate Final Completion Distribution”) to the Company. The Members acknowledge and agree that, notwithstanding anything to the contrary contained in this Agreement, (i) the proceeds of the Permitted Distribution shall be distributed to the Members on April 30, 2013 or such earlier date as may be agreed upon by the Members and (ii) the proceeds of the Aggregate Final Completion Distribution shall be distributed 100% to the Class B Members, distributed among them in proportion to their Pro Rata Shares, on the Distribution Date immediately succeeding the Final Completion Date.”

2. Final Completion Date Directions. The Members hereby direct the Managing Member to cause the Company, as manager of the Project Company, to cause the Project Company to, following the occurrence of the Final Completion Date and pursuant to the terms of the Note Purchase Agreement and the Depositary Agreement:

a. Cause the amounts remaining on deposit in the Construction Escrow Account to be distributed to the Company; and

b. Cause the amounts remaining on deposit in the IDC Reserve Account to be transferred to the Revenue Account (as such term is defined in the Depositary Agreement).

3. Ratification. The Agreement, as amended hereby, is in all respects ratified and confirmed and shall be and remain in full force and effect. All references to the Agreement in any other document or instrument shall be deemed to mean such Agreement as amended by this Amendment.

*** Confidential Treatment Requested

2

4. Amendments. No amendment, modification, termination or waiver of any provision of this Amendment shall be effective unless the same shall be in writing and duly executed by the Members.

5. Enforceability. This Amendment shall be enforceable by and binding upon and shall inure to the benefit of the Members and their respective successors and assigns.

6. Governing Law. THIS AMENDMENT IS GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF DELAWARE, EXCLUDING ANY CONFLICT-OF-LAWS RULE OR PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OR THE CONSTRUCTION OF THIS AMENDMENT TO THE LAW OF ANOTHER JURISDICTION.

7. Execution. The signature of the Members transmitted by electronic mail (including by “portable document format”) shall be deemed to be its original signature for all purposes.

8. Severability. If any term or other provision of this Amendment is invalid, illegal, or incapable of being enforced by any rule of applicable law, or public policy, all other terms and provisions of this Amendment shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated herein are not affected in any manner materially adverse to the Members.

[Remainder of page intentionally left blank]

3

IN WITNESS WHEREOF, each of the Members has caused this Amendment to be signed on its behalf as of the date first written above.

CLEAN TECHNOLOGIES II, LLC
By	/s/ William E. Brockenborough
Name:	William E. Brockenborough
Title:	Vice President
MEHETIA INC.
By	/s/ Jerry L. Smith
Name:	Jerry L. Smith
Title:	President

PPA II – First Amendment to DSGH LLCA

EX-10

Exhibit 10.93

CONSENT, AUTHORIZATION, WAIVER AND FIRST AMENDMENT TO

NOTE PURCHASE AGREEMENT

This CONSENT, AUTHORIZATION, WAIVER AND FIRST AMENDMENT TO NOTE PURCHASE AGREEMENT, dated as of June 24, 2013 (this “Consent, Waiver and Amendment”), is entered into by Diamond State Generation Partners, LLC, a Delaware limited liability company (the “Company”), and the Holders party to that certain Note Purchase Agreement, dated as of March 20, 2013 (the “Note Purchase Agreement”), by and among the Company and the note purchasers party thereto. Capitalized terms used herein and not otherwise defined shall have the meaning assigned to such terms in the Note Purchase Agreement.

WHEREAS, the Company (i) desires to amend the Note Purchase Agreement as described herein, (ii) desires to amend the Depositary Agreement as described in the First Amendment to Depositary Agreement (the “Depositary Amendment”) in the form attached hereto as Annex I and (iii) requests that the Holders provide the waivers described in Section 1.02 of this Consent, Waiver and Amendment; and

WHEREAS, each of the undersigned Holders agrees to (i) amend the Note Purchase Agreement, (ii) consent to the Company’s entry into the Depositary Amendment and (iii) provide the waivers described in Section 1.02, each as more fully set forth herein.

NOW THEREFORE, the parties hereto, intending to be legally bound by this Consent, Waiver and Amendment, agree as follows:

Section 1.01.    Amendments to the Note Purchase Agreement. Pursuant to Section 17.1(a) of the Note Purchase Agreement, the Purchasers agree that:

(a)    Section 4.2.1(c) of the Note Purchase Agreement is hereby amended by deleting the text of such Section in its entirety and replacing such text with the following:

“At least two Business Days prior to the proposed date of a Drawdown consisting in whole or in part of proceeds of the Notes, the Company shall have provided each of the Holders (with a copy to the Independent Engineer) with a certificate confirming that COD has occurred with respect to the Systems being funded under the requested Drawdown and signed by an authorized representative of the Company, substantially in the form of Exhibit 4.2.1(c) (the “Company’s COD Certificate”).”

(b)    Section 4.2.1(d) of the Note Purchase Agreement is hereby amended by deleting the text of such Section in its entirety and replacing such text with the following:

“At least one Business Day prior to the proposed date of a Drawdown consisting in whole or in part of proceeds of the Notes, the Independent Engineer shall have provided each of the Holders with a certificate dated the date of delivery of such certificate, confirming that COD has occurred with respect to the Systems being funded under the requested Drawdown, substantially in the form of Exhibit 4.2.1(d) (the “Independent Engineer’s COD Certificate”).”

(c)    Section 4.2.8 of the Note Purchase Agreement is hereby amended by deleting the text of such Section in its entirety and replacing such text with the following:

“System COD. Each System being financed with any such Drawdown consisting in whole or in part of proceeds of the Notes has achieved COD.”

(d)    Section 4.2.9(a) of the Note Purchase Agreement is hereby amended by deleting the text of such Section in its entirety and replacing such text with the following:

“In the quarter prior to the quarter in which any System is placed in service, or in the quarter in which any System is placed in service but prior to the date such System is placed in service, the Tax Equity Investors shall have contributed to the Pledgor and the Pledgor in turn shall have contributed to the Company 20% of the aggregate purchase price of the Systems to be placed in service, consistent with the Base Case Projections.”

(e)    Section 4.2.9(b) of the Note Purchase Agreement is hereby amended by deleting the text of such Section in its entirety and replacing such text with the following:

“Concurrently with any Drawdown consisting in whole or in part of proceeds of the Notes, the Tax Equity Investors shall have contributed to the Pledgor and the Pledgor in turn shall have contributed to the Company (in addition to the contribution described in Section 4.2.9(a)) 30.20% of the aggregate purchase price of the Systems placed in service through the date of such Drawdown, consistent with the Base Case Projections.”

(f)    Section 4.2.9(c) of the Note Purchase Agreement is hereby amended by deleting the text of such Section in its entirety and replacing such text with the following:

“After giving effect to any Drawdown, the ratio of (x) Note proceeds drawn from the Construction Escrow Account to (y) the total Notes shall not exceed the ratio of the aggregate nameplate capacity of commissioned Systems to 30 MW.”

(g)    Exhibit 4.2.1(a) of the Note Purchase Agreement is deleted in its entirety and replaced with Annex II attached hereto.

Section 1.02.    Waivers.

(a)    The Company acknowledges that proceeds of the Notes were withdrawn and transferred from the Construction Escrow Account by the Depositary on May 22, 2013 prior to the deposit into the Construction Escrow Account by Pledgor of proceeds received by Pledgor from the Tax Equity Investor. Each of the undersigned Holders hereby waives any breach of any Credit Document (including any breach that may constitute an Event of Default) that may have occurred due to such withdrawal and transfer and waives any right it may have to claim that a breach of a Credit Document occurred due to such withdrawal and transfer (including any breach that may constitute an Event of Default).

2

(b)    The Company acknowledges that a condition precedent to any Drawdown is the delivery of an Independent Engineer’s Drawdown Certificate to each of the Holders at least four Business Days prior to a Drawdown, as provided for in Section 4.2.1(b) of the Note Purchase Agreement. The Company and each of the undersigned Holders further acknowledge that the Independent Engineer’s Drawdown Certificate with respect to the Drawdown that occurred on May 22, 2013 was delivered on May 22, 2013 (the “May 22 IEDC”). Each of the undersigned Holders waives the four Business Day time period with respect to the delivery of the May 22 IEDC and confirms that the condition precedent set forth in Section 4.2.1(b) is to be deemed to have been satisfied on May 22, 2013 upon the delivery of the May 22 IEDC. Upon the effectiveness of this Consent, Waiver and Amendment pursuant to Section 1.05 below, the waivers and confirmations provided in this Section 1.02(b) shall be deemed to have been given as of May 22, 2013.

Section 1.03.    Depositary Amendment. Each of the undersigned Holders consents to the Company’s entry into the Depositary Amendment and directs the Collateral Agent (a) to enter into the Depositary Amendment and (b) to direct the Depositary to enter into the Depositary Amendment.

Section 1.04.    No Other Changes or Waivers. Except as expressly provided or contemplated by this Consent, Waiver and Amendment, all of the terms, conditions and provisions of the Note Purchase Agreement remain unaltered and in full force and effect. The waivers granted herein shall apply solely to the matters set forth herein and shall not be deemed as a waiver of any other matters or any future matters. The Note Purchase Agreement and this Consent, Waiver and Amendment shall be read and construed as one instrument. This Consent, Waiver and Amendment constitutes a Credit Document for all purposes.

Section 1.05.    Effectiveness of this Consent, Waiver and Amendment. This Consent, Waiver and Amendment shall be effective as of the date hereof (the “Effective Date”) upon the execution and delivery of a counterpart signature page to this Consent, Waiver and Amendment by the Company and the Holders.

Section 1.06.    Representations and Warranties. The Company hereby represents and warrants that, as of the Effective Date (both immediately before and immediately after giving effect to the occurrence of the Effective Date and the transaction to occur thereon):

(a)    It has all requisite power and authority to enter into this Consent, Waiver and Amendment and to carry out the transactions contemplated by, and perform its obligations under, the Note Purchase Agreement as amended by this Consent, Waiver and Amendment.

(b)    The execution and delivery of this Consent, Waiver and Amendment and the performance of the Note Purchase Agreement as amended by this Consent, Waiver and Amendment have been duly authorized by all necessary action on the part of the Company.

(c)    The execution and delivery by the Company of this Consent, Waiver and Amendment and the performance by it of the Note Purchase Agreement as amended by this Consent, Waiver and Amendment do not and will not violate any Legal Requirement or any Obligation and will not result in, or require, the creation or imposition of any Lien on any of its properties or revenues pursuant to any Legal Requirement or any such Obligation (other than the Liens created by the Collateral Documents on the Closing Date and from time to time thereafter).

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(d)    This Consent, Waiver and Amendment has been duly executed and delivered by the Company and constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, moratorium, reorganization or other similar laws affecting creditors’ rights generally and except as enforceability may be limited by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).

(e)    No consent or authorization of, filing with, notice to or other act by or in respect of, any Governmental Authority or any other Person which has not been received, filed, given or done is required in connection with the transactions contemplated herein or the execution, delivery, performance, validity or enforceability of this Consent, Waiver and Amendment.

(f)    Other than any Event of Default that may have occurred and is waived pursuant to Section 1.02(a) of this Consent, Waiver and Amendment, no event has occurred and is continuing or will result from the consummation of the transactions contemplated by this Consent, Waiver and Amendment that would constitute a Default or an Event of Default.

(g)    The representations and warranties set forth in Article 5 of the Note Purchase Agreement are true and correct in all material respects (except for any such representation or warranty that relates solely to a specific date, in which case, such representation or warranty was true and correct in all material respects as of such date); provided that, to the extent any such representation and warranty itself is qualified by “materiality”, “Material Adverse Effect” or similar qualifier, it is true and correct in all respects.

Section 1.07.    Counterparts; Integration; Effectiveness. This Consent, Waiver and Amendment may be executed in counterparts, each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Consent, Waiver and Amendment is binding upon and inures to the benefit of the parties hereto and their respective successors and assigns. Delivery of an executed counterpart of a signature page of this Consent, Waiver and Amendment by email (in “portable document format”) shall be deemed to be the original signature page for all purposes.

Section 1.08.    Governing Law. This Consent, Waiver and Amendment shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than such State.

Section 1.09.    Severability. Any provision of this Consent, Waiver and Amendment that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by law) not invalidate or render unenforceable such provision in any other jurisdiction.

[Signatures Follow on Next Page]

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IN WITNESS WHEREOF, the undersigned have caused this Consent, Waiver and Amendment to be duly executed by their respective authorized officers as of the day and year first above written.

DIAMOND STATE GENERATION PARTNERS, LLC
By:	/s/ William E. Brockenborough
	Name:	William E. Brockenborough
	Title:	President
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: Babson Capital Management LLC, its investment adviser
By:	/s/ Thomas P. Shea
	Name:	Thomas P. Shea
	Title:	Managing Director
C. M. LIFE INSURANCE COMPANY
By: Babson Capital Management LLC, its investment adviser
By:	/s/ Thomas P. Shea
	Name:	Thomas P. Shea
	Title:	Managing Director
MASSMUTUAL ASIA LIMITED
By: Babson Capital Management LLC, its investment adviser
By:	/s/ Thomas P. Shea
	Name:	Thomas P. Shea
	Title:	Managing Director:

MODERN WOODMEN OF AMERICA
By:	/s/ Douglas A. Pannier
	Name:	Douglas A. Pannier
	Title:	Group Head – Private Placements
AXA EQUITABLE LIFE INSURANCE COMPANY
By:	/s/ Amy Judd
	Name:	Amy Judd
	Title:	Investment Officer
TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
By:	/s/ Joseph R. Cantey Jr.
	Name:	Joseph R. Cantey Jr.
	Title:	Director
GENWORTH LIFE AND ANNUITY INSURANCE COMPANY
By:	/s/ Stuart Shepetin
	Name:	Stuart Shepetin
	Title:	Investment Officer
GENWORTH LIFE INSURANCE COMPANY OF NEW YORK
By:	/s/ Stuart Shepetin
	Name:	Stuart Shepetin
	Title:	Investment Officer

2

Annex I

Depositary Amendment

3

Annex II

EXHIBIT 4.2.1(a)

FORM OF DRAWDOWN CERTIFICATE

[LETTERHEAD OF COMPANY]

Date:              ,         ¹

Drawdown Date:              ,         

[                    ]

SAIC Energy, Environment & Infrastructure, LLC,

as Independent Engineer

Meditech Corporate Center, West Wing

550 Cochituate Road

Framingham, MA 01701

Re: Diamond State Generation Partners, LLC – Drawdown Certificate

Ladies and Gentlemen:

This Drawdown Certificate is delivered to you pursuant to Section 4.2.1(a) of the Note Purchase Agreement, dated as of March 20, 2013 (as amended, supplemented or otherwise modified from time to time, the “Note Purchase Agreement”), among Diamond State Generation Partners, LLC, a Delaware limited liability company (the “Company”), and the Purchasers party thereto. Capitalized terms used herein and not otherwise defined have the meanings provided in the Note Purchase Agreement.

I, [                    ], am a Responsible Officer of the Company. I have reviewed the provisions of the Credit Documents which are relevant to the furnishing of this Drawdown Certificate. To the extent that this Drawdown Certificate evidences, attests or confirms compliance with any covenants, representations, warranties or conditions precedent provided for in the Credit Documents, I have made such examination or investigation as was, in my opinion, reasonably necessary to enable me to express an informed opinion as to whether such covenants, representations, warranties or conditions have been complied with. This Drawdown Certificate relates to a Credit Event to take place on the date specified above as the “Drawdown Date” (the “Drawdown Date”).

¹  Certificate must be submitted to each of the Holders and Independent Engineer at least 7 Business Days prior to the date of each Drawdown.

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

I, on behalf of the Company, solely in my capacity as a Responsible Officer of the Company and not in my personal capacity, and without personal liability therefor, do hereby certify to the Secured Parties that the following statements are accurate, true and complete on the date hereof (except for those statements that solely relate to a later date), and will be accurate, true and complete on and as of the Drawdown Date:

1)    The aggregate Project Costs incurred, but not yet paid, through the date of the requested Credit Event are anticipated to be $        .

2)    The Project Costs to be paid with the funds requested in connection with this Drawdown Certificate are to be paid with proceeds of [the Notes and] cash equity contributions deposited by Diamond State Generation Holdings, LLC into the Construction Escrow Account in the amounts shown on Appendix I hereto.

3)    The currently estimated aggregate Project Costs necessary to achieve Final Completion are as described and segregated in Appendix I hereto. Such amount is consistent with the current Project Budget (as amended, allocated, re-allocated or modified from time to time in accordance with Section 9.14 of the Note Purchase Agreement) or has otherwise been approved or permitted pursuant to the Note Purchase Agreement.

4)    The variances in estimated Project Costs (from the Closing Date to the proposed Drawdown Date) are summarized in Appendix I hereto and such variances are described in the current or past construction progress reports delivered pursuant to Section 7.2(a) of the Note Purchase Agreement.

5)    Attached in Appendix II hereto are the previously paid or due and payable invoices, purchase orders or other documents evidencing the Project Costs that are to be reimbursed or paid with the funds requested in connection with this Drawdown Certificate.

6)    After taking into consideration the making of the Credit Event hereby requested, Available Funds are not less than the aggregate unpaid amount required: (a) to cause Final Completion to occur in accordance with all Legal Requirements, each Project Document pursuant to which construction work with respect to the Project is being performed, the Credit Documents, and the Project Schedule, on or before the Date Certain; and (b) to pay or provide for all anticipated non-construction Project Costs, all as set forth in the current Project Budget (as amended, allocated, re-allocated or modified from time to time in accordance with Section 9.14 of the Note Purchase Agreement). After taking into consideration the making of the Credit Event hereby

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

requested, the sources and uses of such Available Funds to achieve Final Completion are as follows:

Sources		Uses
Total:	$	Total:	$

7)    The estimated (a) Commencement of Operations date (under and as defined in the MESPA), (b) Final Completion Date, and (c) Placed in Service Date are each set forth on Appendix III hereto, in the case of clauses (a) and (c), with respect to the Systems being funded under this requested Credit Event.

8)    Each representation and warranty of each Credit Party in any of the Credit Documents to which it is a party is true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” is true and correct in all respects) on and as of the date of the Drawdown Date, before and after giving effect to the Credit Event requested hereby, with the same effect as though made on and as of such date, unless such representation or warranty expressly relates solely to an earlier date.

9)    To my knowledge, each representation and warranty of each Major Project Participant contained in the Operative Documents (other than the Note Purchase Agreement) is true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” or the like is true and correct in all respects) on and as of the Drawdown Date, before and after giving effect to the Credit Event requested hereby, with the same effect as though made on and as of such date, unless such representation and warranty expressly relates solely to an earlier date.

10)    No Default or Event of Default has occurred and is continuing or will result from the funding of the Credit Event hereby requested.

11)    All work that has been done on the Project to date has been done in a good and workmanlike manner and in accordance with the Project Documents (including any and all approved change orders made in accordance therewith, if any; any such approved change orders are listed on Appendix V together with all other requested and pending change orders) and there has not been filed against any of the Collateral or otherwise filed with or served upon the Company with respect to the Project or any part thereof, notice of any Lien, claim of Lien or attachment upon or claim affecting the right to receive payment of any of the moneys payable to any of the Persons named on such request which has not been released by payment or bonding or otherwise or which will not be released with the payment of such obligation out of the Notes or non-Note proceeds hereby requested, other than Permitted Liens.

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

12)    Except for any such Liens being contested by the Company as permitted under the definition of “Permitted Liens”, attached in Appendix IV are duly executed Lien waivers required to be delivered to each of the Holders pursuant to Section 4.2.4 of the Note Purchase Agreement relating to mechanics’ and materialmen’s Liens from each Person performing work at the Site or having a statutory right to file a mechanics’ and/or materialmen’s Lien, as the case may be, for all work, services and materials (including equipment and fixtures of all kinds, done, previously performed or furnished for the construction of the Project), for which the related Project Costs have been or will, from the proceeds of the requested Drawdown, be paid.

13)    Each Applicable Permit and Applicable Third Party Permit has been duly obtained or been assigned in the Company’s or the applicable third party’s name, is in full force and effect, is not subject to any current legal proceeding, and is not subject to any Unsatisfied Condition that could reasonably be expected to result in material modification or revocation of such Applicable Permit and Applicable Third Party Permit, and all applicable appeal periods with respect to such Applicable Permit and Applicable Third Party Permit have expired. The Permits which have been obtained by the Company are not subject to any restriction, condition, limitation or other provision that could reasonably be expected to have a Material Adverse Effect.

14)    [The Sponsor has built a permanent manufacturing facility for Systems located in the State of Delaware, and all Systems beyond which the Project has exceeded 10 MW of nameplate capacity have been sourced from such facility.]¹

15)    The Company is in compliance with the Tariff in all respects.

16)    [Each System being financed has achieved COD or will achieve COD prior to the Drawdown Date.] [If applicable].

17)    The Tax Equity Investors have contributed to the Pledgor and the Pledgor in turn has contributed to the Company 20% of the aggregate purchase price of the Systems to be financed with the proceeds of the requested Credit Event, consistent with the Base Case Projections. [If applicable].

18)    Concurrently with this Drawdown, the Tax Equity Investors have contributed to the Company 30.20% of the aggregate purchase price of the Systems to be financed with the proceeds of the requested Credit Event, consistent with the Base Case Projections. After giving effect to this Drawdown, the ratio of (x) Note proceeds drawn from the Construction Escrow Account to (y) the total Notes have not exceeded the ratio of the aggregate nameplate capacity of commissioned Systems to 30 MW. [If applicable].

¹  Insert after the first Funded System has caused the Project to exceed 10 MW of nameplate capacity.

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

19)    [All shared infrastructure at [the applicable Site] necessary for installation of each Funded System to be installed at such Site, including without limitation the “BOF Work” for such Site, as such term is defined in the MESPA, has been completed.¹]

20)    At any time following the Closing Date, no event, circumstance or condition has occurred and is continuing that has, or could reasonably be expected to have, a Material Adverse Effect.

[Signature page follows]

¹  Only include for first Credit Event for each Site.

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

IN WITNESS WHEREOF, the undersigned has caused this Drawdown Certificate to be duly executed and delivered on behalf of the Company as of the date first above written.

DIAMOND STATE GENERATION PARTNERS, LLC, a Delaware limited liability company

By:

Name:

Title:

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

APPENDIX I

to Drawdown Certificate

Currently Estimated Aggregate Project Costs

Project Cost	Amount
	$
	$
	$
	$
	$
Total:	$

Summary of Variances in Estimated Project Costs (from Closing Date to Proposed Drawdown Date)

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

APPENDIX II

to Drawdown Certificate

Invoices

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

APPENDIX III

to Drawdown Certificate

Estimated Dates

Expected Final Completion Date:             , 20    

Expected Commercial Operation Date: [Indicate Commercial Operation Date for each individual system, by Serial Number or other distinct means]

Expected Placed in Service Date: [Indicate Placed in Service Date for each individual system, by Serial Number or other distinct means]

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

APPENDIX IV

to Drawdown Certificate

Lien Waivers

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

APPENDIX V

to Drawdown Certificate

Change Orders

1. Approved

2. Requested and Pending

EXHIBIT 4.2.1(a) TO NOTE PURCHASE AGREEMENT

EX-10

Exhibit 10.94

SECOND AMENDMENT TO

NOTE PURCHASE AGREEMENT

This SECOND AMENDMENT TO NOTE PURCHASE AGREEMENT (this “Amendment”), is entered into effective as of March 13, 2018 by and among Diamond State Generation Partners, LLC, a Delaware limited liability company (the “Company”) and the Holders that have duly executed counterparts of this Amendment. Capitalized terms used and not otherwise defined herein have the meanings given to them in the Note Purchase Agreement (as defined below). All Section references, unless otherwise indicated, shall be references to Sections of the Note Purchase Agreement and the rules of interpretation set forth in the Note Purchase Agreement apply as if set forth herein.

RECITALS

WHEREAS, reference is hereby made to that certain Note Purchase Agreement, dated March 20, 2013 (as amended from time to time, the “Note Purchase Agreement”), by and among the Company and each of the Purchasers (as defined in the Note Purchase Agreement) party thereto; and

WHEREAS, the Company and the undersigned Holders wish to hereby amend the Note Purchase Agreement, in accordance with Section 17.1 of the Note Purchase Agreement, by amending Section 7.1 of the Note Purchase Agreement;    

NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, and for other consideration, the receipt and adequacy of which is hereby acknowledged, the parties hereto hereby agree as follows:

AGREEMENT

Section 1. Amendment to the Note Purchase Agreement. Section 7.1(a) of the Note Purchase Agreement is hereby amended and restated in its entirety to read as follows:

(a) Annual Financial Statements. As soon as practicable and in any event no later than March 31 of the calendar year immediately following the final day of each applicable fiscal year, audited financial statements of the Company and Sponsor (it being acknowledged that such requirement may be satisfied by the delivery of the appropriate report on Form 10-K filed with the SEC, if applicable), all prepared in accordance with GAAP consistently applied and setting forth, in each case, in comparative form the figures for the previous fiscal year. Such financial statements shall include a statement of equity, a balance sheet as of the close of such year, an income and expense statement, reconciliation of capital accounts (where applicable), a statement of cash flow and summary results of hedging and trading activities (in the case of the Company only), reported on without a qualification arising out of the scope of the audit, and certified by an independent certified public accountant of nationally recognized standing selected by the Person whose financial statements are being prepared. Such certificate shall not be qualified or limited because of restricted or limited examination by such accountant. The relevant accountant for the Company shall also certify that in making the examination necessary for reporting on the foregoing financial statements no knowledge was obtained of any Default or Event of Default, except as disclosed in such certificate.

Section 2. No Defaults or Events of Default. Except as explicitly noted to the contrary in that certain Notice under Note Purchase Agreement delivered by the Company to the Noteholders on February 27, 2018, no Default or Event of Default under the Note Purchase Agreement has occurred and is continuing as of the Effective Date.

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Section 3. Effective Date. This Amendment has been duly executed by the Company. This Amendment shall be effective upon the receipt by, or on behalf of, the Company of duly executed counterparts of this Amendment signed by Holders constituting the Required Holders (the “Effective Date”).

Section 4. No Other Changes or Waivers. Except as expressly provided or contemplated by this Amendment, all of the terms, conditions and provisions of the Note Purchase Agreement remain unaltered and in full force and effect. Except as specifically provided herein, the execution, delivery and performance of this Amendment shall not be deemed as a waiver of any other matters or any future matters. The Note Purchase Agreement and this Amendment shall be read and construed as one instrument.

Section 5. Headings. Article and Section headings have been inserted in this Amendment as a matter of convenience for reference only and it is agreed that such Article and Section headings are not a part of this Amendment and shall not be used in the interpretation of any provision of this Amendment.

Section 6. Governing Law. This Amendment shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than such State.

Section 7. Severability. Any provision of this Amendment that is invalid, illegal, prohibited or unenforceable in any respect in any jurisdiction, shall as to such jurisdiction be ineffective to the extent of such invalidity, illegality, prohibition or unenforceability without affecting, invalidating or impairing the validity, legality and enforceability of the remaining provisions hereof; and any such invalidity, illegality, prohibition or unenforceability in any jurisdiction shall not affect, invalidate or impair such provision in any other jurisdiction.

Section 8. Counterparts. This Amendment and any amendments, waivers, consents or supplements hereto or in connection herewith may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute one and the same instrument. Signature pages may be detached from multiple separate counterparts and attached to a single counterpart so that all signature pages are physically attached to the same document.

[The remainder of this page intentionally left blank]

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If you are in agreement with the foregoing, please sign the form of agreement on a counterpart of this Amendment and return it to the Company.

Very truly yours,

DIAMOND STATE GENERATION PARTNERS, LLC

By	/s/ Mark Mesler
Name: Mark Mesler
Title: Vice President

Signature Page to Second Amendment to Note Purchase Agreement

This Amendment is hereby accepted and agreed to as of the date hereof.

MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: Babson Capital Management LLC, its investment adviser
By:	/s/ Thomas P. Shea
	Name: Thomas P. Shea
	Title: Managing Director
C. M. LIFE INSURANCE COMPANY
By: Babson Capital Management LLC, its investment adviser
By:	/s/ Thomas P. Shea
	Name: Thomas P. Shea
	Title: Managing Director
MASSMUTUAL ASIA LIMITED
By: Babson Capital Management LLC, its investment adviser
By:	/s/ Thomas P. Shea
	Name: Thomas P. Shea
	Title: Managing Director
MODERN WOODMEN OF AMERICA
By:
	Name:
	Title:
AXA EQUITABLE LIFE INSURANCE COMPANY
By:
	Name:
	Title:

Signature Page to Second Amendment to Note Purchase Agreement

This Amendment is hereby accepted and agreed to as of the date hereof.

MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: Babson Capital Management LLC, its investment adviser
By:
	Name:
	Title:
C. M. LIFE INSURANCE COMPANY
By: Babson Capital Management LLC, its investment adviser
By:
	Name:
	Title:
MASSMUTUAL ASIA LIMITED
By: Babson Capital Management LLC, its investment adviser
By:
	Name:
	Title:
MODERN WOODMEN OF AMERICA
By:	/s/ Aaron R. Birkland
	Name: Aaron R. Birkland
	Title: Portfolio Manager Private Placements
By:	/s/ Christopher M. Cramer
	Name: Christopher M. Cramer
	Title: Manager, Fixed Income
AXA EQUITABLE LIFE INSURANCE COMPANY
By:
	Name:
	Title:

Signature Page to Second Amendment to Note Purchase Agreement

This Amendment is hereby accepted and agreed to as of the date hereof.

MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: Babson Capital Management LLC, its investment adviser
By:
	Name:
	Title:
C. M. LIFE INSURANCE COMPANY
By: Babson Capital Management LLC, its investment adviser
By:
	Name:
	Title:
MASSMUTUAL ASIA LIMITED
By: Babson Capital Management LLC, its investment adviser
By:
	Name:
	Title:
MODERN WOODMEN OF AMERICA
By:
	Name:
	Title:
By:
	Name:
	Title:
AXA EQUITABLE LIFE INSURANCE COMPANY
By:	/s/ Amy Judd
	Name: Amy Judd
	Title: Investment Officer

Signature Page to Second Amendment to Note Purchase Agreement

TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA
By: Nuveen Alternatives Advisors, LLC
Its: Investment Manager
By:	/s/ Joseph R. Cantey Jr.
	Name: Joseph R. Cantey Jr.
	Title: Senior Director
GENWORTH LIFE AND ANNUITY INSURANCE COMPANY
By:
	Name:
	Title:
GENWORTH LIFE INSURANCE COMPANY OF NEW YORK
By:
	Name:
	Title:

Signature Page to Second Amendment to Note Purchase Agreement

TEACHERS INSURANCE AND ANNUITY ASSOCIATION OF AMERICA

By: Nuveen Alternatives Advisors, LLC

Its: Investment Manager

By:
	Name:
	Title:
GENWORTH LIFE AND ANNUITY INSURANCE COMPANY
By:	/s/ Stuart Shepetin
	Name: Stuart Shepetin
	Title: Investment Officer
GENWORTH LIFE INSURANCE COMPANY OF NEW YORK
By:	/s/ Stuart Shepetin
	Name: Stuart Shepetin
	Title: Investment Officer

Signature Page to Second Amendment to Note Purchase Agreement